2023 TALKING POINTS

House Bill HB-258: Motorcycle Profiling Points of Interest

• Federal Senate Resolution 154-Promoting awareness of motorcyclist profiling and encouraging collaboration and communication with the motorcycle community and law enforcement officials to prevent instances of profiling, passed in 2018
• Federal House Resolution 366-Promoting awareness of motorcyclist profiling and encouraging collaboration and communication with the motorcycle community and law enforcement officials to prevent instances of profiling, passed in 2022
• Motorcycle Profiling Project has been conducting a National survey for 5 years and has reported a 100% increase in motorcycle profiling.
• The largest number of cases are in Texas and California
• Numbers and reported cases show these instances are not restricted to 1%er clubs or OMGs
• By December 2022, the survey had reached over 12,136 survey respondents, 1051 of which are from Texas. This gives less than 3% margin of error based on the sample size with more completing the survey to finish out the year.
• Approximately 30% of those have reported that they were stopped simply because of what they were wearing and their mode of transportation.
• The most egregious cases were related to arrests for simply not using a turn signal during a U-turn or changing lanes. We have video evidence.
• These stops have been less than subtle attempts to collect data for the Texas Gang Database. Many times, bikers/motorcyclists are coerced into searches at the threat of arrest for a Class C misdemeanor. Again, we have recorded evidence that yield financial compensation from APD and Texas DPS. One for requiring the biker to disrobe on the side of I-35 so officers could take pictures of his tattoos, again at the threat of arrest. The other, a speeding ticket for 10 over on a toll road late night that extended a stop from an expected 11 minutes to 41 minutes while the DPS trooper called a local K9 unit that found nothing.
• More cases are pending, costing the Texas taxpayers dollars and taking officers away from more serious offenses.
• There are 1.2 Million licensed motorcyclists in the State of Texas
• The previous year’s survey shows approximately 38% of surveyed bikers are veterans
• Consistently the survey results show that over 85% are active voters
• 73% are employed full-time while a large portion of the remaining 27% are retired or on
  military or work disability.
• 98.75% have no felony record
• Hot spots are DFW, Houston, El Paso, Corpus Christi, and Austin
• End result is the biker/ motorcyclists’ input into the Texas Gang Database, which yields its own set of issues.
• Survey question: Should there be a state or federal law addressing the issue of motorcycle profiling and discrimination directed towards motorcyclists? 85% Yes / 15% No
• Out of all survey respondents in Texas, only about 100 responses are from those considered 1%ers or OMGs. This means the large portion of respondents are made of traditional, family, religious, veteran oriented motorcycle clubs and riding clubs.
• Motorcycle Profiling is a continued harassment of those who are expressing a Supreme Court confirmed right of protected free speech and association.
• Motorcycle Profiling serves nothing more than to increase officer contacts/ interactions to justify budgets or attempts to increase funding.

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House Bill HB-230 Texas Gang Database Transparency and Accountability Act

Points of Interest

Texas Code of Criminal Procedure, Chapter 67 – “Compilation of Information Pertaining to Combinations and Criminal Street Gangs,” specifically problematic:

• Submission Criteria: This provision unconstitutionally allows law enforcement to label someone a member of a “criminal street gang” based on hearsay, tattoos, and/or Facebook posts without regard to whether law enforcement has any information to base a reasonable belief the person is involved in criminal activity.
• Right to Request Existence of Criminal Information: This provision is at issue because being labeled a member of a criminal street gang affects Texan’s Second Amendment protected right to bear arms. One cannot carry a handgun in his vehicle if he has been labeled a gang member in TXGANG. To strip someone of that substantive liberty interest, law enforcement should first have to notify the person that he is being input into TXGANG and give the person an opportunity to challenge the designation. The current version of the statute does not require law enforcement to notify people when they are input into TXGANG.
• Right to Request Review of Criminal Information: This provision is a constitutionally deficient method to challenge one’s inclusion into TXGANG, which does not satisfy the Constitutional right to Due Process.
• Judicial Review: This provision is a constitutionally deficient method to challenge one’s inclusion into TXGANG, which does not satisfy the Constitutional right to Due Process, because it does not require the Rules of Evidence to apply to an evidentiary hearing, wherein the parties have the right to present evidence, cross-examine witnesses, with the right to discovery

Examples of Rights affected by being labeled a member of a “criminal street gang”:

• A judge can order probationers to not associate with those labeled as members of a criminal street gang
• A judge can order a probationer that was input into the TXGANG as a member of a criminal street gang to submit to electronic monitoring as a condition of probation because of that designation
• A person labeled as a member of a criminal street gang may not avail themselves of the defense of consent for a mutual combat situation (i.e. fist fight)
• A personal labeled as a member of a criminal street gang cannot carry a handgun in their motor vehicle in Texas (read with the Second Amendment to the United States Constitution)

Sole purpose of this amendment

• Strengthen submission criterion and remove hearsay potential
• Notify someone if they are included in TXGANG
• Provide sufficient time to challenge the designation
• Make fees associated with the challenge affordable. Current cost is approximately a $400 filing fee and lawyer bills.
• Provide a clear-cut path to challenge the designation
• Allow the accused and their lawyer to see the evidence used to input them in the database under Texas’ disclosure laws. Currently this is not the case.
• Clarify expectations related to records improperly used to input suspect in the gang database.

Audit of the TXGANG Database of those in the database for 10 years or longer

• “The State Auditor’s Office conducted the probe and released its findings in August. The audit identified more than 5,000 records that were uploaded without the required information and over 1,000 that weren’t validated within the last five years – a federal requirement.”
• “A person can get a record in TxGANG without an arrest. Each law enforcement agency is responsible for validating its own TxGANG records, and individuals can have more than one TxGANG record, according to the audit.” • “Auditors discovered more than 15,000 records that were at least a decade old in February. More than 6,800 of those – or 44% – were not validated within the last five years or didn’t contain all the information needed to determine if they had been validated as required by federal regulations, according to the audit.” • “The audit specifically identified flaws in the process of uploading information by “batch.” Unlike individually uploaded records, which had complete information, auditors found records sent to the database in batches lacked important information. “
• “Federal rules also require law enforcement agencies to document the date they review a record, the name of the reviewer and an explanation or conclusion for the decision to retain a record. TxGANG policies, however, don’t require a validation date or the name of the person doing the review. Without that information, auditors said they couldn’t determine if more than 5,700 records were validated in time.”

https://sao.texas.gov/SAOReports/ReportNumber?id=22-039

https://www.kxan.com/investigations/audit-tx-gang-database-flawed-thousands-of-records-miss-validation/

https://www.kxan.com/investigations/bill-filed-to-reform-texas-gang-database/

https://localtoday.news/tx/audit-tx-gang-database-corrupted-thousands-of-records-are-not-validated-38285.html

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