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  By: Gooden, Riddle, Burnam, Fallon, H.B. No. 912
      Stickland, et al.
 
  Substitute the following for H.B. No. 912:
 
  By:  Herrero C.S.H.B. No. 912
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to images captured by unmanned vehicles and unmanned
  aircraft; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as the Texas Privacy Act.
         SECTION 2.  Subtitle B, Title 4, Government Code, is amended
  by adding Chapter 423 to read as follows:
  CHAPTER 423. USE OF UNMANNED VEHICLES AND UNMANNED AIRCRAFT
         Sec. 423.001.  DEFINITION. In this chapter, "image" means
  any capturing of sound waves, thermal, infrared, ultraviolet,
  visible light, or other electromagnetic waves, odor, or other
  conditions existing on or about real property or an individual
  located on that property.
         Sec. 423.002.  NONAPPLICABILITY. This chapter does not
  apply to an image of real property or an individual on real property
  located in this state that is captured by an unmanned vehicle or
  unmanned aircraft operated in this state:
               (1)  for purposes of professional or scholarly research
  and development by a person acting on behalf of an institution of
  higher education, as defined by Section 61.003, Education Code,
  including a person who:
                     (A)  is a professor, employee, or student of the
  institution; or
                     (B)  is under contract with or otherwise acting
  under the direction or on behalf of the institution; or
               (2)  airspace designated as a test site or range
  authorized by the Federal Aviation Administration for the purpose
  of integrating unmanned aircraft systems into the national
  airspace; or
               (3)  an operation, exercise, or mission of any branch
  of the United States military.
         Sec. 423.003.  OFFENSE: ILLEGAL USE OF UNMANNED VEHICLE OR
  UNMANNED AIRCRAFT TO CAPTURE IMAGE. (a) A person commits an offense
  if the person uses or authorizes the use of an unmanned vehicle or
  unmanned aircraft to capture an image of an individual or real
  property with the intent to monitor or conduct surveillance on the
  individual or the real property captured in the image.
         (b)  An offense under this section is a Class C misdemeanor.
         (c)  It is an exception to the application of this section
  that the image was captured:
               (1)  with the consent of the individual captured in the
  image and the individual who owns or lawfully occupies the real
  property captured in the image;
               (2)  pursuant to a valid search or arrest warrant;
               (3)  by a law enforcement authority:
                     (A)  in immediate pursuit of a person law
  enforcement officers have probable cause to suspect has committed a
  felony;
                     (B)  for the purpose of documenting a crime scene
  where a felony has been committed;
                     (C)  for the purpose of investigating the scene of
  a human fatality or suspected human fatality;
                     (D)  in connection with the search for a missing
  person; or
                     (E)  for the purpose of resolving a hostage
  situation;
               (4)  by state authorities for the purpose of:
                     (A)  surveying the scene of a catastrophe or other
  damage to determine whether a state of emergency should be
  declared; or
                     (B)  preserving public safety, protecting
  property, or surveying damage or contamination during a lawfully
  declared state of emergency;
               (5)  at the scene of a spill, or a suspected spill, of
  hazardous materials;
               (6)  for the purpose of fire suppression;
               (7)  for the purpose of rescuing a person whose life or
  well-being is in imminent danger;
               (8)  by a Texas licensed real estate broker in
  connection with the marketing, sale, or financing of real property,
  provided that no individual is identifiable in the image;
               (9)  of real property or a person on real property that
  is within 25 miles of the United States border;
               (10)  from a height no more than eight feet above ground
  level in a public place, if the image was captured without using any
  electronic, mechanical, or other means to amplify the image beyond
  normal human perception;
               (11)  of public real property or a person on that
  property; or
               (12)  with an optical resolution no greater than 40
  inches per pixel.
         (d)  It is a defense to prosecution under this section that
  the person destroyed the image:
               (1)  as soon as the person had knowledge that the image
  was captured in violation of this section; and
               (2)  without disclosing, displaying, or distributing
  the image to a third party.
         Sec. 423.004.  OFFENSE: POSSESSION, DISCLOSURE, DISPLAY,
  DISTRIBUTION, OR USE OF IMAGE.  (a) A person commits an offense if
  the person possesses, discloses, displays, distributes, or
  otherwise uses an image that was captured in violation of Section
  423.003.
         (b)  An offense under this section for the possession of an
  image is a Class C misdemeanor.  An offense under this section for
  the disclosure, display, distribution, or other use of an image is a
  Class B misdemeanor.
         (c)  Each image a person possesses, discloses, displays,
  distributes, or otherwise uses in violation of this section is a
  separate offense.
         (d)  It is a defense to prosecution under this section for
  the possession of an image that the person destroyed the image as
  soon as the person had knowledge that the image was captured in
  violation of Section 423.003.
         (e)  It is a defense to prosecution under this section for
  the disclosure, display, distribution, or other use of an image
  that the person stopped disclosing, displaying, distributing, or
  otherwise using the image as soon as the person had knowledge that
  the image was captured in violation of Section 423.003.
         Sec. 423.005.  ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT
  SUBJECT TO DISCLOSURE. (a)  Except as otherwise provided by
  Subsection (b), an image captured in violation of Section 423.003,
  or an image captured by an unmanned vehicle or unmanned aircraft
  that was incidental to the lawful capturing of an image:
               (1)  may not be used as evidence in any criminal or
  juvenile proceeding, civil action, or administrative proceeding;
               (2)  is not subject to disclosure, inspection, or
  copying under Chapter 552; and
               (3)  is not subject to discovery, subpoena, or other
  means of legal compulsion for its release.
         (b)  An image described by Subsection (a) may be disclosed
  and used as evidence to prove a violation of this chapter and is
  subject to discovery, subpoena, or other means of legal compulsion
  for that purpose.
         Sec. 423.006.  CIVIL ACTION. (a) An individual who is, or an
  individual who owns or legally occupies real property that is, the
  subject of an image captured, possessed, disclosed, displayed,
  distributed, or otherwise used in violation of this chapter may
  bring an action to:
               (1)  enjoin a violation or imminent violation of
  Section 423.003 or 423.004; and
               (2)  recover a civil penalty in accordance with
  Subsections (b) and (c).
         (b)  A person who violates Section 423.003 or 423.004 is
  liable for a civil penalty totaling not more than $3,000 for each
  still image or $300 for each second of a moving image, regardless of
  the number of violations with respect to that still image or moving
  image or the number of individuals or properties captured in the
  still image or moving image.
         (c)  A single plaintiff may not recover more than $1,000 for
  each still image or more than $100 for each second of a moving image
  of the plaintiff or the real property owned or legally occupied by
  the plaintiff, and may not recover more than a total of $50,000 for
  all still images and moving images of the plaintiff and the real
  property owned or legally occupied by the plaintiff captured in a
  single occurrence.
         (d)  In addition to any civil penalties authorized under this
  section, the court shall award court costs and reasonable
  attorney's fees to the prevailing party.
         (e)  Venue for an action under this section is governed by
  Chapter 15, Civil Practice and Remedies Code.
         (f)  An action brought under this section alleging a
  violation of Section 423.003 must be commenced within two years
  from the date the image was captured in violation of that section.
  An action brought under this section alleging a violation of
  Section 423.004 must be commenced within two years from the date the
  image was first possessed, disclosed, displayed, distributed, or
  otherwise used in violation of that section.
         SECTION 3.  The change in law made by this Act applies only
  to the capture, possession, disclosure, display, distribution, or
  other use of an image that occurs on or after the effective date of
  this Act.
         SECTION 4.  The provisions of this Act or the applications of
  those provisions are severable as provided by Section 311.032(c),
  Government Code.
         SECTION 5.  This Act takes effect September 1, 2013.