Texas Video Surveillance Law Overview
The state of Texas has 18 laws related to video surveillance, or 8% of the total number of relevant laws. These laws fall into categories including:
- Video surveillance on public highways.
- A reasonable expectation of privacy under state law in a recording.
- Privacy in face of video with sound and audio.
- The automated process of video surveillance.
- Records relating to a video surveillance warrant or court order.
- Legal action, causing injury, against a person in a video.
- Provisions about the execution of videos on land.
- A Texas State public information act, chapter 552.
The Texas Legislature defines general video surveillance rules and regulations facilitated by law on a local level . The laws – generally speaking – apply in public places as well as private, without unreasonable treatment of individuals involved. Several laws contain certain exemptions, including legal action against a person from personal recordings, while others define what constitutes an injury for the purpose of invoking the law.
No law in Texas pertains specifically to video surveillance. The aforementioned laws included define the scope of video surveillance as it pertains to a certain relevant act, such as injuring a person in a video recording, the requesting process of executing a recorded video from a warrant grievances, or the like.
Texas Penal Code Video Surveillance Statutes
The Texas Penal Code addresses video surveillance in § 16.02(a)(4)(A) and (B):
"(a) A person commits an offense if, with intent to commit an offense, he:
(4) installs an electronic, mechanical, or other surveillance device in a bathroom or changing room; or
(5) installs or uses an electronic, mechanical, or other surveillance device to observe, capture, or transmit an image of another person without that person’s consent, while the other person is in an area with a reasonable expectation of privacy and the device is not a security or surveillance device used to observe, capture, or transmit an image only on a computer or computer network owned or leased by the user."
It’s important to understand that § 16.02 has criminal implications and can be enforced by the police. So, if you a local law enforcement official asks you to remove your security cameras from your property because something has been captured that violates the law, this would include violation of the Penal Code.
In short, the Penal Code is a law enforcement tool addressing proposed criminal actions and can go so far as to make video surveillance an offense that entails up to 1-2 years’ confinement and a fine of up to $4000.00.
The Consent Issue
Most states (49 to be exact) fall under the legal category of "one-party consent," meaning that only one person in a conversation or phone call needs to be informed that they’re being recorded. However, Texas is not one of those states. Under the Texas Penal Code § 16.02, wire and oral communication can only be recorded and/or overheard from an electronic device if each participating party, including both the person recording and the person/people being recorded, consents to the recording.
What Does This Mean? This is a pretty simple statute to understand, but it does make alternative surveillance techniques a little dicier than typical video recording. Essentially, if you’re trying to record a phone call, everyone on the phone has to know that the conversation is being recorded. And on a face-to-face basis, both the person doing the recording and the person being recorded needs to know they’re being recorded.
Where Can You Not Get the Consent? So where does this leave us? It means that your typical business video surveillance practices are not illegal in the state of Texas, because each person in the video feed knows they’re being recorded. The only time this law is invoked in the commercial sector is if you’re recording an employee without their knowledge. For instance, if a restaurant owner was recording kitchen staff without their consent, he could face legal repercussions in the state of Texas. Generally speaking, unless you’re trying to record an oral phone conversation or a person in your business without their knowledge, you should be good to go.
Video Surveillance in the Workplace Environment
Employers are permitted to install video cameras in their workplaces in Texas unless the cameras are specifically placed in areas where an expectation of privacy exists, such as restrooms or locker rooms. This means that employers may monitor their entire work floor via video camera without having to notify their employees that the cameras are recording them.
While Texas video surveillance law does not require an employer to post a warning that its office or workplace is being monitored by video cameras, employees should be aware that they probably don’t have much of an expectation of privacy in their workplace or the work business property in general.
Video Surveillance by Homeowners and Renters
As the competition for renters in the Austin area continues to drive rental prices sky-high, landlords are investing in video surveillance systems to help protect their investments. The question arises whether a landlord should use an IP surveillance system for their apartment rental. A landlord must be very careful with using video surveillance in a public space. So the question becomes "are residential tenants public or private spaces in Texas?"
Texas law differs slightly from the rest of the United States in that according to the Texas Supreme Court, a tenant’s apartment is not a private place for privacy purposes. The history and evolution of the law across the US has been that as phones and cable became prevalent in American society, courts began to recognize that an apartment is a semi-public place, open to invited guests and strangers alike. So a tenant does not have a unilateral right to privacy in an apartment unit. The U.S. Supreme Court went so far as to state, "In stark contrast to the curtilage of the home, the apartment building’s hallways and stairwells bear a nearby past, for they are accessible to all who enter the building."
So where does this leave the landlord? If a landlord installs video surveillance security systems, there is no specific Texas law requiring landlord disclosure of the surveillance system to tenants. In Austin, landlords must possess an ALSC license to install and monitor security systems. An ALSC license is an alarm system license issued by the Texas Private Security Board or the Texas Commission on Private and Büreau of Private Security. However , whether or not a landlord discloses the surveillance system to tenants it is required to follow common law principles. This means the landlord should not harass tenants by conduct of the surveillance systems. For example, monitoring partial nudity (but not full nudity) is typically used in locker rooms to search for hidden illicit activity, but would not be appropriate for monitoring an apartment complex pool area.
An apartment complex presents an interesting balance of interests. Apartment complexes are public places offering a service to the public: a place for human habitation. So the question becomes whether a complex is a business dealing with a public style interest, or a semi-private place. The courts have mostly settled on the former, but there are court opinions indicating the latter. Meaning monitoring a public space at an apartment complex by management is more legally sound than monitoring a private place like a living quarters.
What if the tenant decides to install their own surveillance systems in their unit? Tenants will typically seek to monitor their own living quarters through apartment unit security cameras. This practice is common, and most apartment leases provide that tenants must not alter their apartment or common areas without consent. an apartment owner can require the tenant to first seek permission from the owner to install the system. Additionally, the owner can request that the tenant not post signs stating and identifying the use of the camera system. If a tenant fails to follow the lease terms and later removes the system, it could constitute a lease violation subject to possible eviction.
Use of Video Surveillance Footage in Court
In Texas, video surveillance footage can be a powerful tool in legal proceedings such as criminal cases, civil litigation, and even family law matters. However, the use of video footage in legal cases is subject to strict standards for admissibility. Texas courts have held that, in order to be admissible, surveillance footage must be relevant and reliable. The video must also be properly authenticated, meaning that a witness must be able to testify that the footage is a true and accurate representation of the subject matter it purports to show.
In practice, this means that the person who set up the video surveillance camera may need to testify about the circumstances in which the footage was recorded. This might include details such as the date and time that the camera was set up, the duration for which it was recording, and what exactly the camera was intended to capture. In some cases, experts may also be called upon to authenticate the video by verifying that the footage shows an unaltered representation of the events it depicts.
Texas courts have previously held that video footage which is relevant to the case and properly authenticated may be admitted as evidence. For example, in the case of Harris County Hospital District v. Craft, the Court of Appeals of Texas held that video footage from a hospital examination room showing a plaintiff falling from an examination table was properly authenticated and relevant to a premises liability lawsuit.
Once the video footage is authenticated, it may then be admitted into evidence and shown to the judge or jury in a court trial or presented during a deposition. However, the admissibility of video footage is not automatic and will be determined on a case-by-case basis by the court.
Texas Video Surveillance Offenses and Penalties
Beyond the right to come out of your door and take a video, the laws and penalties around Texas video surveillance are quite numerous. This blog post will provide the most pertinent statutes and discuss the penalties for numerous types of violations.
Texas Penal Code § 43.03 Covering or obscuring of a device for observing or recording by photographic or electronic means
(a)(she/he) intentionally or knowingly conceals, covers or obscures a device for observing or recording by photographic or electronic means. We see this infraction very often in courts that do not allow any videos in courtrooms.
Penalties
(b) An offense under this section is a Class B misdemeanor. If there are two or more previous convictions, it is a Class A misdemeanor
Texas Penal Code § 14.05 Taking of photograph or video recording in correctional or psychological facility
(a) In conjunction with an investigation or prosecution of an offense, a law enforcement agency or a prosecuting attorney may use a photograph or video record from a correctional facility or a mental hospital to the same extent as a photograph or video record made by the agency or attorney for the purpose of conducting such an investigation or prosecution.
(b) A photograph or video recording made in violation of the rights of a person charged with or convicted of a misdemeanor or felony is inadmissible as evidence in any civil, criminal, or juvenile proceeding.
(c) A public employee who uses his or her access to a correctional facility or a mental hospital to manufacture or otherwise create a photograph or video recording of the interior of the correctional facility or mental hospital with the intent to use the photograph or video recording for an unlawful purpose is subject to Sections 39.02 and 39.03, Penal Code, and is also subject to removal from employment.
(d) A former public employee who uses his or her access to a correctional facility or a mental hospital to manufacture or otherwise create a photograph or video recording of the interior of the correctional facility or mental hospital is subject to Section 39.02, Penal Code, and guilty of an offense if the person:
(1) possesses or creates the photograph or video while a public employee; and
(2) uses or intends to use the photograph or video recording for an unlawful purpose after leaving that position.
Penalties
(b) An offense under this section is a Class A misdemeanor.
(c) A public employee is subject to Section 39.02, Penal Code, and is subject to removal from employment. A former public employee is subject to Section 39.02, Penal Code, and is guilty of an offense under this section.
Texas Penal Code § 19.05 Aiding suicide (a) A person commits an offense if with intent to promote or assist the commission of suicide of another he
Penalties
Common infractions related to video recording and observation that could lead to these types of penalties include but are not limited to voyeurism, recordings in court without permission/in violation of court orders, cell phone or video camera access to locker rooms or other private areas where individuals have reasonable expectations of privacy, and the like.
Similar to the sex slave offences in Texas (destined to be at least a future blog post), statutes of limitations apply to video surveillance related crimes. Disregarding the minutia of specific dates, and whether certain offences carry 1-year, 2-year, 5-year, or 10-year statutes of limitations, the implications for victims or alleged victims of video surveillance, voyeurism or voyeuristic crimes are clear: it’s important to act quickly whenever anyone has been a victim of a crime involving video surveillance in Texas.
Tips for Business and Individual Compliance
No matter how experienced you may be with navigating the privacy landscape, it is always a good idea to double-check that your activities are above board. If you have any uncertainty, consulting an attorney or privacy professional is an excellent option. But if you’d like to tackle the Texas video surveillance laws yourself, consider the following tips:
Take Inventory of Video Surveillance
Make a list of all the video surveillance systems you have in place, making sure to include their location and purpose. This is particularly important for those with multiple sites and offices in multiple states or countries. Some cameras may be listed or thought to be covered by a single privacy policy when in fact your company has privacy policies for each state.
Review Privacy Policy Disclosures and Update to Comply with the Law
Many companies have privacy policies. However, not all policies comply with the law. While there are ASIC standards , your privacy policy should describe your company’s current practices regarding video surveillance in reasonable detail. At minimum, you should provide the following disclosures:
If you fail to provide these disclosures or do not keep them updated, you could face liability under both federal and state law.
Review Other Laws
Texas video surveillance laws are not the only laws worth considering. The Federal Trade Commission also does regular enforcement in this area, and noncompliance with Texas law does not affect FTC enforcement. Moreover, if you are subject to international requirements, consider reviewing the General Data Protection Regulation (GDPR) and other applicable requirements.
For More Guidance, Seek Help from Professionals
You should consult a qualified attorney to ensure you understand all of the potential implications of collecting and using video surveillance. A simple omission can lead to significant liability.