78R4461 KCR/RCJ-D
By: Hinojosa 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. (a) Section 20.02(a), Business & Commerce
Code, is amended to read as follows:
(a) Except as provided by Section 20.035, a [A] consumer
reporting agency may furnish a consumer report only:
(1) in response to a court order issued by a court with
proper jurisdiction;
(2) in accordance with the written instructions of the
consumer to whom the report relates; or
(3) to a person the agency has reason to believe:
(A) intends to use the information in connection
with a transaction involving the extension of credit to, or review
or collection of an account of, the consumer to whom the report
relates;
(B) intends to use the information for employment
purposes as authorized under the Fair Credit Reporting Act (15
U.S.C. Section 1681 et seq.), as amended, and regulations adopted
under that Act;
(C) intends to use the information in connection
with the underwriting of insurance involving the consumer as
authorized under the Fair Credit Reporting Act (15 U.S.C. Section
1681 et seq.), as amended, and regulations adopted under that Act;
(D) intends to use the information in connection
with a determination of the consumer's eligibility for a license or
other benefit granted by a governmental entity required by law to
consider an applicant's financial responsibility or status;
(E) has a legitimate business need for the
information in connection with a business transaction involving the
consumer; or
(F) intends to use the information for any
purpose authorized under the Fair Credit Reporting Act (15 U.S.C.
Section 1681 et seq.), as amended, and regulations adopted under
that Act.
(b) Chapter 20, Business & Commerce Code, is amended by
adding Section 20.035 to read as follows:
Sec. 20.035. DISCLOSURE CONCERNING IDENTITY THEFT. (a) A
consumer reporting agency that knows or should have known of
suspicious activity related to a consumer's credit or other
financial accounts shall immediately disclose to the consumer in
writing all information pertaining to the consumer in the agency's
files as described by Section 20.03, regardless of whether the
consumer requests the information.
(b) For purposes of this section, a consumer reporting
agency is presumed to know or have known of suspicious activity
related to a consumer's credit or other financial accounts if:
(1) a new account is opened in the consumer's name
using a different address;
(2) the consumer informs the consumer reporting agency
in writing that the consumer has filed a complaint alleging
commission of an offense under Section 32.51, Penal Code; or
(3) the consumer informs the consumer reporting agency
in a notarized written declaration that the consumer is concerned
about fraudulent activities related to the consumer's credit or
other financial accounts, including:
(A) the opening of a credit card account in the
consumer's name without authorization; or
(B) the finding of unauthorized charges on a
credit card account held by the consumer.
(c) It is a defense to a civil action brought under this
section that the consumer reporting agency made a good faith effort
to make the disclosure required by Subsection (a) but was unable to
locate the consumer.
(c) Section 20.04(b), Business & Commerce Code, is amended
to read as follows:
(b) A consumer reporting agency may not charge a fee for:
(1) a request by a consumer for a copy of the
consumer's file made not later than the 60th day after the date on
which adverse action is taken against the consumer;
(2) notification of the deletion of information that
is found to be inaccurate or can no longer be verified sent to a
person designated by the consumer, as prescribed by Section 611 of
the Fair Credit Reporting Act (15 U.S.C. Section 1681i), as
amended;
(3) a set of instructions for understanding the
information presented on the consumer report; [or]
(4) a toll-free telephone number that consumers may
call to obtain additional assistance concerning the consumer
report; or
(5) a disclosure of a consumer file required by
Section 20.035.
(d) This section applies only to conduct occurring on or
after September 1, 2003.
SECTION 1.02. Subchapter D, Chapter 35, Business & Commerce
Code, is amended by adding Section 35.58 to read as follows:
Sec. 35.58. BUSINESS RECEIPT CONTAINING DEBIT OR CREDIT
CARD INFORMATION. (a) This section does not apply to a transaction
in which the sole means of recording a person's debit or credit card
account number on a receipt or other document evidencing the
transaction is by handwriting or by an imprint or copy of the debit
or credit card.
(b) A person that accepts a debit or credit card for the
transaction of business may not use a cash register or other machine
to print a receipt or other document that evidences the transaction
unless at least four digits of the cardholder's credit card account
number or debit card account number are omitted from the receipt or
document.
(c) A person who violates this section 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.
(d) 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 Subsection (c).
SECTION 1.03. Subchapter D, Chapter 35, Business & Commerce
Code, is amended by adding Section 35.59 to read as follows:
Sec. 35.59. RETAIL CREDIT CARD APPLICATION. (a) A person
engaged in the retail sale of goods or services that issues a credit
card for use by a consumer shall ensure that only persons who are
supervisors or managers employed by the person process or otherwise
have access to the consumer's credit card application.
(b) A person that violates this section is liable to the
state for a civil penalty in an amount not to exceed $1,000 for each
violation. 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.
(c) The attorney general may bring an action in the name of
the state to restrain or enjoin a business entity from violating
this section.
SECTION 1.04. Subchapter D, Chapter 392, Finance Code, is
amended by adding Section 392.307 to read as follows:
Sec. 392.307. VICTIM OF IDENTITY THEFT. (a) On receipt of
a copy of a criminal complaint alleging commission of an offense
under Section 32.51, Penal Code, and a copy of an accompanying
police report from a consumer, a debt collector shall stop debt
collection activities against the consumer on any debt incurred
because of the use of identifying information in violation of that
section.
(b) The debt collector may resume debt collection
activities against the consumer under Subsection (a) only if:
(1) the person charged with an offense under Section
32.51, Penal Code, is acquitted or the charge is dismissed; or
(2) the statute of limitations bars prosecution of the
offense.
SECTION 1.05. Subtitle Z, Title 3, Finance Code, is amended
by adding Chapter 278 to read as follows:
CHAPTER 278. THUMBPRINT SIGNATURE PROGRAM
Sec. 278.001. DEFINITION. In this chapter, "financial
institution" has the meaning assigned by Section 31.002.
Sec. 278.002. THUMBPRINT SIGNATURE REQUIRED TO CASH CERTAIN
CHECKS. (a) A financial institution may not pay a check presented
by a person who does not have an account with the financial
institution unless the person provides the person's thumbprint on
the check.
(b) Subsection (a) does not apply to a check presented by a
person whose physical condition makes taking the person's
thumbprint impossible.
Sec. 278.003. CIVIL PENALTY. (a) A financial institution
that violates Section 278.002 is liable to the state for a civil
penalty in an amount not to exceed $750 for each violation. The
attorney general or the prosecuting attorney in the county in which
the violation occurs may bring suit to recover the civil penalty
under this section.
(b) The attorney general may bring an action in the name of
the state to restrain or enjoin a financial institution from
violating this section.
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
who investigates an alleged violation of Section 32.51, Penal Code,
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 offense was committed; or
(2) the county of residence for 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. Article 15.03, Code of Criminal Procedure, is
amended by adding Subsection (c) to read as follows:
(c) Notwithstanding Subsection (a), a magistrate may issue
a warrant of arrest or a summons based on a person's statement under
oath alleging an offense under Section 32.41, Penal Code, or
alleging an offense under Section 31.03 or 31.04, Penal Code,
committed by means of fraudulently issuing or passing a check or
similar sight order for the payment of money, only if the person's
statement indicates that two or more forms of identification were
required from the alleged offender at the time the check or similar
sight order was accepted for the payment of money.
SECTION 2.04. 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 2.05. 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
immediately a report with the department 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 2.06. (a) Section 32.51, Penal Code, is amended by
amending Subsection (d) and adding Subsection (f) 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.
(f) For purposes of this section, intent to harm or defraud
another is presumed if the actor obtains, possesses, transfers, or
uses the identifying information of six or more persons without the
consent of those persons.
(b) 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 purposes of this subsection, an
offense was committed before September 1, 2003, if any element of
the offense occurs before that date.
ARTICLE 3
SECTION 3.01. (a) Except as provided by Subsection (b),
this Act takes effect September 1, 2003.
(b) Section 1.02 of this Act takes effect January 1, 2004.