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  S.B. No. 33
 
 
 
 
AN ACT
  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 [The] department
  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