87R3412 JCG-D

By: Sherman, Sr. H.B. No. 929

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.