By: Williams S.B. No. 1289
(In the Senate - Filed March 7, 2013; March 13, 2013, read
first time and referred to Committee on Criminal Justice;
March 28, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; March 28, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1289 By: Schwertner
A BILL TO BE ENTITLED
AN ACT
relating to certain business entities engaged in the publication 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 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 dispositions of those criminal
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.
(4) "Publish" means to communicate or make information
available to another person in writing or by means of
telecommunications and includes communicating information on a
computer bulletin board or similar system.
Sec. 109.002. APPLICABILITY OF CHAPTER. This chapter
applies to a business entity that:
(1) publishes criminal record information, including
information:
(A) originally obtained pursuant to a request for
public information under Chapter 552, Government Code; or
(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 of a fee or other
consideration to remove, correct, or modify criminal record
information.
Sec. 109.003. DUTY TO PUBLISH COMPLETE AND ACCURATE
CRIMINAL RECORD INFORMATION. (a) A business entity must ensure
that criminal record information the entity publishes is complete
and accurate.
(b) For purposes of this chapter, criminal record
information published by a business entity is considered:
(1) complete if the information reflects the notations
of arrest and the filing and disposition of criminal charges, if
applicable; and
(2) accurate if the information:
(A) reflects the most recent 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.
Sec. 109.004. DISPUTING COMPLETENESS OR ACCURACY OF
INFORMATION. (a) A business entity shall clearly and
conspicuously publish an e-mail address, fax number, or mailing
address to enable a person who is the subject of criminal record
information published by the entity to dispute the completeness or
accuracy of the information.
(b) If a business entity receives a dispute regarding the
completeness or accuracy of criminal record information from a
person who is the subject of the information, the business entity
shall:
(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; and
(2) complete the investigation described by
Subdivision (1) not later than the 45th business day after the date
on which the entity receives notice of the dispute.
(c) If a business entity finds incomplete or inaccurate
criminal record information after conducting an investigation
prescribed by this section, the entity shall promptly remove the
inaccurate information from the website or other publication or
shall promptly correct the information, as applicable. The entity
may not:
(1) charge a fee to remove, correct, or modify
incomplete or inaccurate information; or
(2) continue to publish incomplete or inaccurate
information.
(d) A business entity shall provide written notice to the
person who disputed the completeness or accuracy of information 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.
Sec. 109.005. PUBLICATION OF CERTAIN CRIMINAL RECORD
INFORMATION PROHIBITED; CIVIL LIABILITY. (a) A person may not
publish any criminal record information in the person's possession
with respect to which the person has knowledge or has received
notice that:
(1) an order of expunction has been issued under
Article 55.02, Code of Criminal Procedure; or
(2) an order of nondisclosure has been issued under
Section 411.081(d), Government Code.
(b) A person who publishes information in violation of
Subsection (a) is liable to the individual who is the subject of the
information in an amount not to exceed $500 for each separate
violation and, in the case of a continuing violation, $500 for each
subsequent day on which the violation occurs.
(c) In an action brought 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. 109.006. CIVIL PENALTY; INJUNCTION. (a) A business
entity that publishes criminal record information in violation of
this chapter is liable to the state for a civil penalty in an amount
not to exceed $500 for each separate violation and, in the case of a
continuing violation, $500 for each subsequent day on which the
violation occurs. For purposes of this subsection, each criminal
record published in violation of this chapter 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 state treasury to the credit of the general revenue
fund.
(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.
(e) The attorney general or an appropriate prosecuting
attorney is entitled to recover reasonable expenses incurred in
obtaining injunctive relief or a civil penalty, or both, under this
chapter, including court costs and reasonable attorney's fees.
Sec. 109.007. VENUE. An action under this chapter must be
brought in a district court:
(1) in Travis County;
(2) in the county in which the person who is the
subject of the criminal record information resides; or
(3) in the county in which the business entity is
located.
Sec. 109.008. CUMULATIVE REMEDIES. The actions and
remedies provided by this chapter are not exclusive and are in
addition to any other action or remedy provided by law.
SECTION 2. Chapter 109, Business & Commerce Code, as added
by this Act, applies to any publication of criminal record
information 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 before
that date.
SECTION 3. This Act takes effect September 1, 2013.
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