Masked Officer Bill Strips Immunity, Sets $10,000 Minimum Damages

The text as introduced · 1,230 words

90R320 JDK-D

By: Morales of Maverick
H.B. No. 410

A BILL TO BE ENTITLED

AN ACT

relating to the use of facial coverings in law enforcement;

creating a criminal offense.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The legislature finds that:

(1) the visibility of a law enforcement officer's face

is vital for promoting transparency, facilitating communication,

and building trust between law enforcement agencies and the

communities they serve;

(2) when law enforcement officers are not readily

identifiable, the risk of impersonation by an unauthorized

individual is increased, which undermines public trust, endangers

public safety, and hinders legitimate law enforcement operations;

and

(3) the use of facial coverings by law enforcement

officers should not obscure an officer's identity, hinder

accountability, or enable or conceal discriminatory or unlawful

conduct.

SECTION 2. Chapter 2B, Code of Criminal Procedure, is

amended by adding Subchapter H to read as follows:

SUBCHAPTER H. FACIAL COVERINGS

Art. 2B.0351. DEFINITION. In this subchapter, "facial

covering" has the meaning assigned by Section 39.08, Penal Code.

Art. 2B.0352. LAW ENFORCEMENT AGENCY POLICY ON FACIAL

COVERING. (a) Each law enforcement agency shall adopt and post on

the agency's Internet website a policy limiting the use of a facial

covering in the performance of a peace officer's duties. The policy

must:

(1) include a purpose statement affirming the agency's

commitment to:

(A) transparency, accountability, and public

trust;

(B) restricting the use of facial coverings to

specific, clearly defined, and limited circumstances; and

(C) the principle that generalized and

undifferentiated fear or apprehension regarding peace officer

safety is insufficient to justify the use of a facial covering;

(2) prohibit a peace officer from using a facial

covering in the performance of the officer's duties unless the

officer is wearing the covering for a purpose described by Section

39.08(d), Penal Code; and

(3) prohibit a peace officer's supervisor from

knowingly permitting the officer to violate the policy or any other

law or regulation limiting the use of a facial covering.

(b) A policy adopted by a law enforcement agency under this

article is presumed to comply with the requirements of this article

unless a member of the public or a political subdivision in which

the law enforcement agency operates submits a written challenge to

the policy's compliance to the head of the agency and the challenge

is determined to be accurate by the head of the agency.

(c) A law enforcement agency shall amend a policy adopted

under this article to comply with the requirements of this article

not later than the 90th day after the date the agency receives a

written challenge under Subsection (b) that is determined to be

accurate.

(d) If a complainant determines that a law enforcement

agency has failed to adequately address the complainant's written

challenge within the time period required by Subsection (c), the

complainant may seek a writ of mandamus from a court of competent

jurisdiction. A policy that has been challenged under this article

remains in effect until a court enters a writ of mandamus ordering

the agency to amend the policy to comply with the requirements of

this article.

SECTION 3. Chapter 39, Penal Code, is amended by adding

Section 39.08 to read as follows:

Sec. 39.08. UNLAWFUL USE OF FACIAL COVERING BY LAW

ENFORCEMENT OFFICER. (a) In this section, "facial covering" means

a mask, helmet, or other similar accessory that, when worn on or

about the wearer's face or head, substantially increases the

difficulty of identifying the wearer, including a balaclava,

tactical mask, gaiter, or ski mask. The term does not include:

(1) a translucent face shield or clear mask that does

not conceal the wearer's identity;

(2) a respirator or surgical mask used to protect

against the transmission of disease or infection;

(3) a gas mask or other breathing apparatus necessary

to protect the wearer from a toxin, a gas, smoke, or other hazardous

environmental condition;

(4) a mask, helmet, or device necessary for underwater

respiration, including scuba diving equipment; or

(5) eyewear necessary to protect from the use of

retinal weapons, including a laser.

(b) A peace officer, a law enforcement officer of another

state or the federal government, or a person acting on behalf of a

law enforcement officer of another state or the federal government

commits an offense if the officer or person knowingly wears a facial

covering in the performance of the officer's or person's duties.

(c) An offense under this section is a Class C misdemeanor.

(d) It is an exception to the application of this section

that the officer or person, as applicable, wore the facial covering

for purposes of:

(1) participating in an active undercover operation or

assignment authorized by the law enforcement agency that employs

the officer;

(2) participating in a tactical operation during which

protective gear is required for physical safety;

(3) the performance of a duty of the special weapons

and tactics team unit, if the officer is assigned to the unit;

(4) compliance with an applicable occupational health

and safety law or regulation;

(5) the safe operation of a motorcycle or other

vehicle operated by the officer or person in the performance of the

officer's or person's duties;

(6) protecting the officer's identity during a court

proceeding; or

(7) compliance with a reasonable accommodation that

enables the officer to perform an essential element of the

officer's job.

(e) It is a defense to prosecution under this section that

the officer wore the facial covering in a manner that complied with

a policy of the employing law enforcement agency adopted under

Article 2B.0352, Code of Criminal Procedure.

SECTION 4. Title 5, Civil Practice and Remedies Code, is

amended by adding Chapter 108A to read as follows:

CHAPTER 108A. PEACE OFFICER LIABILITY ARISING FROM USE OF FACIAL

COVERING

Sec. 108A.001. DEFINITION. In this chapter, "peace

officer" has the meaning assigned by Section 1.07, Penal Code, and

includes a law enforcement officer of another state or the federal

government, or a person acting on behalf of a law enforcement

officer of another state or the federal government.

Sec. 108A.002. APPLICABILITY OF CHAPTER. This chapter

applies only to an action:

(1) brought against a peace officer arising from the

officer's conduct while the officer was wearing a facial covering

in violation of Section 39.08, Penal Code; and

(2) that alleges one of the following causes of

action:

(A) assault;

(B) battery;

(C) false imprisonment;

(D) false arrest;

(E) abuse of process; or

(F) malicious prosecution.

Sec. 108A.003. PROHIBITED DEFENSE. A peace officer may not

assert official immunity as a defense to an action subject to this

chapter.

Sec. 108A.004. MINIMUM DAMAGES. Notwithstanding any other

law, in an action subject to this chapter, a prevailing claimant is

entitled to recover the greater of:

(1) actual damages; or

(2) statutory damages in the amount of $10,000.

SECTION 5. Not later than December 1, 2027, each law

enforcement agency in this state shall adopt the policy required by

Article 2B.0352, Code of Criminal Procedure, as added by this Act.

SECTION 6. Chapter 108A, Civil Practice and Remedies Code,

as added by this Act, applies only to a cause of action that accrues

on or after January 1, 2028.

SECTION 7. (a) Except as provided by Subsection (b) of this

section, this Act takes effect September 1, 2027.

(b) Section 39.08, Penal Code, as added by this Act, takes

effect January 1, 2028.