Bill Caption

Relating to notifying an alleged perpetrator of child abuse or neglect of the person's right to record an investigative interview. 

Fiscal Notes

No significant fiscal implication to the State is anticipated.

Bill Analysis

HB 135 would require the Department of Family and Protective Services, before conducting an interview with an alleged perpetrator, to inform the person orally and in writing of the person's right to create an audio or video recording of the interview (but not to record the interview in any other manner), and that any such recording may be subject to subpoena under a court order.

The bill would require the department to document in the case file that the notice was given and provide two copies of the written notice to be signed by the person. One signed copy would be retained by the department and the other would be given to the person.

An audio or video recording of the department's interview with an alleged perpetrator would be prohibited from being posted on an internet website. A violation of this prohibition would be a Class C misdemeanor. 

HB 135 would also require the department, before interviewing an alleged perpetrator, to notify the person in writing that the person may request an administrative review of the department's findings. The notice would be required to be signed and documented in the case file. 

Vote Recommendation Notes

We originally supported HB 135 when it was before the House. However, the Senate committee substitute has serious deficiencies that fundamentally alter the nature of the bill and we oppose passage unless amended. 

We support the notion of increasing transparency at DFPS. Informing interview subjects of their rights is consistent with individual liberty and limited government. Unfortunately, CSHB 135 goes beyond informing interview subjects of their rights, it actually diminishes their rights to the extent that the bill is almost certainly unconstitutional. 

The prohibition on recording an interview in any manner other than audio or video may prohibit an interview subject from making a written record of the interview by taking notes. There is no reason to prohibit any kind of recording of an interview conducted by agents of the state. An amendment should be adopted to remove this prohibition.

Furthermore, the prohibition and criminalization of posting an interview recording online partially defeats the purpose of notifying a person of their right to record the interview in the first place. More importantly, this provision is likely a direct violation of the First Amendment.

It is well established that a citizen has a right to record police officers in the lawful execution of their duties, and to publish that recording online. There is no reason a person would not also have the same constitutional right to record DFPS interviewers in the lawful execution of their duties, and to post the recording online. Criminalizing this activity is unconstitutional and will be quickly challenged in court with a good chance of success. Certainly the department should not post online a recording of an interview with a private citizen, but there should be no barrier to a citizen posting a recording of an agent of the state.

Not all DFPS interviewers will conduct themselves poorly. We are happy to extend the benefit of the doubt and stipulate that most will not. However, there are certainly some who will mistreat interview subjects and they should be held fully accountable. A person who is abused or harassed by an interviewer should not be prohibited from posting the recording online in order to shine a light of transparency on bad behavior by a state employee, and if necessary to apply public pressure for the department to appropriately address the situation. We recommend amending the bill to remove this prohibition and the associated criminal penalty. 

While this bill has some good provisions, CSHB 135 is bad for liberty overall as the offending provisions outweigh the beneficial provisions. For these reasons we oppose CSHB 135 unless amended to remove the specific provisions noted above.