By: Coleman H.B. No. 4159
A BILL TO BE ENTITLED
AN ACT
relating to interactions between law enforcement and individuals
stopped on suspicion of the commission of criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 2.13, Code of Criminal Procedure, is
amended by adding Subsection (d) to read as follows:
(d) The officer may not:
(1) conduct a search based solely on a person's consent
to the search; or
(2) make a stop for an alleged violation of a traffic
law or ordinance as a pretext for investigating a violation of
another penal law.
SECTION 2. Article 2.132, Code of Criminal Procedure, is
amended by amending Subsections (b), (c), and (e) and adding
Subsections (h) and (i) to read as follows:
(b) Each law enforcement agency in this state shall adopt a
detailed written policy on racial profiling. The policy must:
(1) clearly define acts constituting racial
profiling;
(2) strictly prohibit peace officers employed by the
agency from engaging in racial profiling;
(3) implement a process by which an individual may
file a complaint with the agency if the individual believes that a
peace officer employed by the agency has engaged in racial
profiling with respect to the individual;
(4) provide public education relating to the agency's
complaint process, including providing the information regarding
the complaint process on each ticket, citation, or warning issued
by a peace officer;
(5) require appropriate corrective action to be taken
against a peace officer employed by the agency who, after an
investigation, is shown to have engaged in racial profiling in
violation of the agency's policy adopted under this article;
(6) require collection of information relating to all
motor vehicle stops [in which a citation is issued and to arrests
made as a result of those stops], including information relating
to:
(A) the race or ethnicity of the individual
detained;
(B) whether a search was conducted [and, if so,
whether the individual detained consented to the search]; and
(C) whether the peace officer knew the race or
ethnicity of the individual detained before detaining that
individual; [and]
(D) whether the peace officer used physical force
against anyone during the stop; and
(7) require the chief administrator of the agency,
regardless of whether the administrator is elected, employed, or
appointed, to submit an annual report of the information collected
under Subdivision (6) to:
(A) the Texas Commission on Law Enforcement; and
(B) the governing body of each county or
municipality served by the agency, if the agency is an agency of a
county, municipality, or other political subdivision of the state.
(c) The data collected as a result of the reporting
requirements of this article shall not constitute prima facie
evidence of racial profiling but is admissible in a court of law as
evidence of racial profiling.
(e) A report required under Subsection (b)(7) may not
include identifying information about a peace officer who makes a
motor vehicle stop or about an individual who is stopped or arrested
by a peace officer. This subsection does not affect the collection
of information as required by a policy under Subsection (b)(6).
(h) A law enforcement agency shall review the data collected
under Subsection (b)(6) to determine whether the number of vehicles
driven by a member of a particular race or ethnicity stopped by any
peace officer employed by the agency is disproportionate to the
population of that race or ethnicity in the county or municipality
served by the agency.
(i) If a law enforcement agency determines that the number
of vehicles driven by a member of a particular race or ethnicity
stopped by a peace officer is disproportionate, as described by
Subsection (h), the agency shall conduct an investigation of the
officer to determine whether the officer routinely stops vehicles
the drivers of which are members of a particular racial or ethnic
group for alleged violations of traffic laws or ordinances as a
pretext for investigating violations of other penal laws.
SECTION 3. Chapter 2, Code of Criminal Procedure, is
amended by adding Articles 2.1321 and 2.1322 to read as follows:
Art. 2.1321. RACIAL PROFILING INVESTIGATIONS. (a) The
chief administrator of a law enforcement agency, regardless of
whether the administrator is elected, employed, or appointed, shall
annually review the data collected by the agency on racial
profiling to determine if:
(1) racial profiling is potentially occurring on an
agency-wide level; or
(2) an individual peace officer may be engaging in
racial profiling.
(b) On a finding by the chief administrator of potential
racial profiling on an agency-wide basis or by an individual peace
officer, the agency shall initiate an investigation into the
potential racial profiling.
(c) The chief administrator of each law enforcement agency
shall annually certify to the Texas Commission on Law Enforcement
that the chief administrator conducted the review required by
Subsection (a).
(d) On a finding by the Texas Commission on Law Enforcement
that the chief administrator of a law enforcement agency
intentionally failed to conduct a review required by Subsection
(a), the commission shall begin disciplinary procedures against the
chief administrator.
Art. 2.1322. REQUIRED RACIAL PROFILING COUNSELING AND
TRAINING FOR CERTAIN PEACE OFFICERS. (a) If an investigation
initiated under Article 2.132 or 2.1321 results in a finding of
racial profiling, the law enforcement agency shall provide
appropriate counseling and training to any peace officer found to
have engaged in racial profiling.
(b) The counseling and training under Subsection (a) must:
(1) emphasize understanding and respect for racial and
cultural differences;
(2) address racial and cultural biases; and
(3) include effective, noncombative methods of
carrying out law enforcement duties in a racially and culturally
diverse environment.
(c) If, after a peace officer completes the counseling and
training under Subsection (a), the officer is again found to have
engaged in racial profiling, the law enforcement agency shall:
(1) suspend the officer for not less than six months;
and
(2) require the officer to repeat the counseling and
training under Subsection (a).
SECTION 4. Article 2.133, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsection (c) to
read as follows:
(b) A peace officer who stops a motor vehicle for an alleged
violation of a law or ordinance shall report to the law enforcement
agency that employs the officer information relating to the stop,
including:
(1) a physical description of any person operating the
motor vehicle who is detained as a result of the stop, including:
(A) the person's gender; and
(B) the person's race or ethnicity, as stated by
the person or, if the person does not state the person's race or
ethnicity, as determined by the officer to the best of the officer's
ability;
(2) the initial reason for the stop;
(3) whether the officer conducted a search as a result
of the stop [and, if so, whether the person detained consented to
the search];
(4) whether any contraband or other evidence was
discovered in the course of the search and a description of the
contraband or evidence;
(5) the reason for the search, including whether:
(A) any contraband or other evidence was in plain
view;
(B) any probable cause or reasonable suspicion
existed to perform the search; or
(C) the search was performed as a result of the
towing of the motor vehicle or the arrest of any person in the motor
vehicle;
(6) whether the officer made an arrest as a result of
the stop or the search, including a statement of whether the arrest
was based on a violation of the Penal Code, a violation of a traffic
law or ordinance, or an outstanding warrant and a statement of the
offense charged;
(7) the street address or approximate location of the
stop; [and]
(8) whether the officer issued a verbal or written
warning or a citation as a result of the stop; and
(9) whether the officer used physical force in
conjunction with the arrest.
(c) The chief administrator of a law enforcement agency,
regardless of whether the administrator is elected, employed, or
appointed, shall make periodic random and unannounced reviews of
motor vehicle stops by peace officers employed by the agency to
ensure that the race or ethnicity of the person operating the motor
vehicle is being properly identified in the report under Subsection
(b).
SECTION 5. Articles 2.134(c), (d), and (f), Code of
Criminal Procedure, are amended to read as follows:
(c) A report required under Subsection (b) must be submitted
by the chief administrator of the law enforcement agency,
regardless of whether the administrator is elected, employed, or
appointed, and must include:
(1) a comparative analysis of the information compiled
under Article 2.133 to:
(A) evaluate and compare the number of motor
vehicle stops, within the applicable jurisdiction, of persons who
are recognized as racial or ethnic minorities and persons who are
not recognized as racial or ethnic minorities; [and]
(B) examine the disposition of motor vehicle
stops made by officers employed by the agency, categorized
according to the race or ethnicity of the affected persons, as
appropriate, including any searches resulting from stops within the
applicable jurisdiction; and
(C) evaluate and compare the number of searches
resulting from motor vehicle stops within the applicable
jurisdiction and whether contraband or other evidence was
discovered in the course of those searches;
(2) information relating to each complaint filed with
the agency alleging that a peace officer employed by the agency has
engaged in racial profiling; and
(3) information relating the number of investigations
initiated under Article 2.1321, and the outcomes of the
investigations.
(d) A report required under Subsection (b) may not include
identifying information about a peace officer who makes a motor
vehicle stop or about an individual who is stopped or arrested by a
peace officer. This subsection does not affect the reporting of
information required under Article 2.133(b)(1).
(f) The data collected as a result of the reporting
requirements of this article shall not constitute prima facie
evidence of racial profiling but is admissible in a court of law as
evidence of racial profiling.
SECTION 6. Article 2.1385(a), Code of Criminal Procedure,
is amended to read as follows:
(a) If the chief administrator of a local law enforcement
agency intentionally fails to submit the incident-based data as
required by Article 2.134, the agency is liable to the state for a
civil penalty in the amount of $10,000 [$1,000] for each violation.
The attorney general may sue to collect a civil penalty under this
subsection.
SECTION 7. Effective September 1, 2018, Chapter 2, Code of
Criminal Procedure, is amended by adding Article 2.1386 to read as
follows:
Art. 2.1386. MOTOR VEHICLE STOP INVESTIGATIONS. (a) In
this article, "law enforcement agency" and "motor vehicle stop"
have the meanings assigned by Article 2.132(a).
(b) Each law enforcement agency shall adopt and implement a
detailed written policy regarding the administration of a motor
vehicle stop investigation in accordance with this article,
including the administrative penalties for violations of the
policy. A law enforcement agency may adopt the model policy
promulgated by the Bill Blackwood Law Enforcement Management
Institute of Texas or the agency's own policy.
(c) A peace officer may not:
(1) conduct a roadside investigation during a motor
vehicle stop for an offense other than the traffic violation
without suspicion based on a preponderance of the evidence that the
driver has committed the other offense;
(2) continue a roadside investigation during a motor
vehicle stop into an offense other than the traffic violation after
the driver has refused to consent to be searched unless the peace
officer has additional suspicion based on a preponderance of the
evidence that the driver has committed the other offense; or
(3) arrest a driver during a motor vehicle stop for a
traffic violation to conduct a search incident to arrest unless the
officer has probable cause to believe that the driver has committed
an offense more serious than a Class C misdemeanor.
(d) A peace officer who violates Subsection (c) shall be
subject to an administrative penalty of not less than a one-day
suspension.
SECTION 8. Article 3.05, Code of Criminal Procedure, is
amended to read as follows:
Art. 3.05. RACIAL PROFILING. (a) In this code, "racial
profiling" means a law enforcement-initiated action based on an
individual's race, ethnicity, or national origin rather than on the
individual's behavior or on information identifying the individual
as having engaged in criminal activity.
(b) Racial profiling may be identified through the
examination of sufficient and evidence-based data analysis.
SECTION 9. Article 14.06, Code of Criminal Procedure, is
amended by amending Subsection (b) and adding Subsection (b-1) to
read as follows:
(b) A peace officer who is charging a person, including a
child, with committing an offense that is a [Class C] misdemeanor
punishable by a fine only, other than an offense under Section
49.02, Penal Code, or an offense under Chapter 106, Alcoholic
Beverage Code, shall [may], instead of taking the person before a
magistrate, issue a citation to the person that contains written
notice of the time and place the person must appear before a
magistrate, the name and address of the person charged, the offense
charged, and the following admonishment, in boldfaced or underlined
type or in capital letters:
"If you are convicted of a misdemeanor offense involving
violence where you are or were a spouse, intimate partner, parent,
or guardian of the victim or are or were involved in another,
similar relationship with the victim, it may be unlawful for you to
possess or purchase a firearm, including a handgun or long gun, or
ammunition, pursuant to federal law under 18 U.S.C. Section
922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any
questions whether these laws make it illegal for you to possess or
purchase a firearm, you should consult an attorney."
(b-1) A peace officer who is charging a person, including a
child, with committing an offense that is a misdemeanor punishable
by a fine only under Chapter 106, Alcoholic Beverage Code, may,
instead of taking the person before a magistrate, issue to the
person a citation that contains written notice of the time and place
the person must appear before a magistrate, the name and address of
the person charged, and the offense charged.
SECTION 10. Section 543.004(a), Transportation Code, is
amended to read as follows:
(a) An officer shall issue a written notice to appear if:
(1) the offense charged is [speeding or] a misdemeanor
under this subtitle that is punishable by a fine only [violation of
the open container law, Section 49.03, Penal Code]; and
(2) the person makes a written promise to appear in
court as provided by Section 543.005.
SECTION 11. Effective January 1, 2018, Subchapter A,
Chapter 543, Transportation Code, is amended by adding Section
543.0045 to read as follows:
Sec. 543.0045. NOTIFICATION REQUIRED DURING TRAFFIC STOP.
(a) An officer who stops a motor vehicle as a result of a person's
alleged commission of a misdemeanor under this subtitle that is
punishable by a fine only shall promptly notify the person that:
(1) the alleged offense is a misdemeanor under this
subtitle that is punishable by a fine only; and
(2) the officer may not arrest a person solely on the
basis of that offense.
(b) The Texas Commission on Law Enforcement by rule shall
specify the language that is required to be included in the
notification described by Subsection (a).
SECTION 12. The following provisions of the Code of
Criminal Procedure are repealed:
(1) Article 2.135.
SECTION 13. Article 2.13(d), Code of Criminal Procedure, as
added by this article, applies only to a motor vehicle stop or
search that occurs on or after the effective date of this Act.
SECTION 14. Articles 2.132 and 2.134, Code of Criminal
Procedure, as amended by this article, apply only to a report
covering a calendar year beginning on or after January 1, 2018.
SECTION 15. Articles 2.132(h) and (i), 2.1321, and 2.1322,
Code of Criminal Procedure, as added by this article, apply to an
investigation that occurs on or after the effective date of this
Act, regardless of whether the potential racial profiling occurred
before, on, or after that date.
SECTION 16. Not later than September 1, 2018, the Texas
Commission on Law Enforcement shall evaluate and change the
guidelines for compiling and reporting information required under
Article 2.134, Code of Criminal Procedure, as amended by this
article, to withstand academic scrutiny.
SECTION 17. (a) Not later than December 31, 2017, the Bill
Blackwood Law Enforcement Management Institute of Texas, in
consultation with large, medium, and small law enforcement
agencies, law enforcement associations, and community
organizations engaged in the development of law enforcement policy
on behalf of the public, shall develop, adopt, and disseminate to
all law enforcement agencies in this state a model policy and
associated training materials for conducting a motor vehicle stop,
in accordance with Article 2.1386, Code of Criminal Procedure, as
added by this article.
(b) Not later than September 1, 2018, each law enforcement
agency of this state shall adopt the policy required by Article
2.1386, Code of Criminal Procedure, as added by this article, if
applicable.
SECTION 18. Not later than December 1, 2017, the Texas
Commission on Law Enforcement shall adopt the rules required by
Section 543.0045(b), Transportation Code, as added by this article.
SECTION 19. The changes in law made by this article apply
only to an offense committed on or after the effective date of this
Act. An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this article if any element of the offense
occurred before that date.
SECTION 20. Except as otherwise provided by this Act, this
Act takes effect September 1, 2017.