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  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.