86R22969 EAS-F
By: Menéndez S.B. No. 2542
A BILL TO BE ENTITLED
AN ACT
relating to an audio recording device pilot program for certain
Department of Family and Protective Services employees
investigating a report of child abuse or neglect; creating a
criminal offense; authorizing a fee.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 40, Human Resources Code, is amended by
adding Subchapter D to read as follows:
SUBCHAPTER D. AUDIO RECORDING DEVICE PILOT PROGRAM
Sec. 40.101. DEFINITIONS. In this subchapter:
(1) "Audio recording device" means a device that is
capable of recording audio or transmitting unedited audio.
(2) "Pilot program" means the audio recording device
pilot program for department employees established under this
chapter.
(3) "Private space" has the meaning assigned by
Section 1701.651, Occupations Code.
Sec. 40.102. PILOT PROGRAM. The department shall establish
a pilot program to provide audio recording devices to department
employees in Bexar County to evaluate the costs of implementing a
statewide audio recording device program, including all known
equipment costs and costs for data storage.
Sec. 40.103. INTERAGENCY CONTRACTS. The department may
enter into an interagency contract to receive audio recording
device services and have the identified operations performed
through a program established by the Department of Information
Resources.
Sec. 40.104. AUDIO RECORDING DEVICE POLICY. (a) As part of
the pilot program, the department shall adopt a policy ensuring
that an audio recording device is activated only when investigating
a report of child abuse or neglect and must include:
(1) guidelines for when a department employee should
activate an audio recording device or discontinue an audio
recording currently in progress, considering the need for privacy
in certain situations and at certain locations;
(2) provisions relating to data retention, including a
provision requiring the retention of an audio recording for a
minimum period of 90 days;
(3) provisions relating to storage of an audio
recording, creation of backup copies of an audio recording, and
maintenance of data security;
(4) guidelines for public access, through open records
requests, to an audio recording that is public information;
(5) provisions entitling a department employee to
access any audio recording of an incident involving the department
employee before the department employee is required to make a
statement about the incident;
(6) procedures for supervisory or internal review; and
(7) the handling and documenting of equipment and
malfunctions of equipment.
(b) A policy described by Subsection (a) may not require a
department employee to keep an audio recording device activated for
the entire period of the department employee's shift.
(c) A policy adopted under this section must be consistent
with the Federal Rules of Evidence and Texas Rules of Evidence.
Sec. 40.105. TRAINING. (a) Before the department may
operate the pilot program, the department must provide training to:
(1) employees who will use audio recording devices;
and
(2) any other personnel who will come into contact
with audio data obtained from the use of an audio recording device.
(b) The department shall develop a curriculum for a training
program under this section.
Sec. 40.106. RECORDING INTERACTIONS WITH THE PUBLIC. (a) A
department employee equipped with an audio recording device shall
act in a manner that is consistent with the policy of the department
with respect to when and under what circumstances an audio
recording device must be activated.
(b) A department employee who does not activate an audio
recording device in responding to an investigation of child abuse
or neglect must include in the employee's documentation or
otherwise note in the child's case file the reason for not
activating the audio recording device.
(c) Any justification for failing to activate the audio
recording device because it is unsafe, unrealistic, or
impracticable is based on whether a reasonable department employee
under the same or similar circumstances would have made the same
decision.
Sec. 40.107. USE OF PERSONAL EQUIPMENT. A department
employee who is on duty may only use an audio recording device that
is issued and maintained by the department.
Sec. 40.108. NOTIFICATION OF AUDIO RECORDING DEVICE. (a)
Before conducting an interview in an investigation of a report of
child abuse or neglect, a department employee shall notify the
person the employee is interviewing that the department employee is
using an audio recording device.
(b) The department may develop a form for the notification
required by Subsection (a).
Sec. 40.109. OFFENSE. (a) A department employee commits an
offense if:
(1) the employee releases a recording created with an
audio recording device under this subchapter without permission of
the department; or
(2) the employee fails to provide the notice required
by Section 40.108.
(b) An offense under this section is a Class A misdemeanor.
Sec. 40.110. RECORDINGS AS EVIDENCE. (a) Except as
provided by Subsection (b), an audio recording created with an
audio recording device and documenting an incident that is related
to an administrative or criminal investigation of a department
employee may not be deleted, destroyed, or released to the public
until all criminal matters have been finally adjudicated and all
related administrative investigations have concluded.
(b) The department may release to the public a recording
described by Subsection (a) if the department determines that the
release furthers the department's purpose.
Sec. 40.111. RELEASE OF INFORMATION RECORDED BY AUDIO
RECORDING DEVICE. (a) A member of the public is required to provide
the following information when submitting a written request to the
department for information recorded by an audio recording device:
(1) the date and approximate time of the recording;
(2) the specific location where the recording
occurred; and
(3) the name of one or more persons known to be a
subject of the recording.
(b) A failure to provide all of the information required by
Subsection (a) to be part of a request for recorded information does
not preclude the requestor from making a future request for the same
recorded information.
(c) Except as provided by Subsection (d), information
recorded by an audio recording device and held by the department
under this subchapter is not subject to the requirements of Section
552.021, Government Code.
(d) Information that is or could be used as evidence in a
criminal prosecution is subject to the requirements of Section
552.021, Government Code.
(e) The department may:
(1) seek to withhold information subject to Subsection
(d) in accordance with procedures provided by Section 552.301,
Government Code;
(2) assert any exceptions to disclosure in Chapter
552, Government Code, or other law; or
(3) release information requested in accordance with
Subsection (a) after the department redacts any information made
confidential under Chapter 552, Government Code, or other law.
(f) The department may not release any portion of a
recording made in a private space, or of a recording involving the
investigation of conduct that constitutes a misdemeanor punishable
by fine only and does not result in arrest, without written
authorization from the person who is the subject of that portion of
the recording or, if the person is deceased, from the person's
authorized representative.
(g) The attorney general shall set a proposed fee to be
charged to members of the public who seek to obtain a copy of a
recording under this section. The fee amount must be sufficient to
cover the cost of reviewing and making the recording. The
department may provide a copy without charge or at a reduced charge
if the department determines that waiver or reduction of the charge
is in the public interest.
(h) A recording is confidential and excepted from the
requirements of Chapter 552, Government Code, if the recording:
(1) was not required to be made under this subchapter
or another law or under a policy adopted by the department; and
(2) does not relate to a department purpose.
Sec. 40.112. AUDIO RECORDING DEVICE RECORDINGS; REQUEST FOR
ATTORNEY GENERAL DECISION. (a) Notwithstanding Section 552.301(b),
Government Code, a governmental body's request for a decision from
the attorney general about whether a requested audio recording
device recording falls within an exception to public disclosure is
considered timely if made not later than the 20th business day after
the date of receipt of the written request.
(b) Notwithstanding Section 552.301(d), Government Code, a
governmental body's response to a requestor regarding a requested
audio recording device recording is considered timely if made not
later than the 20th business day after the date of receipt of the
written request.
(c) Notwithstanding Section 552.301(e), Government Code, a
governmental body's submission to the attorney general of the
information required by that subsection regarding a requested audio
recording device recording is considered timely if made not later
than the 25th business day after the date of receipt of the written
request.
(d) Notwithstanding Section 552.301(e-1), Government Code,
a governmental body's submission to a requestor of the information
required by that subsection regarding a requested audio recording
device recording is considered timely if made not later than the
25th business day after the date of receipt of the written request.
Sec. 40.113. PRODUCTION OF AUDIO RECORDING DEVICE RECORDING
IN RESPONSE TO VOLUMINOUS PUBLIC INFORMATION REQUESTS. (a)
Notwithstanding Section 552.221(d), Government Code, if the
department receives a voluminous request in accordance with Section
40.111(a), the department is considered to have promptly produced
the information for purposes of Section 552.221, Government Code,
if the department takes the actions required under Section 552.221,
Government Code, before the 21st business day after the date of
receipt of the written request.
(b) For purposes of this section, "voluminous request"
includes:
(1) a request for audio recording device recordings
from more than five separate incidents;
(2) more than five separate requests for audio
recording device recordings from the same person in a 24-hour
period, regardless of the number of incidents included in each
request; or
(3) a request or multiple requests from the same
person in a 24-hour period for audio recording device recordings
that, taken together, constitute more than five total hours of
audio recordings.
Sec. 40.114. REPORT. Not later than September 1, 2022, the
department shall prepare and submit a written report on the pilot
program to the governor, the lieutenant governor, the speaker of
the house of representatives, and each member of the legislature.
The report must include:
(1) an evaluation of the interaction between
department employees involved in the pilot program and the public;
(2) an evaluation of the extent to which the
department policies regarding audio recording devices were
followed during the pilot program; and
(3) a recommendation on whether the pilot program
should continue, be expanded, or be terminated.
Sec. 40.115. EXPIRATION. This chapter expires September 1,
2023.
SECTION 2. This Act takes effect September 1, 2019.