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.