Body-worn cameras are meant to provide transparency and accountability in incidents where law enforcement officers use excessive and/or deadly force. A model body camera policy from the Texas Police Chiefs Association Foundation’s website notes, “Body-worn cameras are an effective law enforcement tool that can reduce violent confrontations and complaints against officers. Body-worn cameras provide additional documentation of police-public encounters and may be an important tool for collecting evidence and maintaining public trust.”  

However, video from body cameras is not often released to the public or news media until long after the incident, if then.

The fatal shootings of Joshua Wright at a hospital in Kyle on Dec. 12, 2022, and Malachi Williams on April 11 of this year in San Marcos led the victims’ families and the public to call for the release of body cam footage to see what actually happened in each incident. Wright’s family was able to see the footage about seven months later, the Austin Chronicle reported. At the time of this writing, the San Marcos Police Department and the Hays County District Attorney’s Office are working with Williams’ family and their legal representative to schedule a review of the footage, the City of San Marcos legal department stated. 

The San Marcos Police Department’s policy on body-worn cameras states that “BWC [body-worn camera] systems can improve community relations and deter inappropriate conduct by both the police department and members of the public.” Yet that same policy states that body cam footage depicting “the use of deadly force by a law enforcement officer” is protected under state law.

“This protection lies in the fact that this video footage is considered evidence in a pending criminal investigation until such time as the criminal proceeding has concluded,” the policy reads, noting that a “no bill” from a grand jury ends the criminal proceeding quickly, but in cases that go to court, “the criminal proceedings would not be concluded until a much later time.”

Hays County District Attorney Kelly Higgins said that protecting investigations and possible prosecutions are his priority when it comes to body camera footage release policies.  “We are not going to release body-worn camera video until it is safe to do so from the perspective of potential prosecutions,” Hays County District Attorney Kelly Higgins said. “I understand that other DA offices have other approaches, but for us, the integrity of investigations is paramount.”

Higgins added that the release of such video could taint the jury pool in the event that an officer goes to trial.

There is another perspective on keeping body cam footage from the
public eye, however. 

“Though police departments may use this reason [an ongoing investigation] to withhold public records, including video, it’s the best public policy to release the footage right away, said Kelley Shannon, director of the Freedom of Information Foundation Texas (FIFT). “This builds
trust between the public and law enforcement. In fact, the most enlightened police departments do release footage of police shootings promptly. Some have policies requiring it.”

Section 552.108 of the Texas Government Code does provide an exception for releasing information, including video from a body camera, if the release of that information would hamper the detection, investigation, or prosecution of a crime, or if it is information “that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication” (see the sidebar on this story for more about this exception). 

However, state law gives police departments flexibility on how they release body camera footage, including footage from “critical incidents” (use of force or deadly force by an officer). Chapter 1701 of the Texas Occupations Code notes that a law enforcement agency can release video showing an officer’s use of deadly force if the agency believes its release would “further a law enforcement purpose.” The San Marcos policy on body cam footage release notes, “The term ‘law enforcement purpose’ is not further defined in the statute.”

“The Texas Occupations Code, a portion of which governs body camera footage, gives a lot of leeway to police departments to withhold footage during an ongoing criminal investigation,” Shannon said. “But they can also choose to release this information.”

Shannon noted a “law enforcement purpose” could be “enhancing public trust and accountability.”

When asked if building trust with the community would constitute a law enforcement purpose, the City of San Marcos legal department said, “One example of a law enforcement purpose includes releasing body camera footage when it aids in identifying a suspect. The determination of whether footage is released is made by the agency’s assessment of each specific case.”

As Shannon had mentioned earlier, some police departments in Texas do release body cam footage shortly after a critical incident. The Austin Police Department has a policy to release video evidence of critical incidents to the public within 10 business days after the incident. If the police chief determines that video of a critical incident will not be released, the department will issue a statement giving the reasons for that decision and stating whether or not the video could be released in the future, within 10 business days after the incident.

The policy also gives a definition for a law enforcement purpose:  “For the purpose of this policy, a law enforcement purpose may include, but is not limited to, solving a crime, locating a suspect or a witness, or enhancing police-community relations.”

The Bexar County Sheriff’s Dept. also has a policy – approved unanimously by the county commissioners, according to a 2021 San Antonio Report article – to release video of critical incidents within 10 days. 

The Examiner reached out to public information officers in Kyle and Lockhart about their policies on releasing footage from body cameras. A Kyle spokesperson said their police department generally does not release footage if an investigation is ongoing, but they could make exceptions “on a case-by-case basis.” The City of Lockhart did not provide any information about their policy.

Policies regarding the release of video footage don’t just affect what the public might see in the news or on social media; they also affect the results of public information requests by private individuals, journalists, and other interested parties seeking public records. Data the Examiner received in an open records request shows that in 2023, the City of San Marcos received 151 open records requests for body camera footage. Sixteen of those requests were for footage deemed exempt from release. Another 12 were sent to the Texas Attorney General’s office for an opinion on whether the information needed to be released. Forty-one requests yielded “no responsive records.” The City of San Marcos did not clarify the circumstances that would result in the city not having responsive records – just that “The City of San Marcos did not find any releasable documents matching the request criteria.” 

Higgins stands firm in his belief that body camera footage should remain unavailable to the public until after any case involving the footage is resolved.

“I am sympathetic to public demand, but the justice system moves more slowly than public opinion, and my first duty is to the pursuit of justice within the court system as established by the constitutions and laws of the U.S. and of Texas,” he said. 

“In general, I want to satisfy as many interests as possible while preserving the integrity of investigations,” Higgins continued. “My primary duty is to pursue justice, and where that duty bumps up against public demand, I’m afraid the pursuit of justice must come first. … This is not about denying information to the public, or protecting officers involved; it is about making sure the public and the parties receive the justice to which all are entitled under the law.”

Yet transparency advocates continue urging law enforcement agencies to promptly release camera footage of critical incidents.

“More law enforcement agencies need to recognize the importance of transparency and public trust of the police and have policies to release body camera and dash camera video and other records promptly,” Shannon said, “especially in a case of excessive use of force or death.”

BY ROBIN BLACKBURN