Change in Texas Criminal Code Calls for Careful Review of Traffic Stop Video Release
A significant change to the law governing public information in Texas came into effect on September 1, 2015, and governmental bodies ought to know about it. Generally, public information is governed by Chapter 552 of the Texas Government Code, commonly referred to as the “Public Information Act”; however, the change at issue is not found in the Public Information Act, but is instead found in the Code of Criminal Procedure. Specifically, Article 2.139 of the Code of Criminal Procedure—or more specifically, the second Article 2.139.
As happens on occasion, the 84th regular session of the Texas Legislature enacted two completely different statutes, giving each the same number within the same code. The statute presently of interest is the Article 2.139 of the Code of Criminal Procedure which reads:
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.
Since Article 2.139 became effective, the Texas Attorney General has rendered several open record letter rulings which have determined that the article creates a special right of access which prevails over general exceptions to disclosure, such as the exception codified as Section 552.108 of the Texas Government Code, commonly known as the “Law Enforcement Exception,” which excepts from disclosure information that would interfere with the detection, investigation, or prosecution of crime if released.
Presently, it is unknown whether any exception to disclosure would prevail over the special right of access granted by Article 2.139. However, governmental bodies should be cautioned to not routinely release information described by the article to a person described by the article, because the article applies only to a video created on or after September 1, 2015. Therefore, if a video created before September 1, 2015 is released under the auspices of Article 2.139, and that video contains confidential information, then the governmental body—or, more accurately, the officer or employee of the governmental body responsible for the release—may be in violation of the Public Information Act or other law for having released the confidential information.
Additionally, the Texas Attorney General has implied in the various open records letter rulings interpreting Article 2.139 that there may be an exception to disclosure which would prevail over the article. Therefore, even if Article 2.139 applies to a particular video and person, it would be prudent for a governmental body to seek to withhold the video under the procedures set forth in the Public Information Act if it has reason to believe that a particular exception would prevail. Again, if the video is released despite such an exception to disclosure, then the officer or employee of the governmental body responsible for the release may have violated the law.
Perhaps the best practice is for an attorney representing the governmental body to review the video and determine, as a threshold matter, whether Article 2.139 applies and, if it does, whether the governmental body should seek to withhold the video.