By:  Armbrister                                       S.B. No. 1319
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to aural communications; authorizing civil damages;
    1-2  providing criminal penalties; and conforming certain laws to
    1-3  federal law.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subdivisions (1), (14), (15), and (19), Section
    1-6  1, Article 18.20, Code of Criminal Procedure, are amended to read
    1-7  as follows:
    1-8              (1)  "Wire communication" means an aural transfer made
    1-9  in whole or in part through the use of facilities for the
   1-10  transmission of communications by the aid of wire, cable, or other
   1-11  like connection between the point of origin and the point of
   1-12  reception, including the use of such a connection in a switching
   1-13  station, furnished or operated by a person authorized to engage in
   1-14  providing or operating the facilities for the transmission of
   1-15  communications as a communications common carrier.  The term
   1-16  includes the electronic storage of a wire communication<, but does
   1-17  not include the radio portion of a cordless telephone communication
   1-18  that is transmitted between the cordless telephone handset and its
   1-19  base unit>.
   1-20              (14)  "Pen register" means a <mechanical or electronic>
   1-21  device that records or decodes electronic or other impulses which
   1-22  identify the numbers dialed or otherwise transmitted on the
   1-23  <attaches to a> telephone line to which the device is attached.
    2-1  The term does not include a device used by a provider or customer
    2-2  of:
    2-3                    (A)  a wire or electronic communication service
    2-4  for billing, or recording as an incident to billing, for
    2-5  communication services of the provider; or
    2-6                    (B)  a wire  communication service for cost
    2-7  accounting, security control, or other similar purposes in the
    2-8  ordinary course of its business <and is capable of recording
    2-9  outgoing numbers dialed from that line but is not capable of
   2-10  recording the origin of an incoming communication to that line or
   2-11  the content of a communication carried between that line and
   2-12  another line>.
   2-13              (15)  "Electronic communication" means a transfer of
   2-14  signs, signals, writing, images, sounds, data, or intelligence of
   2-15  any nature transmitted in whole or in part by a wire, radio,
   2-16  electromagnetic, photoelectronic, or photo-optical system.  The
   2-17  term does not include:
   2-18                    (A)  <the radio portion of a cordless telephone
   2-19  communication that is transmitted between the cordless telephone
   2-20  handset and its base unit;>
   2-21                    <(B)> a wire or oral communication;
   2-22                    (B) <(C)>  a communication made through a
   2-23  tone-only paging device; or
   2-24                    (C) <(D)>  a communication from a tracking
   2-25  device.
    3-1              (19)  "Readily accessible to the general public" means,
    3-2  with respect to a radio communication, a communication that is not:
    3-3                    (A)  scrambled or encrypted;
    3-4                    (B)  transmitted using modulation techniques
    3-5  whose essential parameters have been withheld from the public with
    3-6  the intention of preserving the privacy of the communication; <or>
    3-7                    (C)  carried on a subcarrier or other signal
    3-8  subsidiary to a radio transmission;
    3-9                    (D)  transmitted over:
   3-10                          (i)  frequencies reserved for private use
   3-11  and licensed for private use under federal or state law, other than
   3-12  a tone-only paging device communication; or
   3-13                          (ii)  transmitted over a communication
   3-14  system provided by a common carrier, other than a tone-only paging
   3-15  device communication; or
   3-16                    (E)  an electronic communication.
   3-17        SECTION 2.  Section 16, Article 18.20, Code of Criminal
   3-18  Procedure, is amended to read as follows:
   3-19        Sec. 16.  Recovery of Civil Damages Authorized.  (a)  A
   3-20  person whose wire, oral, or electronic communication is
   3-21  intercepted, disclosed, or used in violation of this article or
   3-22  Chapter 16, Penal Code, has a civil cause of action against any
   3-23  person who has intercepted, disclosed, or used the communication or
   3-24  solicited <intercepts, discloses, or uses or procures> another
   3-25  <person> to intercept, disclose, or use the communication.  The
    4-1  person whose communication was intercepted, disclosed, or used
    4-2  <and> is entitled to recover from the person who intercepted,
    4-3  disclosed, or used the communication:
    4-4              (1)  actual damages but not less than liquidated
    4-5  damages computed at a rate of $100 a day for each day of violation
    4-6  or $1,000, whichever is higher;
    4-7              (2)  punitive damages; and
    4-8              (3)  a reasonable attorney's fee and other litigation
    4-9  costs reasonably incurred.
   4-10        (b)  A good faith reliance on a court order or legislative
   4-11  authorization constitutes a complete defense to an <any civil or
   4-12  criminal> action brought under this section <article>.
   4-13        (c)  A person shall be subject to suit by the federal or
   4-14  state government in a court of competent jurisdiction for
   4-15  appropriate injunctive relief if the person engages in conduct
   4-16  that:
   4-17              (1)  would constitute an offense under Section
   4-18  16.05(b), Penal Code, that is not for a tortious, criminal, or
   4-19  other illegal purpose or for the purpose of direct or indirect
   4-20  commercial advantage or private commercial gain; and
   4-21              (2)  involves a radio communication that:
   4-22                    (A)  is transmitted on frequencies allocated
   4-23  under 47 C.F.R., Part 25, Subpart D, or 47 C.F.R., Part 74 of the
   4-24  rules of the Federal Communications Commission; and
   4-25                    (B)  is not scrambled or encrypted.
    5-1        (d)  If it is shown on the trial of the civil suit that the
    5-2  defendant has been convicted of an offense under Section 16.05(b),
    5-3  Penal Code, or that the defendant has been found liable in a civil
    5-4  action under Subsection (c) of this section, the court shall impose
    5-5  a civil penalty of $500 in addition to granting injunctive relief.
    5-6        (e)  A court may enforce an injunction issued under this
    5-7  section, including a fine for contempt of court.  A fine under this
    5-8  subsection shall be not less than $500 for each violation of the
    5-9  injunction.
   5-10        SECTION 3.  Section 17, Article 18.20, Code of Criminal
   5-11  Procedure, is amended to read as follows:
   5-12        Sec. 17.  Exceptions.  This article  <(a)  It is an exception
   5-13  to the application of Section 16 that:>
   5-14              <(1)  an operator of a switchboard or an officer,
   5-15  employee, or agent of a communication common carrier or provider of
   5-16  wire or electronic communications service whose facilities are used
   5-17  in the transmission of a wire or electronic communication
   5-18  intercepts a communication or discloses or uses an intercepted
   5-19  communication in the normal course of employment while engaged in
   5-20  an activity that is a necessary incident to the rendition of
   5-21  service or to the protection of the rights or property of the
   5-22  provider or carrier of the communication, unless the interception
   5-23  results from the communication common carrier's or provider of wire
   5-24  or electronic communications service's use of service observing or
   5-25  random monitoring for purposes other than mechanical or service
    6-1  quality control checks;>
    6-2              <(2)  an officer, employee, or agent of a communication
    6-3  common carrier or provider of wire or electronic communications
    6-4  service provides information, facilities, or technical assistance
    6-5  to an investigative or law enforcement officer who is authorized as
    6-6  provided by this article to intercept a wire, oral, or electronic
    6-7  communication;>
    6-8              <(3)  a person acting under color of law intercepts a
    6-9  wire, oral, or electronic communication if the person is a party to
   6-10  the communication or if one of the parties to the communication has
   6-11  given prior consent to the interception; or>
   6-12              <(4)  a person not acting under color of law intercepts
   6-13  a wire, oral, or electronic communication if the person is a party
   6-14  to the communication or if one of the parties to the communication
   6-15  has given prior consent to the interception unless the
   6-16  communication is intercepted for the purpose of committing any
   6-17  criminal or tortious act in violation of the constitution or laws
   6-18  of the United States or of this state or for the purpose of
   6-19  committing any other injurious act.>
   6-20        <(b)  Article 18.20 of this code> does not apply to conduct
   6-21  described as an affirmative defense under Section 16.02<(c)(5)>,
   6-22  Penal Code.
   6-23        SECTION 4.  Section 1, Article 18.21, Code of Criminal
   6-24  Procedure, is amended to read as follows:
   6-25        Sec. 1.  Definitions.  In this article:
    7-1              (1)  "Aural transfer," "communication common carrier,"
    7-2  "electronic communication," "electronic communications service,"
    7-3  "electronic communications system," "electronic storage," "pen
    7-4  register," "readily accessible to the general public," and "user,"
    7-5  have the meanings given those terms in Article 18.20 <means a
    7-6  transfer containing the human voice at any point between and
    7-7  including the point of origin and the point of reception>.
    7-8              (2)  "Authorized peace officer" means:
    7-9                    (A)  a sheriff or a sheriff's deputy;
   7-10                    (B)  a constable or deputy constable;
   7-11                    (C)  a marshal or police officer of an
   7-12  incorporated city, town, or village;
   7-13                    (D)  a ranger or officer commissioned by the
   7-14  Public Safety Commission or the director of the Department of
   7-15  Public Safety;
   7-16                    (E)  an investigator of the district attorney's,
   7-17  criminal district attorney's, or county attorney's office;
   7-18                    (F)  a law enforcement agent of the Alcoholic
   7-19  Beverage Commission; or
   7-20                    (G)  a law enforcement officer commissioned by
   7-21  the Parks and Wildlife Commission.
   7-22              (3)  "Communications common carrier" means a
   7-23  communication common carrier <person engaged as a common carrier
   7-24  for hire in the transmission of wire or electronic communications>.
   7-25              (4)  "Department" means the Department of Public
    8-1  Safety.
    8-2              <(5)  "Electronic communication" means a transfer of
    8-3  signs, signals, writing, images, sounds, data, or intelligence of
    8-4  any nature transmitted in whole or in part by a wire, radio,
    8-5  electromagnetic, photoelectronic, or photo-optical system.  The
    8-6  term does not include:>
    8-7                    <(A)  the radio portion of a cordless telephone
    8-8  communication that is transmitted between the cordless telephone
    8-9  handset and its base unit;>
   8-10                    <(B)  a wire or oral communication;>
   8-11                    <(C)  a communication made through a tone-only
   8-12  paging device; or>
   8-13                    <(D)  a communication from a tracking device.>
   8-14              <(6)  "Electronic communications service" means a
   8-15  service that provides to users of the service the ability to send
   8-16  or receive wire or electronic communications.>
   8-17              <(7)  "Electronic communications system" means a wire,
   8-18  radio, electromagnetic, photo-optical or photoelectronic facility
   8-19  for the transmission of wire or electronic communications, and any
   8-20  computer facility or related electronic equipment for the
   8-21  electronic storage of those communications.>
   8-22              <(8)  "Electronic storage" means:>
   8-23                    <(A)  a temporary, intermediate storage of a wire
   8-24  or electronic communication that is incidental to the electronic
   8-25  transmission of the communication; or>
    9-1                    <(B)  storage of a wire or electronic
    9-2  communication by an electronic communications service for purposes
    9-3  of backup protection of the communication.>
    9-4              <(9)  "Pen register" means a mechanical or electronic
    9-5  device that attaches to a telephone line and is capable of
    9-6  recording outgoing numbers dialed from that line but is not capable
    9-7  of recording the origin of an incoming communication to that line
    9-8  or the content of a communication carried between that line and
    9-9  another line.>
   9-10              <(10)  "Readily accessible to the general public"
   9-11  means, with respect to a radio communication, a communication that
   9-12  is not:>
   9-13                    <(A)  scrambled or encrypted;>
   9-14                    <(B)  transmitted using modulation techniques
   9-15  whose essential parameters have been withheld from the public with
   9-16  the intention of preserving the privacy of the communication; or>
   9-17                    <(C)  transmitted over frequencies reserved for
   9-18  private use and licensed for private use under federal or state
   9-19  law, other than a tone-only paging device communication.>
   9-20              (5) <(11)>  "Remote computing service" means the
   9-21  provision to the public of computer storage or processing services
   9-22  by means of an electronic communications system.
   9-23              (6) <(12)>  "Supervisory official" means:
   9-24                    (A)  an investigative agent or an assistant
   9-25  investigative agent who is in charge of an investigation;
   10-1                    (B)  an equivalent person at an investigating
   10-2  agency's headquarters or regional office; and
   10-3                    (C)  the principal prosecuting attorney of the
   10-4  state or of a political subdivision of the state or the first
   10-5  assistant or chief assistant prosecuting attorney in the office of
   10-6  either.
   10-7              (7) <(13)>  "Tracking device" means an electronic or
   10-8  mechanical device that permits only tracking the movement of a
   10-9  person or object.
  10-10              (8) <(14)>  "Trap and trace device" means a <mechanical
  10-11  or electronic> device that captures the <attaches to a telephone
  10-12  line and is capable of recording an> incoming electronic or other
  10-13  impulses which identify <impulse that identifies> the originating
  10-14  number of an instrument or device from which a wire or electronic
  10-15  communication was transmitted.  The term does not include a device
  10-16  or telecommunications network used in providing either:
  10-17                    (A) <(1)> a caller identification service
  10-18  authorized by the Public Utility Commission of Texas under Section
  10-19  87C, Public Utility Regulatory Act (Article 1446c, Vernon's Texas
  10-20  Civil Statutes); or
  10-21                    (B) <(2)>  the services referenced in Subsection
  10-22  (g), Section 87C, Public Utility Regulatory Act (Article 1446c,
  10-23  Vernon's Texas Civil Statutes).
  10-24              <(15)  "User" means a person who uses an electronic
  10-25  communications service and is authorized by the provider of the
   11-1  service to use the service.>
   11-2              <(16)  "Wire communication" means an aural transfer
   11-3  made in whole or in part through the use of facilities for the
   11-4  transmission of communications by the aid of wire, cable, or other
   11-5  like connection between the point of origin and the point of
   11-6  reception, including the use of such a connection in a switching
   11-7  station, furnished or operated by a person authorized to engage in
   11-8  providing or operating the facilities for the transmission of
   11-9  communications as a communications common carrier.  The term
  11-10  includes the electronic storage of a wire communication but does
  11-11  not include the radio portion of a cordless telephone communication
  11-12  that is transmitted between the cordless telephone handset and its
  11-13  base unit.>
  11-14        SECTION 5.  Section 3, Article 18.21, Code of Criminal
  11-15  Procedure, is amended to read as follows:
  11-16        Sec. 3.  Emergency pen register and trap and trace
  11-17  installation.  (a)  An authorized peace officer, designated by <the
  11-18  director of the department or by> the district or criminal district
  11-19  attorney of the county where the installation will be used, may
  11-20  install and use a pen register or trap and trace device if the
  11-21  peace officer reasonably believes that:
  11-22              (1)  an emergency requiring the installation of a pen
  11-23  register or trap and trace device before an order authorizing the
  11-24  installation and use can, with due diligence, be obtained, exists
  11-25  involving immediate danger of death or serious injury to any
   12-1  person; and
   12-2              (2)  there are grounds under this article on which an
   12-3  order could be entered to authorize the installation and use of a
   12-4  pen register or trap and trace device.
   12-5        (b)  If an authorized peace officer installs a pen register
   12-6  or trap and trace device under Subsection (a) of this section, the
   12-7  peace officer shall apply for and <must> obtain an order approving
   12-8  installation and use within 48 hours after initiating the
   12-9  installation <occurred>.  If authorization is not obtained within
  12-10  <those> 48 hours, the officer shall immediately terminate use of
  12-11  the pen register or <the> trap and trace device <shall immediately
  12-12  terminate>  at the end <lapse> of the 48 hours or at the time the
  12-13  order is denied, whichever is earlier.
  12-14        (c)  <The knowing installation or use by an authorized peace
  12-15  officer of a pen register or trap and trace device under this
  12-16  section without application for the authorizing order within 48
  12-17  hours of the installation is not permitted and is not an exception
  12-18  to the application of Section 16.03, Penal Code.>
  12-19        <(d)>  The state may not use as evidence in a <any
  12-20  subsequent> criminal proceeding any information gained through the
  12-21  use of a pen register or trap and trace device installed <issued>
  12-22  under <Subsection (b) of> this section if authorization for the pen
  12-23  register or trap and trace device is denied.
  12-24        SECTION 6.  Article 18.21, Code of Criminal Procedure, is
  12-25  amended by adding Section 16 to read as follows:
   13-1        Sec. 16.  LIMITATION.  A government agency authorized to
   13-2  install and use a pen register under this chapter or under other
   13-3  law shall use reasonably available technology to restrict the
   13-4  recording or decoding of electronic or other impulses to the
   13-5  dialing and signaling information utilized in call processing.
   13-6        SECTION 7.  Subsection (c), Section 16.02, Penal Code, is
   13-7  amended to read as follows:
   13-8        (c)  It is an affirmative defense to prosecution under
   13-9  Subsection (b) that:
  13-10              (1)  an operator of a switchboard or an officer,
  13-11  employee, or agent of a communication common carrier whose
  13-12  facilities are used in the transmission of a wire or electronic
  13-13  communication intercepts a communication or discloses or uses an
  13-14  intercepted communication in the normal course of employment while
  13-15  engaged in an activity that is a necessary incident to the
  13-16  rendition of service or to the protection of the rights or property
  13-17  of the carrier of the communication, unless the interception
  13-18  results from the communication common carrier's use of service
  13-19  observing or random monitoring for purposes other than mechanical
  13-20  or service quality control checks;
  13-21              (2)  an officer, employee, or agent of a communication
  13-22  common carrier provides information, facilities, or technical
  13-23  assistance to an investigative or law enforcement officer who is
  13-24  authorized as provided by this article to intercept a wire, oral,
  13-25  or electronic communication;
   14-1              (3)  a person acting under color of law intercepts a
   14-2  wire, oral, or electronic communication if the person is a party to
   14-3  the communication or if one of the parties to the communication has
   14-4  given prior consent to the interception;
   14-5              (4)  a person not acting under color of law intercepts
   14-6  a wire, oral, or electronic communication if the person is a party
   14-7  to the communication or if one of the parties to the communication
   14-8  has given prior consent to the interception unless the
   14-9  communication is intercepted for the purpose of committing any
  14-10  criminal or tortious act in violation of the constitution or laws
  14-11  of the United States or of this state or for the purpose of
  14-12  committing any other injurious act;
  14-13              (5)  a person acting under color of law intercepts a
  14-14  wire, oral, or electronic communication if:
  14-15                    (A)  prior oral or written consent for the
  14-16  interception has been given by a magistrate;
  14-17                    (B)  an immediate life-threatening situation
  14-18  exists;
  14-19                    (C)  the person is a member of a law enforcement
  14-20  unit specially trained to:
  14-21                          (i)  respond to and deal with
  14-22  life-threatening situations; or
  14-23                          (ii)  install electronic, mechanical, or
  14-24  other devices; and
  14-25                    (D)  the interception ceases immediately on
   15-1  termination of the life-threatening situation;
   15-2              (6)  an officer, employee, or agent of the Federal
   15-3  Communications Commission intercepts a communication transmitted by
   15-4  radio or discloses or uses an intercepted communication in the
   15-5  normal course of employment and in the discharge of the monitoring
   15-6  responsibilities exercised by the Federal Communications Commission
   15-7  in the enforcement of Chapter 5, Title 47, United States Code;
   15-8              (7)  a person intercepts or obtains access to an
   15-9  electronic communication that was made through an electronic
  15-10  communication system that is configured to permit the communication
  15-11  to be readily accessible to the general public;
  15-12              (8)  a person intercepts radio communication, other
  15-13  than a cordless telephone communication transmitted between the
  15-14  cordless telephone handset and the base unit, that is transmitted:
  15-15                    (A)  by a station for the use of the general
  15-16  public;
  15-17                    (B)  to ships, aircraft, vehicles, or persons in
  15-18  distress;
  15-19                    (C)  by a governmental, law enforcement, civil
  15-20  defense, private land mobile, or public safety communications
  15-21  system that is readily accessible to the general public;
  15-22                    (D)  by a station operating on an authorized
  15-23  frequency within the bands allocated to the amateur, citizens band,
  15-24  or general mobile radio services; or
  15-25                    (E)  by a marine or aeronautical communications
   16-1  system;
   16-2              (9)  a person intercepts a wire or electronic
   16-3  communication the transmission of which causes harmful interference
   16-4  to a lawfully operating station or consumer electronic equipment,
   16-5  to the extent necessary to identify the source of the interference;
   16-6              (10)  a user of the same frequency intercepts a radio
   16-7  communication made through a system that uses frequencies monitored
   16-8  by individuals engaged in the provision or the use of the system,
   16-9  if the communication is not scrambled or encrypted; or
  16-10              (11)  a provider of electronic communications service
  16-11  records the fact that a wire or electronic communication was
  16-12  initiated or completed in order to protect the provider, another
  16-13  provider furnishing service towards the completion of the
  16-14  communication, or a user of that service from fraudulent, unlawful,
  16-15  or abusive use of the service.
  16-16        SECTION 8.  Section 16.03, Penal Code, is amended to read as
  16-17  follows:
  16-18        Sec. 16.03.  Unlawful Use of Pen Register or Trap and Trace
  16-19  Device.  (a)  A <Except as authorized by a court order obtained
  16-20  under Article 18.21, Code of Criminal Procedure, or in an emergency
  16-21  under the circumstances described and permitted under that article,
  16-22  a> person commits an offense if the person intentionally or <he>
  16-23  knowingly installs or uses <utilizes> a pen register or trap and
  16-24  trace device <to record telephone numbers dialed from or to a
  16-25  telephone instrument>.
   17-1        (b)  In this section, "authorized peace officer,"
   17-2  "communications common carrier," "pen register," and "trap and
   17-3  trace device" have the meanings assigned by Article 18.21, Code of
   17-4  Criminal Procedure.
   17-5        (c)  It is an affirmative defense to prosecution under this
   17-6  section <exception to the application of Subsection (a)> that the
   17-7  installation or use was made:
   17-8              (1)  by an officer, employee, or agent of a
   17-9  communications common carrier <installs or utilizes a device or
  17-10  equipment> to record a number <the numbers> dialed from or to a
  17-11  telephone instrument in the normal course of business of the
  17-12  carrier for the purpose of:
  17-13                    (A)  protecting<, for the protection of> property
  17-14  or services provided by the carrier; or
  17-15                    (B)  assisting another whom the person reasonably
  17-16  believed to have been<, or assists> an authorized peace officer
  17-17  acting lawfully <in executing an order issued> under Article 18.21,
  17-18  Code of Criminal Procedure;<.>
  17-19              (2) <(d)  It is an exception to the application of
  17-20  Subsection (a) that the installation or utilization of a pen
  17-21  register or trap and trace device was made> by an officer, <agent,
  17-22  or> employee, or agent of a lawful enterprise while engaged in an
  17-23  activity that:
  17-24                    (A)  was <is> a necessary incident to the
  17-25  rendition of service or to the protection of property of or
   18-1  services provided by the enterprise;<,> and
   18-2                    (B)  was not made for the purpose of gathering
   18-3  information for a law enforcement agency or private investigative
   18-4  agency, other than information related to the theft of
   18-5  communication or information services provided by the enterprise;
   18-6  or
   18-7              (3)  by a person acting in compliance with the
   18-8  emergency provisions of Article 18.21, Code of Criminal Procedure,
   18-9  or under a court order obtained under that article.
  18-10        (d) <(e)>  An offense under this section is a state jail
  18-11  felony.
  18-12        SECTION 9.  Subsection (e), Section 16.04, Penal Code, is
  18-13  amended to read as follows:
  18-14        (e)  It is an affirmative defense to prosecution under
  18-15  <exception to the application of> Subsection (b) that the conduct
  18-16  was authorized by:
  18-17              (1)  the provider of the wire or electronic
  18-18  communications service;
  18-19              (2)  the user of the wire or electronic communications
  18-20  service; <or>
  18-21              (3)  the addressee or intended recipient of the wire or
  18-22  electronic communication; or
  18-23              (4)  Article 18.21, Code of Criminal Procedure.
  18-24        SECTION 10.  Section 16.05, Penal Code, is amended to read as
  18-25  follows:
   19-1        Sec. 16.05.  Illegal Divulgence of Public Communications.
   19-2  (a)  In this section:
   19-3              (1) <,>  "Electronic <electronic> communication,"
   19-4  "electronic communications service," and "electronic communications
   19-5  system" have the meanings given those terms in Article 18.20, Code
   19-6  of Criminal Procedure.
   19-7              (2)  "Intended recipient" means the person to whom a
   19-8  communication is addressed or directed or an agent of that person.
   19-9        (b)  A <Except as provided by Subsection (c), a> person who
  19-10  provides electronic communications service to the public commits an
  19-11  offense if, while an electronic communication is in transmission on
  19-12  that service, the person <he> intentionally or knowingly divulges
  19-13  the contents of the <a> communication to another who is not<, other
  19-14  than a communication to that person or that person's agent, while
  19-15  the communication is in transmission on that service, to any person
  19-16  other than the addressee or> the intended recipient of the
  19-17  communication <or the addressee's or intended recipient's agent>.
  19-18        (c)  It is an affirmative defense to prosecution under
  19-19  Subsection (b) that the actor divulged <A person who provides
  19-20  electronic communications service to the public may divulge> the
  19-21  contents of the <a> communication:
  19-22              (1)  as authorized by federal or state law;
  19-23              (2)  to another for the purpose for forwarding <a
  19-24  person employed, authorized, or whose facilities are used to
  19-25  forward> the communication to its <the communication's> destination
   20-1  and the other was an employee, an authorized agent, or a person in
   20-2  control of the facility used to forward the communication; or
   20-3              (3)  to a law enforcement agency if <the contents were
   20-4  obtained by the service provider and> the contents reasonably
   20-5  appeared to contain information relating <appear to pertain> to the
   20-6  commission of a crime.
   20-7        (d)  An <Except as provided by Subsections (e) and (f), an>
   20-8  offense under this section that involves a scrambled or encrypted
   20-9  radio communication <Subsection (b)> is a state jail felony.
  20-10        (e)  An <If committed for a tortious or illegal purpose or to
  20-11  gain a benefit, an> offense under this section <Subsection (b)>
  20-12  that does not involve a scrambled or encrypted <involves a> radio
  20-13  communication and that is committed unlawfully or to gain a benefit
  20-14  <not scrambled or encrypted>:
  20-15              (1)  is a Class A misdemeanor if the communication is
  20-16  not <the radio portion of a cellular telephone communication,> a
  20-17  public land mobile radio service communication<,> or a paging
  20-18  service communication; or
  20-19              (2)  is a Class C misdemeanor if the communication is
  20-20  <the radio portion of a cellular telephone communication,> a public
  20-21  land <and> mobile radio service <or> communication or a paging
  20-22  service communication.
  20-23        <(f)(1)  A person who engages in conduct constituting an
  20-24  offense under Subsection (b) that is not for a tortious or illegal
  20-25  purpose or for the purpose of direct or indirect commercial
   21-1  advantage or private commercial gain and involves a radio
   21-2  communication that is transmitted on frequencies allocated under
   21-3  Subpart D or Part 74 of the rules of the Federal Communications
   21-4  Commission and that is not scrambled or encrypted shall be subject
   21-5  to suit by the federal or state government in a court of competent
   21-6  jurisdiction for appropriate injunctive relief.  If it is shown on
   21-7  the trial of the civil suit that the defendant has been convicted
   21-8  of an offense under Subsection (b) or that the defendant has been
   21-9  found liable in a civil action under Article 18.20, Code of
  21-10  Criminal Procedure, in addition to granting injunctive relief the
  21-11  court shall impose a civil penalty of $500 on the defendant.>
  21-12              <(2)  A court may use any means within the court's
  21-13  authority to enforce an injunction issued under Subdivision (1) and
  21-14  shall impose a fine as for contempt of court of not less than $500
  21-15  for each violation of the injunction.>
  21-16        SECTION 11.  This Act takes effect September 1, 1995.
  21-17        SECTION 12.  (a)  The change in law made by this Act applies
  21-18  only to an offense committed on or after the effective date of this
  21-19  Act.  For purposes of this section, an offense is committed before
  21-20  the effective date of this Act if any element of the offense occurs
  21-21  before the effective date.
  21-22        (b)  An offense committed before the effective date of this
  21-23  Act is covered by the law in effect when the offense was committed,
  21-24  and the former law is continued in effect for this purpose.
  21-25        SECTION 13.  The importance of this legislation and the
   22-1  crowded condition of the calendars in both houses create an
   22-2  emergency and an imperative public necessity that the
   22-3  constitutional rule requiring bills to be read on three several
   22-4  days in each house be suspended, and this rule is hereby suspended,
   22-5  and that this Act take effect and be in force from and after its
   22-6  passage, and it is so enacted.