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