A quarter of the 60-plus law enforcement agencies operating in Harris County have refused to sign agreements to help local prosecutors track problem cops.

Under those agreements, all signed since District Attorney Kim Ogg took office three years ago, 46 agencies have promised to voluntarily turn over information about potentially untrustworthy or unreliable officers. But 17 other agencies declined to sign, a move that forces prosecutors to spend time getting the information through subpoenas and can potentially drag out the resolution of cases.

The Houston Police Department, the Texas Department of Public Safety and Metro Transit Police are among those that signed memoranda of understanding, but all of the county agencies — including all eight constable precincts and the Harris County Sheriff’s Office — declined to sign.

“Based on the County Attorney’s advice, the sheriff’s office has joined with other Harris County law enforcement agencies that are unable to sign the district attorney’s proposed memorandum of understanding at this time,” Sheriff Ed Gonzalez said in a statement to the Houston Chronicle, adding that his agency still “fully cooperates” with prosecutors by “providing all legally required information concerning all pending cases being prosecuted.”

A county attorney’s office spokesman declined to explain why lawyers told agencies not to sign the agreement, saying the office was “not comfortable” commenting on legal advice given to clients.

To Ogg, that’s all far from ideal: Without an agreement in place, her office must send out subpoena orders to make sure agencies turn over everything.

“It’s a great deal of added work,” Ogg said. “I just don’t think this (agreement) is anything that law enforcement agencies should fear.”

Long-time local defense lawyer Patrick McCann agreed that it was a “pretty fair point” that issuing added subpoenas could be a significant burden for prosecutors, and raised concerns about some agencies’ refusal to enter an agreement.

“It is absolutely indicative of the culture of hiding the ball,” he said.

Ever since 1963, a U.S. Supreme Court decision known as Brady vs. Maryland has required prosecutors to turn over to defense lawyers anything that could help prove a person’s innocence. On top of that, a 2013 Texas law — named the Michael Morton Act after a Williamson County man wrongfully convicted of killing his wife — codifies even broader disclosure requirements. To meet those requirements, Harris County prosecutors keep a database of recurring witnesses — including lab techs, experts and police — with credibility or disciplinary problems that might need to be disclosed to the defense.

As of February, that so-called “disclosure database” included 1,461 people, 546 of whom are current members of law enforcement. More than 40 percent of those — 227 — were with the Houston Police Department, which Ogg said is responsible for about 80 percent of the cases filed.

It’s not clear who those potentially problem deputies and officers are, as the district attorney’s office has refused to release their names. In an interview, Ogg cited the “work product” exemption to public records law in explaining that she did not have to release them. Nationally, though, few prosecutors have agreed to make those lists public, and police typically oppose such releases, citing privacy concerns or reputational harm. Watchdogs say releasing those lists would create more accountability, put police “on notice” and build faith in law enforcement.

Not all counties keep disclosure lists, but Harris County has been compiling the information for roughly five years. When Ogg took office in Jan. 2017, though, she said the database was based on an unwritten agreement and only included Houston Police Department employees.

“I sought to formalize the whole system,” she said. “We drafted new policies, we put together a committee to review the information that we received, and I sent out a letter requesting all agency leaders to sign this MOU.”

The three-page agreement asks agencies to tell the DA’s office whenever a potential police witness is charged with or investigated for a crime, relieved of duty or suspended for misconduct allegations, taken off casework, determined to be untruthful through an administrative investigation, or found guilty of misconduct that could call into question their integrity. Getting agencies to sign the agreement, Ogg said, would reduce work time for prosecutors and ensure that they get all the information they need to turn over to the defense.

“We rely upon the agencies to give us the information that we would need to comply with disclosure (requirements),” Ogg said, “and instead of just blindly relying, we’ve asked them to sign written memorandums of agreement.”

To defense lawyers like McCann, the efforts to create a database and get law enforcement on board seem “laudable,” but he pointed out that ultimately it’s up to the DA’s office as to whether or when to turn that material over. “They’re still trying to keep a stranglehold on the information,” he said, “and they’re terrible about timeliness.”

Under past administrations the district attorney’s office developed a reputation for failing to disclose evidence, including in high-profile cases like those of Katy-area football coach David Temple and former death row inmate Alfred Dewayne Brown. As recently as last year, a misdemeanor judge called out the DA’s Office for failing to comply with Brady and went so far as to order a rare monetary sanction after prosecutors took eight months to turn over La Porte police disciplinary records.

‘Duty to disclose’

After Ogg’s office fired off the letter to local law enforcement in late 2017, responses trickled in for months. Though the letter focused on the DA’s “duty to disclose” the information, it also sought to reassure police by promising that prosecutors would “oppose the use of such information by the defense.”

Yet as of early 2020, a quarter of the 63 agencies that received the letter had yet to sign. Ogg called those agencies “outliers,” adding, “I just don’t think this is anything that law enforcement agencies should fear.”

When the Chronicle reached out to those agencies the district attorney’s office said had declined to sign the agreement, most did not respond. The Shoreacres police chief said his department always cooperates even without an agreement in place, though he did not explain why the agency would not sign.

The University of Houston Police Department responded expressing surprise that records showed they hadn’t signed. After looking into it, the department determined it was a paperwork error which they soon remedied and entered into an agreement effective late last year.

The Harris County Sheriff’s Office and the few constables who responded to requests for comment all said they did not sign largely because county lawyers told them not to.

“At the advice of the county attorney, it was something that we didn’t want to sign,” said Precinct 4 Constable Mark Herman. “I’m not going to leave the fate of people in law enforcement in their hands.”

Similarly, the sheriff raised concerns about the database, but expressed hope for reaching an agreement.

“I encourage the county attorney’s office and the district attorney’s office to strive for an agreement that provides the law enforcement community appropriate input into how the Brady database is generated and maintained,” Sheriff Gonzalez said, “includes an appeal process for officers, and includes a provision to automatically remove a peace officer from the list when that officer was incorrectly included in the first place.”

It’s not clear if those were among the concerns raised by county attorneys, but the DA office policy explicitly addresses some of those issues, including removal from the database. And, whether or not the sheriff’s office signs, deputies can still be entered into the database — as more than 110 already are — based on information obtained through the added work of filing a subpoena.

“To me it’s remarkable that as many agencies cooperated as they have,” Ogg said, “and I remain optimistic that the county law enforcement agencies will, though they have not to date.”

St. John Barned-Smith contributed to this report.

Keri Blakinger, a former staff writer at the Houston Chronicle, is now a reporter at The Marshall Project, a nonprofit newsroom covering the criminal justice system. She can be reached at keri@themarshallproject.org or on Twitter @keribla.