84R24076 GRM-F

By: McClendon H.B. No. 4114

Substitute the following for H.B. No. 4114:

By: Villalba C.S.H.B. No. 4114

A BILL TO BE ENTITLED

AN ACT

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

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

SECTION 1. The heading to Chapter 109, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, is amended to read as follows:

CHAPTER 109. BUSINESS ENTITIES ENGAGED IN PUBLICATION,

REPUBLICATION, OR OTHER DISSEMINATION OF CRIMINAL RECORD

INFORMATION

SECTION 2. Section 109.002, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, is amended to read as follows:

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 a photograph taken pursuant to an arrest or other information[:

[(A)] originally obtained pursuant to a request for public information under Chapter 552, Government Code; and [or]

(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:

(1) a business entity that:

(A) requests criminal record information about a specific individual whose personal identifying information is included in the request; or

(B) 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;

(2) 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; or

(3) a radio or television station that holds a license issued by the Federal Communications Commission

[(B) purchased or otherwise obtained by the entity or an affiliated business entity from the Department of Public Safety under Subchapter F, Chapter 411, Government Code; and

[(2) requires the payment:

[(A) of a fee in an amount of $150 or more or other consideration of comparable value to remove criminal record information; or

[(B) of a fee or other consideration to correct or modify criminal record information].

SECTION 3. Section 109.003, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, is amended to read as follows:

Sec. 109.003. DUTY TO DISSEMINATE [PUBLISH] 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, as applicable; and

(2) accurate if the information:

(A) reflects the most recent updated information received by the entity [from the Department of Public Safety] in accordance with Section 411.0851(b)(1)(B), Government Code; or

(B) was 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 60-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, Internet website, or other medium:

(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.

SECTION 4. Chapter 109, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, is amended by adding Sections 109.0031, 109.0032, and 109.0033 to read as follows:

Sec. 109.0031. COPYRIGHT. A criminal justice agency owns a copyright of all photographs created by the agency.

Sec. 109.0032. CONTRACTS. 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.

Sec. 109.0033. 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 under Article 55.02, Code of Criminal Procedure, for the offense in connection with which the photograph was taken;

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

(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).

SECTION 5. Section 109.004, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, is amended to read as follows:

Sec. 109.004. 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, telephone number, and physical address or mailing address to enable a person who is the subject of criminal record information, or is the copyright holder of a photograph, published, republished, or otherwise disseminated by the entity to dispute the completeness or accuracy of the information or the continued publication of a photograph required to be removed under Section 109.0033.

(b) If a business entity receives a dispute under Subsection (a) [regarding the completeness or accuracy of criminal record information from a person who is the subject of the information], the business entity shall promptly:

(1) verify with the appropriate law enforcement agency or criminal justice agency, including the Department of Public Safety, or any other governmental agency or entity, free of charge the disputed information, including any photograph; and

(2) complete the investigation described by Subdivision (1) not later than the 10th [45th] business day after the date the entity receives notice of the dispute.

(c) If, after conducting an investigation prescribed by Subsection (b), a business entity finds incomplete or inaccurate criminal record information or that a photograph was published after removal was required under Section 109.0033 [after conducting an investigation prescribed by this section], the entity shall promptly remove the inaccurate information or photograph from the website or other publication, or other medium 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 [incomplete or inaccurate] 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 [completeness or accuracy of] information or the publication of a photograph of the results of an 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.

SECTION 6. The heading to Section 109.005, Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, is amended to read as follows:

Sec. 109.005. PUBLICATION, REPUBLICATION, OR OTHER DISSEMINATION OF CERTAIN CRIMINAL RECORD INFORMATION PROHIBITED; CIVIL LIABILITY.

SECTION 7. Sections 109.005(a) and (b), Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, are amended to read as follows:

(a) A business entity may not publish, republish, or otherwise disseminate any criminal record information in the business entity's possession with respect to which the business entity 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; [or]

(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) In addition to any liability to a copyright owner for any violation under federal copyright law, a [A] business entity that disseminates [publishes] information in violation of Subsection (a) or a photograph in violation of Section 109.0033(b) is liable to the individual who is the subject of the information or photograph in an amount of $100 [not to exceed $500] for each separate violation and, in the case of a continuing violation, an amount of $100 [not to exceed $500] for each subsequent day on which the violation occurs.

SECTION 8. Sections 109.006(a) and (c), Business & Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular Session, 2013, are amended to read as follows:

(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 [$500] for each separate violation and, in the case of a continuing violation, an amount not to exceed $1,000 [$500] for each subsequent day on which the violation occurs. For purposes of this subsection, each criminal record published, republished, or otherwise disseminated in violation of this chapter constitutes a separate violation.

(c) A civil penalty collected under this section shall be deposited in the [state treasury to the credit of 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.

SECTION 9. Subtitle B, Title 4, Government Code, is amended by adding Chapter 412 to read as follows:

CHAPTER 412. PHOTOGRAPHS RELATED TO CRIMINAL RECORD INFORMATION

Sec. 412.001. DEFINITION. In this chapter, "law enforcement agency" means an agency of the state, or of a county, municipality, or other political subdivision of the state, that is engaged in the administration or enforcement of criminal justice and that allocates a substantial portion of its annual budget to the administration or enforcement of criminal justice.

Sec. 412.002. PUBLICATION OF CERTAIN PHOTOGRAPHS ON LAW ENFORCEMENT AGENCY INTERNET WEBSITES PROHIBITED. A law enforcement agency may not publish on the agency's Internet 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.

SECTION 10. Chapter 109, Business & Commerce Code, as amended by this Act, applies to any publication, republication, or other dissemination of criminal record information, including a photograph, by a business entity subject to this Act 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 11. 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, 2015.