87R3412 JCG-D
By: West S.B. No. 380
A BILL TO BE ENTITLED
AN ACT
relating to the investigation and prosecution of criminal offenses
and to certain recordings created by peace officers during an
investigation or other law enforcement activity; creating a
criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. (a) This Act shall be known as the "Botham Jean
Act."
(b) Sections 6 and 7 of this Act shall be known as "Bo's
Law."
SECTION 2. Sections 1701.655(b) and (c), Occupations Code,
are amended to read as follows:
(b) A policy described by Subsection (a) must ensure that a
body worn camera is activated only for a law enforcement purpose and
must include:
(1) guidelines for when a peace officer should
activate a camera or discontinue a recording currently in progress,
considering the need for privacy in certain situations and at
certain locations;
(2) provisions relating to data retention, including a
provision requiring the retention of video for a minimum period of
90 days;
(3) provisions relating to storage of video and audio,
creation of backup copies of the video and audio, and maintenance of
data security;
(4) provisions relating to the collection of a body
worn camera, including the applicable video and audio recorded by
the camera, as evidence;
(5) guidelines for public access, through open records
requests, to recordings that are public information;
(6) [(5)] provisions entitling an officer to access
any recording of an incident involving the officer before the
officer is required to make a statement about the incident;
(7) [(6)] procedures for supervisory or internal
review; and
(8) [(7)] the handling and documenting of equipment
and malfunctions of equipment.
(c) A policy described by Subsection (a) must [may not]
require a peace officer who participates in an investigation, as
defined by Section 38.20, Penal Code, to keep a body worn camera
activated for the entirety of the investigation unless the camera
has been collected as evidence by another peace officer in
accordance with:
(1) the policy described by Subsection (a) and any
other policy adopted by the law enforcement agency regarding the
collection of evidence; and
(2) applicable law [entire period of the officer's
shift].
SECTION 3. Section 1701.657(b), Occupations Code, is
amended to read as follows:
(b) Subject to Section 1701.655(c), a [A] peace officer
equipped with a body worn camera may choose not to activate a camera
or may choose to discontinue a recording currently in progress for
any nonconfrontational encounter with a person[, including an
interview of a witness or victim].
SECTION 4. Section 1701.661(h), Occupations Code, is
amended to read as follows:
(h) A recording is confidential and excepted from the
requirements of Chapter 552, Government Code, if:
(1) the recording:
(A) [(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
(B) [(2)] does not relate to a law enforcement
purpose;
(2) the recording documents a crime victim expressing
a clear and unambiguous desire to not:
(A) be recorded; or
(B) allow the recording to be available to the
public;
(3) the recording documents a person providing
assistance to a law enforcement investigation and expressing a
clear and unambiguous desire to:
(A) not be recorded; or
(B) provide the assistance in an anonymous
manner;
(4) the recording documents a child younger than 17
years of age; or
(5) the recording was made:
(A) on the grounds of any public or private
primary or secondary school; or
(B) inside a home by a peace officer who entered
the home without at least one of the following:
(i) a warrant;
(ii) consent; or
(iii) accompanying exigent circumstances
that would by law authorize the officer to enter the home without a
warrant.
SECTION 5. Section 8.02, Penal Code, is amended by amending
Subsection (a) and adding Subsection (c) to read as follows:
(a) It is a defense to prosecution that the actor through
mistake formed a reasonable belief about a matter of fact if his
mistaken belief negated the culpable mental state [kind of
culpability] required for commission of the offense.
(c) The defense provided by this section does not apply to
an actor's belief that is required to raise any other defense or
affirmative defense.
SECTION 6. Section 9.31(a), Penal Code, is amended to read
as follows:
(a) Except as provided in Subsection (b), a person is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
protect the actor against the other's use or attempted use of
unlawful force. The actor's belief that the force was immediately
necessary as described by this subsection is presumed to be
reasonable if:
(1) the actor:
(A) was physically present in the actor's own
habitation, vehicle, or place of business or employment at the time
the force was used and the actor [(1)] knew or had reason to believe
that the person against whom the force was used:
(i) [(A)] unlawfully and with force
entered, or was attempting to enter unlawfully and with force, the
actor's occupied habitation, vehicle, or place of business or
employment; or
(ii) [(B)] unlawfully and with force
removed, or was attempting to remove unlawfully and with force, the
actor from the actor's habitation, vehicle, or place of business or
employment; or
(B) knew or had reason to believe that the person
against whom the force was used [(C)] was committing or attempting
to commit aggravated kidnapping, murder, sexual assault,
aggravated sexual assault, robbery, or aggravated robbery;
(2) the actor did not provoke the person against whom
the force was used; and
(3) the actor was not otherwise engaged in criminal
activity, other than a Class C misdemeanor that is a violation of a
law or ordinance regulating traffic at the time the force was used.
SECTION 7. Section 9.32(b), Penal Code, is amended to read
as follows:
(b) The actor's belief under Subsection (a)(2) that the
deadly force was immediately necessary as described by that
subdivision is presumed to be reasonable if:
(1) the actor:
(A) was physically present in the actor's own
habitation, vehicle, or place of business or employment at the time
the deadly force was used and the actor [(1)] knew or had reason to
believe that the person against whom the deadly force was used:
(i) [(A)] unlawfully and with force
entered, or was attempting to enter unlawfully and with force, the
actor's occupied habitation, vehicle, or place of business or
employment; or
(ii) [(B)] unlawfully and with force
removed, or was attempting to remove unlawfully and with force, the
actor from the actor's habitation, vehicle, or place of business or
employment; or
(B) knew or had reason to believe that the person
against whom the deadly force was used [(C)] was committing or
attempting to commit an offense described by Subsection (a)(2)(B);
(2) the actor did not provoke the person against whom
the deadly force was used; and
(3) the actor was not otherwise engaged in criminal
activity, other than a Class C misdemeanor that is a violation of a
law or ordinance regulating traffic at the time the deadly force was
used.
SECTION 8. Chapter 38, Penal Code, is amended by adding
Section 38.20 to read as follows:
Sec. 38.20. DEACTIVATION OF RECORDING DEVICE. (a) In this
section:
(1) "Recording device" includes any video or audio
equipment in a vehicle used by a peace officer for a law enforcement
purpose, a body worn camera as defined by Section 1701.651,
Occupations Code, and an alarm system as defined by Section
1702.002, Occupations Code.
(2) "Investigation" means an inquiry conducted by a
law enforcement agency to determine whether:
(A) a person has committed an offense, regardless
of whether a person is arrested or detained in connection with the
inquiry; or
(B) an employee of a law enforcement agency has
violated a policy, order, rule, or other regulation of the law
enforcement agency.
(3) "Law enforcement agency" means an agency of the
state or a political subdivision of the state authorized by law to
employ peace officers.
(b) A person commits an offense if the person knows that an
investigation is ongoing and intentionally or knowingly
deactivates, orders the deactivation of, or causes to be
deactivated a recording device being used in the investigation.
(c) An offense under this section is a felony of the third
degree.
(d) It is an affirmative defense to prosecution under this
section that:
(1) the recording device was a body worn camera;
(2) the actor is a peace officer, other than the peace
officer to whom the body worn camera was issued; and
(3) the actor deactivated the body worn camera in
accordance with:
(A) any policy adopted by the employing law
enforcement agency regarding the collection of evidence; and
(B) applicable law.
(e) It is an affirmative defense to prosecution under this
section that:
(1) the actor is not a peace officer; and
(2) the actor deactivated the recording device at the
request or command of a peace officer who made the request or
command in accordance with:
(A) any policy adopted by the employing law
enforcement agency regarding the collection of evidence; and
(B) applicable law.
SECTION 9. Sections 8.02, 9.31, and 9.32, Penal Code, as
amended by this Act, 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 when 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 Act if any element of
the offense occurred before that date.
SECTION 10. Section 1701.661(h), Occupations Code, as
amended by this Act:
(1) applies to a recording described by that section,
regardless of the date the recording is created; and
(2) applies only to a request for information that is
received by a governmental body or an officer for public
information on or after the effective date of this Act.
SECTION 11. This Act takes effect September 1, 2021.