83R647 RWG-D

By: McClendon H.B. No. 2861

A BILL TO BE ENTITLED

AN ACT

relating to certain business entities engaged in the publication, republication, or other dissemination of mug shots and other information regarding the involvement of an individual in the criminal justice system; providing a civil penalty.

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

SECTION 1. Subtitle C, Title 5, Business & Commerce Code, is amended by adding Chapter 109 to read as follows:

CHAPTER 109. BUSINESS ENTITIES ENGAGED IN PUBLICATION,

REPUBLICATION, OR OTHER DISSEMINATION OF CRIMINAL RECORD

INFORMATION

Sec. 109.001. DEFINITIONS. In this chapter:

(1) "Criminal justice agency" has the meaning assigned by Section 411.082, Government Code.

(2) "Criminal record information" means information about a person's involvement in the criminal justice system. The term includes:

(A) a description or notation of any arrests, any formal criminal charges, and the disposition of any charges;

(B) a photograph of the person taken pursuant to an arrest or other involvement in the criminal justice system; and

(C) personal identifying information of a person displayed in conjunction with any other record of the person's involvement in the criminal justice system.

(3) "Personal identifying information" means information that alone or in conjunction with other information identifies a person, including a person's name, address, date of birth, photograph, and social security number or other government-issued identification number.

Sec. 109.002. APPLICABILITY OF CHAPTER. (a) This chapter applies to a business entity that:

(1) publishes, republishes, or otherwise disseminates, through any print, electronic, or other medium, criminal record information, including information obtained pursuant to a request for public information under Chapter 552, Government Code; and

(2) receives advertising revenue for, or consideration for access to, a website or other publication containing criminal record information, or solicits or requires the payment of a fee or other consideration to:

(A) remove, correct, or modify criminal record information; or

(B) access criminal record information or portions of the information.

(b) This chapter does not apply to a publication of general circulation or an Internet website related to such a publication that contains news or other information, including a magazine, periodical newsletter, newspaper, pamphlet, or report.

Sec. 109.003. DUTY TO DISSEMINATE COMPLETE AND ACCURATE CRIMINAL RECORD INFORMATION. (a) A business entity must ensure that criminal record information the entity publishes, republishes, or otherwise disseminates is complete and accurate.

(b) For purposes of this chapter, criminal record information published, republished, or otherwise disseminated by a business entity is considered:

(1) complete if the information correctly reflects the notations of arrest and the filing and disposition of criminal charges, if applicable; and

(2) accurate if the information reflects the most recent information:

(A) received by the entity as an update in accordance with Section 411.0851(b)(1)(B), Government Code; or

(B) obtained by the entity from a law enforcement agency or criminal justice agency, including the Department of Public Safety, or any other governmental agency or entity within the 90-day period preceding the date of publication, republication, or other dissemination.

(c) A business entity shall state in a clear and conspicuous manner on the front page of the publication or Internet website:

(1) that the information provided is true and correct;

(2) that any photographs have not been modified; and

(3) a disclaimer on each record for which a final conviction has not been entered that the:

(A) "case is pending";

(B) individual is "not convicted"; or

(C) individual is "innocent until proven guilty".

(d) A business entity shall notify by mail or telephone each individual whose criminal record information is being published, republished, or otherwise disseminated of that fact. If the business entity is unable to contact the individual who is the subject of the information, the entity shall notify the agency or entity from which the business entity obtained the information.

Sec. 109.004. COPYRIGHT. A criminal justice agency owns a copyright of all photographs created by the agency.

Sec. 109.005. PUBLICATION PERIOD OF PHOTOGRAPHS. (a) A business entity may publish, republish, or otherwise disseminate a copyrighted photograph created by a criminal justice agency for 30 calendar days after the date the photograph was created.

(b) A business entity shall cease publishing, republishing, or otherwise disseminating a copyrighted photograph if during the 30-day period the business entity receives notice that:

(1) an order of expunction has been issued for the offense in connection with which the photograph was taken under Article 55.02, Code of Criminal Procedure;

(2) an order of nondisclosure for the offense in connection with which the photograph was taken has been issued under Section 411.081(d), Government Code;

(3) the prosecution for the offense in connection with which the photograph was taken has been dismissed;

(4) the individual has been acquitted of the offense in connection with which the photograph was taken; or

(5) the individual has successfully completed a term of deferred adjudication community supervision for the offense in connection with which the photograph was taken.

(c) After the expiration of the 30-day period, on request of the person who is the subject of the photograph or the copyright holder, a business entity shall cease publishing, republishing, or otherwise disseminating the copyrighted photograph.

(d) A business entity may not charge a fee for ceasing publication, republication, or dissemination of a copyrighted photograph under Subsection (b) or (c).

Sec. 109.006. DISPUTING COMPLETENESS OR ACCURACY OF INFORMATION OR UNAUTHORIZED PUBLICATION OF PHOTOGRAPH. (a) A business entity shall clearly and conspicuously publish an e-mail address, fax number, and telephone number and a physical address or mailing address to enable a person who is the subject of criminal record information or a photograph, or who is the copyright holder of a photograph, published, republished, or otherwise disseminated by the entity to contact the entity to dispute the completeness or accuracy of the information or the continued publication of a photograph required to be removed under Section 109.005.

(b) If the business entity receives a dispute under Subsection (a), the entity shall promptly investigate the disputed information or photograph free of charge and complete the investigation not later than the 10th business day after the date on which the entity receives notice of the dispute.

(c) If after an investigation as prescribed by this section it is found that the disputed information is incomplete or inaccurate or that the photograph was published after removal was required under Section 109.005, the business entity shall promptly remove the disputed information or photograph from the Internet website, publication, or other media used for dissemination or shall promptly correct the information, as applicable. The entity may not:

(1) charge a fee to remove, correct, or modify disputed information or remove a copyrighted photograph; or

(2) continue to publish, republish, or otherwise disseminate incomplete or inaccurate information or a copyrighted photograph.

(d) A business entity shall provide written notice to the person who disputed the information or the publication of the photograph of the results of the investigation conducted under this section not later than the fifth business day after the date on which the investigation is completed. The notice must include:

(1) a statement that the investigation is complete;

(2) a statement of the determination made by the entity on the completeness or accuracy of the disputed information or on the continued publication of the photograph;

(3) a copy of the criminal record information or photograph to be published, republished, or otherwise disseminated after the investigation and a description of the results of the investigation; and

(4) a statement that the entity shall provide, on request, a description of the procedure used to determine the completeness and accuracy of the information or the right of the entity to continue to publish the photograph, including the name, the business address, and, if available, the telephone number of each law enforcement agency, other governmental entity, or other person contacted in connection with the investigation or verification.

Sec. 109.007. PUBLICATION, REPUBLICATION, OR OTHER DISSEMINATION OF CERTAIN CRIMINAL RECORD INFORMATION PROHIBITED; CIVIL LIABILITY. (a) A person may not publish, republish, or otherwise disseminate any criminal record information in the person's possession if the person has knowledge or has received notice that:

(1) an order of expunction has been issued with respect to that information under Article 55.02, Code of Criminal Procedure;

(2) an order of nondisclosure has been issued with respect to that information under Section 411.081(d), Government Code;

(3) the prosecution for the offense that is the subject of the information has been dismissed;

(4) the individual has been acquitted of the offense that is the subject of the information; or

(5) the individual has successfully completed a term of deferred adjudication community supervision for the offense that is the subject of the information.

(b) A person who disseminates information in violation of Subsection (a) or a photograph in violation of Section 109.005(b) is liable to the individual who is the subject of the information or photograph in the amount of $100 for each violation. For purposes of this subsection, each day the violation continues constitutes a separate violation.

(c) In an action brought by or on behalf of an individual who is the subject of the information or photograph under this section, the court may grant injunctive relief to prevent or restrain a violation of this section.

(d) An individual who prevails in an action brought under this section is also entitled to recover court costs and reasonable attorney's fees.

Sec. 109.008. CIVIL PENALTY; INJUNCTION. (a) A business entity that publishes, republishes, or otherwise disseminates criminal record information, including a photograph, in violation of this chapter is liable to the state for a civil penalty in an amount not to exceed $1,000 for each violation. For purposes of this subsection, each day the violation continues constitutes a separate violation.

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

(c) A civil penalty collected under this section shall be deposited in the general revenue fund to be used only to support the Texas Correctional Office on Offenders with Medical or Mental Impairments under Chapter 614, Health and Safety Code.

(d) The attorney general may bring an action in the name of the state to restrain or enjoin a violation or threatened violation of this chapter.

SECTION 2. Chapter 109, Business & Commerce Code, as added by this Act, applies to any publication, republication, or other dissemination of criminal record information, including a photograph, that occurs on or after the effective date of this Act, regardless of whether:

(1) the information relates to events or activities that occurred before, on, or after that date; or

(2) the information was initially published, republished, or otherwise disseminated before that date.

SECTION 3. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2013.