By: Hughes S.B. No. 1051
A BILL TO BE ENTITLED
AN ACT
relating to the capture and retention of certain biometric
identifiers by certain governmental entities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 560.001, Government Code, is amended to
read as follows:
Sec. 560.001. DEFINITIONS. In this chapter:
(1) "Biometric identifier" means an ear, [a] retina,
or iris scan, a fingerprint, a voiceprint, or a record of an
individual's hand or face geometry, heartbeat, gait, or vascular
pattern.
(2) "Governmental entity" means this state or an
agency or political subdivision of this state [body" has the
meaning assigned by Section 552.003, except that the term includes
each entity within or created by the judicial branch of state
government].
SECTION 2. Chapter 560, Government Code, is amended by
adding Section 560.0015 to read as follows:
Sec. 560.0015. CAPTURE OF BIOMETRIC IDENTIFIER.
(a) Except as provided by Subsection (b), a governmental entity
may not capture an individual's biometric identifier without the
individual's voluntary consent. Except as provided by Subsection
(c), a governmental entity may not capture, retain, or use an
individual's biometric identifier that is captured using a
photograph, video recording, or audio recording of the individual.
(b) A governmental entity may capture an individual's
biometric identifier without the individual's consent if the
capture:
(1) occurs at a location not more than 10 miles from an
international border;
(2) is authorized under a warrant;
(3) occurs during the investigation of an alleged
crime and the biometric identifier is:
(A) a fingerprint; or
(B) from an individual who is arrested for,
charged with, or convicted of the crime;
(4) is a fingerprint, heartbeat, or vascular pattern
captured by a health care provider or health care facility that
captures, possesses, or requires the biometric identifier while
providing health care services to the individual; or
(5) is required for use under Section 521.059
Transportation Code.
(c) A governmental entity may capture, retain, and use an
individual's biometric identifier that is captured using a
photograph, video recording, or audio recording of the individual
if:
(1) the photograph or recording is captured in
relation to a time, place, or event connected to a criminal
investigation; and
(2) the governmental entity destroys the record of the
biometric identifier on completion of the entity's use of the
biometric identifier for:
(A) the criminal investigation; or
(B) the trial or appeal of the prosecution of an
alleged crime charged as a result of the investigation.
SECTION 3. Section 560.002, Government Code, is amended to
read as follows:
Sec. 560.002. DISCLOSURE OF BIOMETRIC IDENTIFIER. A
governmental entity [body] that possesses a biometric identifier of
an individual:
(1) may not sell, lease, or otherwise disclose the
biometric identifier to another person unless:
(A) the individual consents to the disclosure;
(B) the disclosure is required or permitted by a
federal statute or by a state statute other than Chapter 552; or
(C) the disclosure is made by or to a law
enforcement agency for a law enforcement purpose; and
(2) shall store, transmit, and protect from disclosure
the biometric identifier using reasonable care and in a manner that
is the same as or more protective than the manner in which the
governmental entity [body] stores, transmits, and protects its
other confidential information.
SECTION 4. Chapter 560, Government Code, is amended by
adding Section 560.0025 to read as follows:
Sec. 560.0025. DESTRUCTION AFTER ACQUITTAL OR DISMISSAL OF
CRIMINAL CHARGE. A governmental entity that captures an
individual's biometric identifier based on an exception under
Section 560.0015(b)(2) or (3) shall destroy all records of the
biometric identifier if the biometric identifier was collected:
(1) under a warrant issued in the investigation of an
alleged crime and charges against the individual are not filed; or
(2) exclusively in connection with the investigation
of a crime for which:
(A) the individual was subsequently acquitted;
or
(B) all charges against the individual resulting
from the investigation are dismissed.
SECTION 5. Section 560.003, Government Code, is amended to
read as follows:
Sec. 560.003. APPLICATION OF CHAPTER 552. A biometric
identifier in the possession of a governmental entity [body] is
exempt from disclosure under Chapter 552.
SECTION 6. Chapter 560, Government Code, is amended by
adding Sections 560.004 and 560.005 to read as follows:
Sec. 560.004. INJUNCTIVE RELIEF; DAMAGES. (a) Any person
may institute an action for injunctive relief against a
governmental entity that appears to have captured that person's
biometric identifier in violation of this chapter.
(b) In an injunction issued under this section, a court may
include reasonable requirements to prevent further violations of
this chapter.
(c) In addition to the injunctive relief provided by
Subsection (a), the person may recover damages against a
governmental entity for each violation of this chapter against that
person. The person must show that a violation has occurred by a
preponderance of the evidence. Damages may not exceed $1,000 for
each violation.
(d) Each day a violation occurs or continues to occur is a
separate violation.
(e) A person may recover reasonable expenses incurred in
obtaining injunctive relief or damages under this section,
including court costs, attorney's fees, investigative costs,
witness fees, and deposition expenses.
Sec. 560.005. WAIVER OF SOVEREIGN OR GOVERNMENTAL IMMUNITY.
Sovereign or governmental immunity, as applicable, of a
governmental entity to suit and from liability is waived and
abolished to the extent of liability created by this chapter.
SECTION 7. The changes in law made by this Act apply only to
a biometric identifier, as that term is defined by Section 560.001,
Government Code, as amended by this Act, that is captured on or
after the effective date of this Act. A biometric identifier that
was captured before that date is governed by the law in effect on
the date the biometric identifier was captured, and that law is
continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2019.