By: Harris, Chris S.B. No. 165
73R1992 DRH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the interception, use, or disclosure of wire, oral, or
1-3 electronic communications and to the prosecution of offenses
1-4 related to those activities.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 16.02(c), Penal Code, is amended to read
1-7 as follows:
1-8 (c) It is an affirmative defense to prosecution under
1-9 <exception to the application of> Subsection (b) of this section
1-10 that:
1-11 (1) an operator of a switchboard or an officer,
1-12 employee, or agent of a communication common carrier whose
1-13 facilities are used in the transmission of a wire or electronic
1-14 communication intercepts a communication or discloses or uses an
1-15 intercepted communication in the normal course of employment while
1-16 engaged in an activity that is a necessary incident to the
1-17 rendition of service or to the protection of the rights or property
1-18 of the carrier of the communication, unless the interception
1-19 results from the communication common carrier's use of service
1-20 observing or random monitoring for purposes other than mechanical
1-21 or service quality control checks;
1-22 (2) an officer, employee, or agent of a communication
1-23 common carrier provides information, facilities, or technical
1-24 assistance to an investigative or law enforcement officer who is
2-1 authorized as provided by this article to intercept a wire, oral,
2-2 or electronic communication;
2-3 (3) a person acting under color of law intercepts a
2-4 wire, oral, or electronic communication if the person is a party to
2-5 the communication or if one of the parties to the communication has
2-6 given prior consent to the interception;
2-7 (4) a person not acting under color of law intercepts
2-8 a wire, oral, or electronic communication if the person is a party
2-9 to the communication or if one of the parties to the communication
2-10 has given prior consent to the interception unless the
2-11 communication is intercepted for the purpose of committing any
2-12 criminal or tortious act in violation of the constitution or laws
2-13 of the United States or of this state or for the purpose of
2-14 committing any other injurious act;
2-15 (5) a person acting under color of law intercepts a
2-16 wire, oral, or electronic communication if:
2-17 (A) prior consent for the interception has been
2-18 given by a magistrate;
2-19 (B) an immediate life-threatening situation
2-20 exists;
2-21 (C) the person is a member of a law enforcement
2-22 unit specially trained to:
2-23 (i) respond to and deal with
2-24 life-threatening situations; or
2-25 (ii) install electronic, mechanical, or
2-26 other devices; and
2-27 (D) the interception ceases immediately on
3-1 termination of the life-threatening situation;
3-2 (6) an officer, employee, or agent of the Federal
3-3 Communications Commission intercepts a communication transmitted by
3-4 radio or discloses or uses an intercepted communication in the
3-5 normal course of employment and in the discharge of the monitoring
3-6 responsibilities exercised by the Federal Communications Commission
3-7 in the enforcement of Chapter 5, Title 47, United States Code;
3-8 (7) a person intercepts or obtains access to an
3-9 electronic communication that was made through an electronic
3-10 communication system that is configured to permit the communication
3-11 to be readily accessible to the general public;
3-12 (8) a person intercepts radio communication that is
3-13 transmitted:
3-14 (A) by a station for the use of the general
3-15 public;
3-16 (B) to ships, aircraft, vehicles, or persons in
3-17 distress;
3-18 (C) by a governmental, law enforcement, civil
3-19 defense, private land mobile, or public safety communications
3-20 system that is readily accessible to the general public;
3-21 (D) by a station operating on an authorized
3-22 frequency within the bands allocated to the amateur, citizens band,
3-23 or general mobile radio services; or
3-24 (E) by a marine or aeronautical communications
3-25 system;
3-26 (9) a person intercepts a wire or electronic
3-27 communication the transmission of which causes harmful interference
4-1 to a lawfully operating station or consumer electronic equipment,
4-2 to the extent necessary to identify the source of the interference;
4-3 (10) a user of the same frequency intercepts a radio
4-4 communication made through a system that uses frequencies monitored
4-5 by individuals engaged in the provision or the use of the system,
4-6 if the communication is not scrambled or encrypted; or
4-7 (11) a provider of electronic communications service
4-8 records the fact that a wire or electronic communication was
4-9 initiated or completed in order to protect the provider, another
4-10 provider furnishing service towards the completion of the
4-11 communication, or a user of that service from fraudulent, unlawful,
4-12 or abusive use of the service.
4-13 SECTION 2. Section 5, Chapter 275, Acts of the 67th
4-14 Legislature, Regular Session, 1981, and Section 1, Chapter 587,
4-15 Acts of the 69th Legislature, Regular Session, 1985, are repealed.
4-16 SECTION 3. (a) The change in law made by this Act applies
4-17 only to an offense committed on or after the effective date of this
4-18 Act. For purposes of this section, an offense is committed before
4-19 the effective date of this Act if any element of the offense occurs
4-20 before that date.
4-21 (b) An offense committed before the effective date of this
4-22 Act is governed by the law in effect when the offense was
4-23 committed, and the former law is continued in effect for this
4-24 purpose.
4-25 SECTION 4. (a) Except as provided by Subsection (b), this
4-26 Act takes effect September 1, 1993.
4-27 (b) Section 2 of this Act takes effect on the earliest
5-1 possible date permitted by Article III, Section 39, of the Texas
5-2 Constitution.
5-3 SECTION 5. The importance of this legislation and the
5-4 crowded condition of the calendars in both houses create an
5-5 emergency and an imperative public necessity that the
5-6 constitutional rule requiring bills to be read on three several
5-7 days in each house be suspended, and this rule is hereby suspended.