By: West S.B. No. 1487
(Thompson of Harris)
A BILL TO BE ENTITLED
AN ACT
relating to preventing racial profiling and video and audio
equipment and recordings of certain law enforcement motor vehicle
stops; creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 2.131, Code of Criminal Procedure, is
amended to read as follows:
Art. 2.131. RACIAL PROFILING PROHIBITED. A peace officer
may not engage in an act of racial profiling, as defined by the
written policy required by Section 1701.702, Occupations Code, and
adopted by the law enforcement agency employing the officer.
SECTION 2. Chapter 1701, Occupations Code, is amended by
adding Subchapter O and adding a subchapter heading to read as
follows:
SUBCHAPTER O. RACIAL PROFILING; MOTOR VEHICLE STOPS
SECTION 3. Articles 2.132, 2.133, 2.134, 2.135, 2.136,
2.137, 2.138, and 2.1385, Code of Criminal Procedure, are
transferred to Subchapter O, Chapter 1701, Occupations Code, as
added by this Act, redesignated as Sections 1701.701, 1701.702,
1701.704, 1701.705, 1701.707, 1701.708, 1701.709, 1701.710,
1701.711, 1701.712, 1701.713, 1701.714, 1701.715, and 1701.716,
Occupations Code, and amended to read as follows:
Sec. 1701.701. DEFINITIONS. [Art. 2.132. LAW ENFORCEMENT
POLICY ON RACIAL PROFILING. (a)] In this subchapter [article]:
(1) "Department" means the Department of Public
Safety.
(2) "Law enforcement agency" means an agency of the
state, or of a county, municipality, or other political subdivision
of the state, that employs peace officers who make motor vehicle
stops in the routine performance of the officers' official duties.
(3) [(2)] "Motor vehicle stop" means an occasion in
which a peace officer stops a motor vehicle for an alleged violation
of a law or ordinance.
(4) [(3)] "Race or ethnicity" means of a particular
descent, including Caucasian, African, Hispanic, Asian, Native
American, or Middle Eastern descent.
Sec. 1701.702. POLICY OF LAW ENFORCEMENT AGENCY ON RACIAL
PROFILING. (a) [(b)] Each law enforcement agency in this state
shall adopt a detailed written policy on racial profiling.
(b) 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;
(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
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
(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 commission [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 subchapter does [article shall] not constitute
prima facie evidence of racial profiling.
Sec. 1701.704. VIDEO AND AUDIO EQUIPMENT FOR LAW
ENFORCEMENT MOTOR VEHICLES AND MOTORCYCLES. [(d)] On adoption of
a policy regarding racial profiling under Section 1701.702
[Subsection (b)], a law enforcement agency shall examine the
feasibility of installing video camera and transmitter-activated
audio equipment in each agency law enforcement motor vehicle
regularly used to make motor vehicle stops and
transmitter-activated audio equipment in each agency law
enforcement motorcycle regularly used to make motor vehicle stops.
Sec. 1701.705. POLICY FOR USE OF VIDEO AND AUDIO EQUIPMENT.
(a) If a law enforcement agency installs video or audio equipment
as provided by Section 1701.704 [this subsection], the law
enforcement agency shall adopt a policy for the use of the
equipment.
(b) A policy adopted by an [the] agency under this section
[Subsection (b)] must include:
(1) guidelines for when a peace officer should
activate the equipment or discontinue a recording currently in
progress;
(2) provisions relating to data retention, including a
provision requiring the retention of [standards for reviewing]
video and audio recordings for a minimum period of 90 days;
(3) provisions relating to storage of video and audio
recordings, creation of backup copies of the recordings, and
maintenance of data security;
(4) guidelines for public access, through open records
requests, to recordings that are public information;
(5) procedures for supervisory or internal review; and
(6) the handling and documenting of equipment and
malfunctions of equipment [documentation].
(c) A policy adopted under this section must be consistent
with the Federal Rules of Evidence and Texas Rules of Evidence.
Sec. 1701.707. INVESTIGATION OF COMPLAINT; USE OF
RECORDING. [(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).
[(f)] On the commencement of an investigation by a law
enforcement agency of a complaint described by Section
1701.702(b)(3) [Subsection (b)(3)] in which a video or audio
recording of the occurrence on which the complaint is based was
made, the agency shall promptly provide a copy of the recording to
the peace officer who is the subject of the complaint on written
request by the officer.
[(g) On a finding by the Texas Commission on Law Enforcement
that the chief administrator of a law enforcement agency
intentionally failed to submit a report required under Subsection
(b)(7), the commission shall begin disciplinary procedures against
the chief administrator.]
Sec. 1701.708 [Art. 2.133]. REPORTS REQUIRED FOR MOTOR
VEHICLE STOPS. [(a) In this article, "race or ethnicity" has the
meaning assigned by Article 2.132(a).
[(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 written warning or a
citation as a result of the stop.
Sec. 1701.709 [Art. 2.134]. COMPILATION AND ANALYSIS OF
INFORMATION COLLECTED. (a) [In this article:
[(1) "Motor vehicle stop" has the meaning assigned by
Article 2.132(a).
[(2) "Race or ethnicity" has the meaning assigned by
Article 2.132(a).
[(b)] A law enforcement agency shall compile and analyze the
information contained in each report received by the agency under
Section 1701.708 [Article 2.133].
(b) Not later than March 1 of each year, each law
enforcement agency shall submit a report containing the
incident-based data compiled during the previous calendar year to
the commission [Texas Commission on Law Enforcement] and, if the
law enforcement agency is a local law enforcement agency, to the
governing body of each county or municipality served by the agency.
(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 Section 1701.708 [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
(2) information relating to each complaint filed with
the agency alleging that a peace officer employed by the agency has
engaged in racial profiling.
(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 Section 1701.708(1) [Article
2.133(b)(1)].
(e) The commission [Texas Commission on Law Enforcement],
in accordance with Section 1701.162, [Occupations Code,] shall
develop guidelines for compiling and reporting information as
required by this section [article].
(f) The data collected as a result of the reporting
requirements of this section does [article shall] not constitute
prima facie evidence of racial profiling.
Sec. 1701.710. FAILURE TO SUBMIT REPORT; DISCIPLINARY
PROCEDURES. [(g)] On a finding by the commission [Texas
Commission on Law Enforcement] that the chief administrator of a
law enforcement agency intentionally failed to submit a report
required under Section 1701.702(b)(7) or 1701.709 [Subsection
(b)], the commission shall begin disciplinary procedures against
the chief administrator.
Sec. 1701.711 [Art. 2.135]. PARTIAL REPORTING EXEMPTION
FOR AGENCIES USING VIDEO AND AUDIO EQUIPMENT. [(a)] A peace
officer is exempt from the reporting requirement under Section
1701.708 [Article 2.133] and the chief administrator of a law
enforcement agency, regardless of whether the administrator is
elected, employed, or appointed, is exempt from the compilation,
analysis, and reporting requirements under Section 1701.709
[Article 2.134] if:
(1) during the calendar year preceding the date that a
report under Section 1701.709 [Article 2.134] is required to be
submitted:
(A) each law enforcement motor vehicle regularly
used by an officer employed by the agency to make motor vehicle
stops is equipped with video camera and transmitter-activated audio
equipment and each law enforcement motorcycle regularly used to
make motor vehicle stops is equipped with transmitter-activated
audio equipment; and
(B) each motor vehicle stop made by an officer
employed by the agency that is capable of being recorded by video
and audio or audio equipment, as appropriate, is recorded by using
the equipment; or
(2) the governing body of the county or municipality
served by the law enforcement agency, in conjunction with the law
enforcement agency, certifies to the department [Department of
Public Safety], not later than the date specified by rule by the
department, that the law enforcement agency needs funds or video
and audio equipment for the purpose of installing video and audio
equipment as described by Subdivision (1)(A) [Subsection
(a)(1)(A)] and the agency does not receive from the state funds or
video and audio equipment sufficient, as determined by the
department, for the agency to accomplish that purpose.
Sec. 1701.712. RETENTION OF VIDEO AND AUDIO RECORDINGS.
(a) [(b)] Except as otherwise provided by this section
[subsection], a law enforcement agency that is exempt from the
requirements under Section 1701.709 [Article 2.134] shall retain
the video and audio or audio documentation of each motor vehicle
stop for at least 90 days after the date of the stop.
(b) If a complaint is filed with the law enforcement agency
alleging that a peace officer employed by the agency has engaged in
racial profiling with respect to a motor vehicle stop, the agency
shall retain the video and audio or audio record of the stop until
final disposition of the complaint.
(c) This section [article] does not affect the collection or
reporting requirements under Section 1701.702 [Article 2.132.
[(d) In this article, "motor vehicle stop" has the meaning
assigned by Article 2.132(a)].
Sec. 1701.713 [Art. 2.136]. LIABILITY. A peace officer is
not liable for damages arising from an act relating to the
collection or reporting of information as required by Section
1701.708 [Article 2.133] or under a policy adopted under Section
1701.702 [Article 2.132].
Sec. 1701.714 [Art. 2.137]. PROVISION OF FUNDING OR
EQUIPMENT. (a) The department [Department of Public Safety] shall
adopt rules for providing funds or video and audio equipment to law
enforcement agencies for the purpose of installing video and audio
equipment as described by Section 1701.711(1)(A) [Article
2.135(a)(1)(A)], including specifying criteria to prioritize
funding or equipment provided to law enforcement agencies. The
criteria may include consideration of tax effort, financial
hardship, available revenue, and budget surpluses. The criteria
must give priority to:
(1) law enforcement agencies that employ peace
officers whose primary duty is traffic enforcement;
(2) smaller jurisdictions; and
(3) municipal and county law enforcement agencies.
(b) The department [Department of Public Safety] shall
collaborate with an institution of higher education to identify law
enforcement agencies that need funds or video and audio equipment
for the purpose of installing video and audio equipment as
described by Section 1701.711(1)(A) [Article 2.135(a)(1)(A)]. The
collaboration may include the use of a survey to assist in
developing criteria to prioritize funding or equipment provided to
law enforcement agencies.
(c) To receive funds or video and audio equipment from the
state for the purpose of installing video and audio equipment as
described by Section 1701.711(1)(A) [Article 2.135(a)(1)(A)], the
governing body of a county or municipality, in conjunction with the
law enforcement agency serving the county or municipality, shall
certify to the department [Department of Public Safety] that the
law enforcement agency needs funds or video and audio equipment for
that purpose.
(d) On receipt of funds or video and audio equipment from
the state for the purpose of installing video and audio equipment as
described by Section 1701.711(1)(A) [Article 2.135(a)(1)(A)], the
governing body of a county or municipality, in conjunction with the
law enforcement agency serving the county or municipality, shall
certify to the department [Department of Public Safety] that the
law enforcement agency has installed video and audio equipment as
described by Section 1701.711(1)(A) [Article 2.135(a)(1)(A)] and
is using the equipment as required by Section 1701.711(1) [Article
2.135(a)(1)].
Sec. 1701.715 [Art. 2.138]. RULES. The public safety
director of the department [Department of Public Safety] may adopt
rules to implement this subchapter [Articles 2.131-2.137].
Sec. 1701.716 [Art. 2.1385]. CIVIL PENALTY. (a) If the
chief administrator of a local law enforcement agency intentionally
fails to submit the incident-based data as required by Section
1701.709 [Article 2.134], the agency is liable to the state for a
civil penalty in the amount of $1,000 for each violation. The
attorney general may sue to collect a civil penalty under this
subsection.
(b) From money appropriated to the agency for the
administration of the agency, the executive director of a state law
enforcement agency that intentionally fails to submit the
incident-based data as required by Section 1701.709 [Article 2.134]
shall remit to the comptroller the amount of $1,000 for each
violation.
(c) Money collected under this section [article] shall be
deposited in the state treasury to the credit of the general revenue
fund.
SECTION 4. Subchapter O, Chapter 1701, Occupations Code, as
added by this Act, is amended by adding Sections 1701.703,
1701.706, 1701.718, 1701.719, 1701.720, 1701.721, and 1701.722 to
read as follows:
Sec. 1701.703. IDENTIFYING INFORMATION IN REPORT. (a) A
report required under Section 1701.702(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.
(b) This section does not affect the collection of
information as required by a policy under Section 1701.702(b)(6).
Sec. 1701.706. RECORDING INTERACTIONS WITH THE PUBLIC.
(a) A peace officer who uses a motor vehicle or motorcycle
equipped with video or audio equipment shall act in a manner that is
consistent with the policy of the law enforcement agency that
employs the officer with respect to when and under what
circumstances the equipment must be activated.
(b) A peace officer who does not activate video or audio
equipment in response to a call for assistance or on making a motor
vehicle stop must include in the officer's incident report or
otherwise note in the case file or record the reason for not
activating the equipment.
(c) Any justification for failing to activate the equipment
because it is unsafe, unrealistic, or impracticable is based on
whether a reasonable officer under the same or similar
circumstances would have made the same decision.
Sec. 1701.718. RECORDINGS DOCUMENTING CERTAIN CONDUCT OF
LAW ENFORCEMENT OFFICER. (a) Except as provided by Subsection
(b), a video or audio recording under this subchapter documenting
an incident that involves the use of deadly force by a peace officer
or that is otherwise related to an administrative or criminal
investigation of an officer may not be deleted, destroyed, or
released to the public until all criminal matters have been finally
adjudicated and all related administrative investigations have
concluded.
(b) A law enforcement agency may release to the public a
recording described by Subsection (a) if the law enforcement agency
determines that the release furthers a law enforcement purpose.
(c) This section does not affect the authority of a law
enforcement agency to withhold under Section 552.108, Government
Code, information related to a closed criminal investigation that
did not result in a conviction or a grant of deferred adjudication
community supervision.
Sec. 1701.719. RELEASE OF VIDEO OR AUDIO RECORDING. (a) A
member of the public is required to provide the following
information when submitting a written request to a law enforcement
agency for a video or audio recording under this subchapter:
(1) the date and approximate time of the recording;
(2) the specific location where the recording
occurred; and
(3) the name of one or more persons known to be a
subject of the recording.
(b) A failure to provide all of the information required by
Subsection (a) to be part of a request for a recording does not
preclude the requestor from making a future request for the same
recording.
(c) Except as provided by Subsection (d), a recording held
by a law enforcement agency under this subchapter is not subject to
the requirements of Section 552.021, Government Code.
(d) A recording that is or could be used as evidence in a
criminal prosecution is subject to the requirements of Section
552.021, Government Code.
(e) A law enforcement agency may:
(1) seek to withhold a recording subject to Subsection
(d) in accordance with procedures provided by Section 552.301,
Government Code;
(2) assert any exceptions to disclosure in Chapter
552, Government Code, or other law; or
(3) release a recording requested in accordance with
Subsection (a) after the agency redacts any information made
confidential under Chapter 552, Government Code, or other law.
(f) The attorney general shall set a proposed fee to be
charged to members of the public who seek to obtain a copy of a
recording under this section. The fee amount must be sufficient to
cover the cost of reviewing and making the recording. A law
enforcement agency may provide a copy without charge or at a reduced
charge if the agency determines that waiver or reduction of the
charge is in the public interest.
(g) A recording is confidential and excepted from the
requirements of Chapter 552, Government Code, if the recording:
(1) was not required to be made under this subchapter
or another law or under a policy adopted by the appropriate law
enforcement agency; and
(2) does not relate to a law enforcement purpose.
Sec. 1701.720. VIDEO AND AUDIO RECORDINGS; REQUEST FOR
ATTORNEY GENERAL DECISION. (a) Notwithstanding Section
552.301(b), Government Code, a governmental body's request for a
decision from the attorney general about whether a requested
recording falls within an exception to public disclosure is
considered timely if made not later than the 20th business day after
the date of receipt of the written request.
(b) Notwithstanding Section 552.301(d), Government Code, a
governmental body's response to a requestor regarding a requested
recording is considered timely if made not later than the 20th
business day after the date of receipt of the written request.
(c) Notwithstanding Section 552.301(e), Government Code, a
governmental body's submission to the attorney general of the
information required by that subsection regarding a requested
recording is considered timely if made not later than the 25th
business day after the date of receipt of the written request.
(d) Notwithstanding Section 552.301(e-1), Government Code,
a governmental body's submission to a requestor of the information
required by that subsection regarding a requested recording is
considered timely if made not later than the 25th business day after
the date of receipt of the written request.
Sec. 1701.721. PRODUCTION OF VIDEO OR AUDIO RECORDING IN
RESPONSE TO VOLUMINOUS PUBLIC INFORMATION REQUESTS.
(a) Notwithstanding Section 552.221(d), Government Code, an
officer for public information who is employed by a governmental
body and who receives a voluminous request in accordance with
Section 1701.719(a) is considered to have promptly produced the
information for purposes of Section 552.221, Government Code, if
the officer takes the actions required under that section before
the 21st business day after the date of receipt of the written
request.
(b) For purposes of this section, "voluminous request"
includes:
(1) a request for recordings from more than five
separate incidents;
(2) more than five separate requests for recordings
from the same person in a 24-hour period, regardless of the number
of incidents included in each request; or
(3) a request or multiple requests from the same
person in a 24-hour period for recordings that, taken together,
constitute more than five total hours of video or audio recordings.
Sec. 1701.722. OFFENSE. (a) A peace officer or other
employee of a law enforcement agency commits an offense if the
officer or employee releases a recording under this subchapter
without permission of the applicable law enforcement agency.
(b) An offense under this section is a Class A misdemeanor.
SECTION 5. Article 2.139, Code of Criminal Procedure, as
added by Chapter 1124 (H.B. 3791), Acts of the 84th Legislature,
Regular Session, 2015, is transferred to Subchapter O, Chapter
1701, Occupations Code, as added by this Act, redesignated as
Section 1701.717, Occupations Code, and amended to read as follows:
Sec. 1701.717 [Art. 2.139]. VIDEO RECORDINGS OF ARRESTS
FOR INTOXICATION OFFENSES. A person stopped or arrested on
suspicion of an offense under Section 49.04, 49.045, 49.07, or
49.08, Penal Code, is entitled to receive from a law enforcement
agency employing the peace officer who made the stop or arrest a
copy of any video made by or at the direction of the officer that
contains footage of:
(1) the stop;
(2) the arrest;
(3) the conduct of the person stopped during any
interaction with the officer, including during the administration
of a field sobriety test; or
(4) a procedure in which a specimen of the person's
breath or blood is taken.
SECTION 6. Section 1701.164, Occupations Code, is amended
to read as follows:
Sec. 1701.164. COLLECTION OF CERTAIN INCIDENT-BASED DATA
SUBMITTED BY LAW ENFORCEMENT AGENCIES. The commission shall
collect and maintain incident-based data submitted to the
commission under Section 1701.709 [Article 2.134, Code of Criminal
Procedure], including incident-based data compiled by a law
enforcement agency from reports received by the law enforcement
agency under Section 1701.708 [Article 2.133 of that code]. The
commission in consultation with the Department of Public Safety,
the Bill Blackwood Law Enforcement Management Institute of Texas,
the W. W. Caruth, Jr., Police Institute at Dallas, and the Texas
Police Chiefs Association shall develop guidelines for submitting
in a standard format the report containing incident-based data as
required by Section 1701.709 [Article 2.134, Code of Criminal
Procedure].
SECTION 7. Section 1701.501(a), Occupations Code, is
amended to read as follows:
(a) Except as provided by Subsection (d), the commission
shall revoke or suspend a license, place on probation a person whose
license has been suspended, or reprimand a license holder for a
violation of:
(1) this chapter;
(2) the reporting requirements provided by Sections
1701.702 [Articles 2.132] and 1701.709 [2.134, Code of Criminal
Procedure]; or
(3) a commission rule.
SECTION 8. (a) A law enforcement agency operating video or
audio equipment on the effective date of this Act may submit any
existing policy of the agency regarding the use of the equipment to
the Texas Commission on Law Enforcement to determine whether the
policy complies with Section 1701.705, Occupations Code, as added
by this Act.
(b) Notwithstanding Section 1701.705, Occupations Code, as
added by this Act, a law enforcement agency operating video or audio
equipment on the effective date of this Act is not required to adopt
or implement a policy that complies with Section 1701.705 before
September 1, 2018.
(c) Sections 1701.717, 1701.718, 1701.719, 1701.720,
1701.721, and 1701.722, Occupations Code, as added by this Act,
apply to a release of a recording on or after the effective date of
this Act, regardless of whether the incident that is the subject of
the recording occurred before, on, or after the effective date of
this Act.
SECTION 9. To the extent of any conflict, this Act prevails
over another Act of the 85th Legislature, Regular Session, 2017,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 10. This Act takes effect September 1, 2017.