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Texas Business & Commerce Code - Section 35.48. Retention And Disposal Of Business Records

Legal Research Home > Texas Lawyer > Business & Commerce Code > Texas Business & Commerce Code - Section 35.48. Retention And Disposal Of Business Records

§ 35.48. RETENTION AND DISPOSAL OF BUSINESS RECORDS.  (a) 
In this section:
		(1)  "Business record" means letters, words, sounds, or 
numbers, or the equivalent of letters, words, sounds, or numbers, 
recorded in the operation of a business by:
			(A)  handwriting;                                                            
			(B)  typewriting;                                                            
			(C)  printing;                                                               
			(D)  photostat;                                                              
			(E)  photograph;                                                             
			(F)  magnetic impulse;                                                       
			(G)  mechanical or electronic recording;                                     
			(H)  digitized optical image;  or                                            
			(I)  another form of data compilation.                                       
		(1-a)  "Personal identifying information" means an 
individual's first name or initial and last name in combination 
with any one or more of the following items:
			(A)  date of birth;                                                          
			(B)  social security number or other 
government-issued identification number;
			(C)  mother's maiden name;                                                   
			(D)  unique biometric data, including the 
individual's fingerprint, voice print, and retina or iris image;
			(E)  unique electronic identification number, 
address, or routing code;    
			(F)  telecommunication access device, including 
debit and credit card information;  or
			(G)  financial institution account number or any 
other financial information.
		(2)  "Reproduction" means a counterpart of an original 
business record produced by:
			(A)  production from the same impression or the 
same matrix as the original;
			(B)  photograph, including an enlargement or 
miniature;                    
			(C)  mechanical or electronic rerecording;                                   
			(D)  chemical reproduction;                                                  
			(E)  digitized optical image;  or                                            
			(F)  another technique that accurately reproduces 
the original.            
		(3)  "Telecommunication access device" has the meaning 
assigned by Section 32.51, Penal Code.
	(b)  A business record required to be kept by state law may be 
destroyed at any time after the third anniversary of the date the 
record was created unless a law or regulation applicable to the 
business record prescribes a different retention period or 
procedure for disposal.
	(c)  A state law requiring retention of a business record is 
satisfied by retention of a reproduction of the business record.
	(d)  When a business disposes of a business record that 
contains personal identifying information of a customer of the 
business, the business shall modify, by shredding, erasing, or 
other means, the personal identifying information to make it 
unreadable or undecipherable.
	(e)  A business is considered to comply with Subsection (d) 
if the business contracts with a person engaged in the business of 
disposing of records for the modification of personal identifying 
information on behalf of the business in accordance with Subsection 
(d).
	(f)  A business that does not dispose of a business record of 
a customer in the manner required by Subsection (d) is liable for a 
civil penalty of up to $500 for each record.  The attorney general 
may bring an action against the business to:
		(1)  recover the civil penalty;                                               
		(2)  obtain any other remedy, including injunctive 
relief;  and             
		(3)  recover costs and reasonable attorney's fees 
incurred in bringing the action.
	(g)  A business that modifies a record as required by 
Subsection (d) in good faith is not liable for a civil penalty under 
Subsection (f) if the record is reconstructed, in whole or in part, 
through extraordinary means.
	(h)  Subsection (d) does not require a business to modify a 
record if:       
		(1)  the business is required to retain the record 
under other law;  or     
		(2)  the record is historically significant and:                              
			(A)  there is no potential for identity theft or 
fraud while the record is in the custody of the business;  or
			(B)  the record is transferred to a professionally 
managed historical repository.
	(i)  Subsection (d) does not apply to:                                         
		(1)  a financial institution as defined by 15 U.S.C. 
Section 6809;  or      
		(2)  a covered entity as defined by Section 601.001 or 
602.001, Insurance Code.

Added by Acts 1989, 71st Leg., ch. 955, § 1, eff. June 15, 1989.  
Renumbered from § 35.47 by Acts 1990, 71st Leg., 6th C.S., ch. 
12, § 2(2), eff. Sept. 6, 1990.  Amended by Acts 1991, 72nd Leg., 
ch. 472, § 1, eff. Aug. 26, 1991;  Acts 1995, 74th Leg., ch. 735, 
§ 3, eff. Sept. 1, 1995;  Acts 2005, 79th Leg., ch. 935, § 1 to 
3, eff. Sept. 1, 2005.

Last modified: August 10, 2007