Texas 2019 - 86th Regular

Texas Senate Bill SB2542 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R22969 EAS-F
2	2	By: Menéndez S.B. No. 2542
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to an audio recording device pilot program for certain
8	8	Department of Family and Protective Services employees
9	9	investigating a report of child abuse or neglect; creating a
10	10	criminal offense; authorizing a fee.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Chapter 40, Human Resources Code, is amended by
13	13	adding Subchapter D to read as follows:
14	14	SUBCHAPTER D. AUDIO RECORDING DEVICE PILOT PROGRAM
15	15	Sec. 40.101. DEFINITIONS. In this subchapter:
16	16	(1) "Audio recording device" means a device that is
17	17	capable of recording audio or transmitting unedited audio.
18	18	(2) "Pilot program" means the audio recording device
19	19	pilot program for department employees established under this
20	20	chapter.
21	21	(3) "Private space" has the meaning assigned by
22	22	Section 1701.651, Occupations Code.
23	23	Sec. 40.102. PILOT PROGRAM. The department shall establish
24	24	a pilot program to provide audio recording devices to department
25	25	employees in Bexar County to evaluate the costs of implementing a
26	26	statewide audio recording device program, including all known
27	27	equipment costs and costs for data storage.
28	28	Sec. 40.103. INTERAGENCY CONTRACTS. The department may
29	29	enter into an interagency contract to receive audio recording
30	30	device services and have the identified operations performed
31	31	through a program established by the Department of Information
32	32	Resources.
33	33	Sec. 40.104. AUDIO RECORDING DEVICE POLICY. (a) As part of
34	34	the pilot program, the department shall adopt a policy ensuring
35	35	that an audio recording device is activated only when investigating
36	36	a report of child abuse or neglect and must include:
37	37	(1) guidelines for when a department employee should
38	38	activate an audio recording device or discontinue an audio
39	39	recording currently in progress, considering the need for privacy
40	40	in certain situations and at certain locations;
41	41	(2) provisions relating to data retention, including a
42	42	provision requiring the retention of an audio recording for a
43	43	minimum period of 90 days;
44	44	(3) provisions relating to storage of an audio
45	45	recording, creation of backup copies of an audio recording, and
46	46	maintenance of data security;
47	47	(4) guidelines for public access, through open records
48	48	requests, to an audio recording that is public information;
49	49	(5) provisions entitling a department employee to
50	50	access any audio recording of an incident involving the department
51	51	employee before the department employee is required to make a
52	52	statement about the incident;
53	53	(6) procedures for supervisory or internal review; and
54	54	(7) the handling and documenting of equipment and
55	55	malfunctions of equipment.
56	56	(b) A policy described by Subsection (a) may not require a
57	57	department employee to keep an audio recording device activated for
58	58	the entire period of the department employee's shift.
59	59	(c) A policy adopted under this section must be consistent
60	60	with the Federal Rules of Evidence and Texas Rules of Evidence.
61	61	Sec. 40.105. TRAINING. (a) Before the department may
62	62	operate the pilot program, the department must provide training to:
63	63	(1) employees who will use audio recording devices;
64	64	and
65	65	(2) any other personnel who will come into contact
66	66	with audio data obtained from the use of an audio recording device.
67	67	(b) The department shall develop a curriculum for a training
68	68	program under this section.
69	69	Sec. 40.106. RECORDING INTERACTIONS WITH THE PUBLIC. (a) A
70	70	department employee equipped with an audio recording device shall
71	71	act in a manner that is consistent with the policy of the department
72	72	with respect to when and under what circumstances an audio
73	73	recording device must be activated.
74	74	(b) A department employee who does not activate an audio
75	75	recording device in responding to an investigation of child abuse
76	76	or neglect must include in the employee's documentation or
77	77	otherwise note in the child's case file the reason for not
78	78	activating the audio recording device.
79	79	(c) Any justification for failing to activate the audio
80	80	recording device because it is unsafe, unrealistic, or
81	81	impracticable is based on whether a reasonable department employee
82	82	under the same or similar circumstances would have made the same
83	83	decision.
84	84	Sec. 40.107. USE OF PERSONAL EQUIPMENT. A department
85	85	employee who is on duty may only use an audio recording device that
86	86	is issued and maintained by the department.
87	87	Sec. 40.108. NOTIFICATION OF AUDIO RECORDING DEVICE. (a)
88	88	Before conducting an interview in an investigation of a report of
89	89	child abuse or neglect, a department employee shall notify the
90	90	person the employee is interviewing that the department employee is
91	91	using an audio recording device.
92	92	(b) The department may develop a form for the notification
93	93	required by Subsection (a).
94	94	Sec. 40.109. OFFENSE. (a) A department employee commits an
95	95	offense if:
96	96	(1) the employee releases a recording created with an
97	97	audio recording device under this subchapter without permission of
98	98	the department; or
99	99	(2) the employee fails to provide the notice required
100	100	by Section 40.108.
101	101	(b) An offense under this section is a Class A misdemeanor.
102	102	Sec. 40.110. RECORDINGS AS EVIDENCE. (a) Except as
103	103	provided by Subsection (b), an audio recording created with an
104	104	audio recording device and documenting an incident that is related
105	105	to an administrative or criminal investigation of a department
106	106	employee may not be deleted, destroyed, or released to the public
107	107	until all criminal matters have been finally adjudicated and all
108	108	related administrative investigations have concluded.
109	109	(b) The department may release to the public a recording
110	110	described by Subsection (a) if the department determines that the
111	111	release furthers the department's purpose.
112	112	Sec. 40.111. RELEASE OF INFORMATION RECORDED BY AUDIO
113	113	RECORDING DEVICE. (a) A member of the public is required to provide
114	114	the following information when submitting a written request to the
115	115	department for information recorded by an audio recording device:
116	116	(1) the date and approximate time of the recording;
117	117	(2) the specific location where the recording
118	118	occurred; and
119	119	(3) the name of one or more persons known to be a
120	120	subject of the recording.
121	121	(b) A failure to provide all of the information required by
122	122	Subsection (a) to be part of a request for recorded information does
123	123	not preclude the requestor from making a future request for the same
124	124	recorded information.
125	125	(c) Except as provided by Subsection (d), information
126	126	recorded by an audio recording device and held by the department
127	127	under this subchapter is not subject to the requirements of Section
128	128	552.021, Government Code.
129	129	(d) Information that is or could be used as evidence in a
130	130	criminal prosecution is subject to the requirements of Section
131	131	552.021, Government Code.
132	132	(e) The department may:
133	133	(1) seek to withhold information subject to Subsection
134	134	(d) in accordance with procedures provided by Section 552.301,
135	135	Government Code;
136	136	(2) assert any exceptions to disclosure in Chapter
137	137	552, Government Code, or other law; or
138	138	(3) release information requested in accordance with
139	139	Subsection (a) after the department redacts any information made
140	140	confidential under Chapter 552, Government Code, or other law.
141	141	(f) The department may not release any portion of a
142	142	recording made in a private space, or of a recording involving the
143	143	investigation of conduct that constitutes a misdemeanor punishable
144	144	by fine only and does not result in arrest, without written
145	145	authorization from the person who is the subject of that portion of
146	146	the recording or, if the person is deceased, from the person's
147	147	authorized representative.
148	148	(g) The attorney general shall set a proposed fee to be
149	149	charged to members of the public who seek to obtain a copy of a
150	150	recording under this section. The fee amount must be sufficient to
151	151	cover the cost of reviewing and making the recording. The
152	152	department may provide a copy without charge or at a reduced charge
153	153	if the department determines that waiver or reduction of the charge
154	154	is in the public interest.
155	155	(h) A recording is confidential and excepted from the
156	156	requirements of Chapter 552, Government Code, if the recording:
157	157	(1) was not required to be made under this subchapter
158	158	or another law or under a policy adopted by the department; and
159	159	(2) does not relate to a department purpose.
160	160	Sec. 40.112. AUDIO RECORDING DEVICE RECORDINGS; REQUEST FOR
161	161	ATTORNEY GENERAL DECISION. (a) Notwithstanding Section 552.301(b),
162	162	Government Code, a governmental body's request for a decision from
163	163	the attorney general about whether a requested audio recording
164	164	device recording falls within an exception to public disclosure is
165	165	considered timely if made not later than the 20th business day after
166	166	the date of receipt of the written request.
167	167	(b) Notwithstanding Section 552.301(d), Government Code, a
168	168	governmental body's response to a requestor regarding a requested
169	169	audio recording device recording is considered timely if made not
170	170	later than the 20th business day after the date of receipt of the
171	171	written request.
172	172	(c) Notwithstanding Section 552.301(e), Government Code, a
173	173	governmental body's submission to the attorney general of the
174	174	information required by that subsection regarding a requested audio
175	175	recording device recording is considered timely if made not later
176	176	than the 25th business day after the date of receipt of the written
177	177	request.
178	178	(d) Notwithstanding Section 552.301(e-1), Government Code,
179	179	a governmental body's submission to a requestor of the information
180	180	required by that subsection regarding a requested audio recording
181	181	device recording is considered timely if made not later than the
182	182	25th business day after the date of receipt of the written request.
183	183	Sec. 40.113. PRODUCTION OF AUDIO RECORDING DEVICE RECORDING
184	184	IN RESPONSE TO VOLUMINOUS PUBLIC INFORMATION REQUESTS. (a)
185	185	Notwithstanding Section 552.221(d), Government Code, if the
186	186	department receives a voluminous request in accordance with Section
187	187	40.111(a), the department is considered to have promptly produced
188	188	the information for purposes of Section 552.221, Government Code,
189	189	if the department takes the actions required under Section 552.221,
190	190	Government Code, before the 21st business day after the date of
191	191	receipt of the written request.
192	192	(b) For purposes of this section, "voluminous request"
193	193	includes:
194	194	(1) a request for audio recording device recordings
195	195	from more than five separate incidents;
196	196	(2) more than five separate requests for audio
197	197	recording device recordings from the same person in a 24-hour
198	198	period, regardless of the number of incidents included in each
199	199	request; or
200	200	(3) a request or multiple requests from the same
201	201	person in a 24-hour period for audio recording device recordings
202	202	that, taken together, constitute more than five total hours of
203	203	audio recordings.
204	204	Sec. 40.114. REPORT. Not later than September 1, 2022, the
205	205	department shall prepare and submit a written report on the pilot
206	206	program to the governor, the lieutenant governor, the speaker of
207	207	the house of representatives, and each member of the legislature.
208	208	The report must include:
209	209	(1) an evaluation of the interaction between
210	210	department employees involved in the pilot program and the public;
211	211	(2) an evaluation of the extent to which the
212	212	department policies regarding audio recording devices were
213	213	followed during the pilot program; and
214	214	(3) a recommendation on whether the pilot program
215	215	should continue, be expanded, or be terminated.
216	216	Sec. 40.115. EXPIRATION. This chapter expires September 1,
217	217	2023.
218	218	SECTION 2. This Act takes effect September 1, 2019.