BILL ANALYSIS |
C.S.H.B. 4114 |
By: McClendon |
Business & Industry |
Committee Report (Substituted) |
BACKGROUND AND PURPOSE
Interested parties note that certain businesses actively collect arrest photos and criminal records in bulk, often through public information requests or contracts with law enforcement entities, for posting on revenue-producing websites. These photos or criminal records may include predisposition arrest information and are not necessarily updated for accuracy or completeness. The parties contend that, in addition to being a source of misleading or inaccurate information, these business practices often exploit and potentially harm members of our society who have been acquitted or against whom charges were never filed. Persons who have had an encounter with the criminal justice system may seek to have inaccurate or misleading information removed from these websites only to be met with a demand to pay an administrative fee to have their arrest photo or information removed from the website. Current state guidelines cap these fees but, if the information is displayed on more than one website, the cost multiplies, which the parties claim has essentially created a for-profit industry based solely on the exploitation of others. Recently enacted legislation placed some restrictions on this practice, but the parties assert that the industry still has thrived and people continue to be exploited. C.S.H.B. 4114 seeks to further minimize or eliminate the potential impact of this practice by amending the applicable law.
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CRIMINAL JUSTICE IMPACT
It is the committee's opinion that this bill does not expressly create a criminal offense, increase the punishment for an existing criminal offense or category of offenses, or change the eligibility of a person for community supervision, parole, or mandatory supervision.
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RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.
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ANALYSIS
C.S.H.B. 4114 amends Chapter 109, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, to revise the applicability of statutory provisions regarding business entities engaged in publication of criminal record information to make those provisions applicable to a business entity that publishes, republishes, or otherwise disseminates, through any print, electronic, or other medium, criminal record information and that receives advertising revenue for, or consideration for access to, a website or other publication containing criminal record information or that solicits or requires the payment of a fee or other consideration to remove, correct, or modify criminal record information or to access criminal record information or portions of the information. The bill exempts from these statutory provisions: a business entity that requests criminal record information about a specific individual whose personal identifying information is included in the request or that purchases or acquires only alphanumeric criminal record information in complete record sets at regular intervals as the record sets are made available contemporaneously from a criminal justice agency, custodian of court records, or other state governmental agency; a publication of general circulation or a website related to such a publication that contains news or other information, including a magazine, periodical newsletter, newspaper, pamphlet, or report; or a radio or television station that holds a license issued by the Federal Communications Commission.
C.S.H.B. 4114 requires a business entity to state in a clear and conspicuous manner on the front page of the publication, website, or other medium that the information provided is true and correct and that any photographs have not been modified and to provide a disclaimer on each record for which a final conviction has not been entered that the "case is pending," the individual is "not convicted," or the individual is "innocent until proven guilty." The bill requires the entity to notify by mail or telephone each individual whose criminal record information is being published, republished, or otherwise disseminated of that fact and requires the entity, if it is unable to contact the individual who is the subject of the information, to notify the agency or entity from which the business entity obtained the information.
C.S.H.B. 4114 establishes that a criminal justice agency owns a copyright of all photographs created by the agency and that a criminal justice agency is under no obligation and is not otherwise required to enter into a contract or other agreement with any individual or business entity to provide criminal record information, including photographs, in bulk to a requestor on a periodic or regularly recurring basis.
C.S.H.B. 4114 authorizes a business entity to 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 but requires the entity to cease publishing, republishing, or otherwise disseminating a copyrighted photograph if during the 30-day period the business entity receives notice that, with respect to the offense in connection with which the photograph was taken, an order of expunction has been issued for the offense, an order of nondisclosure has been issued for certain criminal history record information for the offense, the prosecution for the offense has been dismissed, the individual has been acquitted of the offense, or the individual has successfully completed a term of deferred adjudication community supervision for the offense. The bill requires a business entity, after the expiration of the 30-day period, on request of the person who is the subject of the photograph or the copyright holder, to cease publishing, republishing, or otherwise disseminating the copyrighted photograph and prohibits a business entity from charging a fee for ceasing publication, republication, or dissemination of a copyrighted photograph when the cessation is required during the 30-day period or when the subject of the photograph or the copyright holder requests cessation after the 30-day period.
C.S.H.B. 4114 revises statutory provisions establishing procedures for disputing the completeness or accuracy of published criminal record information to make those provisions applicable to a dispute regarding the unauthorized publication of a photograph, allowing the copyright holder of a photograph, as well as the subject of criminal record information, to dispute, in addition to the completeness or accuracy of information, the continued publication of a photograph whose removal is required by law. The bill changes from the 45th business day to the 10th business day after the date a business entity receives notice of a dispute the deadline by which a business entity that receives such notice is required to complete an investigation into the disputed information and sets out content requirements for the written notice regarding the results of such an investigation that the business entity is required to provide to the person who disputed the information or the publication of the photograph. The bill includes a telephone number and a physical address among the contact information that a business entity is required to publish in a clear and conspicuous manner to enable a person to dispute the completeness or accuracy of information or the continued publication of a photograph whose removal is otherwise required.
C.S.H.B. 4114 adds to the conditions under which a business entity is prohibited from publishing, republishing, or otherwise disseminating any criminal record information in the business entity's possession the business entity having certain knowledge or having received certain notice, with respect to the offense that is the subject of that information, that the prosecution for the offense has been dismissed, the individual has been acquitted of the offense, or the individual has successfully completed a term of deferred adjudication community supervision for the offense. The bill removes the $500 cap on the amount for which a business entity that publishes information in violation of that prohibition is liable to the individual who is the subject of the information for each separate violation and, in the case of a continuing violation, for each subsequent day on which the violation occurs and instead makes a business entity that disseminates information or a photograph in violation of the applicable prohibitions, in addition to any liability to a copyright owner for any violation under federal copyright law, liable to the individual who is the subject of the information or photograph in an amount of $100 for each separate violation and, in the case of a continuing violation, for each subsequent day on which the violation occurs.
C.S.H.B. 4114 increases from $500 to $1,000 the cap on the amount of civil penalty a business entity that publishes, republishes, or otherwise disseminates criminal record information in violation of statutory provisions relating to such dissemination is liable to the state for each separate violation and, in the case of a continuing violation, for each subsequent day on which the violation occurs. The bill specifies that such a civil penalty, which is required to be deposited in the general revenue fund, is to be used only to support the Texas Correctional Office on Offenders with Medical or Mental Impairments.
C.S.H.B. 4114 amends the Government Code to prohibit a law enforcement agency from publishing on the agency's website any photograph taken pursuant to an arrest, lawful detention, or other involvement in the criminal justice system, unless the person depicted in the photograph has been finally convicted for the offense in connection with which the photograph was taken.
C.S.H.B. 4114 applies to any publication, republication, or other dissemination of criminal record information, including a photograph, by a business entity subject to the bill's provisions that occurs on or after the bill's effective date, regardless of whether the information relates to events or activities that occurred before, on, or after that date or the information was initially published, republished, or otherwise disseminated before that date.
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EFFECTIVE DATE
On passage, or, if the bill does not receive the necessary vote, September 1, 2015.
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COMPARISON OF ORIGINAL AND SUBSTITUTE
While C.S.H.B. 4114 may differ from the original in minor or nonsubstantive ways, the following comparison is organized and formatted in a manner that indicates the substantial differences between the introduced and committee substitute versions of the bill.
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