87R9168 YDB/JSC-D

By: Paxton S.B. No. 1952

A BILL TO BE ENTITLED

AN ACT

relating to the capture and use of an individual's biometric identifiers, specimen, or genetic information by a governmental body or peace officer or by a person for commercial purposes.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Title 11, Business & Commerce Code, is amended to read as follows:

TITLE 11. PERSONAL [IDENTITY] INFORMATION

SECTION 2. The heading to Subtitle A, Title 11, Business & Commerce Code, is amended to read as follows:

SUBTITLE A. IDENTIFYING AND OTHER PERSONAL INFORMATION

SECTION 3. The heading to Chapter 503, Business & Commerce Code, is amended to read as follows:

CHAPTER 503. BIOMETRIC IDENTIFIERS AND COLLECTION OF SPECIMEN FROM

INDIVIDUALS FOR DIAGNOSTIC PURPOSES

SECTION 4. The heading to Section 503.001, Business & Commerce Code, is amended to read as follows:

Sec. 503.001. CAPTURE OR USE OF BIOMETRIC IDENTIFIER; COLLECTION OR USE OF SPECIMEN.

SECTION 5. Section 503.001, Business & Commerce Code, is amended by amending Subsections (a), (b), and (c) and adding Subsections (c-3) and (c-4) to read as follows:

(a) In this section:

(1) "Biometric[, "biometric] identifier" means a retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry.

(2) "Specimen" means a sample of an individual's blood, urine, or other bodily fluid or tissue taken for scientific analysis to detect or diagnose a disease.

(b) A person may not capture a biometric identifier of or collect a specimen from an individual for a commercial purpose unless the person:

(1) informs the individual before capturing the biometric identifier or collecting the specimen; and

(2) receives the individual's consent to capture the biometric identifier or collect the specimen.

(c) A person who possesses a biometric identifier or specimen of an individual that is captured or collected for a commercial purpose:

(1) may not sell, lease, or otherwise disclose the biometric identifier or specimen test results to another person unless:

(A) the individual consents to the disclosure for identification purposes in the event of the individual's disappearance or death;

(B) the disclosure of a biometric identifier completes a financial transaction that the individual requested or authorized;

(C) the disclosure is required or permitted by a federal statute or by a state statute other than Chapter 552, Government Code; or

(D) the disclosure is made by or to a law enforcement agency for a law enforcement purpose in response to a warrant;

(2) shall store, transmit, and protect from disclosure the biometric identifier or specimen test results using reasonable care and in a manner that is the same as or more protective than the manner in which the person stores, transmits, and protects any other confidential information the person possesses; and

(3) shall destroy the biometric identifier or specimen within a reasonable time, but not later than the first anniversary of the date the purpose for collecting the identifier or specimen expires, except as provided by Subsection (c-1).

(c-3) A person who captures a biometric identifier of or collects a specimen from an individual for a commercial purpose shall provide to the individual information on:

(1) the type of technology or scientific testing to be used on the identifier or specimen;

(2) the purpose of and method for capturing or collecting the identifier or specimen; and

(3) the method for storing data related to the captured or collected identifier or specimen.

(c-4) A person who collects a specimen from an individual to test for a specific disease may not use or analyze the specimen for a purpose unrelated to the test unless the individual consents to the use for another purpose.

SECTION 6. Chapter 18, Code of Criminal Procedure, is amended by adding Article 18.25 to read as follows:

Art. 18.25. WARRANTS FOR GENETIC INFORMATION FROM CERTAIN BUSINESSES. (a) This article applies to a business that collects and analyzes genetic information to provide information about an individual's genetic traits or biological relationships.

(b) A peace officer may require a business described by Subsection (a) to provide the genetic information of a customer of the business by obtaining a warrant under this chapter or by obtaining the consent of the customer.

(c) A peace officer who obtains a warrant with respect to genetic information held by a business described by Subsection (a) may apply to the court issuing the warrant for an order commanding the business to whom the warrant is directed not to disclose to any person the existence of the warrant. The order is effective for the period the court considers appropriate. The court shall enter the order under this subsection if the court determines that there is reason to believe that notification of the existence of the warrant will lead to an adverse result, including:

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of a potential witness; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

(d) Unless an order is issued under Subsection (c), the peace officer who executes a warrant for a customer's genetic information shall notify the customer whose genetic information is the subject of the warrant of the existence of the warrant.

SECTION 7. The heading to Chapter 560, Government Code, is amended to read as follows:

CHAPTER 560. BIOMETRIC IDENTIFIER AND GENETIC INFORMATION

SECTION 8. Section 560.001, Government Code, is amended by amending Subdivision (1) and adding Subdivisions (3) and (4) to read as follows:

(1) "Biometric identifier" means any measurement of the human body or its movement that is used to attempt to uniquely identify or authenticate the identity of a person, including a blood sample, hair sample, skin sample, body scan, retina or iris scan, fingerprint, voiceprint, or record of hand or face geometry.

(3) "Genetic information" means information that is:

(A) obtained from or based on a scientific or medical determination of the presence or absence in an individual of a genetic characteristic; or

(B) derived from the results of a genetic test of an individual's genes, gene products, or chromosomes.

(4) "Genetic test" has the meaning assigned by Section 546.001, Insurance Code.

SECTION 9. Chapter 560, Government Code, is amended by adding Section 560.0015 to read as follows:

Sec. 560.0015. STATUTORY AUTHORITY REQUIRED. (a) A governmental body may not capture or possess a biometric identifier of an individual or require a biometric identifier as a prerequisite for providing a governmental service to the individual unless the governmental body:

(1) has specific, explicit statutory authority that:

(A) allows the governmental body to:

(i) capture or possess the individual's biometric identifier; or

(ii) require a biometric identifier as a prerequisite for providing a governmental service to the individual; or

(B) allows the governmental body to require and obtain the written consent of the individual or the individual's legal guardian before:

(i) capturing or possessing the individual's biometric identifier; or

(ii) requiring a biometric identifier as a prerequisite for providing a governmental service to the individual;

(2) obtains the voluntary, written consent of the individual or the individual's legal guardian;

(3) is a health care provider or health care facility that captures, possesses, or requires the biometric identifier while providing health care services to the individual; or

(4) is a criminal justice agency, as defined by Article 66.001, Code of Criminal Procedure, that captures, possesses, or requires the biometric identifier while engaged in the administration of criminal justice, as defined by that article.

(b) For purposes of Subsection (a), Subchapter B, Chapter 33, Health and Safety Code, is specific, explicit statutory authority under Subsection (a)(1)(A)(i) to capture or possess an individual's biometric identifier in the conduct of newborn screening as provided by that subchapter.

SECTION 10. Chapter 560, Government Code, is amended by adding Sections 560.004, 560.005, 560.006, and 560.007 to read as follows:

Sec. 560.004. DESTRUCTION OF SAMPLE GENETIC MATERIAL; EXCEPTIONS. A governmental body shall promptly destroy a sample of genetic material obtained from an individual for a genetic test after the purpose for which the sample was obtained is accomplished unless:

(1) the sample is retained under a court order;

(2) the individual authorizes retention of the sample for medical treatment or scientific research;

(3) the sample was obtained for research authorized by an institutional review board and retention of the sample is:

(A) under a requirement the institutional review board imposes on a specific research project; or

(B) authorized by the research participant with institutional review board approval under federal law; or

(4) the sample was obtained for a screening test prescribed by the Department of State Health Services under Section 33.011, Health and Safety Code, and performed by that department or a laboratory approved by that department.

Sec. 560.005. CONFIDENTIALITY OF GENETIC INFORMATION. (a) Except as provided by Sections 560.006(a) and (b), genetic information is confidential and privileged regardless of the source of the information.

(b) A governmental body that holds an individual's genetic information may not disclose or be compelled to disclose, by subpoena or otherwise, that information unless the disclosure is specifically authorized by the individual as provided by Section 560.007.

(c) This section applies to a redisclosure of genetic information by a secondary recipient of the information after disclosure of the information by an initial recipient. Except as provided by Section 560.006(b), a governmental body may not redisclose genetic information unless the redisclosure is consistent with the disclosures authorized by the tested individual under an authorization executed under Section 560.007.

Sec. 560.006. EXCEPTIONS TO CONFIDENTIALITY. (a) Subject to Subchapter G, Chapter 411, genetic information may be disclosed without an authorization under Section 560.007 if the disclosure is:

(1) authorized under a state or federal criminal law relating to:

(A) the identification of individuals; or

(B) a criminal or juvenile proceeding, an inquest, or a child fatality review by a multidisciplinary child-abuse team;

(2) required under a specific order of a state or federal court;

(3) for the purpose of establishing paternity as authorized under a state or federal law;

(4) for the purpose of providing genetic information of a decedent and the information is disclosed to the blood relatives of the decedent for medical diagnosis; or

(5) for the purpose of identifying a decedent.

(b) A governmental body may redisclose genetic information without an authorization under Section 560.007 for actuarial or research studies if:

(1) a tested individual could not be identified in any actuarial or research report; and

(2) any materials that identify a tested individual are returned or destroyed as soon as reasonably practicable.

(c) A redisclosure authorized under Subsection (b) may contain only genetic information reasonably necessary to accomplish the purpose for which the information is disclosed.

Sec. 560.007. AUTHORIZED DISCLOSURE. An individual or an individual's legal representative may authorize disclosure of the individual's genetic information by submitting a statement that:

(1) is written in plain language and is signed by the individual or legal representative;

(2) is dated;

(3) contains a specific description of the information to be disclosed;

(4) identifies or describes each person authorized to disclose the genetic information;

(5) identifies or describes the individuals or entities to whom the disclosure or subsequent redisclosure of the genetic information may be made;

(6) describes the specific purpose of the disclosure; and

(7) advises the individual or legal representative that the individual's authorized representative is entitled to receive a copy of the authorization.

SECTION 11. Section 33.012(a), Health and Safety Code, is amended to read as follows:

(a) Screening tests may not be administered to a newborn child whose parents, managing conservator, or guardian objects to [on the ground that] the tests [conflict with the religious tenets or practices of an organized church of which they are adherents].

SECTION 12. Article 18.25, Code of Criminal Procedure, as added by this Act, applies only to a warrant issued on or after the effective date of this Act.

SECTION 13. The changes in law made by this Act apply only to a biometric identifier captured, a specimen collected, or genetic information obtained or to a biometric identifier, a specimen, or genetic information requested on or after the effective date of this Act. A biometric identifier, a specimen, or genetic information captured, collected, obtained, or requested before that date is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 14. This Act takes effect September 1, 2021.