87R10766 JRR-D
By: Capriglione, Cain H.B. No. 3744
A BILL TO BE ENTITLED
AN ACT
relating to the prohibited use or dissemination of certain private
or false information; providing a civil penalty; creating a
criminal offense; increasing a criminal penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 109.002(a), Business & Commerce Code, is
amended to read as follows:
(a) Except as provided by Subsection (b), this chapter
applies to:
(1) a business entity that:
(A) publishes criminal record information,
including information:
(i) originally obtained pursuant to a
request for public information under Chapter 552, Government Code;
or
(ii) 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
(B) requires the payment:
(i) of a fee in an amount of $150 or more or
other consideration of comparable value to remove criminal record
information other than a photograph; or
(ii) of a fee or other consideration to
correct or modify criminal record information; or
(2) a business entity that publishes confidential
juvenile record information or confidential criminal record
information of a child in a manner not permitted by Chapter 58,
Family Code, Chapter 45, Code of Criminal Procedure, or other law,
regardless of:
(A) the source of the information; or
(B) whether the business entity charges a fee for
access to or removal or correction of the information.
SECTION 2. Section 109.003(b), Business & Commerce Code, is
amended to read as follows:
(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, as
applicable, regardless of whether the information includes a
photograph; 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.
SECTION 3. Section 109.0045, Business & Commerce Code, is
amended by adding Subsection (f) to read as follows:
(f) A person who gives consent to a business entity to
publish confidential juvenile record information or confidential
criminal record information of a child under Subsection (e)(1) may,
at any time, withdraw consent to publish the information or request
removal of a photograph under Section 109.0055.
SECTION 4. Chapter 109, Business & Commerce Code, is
amended by adding Section 109.0055 to read as follows:
Sec. 109.0055. REMOVAL OF PHOTOGRAPH ON REQUEST; DECEPTIVE
TRADE PRACTICE. (a) If the criminal record information,
confidential juvenile record information, or confidential criminal
record information of a child published by a business entity
includes a photograph, the person whose photograph has been
published, or that person's legal representative, may make a
written request for the removal of the photograph from the website
or other publication.
(b) A written request under this section must be sent by
registered mail and must include:
(1) specific information identifying the photograph
of the person the request is seeking to remove; and
(2) sufficient evidence that the person making the
request is the person whose photograph has been published.
(c) Not later than the 10th day after the date a business
entity receives a written request under this section, the business
entity shall remove the person's photograph from the website or
otherwise cease publication of the photograph.
(d) A business entity may not:
(1) charge a fee to remove or cease publication of a
photograph under Subsection (c); or
(2) republish the photograph.
(e) A violation of this section is a deceptive trade
practice under Subchapter E, Chapter 17, and is actionable under
that subchapter.
SECTION 5. Section 109.006(a), Business & Commerce Code, is
amended to read as follows:
(a) A business entity that publishes criminal record
information, confidential juvenile record information, or
confidential criminal record information of a child in violation of
this chapter, including a photograph in violation of Section
109.0055, 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, an amount not to exceed $500 for each
subsequent day on which the violation occurs. For purposes of this
subsection, each record published in violation of this chapter
constitutes a separate violation.
SECTION 6. Title 4, Civil Practice and Remedies Code, is
amended by adding Chapter 98C to read as follows:
CHAPTER 98C. LIABILITY FOR ONLINE IMPERSONATION
Sec. 98C.001. DEFINITIONS. In this chapter:
(1) "Online impersonation" means a person's use of an
individual's name, voice, signature, photograph, or likeness
through social media without that individual's consent or if the
individual is a minor, the consent of that individual's parent,
legal guardian, or managing conservator.
(2) "Photograph" includes any photograph or
photographic reproduction, still or moving, or any videotape or
live television transmission of any individual in which the
individual is readily identifiable.
(3) "Readily identifiable" means identifiable using
only the naked eye to reasonably determine the identity of an
individual in a photograph.
(4) "Social media" means a form of electronic
communication through which users create online communities to
share information, ideas, personal messages, and other content.
Sec. 98C.002. APPLICABILITY OF CHAPTER. This chapter does
not apply to a law enforcement agency or a law enforcement agency
employee acting within the scope of employment in investigating
Internet crimes.
Sec. 98C.003. CONSTRUCTION OF CHAPTER. This chapter may
not be construed to impose liability on an interactive computer
service as defined by 47 U.S.C. Section 230(f) for content provided
by another person.
Sec. 98C.004. LIABILITY FOR ONLINE IMPERSONATION;
EXCEPTION. (a) Except as provided by Subsection (b), a person is
liable to another person injured by the person's online
impersonation if the person knowingly and with the intent to harm,
defraud, intimidate, or threaten the injured person used the online
impersonation to create a false identity.
(b) A person is not liable for an online impersonation of
which the sole purpose is satire or parody.
Sec. 98C.005. DAMAGES. (a) A claimant who prevails in an
action under this chapter shall be awarded actual damages,
including expenditures made by the claimant related to counseling,
identity theft, or libel. The defendant's profits attributable to
the defendant's online impersonation of the claimant may be
considered in the computation of actual damages.
(b) In addition to an award under Subsection (a), a claimant
who prevails in an action under this chapter may recover exemplary
damages of not less than $500.
(c) The court shall award costs and reasonable attorney's
fees to the prevailing party in any action under this chapter.
Sec. 98C.006. INJUNCTIVE RELIEF. A court in which an action
is brought under this chapter, on the motion of a claimant depicted
in the defendant's online impersonation, may issue a temporary
restraining order or a temporary or permanent injunction to
restrain and prevent the online impersonation of the claimant.
Sec. 98C.007. CAUSE OF ACTION CUMULATIVE. The cause of
action created by this chapter is cumulative of any other remedy
provided by common law or statute.
SECTION 7. Section 42.06(b), Penal Code, is amended to read
as follows:
(b) An offense under this section is a Class A misdemeanor,
except that the offense is:
(1) subject to Subdivision (2), a state jail felony if
[unless] the false report is of an emergency involving a public or
private institution of higher education or involving a public
primary or secondary school, public communications, public
transportation, public water, gas, or power supply or other public
service; and
(2) for an offense committed under Subsection (a)(1)
for the purpose of causing action by a law enforcement agency
against another person:
(A) a felony of the third degree if an action
taken by any law enforcement agency in response to the false report
results in serious bodily injury to any person; or
(B) a felony of the second degree if an action
taken by any law enforcement agency in response to the false report
results in the death of any person[, in which event the offense is a
state jail felony].
SECTION 8. Chapter 42, Penal Code, is amended by adding
Section 42.074 to read as follows:
Sec. 42.074. UNLAWFUL DISCLOSURE OF RESIDENCE ADDRESS OR
TELEPHONE NUMBER. (a) A person commits an offense if the person
posts on a publicly accessible website the residence address or
telephone number of an individual with the intent to cause harm or a
threat of harm to the individual or a member of the individual's
family or household.
(b) An offense under this section is a Class B misdemeanor,
except that the offense is a Class A misdemeanor if the offense
results in the bodily injury of:
(1) the individual whose residence address or
telephone number was posted on a publicly accessible website; or
(2) a member of the individual's family or household.
(c) For purposes of Subsection (a), it is prima facie
evidence of the intent to cause harm or a threat of harm to an
individual whose residence address or telephone number was posted
on a publicly accessible website or to a member of the individual's
family or household if the actor:
(1) receives a written demand from the individual to
not disclose the address or telephone number for reasons of safety;
and
(2) either:
(A) fails to remove the address or telephone
number from the publicly accessible website within a period of 48
hours after receiving the demand; or
(B) reposts the address or telephone number on
the same or a different publicly accessible website, or makes the
information publicly available through another medium, within a
period of four years after receiving the demand.
(d) If conduct that constitutes an offense under this
section also constitutes an offense under Section 36.06(a-1), the
actor may be prosecuted under either section, but not both.
SECTION 9. (a) Chapter 98C, Civil Practice and Remedies
Code, as added by this Act, applies only to a cause of action that
accrues on or after the effective date of this Act.
(b) Section 42.06, Penal Code, as amended by this Act,
applies only to an offense committed on or after the effective date
of this Act. An offense committed before the effective date of this
Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose. For purposes of this subsection, an offense was committed
before the effective date of this Act if any element of the offense
occurred before that date.
SECTION 10. This Act takes effect September 1, 2021.