78R17427 E


By:  Hinojosa                                                     S.B. No. 405

Substitute the following for S.B. No. 405:                                    

By:  Keel                                                     C.S.S.B. No. 405


A BILL TO BE ENTITLED
AN ACT
relating to the prevention of, prosecution of, and punishment of identity theft and to assistance to certain victims of identity theft; providing penalties. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1
SECTION 1.01. Chapter 20, Business & Commerce Code, is amended by adding Section 20.051 to read as follows: Sec. 20.051. PROTECTION OF CONSUMER INFORMATION. (a) A consumer reporting agency shall follow reasonable procedures in preparing or disseminating information to ensure maximum possible accuracy of the information about the consumer to whom the information relates. (b) If a person requests a consumer report from a consumer reporting agency and if the request includes an address for the consumer that substantially differs from the address shown in the consumer file, the consumer reporting agency shall notify the requestor that the addresses are different. The notification must occur before or at the time the consumer report is provided to the requestor. (c) Subsection (b) applies only to a consumer reporting agency that maintains a database to produce consumer reports that include: (1) public record information; and (2) credit account information compiled from information furnished by persons regularly and in the ordinary course of business. SECTION 1.02. (a) Title 4, Business & Commerce Code, is amended by adding Chapter 48 to read as follows:
CHAPTER 48. IDENTITY THEFT AND PROTECTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 48.001. SHORT TITLE. This chapter may be cited as the Identity Theft Enforcement and Protection Act. Sec. 48.002. DEFINITIONS. In this chapter: (1) "Peace officer" has the meaning assigned by Section 1.07, Penal Code. (2) "Personal identifying information" means information that alone or in conjunction with other information identifies an individual, living or dead, including an individual's: (A) name, social security number, date of birth, or government-issued identification number; (B) mother's maiden name; (C) unique biometric data, including the individual's fingerprint, voice print, and retina or iris image; (D) unique electronic identification number, address, or routing code; and (E) telecommunication identifying information or access device. (3) "Personal representative" means an executor or administrator of a decedent's estate or a person's legal guardian. (4) "Required identifying information" means a copy of: (A) a police report evidencing the filing of a criminal complaint alleging commission of an offense under Section 32.51, Penal Code, or a copy of a record created under Section 411.0421, Government Code; and (B) personal identifying information used by the alleged perpetrator of an offense under Section 32.51, Penal Code. (5) "Telecommunication access device" has the meaning assigned by Section 32.51, Penal Code. (6) "Transactional information" means a record of a transaction or charge associated with an application or account, including a complete monthly billing statement prepared in the regular course of business by a financial institution.
[Sections 48.003-48.100 reserved for expansion]
SUBCHAPTER B. IDENTITY THEFT
Sec. 48.101. UNAUTHORIZED USE OR POSSESSION OF PERSONAL IDENTIFYING INFORMATION. A person may not obtain, possess, transfer, or use personal identifying information of another person without the other person's consent and with fraudulent intent to obtain a good, service, insurance, an extension of credit, or any other thing of value in the other person's name. Sec. 48.102. BUSINESS PROCEDURES TO PROTECT AND SAFEGUARD PERSONAL IDENTIFYING INFORMATION. (a) A business shall implement and maintain reasonable procedures, including taking any appropriate corrective action, to prevent the unlawful use of any personal identifying information collected or maintained by the business. (b) This section does not apply to a financial institution as defined by 15 U.S.C. Section 6809(3), as amended. Sec. 48.103. DUTY TO PROVIDE INFORMATION TO CONSUMER. (a) On a request and with required identifying information provided by a consumer, a person that engages in business with another person who allegedly used the consumer's personal identifying information shall disclose without charge to the consumer or a peace officer, not later than the 30th business day after the date on which the person receives the request: (1) a copy of any application or transactional information related to an alleged violation of Section 32.51, Penal Code; and (2) to the extent available, the personal identifying information of the consumer that the person who allegedly impersonated the consumer used to participate in the transaction or complete the application or information related to the use of that information. (b) Before a person is required to disclose information under Subsection (a) to a peace officer, the person may require the consumer to submit a written statement dated and signed by the consumer. The statement must: (1) state that the consumer may revoke authorization of the disclosure at any time before the disclosure is made; (2) authorize the disclosure for a certain period of time; (3) specify the name of the agency or department to which the disclosure is authorized; and (4) identify the information that is requested to be disclosed. (c) A person may not be held liable under this section if the person does not make a disclosure to a peace officer because a consumer fails to provide the authorization requested by the person as permitted by Subsection (b). Sec. 48.104. CREDIT CARD ADDRESS CHANGE. A credit card issuer who receives a request for a change of a cardholder's billing address and receives, before the 11th day after the date of the requested address change, a request for an additional credit card on the same account may not mail the requested card to the new address or activate the requested card unless the credit card issuer verifies the change of address. Sec. 48.105. BUSINESS RECEIPT CONTAINING CREDIT CARD OR DEBIT CARD INFORMATION. (a) This section does not apply to a transaction in which the sole means of recording a person's credit card or debit card account number on a receipt or other document evidencing the transaction is by handwriting or by an imprint or copy of the credit card or debit card. (b) A person who accepts a credit card or debit card for the transaction of business may not print more than the last four digits of the credit card or debit card account number or the month and year of the credit card's or debit card's expiration date on a receipt or other document that evidences the transaction and that is provided to a cardholder. (c) A person who provides, leases, or sells a cash register or other machine used to print receipts or other documents evidencing credit card or debit card transactions shall provide notice of the requirements of this section to the recipient, lessee, or buyer, as applicable, of the machine. (d) A court may not certify an action brought under this section as a class action. (e) A person who violates Subsection (b) is liable to the state for a civil penalty in an amount not to exceed $500 for each calendar month during which a violation occurs. The civil penalty may not be imposed for more than one violation that occurs in a month. The attorney general or the prosecuting attorney in the county in which the violation occurs may bring suit to recover the civil penalty imposed under this section. (f) The attorney general may bring an action in the name of the state to restrain or enjoin a person from violating Subsection (b). Sec. 48.106. IDENTITY THEFT BY ELECTRONIC DEVICE. (a) In this section: (1) "Payment card" means a credit card, a debit card, a check card, or any other card that is issued to an authorized user to purchase or obtain goods, services, money, or any other thing of value. (2) "Re-encoder" means an electronic device that can be used to transfer encoded information from a magnetic strip on a payment card onto the magnetic strip of a different payment card. (3) "Scanning device" means an electronic device used to access, read, scan, or store information encoded on the magnetic strip of a payment card. (b) A person commits an offense if the person uses a scanning device or re-encoder to access, read, scan, store, or transfer information encoded on the magnetic strip of a payment card without the consent of an authorized user of the payment card and with intent to harm the authorized user.
[Sections 48.107-48.200 reserved for expansion]
SUBCHAPTER C. REMEDIES AND OFFENSES
Sec. 48.201. CIVIL PENALTY; INJUNCTION. (a) A person who violates this chapter, other than Section 48.105, is liable to the state for a civil penalty of at least $2,000 but not more than $50,000 for each violation. The attorney general may bring suit to recover the civil penalty imposed by this subsection. (b) If it appears to the attorney general that a person is engaging in, has engaged in, or is about to engage in conduct that violates this chapter, the attorney general may bring an action in the name of this state against the person to restrain the violation by a temporary restraining order or a permanent or temporary injunction. (c) An action brought under Subsection (b) shall be filed in a district court in Travis County or: (1) in any county in which the violation occurred; or (2) in the county in which the victim resides, regardless of whether the alleged violator has resided, worked, or done business in the county in which the victim resides. (d) The plaintiff in an action under this section is not required to give a bond. The court may also grant any other equitable relief that the court considers appropriate to prevent any additional harm to a victim of identity theft or a further violation of this chapter or to satisfy any judgment entered against the defendant, including the issuance of an order to appoint a receiver, sequester assets, correct a public or private record, or prevent the dissipation of a victim's assets. (e) The attorney general is entitled to recover reasonable expenses incurred in obtaining injunctive relief or civil penalties, or both, under this section, including reasonable attorney's fees, court costs, and investigatory costs. Penalties collected by the attorney general under this section shall be deposited in the general revenue fund and may be appropriated only for the investigation and prosecution of other cases under this chapter. (f) The attorney general may in an action under this section seek restitution for a person who suffers a loss as a result of a violation of this chapter, other than a violation of Section 48.105. Sec. 48.202. COURT ORDER TO DECLARE INDIVIDUAL AS A VICTIM OF IDENTITY THEFT. (a) A person who is injured by a violation of this chapter, other than Section 48.103, or who has filed a criminal complaint alleging commission of an offense under Section 32.51, Penal Code, may file an application with a district court for the issuance of a court order declaring that the person is a victim of identity theft. A person may file an application under this section regardless of whether the person is able to identify each person who allegedly transferred or used the person's identifying information in an unlawful manner. (b) A person is presumed to be a victim of identity theft under this section if the person charged with an offense under Section 32.51, Penal Code, is convicted of the offense. (c) After notice and hearing, if the court is satisfied by a preponderance of the evidence that the applicant has been injured by a violation of this chapter, other than Section 48.103, or is the victim of the commission of an offense under Section 32.51, Penal Code, the court shall enter an order containing: (1) a declaration that the person filing the application is a victim of identity theft resulting from a violation of this chapter, other than Section 48.103, or the commission of an offense under Section 32.51, Penal Code, as appropriate; (2) any known information identifying the violator or person charged with the offense; (3) the specific personal identifying information and any related document used to commit the alleged violation or offense; and (4) information identifying any financial account or transaction affected by the alleged violation or offense, including: (A) the name of the financial institution in which the account is established or of the merchant involved in the transaction, as appropriate; (B) any relevant account numbers; (C) the dollar amount of the account or transaction affected by the alleged violation or offense; and (D) the date of the alleged violation or offense. (d) An order rendered under this section must be sealed because of the confidential nature of the information required to be included in the order. The order may be opened and the order or a copy of the order may be released only: (1) to the proper officials in a civil proceeding brought by or against the victim arising or resulting from a violation of this chapter, including a proceeding to set aside a judgment obtained against the victim; (2) to the victim for the purpose of submitting the copy of the order to a governmental entity or private business: (A) to prove that a financial transaction or account of the victim was directly affected by a violation of this chapter or the commission of an offense under Section 32.51, Penal Code; or (B) to correct any record of the entity or business that contains inaccurate or false information as a result of the violation or offense; (3) on order of the judge; or (4) as otherwise required or provided by law. (e) A court at any time may vacate an order issued under this section if the court finds that the application or any information submitted to the court by the applicant contains a fraudulent misrepresentation or a material misrepresentation of fact. (f) A copy of an order provided to a person under Subsection (d)(1) must remain sealed throughout and after the civil proceeding. Information contained in a copy of an order provided to a governmental entity or business under Subsection (d)(2) is confidential and may not be released to another person except as otherwise required or provided by law. Sec. 48.203. DECEPTIVE TRADE PRACTICE. A violation of this chapter, other than Section 48.103, is a deceptive trade practice actionable under Subchapter E, Chapter 17. Sec. 48.204. CRIMINAL PENALTY. An offense under Section 48.106 is a state jail felony. Sec. 48.205. AFFIRMATIVE DEFENSE. Good faith reliance on a consumer report as defined by Section 20.01 by a financial institution as defined by 31 U.S.C. Section 5312, as amended, is an affirmative defense to an action brought against the financial institution under this chapter. (b) Subsections (a), (b), (e), (f), and (g), Article 18.18, Code of Criminal Procedure, are amended to read as follows: (a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, for an offense involving an obscene device or material, or for an offense involving a scanning device or re-encoder, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material, or scanning device or re-encoder be destroyed or forfeited to the state. Not later than the 30th day after the final conviction of a person for an offense involving a prohibited weapon, the court entering the judgment of conviction on its own motion, on the motion of the prosecuting attorney in the case, or on the motion of the law enforcement agency initiating the complaint on notice to the prosecuting attorney in the case if the prosecutor fails to move for the order shall order that the prohibited weapon be destroyed or forfeited to the law enforcement agency that initiated the complaint. If the court fails to enter the order within the time required by this subsection, any magistrate in the county in which the offense occurred may enter the order. Following the final conviction of a person for an offense involving dog fighting, the court entering the judgment of conviction shall order that any dog-fighting equipment be destroyed or forfeited to the state. Destruction of dogs, if necessary, must be carried out by a veterinarian licensed in this state or, if one is not available, by trained personnel of a humane society or an animal shelter. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency. (b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, scanning device or re-encoder, criminal instrument, or dog-fighting equipment to show cause why the property seized should not be destroyed or the proceeds forfeited. The magistrate, on the motion of the law enforcement agency seizing a prohibited weapon, shall order the weapon destroyed or forfeited to the law enforcement agency seizing the weapon, unless a person shows cause as to why the prohibited weapon should not be destroyed or forfeited. A law enforcement agency shall make a motion under this section in a timely manner after the time at which the agency is informed in writing by the attorney representing the state that no prosecution will arise from the seizure. (e) Any person interested in the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, scanning device or re-encoder, criminal instrument, or dog-fighting equipment seized must appear before the magistrate on the 20th day following the date the notice was mailed or posted. Failure to timely appear forfeits any interest the person may have in the property or proceeds seized, and no person after failing to timely appear may contest destruction or forfeiture. (f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, criminal instrument, scanning device or re-encoder, or dog-fighting equipment and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article. (g) For purposes of this article: (1) "criminal instrument" has the meaning defined in the Penal Code; (2) "gambling device or equipment, altered gambling equipment or gambling paraphernalia" has the meaning defined in the Penal Code; (3) "prohibited weapon" has the meaning defined in the Penal Code; [and] (4) "dog-fighting equipment" means: (A) equipment used for training or handling a fighting dog, including a harness, treadmill, cage, decoy, pen, house for keeping a fighting dog, feeding apparatus, or training pen; (B) equipment used for transporting a fighting dog, including any automobile, or other vehicle, and its appurtenances which are intended to be used as a vehicle for transporting a fighting dog; (C) equipment used to promote or advertise an exhibition of dog fighting, including a printing press or similar equipment, paper, ink, or photography equipment; or (D) a dog trained, being trained, or intended to be used to fight with another dog;[.] (5) [(6)] "obscene device or material" means a device or material introduced into evidence and thereafter found obscene by virtue of a final judgment after all appellate remedies have been exhausted; (6) "re-encoder" has the meaning assigned by Section 48.106, Business & Commerce Code; and (7) "scanning device" has the meaning assigned by Section 48.106, Business & Commerce Code. (c) Subdivision (2), Article 59.01, Code of Criminal Procedure, is amended to read as follows: (2) "Contraband" means property of any nature, including real, personal, tangible, or intangible, that is: (A) used in the commission of: (i) any first or second degree felony under the Penal Code; (ii) any felony under Section 15.031(b), 21.11, 38.04, 43.25, or 43.26 or Chapter 29, 30, 31, 32, 33, 33A, or 35, Penal Code; or (iii) any felony under The Securities Act (Article 581-1 et seq., Vernon's Texas Civil Statutes); (B) used or intended to be used in the commission of: (i) any felony under Chapter 481, Health and Safety Code (Texas Controlled Substances Act); (ii) any felony under Chapter 483, Health and Safety Code; (iii) a felony under Chapter 153, Finance Code; (iv) any felony under Chapter 34, Penal Code; (v) a Class A misdemeanor under Subchapter B, Chapter 365, Health and Safety Code, if the defendant has been previously convicted twice of an offense under that subchapter; [or] (vi) any felony under Chapter 152, Finance Code; or (vii) a state jail felony under Section 48.106, Business & Commerce Code; (C) the proceeds gained from the commission of a felony listed in Paragraph (A) or (B) of this subdivision or a crime of violence; or (D) acquired with proceeds gained from the commission of a felony listed in Paragraph (A) or (B) of this subdivision or a crime of violence. SECTION 1.03. For purposes of Section 48.105, Business & Commerce Code, as added by this article: (1) with respect to a cash register or other machine that is initially installed and in operation after August 31, 2003, Section 48.105, Business & Commerce Code, applies only to a receipt or other document evidencing a credit card or debit card transaction that is electronically printed by the cash register or other machine after August 31, 2004; and (2) with respect to a cash register or other machine that is in operation before September 1, 2003, Section 48.105, Business & Commerce Code, applies only to a receipt or other document evidencing a credit card or debit card transaction that is electronically printed by the cash register or other machine after December 31, 2005.
ARTICLE 2
SECTION 2.01. (a) Chapter 2, Code of Criminal Procedure, is amended by adding Article 2.28 to read as follows: Art. 2.28. REPORT REQUIRED IN CONNECTION WITH FRAUDULENT USE OR POSSESSION OF IDENTIFYING INFORMATION. (a) A peace officer to whom an alleged violation of Section 32.51, Penal Code, is reported shall make a written report that includes the following information: (1) the name of the victim; (2) the name of the suspect, if known; (3) the type of identifying information obtained, possessed, transferred, or used in violation of Section 32.51; and (4) the results of the investigation. (b) On the victim's request, the peace officer shall provide the report created under Subsection (a) to the victim. In providing the report, the peace officer shall redact any otherwise confidential information that is included in the report, other than the information described by Subsection (a). (b) The change in law made by this section applies only to the investigation of an offense committed on or after September 1, 2003. The investigation of an offense committed before September 1, 2003, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this subsection, an offense is committed before September 1, 2003, if any element of the offense occurs before that date. SECTION 2.02. (a) Chapter 13, Code of Criminal Procedure, is amended by adding Article 13.28 to read as follows: Art. 13.28. FRAUDULENT USE OR POSSESSION OF IDENTIFYING INFORMATION. An offense under Section 32.51, Penal Code, may be prosecuted in: (1) any county in which the identifying information was obtained, possessed, transferred, or used; or (2) the county of residence of the person whose identifying information was fraudulently obtained, possessed, transferred, or used. (b) The change in law made by this section applies only to the prosecution of an offense commenced by the filing of an indictment or information on or after September 1, 2003. A prosecution commenced before September 1, 2003, is controlled by the law in effect at the time the prosecution was commenced, and the former law is continued in effect for that purpose. SECTION 2.03. Subdivision (3), Article 56.01, Code of Criminal Procedure, is amended to read as follows: (3) "Victim" means a person: (A) who is the victim of sexual assault, kidnapping, [or] aggravated robbery, or fraudulent use or possession of identifying information; or (B) who has suffered bodily injury or death as a result of the criminal conduct of another. SECTION 2.04. Chapter 411, Government Code, is amended by adding Subchapter L to read as follows:
SUBCHAPTER L. IDENTITY THEFT UNIT
Sec. 411.361. DEFINITIONS. In this subchapter: (1) "Attorney representing the state" has the meaning assigned by Section 411.261. (2) "Identity theft" means an offense under Section 32.51, Penal Code, or any offense that includes the elements of an offense under that section. Sec. 411.362. IDENTITY THEFT UNIT. (a) The director shall create an identity theft unit to be operated by the department. (b) The director shall employ commissioned peace officers and noncommissioned employees to perform duties required of the unit.
Sec. 411.363. DUTIES. The identity theft unit shall:
(1) encourage local law enforcement agencies to file a report with the department immediately on receipt of a complaint alleging identity theft; (2) on the request of a local law enforcement agency, assist the agency in the investigation of a complaint alleging identity theft; and (3) initiate an investigation on receipt of reports from two or more local law enforcement agencies that appear to involve the same offender. Sec. 411.364. RULES. The department may adopt rules as necessary to implement this subchapter. SECTION 2.05. (a) Section 1701.253, Occupations Code, is amended by adding Subsection (i) to read as follows: (i) As part of the minimum curriculum requirements, the commission shall establish a statewide comprehensive education and training program on identity theft under Section 32.51, Penal Code, for officers licensed under this chapter. An officer shall complete a program established under this subsection not later than the second anniversary of the date the officer is licensed under this chapter or the date the officer applies for an intermediate proficiency certificate, whichever date is earlier. (b) Section 1701.402, Occupations Code, is amended by adding Subsection (f) to read as follows: (f) As a requirement for an intermediate proficiency certificate, an officer must complete an education and training program on identity theft established by the commission under Section 1701.253(i). (c) Not later than January 1, 2004, the Commission on Law Enforcement Officer Standards and Education shall establish the education and training programs on identity theft required under Subsection (i), Section 1701.253, and Subsection (f), Section 1701.402, Occupations Code, as added by this Act. (d) A person who, on the effective date of this Act, holds an intermediate proficiency certificate issued under Section 1701.402, Occupations Code, or has held a peace officer license issued by the Commission on Law Enforcement Officer Standards and Education for more than two years shall complete an educational training program on identity theft established under Subsection (i), Section 1701.253, Occupations Code, as added by this Act, not later than September 1, 2005. SECTION 2.06. (a) Subdivision (1), Subsection (a), Section 32.51, Penal Code, is amended to read as follows: (1) "Identifying information" means information that alone or in conjunction with other information identifies an individual, living or dead, including an individual's: (A) name, social security number, date of birth, and government-issued identification number; (B) unique biometric data, including the individual's fingerprint, voice print, and retina or iris image; (C) unique electronic identification number, address, and routing code; and (D) telecommunication identifying information or access device. (b) Subsection (d), Section 32.51, Penal Code, is amended to read as follows: (d) If a court orders a defendant convicted of an offense under this section to make restitution to the victim of the offense, the court may order the defendant to reimburse the victim for lost income or other expenses, including [other than] attorney's fees, incurred as a result of the offense. (c) The change in law made by this section applies only to an offense committed on or after September 1, 2003. An offense committed before September 1, 2003, is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For the purposes of this subsection, an offense was committed before September 1, 2003, if any element of the offense was committed before that date.
ARTICLE 3
SECTION 3.01. Subtitle A, Title 5, Government Code, is amended by adding Chapter 561 to read as follows:
CHAPTER 561. PROTECTION OF PERSONAL INFORMATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 561.001. DEFINITIONS. In this chapter: (1) "Document" includes information created or maintained in a paper, electronic, or other format. (2) "Governmental entity" does not include a court other than a commissioners court. (3) "Personal information" means information about an individual such as: (A) the individual's home address, home telephone number, social security number, date of birth, physical characteristics, and similar information about the individual; (B) information about an individual's marital status or history, whether the individual has family members, and information about the individual's family members; and (C) personally identifiable information about the individual's finances or financial history or purchases made from government. Sec. 561.002. APPLICABILITY. This chapter does not apply: (1) to court records or other information held by or on behalf of a court other than a commissioners court; (2) in relation to a historical document, which for purposes of this subdivision is a document held by or on behalf of a state or local governmental entity if the state or local governmental entity or its predecessor in function, or an agent of the state or local governmental entity or its predecessor in function, has held the document for 50 years or longer; (3) to information collected by the Texas Department of Criminal Justice about an offender; (4) to information collected by the Texas Youth Commission about an offender; (5) to personal information that: (A) relates to a motor vehicle accident and is subject to Section 550.065, Transportation Code; or (B) a state or local governmental entity obtains from or in connection with a motor vehicle record subject to Chapter 730, Transportation Code; (6) to a record that is subject to the federal Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), as amended; or (7) in relation to information that is: (A) filed with a county clerk under Chapter 192, Local Government Code; or (B) otherwise filed with a county clerk in the clerk's capacity as county recorder. Sec. 561.003. CONSTRUCTION WITH OTHER LAW. This chapter does not affect: (1) the ability of a state or local governmental entity to undertake a lawful investigation or to protect persons, property, or the environment in the manner authorized by law; (2) the duty of a state or local governmental entity to comply with applicable law; or (3) the ability of a private investigator regulated under Chapter 1702, Occupations Code, to conduct a lawful investigation.
[Sections 561.004-561.050 reserved for expansion]
SUBCHAPTER B. SPECIFIC PRIVACY PROTECTIONS
Sec. 561.051. DISCLOSURE OF CERTAIN PERSONAL INFORMATION. (a) This section applies only to the disclosure by a governmental entity of information that reveals an individual's: (1) social security number; (2) bank account number, credit card account number, debit card number, or other financial account number, including an access number related to a financial account; (3) computer password or access code or computer network location or identity; or (4) passport number. (b) Notwithstanding Section 552.022 or other law, a state or local governmental entity may not disclose information described by Subsection (a) to a member of the public and shall redact or otherwise obscure information described by Subsection (a) from a document that is made available to a member of the public. (c) A governmental entity may disclose information described by Subsection (a) only to: (1) another state or local governmental entity in this state; (2) a federal governmental entity; (3) the person or the authorized representative of the person who is the subject of the information, subject to Section 552.023, if the governmental entity is also a governmental body under Chapter 552; (4) an entity described by 15 U.S.C. Section 6809(3); or (5) a private investigator regulated under Chapter 1702, Occupations Code. (d) Section 552.022 does not apply in relation to information described by Subsection (a). (e) When a person requests a document that contains information described by Subsection (a), the governmental entity may charge the requestor a reasonable fee to recover the cost of personnel time or programming or other costs incurred in redacting or otherwise obscuring the information described by Subsection (a). A governmental entity that is also a governmental body under Chapter 552 shall comply with Subchapter F, Chapter 552, to the extent Subchapter F is consistent with this subsection. (f) A governmental entity that is also a governmental body under Chapter 552 is not required to request a decision of the attorney general under Subchapter G, Chapter 552, before refusing to disclose information described by Subsection (a). In responding to a request under Chapter 552 for a document that contains information described by Subsection (a), the governmental body shall promptly inform the requestor that the information described by Subsection (a) is being redacted or otherwise obscured as required by this chapter. The requestor may complain to the attorney general if the requestor believes that the governmental body, in response to the requestor's written request for information under Chapter 552, redacted or otherwise withheld or obscured information other than information described by Subsection (a) without complying with the procedures prescribed by Subchapter G, Chapter 552. (g) If a person complains to the attorney general under Subsection (f), the attorney general may review the matter to determine whether the governmental body redacted or otherwise obscured or withheld information other than information described by Subsection (a) without complying with the procedures prescribed by Subchapter G, Chapter 552. The governmental body shall, within 10 business days after the date of receiving a request for the following information from the attorney general, submit to the attorney general: (1) a copy of the requestor's applicable written request for information; (2) a copy of the document at issue in unredacted and unobscured form and in the form in which the document was provided to the requestor; and (3) a copy of the governmental body's correspondence to the requestor, if possible, or a statement regarding the governmental body's other form of communication to the requestor that the information at issue was redacted or obscured as required by this chapter because it was information described by Subsection (a). (h) If the attorney general determines under Subsection (g) that the governmental body redacted or otherwise withheld or obscured information other than information described by Subsection (a) without complying with the procedures prescribed by Subchapter G, Chapter 552: (1) the attorney general shall promptly notify the governmental body, the requestor, and other interested persons of that determination; and (2) Chapter 552 applies in relation to the information that the attorney general determines to have been improperly redacted or withheld or obscured under this chapter, except that: (A) it is a defense to prosecution under Section 552.351 or 552.353 that the information at issue is information described by Subsection (a); (B) in any action under Subchapter H, Chapter 552, it is a ground for withholding the information at issue that the information is information described by Subsection (a); and (C) the information at issue may be withheld under Section 552.302 only if there is a compelling reason to withhold the information and the information is confidential under law. Sec. 561.052. COLLECTION OF PERSONAL INFORMATION. A state or local governmental entity shall establish procedures to ensure that the governmental entity collects personal information only to the extent reasonably necessary to: (1) implement a program; (2) authenticate an individual's identity when necessary; (3) ensure security; or (4) accomplish another legitimate governmental purpose. Sec. 561.053. RECORDS RETENTION SCHEDULES. (a) In adopting or amending its records retention schedule, a state or local governmental entity shall schedule the retention of personal information only for the period necessary to accomplish the purpose for which the information was collected or, if applicable, for the minimum period specifically prescribed by statute. (b) Subsection (a) does not apply to the retention of personal information that has demonstrable historical or archival value. Sec. 561.054. GENERAL PRIVACY POLICIES. (a) A state or local governmental entity shall develop a privacy policy that completely describes in plainly written language: (1) the reasons that the governmental entity requires or collects each category of personal information about individuals that the entity requires or collects; (2) the procedures used to require or collect the information; (3) the persons to whom the information may be disclosed; (4) the manner in which the information may be disclosed, such as by placing the information in a public viewing area or making the information available on the Internet; (5) any current arrangement under which the governmental entity sells personal information about individuals or discloses the information under a contract or agreement or in bulk; and (6) the manner in which a member of the public may protect private information that is described by Section 561.051(a) by redacting or omitting the information from a document that will be filed with the governmental entity. (b) The state or local governmental entity shall promptly amend the privacy policy whenever information in the policy becomes incorrect or incomplete. (c) The state or local governmental entity shall prominently post its current privacy policy: (1) through a prominent link on the main Internet site maintained by or for the governmental entity; and (2) if applicable, next to the sign that the governmental entity posts under Section 552.205. Sec. 561.055. GOVERNMENT INTERNET SITES: PRIVACY POLICY. (a) The Department of Information Resources shall adopt rules prescribing minimum privacy standards with which an Internet site or portal maintained by or for a state governmental entity must comply. The rules must be designed to limit the collection of personal information about users of the government Internet site or portal to information: (1) that the state governmental entity needs in order to accomplish a legitimate government purpose; (2) that the user of the site or portal knowingly and intentionally transmits to the state governmental entity; or (3) regarding the collection of which the user of the site or portal has actively given informed consent. (b) In adopting its rules under this section, the Department of Information Resources shall consider policies adopted by other states and the federal government in this regard. (c) A state governmental entity that maintains an Internet site or portal or for which an Internet site or portal is maintained shall adopt a privacy policy regarding information collected through the site or portal and provide a prominent link to the policy for users of the site or portal. The policy must be consistent with the rules adopted by the Department of Information Resources under this section and must be included as a prominent separate element of the general privacy policy that the entity is required to develop and to which it must provide an Internet link under Section 561.054. Sec. 561.056. AUDITOR GUIDELINES; PRIVACY POLICY. (a) The state auditor shall establish auditing guidelines to ensure that a state or local governmental entity: (1) does not routinely collect or retain more personal information than the entity needs to accomplish a legitimate governmental purpose of the entity; and (2) establishes an information management system that protects the privacy and security of information in accordance with applicable state and federal law. (b) Each state and local governmental entity shall establish a policy binding on the entity, its contractors, and subcontractors to protect the privacy of personal information and establish an information management system that protects the privacy and security of information in accordance with the guidelines established by the state auditor under Subsection (a). With regard to a governmental entity's contractors and subcontractors, this subsection applies to information a contractor or subcontractor receives in connection with a contract with the governmental entity. (c) During an audit otherwise authorized by law of a state or local governmental entity, the state auditor may audit a state or local governmental entity for compliance with the guidelines established under Subsection (a) and the privacy policy established under Subsection (b). An audit performed under this subsection is subject to a risk assessment and the inclusion of the audit in the audit plan recommended under Section 321.013(c).
[Sections 561.057-561.100 reserved for expansion]
SUBCHAPTER C. GUIDELINES
Sec. 561.101. ATTORNEY GENERAL GUIDELINES FOR REVIEWING PRIVACY AND SECURITY ISSUES. (a) The attorney general shall establish guidelines for state and local governmental entities to follow when considering privacy and security issues that arise in connection with requests for public information. The guidelines shall address procedural safeguards, legal issues, and other issues that in the opinion of the attorney general would help state and local governmental entities comply with applicable law and recommended information practices when handling personal information or information related to security. The guidelines shall balance the need for open government with respect for personal privacy and with the security needs of this state. (b) The attorney general shall establish guidelines for sharing information for security purposes among state, local, and federal governmental entities and with the private sector. The guidelines must ensure the protection of personal privacy to the extent feasible and must clarify and explain the legal consequences of sharing the information. (c) The guidelines do not create exceptions from required disclosure under Chapter 552. (d) The attorney general is not required to adopt formal guidelines under this section to the extent that the attorney general accomplishes the purposes of this section through other education, training, and publication efforts of the office of the attorney general. Sec. 561.102. OPEN RECORDS STEERING COMMITTEE; RECORDS MANAGEMENT INTERAGENCY COORDINATING COUNCIL. (a) The open records steering committee established under Section 552.009 shall periodically study and determine the implications for the personal privacy of individuals and for the security of this state of putting information held by government on the Internet and shall include its findings and recommendations in reports the committee makes under Section 552.009. (b) The Records Management Interagency Coordinating Council established under Section 441.203 shall provide guidance and policy direction to state and local governmental entities in appropriately incorporating developments in electronic management of information into their information management systems in ways that protect personal privacy and the security of this state and promote appropriate public access to public information that is not excepted from required public disclosure. SECTION 3.02. Chapter 11, Property Code, is amended by adding Section 11.008 to read as follows: Sec. 11.008. CONFIDENTIAL INFORMATION IN REAL PROPERTY RECORDS. (a) In this section, "instrument" means a deed, mortgage, or deed of trust. (b) An instrument executed on or after January 1, 2004, transferring an interest in real property to or from an individual may not be recorded unless a notice appears on the first page of the instrument in 12-point boldfaced type or 12-point uppercase letters and reads substantially as follows: NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. (c) The validity of an instrument as between the parties to the instrument and the notice provided by the instrument are not affected by a party's failure to include the notice required under Subsection (b). (d) The county clerk may not reject an instrument presented for recording because the instrument contains or fails to contain a social security number or driver's license number. If the county clerk accepts an instrument for recording, the recording of the instrument creates a conclusive presumption that the requirements of this section have been met. (e) The county clerk shall post a notice in the county clerk's office stating that instruments recorded in the real property or official public records or the equivalent of the real property or official public records of the county and executed on or after January 1, 2004: (1) are not required to contain a social security number or driver's license number; and (2) are public records available for review by the public. (f) All instruments recorded under this section are subject to inspection by the public. (g) Unless this section is cited in a law enacted after September 1, 2003, this section is the exclusive law governing the confidentiality of personal information contained in the real property or official public records or the equivalent of the real property or official public records of a county. (h) To the extent that federal law conflicts with this section, an instrument must contain the information required by and must be filed in a manner that complies with federal law. SECTION 3.03. Section 13.002, Property Code, is amended to read as follows: Sec. 13.002. EFFECT OF RECORDED INSTRUMENT. An instrument that is properly recorded in the proper county is: (1) notice to all persons of the existence of the instrument; and (2) subject to inspection by the public. SECTION 3.04. Each state and local governmental entity shall examine its records retention schedule and amend the schedule so that it complies with Section 561.053, Government Code, as added by this Act. SECTION 3.05. Section 11.008, Property Code, as added by this Act, applies only to a deed, mortgage, or deed of trust executed on or after January 1, 2004.
ARTICLE 4
SECTION 4.01. (a) Section 521.126, Transportation Code, is amended to read as follows: Sec. 521.126. ELECTRONICALLY READABLE INFORMATION. (a) The department may not include any information on a driver's license, commercial driver's license, or personal identification certificate in an electronically readable form other than the information printed on the license and a physical description of the licensee. (b) Except as provided by Subsection (e), a person commits an offense if the person: (1) accesses or uses electronically readable information from a driver's license, commercial driver's license, or personal identification certificate; or (2) compiles or maintains a database of electronically readable information derived from driver's licenses, commercial driver's licenses, or personal identification certificates. [The department shall take necessary steps to ensure that the information is used only for law enforcement or governmental purposes.] (c) An offense under Subsection (b) [Unauthorized use of the information] is a Class A misdemeanor. (d) The prohibition provided by Subsection (b) does not apply to: (1) an officer or employee of the department who accesses or uses the information for law enforcement or government purposes; (2) a peace officer, as defined by Article 2.12, Code of Criminal Procedure, acting in the officer's official capacity; (3) a license deputy, as defined by Section 12.702, Parks and Wildlife Code, issuing a license, stamp, tag, permit, or other similar item through use of a point-of-sale system under Section 12.703, Parks and Wildlife Code; or (4) a person acting as authorized by Section 109.61, Alcoholic Beverage Code. (e) The prohibition provided by Subsection (b)(1) does not apply to a financial institution if the information is accessed or used only for purposes of identification of an individual. The prohibition provided by Subsection (b)(2) does not apply to a financial institution if each license or certificate holder whose information is included in the compilation or database consents to the inclusion of the person's information in the compilation or database. Consent under this subsection must be on a separate document, signed by the license or certificate holder, that explains in at least 14-point bold type the information that will be included in the compilation or database. For the purposes of this subsection, "financial institution" has the meaning assigned by 31 U.S.C. Section 5312(a)(2), as amended. (f) A person may not use information derived from electronically readable information from a driver's license, commercial driver's license, or personal identification certificate to engage in telephone solicitation to encourage the purchase or rental of, or investment in, goods, other property, or services. (b) The change in law made by this section applies only to an offense committed on or after the effective date of this Act. For the purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before that date. An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose.
ARTICLE 5
SECTION 5.01. (a) Except as provided by Subsections (b) and (c) of this section, this Act takes effect September 1, 2003. (b) Section 2.04 of this Act takes effect September 1, 2005. (c) Section 3.01 of this Act takes effect January 1, 2004, as that section applies to a municipality with a population of less than 1.2 million.