By: Coleman H.B. No. 4159 A BILL TO BE ENTITLED AN ACT relating to interactions between law enforcement and individuals stopped on suspicion of the commission of criminal offenses. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Article 2.13, Code of Criminal Procedure, is amended by adding Subsection (d) to read as follows: (d) The officer may not: (1) conduct a search based solely on a person's consent to the search; or (2) make a stop for an alleged violation of a traffic law or ordinance as a pretext for investigating a violation of another penal law. SECTION 2. Article 2.132, Code of Criminal Procedure, is amended by amending Subsections (b), (c), and (e) and adding Subsections (h) and (i) to read as follows: (b) Each law enforcement agency in this state shall adopt a detailed written policy on racial profiling. 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, including providing the information regarding the complaint process on each ticket, citation, or warning issued by a peace officer; (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 all 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] (D) whether the peace officer used physical force against anyone during the stop; 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 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 article shall not constitute prima facie evidence of racial profiling but is admissible in a court of law as evidence of racial profiling. (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). (h) A law enforcement agency shall review the data collected under Subsection (b)(6) to determine whether the number of vehicles driven by a member of a particular race or ethnicity stopped by any peace officer employed by the agency is disproportionate to the population of that race or ethnicity in the county or municipality served by the agency. (i) If a law enforcement agency determines that the number of vehicles driven by a member of a particular race or ethnicity stopped by a peace officer is disproportionate, as described by Subsection (h), the agency shall conduct an investigation of the officer to determine whether the officer routinely stops vehicles the drivers of which are members of a particular racial or ethnic group for alleged violations of traffic laws or ordinances as a pretext for investigating violations of other penal laws. SECTION 3. Chapter 2, Code of Criminal Procedure, is amended by adding Articles 2.1321 and 2.1322 to read as follows: Art. 2.1321. RACIAL PROFILING INVESTIGATIONS. (a) The chief administrator of a law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, shall annually review the data collected by the agency on racial profiling to determine if: (1) racial profiling is potentially occurring on an agency-wide level; or (2) an individual peace officer may be engaging in racial profiling. (b) On a finding by the chief administrator of potential racial profiling on an agency-wide basis or by an individual peace officer, the agency shall initiate an investigation into the potential racial profiling. (c) The chief administrator of each law enforcement agency shall annually certify to the Texas Commission on Law Enforcement that the chief administrator conducted the review required by Subsection (a). (d) On a finding by the Texas Commission on Law Enforcement that the chief administrator of a law enforcement agency intentionally failed to conduct a review required by Subsection (a), the commission shall begin disciplinary procedures against the chief administrator. Art. 2.1322. REQUIRED RACIAL PROFILING COUNSELING AND TRAINING FOR CERTAIN PEACE OFFICERS. (a) If an investigation initiated under Article 2.132 or 2.1321 results in a finding of racial profiling, the law enforcement agency shall provide appropriate counseling and training to any peace officer found to have engaged in racial profiling. (b) The counseling and training under Subsection (a) must: (1) emphasize understanding and respect for racial and cultural differences; (2) address racial and cultural biases; and (3) include effective, noncombative methods of carrying out law enforcement duties in a racially and culturally diverse environment. (c) If, after a peace officer completes the counseling and training under Subsection (a), the officer is again found to have engaged in racial profiling, the law enforcement agency shall: (1) suspend the officer for not less than six months; and (2) require the officer to repeat the counseling and training under Subsection (a). SECTION 4. Article 2.133, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsection (c) to read as follows: (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 verbal or written warning or a citation as a result of the stop; and (9) whether the officer used physical force in conjunction with the arrest. (c) The chief administrator of a law enforcement agency, regardless of whether the administrator is elected, employed, or appointed, shall make periodic random and unannounced reviews of motor vehicle stops by peace officers employed by the agency to ensure that the race or ethnicity of the person operating the motor vehicle is being properly identified in the report under Subsection (b). SECTION 5. Articles 2.134(c), (d), and (f), Code of Criminal Procedure, are amended to read as follows: (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 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 (C) evaluate and compare the number of searches resulting from motor vehicle stops within the applicable jurisdiction and whether contraband or other evidence was discovered in the course of those searches; (2) information relating to each complaint filed with the agency alleging that a peace officer employed by the agency has engaged in racial profiling; and (3) information relating the number of investigations initiated under Article 2.1321, and the outcomes of the investigations. (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 Article 2.133(b)(1). (f) The data collected as a result of the reporting requirements of this article shall not constitute prima facie evidence of racial profiling but is admissible in a court of law as evidence of racial profiling. SECTION 6. Article 2.1385(a), Code of Criminal Procedure, is amended to read as follows: (a) If the chief administrator of a local law enforcement agency intentionally fails to submit the incident-based data as required by Article 2.134, the agency is liable to the state for a civil penalty in the amount of $10,000 [$1,000] for each violation. The attorney general may sue to collect a civil penalty under this subsection. SECTION 7. Effective September 1, 2018, Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.1386 to read as follows: Art. 2.1386. MOTOR VEHICLE STOP INVESTIGATIONS. (a) In this article, "law enforcement agency" and "motor vehicle stop" have the meanings assigned by Article 2.132(a). (b) Each law enforcement agency shall adopt and implement a detailed written policy regarding the administration of a motor vehicle stop investigation in accordance with this article, including the administrative penalties for violations of the policy. A law enforcement agency may adopt the model policy promulgated by the Bill Blackwood Law Enforcement Management Institute of Texas or the agency's own policy. (c) A peace officer may not: (1) conduct a roadside investigation during a motor vehicle stop for an offense other than the traffic violation without suspicion based on a preponderance of the evidence that the driver has committed the other offense; (2) continue a roadside investigation during a motor vehicle stop into an offense other than the traffic violation after the driver has refused to consent to be searched unless the peace officer has additional suspicion based on a preponderance of the evidence that the driver has committed the other offense; or (3) arrest a driver during a motor vehicle stop for a traffic violation to conduct a search incident to arrest unless the officer has probable cause to believe that the driver has committed an offense more serious than a Class C misdemeanor. (d) A peace officer who violates Subsection (c) shall be subject to an administrative penalty of not less than a one-day suspension. SECTION 8. Article 3.05, Code of Criminal Procedure, is amended to read as follows: Art. 3.05. RACIAL PROFILING. (a) In this code, "racial profiling" means a law enforcement-initiated action based on an individual's race, ethnicity, or national origin rather than on the individual's behavior or on information identifying the individual as having engaged in criminal activity. (b) Racial profiling may be identified through the examination of sufficient and evidence-based data analysis. SECTION 9. Article 14.06, Code of Criminal Procedure, is amended by amending Subsection (b) and adding Subsection (b-1) to read as follows: (b) A peace officer who is charging a person, including a child, with committing an offense that is a [Class C] misdemeanor punishable by a fine only, other than an offense under Section 49.02, Penal Code, or an offense under Chapter 106, Alcoholic Beverage Code, shall [may], instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, the offense charged, and the following admonishment, in boldfaced or underlined type or in capital letters: "If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney." (b-1) A peace officer who is charging a person, including a child, with committing an offense that is a misdemeanor punishable by a fine only under Chapter 106, Alcoholic Beverage Code, may, instead of taking the person before a magistrate, issue to the person a citation that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. SECTION 10. Section 543.004(a), Transportation Code, is amended to read as follows: (a) An officer shall issue a written notice to appear if: (1) the offense charged is [speeding or] a misdemeanor under this subtitle that is punishable by a fine only [violation of the open container law, Section 49.03, Penal Code]; and (2) the person makes a written promise to appear in court as provided by Section 543.005. SECTION 11. Effective January 1, 2018, Subchapter A, Chapter 543, Transportation Code, is amended by adding Section 543.0045 to read as follows: Sec. 543.0045. NOTIFICATION REQUIRED DURING TRAFFIC STOP. (a) An officer who stops a motor vehicle as a result of a person's alleged commission of a misdemeanor under this subtitle that is punishable by a fine only shall promptly notify the person that: (1) the alleged offense is a misdemeanor under this subtitle that is punishable by a fine only; and (2) the officer may not arrest a person solely on the basis of that offense. (b) The Texas Commission on Law Enforcement by rule shall specify the language that is required to be included in the notification described by Subsection (a). SECTION 12. The following provisions of the Code of Criminal Procedure are repealed: (1) Article 2.135. SECTION 13. Article 2.13(d), Code of Criminal Procedure, as added by this article, applies only to a motor vehicle stop or search that occurs on or after the effective date of this Act. SECTION 14. Articles 2.132 and 2.134, Code of Criminal Procedure, as amended by this article, apply only to a report covering a calendar year beginning on or after January 1, 2018. SECTION 15. Articles 2.132(h) and (i), 2.1321, and 2.1322, Code of Criminal Procedure, as added by this article, apply to an investigation that occurs on or after the effective date of this Act, regardless of whether the potential racial profiling occurred before, on, or after that date. SECTION 16. Not later than September 1, 2018, the Texas Commission on Law Enforcement shall evaluate and change the guidelines for compiling and reporting information required under Article 2.134, Code of Criminal Procedure, as amended by this article, to withstand academic scrutiny. SECTION 17. (a) Not later than December 31, 2017, the Bill Blackwood Law Enforcement Management Institute of Texas, in consultation with large, medium, and small law enforcement agencies, law enforcement associations, and community organizations engaged in the development of law enforcement policy on behalf of the public, shall develop, adopt, and disseminate to all law enforcement agencies in this state a model policy and associated training materials for conducting a motor vehicle stop, in accordance with Article 2.1386, Code of Criminal Procedure, as added by this article. (b) Not later than September 1, 2018, each law enforcement agency of this state shall adopt the policy required by Article 2.1386, Code of Criminal Procedure, as added by this article, if applicable. SECTION 18. Not later than December 1, 2017, the Texas Commission on Law Enforcement shall adopt the rules required by Section 543.0045(b), Transportation Code, as added by this article. SECTION 19. The changes in law made by this article 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 on the date 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 article if any element of the offense occurred before that date. SECTION 20. Except as otherwise provided by this Act, this Act takes effect September 1, 2017.