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A BILL TO BE ENTITLED
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AN ACT
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relating to an audio recording device pilot program for certain |
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Department of Family and Protective Services employees |
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investigating a report of child abuse or neglect; creating a |
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criminal offense; authorizing a fee. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 40, Human Resources Code, is amended by |
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adding Subchapter D to read as follows: |
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SUBCHAPTER D. AUDIO RECORDING DEVICE PILOT PROGRAM |
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Sec. 40.101. DEFINITIONS. In this subchapter: |
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(1) "Audio recording device" means a device that is |
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capable of recording audio or transmitting unedited audio. |
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(2) "Pilot program" means the audio recording device |
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pilot program for department employees established under this |
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chapter. |
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(3) "Private space" has the meaning assigned by |
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Section 1701.651, Occupations Code. |
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Sec. 40.102. PILOT PROGRAM. The department shall establish |
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a pilot program to provide audio recording devices to department |
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employees in Bexar County to evaluate the costs of implementing a |
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statewide audio recording device program, including all known |
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equipment costs and costs for data storage. |
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Sec. 40.103. INTERAGENCY CONTRACTS. The department may |
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enter into an interagency contract to receive audio recording |
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device services and have the identified operations performed |
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through a program established by the Department of Information |
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Resources. |
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Sec. 40.104. AUDIO RECORDING DEVICE POLICY. (a) As part of |
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the pilot program, the department shall adopt a policy ensuring |
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that an audio recording device is activated only when investigating |
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a report of child abuse or neglect and must include: |
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(1) guidelines for when a department employee should |
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activate an audio recording device or discontinue an audio |
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recording currently in progress, considering the need for privacy |
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in certain situations and at certain locations; |
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(2) provisions relating to data retention, including a |
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provision requiring the retention of an audio recording for a |
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minimum period of 90 days; |
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(3) provisions relating to storage of an audio |
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recording, creation of backup copies of an audio recording, and |
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maintenance of data security; |
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(4) guidelines for public access, through open records |
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requests, to an audio recording that is public information; |
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(5) provisions entitling a department employee to |
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access any audio recording of an incident involving the department |
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employee before the department employee is required to make a |
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statement about the incident; |
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(6) procedures for supervisory or internal review; and |
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(7) the handling and documenting of equipment and |
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malfunctions of equipment. |
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(b) A policy described by Subsection (a) may not require a |
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department employee to keep an audio recording device activated for |
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the entire period of the department employee's shift. |
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(c) A policy adopted under this section must be consistent |
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with the Federal Rules of Evidence and Texas Rules of Evidence. |
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Sec. 40.105. TRAINING. (a) Before the department may |
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operate the pilot program, the department must provide training to: |
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(1) employees who will use audio recording devices; |
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and |
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(2) any other personnel who will come into contact |
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with audio data obtained from the use of an audio recording device. |
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(b) The department shall develop a curriculum for a training |
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program under this section. |
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Sec. 40.106. RECORDING INTERACTIONS WITH THE PUBLIC. (a) A |
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department employee equipped with an audio recording device shall |
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act in a manner that is consistent with the policy of the department |
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with respect to when and under what circumstances an audio |
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recording device must be activated. |
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(b) A department employee who does not activate an audio |
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recording device in responding to an investigation of child abuse |
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or neglect must include in the employee's documentation or |
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otherwise note in the child's case file the reason for not |
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activating the audio recording device. |
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(c) Any justification for failing to activate the audio |
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recording device because it is unsafe, unrealistic, or |
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impracticable is based on whether a reasonable department employee |
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under the same or similar circumstances would have made the same |
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decision. |
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Sec. 40.107. USE OF PERSONAL EQUIPMENT. A department |
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employee who is on duty may only use an audio recording device that |
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is issued and maintained by the department. |
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Sec. 40.108. NOTIFICATION OF AUDIO RECORDING DEVICE. (a) |
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Before conducting an interview in an investigation of a report of |
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child abuse or neglect, a department employee shall notify the |
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person the employee is interviewing that the department employee is |
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using an audio recording device. |
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(b) The department may develop a form for the notification |
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required by Subsection (a). |
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Sec. 40.109. OFFENSE. (a) A department employee commits an |
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offense if: |
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(1) the employee releases a recording created with an |
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audio recording device under this subchapter without permission of |
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the department; or |
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(2) the employee fails to provide the notice required |
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by Section 40.108. |
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(b) An offense under this section is a Class A misdemeanor. |
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Sec. 40.110. RECORDINGS AS EVIDENCE. (a) Except as |
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provided by Subsection (b), an audio recording created with an |
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audio recording device and documenting an incident that is related |
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to an administrative or criminal investigation of a department |
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employee may not be deleted, destroyed, or released to the public |
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until all criminal matters have been finally adjudicated and all |
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related administrative investigations have concluded. |
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(b) The department may release to the public a recording |
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described by Subsection (a) if the department determines that the |
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release furthers the department's purpose. |
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Sec. 40.111. RELEASE OF INFORMATION RECORDED BY AUDIO |
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RECORDING DEVICE. (a) A member of the public is required to provide |
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the following information when submitting a written request to the |
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department for information recorded by an audio recording device: |
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(1) the date and approximate time of the recording; |
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(2) the specific location where the recording |
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occurred; and |
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(3) the name of one or more persons known to be a |
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subject of the recording. |
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(b) A failure to provide all of the information required by |
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Subsection (a) to be part of a request for recorded information does |
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not preclude the requestor from making a future request for the same |
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recorded information. |
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(c) Except as provided by Subsection (d), information |
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recorded by an audio recording device and held by the department |
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under this subchapter is not subject to the requirements of Section |
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552.021, Government Code. |
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(d) Information that is or could be used as evidence in a |
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criminal prosecution is subject to the requirements of Section |
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552.021, Government Code. |
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(e) The department may: |
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(1) seek to withhold information subject to Subsection |
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(d) in accordance with procedures provided by Section 552.301, |
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Government Code; |
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(2) assert any exceptions to disclosure in Chapter |
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552, Government Code, or other law; or |
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(3) release information requested in accordance with |
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Subsection (a) after the department redacts any information made |
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confidential under Chapter 552, Government Code, or other law. |
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(f) The department may not release any portion of a |
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recording made in a private space, or of a recording involving the |
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investigation of conduct that constitutes a misdemeanor punishable |
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by fine only and does not result in arrest, without written |
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authorization from the person who is the subject of that portion of |
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the recording or, if the person is deceased, from the person's |
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authorized representative. |
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(g) The attorney general shall set a proposed fee to be |
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charged to members of the public who seek to obtain a copy of a |
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recording under this section. The fee amount must be sufficient to |
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cover the cost of reviewing and making the recording. The |
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department may provide a copy without charge or at a reduced charge |
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if the department determines that waiver or reduction of the charge |
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is in the public interest. |
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(h) A recording is confidential and excepted from the |
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requirements of Chapter 552, Government Code, if the recording: |
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(1) was not required to be made under this subchapter |
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or another law or under a policy adopted by the department; and |
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(2) does not relate to a department purpose. |
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Sec. 40.112. AUDIO RECORDING DEVICE RECORDINGS; REQUEST FOR |
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ATTORNEY GENERAL DECISION. (a) Notwithstanding Section 552.301(b), |
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Government Code, a governmental body's request for a decision from |
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the attorney general about whether a requested audio recording |
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device recording falls within an exception to public disclosure is |
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considered timely if made not later than the 20th business day after |
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the date of receipt of the written request. |
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(b) Notwithstanding Section 552.301(d), Government Code, a |
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governmental body's response to a requestor regarding a requested |
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audio recording device recording is considered timely if made not |
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later than the 20th business day after the date of receipt of the |
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written request. |
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(c) Notwithstanding Section 552.301(e), Government Code, a |
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governmental body's submission to the attorney general of the |
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information required by that subsection regarding a requested audio |
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recording device recording is considered timely if made not later |
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than the 25th business day after the date of receipt of the written |
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request. |
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(d) Notwithstanding Section 552.301(e-1), Government Code, |
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a governmental body's submission to a requestor of the information |
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required by that subsection regarding a requested audio recording |
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device recording is considered timely if made not later than the |
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25th business day after the date of receipt of the written request. |
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Sec. 40.113. PRODUCTION OF AUDIO RECORDING DEVICE RECORDING |
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IN RESPONSE TO VOLUMINOUS PUBLIC INFORMATION REQUESTS. (a) |
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Notwithstanding Section 552.221(d), Government Code, if the |
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department receives a voluminous request in accordance with Section |
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40.111(a), the department is considered to have promptly produced |
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the information for purposes of Section 552.221, Government Code, |
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if the department takes the actions required under Section 552.221, |
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Government Code, before the 21st business day after the date of |
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receipt of the written request. |
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(b) For purposes of this section, "voluminous request" |
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includes: |
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(1) a request for audio recording device recordings |
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from more than five separate incidents; |
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(2) more than five separate requests for audio |
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recording device recordings from the same person in a 24-hour |
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period, regardless of the number of incidents included in each |
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request; or |
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(3) a request or multiple requests from the same |
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person in a 24-hour period for audio recording device recordings |
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that, taken together, constitute more than five total hours of |
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audio recordings. |
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Sec. 40.114. REPORT. Not later than September 1, 2022, the |
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department shall prepare and submit a written report on the pilot |
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program to the governor, the lieutenant governor, the speaker of |
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the house of representatives, and each member of the legislature. |
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The report must include: |
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(1) an evaluation of the interaction between |
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department employees involved in the pilot program and the public; |
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(2) an evaluation of the extent to which the |
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department policies regarding audio recording devices were |
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followed during the pilot program; and |
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(3) a recommendation on whether the pilot program |
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should continue, be expanded, or be terminated. |
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Sec. 40.115. EXPIRATION. This chapter expires September 1, |
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2023. |
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SECTION 2. This Act takes effect September 1, 2019. |