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.