Bill Text: TX SB33 | 2013-2014 | 83rd Legislature | Enrolled
Bill Title: Relating to the electronic monitoring of residents at state supported living centers; providing criminal penalties.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2013-05-25 - Effective immediately [SB33 Detail]
Download: Texas-2013-SB33-Enrolled.html
S.B. No. 33 |
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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 [ |
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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. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 33 passed the Senate on | ||
April 10, 2013, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 33 passed the House on | ||
May 10, 2013, by the following vote: Yeas 140, Nays 3, two | ||
present not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |