1-1 By: Harris of Tarrant S.B. No. 165
1-2 (In the Senate - Filed January 25, 1993; January 26, 1993,
1-3 read first time and referred to Committee on Criminal Justice;
1-4 May 11, 1993, reported favorably by the following vote: Yeas 5,
1-5 Nays 0; May 11, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Whitmire x
1-9 Brown x
1-10 Nelson x
1-11 Sibley x
1-12 Sims x
1-13 Turner x
1-14 West x
1-15 A BILL TO BE ENTITLED
1-16 AN ACT
1-17 relating to the interception, use, or disclosure of wire, oral, or
1-18 electronic communications and to the prosecution of offenses
1-19 related to those activities.
1-20 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-21 SECTION 1. Subsection (c), Section 16.02, Penal Code, is
1-22 amended to read as follows:
1-23 (c) It is an affirmative defense to prosecution under
1-24 <exception to the application of> Subsection (b) of this section
1-25 that:
1-26 (1) an operator of a switchboard or an officer,
1-27 employee, or agent of a communication common carrier whose
1-28 facilities are used in the transmission of a wire or electronic
1-29 communication intercepts a communication or discloses or uses an
1-30 intercepted communication in the normal course of employment while
1-31 engaged in an activity that is a necessary incident to the
1-32 rendition of service or to the protection of the rights or property
1-33 of the carrier of the communication, unless the interception
1-34 results from the communication common carrier's use of service
1-35 observing or random monitoring for purposes other than mechanical
1-36 or service quality control checks;
1-37 (2) an officer, employee, or agent of a communication
1-38 common carrier provides information, facilities, or technical
1-39 assistance to an investigative or law enforcement officer who is
1-40 authorized as provided by this article to intercept a wire, oral,
1-41 or electronic communication;
1-42 (3) a person acting under color of law intercepts a
1-43 wire, oral, or electronic communication if the person is a party to
1-44 the communication or if one of the parties to the communication has
1-45 given prior consent to the interception;
1-46 (4) a person not acting under color of law intercepts
1-47 a wire, oral, or electronic communication if the person is a party
1-48 to the communication or if one of the parties to the communication
1-49 has given prior consent to the interception unless the
1-50 communication is intercepted for the purpose of committing any
1-51 criminal or tortious act in violation of the constitution or laws
1-52 of the United States or of this state or for the purpose of
1-53 committing any other injurious act;
1-54 (5) a person acting under color of law intercepts a
1-55 wire, oral, or electronic communication if:
1-56 (A) prior consent for the interception has been
1-57 given by a magistrate;
1-58 (B) an immediate life-threatening situation
1-59 exists;
1-60 (C) the person is a member of a law enforcement
1-61 unit specially trained to:
1-62 (i) respond to and deal with
1-63 life-threatening situations; or
1-64 (ii) install electronic, mechanical, or
1-65 other devices; and
1-66 (D) the interception ceases immediately on
1-67 termination of the life-threatening situation;
1-68 (6) an officer, employee, or agent of the Federal
2-1 Communications Commission intercepts a communication transmitted by
2-2 radio or discloses or uses an intercepted communication in the
2-3 normal course of employment and in the discharge of the monitoring
2-4 responsibilities exercised by the Federal Communications Commission
2-5 in the enforcement of Chapter 5, Title 47, United States Code;
2-6 (7) a person intercepts or obtains access to an
2-7 electronic communication that was made through an electronic
2-8 communication system that is configured to permit the communication
2-9 to be readily accessible to the general public;
2-10 (8) a person intercepts radio communication that is
2-11 transmitted:
2-12 (A) by a station for the use of the general
2-13 public;
2-14 (B) to ships, aircraft, vehicles, or persons in
2-15 distress;
2-16 (C) by a governmental, law enforcement, civil
2-17 defense, private land mobile, or public safety communications
2-18 system that is readily accessible to the general public;
2-19 (D) by a station operating on an authorized
2-20 frequency within the bands allocated to the amateur, citizens band,
2-21 or general mobile radio services; or
2-22 (E) by a marine or aeronautical communications
2-23 system;
2-24 (9) a person intercepts a wire or electronic
2-25 communication the transmission of which causes harmful interference
2-26 to a lawfully operating station or consumer electronic equipment,
2-27 to the extent necessary to identify the source of the interference;
2-28 (10) a user of the same frequency intercepts a radio
2-29 communication made through a system that uses frequencies monitored
2-30 by individuals engaged in the provision or the use of the system,
2-31 if the communication is not scrambled or encrypted; or
2-32 (11) a provider of electronic communications service
2-33 records the fact that a wire or electronic communication was
2-34 initiated or completed in order to protect the provider, another
2-35 provider furnishing service towards the completion of the
2-36 communication, or a user of that service from fraudulent, unlawful,
2-37 or abusive use of the service.
2-38 SECTION 2. Section 5, Chapter 275, Acts of the 67th
2-39 Legislature, Regular Session, 1981, and Section 1, Chapter 587,
2-40 Acts of the 69th Legislature, Regular Session, 1985, are repealed.
2-41 SECTION 3. (a) The change in law made by this Act applies
2-42 only to an offense committed on or after the effective date of this
2-43 Act. For purposes of this section, an offense is committed before
2-44 the effective date of this Act if any element of the offense occurs
2-45 before that date.
2-46 (b) An offense committed before the effective date of this
2-47 Act is governed by the law in effect when the offense was
2-48 committed, and the former law is continued in effect for this
2-49 purpose.
2-50 SECTION 4. (a) Except as provided by Subsection (b), this
2-51 Act takes effect September 1, 1993.
2-52 (b) Section 2 of this Act takes effect on the earliest
2-53 possible date permitted by Article III, Section 39, of the Texas
2-54 Constitution.
2-55 SECTION 5. The importance of this legislation and the
2-56 crowded condition of the calendars in both houses create an
2-57 emergency and an imperative public necessity that the
2-58 constitutional rule requiring bills to be read on three several
2-59 days in each house be suspended, and this rule is hereby suspended.
2-60 * * * * *
2-61 Austin,
2-62 Texas
2-63 May 11, 1993
2-64 Hon. Bob Bullock
2-65 President of the Senate
2-66 Sir:
2-67 We, your Committee on Criminal Justice to which was referred S.B.
2-68 No. 165, have had the same under consideration, and I am instructed
2-69 to report it back to the Senate with the recommendation that it do
2-70 pass and be printed.
3-1 Whitmire,
3-2 Chairman
3-3 * * * * *
3-4 WITNESSES
3-5 FOR AGAINST ON
3-6 ___________________________________________________________________
3-7 Name: Lon Curtis x
3-8 Representing: Tex Dist & Co Atty Assoc
3-9 City: Belton
3-10 -------------------------------------------------------------------
3-11 Name: John Boston x
3-12 Representing: Tx Crim Def Lawyers
3-13 City: Austin
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