Abbott supported the legislation’s intent but said he vetoed it because it was overly broad. The bill gained bipartisan support after a Dallas Morning News investigation into police use of hypnosis.
Texas Gov. Greg Abbott has vetoed a bill that would have banned people who have been hypnotized from testifying in a criminal trial.
Abbott expressed support for limiting the use of investigative hypnosis, when police attempt to put a victim or witness in a trance in order to improve their recall of a crime. He said he vetoed the bill last week, however, because the final version was too broad — a contention its backers reject.
“The author of Senate Bill 281 should be commended for aiming to bring accountability to the criminal justice system by addressing the use of investigative hypnosis,” Abbott wrote in his veto proclamation. “But the House sponsor’s late amendment to the bill would dramatically expand its scope in an unacceptable way.”
Senate Bill 281 earned bipartisan support after The Dallas Morning News published an investigative series that exposed how law enforcement officers in Texas use hypnosis in an effort to enhance the recollections of crime victims and witnesses, despite scientific evidence that the practice can distort memory and lead to wrongful convictions.
Given its bipartisan support, Abbott’s veto came as a surprise to lawmakers and some advocates who back the legislation. It also upended a yearslong effort to end investigative hypnosis and bring Texas in line with the growing consensus that the practice is not grounded in science and has no place in the courtroom.
Texas remains one of the few states that trains and promotes the use of hypnosis among law enforcement officers. Dozens of men and women in Texas have been sent to prison — some to death row — based on statements made under hypnosis.
While banning investigative hypnosis now may not help those inmates already convicted using the debunked method — including one death row inmate who is actively challenging his upcoming execution — Abbott’s veto means police in Texas will be able to continue to use the tool until lawmakers act to outlaw it.
The hypnosis legislation was one of 20 bills Abbott struck down this year, including measures to teach students about dating and family violence and to speed up parole for some prisoners convicted as minors. Abbott also vetoed a bill that would have cracked down on cruelty to dogs — a decision which garnered the governor a slew of angry reactions on social media, including the hashtag #AbbottHatesDogs.
Abbott, a two-term Republican, is up for re-election next year.
House Speaker Dade Phelan’s included the hypnosis bill among his priorities. Phelan, R-Beaumont, declined to comment on the veto. Lt. Gov. Dan Patrick, a Republican who leads the Senate, did not return a request for comment.
Lawmakers could revive the bill when they meet for a series of special sessions later this year — if Abbott puts the bill on a list of items eligible for debate. The governor’s office declined to comment on whether or not he would do so.
Abbott, a former attorney general who also sat on the Texas Supreme Court, wrote in his veto proclamation that he opposed the bill because he believed it would have prohibited anyone who had undergone investigative hypnosis from ever testifying in any criminal case. He said Rep. Eddie Lucio III, a Brownsville Democrat who carried the bill in the House, added this language to the bill.
“The House sponsor’s amendment would grant lifetime immunity, for everyone who undergoes this type of hypnosis, from having any subsequent statements used in a criminal trial,” Abbott wrote.
Lucio rejected Abbott’s decision to place the blame on him.
While the bill passed the House and Senate unanimously, disagreements over the final language pushed the bill to a bipartisan conference committee in the last days of the session. After negotiations, however, all 10 members of the committee signed off on the bill that was sent to Abbott’s desk.
The final version of the bill would have barred testimony from victims and witnesses who were hypnotized in an effort to refresh their memories. It would not have prohibited law enforcement officers from performing hypnosis altogether, nor would it have barred the introduction of physical evidence that corroborates a crime.
“I want to emphasize that any and all changes that were made to this bill were made collaboratively as both chambers sought a compromise to address the use of investigative hypnosis,” Lucio told The News.
Sen. Juan “Chuy” Hinojosa, the McAllen Democrat who authored the bill, also said all parties agreed. He believes the governor missed the bill’s intent.
“SB 281 would have effectively protected innocent people from wrongful misidentification made under hypnosis, while still giving investigators [the] ability to complete a full investigation,” said Hinojosa, who has tried three times to pass this bill into law.
40 years of hypnosis
Hypnosis can be used in therapy as a relaxation tool or to help influence unwanted habits, such as smoking.
The News investigation showed law enforcement officers in Texas also continue to use hypnosis to help them recall the details of a crime. This practice, which has no scientific backing, is banned in many states where courts or lawmakers determined the method can distort memories.
Texas has rejected this trend, however, remaining the top destination for police hypnosis in the country.
The News investigation showed more than 800 Texas peace officers — from airport police to school safety officers and firefighters — have been certified as hypnotists since 1980. The Texas Rangers, the state’s most vaunted law enforcement body, are among the most prolific hypnotists, conducting at least 1,789 hypnosis sessions with witnesses and victims.
After the series published, the Texas Department of Public Safety ended its hypnosis program. It made this decision, a spokesman said, because the agency “developed more advanced interview and interrogation techniques that yield better results.”
No state agency in Texas regulates the use of investigative hypnosis, enforces best practices or reviews the potential misuse of hypnosis leading to wrongful convictions. The News found the state has executed at least 11 men in whose cases involved hypnosis.
One inmate, Charles Don Flores, is currently challenging his conviction for the 1998 murder of Farmers Branch resident Elizabeth “Betty” Black.
During Flores’ trial, a neighbor who had been hypnotized by a local police officer pointed out Flores as one of two men she saw entering Black’s home the morning of her death. It was the first time she had identified Flores; she was the only eyewitness to put him at the scene. If the bill Abbott vetoed had been law during Flores’ trial, the neighbor would never have been able to testify against him.
Flores’ attorney called Abbott’s veto “inexplicable.”
“The state legislature worked hard to make a modest criminal justice reform and even that has been cavalierly unwound,” Gretchen Sween told The News. “‘Investigative hypnosis’ is not only demonstrably junk science; it amounts to a license to engage in the most insidious witness tampering.”
Another man pleaded guilty to killing Black and has already been released. But Flores, who has maintained his innocence, was convicted as an accomplice and sentenced to death. In January, the U.S. Supreme Court declined to take up his case.
Flores is now awaiting word from an appeals court in Texas.
Reviving the bill
Danny Ray King served 30 years in prison for a crime he said he didn’t commit. His conviction was based on testimony from a victim who identified him only after hypnosis. King was released from prison after The News’ began asking questions about his case, which was featured in the investigative series.
On Wednesday, King said he was disappointed the bill failed and urged lawmakers to revive it.
“I truly believe that the state of Texas needs to take another look at this bill or come up with another bill that would ban hypnosis forever in Texas,” said King, who plans to fight for exoneration. “It’s too much of a high risk to send innocent people to prison.”
Shannon Edmonds, director of government relations for the Texas District and County Attorneys Association, said he understood Abbott’s concerns but believes lawmakers can fix the bill.
“I’m confident there’s a way for legislators to tighten up the language in the future to avoid unintended consequences,” Edmonds said.
On July 8, lawmakers will kick off the first of several special legislative sessions. As governor, Abbott decides which bills are eligible for debate. He has signaled he will add several conservative priorities to the list, including additional measures targeting critical race theory and an omnibus elections bill that Democrats torpedoed by walking out of the Capitol in the final hours of the session.
Hinojosa and Lucio both pledged to end the practice of investigative hypnosis in the future.
“I am ready to take on this challenge again,” Hinojosa said.