Texas 2015 - 84th Regular

Texas House Bill HB4114 Compare Versions

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Version 2 (New)

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1	1	84R24076 GRM-F
2	2	By: McClendon H.B. No. 4114
3	3	Substitute the following for H.B. No. 4114:
4	4	By: Villalba C.S.H.B. No. 4114
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the publication, republication, or other dissemination
10	10	of mug shots and other information regarding the involvement of an
11	11	individual in the criminal justice system; increasing a civil
12	12	penalty.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. The heading to Chapter 109, Business & Commerce
15	15	Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd
16	16	Legislature, Regular Session, 2013, is amended to read as follows:
17	17	CHAPTER 109. BUSINESS ENTITIES ENGAGED IN PUBLICATION,
18	18	REPUBLICATION, OR OTHER DISSEMINATION OF CRIMINAL RECORD
19	19	INFORMATION
20	20	SECTION 2. Section 109.002, Business & Commerce Code, as
21	21	added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature,
22	22	Regular Session, 2013, is amended to read as follows:
23	23	Sec. 109.002. APPLICABILITY OF CHAPTER. (a) This chapter
24	24	applies to a business entity that:
25	25	(1) publishes, republishes, or otherwise
26	26	disseminates, through any print, electronic, or other medium,
27	27	criminal record information, including a photograph taken pursuant
28	28	to an arrest or other information[:
29	29	[(A)] originally obtained pursuant to a request
30	30	for public information under Chapter 552, Government Code; and [or]
31	31	(2) receives advertising revenue for, or
32	32	consideration for access to, a website or other publication
33	33	containing criminal record information, or solicits or requires the
34	34	payment of a fee or other consideration to:
35	35	(A) remove, correct, or modify criminal record
36	36	information; or
37	37	(B) access criminal record information or
38	38	portions of the information.
39	39	(b) This chapter does not apply to:
40	40	(1) a business entity that:
41	41	(A) requests criminal record information about a
42	42	specific individual whose personal identifying information is
43	43	included in the request; or
44	44	(B) purchases or acquires only alphanumeric
45	45	criminal record information in complete record sets at regular
46	46	intervals as the record sets are made available contemporaneously
47	47	from a criminal justice agency, custodian of court records, or
48	48	other state governmental agency;
49	49	(2) a publication of general circulation or an
50	50	Internet website related to such a publication that contains news
51	51	or other information, including a magazine, periodical newsletter,
52	52	newspaper, pamphlet, or report; or
53	53	(3) a radio or television station that holds a license
54	54	issued by the Federal Communications Commission
55	55	[(B) purchased or otherwise obtained by the
56	56	entity or an affiliated business entity from the Department of
57	57	Public Safety under Subchapter F, Chapter 411, Government Code; and
58	58	[(2) requires the payment:
59	59	[(A) of a fee in an amount of $150 or more or
60	60	other consideration of comparable value to remove criminal record
61	61	information; or
62	62	[(B) of a fee or other consideration to correct
63	63	or modify criminal record information].
64	64	SECTION 3. Section 109.003, Business & Commerce Code, as
65	65	added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature,
66	66	Regular Session, 2013, is amended to read as follows:
67	67	Sec. 109.003. DUTY TO DISSEMINATE [PUBLISH] COMPLETE AND
68	68	ACCURATE CRIMINAL RECORD INFORMATION. (a) A business entity must
69	69	ensure that criminal record information the entity publishes,
70	70	republishes, or otherwise disseminates is complete and accurate.
71	71	(b) For purposes of this chapter, criminal record
72	72	information published, republished, or otherwise disseminated by a
73	73	business entity is considered:
74	74	(1) complete if the information correctly reflects the
75	75	notations of arrest and the filing and disposition of criminal
76	76	charges, as applicable; and
77	77	(2) accurate if the information:
78	78	(A) reflects the most recent updated information
79	79	received by the entity [from the Department of Public Safety] in
80	80	accordance with Section 411.0851(b)(1)(B), Government Code; or
81	81	(B) was obtained by the entity from a law
82	82	enforcement agency or criminal justice agency, including the
83	83	Department of Public Safety, or any other governmental agency or
84	84	entity within the 60-day period preceding the date of publication,
85	85	republication, or other dissemination.
86	86	(c) A business entity shall state in a clear and conspicuous
87	87	manner on the front page of the publication, Internet website, or
88	88	other medium:
89	89	(1) that the information provided is true and correct;
90	90	(2) that any photographs have not been modified; and
91	91	(3) a disclaimer on each record for which a final
92	92	conviction has not been entered that the:
93	93	(A) "case is pending";
94	94	(B) individual is "not convicted"; or
95	95	(C) individual is "innocent until proven
96	96	guilty".
97	97	(d) A business entity shall notify by mail or telephone each
98	98	individual whose criminal record information is being published,
99	99	republished, or otherwise disseminated of that fact. If the
100	100	business entity is unable to contact the individual who is the
101	101	subject of the information, the entity shall notify the agency or
102	102	entity from which the business entity obtained the information.
103	103	SECTION 4. Chapter 109, Business & Commerce Code, as added
104	104	by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature, Regular
105	105	Session, 2013, is amended by adding Sections 109.0031, 109.0032,
106	106	and 109.0033 to read as follows:
107	107	Sec. 109.0031. COPYRIGHT. A criminal justice agency owns a
108	108	copyright of all photographs created by the agency.
109	109	Sec. 109.0032. CONTRACTS. A criminal justice agency is
110	110	under no obligation and is not otherwise required to enter into a
111	111	contract or other agreement with any individual or business entity
112	112	to provide criminal record information, including photographs, in
113	113	bulk to a requestor on a periodic or regularly recurring basis.
114	114	Sec. 109.0033. PUBLICATION PERIOD OF PHOTOGRAPHS. (a) A
115	115	business entity may publish, republish, or otherwise disseminate a
116	116	copyrighted photograph created by a criminal justice agency for 30
117	117	calendar days after the date the photograph was created.
118	118	(b) A business entity shall cease publishing, republishing,
119	119	or otherwise disseminating a copyrighted photograph if during the
120	120	30-day period the business entity receives notice that:
121	121	(1) an order of expunction has been issued under
122	122	Article 55.02, Code of Criminal Procedure, for the offense in
123	123	connection with which the photograph was taken;
124	124	(2) an order of nondisclosure has been issued under
125	125	Section 411.081(d), Government Code, for the offense in connection
126	126	with which the photograph was taken;
127	127	(3) the prosecution for the offense in connection with
128	128	which the photograph was taken has been dismissed;
129	129	(4) the individual has been acquitted of the offense
130	130	in connection with which the photograph was taken; or
131	131	(5) the individual has successfully completed a term
132	132	of deferred adjudication community supervision for the offense in
133	133	connection with which the photograph was taken.
134	134	(c) After the expiration of the 30-day period, on request of
135	135	the person who is the subject of the photograph or the copyright
136	136	holder, a business entity shall cease publishing, republishing, or
137	137	otherwise disseminating the copyrighted photograph.
138	138	(d) A business entity may not charge a fee for ceasing
139	139	publication, republication, or dissemination of a copyrighted
140	140	photograph under Subsection (b) or (c).
141	141	SECTION 5. Section 109.004, Business & Commerce Code, as
142	142	added by Chapter 1200 (S.B. 1289), Acts of the 83rd Legislature,
143	143	Regular Session, 2013, is amended to read as follows:
144	144	Sec. 109.004. DISPUTING COMPLETENESS OR ACCURACY OF
145	145	INFORMATION OR UNAUTHORIZED PUBLICATION OF PHOTOGRAPH. (a) A
146	146	business entity shall clearly and conspicuously publish an e-mail
147	147	address, fax number, telephone number, and physical address or
148	148	mailing address to enable a person who is the subject of criminal
149	149	record information, or is the copyright holder of a photograph,
150	150	published, republished, or otherwise disseminated by the entity to
151	151	dispute the completeness or accuracy of the information or the
152	152	continued publication of a photograph required to be removed under
153	153	Section 109.0033.
154	154	(b) If a business entity receives a dispute under Subsection
155	155	(a) [regarding the completeness or accuracy of criminal record
156	156	information from a person who is the subject of the information],
157	157	the business entity shall promptly:
158	158	(1) verify with the appropriate law enforcement agency
159	159	or criminal justice agency, including the Department of Public
160	160	Safety, or any other governmental agency or entity, free of charge
161	161	the disputed information, including any photograph; and
162	162	(2) complete the investigation described by
163	163	Subdivision (1) not later than the 10th [45th] business day after
164	164	the date the entity receives notice of the dispute.
165	165	(c) If, after conducting an investigation prescribed by
166	166	Subsection (b), a business entity finds incomplete or inaccurate
167	167	criminal record information or that a photograph was published
168	168	after removal was required under Section 109.0033 [after conducting
169	169	an investigation prescribed by this section], the entity shall
170	170	promptly remove the inaccurate information or photograph from the
171	171	website or other publication, or other medium used for
172	172	dissemination, or shall promptly correct the information, as
173	173	applicable. The entity may not:
174	174	(1) charge a fee to remove, correct, or modify
175	175	disputed [incomplete or inaccurate] information or remove a
176	176	copyrighted photograph; or
177	177	(2) continue to publish, republish, or otherwise
178	178	disseminate incomplete or inaccurate information or a copyrighted
179	179	photograph.
180	180	(d) A business entity shall provide written notice to the
181	181	person who disputed the [completeness or accuracy of] information
182	182	or the publication of a photograph of the results of an
183	183	investigation conducted under this section not later than the fifth
184	184	business day after the date on which the investigation is
185	185	completed. The notice must include:
186	186	(1) a statement that the investigation is complete;
187	187	(2) a statement of the determination made by the
188	188	entity on the completeness or accuracy of the disputed information
189	189	or on the continued publication of the photograph;
190	190	(3) a copy of the criminal record information or
191	191	photograph to be published, republished, or otherwise disseminated
192	192	after the investigation and a description of the results of the
193	193	investigation; and
194	194	(4) a statement that the entity shall provide, on
195	195	request, a description of the procedure used to determine the
196	196	completeness and accuracy of the information or the right of the
197	197	entity to continue to publish the photograph, including the name,
198	198	the business address, and, if available, the telephone number of
199	199	each law enforcement agency, other governmental entity, or other
200	200	person contacted in connection with the investigation or
201	201	verification.
202	202	SECTION 6. The heading to Section 109.005, Business &
203	203	Commerce Code, as added by Chapter 1200 (S.B. 1289), Acts of the
204	204	83rd Legislature, Regular Session, 2013, is amended to read as
205	205	follows:
206	206	Sec. 109.005. PUBLICATION, REPUBLICATION, OR OTHER
207	207	DISSEMINATION OF CERTAIN CRIMINAL RECORD INFORMATION PROHIBITED;
208	208	CIVIL LIABILITY.
209	209	SECTION 7. Sections 109.005(a) and (b), Business & Commerce
210	210	Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd
211	211	Legislature, Regular Session, 2013, are amended to read as follows:
212	212	(a) A business entity may not publish, republish, or
213	213	otherwise disseminate any criminal record information in the
214	214	business entity's possession with respect to which the business
215	215	entity has knowledge or has received notice that:
216	216	(1) an order of expunction has been issued with
217	217	respect to that information under Article 55.02, Code of Criminal
218	218	Procedure; [or]
219	219	(2) an order of nondisclosure has been issued with
220	220	respect to that information under Section 411.081(d), Government
221	221	Code;
222	222	(3) the prosecution for the offense that is the
223	223	subject of the information has been dismissed;
224	224	(4) the individual has been acquitted of the offense
225	225	that is the subject of the information; or
226	226	(5) the individual has successfully completed a term
227	227	of deferred adjudication community supervision for the offense that
228	228	is the subject of the information.
229	229	(b) In addition to any liability to a copyright owner for
230	230	any violation under federal copyright law, a [A] business entity
231	231	that disseminates [publishes] information in violation of
232	232	Subsection (a) or a photograph in violation of Section 109.0033(b)
233	233	is liable to the individual who is the subject of the information
234	234	or photograph in an amount of $100 [not to exceed $500] for each
235	235	separate violation and, in the case of a continuing violation, an
236	236	amount of $100 [not to exceed $500] for each subsequent day on which
237	237	the violation occurs.
238	238	SECTION 8. Sections 109.006(a) and (c), Business & Commerce
239	239	Code, as added by Chapter 1200 (S.B. 1289), Acts of the 83rd
240	240	Legislature, Regular Session, 2013, are amended to read as follows:
241	241	(a) A business entity that publishes, republishes, or
242	242	otherwise disseminates criminal record information, including a
243	243	photograph, in violation of this chapter is liable to the state for
244	244	a civil penalty in an amount not to exceed $1,000 [$500] for each
245	245	separate violation and, in the case of a continuing violation, an
246	246	amount not to exceed $1,000 [$500] for each subsequent day on which
247	247	the violation occurs. For purposes of this subsection, each
248	248	criminal record published, republished, or otherwise disseminated
249	249	in violation of this chapter constitutes a separate violation.
250	250	(c) A civil penalty collected under this section shall be
251	251	deposited in the [state treasury to the credit of the] general
252	252	revenue fund to be used only to support the Texas Correctional
253	253	Office on Offenders with Medical or Mental Impairments under
254	254	Chapter 614, Health and Safety Code.
255	255	SECTION 9. Subtitle B, Title 4, Government Code, is amended
256	256	by adding Chapter 412 to read as follows:
257	257	CHAPTER 412. PHOTOGRAPHS RELATED TO CRIMINAL RECORD INFORMATION
258	258	Sec. 412.001. DEFINITION. In this chapter, "law
259	259	enforcement agency" means an agency of the state, or of a county,
260	260	municipality, or other political subdivision of the state, that is
261	261	engaged in the administration or enforcement of criminal justice
262	262	and that allocates a substantial portion of its annual budget to the
263	263	administration or enforcement of criminal justice.
264	264	Sec. 412.002. PUBLICATION OF CERTAIN PHOTOGRAPHS ON LAW
265	265	ENFORCEMENT AGENCY INTERNET WEBSITES PROHIBITED. A law enforcement
266	266	agency may not publish on the agency's Internet website any
267	267	photograph taken pursuant to an arrest, lawful detention, or other
268	268	involvement in the criminal justice system unless the person
269	269	depicted in the photograph has been finally convicted for the
270	270	offense in connection with which the photograph was taken.
271	271	SECTION 10. Chapter 109, Business & Commerce Code, as
272	272	amended by this Act, applies to any publication, republication, or
273	273	other dissemination of criminal record information, including a
274	274	photograph, by a business entity subject to this Act that occurs on
275	275	or after the effective date of this Act, regardless of whether:
276	276	(1) the information relates to events or activities
277	277	that occurred before, on, or after that date; or
278	278	(2) the information was initially published,
279	279	republished, or otherwise disseminated before that date.
280	280	SECTION 11. This Act takes effect immediately if it
281	281	receives a vote of two-thirds of all the members elected to each
282	282	house, as provided by Section 39, Article III, Texas Constitution.
283	283	If this Act does not receive the vote necessary for immediate
284	284	effect, this Act takes effect September 1, 2015.