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A BILL TO BE ENTITLED
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AN ACT
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relating to public information in the possession, custody, or |
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control of a current or former officer or employee of a governmental |
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body; creating a criminal offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 552.003, Government Code, is amended by |
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adding Subdivision (7) to read as follows: |
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(7) "Temporary custodian" means an officer or employee |
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of a governmental body who, in the transaction of official |
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business, creates or receives public information that the officer |
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or employee has not provided to the officer for public information |
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of the governmental body or the officer's agent. The term includes |
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a former officer or employee of a governmental body who created or |
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received public information in the officer's or employee's official |
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capacity that has not been provided to the officer for public |
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information of the governmental body or the officer's agent. |
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SECTION 2. Section 552.004, Government Code, is amended to |
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read as follows: |
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Sec. 552.004. PRESERVATION OF INFORMATION. (a) A |
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governmental body or, for information of an elective county office, |
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the elected county officer, may determine a time for which |
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information that is not currently in use will be preserved, subject |
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to Subsection (b) and to any applicable rule or law governing the |
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destruction and other disposition of state and local government |
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records or public information. |
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(b) A current or former officer or employee of a |
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governmental body who maintains public information on a privately |
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owned device shall: |
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(1) forward or transfer the public information to the |
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governmental body or a governmental body server to be preserved as |
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provided by Subsection (a); or |
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(2) preserve the public information in its original |
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form on the privately owned device for the time required under |
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Subsection (a). |
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SECTION 3. Section 552.203, Government Code, is amended to |
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read as follows: |
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Sec. 552.203. GENERAL DUTIES OF OFFICER FOR PUBLIC |
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INFORMATION. Each officer for public information, subject to |
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penalties provided in this chapter, shall: |
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(1) make public information available for public |
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inspection and copying; |
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(2) carefully protect public information from |
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deterioration, alteration, mutilation, loss, or unlawful removal; |
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[and] |
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(3) repair, renovate, or rebind public information as |
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necessary to maintain it properly; and |
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(4) make reasonable efforts to obtain public |
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information from a temporary custodian if: |
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(A) the information has been requested from the |
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governmental body; |
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(B) the officer for public information is aware |
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of facts sufficient to warrant a reasonable belief that the |
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temporary custodian has possession, custody, or control of the |
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information; |
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(C) the officer for public information is unable |
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to comply with the duties imposed by this chapter without obtaining |
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the information from the temporary custodian; and |
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(D) the temporary custodian has not provided the |
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information to the officer for public information of the |
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governmental body or the officer's agent. |
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SECTION 4. Subchapter E, Chapter 552, Government Code, is |
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amended by adding Section 552.234 to read as follows: |
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Sec. 552.234. OWNERSHIP OF PUBLIC INFORMATION. (a) A |
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current or former officer or employee of a governmental body does |
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not have, by virtue of the officer's or employee's position or |
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former position, a personal or property right to public information |
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the officer or employee created or received while acting in an |
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official capacity. |
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(b) A temporary custodian with possession, custody, or |
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control of public information shall surrender or return the |
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information to the governmental body not later than the 10th day |
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after the date the officer for public information of the |
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governmental body or the officer's agent requests the temporary |
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custodian to surrender or return the information. |
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(c) If a temporary custodian fails to surrender or return |
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public information to a governmental body as required by Subsection |
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(b), the officer for public information of the governmental body |
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shall, not later than the 10th business day after the deadline to |
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surrender or return information under Subsection (b), notify the |
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attorney general in writing of the facts related to the failure and |
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send a copy of the written notice to the requestor. On receipt of |
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written notice from an officer for public information as provided |
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by this subsection, the attorney general may sue for an injunction |
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or writ of mandamus to compel a temporary custodian with |
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possession, custody, or control of public information to surrender |
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or return the information as required by Subsection (b). A suit |
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filed under this subsection: |
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(1) must be filed in a district court for the county in |
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which the main offices of the governmental body are located; |
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(2) may not proceed, and process may not be issued, |
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until the court enters a written finding that the petition sets |
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forth facts sufficient to warrant probable cause that the current |
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or former officer or employee against whom the action is filed is in |
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possession, custody, or control of public information that has not |
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been made available to the governmental body that owns the |
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information; and |
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(3) shall be dismissed, with prejudice except as |
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provided by Subsection (e), if the current or former officer or |
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employee files an answer containing a general denial supported by a |
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sworn affidavit stating the current or former officer or employee |
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is not in possession, custody, or control of public information |
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responsive to the request at issue. |
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(d) The attorney general shall send a copy of a petition |
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filed under Subsection (c) to the requestor. |
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(e) A suit dismissed under Subsection (c)(3) is dismissed |
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without prejudice and may be refiled by the attorney general if the |
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current or former officer or employee, in providing the affidavit |
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authorized under Subsection (c)(3), engaged in conduct that is an |
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offense under Section 37.02 or 37.03, Penal Code, and is arrested, |
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charged, or indicted for that offense. Subsection (c)(3) does not |
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apply to a suit refiled under this subsection. |
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(f) For purposes of the application of Subchapter G to |
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information surrendered or returned to a governmental body by a |
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temporary custodian under Subsection (b) or as a result of a suit |
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under Subsection (c), the governmental body is considered to |
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receive the request for that information on the date the |
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information is surrendered or returned to the governmental body. |
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SECTION 5. The heading to Section 552.353, Government Code, |
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is amended to read as follows: |
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Sec. 552.353. FAILURE OR REFUSAL OF OFFICER FOR PUBLIC |
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INFORMATION OR TEMPORARY CUSTODIAN TO PROVIDE ACCESS TO OR COPYING |
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OF PUBLIC INFORMATION. |
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SECTION 6. Section 552.353, Government Code, is amended by |
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adding Subsection (a-1) to read as follows: |
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(a-1) A temporary custodian who has possession, custody, or |
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control of public information responsive to a request commits an |
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offense if, with criminal negligence, the temporary custodian fails |
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to surrender or return the information to the governmental body on |
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request of the officer for public information or the officer's |
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agent, as required by Section 552.234(b). |
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SECTION 7. This Act takes effect September 1, 2017. |