By: McClendon 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. 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 arrest photographs or
information[:
[(A)] originally obtained pursuant to a request
for public information about a specific identifiable individual
under Chapter 552, Government Code; or originally obtained pursuant
to a bulk request for public information about random or
non-specifically identified individuals 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 requests for information
specifically about identifiable particular individuals by 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
[(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 and 109.0032
to read as follows:
Sec. 109.0031. COPYRIGHT; CONTRACTS. (a) A criminal justice
agency owns a copyright of all photographs created by the agency.
(b) A criminal justice agency is under no duty and is not
required to enter into a contract or other agreement with any
individual or business entity to provide information or photographs
in bulk quantity to a requestor on a periodic or regularly recurring
basis.
Sec. 109.0032. 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 a 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 109.0032.
(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 109.0032 [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) A business entity that disseminates [publishes]
information in violation of Subsection (a) or a photograph in
violation of Section 109.0032(b) is liable to the individual who is
the subject or copyright owner, as applicable, 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. INTERNET PUBLICATION OF CERTAIN PHOTOGRAPHS
ON LAW ENFORCEMENT AGENCY 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 received a final conviction or grant
of deferred adjudication received a final conviction or grant of
deferred adjudication 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, 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. EFFECTIVE DATE. 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.