BILL ANALYSIS
S.B. 1319
By: Armbrister
Economic Development
04-27-95
Committee Report (Unamended)
BACKGROUND
Articles 18.20 and 18.21 of the Code of Criminal Procedure are out
of step with amendments to the federal Communications Assistance
for Law Enforcement Act.
PURPOSE
As proposed, S.B. 1319 changes state law communication law to
conform with current federal law.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Sections 1(1), (14), (15), and (19), Article
18.20, Code of Criminal Procedure, to redefine "wire
communication," "pen register," "electronic communication," and
"readily accessible to the general public."
SECTION 2. Amends Section 16, Article 18.20, Code of Criminal
Procedure, as follows:
Sec. 16. RECOVERY OF CIVIL DAMAGES AUTHORIZED. (a) Provides
that a person whose wire, oral, or electronic communication is
intercepted, disclosed, or used (intercepted) in violation of
this article or Chapter 16, Penal Code, has a civil cause of
action against any person who has intercepted the
communication or solicited another to intercept the
communication, rather than having a civil cause of action
against any person who intercepts or procures another person
to perform those acts. Sets forth the damages and costs the
person whose communication was intercepted is entitled to
recover from the person who intercepted the communication.
(b) Provides that a good faith reliance on a court order or
legislative authorization constitutes a complete defense to
an action, rather than any civil or criminal action, brought
under this section, instead of under this article.
(c) Requires a person to be subject to a suit by the federal
or state government in a court of competent jurisdiction for
injunctive relief if the person's conduct would constitute
an offense under Section 16.05(b), Penal Code, that is not
for tortious, criminal, or other illegal purpose or for the
purpose of direct or indirect commercial advantage or
private commercial gain; and involves certain radio
communications.
(d) Requires the court to impose a civil penalty of $500 in
addition to granting injunctive relief if it is found in the
civil suit trial that the defendant has been previously
convicted under Section 16.05(b), Penal Code, or has
previously been found liable in a civil action under
Subsection (c).
(e) Authorizes a court to enforce an injunction issued under
this section, including a fine for contempt of court.
Prohibits a fine under this subsection from being less than
$500 for each violation of the injunction.
SECTION 3. Amends Section 17, Article 18.20, Code of Criminal
Procedure, to provide that this article does not apply to conduct
described in an affirmative defense under Section 16.02, Penal
Code, rather than Section 16.02(c)(5), Penal Code. Deletes
language providing exceptions to the application of Section 16,
Penal Code.
SECTION 4. Amends Section 1, Article 18.21, Code of Criminal
Procedure, to redefine "aural transfer," "communication common
carrier," electronic communication," "electronic communications
service," "electronic communications system," "electronic storage,"
"pen register," "readily accessible to the general public," "user,"
"communications common carrier," and "trap and trace device."
Deletes the definition of "wire communication." Redesignates
existing Subdivisions (11)-(14) as Subdivisions (5)-(8).
SECTION 5. Amends Section 3, Article 18.21, Code of Criminal
Procedure, as follows:
Sec. 3. EMERGENCY PEN REGISTER AND TRAP AND TRACE
INSTALLATION. (a) Provides that an authorized peace officer
designated by a district or criminal attorney, rather than one
designated by the director of the Department of Public Safety,
may install a pen register or trap and trace device (device).
(b) Requires the peace officer to apply for and obtain an
order approving installation and use of a device within 48
hours after initiating the installation, rather than within 48
hours after installation occurred. Makes nonsubstantive
changes.
(c) Deletes existing Subsection (c) providing that the
unauthorized use of a device is not an exception to the
application of Section 16.03, Penal Code. Redesignates
existing Subsection (d) prohibiting the state from using as
evidence in a criminal proceeding any information gained
through the use of a device installed, rather than issued,
under this section if authorization has been denied.
SECTION 6. Amends Article 18.21, Code of Criminal Procedure, by
adding Section 16, as follows:
Sec. 16. LIMITATION. Requires a government agency
authorized to install and use a pen register under this
chapter or under any other law to use reasonably available
technology to restrict the recording or decoding of electronic
or other impulses to the dialing and signaling information
utilized in call processing.
SECTION 7. Amends Section 16.02(c), Penal Code, to provide that it
is an affirmative defense to prosecution under Subsection (b) that
a person acting under color of law intercepts a wire, oral, or
electronic communication if prior oral or written consent for the
interception has been given by the magistrate; or a person
intercepts certain radio communications, other than a cordless
telephone communication transmitted between the cordless telephone
handset and base unit, among others.
SECTION 8. Amends Section 16.03, Penal Code, as follows:
Sec. 16.03. UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE
DEVICE. (a) Provides that a person commits an offense if the
person intentionally or knowingly installs or uses a device,
rather than installs or uses a device to record telephone
numbers dialed from or to a telephone instrument. Deletes
language providing an exception.
(b) Makes no change.
(c) Provides that it is an affirmative defense to
prosecution that the installation or use was made, among
others, by an officer, employee, or agent of a
communications common carrier to assist another whom the
person reasonably believed to have been an authorized peace
officer acting lawfully under Article 18.21, Code of
Criminal Procedure; by an officer, employee, or agent of
lawful enterprise while engaging in certain activities; or
by a person acting in compliance with the emergency
provisions of Article 18.21, Code of Criminal Procedure,
under a court order obtained under that article. Deletes
language providing exceptions to the application of
Subsection (a). Makes nonsubstantive changes.
(d) Redesignates existing Subsection (e).
SECTION 9. Amends Section 16.04(e), Penal Code, to provide that it
is an affirmative defense to prosecution under, rather than an
exception to the application of, Subsection (b) that conduct was
authorized by the addressee or intended recipient of the wire or
electronic communication, among others. Redesignates existing
Subdivision (3) as Subdivision (4).
SECTION 10. Amends Section 16.05, Penal Code, as follows:
Sec. 16.05. ILLEGAL DIVULGENCE OF PUBLIC COMMUNICATIONS.
(a) Defines "intended recipient." Makes a nonsubstantive
change.
(b) Provides that a person who provides electronic
communications service to the public commits an offense if,
while an electronic communication is in transmission on that
service, the person intentionally or knowingly divulges the
contents of the communication to another who is not the
intended recipient of the communication, rather than to
other than certain alternative recipients. Deletes language
providing that Subsection (c) is an exception. Makes
nonsubstantive changes.
(c) Provides that it is an affirmative defense to
prosecution under Subsection (b) that the actor divulged the
contents of the communication as authorized by federal law;
to another to forward the communication to its destination
and the other was an employee, an authorized agent, or a
person in control of the facility used to forward the
communication; to a law enforcement agency if the contents
appear to contain information relating to the commission of
a crime. Deletes language authorizing a person who provides
electronic communications service to the public to divulge
the contents of a communication.
(d) Provides that an offense under this section involving a
scrambled or encrypted radio communication is a state jail
felony. Deletes language providing Subsections (e) and (f)
as an exception to an offense under Subsection (b) that is
a state jail felony.
(e) Provides that an offense under this section that does
not involve scrambled or encrypted radio communication and
that is committed unlawfully or to gain a benefit is a Class
A misdemeanor if the communication is not a public land
mobile radio service communication or a paging service
communication; or a Class C misdemeanor if the communication
is a public land mobile radio service communication or a
paging service communication. Deletes language providing
that an offense under Subsection (b) involving certain radio
communications is a Class A or Class C misdemeanor. Deletes
Subsection (f) requiring a person who commits certain
offenses under Subsection (b) to be subject to a suit by a
federal or state government in a court for appropriate
injunctive relief.
SECTION 11. Effective date: September 1, 1995.
SECTION 12. Makes application of this Act prospective.
SECTION 13. Emergency clause.
Effective date: upon passage.