Bill Text: TX SB380 | 2021-2022 | 87th Legislature | Introduced


Bill Title: 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.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-01-21 - Filed [SB380 Detail]

Download: Texas-2021-SB380-Introduced.html
  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.
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