1-1 AN ACT
1-2 relating to electronic monitoring devices in the rooms of residents
1-3 of convalescent or nursing homes or related institutions; providing
1-4 a criminal penalty.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 242, Health and Safety Code, is amended
1-7 by adding Subchapter R to read as follows:
1-8 SUBCHAPTER R. ELECTRONIC MONITORING OF RESIDENT'S ROOM
1-9 Sec. 242.841. DEFINITIONS. In this subchapter:
1-10 (1) "Authorized electronic monitoring" means the
1-11 placement of an electronic monitoring device in the room of a
1-12 resident of an institution and making tapes or recordings with the
1-13 device after making a request to the institution to allow
1-14 electronic monitoring.
1-15 (2) "Electronic monitoring device":
1-16 (A) includes:
1-17 (i) video surveillance cameras installed
1-18 in the room of a resident; and
1-19 (ii) audio devices installed in the room
1-20 of a resident designed to acquire communications or other sounds
1-21 occurring in the room; and
1-22 (B) does not include an electronic, mechanical,
1-23 or other device that is specifically used for the nonconsensual
1-24 interception of wire or electronic communications.
1-25 Sec. 242.842. CRIMINAL AND CIVIL LIABILITY. (a) It is a
2-1 defense to prosecution under Section 16.02, Penal Code, or any
2-2 other statute of this state under which it is an offense to
2-3 intercept a communication or disclose or use an intercepted
2-4 communication, that the communication was intercepted by an
2-5 electronic monitoring device placed in the room of a resident of an
2-6 institution.
2-7 (b) This subchapter does not affect whether a person may be
2-8 held to be civilly liable under other law in connection with
2-9 placing an electronic monitoring device in the room of a resident
2-10 of an institution or in connection with using or disclosing a tape
2-11 or recording made by the device except:
2-12 (1) as specifically provided by this subchapter; or
2-13 (2) to the extent that liability is affected by:
2-14 (A) a consent or waiver signed under this
2-15 subchapter; or
2-16 (B) the fact that authorized electronic
2-17 monitoring is required to be conducted with notice to persons who
2-18 enter a resident's room.
2-19 (c) A communication or other sound acquired by an audio
2-20 electronic monitoring device installed under the provisions of this
2-21 subchapter concerning authorized electronic monitoring is not
2-22 considered to be:
2-23 (1) an oral communication as defined by Section 1,
2-24 Article 18.20, Code of Criminal Procedure; or
2-25 (2) a communication as defined by Section 123.001,
2-26 Civil Practice and Remedies Code.
3-1 Sec. 242.843. COVERT USE OF ELECTRONIC MONITORING DEVICE;
3-2 LIABILITY OF DEPARTMENT OR INSTITUTION. (a) For purposes of this
3-3 subchapter, the placement and use of an electronic monitoring
3-4 device in the room of a resident is considered to be covert if:
3-5 (1) the placement and use of the device is not open
3-6 and obvious; and
3-7 (2) the institution and the department are not
3-8 informed about the device by the resident, by a person who placed
3-9 the device in the room, or by a person who is using the device.
3-10 (b) The department and the institution may not be held to be
3-11 civilly liable in connection with the covert placement or use of an
3-12 electronic monitoring device in the room of a resident.
3-13 Sec. 242.844. REQUIRED FORM ON ADMISSION. The department by
3-14 rule shall prescribe a form that must be completed and signed on a
3-15 resident's admission to an institution by or on behalf of the
3-16 resident. The form must state:
3-17 (1) that a person who places an electronic monitoring
3-18 device in the room of a resident or who uses or discloses a tape or
3-19 other recording made by the device may be civilly liable for any
3-20 unlawful violation of the privacy rights of another;
3-21 (2) that a person who covertly places an electronic
3-22 monitoring device in the room of a resident or who consents to or
3-23 acquiesces in the covert placement of the device in the room of a
3-24 resident has waived any privacy right the person may have had in
3-25 connection with images or sounds that may be acquired by the
3-26 device;
4-1 (3) that a resident or the resident's guardian or
4-2 legal representative is entitled to conduct authorized electronic
4-3 monitoring under Subchapter R, Chapter 242, Health and Safety Code,
4-4 and that if the institution refuses to permit the electronic
4-5 monitoring or fails to make reasonable physical accommodations for
4-6 the authorized electronic monitoring that the person should contact
4-7 the Texas Department of Human Services;
4-8 (4) the basic procedures that must be followed to
4-9 request authorized electronic monitoring;
4-10 (5) the manner in which this chapter affects the legal
4-11 requirement to report abuse or neglect when electronic monitoring
4-12 is being conducted; and
4-13 (6) any other information regarding covert or
4-14 authorized electronic monitoring that the department considers
4-15 advisable to include on the form.
4-16 Sec. 242.845. AUTHORIZED ELECTRONIC MONITORING: WHO MAY
4-17 REQUEST. (a) If a resident has capacity to request electronic
4-18 monitoring and has not been judicially declared to lack the
4-19 required capacity, only the resident may request authorized
4-20 electronic monitoring under this subchapter, notwithstanding the
4-21 terms of any durable power of attorney or similar instrument.
4-22 (b) If a resident has been judicially declared to lack the
4-23 capacity required for taking an action such as requesting
4-24 electronic monitoring, only the guardian of the resident may
4-25 request electronic monitoring under this subchapter.
4-26 (c) If a resident does not have capacity to request
5-1 electronic monitoring but has not been judicially declared to lack
5-2 the required capacity, only the legal representative of the
5-3 resident may request electronic monitoring under this subchapter.
5-4 The department by rule shall prescribe:
5-5 (1) guidelines that will assist institutions, family
5-6 members of residents, advocates for residents, and other interested
5-7 persons to determine when a resident lacks the required capacity;
5-8 and
5-9 (2) who may be considered to be a resident's legal
5-10 representative for purposes of this subchapter, including:
5-11 (A) persons who may be considered the legal
5-12 representative under the terms of an instrument executed by the
5-13 resident when the resident had capacity; and
5-14 (B) persons who may become the legal
5-15 representative for the limited purpose of this subchapter under a
5-16 procedure prescribed by the department.
5-17 Sec. 242.846. AUTHORIZED ELECTRONIC MONITORING: FORM OF
5-18 REQUEST; CONSENT OF OTHER RESIDENTS IN ROOM. (a) A resident or
5-19 the guardian or legal representative of a resident who wishes to
5-20 conduct authorized electronic monitoring must make the request to
5-21 the institution on a form prescribed by the department.
5-22 (b) The form prescribed by the department must require the
5-23 resident or the resident's guardian or legal representative to:
5-24 (1) release the institution from any civil liability
5-25 for a violation of the resident's privacy rights in connection with
5-26 the use of the electronic monitoring device;
6-1 (2) choose, when the electronic monitoring device is a
6-2 video surveillance camera, whether the camera will always be
6-3 unobstructed or whether the camera should be obstructed in
6-4 specified circumstances to protect the dignity of the resident; and
6-5 (3) obtain the consent of other residents in the room,
6-6 using a form prescribed for this purpose by the department, if the
6-7 resident resides in a multiperson room.
6-8 (c) Consent under Subsection (b)(3) may be given only:
6-9 (1) by the other resident or residents in the room;
6-10 (2) by the guardian of a person described by
6-11 Subdivision (1), if the person has been judicially declared to lack
6-12 the required capacity; or
6-13 (3) by the legal representative who under Section
6-14 242.845(c) may request electronic monitoring on behalf of a person
6-15 described by Subdivision (1), if the person does not have capacity
6-16 to sign the form but has not been judicially declared to lack the
6-17 required capacity.
6-18 (d) The form prescribed by the department under Subsection
6-19 (b)(3) must condition the consent of another resident in the room
6-20 on the other resident also releasing the institution from any civil
6-21 liability for a violation of the person's privacy rights in
6-22 connection with the use of the electronic monitoring device.
6-23 (e) Another resident in the room may:
6-24 (1) when the proposed electronic monitoring device is
6-25 a video surveillance camera, condition consent on the camera being
6-26 pointed away from the consenting resident; and
7-1 (2) condition consent on the use of an audio
7-2 electronic monitoring device being limited or prohibited.
7-3 (f) If authorized electronic monitoring is being conducted
7-4 in the room of a resident and another resident is moved into the
7-5 room who has not yet consented to the electronic monitoring,
7-6 authorized electronic monitoring must cease until the new resident
7-7 has consented in accordance with this section.
7-8 (g) The department may include other information that the
7-9 department considers to be appropriate on either of the forms that
7-10 the department is required to prescribe under this section.
7-11 (h) The department may adopt rules prescribing the place or
7-12 places that a form signed under this section must be maintained and
7-13 the period for which it must be maintained.
7-14 (i) Authorized electronic monitoring:
7-15 (1) may not commence until all request and consent
7-16 forms required by this section have been completed and returned to
7-17 the institution; and
7-18 (2) must be conducted in accordance with any
7-19 limitation placed on the monitoring as a condition of the consent
7-20 given by or on behalf of another resident in the room.
7-21 Sec. 242.847. AUTHORIZED ELECTRONIC MONITORING: GENERAL
7-22 PROVISIONS. (a) An institution shall permit a resident or the
7-23 resident's guardian or legal representative to monitor the room of
7-24 the resident through the use of electronic monitoring devices.
7-25 (b) The institution shall require a resident who conducts
7-26 authorized electronic monitoring or the resident's guardian or
8-1 legal representative to post and maintain a conspicuous notice at
8-2 the entrance to the resident's room. The notice must state that
8-3 the room is being monitored by an electronic monitoring device.
8-4 (c) Authorized electronic monitoring conducted under this
8-5 subchapter is not compulsory and may be conducted only at the
8-6 request of the resident or the resident's guardian or legal
8-7 representative.
8-8 (d) An institution may not refuse to admit an individual to
8-9 residency in the institution and may not remove a resident from the
8-10 institution because of a request to conduct authorized electronic
8-11 monitoring. An institution may not remove a resident from the
8-12 institution because covert electronic monitoring is being conducted
8-13 by or on behalf of a resident.
8-14 (e) An institution shall make reasonable physical
8-15 accommodation for authorized electronic monitoring, including:
8-16 (1) providing a reasonably secure place to mount the
8-17 video surveillance camera or other electronic monitoring device;
8-18 and
8-19 (2) providing access to power sources for the video
8-20 surveillance camera or other electronic monitoring device.
8-21 (f) The resident or the resident's guardian or legal
8-22 representative must pay for all costs associated with conducting
8-23 electronic monitoring, other than the costs of electricity. The
8-24 resident or the resident's guardian or legal representative is
8-25 responsible for:
8-26 (1) all costs associated with installation of
9-1 equipment; and
9-2 (2) maintaining the equipment.
9-3 (g) An institution may require an electronic monitoring
9-4 device to be installed in a manner that is safe for residents,
9-5 employees, or visitors who may be moving about the room. The
9-6 department may adopt rules regarding the safe placement of an
9-7 electronic monitoring device.
9-8 (h) If authorized electronic monitoring is conducted, the
9-9 institution may require the resident or the resident's guardian or
9-10 legal representative to conduct the electronic monitoring in plain
9-11 view.
9-12 (i) An institution may but is not required to place a
9-13 resident in a different room to accommodate a request to conduct
9-14 authorized electronic monitoring.
9-15 Sec. 242.848. REPORTING ABUSE AND NEGLECT. (a) For
9-16 purposes of the duty to report abuse or neglect under Section
9-17 242.122 and the criminal penalty for the failure to report abuse or
9-18 neglect under Section 242.131, a person who is conducting
9-19 electronic monitoring on behalf of a resident under this subchapter
9-20 is considered to have viewed or listened to a tape or recording
9-21 made by the electronic monitoring device on or before the 14th day
9-22 after the date the tape or recording is made.
9-23 (b) If a resident who has capacity to determine that the
9-24 resident has been abused or neglected and who is conducting
9-25 electronic monitoring under this subchapter gives a tape or
9-26 recording made by the electronic monitoring device to a person and
10-1 directs the person to view or listen to the tape or recording to
10-2 determine whether abuse or neglect has occurred, the person to whom
10-3 the resident gives the tape or recording is considered to have
10-4 viewed or listened to the tape or recording on or before the
10-5 seventh day after the date the person receives the tape or
10-6 recording for purposes of the duty to report abuse or neglect under
10-7 Section 242.122 and of the criminal penalty for the failure to
10-8 report abuse or neglect under Section 242.131.
10-9 (c) A person is required to report abuse based on the
10-10 person's viewing of or listening to a tape or recording only if the
10-11 incident of abuse is acquired on the tape or recording. A person
10-12 is required to report neglect based on the person's viewing of or
10-13 listening to a tape or recording only if it is clear from viewing
10-14 or listening to the tape or recording that neglect has occurred.
10-15 (d) If abuse or neglect of the resident is reported to the
10-16 institution and the institution requests a copy of any relevant
10-17 tape or recording made by an electronic monitoring device, the
10-18 person who possesses the tape or recording shall provide the
10-19 institution with a copy at the institution's expense.
10-20 Sec. 242.849. USE OF TAPE OR RECORDING BY AGENCY OR COURT.
10-21 (a) Subject to applicable rules of evidence and procedure and the
10-22 requirements of this section, a tape or recording created through
10-23 the use of covert or authorized electronic monitoring described by
10-24 this subchapter may be admitted into evidence in a civil or
10-25 criminal court action or administrative proceeding.
10-26 (b) A court or administrative agency may not admit into
11-1 evidence a tape or recording created through the use of covert or
11-2 authorized electronic monitoring or take or authorize action based
11-3 on the tape or recording unless:
11-4 (1) if the tape or recording is a video tape or
11-5 recording, the tape or recording shows the time and date that the
11-6 events acquired on the tape or recording occurred;
11-7 (2) the contents of the tape or recording have not
11-8 been edited or artificially enhanced; and
11-9 (3) if the contents of the tape or recording have been
11-10 transferred from the original format to another technological
11-11 format, the transfer was done by a qualified professional and the
11-12 contents of the tape or recording were not altered.
11-13 (c) A person who sends more than one tape or recording to
11-14 the department shall identify for the department each tape or
11-15 recording on which the person believes that an incident of abuse or
11-16 evidence of neglect may be found. The department may adopt rules
11-17 encouraging persons who send a tape or recording to the department
11-18 to identify the place on the tape or recording that an incident of
11-19 abuse or evidence of neglect may be found.
11-20 Sec. 242.850. NOTICE AT ENTRANCE TO INSTITUTION. Each
11-21 institution shall post a notice at the entrance to the institution
11-22 stating that the rooms of some residents may be being monitored
11-23 electronically by or on behalf of the residents and that the
11-24 monitoring is not necessarily open and obvious. The department by
11-25 rule shall prescribe the format and the precise content of the
11-26 notice.
12-1 Sec. 242.851. ENFORCEMENT. (a) The department may impose
12-2 appropriate sanctions under this chapter on an administrator of an
12-3 institution who knowingly:
12-4 (1) refuses to permit a resident or the resident's
12-5 guardian or legal representative to conduct authorized electronic
12-6 monitoring;
12-7 (2) refuses to admit an individual to residency or
12-8 allows the removal of a resident from the institution because of a
12-9 request to conduct authorized electronic monitoring;
12-10 (3) allows the removal of a resident from the
12-11 institution because covert electronic monitoring is being conducted
12-12 by or on behalf of the resident; or
12-13 (4) violates another provision of this subchapter.
12-14 (b) The department may assess an administrative penalty
12-15 under Section 242.066 against an institution that:
12-16 (1) refuses to permit a resident or the resident's
12-17 guardian or legal representative to conduct authorized electronic
12-18 monitoring;
12-19 (2) refuses to admit an individual to residency or
12-20 allows the removal of a resident from the institution because of a
12-21 request to conduct authorized electronic monitoring;
12-22 (3) allows the removal of a resident from the
12-23 institution because covert electronic monitoring is being conducted
12-24 by or on behalf of the resident; or
12-25 (4) violates another provision of this subchapter.
12-26 Sec. 242.852. CRIMINAL OFFENSE. (a) A person who
13-1 intentionally hampers, obstructs, tampers with, or destroys an
13-2 electronic monitoring device installed in a resident's room in
13-3 accordance with this subchapter or a tape or recording made by the
13-4 device commits an offense. An offense under this section is a
13-5 Class B misdemeanor.
13-6 (b) It is a defense to prosecution under Subsection (a) that
13-7 the person took the action with the effective consent of the
13-8 resident on whose behalf the electronic monitoring device was
13-9 installed or the resident's guardian or legal representative.
13-10 SECTION 2. Subsection (a), Section 242.501, Health and
13-11 Safety Code, is amended to read as follows:
13-12 (a) The department by rule shall adopt a statement of the
13-13 rights of a resident. The statement must be consistent with
13-14 Chapter 102, Human Resources Code, but shall reflect the unique
13-15 circumstances of a resident at an institution. At a minimum, the
13-16 statement of the rights of a resident must address the resident's
13-17 constitutional, civil, and legal rights and the resident's right:
13-18 (1) to be free from abuse and exploitation;
13-19 (2) to safe, decent, and clean conditions;
13-20 (3) to be treated with courtesy, consideration, and
13-21 respect;
13-22 (4) to not be subjected to discrimination based on
13-23 age, race, religion, sex, nationality, or disability and to
13-24 practice the resident's own religious beliefs;
13-25 (5) to place in the resident's room an electronic
13-26 monitoring device that is owned and operated by the resident or
14-1 provided by the resident's guardian or legal representative;
14-2 (6) to privacy, including privacy during visits and
14-3 telephone calls;
14-4 (7) [(6)] to complain about the institution and to
14-5 organize or participate in any program that presents residents'
14-6 concerns to the administrator of the institution;
14-7 (8) [(7)] to have information about the resident in
14-8 the possession of the institution maintained as confidential;
14-9 (9) [(8)] to retain the services of a physician the
14-10 resident chooses, at the resident's own expense or through a health
14-11 care plan, and to have a physician explain to the resident, in
14-12 language that the resident understands, the resident's complete
14-13 medical condition, the recommended treatment, and the expected
14-14 results of the treatment;
14-15 (10) [(9)] to participate in developing a plan of
14-16 care, to refuse treatment, and to refuse to participate in
14-17 experimental research;
14-18 (11) [(10)] to a written statement or admission
14-19 agreement describing the services provided by the institution and
14-20 the related charges;
14-21 (12) [(11)] to manage the resident's own finances or
14-22 to delegate that responsibility to another person;
14-23 (13) [(12)] to access money and property that the
14-24 resident has deposited with the institution and to an accounting of
14-25 the resident's money and property that are deposited with the
14-26 institution and of all financial transactions made with or on
15-1 behalf of the resident;
15-2 (14) [(13)] to keep and use personal property, secure
15-3 from theft or loss;
15-4 (15) [(14)] to not be relocated within the
15-5 institution, except in accordance with standards adopted by the
15-6 department under Section 242.403;
15-7 (16) [(15)] to receive visitors;
15-8 (17) [(16)] to receive unopened mail and to receive
15-9 assistance in reading or writing correspondence;
15-10 (18) [(17)] to participate in activities inside and
15-11 outside the institution;
15-12 (19) [(18)] to wear the resident's own clothes;
15-13 (20) [(19)] to discharge himself or herself from the
15-14 institution unless the resident is an adjudicated mental
15-15 incompetent;
15-16 (21) [(20)] to not be discharged from the institution
15-17 except as provided in the standards adopted by the department under
15-18 Section 242.403; and
15-19 (22) [(21)] to be free from any physical or chemical
15-20 restraints imposed for the purposes of discipline or convenience,
15-21 and not required to treat the resident's medical symptoms.
15-22 SECTION 3. Section 242.653, Health and Safety Code, is
15-23 amended by adding Subsection (f) to read as follows:
15-24 (f) The committee shall monitor the implementation of
15-25 Subchapter R and study the impact of that law on the department,
15-26 institutions, and residents.
16-1 SECTION 4. The Texas Department of Human Services shall
16-2 devise a procedure under which current residents of convalescent
16-3 and nursing homes and related institutions, or, when appropriate,
16-4 another person on a resident's behalf, are encouraged to sign the
16-5 form that is required to be signed on admission under Section
16-6 242.844, Health and Safety Code, as added by this Act.
16-7 SECTION 5. This Act takes effect immediately if it receives
16-8 a vote of two-thirds of all the members elected to each house, as
16-9 provided by Section 39, Article III, Texas Constitution. If this
16-10 Act does not receive the vote necessary for immediate effect, this
16-11 Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 177 passed the Senate on
April 10, 2001, by the following vote: Yeas 29, Nays 0, one
present, not voting; and that the Senate concurred in House
amendment on May 24, 2001, by the following vote: Yeas 30, Nays 0,
one present, not voting.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 177 passed the House, with
amendment, on May 16, 2001, by the following vote: Yeas 139,
Nays 0, three present, not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor