Texas Security Camera Laws Overview
Several laws in Texas regulate the use of security cameras. Any person that uses a camera (video or still) to capture images of or audio from people that do not consent may have violated certain Texas criminal laws. Typically, these laws make it illegal to engage in (a) eavesdropping on conversations, or (b) using surveillance devices to invade the privacy of others. Although these criminal laws are not usually enforced in private apartments, the improper use of security cameras could serve as the basis of a civil lawsuit.
Texas Penal Code Section 16.02(a) provides that a person commits the offense of criminalized eavesdropping if he or she intentionally or knowingly uses a device to record a conversation unless the person is a party to the conversation or has consent of at least one party to the conversation. Failure to comply with Texas Penal Code Section 16.02(a) may result in imprisonment for a term of not more than five years. Criminalized eavesdropping also usually constitutes the tort of invasion of privacy.
Certain eavesdropping laws only apply to oral communications captured by a camera. These laws usually prohibit the recording of oral communications where there is a reasonable expectation of privacy such as in your own home. Most of these laws are found in Texas Penal Code § 16.02.
Texas Penal Code § 16.05 makes it illegal to use a surveillance device to record a tangible image that exposes intimate areas of another. This section criminalizes the use of surveillance tools to capture an image of an individual’s body parts like the breasts , buttocks (clothed or unclothed), or genitals.
Cameras are often placed in apartment complexes in high-traffic areas such as lobbies or breezeways. As long as these cameras are positioned to view public spaces and common areas, they are considered to be lawful. A landlord also frequently needs to record images in areas that are not accessible by tenants or guests/tenants of guests. Placing a camera in a public hallway may be permissible even if that hallway is not accessible by the public. If a camera is prevented from viewing areas where people normally have a reasonable expectation of privacy — such as bedrooms, bathrooms, and backyards — it is likely compliant with the law.
There are no statutes that specifically govern the placement of these types of cameras in an apartment or other residential complex. However, if a security camera is placed in a way that views private areas such as bedrooms, the tenant could have grounds to file a lawsuit and possibly win damages for invasion of privacy or criminal trespass.
Texas Penal Code § 21.15 makes it a crime to "knowingly or intentionally photograph, videotape, or otherwise record an image of an identifiable person without the person’s consent, if the person has a reasonable expectation that the photograph, videotape, or other image will remain private." These sections of the law are sometimes used to sue individuals who place hidden cameras in private places such as bathrooms. It is important to note that this law applies only to the unauthorized photographing of persons and not to property.
Landlord’s Rights and Responsibilities
Landlords at apartment complexes are under no legal obligation to install security cameras, but those that choose to do so must comply with Texas security camera laws. Courts have determined that security cameras placed in common areas of an apartment complex are generally deemed to be in the public right of way and do not violate the privacy rights of tenants who have no reasonable expectation of privacy in such areas.
Apartment complex landlords who do install security cameras over the entrance to the property and/or the pool area should notify tenants of the presence of the cameras and obtain permission to place the cameras. Tenant rights can be emphasized in a formal notice that is posted in common areas and/or mailed to each tenant. Tenants should be provided with contact information for someone that can answer questions about the security cameras.
Apartment complex landlords who wish to install security cameras in any areas accessible only to tenants should have tenants’ written permission before doing so. Compliance with the Texas Apartment Association’s ("TAA") guidelines on security cameras is advisable. Properly notifying tenants regarding the security cameras and obtaining permission to install them will provide landlords with evidence that they respected their tenants’ rights and complied with all applicable laws while installing and operating security cameras within their properties.
Tenant’s Right to Privacy
It’s important to note that tenant privacy rights are established on at least three levels. You must analyze each level to determine what the tenant privacy rights are in your particular scenario.
Most of the Texas landlord/tenant cases focusing on tenant privacy rights involve common law claims based upon negligence / premises liability type principles. Under this old case law, apartment tenants do not have a legal right to privacy in areas or environments of an apartment complex that are constructively characterized as "public areas".
Significantly, in Texas a tenant does have a reasonable right to privacy in the protected areas where the tenant is lawfully permitted to be present. In other words, the apartment tenant does have the right to privacy in the interior of the tenant’s apartment, and with any other location within the apartment community where the tenant is authorized to be. This includes the use of the interior and exterior of the parking garage, swimming pool, clubhouse, and most of the common areas at the apartment complex. However, important limitations to tenant privacy do apply.
Setting aside the old common law case law, the Texas Legislature has enacted Tenant Privacy laws that are codified in Chapter 92 of the Texas Property Code. Since 1995, when Chapter 92 was enacted, apartment residents in Texas have enjoyed the following statutory rights, with respect to their landlord’s use of cameras and other types of filming devices within the "sensitive areas":
Where Can Cameras Be Installed?
When it comes to security cameras at Texas apartment complexes, it is important to know that there are two kinds of areas: common areas and private spaces. At first blush, the definition of "common area" may seem obvious to a non-lawyer. The law, however, says that common areas do not include uncommonly accessed areas (that’s kind of a fancy legal term for areas locked or gated).
The distinction between common areas and private spaces is important because the answers to the following questions will depend on which category of area we are dealing with:
Houston apartment managers and owners are commonly faced with requests for security camera surveillance in connection with properties they manage or own. Generally speaking, cameras cannot be installed in private spaces at rental properties without obtaining permission from the individual tenants.
But what about common areas? In common areas, the dividing line seems fairly clear in most situations. For example, security cameras can be installed in lobbies, leasing offices, exterior stairwells, recreation areas, mail kiosks, and even in the garages of multi-family properties.
On the other hand, installing security cameras in non-common areas typically constitutes a "search." Homeowners interested in allowing security cameras for the protection of their property will need to require tenants to waive expectation of privacy in certain areas. In these non-common areas, Texas law does not permit the use of "structured observation techniques," such as video cameras, binoculars, or drone cameras in areas where individuals have the right to engage in private activities.
Consent and Notification
Given the sensitive nature of security cameras in apartments, obtaining consent from tenants is a necessity in most (if not all) instances. It Is strongly recommended that you contact a Texas attorney to discuss the requirements for your specific community or to have a confidentiality agreement between tenants and your management company prepared and signed prior to the installation of any security cameras.
It is unclear under Texas law if a landlord must notify tenants after the installation of security cameras in an apartment complex. Tenants may be required to sign a contract allowing the landlord to install and review the security camera footage if the community has entered into such rental agreements. If that is the case, the tenant has already consented.
Some landlords opt to provide additional notification, to further protect their legal interests . In addition, by notifying the tenant, there is a layer of transparency so that the tenant does not feel his/her privacy is being violated or that they are being ‘watched’. These notices are typically placed on the entrance gates and/or in the leasing office. They may include the following:
· The Location of cameras, including parking lots, recreation areas, leasing office, etc.
· That illegal activity is prohibited and will be prosecuted
The notices should not only provide notice that the cameras are present, but allow the resident to understand where security exists on the property.
If cameras are added after a lease is signed, the landlord may require the tenant to sign an acknowledgment that cameras/recordings are present and the facility has a zero-tolerance policy for illegal acts and will prosecute all criminal activity.
Implications of Violations
The penalties for non-compliance with Texas apartment security camera laws are variable and depend on several different factors. Possible avenues for recourse might be available to tenants, but may never be pursued by the landlord for various reasons. With a bit of patience, an attorney could be an invaluable resource for serving notice to the landlord that he is in violation of provisions set forth under Section 92.153 (a), or Section 92.161, .162. Remedial and judicial relief for violations of these statutes might be sought through a civil action, though the process can be lengthy and expensive.
Although litigation might not be the best option for tenants, knowledge of their rights as tenants under a lease agreement can work wonders in persuading the property owner to course correct. The fact that commercial grade cameras were installed without notice may be enough to terminate rental costs during the time the cameras were in place. Although a complete refund of rent would be ideal, the least a tenant can expect is some reduction, if not slight mitigation of the damages caused by the installation of illegal security cameras.
Landlords that have tried to stay in compliance with complex apartment security camera laws could be subject to civil liability, including up to a $10,000 fine for criminal trespassing, and a misdemeanor charge of invasion of privacy against a landlord who has violated Section 92.162 of Chapter 92.
In addition to civil actions against landlords, certain liable third parties could also be civilly and criminally liable for aiding or abetting violations of apartment security camera laws. Third parties might include cameras installers, video operators, or maintenance personnel that assist in the unlawful installation of security cameras.
Recent Court Cases and Rulings
The nuances of video surveillance law in Texas have been tested in the courts over the years, with a handful of recent cases establishing a clear trend of the law swinging in favor of residents. In Smith v. Fairfield Residential, a Dallas County jury slapped a Dallas-based apartment management company with a $1.57 million judgment after a rape case failed to be properly prosecuted due to an apartment security camera failure. In that case, a woman was raped by an intruder at an apartment complex where she lived. The assailant fled while police were on the scene, leaving behind an important piece of evidence: to pass through the gate to the pool area, the rapist had to either swipe a pool key or enter a numerical code. A KXAS investigation into the security features at properties managed by the same company revealed significant problems across the board with access to those security codes. They also found that the security code was not included in the original lease so prospective tenants would not know if the property was secure before moving in and signing a lease. In Wiggins v. Pacific Intercontinental Bank, the 5th U.S. Circuit Court of Appeals affirmed a judgment in favor of a San Antonio apartment owner whom a woman accused of raping her on the premises. In that case, the victim alleged that the property’s owners had a duty to protect her from her attacker, whom she alleged had been driving by the complex and had done routine maintenance work there. The court found that the plaintiff could prove, at most, that the owners did not take advantage of opportunities to learn about the risk and did not do an adequate job of warning her. That, they concluded, was not enough to prove that the owners had been careless or negligent.
Best Practices for Landlords and Tenants
Landlords should develop and implement a written policy on security cameras. The policy should clearly state the purpose, types of cameras used, areas monitored by cameras, and how access to video is controlled and who is authorized to view the videos. Use of video in marketing, sales and trainings or to investigate lease violations or criminal acts should be prohibited in the policy. Residents should be required to sign an acknowledgment form that they received the policy. The policy should be distributed to new residents, and thoughtful consideration should be given as to whether existing residents should be provided with a copy or at least a summarized explanation of the policy. The policy should be followed with consistency and discretion when installed cameras are activated or deactivated. If a resident believes that the obligation to pay rent is being used as leverage for the inclusion of a security camera , the resident should be encouraged to voice their concerns directly to their local law enforcement agency. Residents who are concerned about the use of security cameras should understand their rights and obligations under the lease, know where to find more information and seek clarification if needed. They should understand the notification requirements for the installation of a security camera, and be able to voice their opinion and have it fairly considered. It is also important for residents to not tamper, alter or damage security equipment. Even if residents see what they believe is a bad camera installation, they should report it to management.