By: Harris of Tarrant S.B. No. 165
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the interception, use, or disclosure of wire, oral, or
1-2 electronic communications and to the prosecution of offenses
1-3 related to those activities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsection (c), Section 16.02, Penal Code, is
1-6 amended to read as follows:
1-7 (c) It is an affirmative defense to prosecution under
1-8 <exception to the application of> Subsection (b) of this section
1-9 that:
1-10 (1) an operator of a switchboard or an officer,
1-11 employee, or agent of a communication common carrier whose
1-12 facilities are used in the transmission of a wire or electronic
1-13 communication intercepts a communication or discloses or uses an
1-14 intercepted communication in the normal course of employment while
1-15 engaged in an activity that is a necessary incident to the
1-16 rendition of service or to the protection of the rights or property
1-17 of the carrier of the communication, unless the interception
1-18 results from the communication common carrier's use of service
1-19 observing or random monitoring for purposes other than mechanical
1-20 or service quality control checks;
1-21 (2) an officer, employee, or agent of a communication
1-22 common carrier provides information, facilities, or technical
1-23 assistance to an investigative or law enforcement officer who is
1-24 authorized as provided by this article to intercept a wire, oral,
2-1 or electronic communication;
2-2 (3) a person acting under color of law intercepts a
2-3 wire, oral, or electronic communication if the person is a party to
2-4 the communication or if one of the parties to the communication has
2-5 given prior consent to the interception;
2-6 (4) a person not acting under color of law intercepts
2-7 a wire, oral, or electronic communication if the person is a party
2-8 to the communication or if one of the parties to the communication
2-9 has given prior consent to the interception unless the
2-10 communication is intercepted for the purpose of committing any
2-11 criminal or tortious act in violation of the constitution or laws
2-12 of the United States or of this state or for the purpose of
2-13 committing any other injurious act;
2-14 (5) a person acting under color of law intercepts a
2-15 wire, oral, or electronic communication if:
2-16 (A) prior consent for the interception has been
2-17 given by a magistrate;
2-18 (B) an immediate life-threatening situation
2-19 exists;
2-20 (C) the person is a member of a law enforcement
2-21 unit specially trained to:
2-22 (i) respond to and deal with
2-23 life-threatening situations; or
2-24 (ii) install electronic, mechanical, or
2-25 other devices; and
2-26 (D) the interception ceases immediately on
2-27 termination of the life-threatening situation;
3-1 (6) an officer, employee, or agent of the Federal
3-2 Communications Commission intercepts a communication transmitted by
3-3 radio or discloses or uses an intercepted communication in the
3-4 normal course of employment and in the discharge of the monitoring
3-5 responsibilities exercised by the Federal Communications Commission
3-6 in the enforcement of Chapter 5, Title 47, United States Code;
3-7 (7) a person intercepts or obtains access to an
3-8 electronic communication that was made through an electronic
3-9 communication system that is configured to permit the communication
3-10 to be readily accessible to the general public;
3-11 (8) a person intercepts radio communication that is
3-12 transmitted:
3-13 (A) by a station for the use of the general
3-14 public;
3-15 (B) to ships, aircraft, vehicles, or persons in
3-16 distress;
3-17 (C) by a governmental, law enforcement, civil
3-18 defense, private land mobile, or public safety communications
3-19 system that is readily accessible to the general public;
3-20 (D) by a station operating on an authorized
3-21 frequency within the bands allocated to the amateur, citizens band,
3-22 or general mobile radio services; or
3-23 (E) by a marine or aeronautical communications
3-24 system;
3-25 (9) a person intercepts a wire or electronic
3-26 communication the transmission of which causes harmful interference
3-27 to a lawfully operating station or consumer electronic equipment,
4-1 to the extent necessary to identify the source of the interference;
4-2 (10) a user of the same frequency intercepts a radio
4-3 communication made through a system that uses frequencies monitored
4-4 by individuals engaged in the provision or the use of the system,
4-5 if the communication is not scrambled or encrypted; or
4-6 (11) a provider of electronic communications service
4-7 records the fact that a wire or electronic communication was
4-8 initiated or completed in order to protect the provider, another
4-9 provider furnishing service towards the completion of the
4-10 communication, or a user of that service from fraudulent, unlawful,
4-11 or abusive use of the service.
4-12 SECTION 2. Section 5, Chapter 275, Acts of the 67th
4-13 Legislature, Regular Session, 1981, and Section 1, Chapter 587,
4-14 Acts of the 69th Legislature, Regular Session, 1985, are repealed.
4-15 SECTION 3. (a) The change in law made by this Act applies
4-16 only to an offense committed on or after the effective date of this
4-17 Act. For purposes of this section, an offense is committed before
4-18 the effective date of this Act if any element of the offense occurs
4-19 before that date.
4-20 (b) An offense committed before the effective date of this
4-21 Act is governed by the law in effect when the offense was
4-22 committed, and the former law is continued in effect for this
4-23 purpose.
4-24 SECTION 4. (a) Except as provided by Subsection (b), this
4-25 Act takes effect September 1, 1993.
4-26 (b) Section 2 of this Act takes effect on the earliest
4-27 possible date permitted by Article III, Section 39, of the Texas
5-1 Constitution.
5-2 SECTION 5. The importance of this legislation and the
5-3 crowded condition of the calendars in both houses create an
5-4 emergency and an imperative public necessity that the
5-5 constitutional rule requiring bills to be read on three several
5-6 days in each house be suspended, and this rule is hereby suspended.