Victoria sheriff stops releasing jail mug shots

By Jessica Priest
Victoria Advocate
Originally published Aug. 13-14, 2016

The Victoria County Sheriff is not releasing mug shots to the public at the same time others in the region are becoming more transparent.

Sheriff T. Michael O’Connor is concerned he will be sued by those whose mug shots he releases who are later found innocent of a crime.

However, no sheriff has ever been sued for that reason and lost, said Joe Larsen, a board member for the Freedom of Information Foundation of Texas.

The Louisville, Ky., police department was sued by a man whose picture it included on a poster of active shoplifters that it distributed to merchants. The U.S. Supreme Court in 1976 ruled that even though the shoplifting charges were later dropped, the department had not violated the man’s privacy rights.

Since taking office in 2005, O’Connor has released mug shots of those in his custody.

The policy change came after the Victoria Advocate requested the mug shot of former Citizens Medical Center CEO Stephen Thames when he bonded out.

Thames was arrested in June on suspicion of aggravated assault with a deadly weapon.

Under the Texas Public Information Act, agencies must promptly release requested information. If they don’t believe the information is public, they have 10 business days to ask the Attorney General for an exemption.

The sheriff’s office released the mug shot 14 business days after it was requested. The sheriff’s office did so after the Victoria Advocate notified the office it had missed the 10-day deadline.

The sheriff declined an in-person interview about the policy change, but Ward Wyatt, his new communications adviser, said the Thames case or any other did not prompt the decision to stop releasing mug shots.

The sheriff now will release mug shots only if the person is convicted or placed on deferred adjudication, a type of probation.

“I understand the desire for fast access to information in today’s world. However, as the sheriff, it is my duty to make sure decisions are based off of sound legal principles,” O’Connor wrote in a statement.

In the Victoria Advocate’s subsequent requests for mug shots, the sheriff’s office has sought and been granted exemptions from the AG. The AG wrote sheriffs may use their discretion when releasing mug shots until a case is closed.

Crossroads sheriffs received a grant from the state to upgrade their record management systems a few years ago, Lavaca County Sheriff Micah Harmon said.

Sheriffs in Calhoun, DeWitt, Lavaca and Victoria counties use Southern Software for record management. Calhoun, DeWitt and Lavaca counties take advantage of the North Carolina-based company’s program that allows the public to view jail inmate information, including mug shots. Victoria does not. The counties that do said it didn’t cost anything extra.

They say it has cut down on the number of phone calls jailers field from those asking about loved ones in the jail, when they can visit them and how much it will take to get them out.

They say it also helps attorneys and bondsmen.

To them, mug shots are open records anyway.

“I’ve been asked not to release the information, but I have never done that,” DeWitt County Sheriff Jode Zavesky said. “I think what’s good for one is good for the rest of us.”

Buoyed by the success of its online jail database, the Calhoun County Sheriff’s Office will soon launch another Southern Software program. It will show the public a map with points indicating where deputies have responded to crimes.

“Our motto from the day I took office is that we want the public to know what’s going on,” Calhoun County Sheriff George Aleman said. “If people see our stuff posted, they can call in and say, ‘Hey, I read your post. This is what I saw and what I heard.’ This is a tool. It helps us.”

But some of them later walked back their statements when they learned O’Connor was no longer releasing mug shots.

“Right now, I’m going to leave it is as is, but with further investigation,” Jackson County Sheriff A.J. “Andy” Louderback said.

Louderback posts jail mug shots on a cellphone application called Mobile Patrol.

“I think it’s dependent upon the sheriff of each county. Obviously, there’s 254 different minds and, unfortunately, there’s at least eight lawyers for each one of us. It depends on what the attorneys tell them,” Zavesky added.

Some sheriffs said they were concerned about the rise of websites that publish mug shots and then charge people a fee to take them down.

“They are just out there trying to make money off other people’s hardships,” Harmon said.

But in 2013, Texas passed Senate Bill 1289, which prohibits websites from charging individuals a fee to remove their mug shots. The websites also have a duty to make sure other criminal history information is accurate.

Otherwise, the AG could sue them in Travis County district court and collect a $500 fine for each violation.

Adam Marshall, an attorney for the Reporters Committee for the Freedom of the Press, said it is dangerous for government entities to start restricting the public’s access to information because it does not agree with how the information may be used.

Both he and Joe Larsen, who is also an attorney, said an arrest is a legitimate public concern where there can be no right to privacy.

“Access to mug shots could help the public understand if there was potential abuse of someone when they were arrested,” Marshall said. “If they have cuts on their face or a black eye, that would allow the public to say, ‘Hey, what happened here?’ There could be a perfectly reasonable explanation, but that type of physical evidence is, I think, important.”

Larsen posed another hypothetical. What if a man charged with robbing a bank bonds out of jail and then doesn’t come to court?

“You don’t think the sheriff would put the photo out there so they could locate that guy and bring him back to justice? It happens all the time. To say that unless there’s a conviction or deferred adjudication, they’re not going to release that mug shot, to me, it is, on its face, false,” he said.

Mug shots show the physical condition of the arrestee, which is one of the 18 categories of basic information the AG determined in 1976 must be disclosed by law enforcement about an arrest or incident, even if a criminal case is ongoing, Larsen said.

Right now, the AG does not consider mug shots to be basic information. That may not change until the requester sues for the release of the mug shot, he said.

For James Clark, who has lived in Quail Creek for 14 years, mug shots don’t matter as much to him as where crime is occurring and what deputies are doing about it.

“I’d like to see it, personally, but the thing is if you have an innocent person that has gotten kicked loose, that mug shot, that picture is always going to be there, and in some people’s eyes, they will always be guilty,” Clark said.

He reads the Victoria Advocate’s blotter daily and becomes upset when he doesn’t see the reports of crime in his neighborhood that he knows have happened. The Advocate has requested timely release of sheriff’s office incident reports for several years, Editor Chris Cobler said.

Recently, some of Clark’s neighbors have been busted for cooking meth in their home. Another neighbor had their home broken into, Clark said.

“For example, if you have a bunch of muggings going on at the H-E-B Plus parking lot and nothing ever makes the newspaper, nobody is going to know what’s happening, are they?” Clark said. “If they know what’s happening, they can be more watchful.”

Chief Deputy Roy Boyd wrote in a statement the person who took over the responsibility of releasing that information mistakenly thought he or she could only disclose arrests. Boyd wrote that this has since been corrected.