Texas Surveillance Camera Laws: An Overview
Looking through the lens of the law, Texas has rules, regulations, ordinances and more for a variety of issues surrounding camera operation and surveillance. However, most of the laws relating to use of surveillance cameras in Texas come down to basic right of privacy issues.
Federally, the so-called "one-party consent" statute (18 U.S.C. section 2511) prohibits the intentional interception of any interstate or foreign electronic communication through the use of a wire or radio or an automatic device. Because many surveillance cameras send data over the Internet, this federal statute can be triggered by any surveillance system. However, this statute allows for interception of a communication by a party to the conversation or by an individual with the consent of a party to the conversation. As such, activity by the owner/operator of a surveillance camera where the tapes/recordings are being viewed in the home of the owner of the surveillance camera is generally held in courts to be legal.
Texas law provides that it is illegal to either record or monitor physically invasive actions of another individual without the consent of that individual. Asking somebody else for consent is generally viewed as legal under Texas law.
Again, the catch is within one’s own home . Because surveillance cameras inside a dwelling have no substantial impact on the privacy of neighbors, people living nearby do not have the same expectation of privacy as they would outside their house, and as such, one does not need any kind of consent to install a camera inside one’s own house.
However, if anybody outside the home is caught on tape, the owner is likely to be prosecuted. A recent article noted that one man was actually prosecuted under this violation after his neighbor recorded his wife sunbathing in her yard.
Over and above the above regulations, those using surveillance cameras in Texas should be aware of possible local ordinances that apply to the use of surveillance cameras in their area. For example, some areas may have certain requirements, such as posting signs by each camera, allowing residents to view the camera tapes, or prohibiting transmission of audio data.
As a general matter, Texas law does not protect people from invasion of privacy by electronic video recorded on open property when the camera is unobtrusive. The courts are likely to determine whether the privacy rights of a Texas resident are likely to be violated by considering whether a reasonable person would believe that the activities were captured on video and accessible to them. This would be the case when the camera is directed toward a street, highway or sidewalk in plain view.
Installing and Using Surveillance Cameras to Legally Record in Texas
The installation of surveillance cameras on private property in Texas requires the "effective consent" of the person in control of the property involved. The consent requirement applies to video surveillance cameras and images. TPC §§ 30.01(3) and 16.02(a)(5)(6). However, a person may record or videotape another person without the consent of that person if the other person is in plain view of the equipment with "the intent to record or videotape during the commission of or immediate flight from" an unlawful act. TPC § 16.02(a)(1)(A). "Plain view" does not mean that the person is required to be outdoors or in a public place; rather, "[a] person may be within a building and in plain view of video equipment without being ‘outdoors.’" Knorr v. State, 217 S.W.3d 68, 71-72 (Tex. App. – San Antonio 2006, pet. ref’d). But "the lack of knowledge of the recording can be overcome by showing the defendant’s intent to record or videotape as evidenced by actual conscious presence at a location to witness a criminal act and purposeful intention to use recording equipment to do so." Knorr at 75.
A "person" cannot use "any device designed to determine the location or movement of a person" unless the person in control of the property consents beforehand. TPC §§ 30.01(3) and 16.02(a)(5)(B). And signage may not be sufficient to provide effective consent. See Roy Houston Elec., Inc. v. IAM Cornersville Road, 192 F.3d 407, 414 n.2 (5th Cir. Tenn 1999). A person may use "any device designed to to track the location or movement of a person" in a document containing an effective consent to do so. TPC § 16.02(a)(5)(C).
The failure to obtain consent is a Class B misdemeanor for a first offense. TPC §§ 30.01(3) and 16.02(b)(1). If the perpetrator committed the offense with the intent to "harass, annoy, alarm, abuse, torment, embarrass, or offend another," then the person is charged with a Class A misdemeanor for a first offense. TPC §§ 30.01(3) and 16.02(b)(2)(B). If the perpetrator has been convicted of an offense under Section 16.02 in the past, then the perpetrator commits a state jail felony. TPC §§ 30.01(3) and 16.02(b)(2)(C).
Surveillance Cameras in Public Places: What You Need to Know
A significant portion of state and federal privacy laws govern the use of cameras in public spaces. From the Texas Security Device Statutes that limit recording audio on public property to the Texas Penal Code’s prohibition on naked images in public spaces, these types of laws are designed to protect people’s right to not be surreptitiously filmed or photographed without consent.
For example, Section 547 of the Texas Security Device Statutes provides:
(a) A person commits an offense if, without the effective consent of the owner, the person:
(2) photographs, videotapes, or by any electronic means captures an image of another in a bathroom or private dressing room with intent to invade the privacy of the other person. An offense under this subdivision is a state jail felony.
(b) In this section, "bathroom" means a room or other area commonly used by one or more persons for washing, grooming, toilets, or other hygienic activities.
(c) In this section, "private dressing room" means a room or other area, other than a bathroom, set apart by the owner or an agent of the owner for the sole purpose of being used for dressing or undressing, including a room or other area in which:
(1) a shower or bath tub is located; or
(2) a clothes fitting or trying on, or a transaction to purchase or rent clothing, items or services relating to clothing, is conducted.
Just because a person is in a public place does not mean that person wants to be taped. Laws that prohibit surreptitious recording or photographing a person in a bathroom or private dressing room protects their right to privacy. Most Texas courts have balanced the security goals of surveillance against the enhancement of personal privacy and determine that a business’ surveillance does not create a presumption of safety.
Texas Law on Using Audio Recordings With Surveillance Cameras
The legality of audio recording in Texas is a little more complicated than it is in many states. The state has laws that pertain to secret audio recording and the law states that in order for a conversation to be considered an illegal wiretap, at least one person involved in the conversation must either be in a private setting or have an expectation of privacy, and also must not be giving consent to have their words recorded.
There are very clear distinctions in the law that theoretically allow for both an employee and an employer to legally record conversations within the workplace, so long as one party is not going to be privy to the other’s knowing that they’re being recorded. As long as an employer also has to be privy to this fact, the employer should be able to freely legally record conversations and activities of their employees and customers, although it is worth noting that legally, the person doing the recording would be considered as guilty of illegal wiretapping as whoever is doing the recording.
In short, an employee can legally record their own conversations – whether with another employee or their employer – but they cannot legally record the conversations between their employer and a customer, unless the customer has somehow given consent and is aware of the fact that their conversations and actions are being recorded. This will not always protect the employee, though – suppose, for example, that a customer were to ask their conversation partners if they can record what they’re saying, and the employees in the room respond no. If after this the employee were to record the customer’s conversation with their manager anyway, they would still technically be in the wrong.
Because of this, while the law does allow for audio recording in Texas workplaces, it would typically not apply to installing an overall surveillance system. Therefore, in order to cover yourself legally, you should either ensure that the entire workplace is recorded and that all employees know this, or that employees are told that they are being recorded while they are actively being recorded.
Using Footage From Surveillance Cameras in Legal Proceedings
Numerous sections of the Texas Penal Code, including Chapter 38, "Obstructing Service Animals and Assistance Animals," Chapter 43 "Public Indecency," Chapter 44, "Offenses Against Public Health, Order, and Safety," and Chapter 51, "Aiding Suicide" apply to insurance claim investigations and adjusters must understand them.
The Texas Code of Criminal Procedure gives clear statutory procedures concerning the use of video surveillance footage collected by insurance companies. For example, in the Texas Code of Criminal Procedure Article 18.004 forbids video surveillance of individuals:
(b) A person commits an offense if the person:
(1) knowingly uses or threatens to use video surveillance equipment to record another individual or their property or uses a location to view another individual or their property through a window or other opening to enable any criminal offense; and
(2) after the commission of the offense, makes available to a third party for the third party’s commercial advantage any video surveillance footage obtained in violation of this section.
A violation of this statute is a class B misdemeanor. Article 18.005 of the Texas Code of Criminal Procedure requires insurers to maintain records relating to video surveillance:
(a) A person required to register under Section 411.003, Gov’t Code may not:
(1) submit a copy of video surveillance footage to a person not identified in the footage in written or electronic form; or
(2) intentionally disclose video surveillance footage to a person not identified in the footage.
(b) Notwithstanding Subsection (a), an individual authorized by a person required to register under Section 411 . 003, Gov’t Code who submitted video surveillance footage under Subsection (a) may disclose or produce to an individual not identified in the footage only the part of the vehicle of another person recorded by the surveillance camera, including any identifiable marks on the vehicle that are recorded by the video surveillance camera and that the person is able to reasonably identify.
A violation of this statute is a class B misdemeanor.
The Texas Code of Criminal Procedure also provides clear statutory procedures for the disclosure and the admissibility of video surveillance footage in judicial proceedings. For example, Article 38.42 of the Texas Code of Criminal Procedure provides that:
a) The rules governing the admissibility of evidence in judicial proceedings in this state do not prohibit the disclosure or use of video or still photographic images obtained by:
(1) a governmental employee or contractor in the public space; or
(2) a private citizen who uses a video surveillance camera in the private space to record activity in the public space,
in a judicial proceeding if the images are relevant and probative to an issue in the proceeding.
b) This article applies to a judicial proceeding in which the state or a defendant offers video surveillance images obtained from a video surveillance camera in evidence or testimony regarding video surveillance images in evidence.
c) This article does not affect the admissibility of video surveillance images obtained by a video surveillance camera that is not in a public place, accessory structure, or separate enclosure of a residential property.
Consequences for Recording footage with Surveillance Cameras Illegally in Texas
Violating Texas surveillance camera laws can have serious criminal penalties. While most people are aware of the criminal charge related to using a surveillance camera in a bathroom or private dressing room, detailed below, many are not familiar with the other illegal uses of surveillance cameras. Most criminal cases are either felonies or misdemeanors. Felonies are crimes that are punished more severely than misdemeanors. Misdemeanors are further broken down into classes: Class A misdemeanors: up to one year in jail and/or a fine of $4,000. Class B misdemeanors: up to 180 days in jail and/or a fine of $2,000. Class C misdemeanors: a maximum fine of $500, but no jail time. The criminal offense of photographing or videotaping in bathrooms or private dressing rooms is a Class C misdemeanor. However, the Texas legislature has provided judges and juries the option of upgrading the charge to a Class A misdemeanor if the cameraman is using photograph or videotape to commit or promote a crime. Violating any other illegal surveillance camera law is a Class B misdemeanor. This includes using as a surveillance camera someone’s "emergency alarm or distress signal, or of another electromagnetic, mechanical, or other device designed to give warning of an unauthorized entry that is located in or on a dwelling." Additionally, having a security camera to monitor a bathroom or private dressing room is a Class B misdemeanor. The law does not increase the charge to a Class A misdemeanor unless the person with the camera is using it to commit or promote a crime. For example, two men owned a bar with a restroom. They placed a camera pointing towards the stalls in the restroom without notice to customers. They recorded the video, which included patrons of the bar. They were charged separately for videotaping of a restroom, possessing the video recording, and using the video to promote sexual performance by a child. However, they were not charged with promoting the use of the video to commit or promote a crime.
Your Rights Under the Texas Surveillance Footage Laws
Non-consensual recording in Texas is essentially illegal unless you fall under a very limited set of exceptions. As such, it’s important that both parties are aware of the relevant laws governing the use of surveillance cameras and recording devices.
The owner of a property is free to record activity on his or her property via a surveillance camera as long as none of the footage is obtained in a private area. These areas include bathrooms, changing rooms, dressing rooms, locker rooms, individual sick rooms, patient rooms at hospitals and mental health facilities, room share spaces in nursing homes, or any other space in which a person has a reasonable expectation of privacy. Owners of the recordings may not redistribute or reuse the recordings for any purpose without express consent of the individual being recorded. In the event an individual believes that the privacy rights have been violated by a recorded surveillance camera, he or she is free to file a complaint with the county or district attorney. If the government entity refuses to take action, the individual may even be able to ask a court to compel action. Another option is for the individual to privately bring the matter to court, such as through a lawsuit for infliction of mental anguish or invasion of privacy. Depending on the extent of the damages that may have occurred due to an unlawful recording, the individual might be able to receive punitive damages in particular cases. Anyone who has been recording on a property must make all attempts to comply with the Texas surveillance laws regarding nondisclosure. And , even if you’re not personally doing the recording, it’s important that you understand your rights as a property owner and take the necessary steps to comply with the law. While recording in a public place is essentially legal in Texas, some exceptions exist. Even in public places, an individual may have a reasonable expectation of privacy within certain confines, such as in locker rooms, bathrooms, saunas or fitting rooms. Because of this, it’s important to be aware of your surroundings and whether cameras are posted. Even if they’re not in your immediate vicinity, recorded footage might capture you in a way that could lead to mental anguish or consternation. If you are concerned about this, do your best to avoid the area until you’re certain that the security system has been disabled or turned off. An individual can also take steps when they are in a private setting to ensure that no recording cameras or devices can capture their footage. This means keeping an eye out for camera lights or indicators, ensuring that doors are secure, and keeping showers turned on while using a public sauna. If you’re registered in a hospital or mental health facility, it’s important to verify that the staff are aware of your privacy rights and that those rights are upheld. If you think you’re facing nonconsensual use of a live camera feed or hidden recording devices, you should immediately contact the authorities. In the event the police are unable to help you, contact a lawyer for assistance.