82R13506 MCK-D

By: Gallego H.B. No. 3777

A BILL TO BE ENTITLED

AN ACT

relating to collection, storage, and distribution of criminal history record information; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Articles 60.01 through 60.21, Code of Criminal Procedure, are designated as Subchapter A, Chapter 60, Code of Criminal Procedure, and a heading is added to Subchapter A to read as follows:

SUBCHAPTER A. INFORMATION SYSTEMS AND DATA COLLECTION

SECTION 2. Article 60.01, Code of Criminal Procedure, is amended to read as follows:

Art. 60.01. DEFINITIONS. In this subchapter [chapter]:

(1) "Administration of criminal justice" means the performance of any of the following activities: detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of an offender. The term includes criminal identification activities and the collection, storage, and dissemination of criminal history record information.

(2) "Appeal" means the review of a decision of a lower court by a superior court other than by collateral attack.

(3) "Computerized criminal history system" means the data base containing arrest, disposition, and other criminal history maintained by the Department of Public Safety.

(4) "Corrections tracking system" means the data base maintained by the Texas Department of Criminal Justice on all offenders under its supervision.

(5) "Council" means the Criminal Justice Policy Council.

(6) "Criminal justice agency" means a federal or state agency that is engaged in the administration of criminal justice under a statute or executive order and allocates a substantial part of its annual budget to the administration of criminal justice.

(7) "Criminal justice information system" means the computerized criminal history system and the corrections tracking system.

(8) "Disposition" means an action that results in the termination, transfer to another jurisdiction, or indeterminate suspension of the prosecution of a criminal charge.

(9) "Incident number" means a unique number assigned to a specific person during a specific arrest.

(10) "Offender" means any person who is assigned an incident number.

(11) "Offense code" means a numeric code for each offense category.

(12) "Rejected case" means:

(A) a charge that, after the arrest of the offender, the prosecutor declines to include in an information or present to a grand jury; or

(B) an information or indictment that, after the arrest of the offender, the prosecutor refuses to prosecute.

(13) "Release" means the termination of jurisdiction over an individual by the criminal justice system.

(14) "State identification number" means a unique number assigned by the Department of Public Safety to each person whose name appears in the criminal justice information system.

(15) "Uniform incident fingerprint card" means a multiple part form containing a unique incident number with space for information relating to the charge or charges for which a person is being arrested, the person's fingerprints, and other information relevant to the arrest.

(16) "Electronic means" means the transmission of data between word processors, data processors, or similar automated information equipment over dedicated cables, commercial lines, or other similar methods of transmission.

SECTION 3. Article 60.02(d), Code of Criminal Procedure, is amended to read as follows:

(d) The data bases must contain the information required by this subchapter [chapter].

SECTION 4. Article 60.04(b), Code of Criminal Procedure, is amended to read as follows:

(b) A discrete submission of information under any article of this subchapter [chapter] must contain, in conjunction with information required, the defendant's name and state identification number.

SECTION 5. Article 60.06(a), Code of Criminal Procedure, is amended to read as follows:

(a) Each criminal justice agency shall:

(1) compile and maintain records needed for reporting data required by the Texas Department of Criminal Justice and the Department of Public Safety;

(2) transmit to the Texas Department of Criminal Justice and the Department of Public Safety, when and in the manner the Texas Department of Criminal Justice and the Department of Public Safety direct, all data required by the Texas Department of Criminal Justice and the Department of Public Safety;

(3) give the Department of Public Safety and the Texas Department of Criminal Justice or their accredited agents access to the agency for the purpose of inspection to determine the completeness and accuracy of data reported;

(4) cooperate with the Department of Public Safety and the Texas Department of Criminal Justice so that the Department of Public Safety and the Texas Department of Criminal Justice may properly and efficiently perform their duties under this subchapter [chapter]; and

(5) cooperate with the Department of Public Safety and the Texas Department of Criminal Justice to identify and eliminate redundant reporting of information to the criminal justice information system.

SECTION 6. Article 60.08(d), Code of Criminal Procedure, is amended to read as follows:

(d) Except as otherwise required by applicable state laws or regulations, information or data required by this subchapter [chapter] to be reported to the Texas Department of Criminal Justice or the Department of Public Safety shall be reported promptly but not later than the 30th day after the date on which the information or data is received by the agency responsible for reporting it except in the case of an arrest. An offender's arrest shall be reported to the Department of Public Safety not later than the seventh day after the date of the arrest.

SECTION 7. Article 60.21(c), Code of Criminal Procedure, is amended to read as follows:

(c) The report described by Subsection (b)(2) must contain a disposition completeness percentage for each county in this state. For purposes of this subsection, "disposition completeness percentage" means the percentage of arrest charges a county reports to the Department of Public Safety to be entered in the computerized criminal history system under this subchapter [chapter] that were brought against a person in the county for which a disposition has been subsequently reported and entered into the computerized criminal history system.

SECTION 8. Chapter 60, Code of Criminal Procedure, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. PROVIDERS OF CRIMINAL

HISTORY RECORD INFORMATION

Art. 60.51. DEFINITIONS. In this subchapter:

(1) "Department" means the Department of Public Safety.

(2) "Fee" means anything of value, including valuable consideration or a service or the promise of valuable consideration or a service, directly or indirectly received by a provider of criminal history record information as payment for the information.

(3) "License" means a license under this subchapter to distribute criminal history record information.

Art. 60.52. LICENSE REQUIRED. (a) A person may not distribute criminal history record information for a fee unless the person holds a license.

(b) The department shall adopt rules that:

(1) establish the requirements for a person to be licensed to engage in the business of distributing criminal history record information for a fee; and

(2) govern the administration of this subchapter.

Art. 60.53. LICENSE APPLICATION. The department by rule shall determine the types of information to be included in an application for a license on a form prescribed by the director.

Art. 60.54. APPLICATION FEE. The department may impose a fee for a license in an amount sufficient to cover the costs incurred by the department in administering this subchapter.

Art. 60.55. DENIAL OF APPLICATION; NOTICE. (a) The department may deny an application for a license if the applicant has previously had a license issued under this subchapter revoked.

(b) The department shall send written notice of the decision to the applicant at the address shown on the application by certified mail, return receipt requested. The notice must state the reason for the department's decision.

Art. 60.56. TERM OF LICENSE; NOTICE OF EXPIRATION. (a) A license is valid for the period set by the department.

(b) Not later than the 30th day before the expiration date of a person's license, the department shall send written notice of the impending license expiration to the person at the person's last known address according to the department's records.

Art. 60.57. PROCEDURE FOR RENEWAL. (a) A person may apply to the department to renew the person's license. The application for renewal must be:

(1) made on a form approved by the department;

(2) submitted to the department before the expiration date of the license; and

(3) accompanied by a nonrefundable fee.

(b) A person whose license expires and is not renewed under this article may apply for a new license under Article 60.53.

Art. 60.58. PERIODIC INSPECTIONS. (a) The department may enter and inspect at any time during business hours:

(1) the place of business of any person regulated under this subchapter; or

(2) any place in which the department has reasonable cause to believe that a person is violating this subchapter or a department rule or order.

(b) At least once every two years, the department shall inspect the place of business of each license holder.

(c) The department shall conduct additional inspections based on a schedule of risk-based inspections using the following criteria:

(1) any history of violations involving the business; and

(2) any other factor determined by the department by rule.

(d) The license holder shall pay a fee for each risk-based inspection performed under Subsection (c). The department by rule shall set the amount of the fee.

Art. 60.59. PERSONNEL. The department may employ personnel necessary to administer and enforce this subchapter.

Art. 60.60. DISTRIBUTION OF CERTAIN CRIMINAL HISTORY RECORD INFORMATION. A person may not compile or distribute criminal history record information for which the person has received notice that:

(1) an order of expunction has been issued under Article 55.02, Code of Criminal Procedure; or

(2) an order of nondisclosure has been issued under Section 411.081(d) or (f-1), Government Code.

Art. 60.61. DISCIPLINARY ACTION. (a) The department may suspend or revoke a license or place the license holder on probation for a violation of this subchapter or a rule adopted under this subchapter.

(b) A proceeding under this article is subject to Chapter 2001, Government Code.

Art. 60.62. CIVIL PENALTY. (a) Except as provided by Subsection (b), a person who violates this subchapter or a rule adopted under this subchapter is liable to the state for a civil penalty in an amount not to exceed $100 for each violation.

(b) The department may issue a warning to a person for the first violation of Article 60.60. After receiving a warning for the first violation, the person is liable to the state for a civil penalty not to exceed $1,000 for each subsequent violation.

(c) The attorney general or an appropriate prosecuting attorney may sue to collect a civil penalty under this article.

(d) A civil penalty collected under this article shall be deposited in the state treasury to the credit of the general revenue fund.

Art. 60.63. ADMINISTRATIVE PENALTY. (a) The department may impose an administrative penalty on a person regardless of whether the person holds a license if the person violates this subchapter or a rule adopted under this subchapter.

(b) The amount of the penalty may not exceed $100, and each day a violation continues or occurs is a separate violation for the purpose of imposing a penalty. The amount shall be based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the harm caused by the violation;

(3) the history of previous violations;

(4) the amount necessary to deter a future violation;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

(c) The enforcement of the penalty may be stayed during the time the order is under judicial review if the person pays the penalty to the clerk of the court or files a supersedeas bond with the court in the amount of the penalty. A person who cannot afford to pay the penalty or file the bond may stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs, subject to the right of the board to contest the affidavit as provided by those rules.

(d) The attorney general may sue to collect the penalty.

(e) A proceeding to impose the penalty is a contested case under Chapter 2001, Government Code.

SECTION 9. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2011.

(b) Articles 60.52(a), 60.61, 60.62, and 60.63, Code of Criminal Procedure, as added by this Act, take effect January 1, 2012.