Texas 2013 - 83rd Regular

Texas Senate Bill SB33 Compare Versions

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1	1	By: Zaffirini S.B. No. 33
2	2	(Naishtat)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the electronic monitoring of residents at state
8	8	supported living centers; providing criminal penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subsection (c), Section 555.025, Health and
11	11	Safety Code, is amended to read as follows:
12	12	(c) Except as provided by Subchapter E, the [The] department
13	13	may not install or operate video surveillance equipment in a
14	14	private space or in a location in which video surveillance
15	15	equipment can capture images within a private space.
16	16	SECTION 2. Chapter 555, Health and Safety Code, is amended
17	17	by adding Subchapter E to read as follows:
18	18	SUBCHAPTER E. ELECTRONIC MONITORING OF RESIDENT'S ROOM
19	19	Sec. 555.151. DEFINITIONS. In this subchapter:
20	20	(1) "Authorized electronic monitoring" means the
21	21	placement of an electronic monitoring device in a resident's room
22	22	and making tapes or recordings with the device after making a
23	23	request to the center to allow electronic monitoring.
24	24	(2) "Electronic monitoring device":
25	25	(A) includes:
26	26	(i) video surveillance cameras installed in
27	27	a resident's room; and
28	28	(ii) audio devices installed in a
29	29	resident's room designed to acquire communications or other sounds
30	30	occurring in the room; and
31	31	(B) does not include an electronic, mechanical,
32	32	or other device that is specifically used for the nonconsensual
33	33	interception of wire or electronic communications.
34	34	Sec. 555.152. CRIMINAL AND CIVIL LIABILITY. (a) It is a
35	35	defense to prosecution under Section 16.02, Penal Code, or any
36	36	other statute of this state under which it is an offense to
37	37	intercept a communication or disclose or use an intercepted
38	38	communication, that the communication was intercepted by an
39	39	electronic monitoring device placed in a resident's room.
40	40	(b) This subchapter does not affect whether a person may be
41	41	held to be civilly liable under other law in connection with placing
42	42	an electronic monitoring device in a resident's room or in
43	43	connection with using or disclosing a tape or recording made by the
44	44	device except:
45	45	(1) as specifically provided by this subchapter; or
46	46	(2) to the extent that liability is affected by:
47	47	(A) a consent or waiver signed under this
48	48	subchapter; or
49	49	(B) the fact that authorized electronic
50	50	monitoring is required to be conducted with notice to persons who
51	51	enter a resident's room.
52	52	(c) A communication or other sound acquired by an audio
53	53	electronic monitoring device installed under the provisions of this
54	54	subchapter concerning authorized electronic monitoring is not
55	55	considered to be:
56	56	(1) an oral communication as defined by Section 1,
57	57	Article 18.20, Code of Criminal Procedure; or
58	58	(2) a communication as defined by Section 123.001,
59	59	Civil Practice and Remedies Code.
60	60	Sec. 555.153. COVERT USE OF ELECTRONIC MONITORING DEVICE;
61	61	LIABILITY OF DEPARTMENT OR CENTER. (a) For purposes of this
62	62	subchapter, the placement and use of an electronic monitoring
63	63	device in a resident's room are considered to be covert if:
64	64	(1) the placement and use of the device are not open
65	65	and obvious; and
66	66	(2) the center and the department are not informed
67	67	about the device by the resident, by a person who placed the device
68	68	in the room, or by a person who is using the device.
69	69	(b) The department and the center may not be held to be
70	70	civilly liable in connection with the covert placement or use of an
71	71	electronic monitoring device in a resident's room.
72	72	Sec. 555.154. REQUIRED FORM ON ADMISSION. The executive
73	73	commissioner by rule shall prescribe a form that must be completed
74	74	and signed on a resident's admission to a center by or on behalf of
75	75	the resident. The form must state:
76	76	(1) that a person who places an electronic monitoring
77	77	device in a resident's room or who uses or discloses a tape or other
78	78	recording made by the device may be civilly liable for any unlawful
79	79	violation of the privacy rights of another;
80	80	(2) that a person who covertly places an electronic
81	81	monitoring device in a resident's room or who consents to or
82	82	acquiesces in the covert placement of the device in a resident's
83	83	room has waived any privacy right the person may have had in
84	84	connection with images or sounds that may be acquired by the device;
85	85	(3) that a resident or the resident's guardian or legal
86	86	representative is entitled to conduct authorized electronic
87	87	monitoring under this subchapter, and that if the center refuses to
88	88	permit the electronic monitoring or fails to make reasonable
89	89	physical accommodations for the authorized electronic monitoring
90	90	the person should contact the department;
91	91	(4) the basic procedures that must be followed to
92	92	request authorized electronic monitoring;
93	93	(5) the manner in which this subchapter affects the
94	94	legal requirement to report abuse, neglect, or exploitation when
95	95	electronic monitoring is being conducted; and
96	96	(6) any other information regarding covert or
97	97	authorized electronic monitoring that the executive commissioner
98	98	considers advisable to include on the form.
99	99	Sec. 555.155. AUTHORIZED ELECTRONIC MONITORING: WHO MAY
100	100	REQUEST. (a) If a resident has capacity to request electronic
101	101	monitoring and has not been judicially declared to lack the
102	102	required capacity, only the resident may request authorized
103	103	electronic monitoring under this subchapter.
104	104	(b) If a resident has been judicially declared to lack the
105	105	capacity required for taking an action such as requesting
106	106	electronic monitoring, only the guardian of the resident may
107	107	request electronic monitoring under this subchapter.
108	108	(c) If a resident does not have capacity to request
109	109	electronic monitoring but has not been judicially declared to lack
110	110	the required capacity, only the legal representative of the
111	111	resident may request electronic monitoring under this subchapter.
112	112	The executive commissioner by rule shall prescribe:
113	113	(1) guidelines that will assist centers, family
114	114	members of residents, advocates for residents, and other interested
115	115	persons to determine when a resident lacks the required capacity;
116	116	and
117	117	(2) who may be considered to be a resident's legal
118	118	representative for purposes of this subchapter, including:
119	119	(A) persons who may be considered the legal
120	120	representative under the terms of an instrument executed by the
121	121	resident when the resident had capacity; and
122	122	(B) persons who may become the legal
123	123	representative for the limited purpose of this subchapter under a
124	124	procedure prescribed by the executive commissioner.
125	125	Sec. 555.156. AUTHORIZED ELECTRONIC MONITORING: FORM OF
126	126	REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM. (a) A resident or the
127	127	guardian or legal representative of a resident who wishes to
128	128	conduct authorized electronic monitoring must make the request to
129	129	the center on a form prescribed by the executive commissioner.
130	130	(b) The form prescribed by the executive commissioner must
131	131	require the resident or the resident's guardian or legal
132	132	representative to:
133	133	(1) release the center from any civil liability for a
134	134	violation of the resident's privacy rights in connection with the
135	135	use of the electronic monitoring device;
136	136	(2) choose, when the electronic monitoring device is a
137	137	video surveillance camera, whether the camera will always be
138	138	unobstructed or whether the camera should be obstructed in
139	139	specified circumstances to protect the dignity of the resident; and
140	140	(3) obtain the consent of other residents in the room,
141	141	using a form prescribed for this purpose by the executive
142	142	commissioner, if the resident resides in a multiperson room.
143	143	(c) Consent under Subsection (b)(3) may be given only:
144	144	(1) by the other resident or residents in the room;
145	145	(2) by the guardian of a person described by
146	146	Subdivision (1), if the person has been judicially declared to lack
147	147	the required capacity; or
148	148	(3) by the legal representative who under Section
149	149	555.155(c) may request electronic monitoring on behalf of a person
150	150	described by Subdivision (1), if the person does not have capacity
151	151	to sign the form but has not been judicially declared to lack the
152	152	required capacity.
153	153	(d) The form prescribed by the executive commissioner under
154	154	Subsection (b)(3) must condition the consent of another resident in
155	155	the room on the other resident also releasing the center from any
156	156	civil liability for a violation of the person's privacy rights in
157	157	connection with the use of the electronic monitoring device.
158	158	(e) Another resident in the room may:
159	159	(1) when the proposed electronic monitoring device is
160	160	a video surveillance camera, condition consent on the camera being
161	161	pointed away from the consenting resident; and
162	162	(2) condition consent on the use of an audio
163	163	electronic monitoring device being limited or prohibited.
164	164	(f) If authorized electronic monitoring is being conducted
165	165	in a resident's room and another resident is moved into the room who
166	166	has not yet consented to the electronic monitoring, authorized
167	167	electronic monitoring must cease until the new resident has
168	168	consented in accordance with this section.
169	169	(g) The executive commissioner may include other
170	170	information that the executive commissioner considers to be
171	171	appropriate on either of the forms that the executive commissioner
172	172	is required to prescribe under this section.
173	173	(h) The executive commissioner by rule may prescribe the
174	174	place or places that a form signed under this section must be
175	175	maintained and the period for which it must be maintained.
176	176	(i) Authorized electronic monitoring:
177	177	(1) may not commence until all request and consent
178	178	forms required by this section have been completed and returned to
179	179	the center; and
180	180	(2) must be conducted in accordance with any
181	181	limitation placed on the monitoring as a condition of the consent
182	182	given by or on behalf of another resident in the room.
183	183	Sec. 555.157. AUTHORIZED ELECTRONIC MONITORING: GENERAL
184	184	PROVISIONS. (a) A center shall permit a resident or the
185	185	resident's guardian or legal representative to monitor the
186	186	resident's room through the use of electronic monitoring devices.
187	187	(b) The center shall require a resident who conducts
188	188	authorized electronic monitoring or the resident's guardian or
189	189	legal representative to post and maintain a conspicuous notice at
190	190	the entrance to the resident's room. The notice must state that the
191	191	room is being monitored by an electronic monitoring device.
192	192	(c) Authorized electronic monitoring conducted under this
193	193	subchapter is not compulsory and may be conducted only at the
194	194	request of the resident or the resident's guardian or legal
195	195	representative.
196	196	(d) A center may not refuse to admit an individual to
197	197	residency in the center and may not remove a resident from the
198	198	center because of a request to conduct authorized electronic
199	199	monitoring. A center may not remove a resident from the center
200	200	because covert electronic monitoring is being conducted by or on
201	201	behalf of a resident.
202	202	(e) A center shall make reasonable physical accommodation
203	203	for authorized electronic monitoring, including:
204	204	(1) providing a reasonably secure place to mount the
205	205	video surveillance camera or other electronic monitoring device;
206	206	and
207	207	(2) providing access to power sources for the video
208	208	surveillance camera or other electronic monitoring device.
209	209	(f) The resident or the resident's guardian or legal
210	210	representative must pay for all costs associated with conducting
211	211	electronic monitoring, other than the costs of electricity. The
212	212	resident or the resident's guardian or legal representative is
213	213	responsible for:
214	214	(1) all costs associated with installation of
215	215	equipment; and
216	216	(2) maintaining the equipment.
217	217	(g) A center may require an electronic monitoring device to
218	218	be installed in a manner that is safe for residents, employees, or
219	219	visitors who may be moving about the room. The executive
220	220	commissioner by rule may adopt guidelines regarding the safe
221	221	placement of an electronic monitoring device.
222	222	(h) If authorized electronic monitoring is conducted, the
223	223	center may require the resident or the resident's guardian or legal
224	224	representative to conduct the electronic monitoring in plain view.
225	225	(i) A center may but is not required to place a resident in a
226	226	different room to accommodate a request to conduct authorized
227	227	electronic monitoring.
228	228	Sec. 555.158. REPORTING ABUSE, NEGLECT, OR EXPLOITATION.
229	229	(a) A person who is conducting authorized electronic monitoring
230	230	under this subchapter and who has cause to believe, based on the
231	231	viewing of or listening to a tape or recording, that a resident is
232	232	in a state of abuse, neglect, or exploitation or has been abused,
233	233	neglected, or exploited shall:
234	234	(1) report that information to the Department of
235	235	Family and Protective Services as required by Section 48.051, Human
236	236	Resources Code; and
237	237	(2) provide the original tape or recording to the
238	238	Department of Family and Protective Services.
239	239	(b) If the Department of Family and Protective Services has
240	240	cause to believe that a resident has been abused, neglected, or
241	241	exploited by another person in a manner that constitutes a criminal
242	242	offense, the department shall immediately notify law enforcement
243	243	and the inspector general as provided by Section 48.1522, Human
244	244	Resources Code, and provide a copy of the tape or recording to law
245	245	enforcement or the inspector general on request.
246	246	Sec. 555.159. USE OF TAPE OR RECORDING BY AGENCY OR COURT.
247	247	(a) Subject to applicable rules of evidence and procedure and the
248	248	requirements of this section, a tape or recording created through
249	249	the use of covert or authorized electronic monitoring described by
250	250	this subchapter may be admitted into evidence in a civil or criminal
251	251	court action or administrative proceeding.
252	252	(b) A court or administrative agency may not admit into
253	253	evidence a tape or recording created through the use of covert or
254	254	authorized electronic monitoring or take or authorize action based
255	255	on the tape or recording unless:
256	256	(1) if the tape or recording is a video tape or
257	257	recording, the tape or recording shows the time and date that the
258	258	events acquired on the tape or recording occurred;
259	259	(2) the contents of the tape or recording have not been
260	260	edited or artificially enhanced; and
261	261	(3) if the contents of the tape or recording have been
262	262	transferred from the original format to another technological
263	263	format, the transfer was done by a qualified professional and the
264	264	contents of the tape or recording were not altered.
265	265	(c) A person who sends more than one tape or recording to the
266	266	department shall identify for the department each tape or recording
267	267	on which the person believes that an incident of abuse or
268	268	exploitation or evidence of neglect may be found. The executive
269	269	commissioner by rule may encourage persons who send a tape or
270	270	recording to the department to identify the place on the tape or
271	271	recording where an incident of abuse or evidence of neglect may be
272	272	found.
273	273	Sec. 555.160. NOTICE AT ENTRANCE TO CENTER. Each center
274	274	shall post a notice at the entrance to the center stating that the
275	275	rooms of some residents may be being monitored electronically by or
276	276	on behalf of the residents and that the monitoring is not
277	277	necessarily open and obvious. The executive commissioner by rule
278	278	shall prescribe the format and the precise content of the notice.
279	279	Sec. 555.161. ENFORCEMENT. The department may impose
280	280	appropriate sanctions under this chapter on a director of a center
281	281	who knowingly:
282	282	(1) refuses to permit a resident or the resident's
283	283	guardian or legal representative to conduct authorized electronic
284	284	monitoring;
285	285	(2) refuses to admit an individual to residency or
286	286	allows the removal of a resident from the center because of a
287	287	request to conduct authorized electronic monitoring;
288	288	(3) allows the removal of a resident from the center
289	289	because covert electronic monitoring is being conducted by or on
290	290	behalf of the resident; or
291	291	(4) violates another provision of this subchapter.
292	292	Sec. 555.162. INTERFERENCE WITH DEVICE; CRIMINAL PENALTY.
293	293	(a) A person who intentionally hampers, obstructs, tampers with,
294	294	or destroys an electronic monitoring device installed in a
295	295	resident's room in accordance with this subchapter or a tape or
296	296	recording made by the device commits an offense. An offense under
297	297	this subsection is a Class B misdemeanor.
298	298	(b) It is a defense to prosecution under Subsection (a) that
299	299	the person took the action with the effective consent of the
300	300	resident on whose behalf the electronic monitoring device was
301	301	installed or the resident's guardian or legal representative.
302	302	SECTION 3. The change in law made by this Act applies only
303	303	to an offense committed on or after the effective date of this Act.
304	304	An offense committed before the effective date of this Act is
305	305	governed by the law in effect on the date the offense was committed,
306	306	and the former law is continued in effect for that purpose. For
307	307	purposes of this section, an offense was committed before the
308	308	effective date of this Act if any element of the offense occurred
309	309	before that date.
310	310	SECTION 4. Not later than September 1, 2013, the executive
311	311	commissioner of the Health and Human Services Commission shall:
312	312	(1) develop the forms required by Sections 555.154 and
313	313	555.156, Health and Safety Code, as added by this Act; and
314	314	(2) develop the guidelines required by Section
315	315	555.155, Health and Safety Code, as added by this Act.
316	316	SECTION 5. This Act takes effect immediately if it receives
317	317	a vote of two-thirds of all the members elected to each house, as
318	318	provided by Section 39, Article III, Texas Constitution. If this
319	319	Act does not receive the vote necessary for immediate effect, this
320	320	Act takes effect September 1, 2013.