By: West S.B. No. 1487

(In the Senate - Filed March 8, 2017; March 20, 2017, read first time and referred to Committee on Criminal Justice; April 18, 2017, reported adversely, with favorable Committee Substitute by the following vote: Yeas 7, Nays 0; April 18, 2017, sent to printer.) Click here to see the committee vote

COMMITTEE SUBSTITUTE FOR S.B. No. 1487 By: Whitmire

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.

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