BILL ANALYSIS

C.S.S.B. 1398

By: Lucio

Public Education

Committee Report (Substituted)

BACKGROUND AND PURPOSE

Interested parties suggest that certain changes are needed to the law relating to placement and use of video cameras in certain self-contained classrooms or other settings providing special education services to protect the students in these settings while preserving a targeted approach to student safety. C.S.S.B. 1398 seeks to make those changes and ensure that the legislature's original intent is met and that the parents of some of Texas' most vulnerable children receive peace of mind.

CRIMINAL JUSTICE IMPACT

It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the commissioner of education in SECTION 1 of this bill.

ANALYSIS

C.S.S.B. 1398 amends the Education Code to limit the provision of equipment, including a video camera, for purposes of its placement and use in certain self-contained classrooms or other settings providing special education services, to the school or schools in the public school district or the open-enrollment charter school campus or campuses specified in the request for the equipment. The bill authorizes the following requests for equipment and specifies that such requests are in writing:

· a request by a parent of a child who receives special education services in one or more self-contained classrooms or other special education settings for the provision of equipment to the school or campus at which the child receives those services;

· a request by a board of trustees or governing body for the provision of equipment to one or more specified schools or campuses at which one or more children receive special education services in self-contained classrooms or other special education settings;

· a request by the principal or assistant principal of a school or campus at which one or more children receive special education services in self-contained classrooms or other special education settings for the provision of equipment to the principal's or assistant principal's school or campus; and

· a request by a staff member assigned to work with one or more children receiving special education services in self-contained classrooms or other special education settings for the provision of equipment to the school or campus at which the staff member works.

C.S.S.B. 1398 places the following conditions on the requirement that a school or campus that receives equipment as a result of a request to place, operate, and maintain one or more video cameras in special education settings in which a majority of the students in regular attendance are provided special education and related services and are assigned to one or more special education settings for at least 50 percent of the instructional day: a school or campus that receives equipment as a result of the request by a parent or staff member is required to place equipment only in classrooms or settings in which the parent's child is in regular attendance or to which the staff member is assigned, as applicable, and a school or campus that receives equipment as a result of the request by a board of trustees, governing body, principal, or assistant principal is required to place equipment only in classrooms or settings identified by the requestor, if the requestor limits the request to specific classrooms or settings.

C.S.S.B. 1398 requires each district or charter school to designate an administrator at the primary administrative office of the district or school with responsibility for coordinating the provision of equipment to schools and campuses in compliance with provisions concerning video surveillance of special education settings and provides for the submission and distribution of a written request for such equipment. The bill limits the period for which a school or campus that places a video camera in a classroom or other special education setting is required to operate and maintain the camera in the classroom or setting to the remainder of the school year in which the school or campus received the request unless the requestor withdraws the request in writing. The bill requires the school or campus, if for any reason the school or campus will discontinue operation of a video camera during a school year, to notify the parents of each student in regular attendance in the classroom or setting not later than the fifth school day before the date the operation of the video camera will be discontinued that operation of the video camera will not continue unless requested by a person eligible to make a request. The bill requires the school or campus to provide the same notice to those parents not later than the 10th school day before the end of each school year with regard to the operation of the video camera during the following school year.

C.S.S.B. 1398 includes among the areas of the classroom or other special education setting a video camera must be capable of covering, with regard to both video and audio, a room attached to the classroom or setting used for time-out. The bill creates an exception to the prohibition against visually monitoring the inside of a bathroom or any area in the classroom or other special education setting in which a student's clothes are changed for incidental coverage of a minor portion of a bathroom or changing area because of the layout of the classroom or setting. The bill expands the group of students whose parents must be provided written notice of the placement of a video camera in a classroom or other special education setting from each student receiving special education services to each student attending class or engaging in school activities in the classroom or setting. The bill changes the time before which this notice is to be provided from before a school or campus places a camera in a classroom or other special education setting to before a school or campus activates such a camera.

C.S.S.B. 1398 revises the authorization for a district employee or a parent or guardian of a student who is involved in an incident documented by the recording for which a complaint has been reported to the district, on request of the employee, parent, or guardian, respectively, to view a confidential video recording of a student released by a district or charter school by instead authorizing such viewing by an employee who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on the employee's request, and by a parent of a student who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the parent. The bill also revises the authorization for such viewing by a peace officer, a school nurse, a district or school administrator trained in de-escalation and restraint techniques as provided by commissioner of education rule, or a human resources staff member designated by a district board of trustees or a charter school's governing body in response to a complaint or an investigation of district or school personnel or a complaint of abuse committed by a student by instead authorizing such viewing by such a staff member designated in response to a report of an alleged incident or an investigation of district or school personnel or a report of alleged abuse committed by a student. The bill establishes that a contractor or employee performing job duties relating to the installation, operation, or maintenance of video equipment or the retention of video recordings who incidentally views a video recording is not in violation of confidentiality provisions applicable to such a recording.

C.S.S.B. 1398 reduces from six months to three months the amount of time a district or charter school is required to retain video recorded from a video camera placed in a special education setting but requires a district or charter school, if a person authorized to view a confidential recording of a student made in a special education setting requests to view a video recording from a video camera placed in such a setting, to retain the recording from the date of receipt of the request until the person has viewed the recording and a determination has been made as to whether the recording documents an alleged incident and, if the recording documents an alleged incident, to retain the recording until the alleged incident has been resolved, including the exhaustion of all appeals. The bill limits a violation of district or school policy believed to be documented by such a recording, and concerning which the recording may be used as part of a disciplinary action against district or school personnel, to a violation relating to the neglect or abuse of a student. The bill removes the student's guardian as an entity at whose request the recording must be released in a legal proceeding.

C.S.S.B. 1398 requires a district or charter school policy relating to the placement, operation, or maintenance of video cameras in special education settings to meet the following conditions:

· the policy must include information on how a person may appeal an action by the district or school that the person believes to be in violation of provisions relating to video surveillance of special education settings or a policy adopted in accordance with those provisions, including the appeals process under statutory provisions governing appeals to the commissioner;

· the policy must require that a district or charter school provide a response to a request for equipment in a special education setting not later than the seventh school business day after receipt of the request by the person to whom it must be submitted that authorizes the request or states the reason for denying the request;

· the policy must require that a school or a campus begin operation of a video camera not later than the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the request is authorized, with certain exceptions for parental requests relating to the following school year, and unless the Texas Education Agency (TEA) grants the district an extension of time;

· the policy must permit the parent of a student whose admission, review, and dismissal committee has determined that the student's placement for the following school year will be in a classroom or other special education setting in which a video camera may be placed to make a request for the video camera by the later of the date on which the current school year ends or the 10th school business day after the date of the placement determination by the admission, review, and dismissal committee; and

· if such a request relating to the following school year is made by a parent, the policy must require that a school or campus begin operation of a video camera not later than the later of the 10th school day of the fall semester or the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the date the request is made.

C.S.S.B. 1398 authorizes a district, parent, staff member, or administrator to request an expedited review by TEA of the district's denial of a request for a video camera in an eligible special education setting, of the district's request for an extension of time to begin operation of a video camera, or of the district's determination to not release a video recording to a person authorized to view a confidential recording made in such a setting. The bill requires TEA, if a district, parent, staff member, or administrator requests an expedited review, to notify all other interested parties of the request and to issue a preliminary judgment as to whether the district is likely to prevail on the issue under a full review by TEA. The bill requires the district to fully comply with provisions relating to video surveillance of special education settings if TEA determines that the district is not likely to prevail, notwithstanding an appeal of TEA's decision. The bill requires TEA to notify the requestor and the district, if the district is not the requestor, of such determination.

C.S.S.B. 1398 requires the commissioner to adopt rules relating to the expedited review process and authorizes the commissioner to adopt rules relating to an expedited review process for a charter school. The bill requires TEA to collect data relating to requests made under provisions relating to video surveillance of special education settings and actions taken by a district or charter school in response to such a request. The bill establishes that a video recording to which provisions relating to video surveillance of special education settings apply is a governmental record only for purposes of the offense of tampering with a governmental record and limits the applicability of those provisions to the placement, operation, and maintenance of a video camera in a self-contained classroom or other special education setting during the regular school year and extended school year services.

EFFECTIVE DATE

On passage, or, if the bill does not receive the necessary vote, September 1, 2017.

COMPARISON OF SENATE ENGROSSED AND SUBSTITUTE

While C.S.S.B. 1398 may differ from the engrossed in minor or nonsubstantive ways, the following comparison is organized and formatted in a manner that indicates the substantial differences between the engrossed and committee substitute versions of the bill.

SENATE ENGROSSED

HOUSE COMMITTEE SUBSTITUTE

SECTION 1. Section 29.022, Education Code, is amended by amending Subsections (a), (b), (c), (d), (e), (i), and (j) and adding Subsections (a-1), (a-2), (a-3), (c-1), (e-1), (i-1), (l), (m), (n), (o), (p), (q), and (r) to read as follows:

(a) In order to promote student safety, on receipt of a written request authorized under Subsection (a-1) [~~by a parent, trustee, or staff member~~], a school district or open-enrollment charter school shall provide equipment, including a video camera, to the [~~each~~] school or schools in the district or the [~~each~~] charter school campus or campuses specified in the request [~~in which a student who receives special education services in a self-contained classroom or other special education setting is enrolled~~]. A [~~Each~~] school or campus that receives equipment as provided by this subsection shall place, operate, and maintain one or more video cameras in [~~each~~] self-contained classrooms and [~~classroom or~~] other special education settings [~~setting~~] in which a majority of the students in regular attendance are[:

[~~(1)~~] provided special education and related services[;] and are

[~~(2)~~] assigned to one or more [a] self-contained classrooms [~~classroom~~] or other special education settings [~~setting~~] for at least 50 percent of the instructional day, provided that:

(1) a school or campus that receives equipment as a result of the request by a parent or staff member is required to place equipment only in classrooms or settings in which the parent's child is in regular attendance or to which the staff member is assigned, as applicable; and

(2) a school or campus that receives equipment as a result of the request by a board of trustees, governing body, principal, or assistant principal is required to place equipment only in classrooms or settings identified by the requestor, if the requestor limits the request to specific classrooms or settings subject to this subsection.

(a-1) For purposes of Subsection (a):

(1) a parent of a child who receives special education services in one or more self-contained classrooms or other special education settings may request in writing that equipment be provided to the school or campus at which the child receives those services;

(2) a board of trustees or governing body may request in writing that equipment be provided to one or more specified schools or campuses at which one or more children receive special education services in self-contained classrooms or other special education settings;

(3) the principal or assistant principal of a school or campus at which one or more children receive special education services in self-contained classrooms or other special education settings may request in writing that equipment be provided to the principal's or assistant principal's school or campus; and

(4) a staff member assigned to work with one or more children receiving special education services in self-contained classrooms or other special education settings may request in writing that equipment be provided to the school or campus at which the staff member works.

(a-2) Each school district or open-enrollment charter school shall designate an administrator at the primary administrative office of the district or school with responsibility for coordinating the provision of equipment to schools and campuses in compliance with this section.

(a-3) A written request must be submitted and acted on as follows:

(1) a parent, staff member, or assistant principal must submit a request to the principal or the principal's designee of the school or campus addressed in the request, and the principal or designee must provide a copy of the request to the administrator designated under Subsection (a-2);

(2) a principal must submit a request by the principal to the administrator designated under Subsection (a-2); and

(3) a board of trustees or governing body must submit a request to the administrator designated under Subsection (a-2), and the administrator must provide a copy of the request to the principal or the principal's designee of the school or campus addressed in the request.

(b) A school or campus that places a video camera in a classroom or other special education setting in accordance with Subsection (a) shall operate and maintain the video camera in the classroom or setting, as long as the classroom or setting continues to satisfy the requirements under Subsection (a), for the remainder of the school year in which the school or campus received the request, unless the requestor withdraws the request in writing. If for any reason a school or campus will discontinue operation of a video camera during a school year, not later than the fifth business day before the date the operation of the video camera will be discontinued, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue unless requested by a person eligible to make a request under Subsection (a-1). At the end of each school year, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue during the following school year unless a person eligible to make a request for the next school year under Subsection (a-1) submits a new request.

(1) covering all areas of the classroom or other special education setting, including a room attached to the classroom or setting used for time-out [~~except that the inside of a bathroom or any area in the classroom or setting in which a student's clothes are changed may not be visually monitored~~]; and

(2) recording audio from all areas of the classroom or other special education setting, including a room attached to the classroom or setting used for time-out.

(c-1) The inside of a bathroom or any area in the classroom or other special education setting in which a student's clothes are changed may not be visually monitored, except for incidental coverage of a minor portion of a bathroom or changing area because of the layout of the classroom or setting.

(d) Before a school or campus activates [~~places~~] a video camera in a classroom or other special education setting under this section, the school or campus shall provide written notice of the placement to all school or campus staff and to the parents of each [a] student attending class or engaging in school activities [~~receiving special education services~~] in the classroom or setting.

(e) Except as provided by Subsection (e-1), a [A] school district or open-enrollment charter school shall retain video recorded from a video camera placed under this section for at least three [~~six~~] months after the date the video was recorded.

(e-1) If a person described by Subsection (i) requests to view a video recording from a video camera placed under this section, a school district or open-enrollment charter school must retain the recording from the date of receipt of the request until the person has viewed the recording and a determination has been made as to whether the recording documents an alleged incident. If the recording documents an alleged incident, the district or school shall retain the recording until the alleged incident has been resolved, including the exhaustion of all appeals.

(i) A video recording of a student made according to this section is confidential and may not be released or viewed except as provided by this subsection or Subsection (i-1) or (j). A school district or open-enrollment charter school shall release a recording for viewing by:

(1) an [~~a school district~~] employee [~~or a parent or guardian of a student~~] who is involved in an alleged incident that is documented by the recording and [~~for which a complaint~~] has been reported to the district or school, on request of the employee[~~, parent, or guardian, respectively~~];

(2) a parent or guardian of a student who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the parent or guardian;

(3) appropriate Department of Family and Protective Services personnel as part of an investigation under Section 261.406, Family Code;

(4) [~~(3)~~] a peace officer, a school nurse, a district or school administrator trained in de-escalation and restraint techniques as provided by commissioner rule, or a human resources staff member designated by the board of trustees of the school district or the governing body of the open-enrollment charter school in response to a report of an alleged incident [~~complaint~~] or an investigation of district or school personnel or a report [~~complaint~~] of alleged abuse committed by a student; or

(5) [~~(4)~~] appropriate agency or State Board for Educator Certification personnel or agents as part of an investigation.

(i-1) A contractor or employee performing job duties relating to the installation, operation, or maintenance of video equipment or the retention of video recordings who incidentally views a video recording is not in violation of Subsection (i).

(j) If a person described by Subsection (i)(4) [~~(i)(3)~~] or (5) [~~(4)~~] who views the video recording believes that the recording documents a possible violation under Subchapter E, Chapter 261, Family Code, the person shall notify the Department of Family and Protective Services for investigation in accordance with Section 261.406, Family Code. If any person described by Subsection (i)(3) [~~(i)(2)~~], [~~(3), or~~] (4), or (5) who views the recording believes that the recording documents a possible violation of district or school policy, the person may allow access to the recording to appropriate legal and human resources personnel. A recording believed to document a possible violation of district or school policy may be used as part of a disciplinary action against district or school personnel and shall be released at the request of the student's parent or guardian in a legal proceeding. This subsection does not limit the access of a student's parent to a record regarding the student under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g) or other law.

(l) A district or school policy relating to the placement, operation, or maintenance of video cameras under this section must:

(1) include information on how a person may appeal an action by the district or school that the person believes to be in violation of this section, including the appeals process under Section 7.057;

(2) require that a school district or open-enrollment charter school provide a response to a request made under this section not later than the seventh school business day after receipt of the request by the person to whom it must be submitted under Subsection (a-3) that authorizes the request or states the reason for denying the request;

(3) except as provided by Subdivision (5), require that a school or a campus begin operation of a video camera in compliance with this section not later than the 45th school business day after the request is authorized unless the agency grants the district an extension of time;

(4) permit the parent or guardian of a student whose admission, review, and dismissal committee has determined that the student's placement for the following school year will be in a classroom or other special education setting in which a video camera may be placed under this section to make a request for the video camera by the later of:

(A) the date on which the current school year ends; or

(B) the 10th school business day after the date of the placement determination by the admission, review, and dismissal committee; and

(5) if a request is made by a parent or guardian in compliance with Subdivision (4), require that a school or campus begin operation of a video camera in compliance with this section not later than the later of:

(A) the 10th school day of the fall semester; or

(B) the 45th school business day after the date the request is made.

(m) A school district may request an expedited review by the agency of the district's:

(1) denial of a request made under this section;

(2) request for an extension of time to begin operation of a video camera under Subsection (l)(3); or

(3) determination to not release a video recording to a person described by Subsection (i).

(n) If a school district requests an expedited review under Subsection (m),

the agency shall issue a preliminary judgment as to whether the district is likely to prevail on the issue under a full review by the agency. If the agency determines that the district is not likely to prevail, the district must fully comply with this section notwithstanding an appeal of the agency's decision.

(o) The commissioner

may adopt rules relating to an expedited review process under Subsections (m) and (n) for an open-enrollment charter school.

(p) The agency shall collect data relating to requests made under this section and actions taken by a school district or open-enrollment charter school in response to a request, including the number of requests made, authorized, and denied.

(q) A video recording under this section is a governmental record only for purposes of Section 37.10, Penal Code.

(r) In this section:

(1) "School business day" means a day that campus or school district administrative offices are open.

(2) "Self-contained classroom" does not include a classroom that is a resource room instructional arrangement under Section 42.151.

(3) "Staff member" means a teacher, related service provider, paraprofessional, counselor, or educational aide assigned to work in a self-contained classroom or other special education setting.

(4) "Time-out" has the meaning assigned by Section 37.0021.

[~~(1)~~] provided special education and related services[;] and are

[~~(2)~~] assigned to one or more [a] self-contained classrooms [~~classroom~~] or other special education settings [~~setting~~] for at least 50 percent of the instructional day, provided that:

(a-1) For purposes of Subsection (a):

(a-3) A written request must be submitted and acted on as follows:

(2) a principal must submit a request by the principal to the administrator designated under Subsection (a-2); and

(b) A school or campus that places a video camera in a classroom or other special education setting in accordance with Subsection (a) shall operate and maintain the video camera in the classroom or setting, as long as the classroom or setting continues to satisfy the requirements under Subsection (a), for the remainder of the school year in which the school or campus received the request, unless the requestor withdraws the request in writing. If for any reason a school or campus will discontinue operation of a video camera during a school year, not later than the fifth school day before the date the operation of the video camera will be discontinued, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue unless requested by a person eligible to make a request under Subsection (a-1). Not later than the 10th school day before the end of each school year, the school or campus must notify the parents of each student in regular attendance in the classroom or setting that operation of the video camera will not continue during the following school year unless a person eligible to make a request for the next school year under Subsection (a-1) submits a new request.

(2) recording audio from all areas of the classroom or other special education setting, including a room attached to the classroom or setting used for time-out.

(2) a parent of a student who is involved in an alleged incident that is documented by the recording and has been reported to the district or school, on request of the parent;

(3) appropriate Department of Family and Protective Services personnel as part of an investigation under Section 261.406, Family Code;

(5) [~~(4)~~] appropriate agency or State Board for Educator Certification personnel or agents as part of an investigation.

(j) If a person described by Subsection (i)(4) [~~(i)(3)~~] or (5) [~~(4)~~] who views the video recording believes that the recording documents a possible violation under Subchapter E, Chapter 261, Family Code, the person shall notify the Department of Family and Protective Services for investigation in accordance with Section 261.406, Family Code. If any person described by Subsection (i)(3) [~~(i)(2)~~], [~~(3), or~~] (4), or (5) who views the recording believes that the recording documents a possible violation of district or school policy, the person may allow access to the recording to appropriate legal and human resources personnel. A recording believed to document a possible violation of district or school policy relating to the neglect or abuse of a student may be used as part of a disciplinary action against district or school personnel and shall be released at the request of the student's parent [~~or guardian~~] in a legal proceeding. This subsection does not limit the access of a student's parent to a record regarding the student under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g) or other law.

(l) A school district or open-enrollment charter school policy relating to the placement, operation, or maintenance of video cameras under this section must:

(1) include information on how a person may appeal an action by the district or school that the person believes to be in violation of this section or a policy adopted in accordance with this section, including the appeals process under Section 7.057;

(2) require that the district or school provide a response to a request made under this section not later than the seventh school business day after receipt of the request by the person to whom it must be submitted under Subsection (a-3) that authorizes the request or states the reason for denying the request;

(3) except as provided by Subdivision (5), require that a school or a campus begin operation of a video camera in compliance with this section not later than the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the request is authorized unless the agency grants an extension of time;

(4) permit the parent of a student whose admission, review, and dismissal committee has determined that the student's placement for the following school year will be in a classroom or other special education setting in which a video camera may be placed under this section to make a request for the video camera by the later of:

(A) the date on which the current school year ends; or

(B) the 10th school business day after the date of the placement determination by the admission, review, and dismissal committee; and

(5) if a request is made by a parent in compliance with Subdivision (4), unless the agency grants an extension of time, require that a school or campus begin operation of a video camera in compliance with this section not later than the later of:

(A) the 10th school day of the fall semester; or

(B) the 45th school business day, or the first school day after the 45th school business day if that day is not a school day, after the date the request is made.

(m) A school district, parent, staff member, or administrator may request an expedited review by the agency of the district's:

(1) denial of a request made under this section;

(2) request for an extension of time to begin operation of a video camera under Subsection (l)(3) or (5); or

(3) determination to not release a video recording to a person described by Subsection (i).

(n) If a school district, parent, staff member, or administrator requests an expedited review under Subsection (m), the agency shall notify all other interested parties of the request.

(o) If an expedited review has been requested under Subsection (m), the agency shall issue a preliminary judgment as to whether the district is likely to prevail on the issue under a full review by the agency. If the agency determines that the district is not likely to prevail, the district must fully comply with this section notwithstanding an appeal of the agency's decision. The agency shall notify the requestor and the district, if the district is not the requestor, of the agency's determination.

(p) The commissioner:

(1) shall adopt rules relating to the expedited review process under Subsections (m), (n), and (o), including standards for making a determination under Subsection (o); and

(2) may adopt rules relating to an expedited review process under Subsections (m), (n), and (o) for an open-enrollment charter school.

(q) The agency shall collect data relating to requests made under this section and actions taken by a school district or open-enrollment charter school in response to a request, including the number of requests made, authorized, and denied.

(r) A video recording under this section is a governmental record only for purposes of Section 37.10, Penal Code.

(s) This section applies to the placement, operation, and maintenance of a video camera in a self-contained classroom or other special education setting during the regular school year and extended school year services.

(t) In this section:

(1) "Parent" includes a guardian or other person standing in parental relation to a student.

(2) "School business day" means a day that campus or school district administrative offices are open.

(3) "Self-contained classroom" does not include a classroom that is a resource room instructional arrangement under Section 42.151.

(4) "Staff member" means a teacher, related service provider, paraprofessional, counselor, or educational aide assigned to work in a self-contained classroom or other special education setting.

(5) "Time-out" has the meaning assigned by Section 37.0021.

SECTION 2. 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, 2017.

SECTION 2. Same as engrossed version.