By: Zaffirini S.B. No. 33
(Naishtat)
A BILL TO BE ENTITLED
AN ACT
relating to the electronic monitoring of residents at state
supported living centers; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (c), Section 555.025, Health and
Safety Code, is amended to read as follows:
(c) Except as provided by Subchapter E, the [The] department
may not install or operate video surveillance equipment in a
private space or in a location in which video surveillance
equipment can capture images within a private space.
SECTION 2. Chapter 555, Health and Safety Code, is amended
by adding Subchapter E to read as follows:
SUBCHAPTER E. ELECTRONIC MONITORING OF RESIDENT'S ROOM
Sec. 555.151. DEFINITIONS. In this subchapter:
(1) "Authorized electronic monitoring" means the
placement of an electronic monitoring device in a resident's room
and making tapes or recordings with the device after making a
request to the center to allow electronic monitoring.
(2) "Electronic monitoring device":
(A) includes:
(i) video surveillance cameras installed in
a resident's room; and
(ii) audio devices installed in a
resident's room designed to acquire communications or other sounds
occurring in the room; and
(B) does not include an electronic, mechanical,
or other device that is specifically used for the nonconsensual
interception of wire or electronic communications.
Sec. 555.152. CRIMINAL AND CIVIL LIABILITY. (a) It is a
defense to prosecution under Section 16.02, Penal Code, or any
other statute of this state under which it is an offense to
intercept a communication or disclose or use an intercepted
communication, that the communication was intercepted by an
electronic monitoring device placed in a resident's room.
(b) This subchapter does not affect whether a person may be
held to be civilly liable under other law in connection with placing
an electronic monitoring device in a resident's room or in
connection with using or disclosing a tape or recording made by the
device except:
(1) as specifically provided by this subchapter; or
(2) to the extent that liability is affected by:
(A) a consent or waiver signed under this
subchapter; or
(B) the fact that authorized electronic
monitoring is required to be conducted with notice to persons who
enter a resident's room.
(c) A communication or other sound acquired by an audio
electronic monitoring device installed under the provisions of this
subchapter concerning authorized electronic monitoring is not
considered to be:
(1) an oral communication as defined by Section 1,
Article 18.20, Code of Criminal Procedure; or
(2) a communication as defined by Section 123.001,
Civil Practice and Remedies Code.
Sec. 555.153. COVERT USE OF ELECTRONIC MONITORING DEVICE;
LIABILITY OF DEPARTMENT OR CENTER. (a) For purposes of this
subchapter, the placement and use of an electronic monitoring
device in a resident's room are considered to be covert if:
(1) the placement and use of the device are not open
and obvious; and
(2) the center and the department are not informed
about the device by the resident, by a person who placed the device
in the room, or by a person who is using the device.
(b) The department and the center may not be held to be
civilly liable in connection with the covert placement or use of an
electronic monitoring device in a resident's room.
Sec. 555.154. REQUIRED FORM ON ADMISSION. The executive
commissioner by rule shall prescribe a form that must be completed
and signed on a resident's admission to a center by or on behalf of
the resident. The form must state:
(1) that a person who places an electronic monitoring
device in a resident's room or who uses or discloses a tape or other
recording made by the device may be civilly liable for any unlawful
violation of the privacy rights of another;
(2) that a person who covertly places an electronic
monitoring device in a resident's room or who consents to or
acquiesces in the covert placement of the device in a resident's
room has waived any privacy right the person may have had in
connection with images or sounds that may be acquired by the device;
(3) that a resident or the resident's guardian or legal
representative is entitled to conduct authorized electronic
monitoring under this subchapter, and that if the center refuses to
permit the electronic monitoring or fails to make reasonable
physical accommodations for the authorized electronic monitoring
the person should contact the department;
(4) the basic procedures that must be followed to
request authorized electronic monitoring;
(5) the manner in which this subchapter affects the
legal requirement to report abuse, neglect, or exploitation when
electronic monitoring is being conducted; and
(6) any other information regarding covert or
authorized electronic monitoring that the executive commissioner
considers advisable to include on the form.
Sec. 555.155. AUTHORIZED ELECTRONIC MONITORING: WHO MAY
REQUEST. (a) If a resident has capacity to request electronic
monitoring and has not been judicially declared to lack the
required capacity, only the resident may request authorized
electronic monitoring under this subchapter.
(b) If a resident has been judicially declared to lack the
capacity required for taking an action such as requesting
electronic monitoring, only the guardian of the resident may
request electronic monitoring under this subchapter.
(c) If a resident does not have capacity to request
electronic monitoring but has not been judicially declared to lack
the required capacity, only the legal representative of the
resident may request electronic monitoring under this subchapter.
The executive commissioner by rule shall prescribe:
(1) guidelines that will assist centers, family
members of residents, advocates for residents, and other interested
persons to determine when a resident lacks the required capacity;
and
(2) who may be considered to be a resident's legal
representative for purposes of this subchapter, including:
(A) persons who may be considered the legal
representative under the terms of an instrument executed by the
resident when the resident had capacity; and
(B) persons who may become the legal
representative for the limited purpose of this subchapter under a
procedure prescribed by the executive commissioner.
Sec. 555.156. AUTHORIZED ELECTRONIC MONITORING: FORM OF
REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM. (a) A resident or the
guardian or legal representative of a resident who wishes to
conduct authorized electronic monitoring must make the request to
the center on a form prescribed by the executive commissioner.
(b) The form prescribed by the executive commissioner must
require the resident or the resident's guardian or legal
representative to:
(1) release the center from any civil liability for a
violation of the resident's privacy rights in connection with the
use of the electronic monitoring device;
(2) choose, when the electronic monitoring device is a
video surveillance camera, whether the camera will always be
unobstructed or whether the camera should be obstructed in
specified circumstances to protect the dignity of the resident; and
(3) obtain the consent of other residents in the room,
using a form prescribed for this purpose by the executive
commissioner, if the resident resides in a multiperson room.
(c) Consent under Subsection (b)(3) may be given only:
(1) by the other resident or residents in the room;
(2) by the guardian of a person described by
Subdivision (1), if the person has been judicially declared to lack
the required capacity; or
(3) by the legal representative who under Section
555.155(c) may request electronic monitoring on behalf of a person
described by Subdivision (1), if the person does not have capacity
to sign the form but has not been judicially declared to lack the
required capacity.
(d) The form prescribed by the executive commissioner under
Subsection (b)(3) must condition the consent of another resident in
the room on the other resident also releasing the center from any
civil liability for a violation of the person's privacy rights in
connection with the use of the electronic monitoring device.
(e) Another resident in the room may:
(1) when the proposed electronic monitoring device is
a video surveillance camera, condition consent on the camera being
pointed away from the consenting resident; and
(2) condition consent on the use of an audio
electronic monitoring device being limited or prohibited.
(f) If authorized electronic monitoring is being conducted
in a resident's room and another resident is moved into the room who
has not yet consented to the electronic monitoring, authorized
electronic monitoring must cease until the new resident has
consented in accordance with this section.
(g) The executive commissioner may include other
information that the executive commissioner considers to be
appropriate on either of the forms that the executive commissioner
is required to prescribe under this section.
(h) The executive commissioner by rule may prescribe the
place or places that a form signed under this section must be
maintained and the period for which it must be maintained.
(i) Authorized electronic monitoring:
(1) may not commence until all request and consent
forms required by this section have been completed and returned to
the center; and
(2) must be conducted in accordance with any
limitation placed on the monitoring as a condition of the consent
given by or on behalf of another resident in the room.
Sec. 555.157. AUTHORIZED ELECTRONIC MONITORING: GENERAL
PROVISIONS. (a) A center shall permit a resident or the
resident's guardian or legal representative to monitor the
resident's room through the use of electronic monitoring devices.
(b) The center shall require a resident who conducts
authorized electronic monitoring or the resident's guardian or
legal representative to post and maintain a conspicuous notice at
the entrance to the resident's room. The notice must state that the
room is being monitored by an electronic monitoring device.
(c) Authorized electronic monitoring conducted under this
subchapter is not compulsory and may be conducted only at the
request of the resident or the resident's guardian or legal
representative.
(d) A center may not refuse to admit an individual to
residency in the center and may not remove a resident from the
center because of a request to conduct authorized electronic
monitoring. A center may not remove a resident from the center
because covert electronic monitoring is being conducted by or on
behalf of a resident.
(e) A center shall make reasonable physical accommodation
for authorized electronic monitoring, including:
(1) providing a reasonably secure place to mount the
video surveillance camera or other electronic monitoring device;
and
(2) providing access to power sources for the video
surveillance camera or other electronic monitoring device.
(f) The resident or the resident's guardian or legal
representative must pay for all costs associated with conducting
electronic monitoring, other than the costs of electricity. The
resident or the resident's guardian or legal representative is
responsible for:
(1) all costs associated with installation of
equipment; and
(2) maintaining the equipment.
(g) A center may require an electronic monitoring device to
be installed in a manner that is safe for residents, employees, or
visitors who may be moving about the room. The executive
commissioner by rule may adopt guidelines regarding the safe
placement of an electronic monitoring device.
(h) If authorized electronic monitoring is conducted, the
center may require the resident or the resident's guardian or legal
representative to conduct the electronic monitoring in plain view.
(i) A center may but is not required to place a resident in a
different room to accommodate a request to conduct authorized
electronic monitoring.
Sec. 555.158. REPORTING ABUSE, NEGLECT, OR EXPLOITATION.
(a) A person who is conducting authorized electronic monitoring
under this subchapter and who has cause to believe, based on the
viewing of or listening to a tape or recording, that a resident is
in a state of abuse, neglect, or exploitation or has been abused,
neglected, or exploited shall:
(1) report that information to the Department of
Family and Protective Services as required by Section 48.051, Human
Resources Code; and
(2) provide the original tape or recording to the
Department of Family and Protective Services.
(b) If the Department of Family and Protective Services has
cause to believe that a resident has been abused, neglected, or
exploited by another person in a manner that constitutes a criminal
offense, the department shall immediately notify law enforcement
and the inspector general as provided by Section 48.1522, Human
Resources Code, and provide a copy of the tape or recording to law
enforcement or the inspector general on request.
Sec. 555.159. USE OF TAPE OR RECORDING BY AGENCY OR COURT.
(a) Subject to applicable rules of evidence and procedure and the
requirements of this section, a tape or recording created through
the use of covert or authorized electronic monitoring described by
this subchapter may be admitted into evidence in a civil or criminal
court action or administrative proceeding.
(b) A court or administrative agency may not admit into
evidence a tape or recording created through the use of covert or
authorized electronic monitoring or take or authorize action based
on the tape or recording unless:
(1) if the tape or recording is a video tape or
recording, the tape or recording shows the time and date that the
events acquired on the tape or recording occurred;
(2) the contents of the tape or recording have not been
edited or artificially enhanced; and
(3) if the contents of the tape or recording have been
transferred from the original format to another technological
format, the transfer was done by a qualified professional and the
contents of the tape or recording were not altered.
(c) A person who sends more than one tape or recording to the
department shall identify for the department each tape or recording
on which the person believes that an incident of abuse or
exploitation or evidence of neglect may be found. The executive
commissioner by rule may encourage persons who send a tape or
recording to the department to identify the place on the tape or
recording where an incident of abuse or evidence of neglect may be
found.
Sec. 555.160. NOTICE AT ENTRANCE TO CENTER. Each center
shall post a notice at the entrance to the center stating that the
rooms of some residents may be being monitored electronically by or
on behalf of the residents and that the monitoring is not
necessarily open and obvious. The executive commissioner by rule
shall prescribe the format and the precise content of the notice.
Sec. 555.161. ENFORCEMENT. The department may impose
appropriate sanctions under this chapter on a director of a center
who knowingly:
(1) refuses to permit a resident or the resident's
guardian or legal representative to conduct authorized electronic
monitoring;
(2) refuses to admit an individual to residency or
allows the removal of a resident from the center because of a
request to conduct authorized electronic monitoring;
(3) allows the removal of a resident from the center
because covert electronic monitoring is being conducted by or on
behalf of the resident; or
(4) violates another provision of this subchapter.
Sec. 555.162. INTERFERENCE WITH DEVICE; CRIMINAL PENALTY.
(a) A person who intentionally hampers, obstructs, tampers with,
or destroys an electronic monitoring device installed in a
resident's room in accordance with this subchapter or a tape or
recording made by the device commits an offense. An offense under
this subsection is a Class B misdemeanor.
(b) It is a defense to prosecution under Subsection (a) that
the person took the action with the effective consent of the
resident on whose behalf the electronic monitoring device was
installed or the resident's guardian or legal representative.
SECTION 3. The change in law made by this Act applies 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 Act if any element of the offense occurred
before that date.
SECTION 4. Not later than September 1, 2013, the executive
commissioner of the Health and Human Services Commission shall:
(1) develop the forms required by Sections 555.154 and
555.156, Health and Safety Code, as added by this Act; and
(2) develop the guidelines required by Section
555.155, Health and Safety Code, as added by this Act.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.