Texas 2021 - 87th Regular

Texas House Bill HB3744 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		87R10766 JRR-D
2		-	By: Capriglione~~, Cain~~ H.B. No. 3744
	2	+	By: Capriglione H.B. No. 3744
3	3
4	4
5	5		A BILL TO BE ENTITLED
6	6		AN ACT
7	7		relating to the prohibited use or dissemination of certain private
8	8		or false information; providing a civil penalty; creating a
9	9		criminal offense; increasing a criminal penalty.
10	10		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11		SECTION 1. Section 109.002(a), Business & Commerce Code, is
12	12		amended to read as follows:
13	13		(a) Except as provided by Subsection (b), this chapter
14	14		applies to:
15	15		(1) a business entity that:
16	16		(A) publishes criminal record information,
17	17		including information:
18	18		(i) originally obtained pursuant to a
19	19		request for public information under Chapter 552, Government Code;
20	20		or
21	21		(ii) purchased or otherwise obtained by the
22	22		entity or an affiliated business entity from the Department of
23	23		Public Safety under Subchapter F, Chapter 411, Government Code; and
24	24		(B) requires the payment:
25	25		(i) of a fee in an amount of $150 or more or
26	26		other consideration of comparable value to remove criminal record
27	27		information other than a photograph; or
28	28		(ii) of a fee or other consideration to
29	29		correct or modify criminal record information; or
30	30		(2) a business entity that publishes confidential
31	31		juvenile record information or confidential criminal record
32	32		information of a child in a manner not permitted by Chapter 58,
33	33		Family Code, Chapter 45, Code of Criminal Procedure, or other law,
34	34		regardless of:
35	35		(A) the source of the information; or
36	36		(B) whether the business entity charges a fee for
37	37		access to or removal or correction of the information.
38	38		SECTION 2. Section 109.003(b), Business & Commerce Code, is
39	39		amended to read as follows:
40	40		(b) For purposes of this chapter, criminal record
41	41		information published by a business entity is considered:
42	42		(1) complete if the information reflects the notations
43	43		of arrest and the filing and disposition of criminal charges, as
44	44		applicable, regardless of whether the information includes a
45	45		photograph; and
46	46		(2) accurate if the information:
47	47		(A) reflects the most recent information
48	48		received by the entity from the Department of Public Safety in
49	49		accordance with Section 411.0851(b)(1)(B), Government Code; or
50	50		(B) was obtained by the entity from a law
51	51		enforcement agency or criminal justice agency, including the
52	52		Department of Public Safety, or any other governmental agency or
53	53		entity within the 60-day period preceding the date of publication.
54	54		SECTION 3. Section 109.0045, Business & Commerce Code, is
55	55		amended by adding Subsection (f) to read as follows:
56	56		(f) A person who gives consent to a business entity to
57	57		publish confidential juvenile record information or confidential
58	58		criminal record information of a child under Subsection (e)(1) may,
59	59		at any time, withdraw consent to publish the information or request
60	60		removal of a photograph under Section 109.0055.
61	61		SECTION 4. Chapter 109, Business & Commerce Code, is
62	62		amended by adding Section 109.0055 to read as follows:
63	63		Sec. 109.0055. REMOVAL OF PHOTOGRAPH ON REQUEST; DECEPTIVE
64	64		TRADE PRACTICE. (a) If the criminal record information,
65	65		confidential juvenile record information, or confidential criminal
66	66		record information of a child published by a business entity
67	67		includes a photograph, the person whose photograph has been
68	68		published, or that person's legal representative, may make a
69	69		written request for the removal of the photograph from the website
70	70		or other publication.
71	71		(b) A written request under this section must be sent by
72	72		registered mail and must include:
73	73		(1) specific information identifying the photograph
74	74		of the person the request is seeking to remove; and
75	75		(2) sufficient evidence that the person making the
76	76		request is the person whose photograph has been published.
77	77		(c) Not later than the 10th day after the date a business
78	78		entity receives a written request under this section, the business
79	79		entity shall remove the person's photograph from the website or
80	80		otherwise cease publication of the photograph.
81	81		(d) A business entity may not:
82	82		(1) charge a fee to remove or cease publication of a
83	83		photograph under Subsection (c); or
84	84		(2) republish the photograph.
85	85		(e) A violation of this section is a deceptive trade
86	86		practice under Subchapter E, Chapter 17, and is actionable under
87	87		that subchapter.
88	88		SECTION 5. Section 109.006(a), Business & Commerce Code, is
89	89		amended to read as follows:
90	90		(a) A business entity that publishes criminal record
91	91		information, confidential juvenile record information, or
92	92		confidential criminal record information of a child in violation of
93	93		this chapter, including a photograph in violation of Section
94	94		109.0055, is liable to the state for a civil penalty in an amount
95	95		not to exceed $500 for each separate violation and, in the case of a
96	96		continuing violation, an amount not to exceed $500 for each
97	97		subsequent day on which the violation occurs. For purposes of this
98	98		subsection, each record published in violation of this chapter
99	99		constitutes a separate violation.
100	100		SECTION 6. Title 4, Civil Practice and Remedies Code, is
101	101		amended by adding Chapter 98C to read as follows:
102	102		CHAPTER 98C. LIABILITY FOR ONLINE IMPERSONATION
103	103		Sec. 98C.001. DEFINITIONS. In this chapter:
104	104		(1) "Online impersonation" means a person's use of an
105	105		individual's name, voice, signature, photograph, or likeness
106	106		through social media without that individual's consent or if the
107	107		individual is a minor, the consent of that individual's parent,
108	108		legal guardian, or managing conservator.
109	109		(2) "Photograph" includes any photograph or
110	110		photographic reproduction, still or moving, or any videotape or
111	111		live television transmission of any individual in which the
112	112		individual is readily identifiable.
113	113		(3) "Readily identifiable" means identifiable using
114	114		only the naked eye to reasonably determine the identity of an
115	115		individual in a photograph.
116	116		(4) "Social media" means a form of electronic
117	117		communication through which users create online communities to
118	118		share information, ideas, personal messages, and other content.
119	119		Sec. 98C.002. APPLICABILITY OF CHAPTER. This chapter does
120	120		not apply to a law enforcement agency or a law enforcement agency
121	121		employee acting within the scope of employment in investigating
122	122		Internet crimes.
123	123		Sec. 98C.003. CONSTRUCTION OF CHAPTER. This chapter may
124	124		not be construed to impose liability on an interactive computer
125	125		service as defined by 47 U.S.C. Section 230(f) for content provided
126	126		by another person.
127	127		Sec. 98C.004. LIABILITY FOR ONLINE IMPERSONATION;
128	128		EXCEPTION. (a) Except as provided by Subsection (b), a person is
129	129		liable to another person injured by the person's online
130	130		impersonation if the person knowingly and with the intent to harm,
131	131		defraud, intimidate, or threaten the injured person used the online
132	132		impersonation to create a false identity.
133	133		(b) A person is not liable for an online impersonation of
134	134		which the sole purpose is satire or parody.
135	135		Sec. 98C.005. DAMAGES. (a) A claimant who prevails in an
136	136		action under this chapter shall be awarded actual damages,
137	137		including expenditures made by the claimant related to counseling,
138	138		identity theft, or libel. The defendant's profits attributable to
139	139		the defendant's online impersonation of the claimant may be
140	140		considered in the computation of actual damages.
141	141		(b) In addition to an award under Subsection (a), a claimant
142	142		who prevails in an action under this chapter may recover exemplary
143	143		damages of not less than $500.
144	144		(c) The court shall award costs and reasonable attorney's
145	145		fees to the prevailing party in any action under this chapter.
146	146		Sec. 98C.006. INJUNCTIVE RELIEF. A court in which an action
147	147		is brought under this chapter, on the motion of a claimant depicted
148	148		in the defendant's online impersonation, may issue a temporary
149	149		restraining order or a temporary or permanent injunction to
150	150		restrain and prevent the online impersonation of the claimant.
151	151		Sec. 98C.007. CAUSE OF ACTION CUMULATIVE. The cause of
152	152		action created by this chapter is cumulative of any other remedy
153	153		provided by common law or statute.
154	154		SECTION 7. Section 42.06(b), Penal Code, is amended to read
155	155		as follows:
156	156		(b) An offense under this section is a Class A misdemeanor,
157	157		except that the offense is:
158	158		(1) subject to Subdivision (2), a state jail felony if
159	159		[unless] the false report is of an emergency involving a public or
160	160		private institution of higher education or involving a public
161	161		primary or secondary school, public communications, public
162	162		transportation, public water, gas, or power supply or other public
163	163		service; and
164	164		(2) for an offense committed under Subsection (a)(1)
165	165		for the purpose of causing action by a law enforcement agency
166	166		against another person:
167	167		(A) a felony of the third degree if an action
168	168		taken by any law enforcement agency in response to the false report
169	169		results in serious bodily injury to any person; or
170	170		(B) a felony of the second degree if an action
171	171		taken by any law enforcement agency in response to the false report
172	172		results in the death of any person[, in which event the offense is a
173	173		state jail felony].
174	174		SECTION 8. Chapter 42, Penal Code, is amended by adding
175	175		Section 42.074 to read as follows:
176	176		Sec. 42.074. UNLAWFUL DISCLOSURE OF RESIDENCE ADDRESS OR
177	177		TELEPHONE NUMBER. (a) A person commits an offense if the person
178	178		posts on a publicly accessible website the residence address or
179	179		telephone number of an individual with the intent to cause harm or a
180	180		threat of harm to the individual or a member of the individual's
181	181		family or household.
182	182		(b) An offense under this section is a Class B misdemeanor,
183	183		except that the offense is a Class A misdemeanor if the offense
184	184		results in the bodily injury of:
185	185		(1) the individual whose residence address or
186	186		telephone number was posted on a publicly accessible website; or
187	187		(2) a member of the individual's family or household.
188	188		(c) For purposes of Subsection (a), it is prima facie
189	189		evidence of the intent to cause harm or a threat of harm to an
190	190		individual whose residence address or telephone number was posted
191	191		on a publicly accessible website or to a member of the individual's
192	192		family or household if the actor:
193	193		(1) receives a written demand from the individual to
194	194		not disclose the address or telephone number for reasons of safety;
195	195		and
196	196		(2) either:
197	197		(A) fails to remove the address or telephone
198	198		number from the publicly accessible website within a period of 48
199	199		hours after receiving the demand; or
200	200		(B) reposts the address or telephone number on
201	201		the same or a different publicly accessible website, or makes the
202	202		information publicly available through another medium, within a
203	203		period of four years after receiving the demand.
204	204		(d) If conduct that constitutes an offense under this
205	205		section also constitutes an offense under Section 36.06(a-1), the
206	206		actor may be prosecuted under either section, but not both.
207	207		SECTION 9. (a) Chapter 98C, Civil Practice and Remedies
208	208		Code, as added by this Act, applies only to a cause of action that
209	209		accrues on or after the effective date of this Act.
210	210		(b) Section 42.06, Penal Code, as amended by this Act,
211	211		applies only to an offense committed on or after the effective date
212	212		of this Act. An offense committed before the effective date of this
213	213		Act is governed by the law in effect on the date the offense was
214	214		committed, and the former law is continued in effect for that
215	215		purpose. For purposes of this subsection, an offense was committed
216	216		before the effective date of this Act if any element of the offense
217	217		occurred before that date.
218	218		SECTION 10. This Act takes effect September 1, 2021.