1-1  By:  Armbrister                                       S.B. No. 1319
    1-2        (In the Senate - Filed March 10, 1995; March 20, 1995, read
    1-3  first time and referred to Committee on Economic Development;
    1-4  April 26, 1995, reported favorably by the following vote:  Yeas 9,
    1-5  Nays 0; April 26, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to aural communications; authorizing civil damages;
    1-9  providing criminal penalties; and conforming certain laws to
   1-10  federal law.
   1-11        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-12        SECTION 1.  Subdivisions (1), (14), (15), and (19), Section
   1-13  1, Article 18.20, Code of Criminal Procedure, are amended to read
   1-14  as follows:
   1-15              (1)  "Wire communication" means an aural transfer made
   1-16  in whole or in part through the use of facilities for the
   1-17  transmission of communications by the aid of wire, cable, or other
   1-18  like connection between the point of origin and the point of
   1-19  reception, including the use of such a connection in a switching
   1-20  station, furnished or operated by a person authorized to engage in
   1-21  providing or operating the facilities for the transmission of
   1-22  communications as a communications common carrier.  The term
   1-23  includes the electronic storage of a wire communication<, but does
   1-24  not include the radio portion of a cordless telephone communication
   1-25  that is transmitted between the cordless telephone handset and its
   1-26  base unit>.
   1-27              (14)  "Pen register" means a <mechanical or electronic>
   1-28  device that records or decodes electronic or other impulses which
   1-29  identify the numbers dialed or otherwise transmitted on the
   1-30  <attaches to a> telephone line to which the device is attached.
   1-31  The term does not include a device used by a provider or customer
   1-32  of:
   1-33                    (A)  a wire or electronic communication service
   1-34  for billing, or recording as an incident to billing, for
   1-35  communication services of the provider; or
   1-36                    (B)  a wire  communication service for cost
   1-37  accounting, security control, or other similar purposes in the
   1-38  ordinary course of its business <and is capable of recording
   1-39  outgoing numbers dialed from that line but is not capable of
   1-40  recording the origin of an incoming communication to that line or
   1-41  the content of a communication carried between that line and
   1-42  another line>.
   1-43              (15)  "Electronic communication" means a transfer of
   1-44  signs, signals, writing, images, sounds, data, or intelligence of
   1-45  any nature transmitted in whole or in part by a wire, radio,
   1-46  electromagnetic, photoelectronic, or photo-optical system.  The
   1-47  term does not include:
   1-48                    (A)  <the radio portion of a cordless telephone
   1-49  communication that is transmitted between the cordless telephone
   1-50  handset and its base unit;>
   1-51                    <(B)> a wire or oral communication;
   1-52                    (B) <(C)>  a communication made through a
   1-53  tone-only paging device; or
   1-54                    (C) <(D)>  a communication from a tracking
   1-55  device.
   1-56              (19)  "Readily accessible to the general public" means,
   1-57  with respect to a radio communication, a communication that is not:
   1-58                    (A)  scrambled or encrypted;
   1-59                    (B)  transmitted using modulation techniques
   1-60  whose essential parameters have been withheld from the public with
   1-61  the intention of preserving the privacy of the communication; <or>
   1-62                    (C)  carried on a subcarrier or other signal
   1-63  subsidiary to a radio transmission;
   1-64                    (D)  transmitted over:
   1-65                          (i)  frequencies reserved for private use
   1-66  and licensed for private use under federal or state law, other than
   1-67  a tone-only paging device communication; or
   1-68                          (ii)  transmitted over a communication
    2-1  system provided by a common carrier, other than a tone-only paging
    2-2  device communication; or
    2-3                    (E)  an electronic communication.
    2-4        SECTION 2.  Section 16, Article 18.20, Code of Criminal
    2-5  Procedure, is amended to read as follows:
    2-6        Sec. 16.  Recovery of Civil Damages Authorized.  (a)  A
    2-7  person whose wire, oral, or electronic communication is
    2-8  intercepted, disclosed, or used in violation of this article or
    2-9  Chapter 16, Penal Code, has a civil cause of action against any
   2-10  person who has intercepted, disclosed, or used the communication or
   2-11  solicited <intercepts, discloses, or uses or procures> another
   2-12  <person> to intercept, disclose, or use the communication.  The
   2-13  person whose communication was intercepted, disclosed, or used
   2-14  <and> is entitled to recover from the person who intercepted,
   2-15  disclosed, or used the communication:
   2-16              (1)  actual damages but not less than liquidated
   2-17  damages computed at a rate of $100 a day for each day of violation
   2-18  or $1,000, whichever is higher;
   2-19              (2)  punitive damages; and
   2-20              (3)  a reasonable attorney's fee and other litigation
   2-21  costs reasonably incurred.
   2-22        (b)  A good faith reliance on a court order or legislative
   2-23  authorization constitutes a complete defense to an <any civil or
   2-24  criminal> action brought under this section <article>.
   2-25        (c)  A person shall be subject to suit by the federal or
   2-26  state government in a court of competent jurisdiction for
   2-27  appropriate injunctive relief if the person engages in conduct
   2-28  that:
   2-29              (1)  would constitute an offense under Section
   2-30  16.05(b), Penal Code, that is not for a tortious, criminal, or
   2-31  other illegal purpose or for the purpose of direct or indirect
   2-32  commercial advantage or private commercial gain; and
   2-33              (2)  involves a radio communication that:
   2-34                    (A)  is transmitted on frequencies allocated
   2-35  under 47 C.F.R., Part 25, Subpart D, or 47 C.F.R., Part 74 of the
   2-36  rules of the Federal Communications Commission; and
   2-37                    (B)  is not scrambled or encrypted.
   2-38        (d)  If it is shown on the trial of the civil suit that the
   2-39  defendant has been convicted of an offense under Section 16.05(b),
   2-40  Penal Code, or that the defendant has been found liable in a civil
   2-41  action under Subsection (c) of this section, the court shall impose
   2-42  a civil penalty of $500 in addition to granting injunctive relief.
   2-43        (e)  A court may enforce an injunction issued under this
   2-44  section, including a fine for contempt of court.  A fine under this
   2-45  subsection shall be not less than $500 for each violation of the
   2-46  injunction.
   2-47        SECTION 3.  Section 17, Article 18.20, Code of Criminal
   2-48  Procedure, is amended to read as follows:
   2-49        Sec. 17.  Exceptions.  This article  <(a)  It is an exception
   2-50  to the application of Section 16 that:>
   2-51              <(1)  an operator of a switchboard or an officer,
   2-52  employee, or agent of a communication common carrier or provider of
   2-53  wire or electronic communications service whose facilities are used
   2-54  in the transmission of a wire or electronic communication
   2-55  intercepts a communication or discloses or uses an intercepted
   2-56  communication in the normal course of employment while engaged in
   2-57  an activity that is a necessary incident to the rendition of
   2-58  service or to the protection of the rights or property of the
   2-59  provider or carrier of the communication, unless the interception
   2-60  results from the communication common carrier's or provider of wire
   2-61  or electronic communications service's use of service observing or
   2-62  random monitoring for purposes other than mechanical or service
   2-63  quality control checks;>
   2-64              <(2)  an officer, employee, or agent of a communication
   2-65  common carrier or provider of wire or electronic communications
   2-66  service provides information, facilities, or technical assistance
   2-67  to an investigative or law enforcement officer who is authorized as
   2-68  provided by this article to intercept a wire, oral, or electronic
   2-69  communication;>
   2-70              <(3)  a person acting under color of law intercepts a
    3-1  wire, oral, or electronic communication if the person is a party to
    3-2  the communication or if one of the parties to the communication has
    3-3  given prior consent to the interception; or>
    3-4              <(4)  a person not acting under color of law intercepts
    3-5  a wire, oral, or electronic communication if the person is a party
    3-6  to the communication or if one of the parties to the communication
    3-7  has given prior consent to the interception unless the
    3-8  communication is intercepted for the purpose of committing any
    3-9  criminal or tortious act in violation of the constitution or laws
   3-10  of the United States or of this state or for the purpose of
   3-11  committing any other injurious act.>
   3-12        <(b)  Article 18.20 of this code> does not apply to conduct
   3-13  described as an affirmative defense under Section 16.02<(c)(5)>,
   3-14  Penal Code.
   3-15        SECTION 4.  Section 1, Article 18.21, Code of Criminal
   3-16  Procedure, is amended to read as follows:
   3-17        Sec. 1.  Definitions.  In this article:
   3-18              (1)  "Aural transfer," "communication common carrier,"
   3-19  "electronic communication," "electronic communications service,"
   3-20  "electronic communications system," "electronic storage," "pen
   3-21  register," "readily accessible to the general public," and "user,"
   3-22  have the meanings given those terms in Article 18.20 <means a
   3-23  transfer containing the human voice at any point between and
   3-24  including the point of origin and the point of reception>.
   3-25              (2)  "Authorized peace officer" means:
   3-26                    (A)  a sheriff or a sheriff's deputy;
   3-27                    (B)  a constable or deputy constable;
   3-28                    (C)  a marshal or police officer of an
   3-29  incorporated city, town, or village;
   3-30                    (D)  a ranger or officer commissioned by the
   3-31  Public Safety Commission or the director of the Department of
   3-32  Public Safety;
   3-33                    (E)  an investigator of the district attorney's,
   3-34  criminal district attorney's, or county attorney's office;
   3-35                    (F)  a law enforcement agent of the Alcoholic
   3-36  Beverage Commission; or
   3-37                    (G)  a law enforcement officer commissioned by
   3-38  the Parks and Wildlife Commission.
   3-39              (3)  "Communications common carrier" means a
   3-40  communication common carrier <person engaged as a common carrier
   3-41  for hire in the transmission of wire or electronic communications>.
   3-42              (4)  "Department" means the Department of Public
   3-43  Safety.
   3-44              <(5)  "Electronic communication" means a transfer of
   3-45  signs, signals, writing, images, sounds, data, or intelligence of
   3-46  any nature transmitted in whole or in part by a wire, radio,
   3-47  electromagnetic, photoelectronic, or photo-optical system.  The
   3-48  term does not include:>
   3-49                    <(A)  the radio portion of a cordless telephone
   3-50  communication that is transmitted between the cordless telephone
   3-51  handset and its base unit;>
   3-52                    <(B)  a wire or oral communication;>
   3-53                    <(C)  a communication made through a tone-only
   3-54  paging device; or>
   3-55                    <(D)  a communication from a tracking device.>
   3-56              <(6)  "Electronic communications service" means a
   3-57  service that provides to users of the service the ability to send
   3-58  or receive wire or electronic communications.>
   3-59              <(7)  "Electronic communications system" means a wire,
   3-60  radio, electromagnetic, photo-optical or photoelectronic facility
   3-61  for the transmission of wire or electronic communications, and any
   3-62  computer facility or related electronic equipment for the
   3-63  electronic storage of those communications.>
   3-64              <(8)  "Electronic storage" means:>
   3-65                    <(A)  a temporary, intermediate storage of a wire
   3-66  or electronic communication that is incidental to the electronic
   3-67  transmission of the communication; or>
   3-68                    <(B)  storage of a wire or electronic
   3-69  communication by an electronic communications service for purposes
   3-70  of backup protection of the communication.>
    4-1              <(9)  "Pen register" means a mechanical or electronic
    4-2  device that attaches to a telephone line and is capable of
    4-3  recording outgoing numbers dialed from that line but is not capable
    4-4  of recording the origin of an incoming communication to that line
    4-5  or the content of a communication carried between that line and
    4-6  another line.>
    4-7              <(10)  "Readily accessible to the general public"
    4-8  means, with respect to a radio communication, a communication that
    4-9  is not:>
   4-10                    <(A)  scrambled or encrypted;>
   4-11                    <(B)  transmitted using modulation techniques
   4-12  whose essential parameters have been withheld from the public with
   4-13  the intention of preserving the privacy of the communication; or>
   4-14                    <(C)  transmitted over frequencies reserved for
   4-15  private use and licensed for private use under federal or state
   4-16  law, other than a tone-only paging device communication.>
   4-17              (5) <(11)>  "Remote computing service" means the
   4-18  provision to the public of computer storage or processing services
   4-19  by means of an electronic communications system.
   4-20              (6) <(12)>  "Supervisory official" means:
   4-21                    (A)  an investigative agent or an assistant
   4-22  investigative agent who is in charge of an investigation;
   4-23                    (B)  an equivalent person at an investigating
   4-24  agency's headquarters or regional office; and
   4-25                    (C)  the principal prosecuting attorney of the
   4-26  state or of a political subdivision of the state or the first
   4-27  assistant or chief assistant prosecuting attorney in the office of
   4-28  either.
   4-29              (7) <(13)>  "Tracking device" means an electronic or
   4-30  mechanical device that permits only tracking the movement of a
   4-31  person or object.
   4-32              (8) <(14)>  "Trap and trace device" means a <mechanical
   4-33  or electronic> device that captures the <attaches to a telephone
   4-34  line and is capable of recording an> incoming electronic or other
   4-35  impulses which identify <impulse that identifies> the originating
   4-36  number of an instrument or device from which a wire or electronic
   4-37  communication was transmitted.  The term does not include a device
   4-38  or telecommunications network used in providing either:
   4-39                    (A) <(1)> a caller identification service
   4-40  authorized by the Public Utility Commission of Texas under Section
   4-41  87C, Public Utility Regulatory Act (Article 1446c, Vernon's Texas
   4-42  Civil Statutes); or
   4-43                    (B) <(2)>  the services referenced in Subsection
   4-44  (g), Section 87C, Public Utility Regulatory Act (Article 1446c,
   4-45  Vernon's Texas Civil Statutes).
   4-46              <(15)  "User" means a person who uses an electronic
   4-47  communications service and is authorized by the provider of the
   4-48  service to use the service.>
   4-49              <(16)  "Wire communication" means an aural transfer
   4-50  made in whole or in part through the use of facilities for the
   4-51  transmission of communications by the aid of wire, cable, or other
   4-52  like connection between the point of origin and the point of
   4-53  reception, including the use of such a connection in a switching
   4-54  station, furnished or operated by a person authorized to engage in
   4-55  providing or operating the facilities for the transmission of
   4-56  communications as a communications common carrier.  The term
   4-57  includes the electronic storage of a wire communication but does
   4-58  not include the radio portion of a cordless telephone communication
   4-59  that is transmitted between the cordless telephone handset and its
   4-60  base unit.>
   4-61        SECTION 5.  Section 3, Article 18.21, Code of Criminal
   4-62  Procedure, is amended to read as follows:
   4-63        Sec. 3.  Emergency pen register and trap and trace
   4-64  installation.  (a)  An authorized peace officer, designated by <the
   4-65  director of the department or by> the district or criminal district
   4-66  attorney of the county where the installation will be used, may
   4-67  install and use a pen register or trap and trace device if the
   4-68  peace officer reasonably believes that:
   4-69              (1)  an emergency requiring the installation of a pen
   4-70  register or trap and trace device before an order authorizing the
    5-1  installation and use can, with due diligence, be obtained, exists
    5-2  involving immediate danger of death or serious injury to any
    5-3  person; and
    5-4              (2)  there are grounds under this article on which an
    5-5  order could be entered to authorize the installation and use of a
    5-6  pen register or trap and trace device.
    5-7        (b)  If an authorized peace officer installs a pen register
    5-8  or trap and trace device under Subsection (a) of this section, the
    5-9  peace officer shall apply for and <must> obtain an order approving
   5-10  installation and use within 48 hours after initiating the
   5-11  installation <occurred>.  If authorization is not obtained within
   5-12  <those> 48 hours, the officer shall immediately terminate use of
   5-13  the pen register or <the> trap and trace device <shall immediately
   5-14  terminate>  at the end <lapse> of the 48 hours or at the time the
   5-15  order is denied, whichever is earlier.
   5-16        (c)  <The knowing installation or use by an authorized peace
   5-17  officer of a pen register or trap and trace device under this
   5-18  section without application for the authorizing order within 48
   5-19  hours of the installation is not permitted and is not an exception
   5-20  to the application of Section 16.03, Penal Code.>
   5-21        <(d)>  The state may not use as evidence in a <any
   5-22  subsequent> criminal proceeding any information gained through the
   5-23  use of a pen register or trap and trace device installed <issued>
   5-24  under <Subsection (b) of> this section if authorization for the pen
   5-25  register or trap and trace device is denied.
   5-26        SECTION 6.  Article 18.21, Code of Criminal Procedure, is
   5-27  amended by adding Section 16 to read as follows:
   5-28        Sec. 16.  LIMITATION.  A government agency authorized to
   5-29  install and use a pen register under this chapter or under other
   5-30  law shall use reasonably available technology to restrict the
   5-31  recording or decoding of electronic or other impulses to the
   5-32  dialing and signaling information utilized in call processing.
   5-33        SECTION 7.  Subsection (c), Section 16.02, Penal Code, is
   5-34  amended to read as follows:
   5-35        (c)  It is an affirmative defense to prosecution under
   5-36  Subsection (b) that:
   5-37              (1)  an operator of a switchboard or an officer,
   5-38  employee, or agent of a communication common carrier whose
   5-39  facilities are used in the transmission of a wire or electronic
   5-40  communication intercepts a communication or discloses or uses an
   5-41  intercepted communication in the normal course of employment while
   5-42  engaged in an activity that is a necessary incident to the
   5-43  rendition of service or to the protection of the rights or property
   5-44  of the carrier of the communication, unless the interception
   5-45  results from the communication common carrier's use of service
   5-46  observing or random monitoring for purposes other than mechanical
   5-47  or service quality control checks;
   5-48              (2)  an officer, employee, or agent of a communication
   5-49  common carrier provides information, facilities, or technical
   5-50  assistance to an investigative or law enforcement officer who is
   5-51  authorized as provided by this article to intercept a wire, oral,
   5-52  or electronic communication;
   5-53              (3)  a person acting under color of law intercepts a
   5-54  wire, oral, or electronic communication if the person is a party to
   5-55  the communication or if one of the parties to the communication has
   5-56  given prior consent to the interception;
   5-57              (4)  a person not acting under color of law intercepts
   5-58  a wire, oral, or electronic communication if the person is a party
   5-59  to the communication or if one of the parties to the communication
   5-60  has given prior consent to the interception unless the
   5-61  communication is intercepted for the purpose of committing any
   5-62  criminal or tortious act in violation of the constitution or laws
   5-63  of the United States or of this state or for the purpose of
   5-64  committing any other injurious act;
   5-65              (5)  a person acting under color of law intercepts a
   5-66  wire, oral, or electronic communication if:
   5-67                    (A)  prior oral or written consent for the
   5-68  interception has been given by a magistrate;
   5-69                    (B)  an immediate life-threatening situation
   5-70  exists;
    6-1                    (C)  the person is a member of a law enforcement
    6-2  unit specially trained to:
    6-3                          (i)  respond to and deal with
    6-4  life-threatening situations; or
    6-5                          (ii)  install electronic, mechanical, or
    6-6  other devices; and
    6-7                    (D)  the interception ceases immediately on
    6-8  termination of the life-threatening situation;
    6-9              (6)  an officer, employee, or agent of the Federal
   6-10  Communications Commission intercepts a communication transmitted by
   6-11  radio or discloses or uses an intercepted communication in the
   6-12  normal course of employment and in the discharge of the monitoring
   6-13  responsibilities exercised by the Federal Communications Commission
   6-14  in the enforcement of Chapter 5, Title 47, United States Code;
   6-15              (7)  a person intercepts or obtains access to an
   6-16  electronic communication that was made through an electronic
   6-17  communication system that is configured to permit the communication
   6-18  to be readily accessible to the general public;
   6-19              (8)  a person intercepts radio communication, other
   6-20  than a cordless telephone communication transmitted between the
   6-21  cordless telephone handset and the base unit, that is transmitted:
   6-22                    (A)  by a station for the use of the general
   6-23  public;
   6-24                    (B)  to ships, aircraft, vehicles, or persons in
   6-25  distress;
   6-26                    (C)  by a governmental, law enforcement, civil
   6-27  defense, private land mobile, or public safety communications
   6-28  system that is readily accessible to the general public;
   6-29                    (D)  by a station operating on an authorized
   6-30  frequency within the bands allocated to the amateur, citizens band,
   6-31  or general mobile radio services; or
   6-32                    (E)  by a marine or aeronautical communications
   6-33  system;
   6-34              (9)  a person intercepts a wire or electronic
   6-35  communication the transmission of which causes harmful interference
   6-36  to a lawfully operating station or consumer electronic equipment,
   6-37  to the extent necessary to identify the source of the interference;
   6-38              (10)  a user of the same frequency intercepts a radio
   6-39  communication made through a system that uses frequencies monitored
   6-40  by individuals engaged in the provision or the use of the system,
   6-41  if the communication is not scrambled or encrypted; or
   6-42              (11)  a provider of electronic communications service
   6-43  records the fact that a wire or electronic communication was
   6-44  initiated or completed in order to protect the provider, another
   6-45  provider furnishing service towards the completion of the
   6-46  communication, or a user of that service from fraudulent, unlawful,
   6-47  or abusive use of the service.
   6-48        SECTION 8.  Section 16.03, Penal Code, is amended to read as
   6-49  follows:
   6-50        Sec. 16.03.  Unlawful Use of Pen Register or Trap and Trace
   6-51  Device.  (a)  A <Except as authorized by a court order obtained
   6-52  under Article 18.21, Code of Criminal Procedure, or in an emergency
   6-53  under the circumstances described and permitted under that article,
   6-54  a> person commits an offense if the person intentionally or <he>
   6-55  knowingly installs or uses <utilizes> a pen register or trap and
   6-56  trace device <to record telephone numbers dialed from or to a
   6-57  telephone instrument>.
   6-58        (b)  In this section, "authorized peace officer,"
   6-59  "communications common carrier," "pen register," and "trap and
   6-60  trace device" have the meanings assigned by Article 18.21, Code of
   6-61  Criminal Procedure.
   6-62        (c)  It is an affirmative defense to prosecution under this
   6-63  section <exception to the application of Subsection (a)> that the
   6-64  installation or use was made:
   6-65              (1)  by an officer, employee, or agent of a
   6-66  communications common carrier <installs or utilizes a device or
   6-67  equipment> to record a number <the numbers> dialed from or to a
   6-68  telephone instrument in the normal course of business of the
   6-69  carrier for the purpose of:
   6-70                    (A)  protecting<, for the protection of> property
    7-1  or services provided by the carrier; or
    7-2                    (B)  assisting another whom the person reasonably
    7-3  believed to have been<, or assists> an authorized peace officer
    7-4  acting lawfully <in executing an order issued> under Article 18.21,
    7-5  Code of Criminal Procedure;<.>
    7-6              (2) <(d)  It is an exception to the application of
    7-7  Subsection (a) that the installation or utilization of a pen
    7-8  register or trap and trace device was made> by an officer, <agent,
    7-9  or> employee, or agent of a lawful enterprise while engaged in an
   7-10  activity that:
   7-11                    (A)  was <is> a necessary incident to the
   7-12  rendition of service or to the protection of property of or
   7-13  services provided by the enterprise;<,> and
   7-14                    (B)  was not made for the purpose of gathering
   7-15  information for a law enforcement agency or private investigative
   7-16  agency, other than information related to the theft of
   7-17  communication or information services provided by the enterprise;
   7-18  or
   7-19              (3)  by a person acting in compliance with the
   7-20  emergency provisions of Article 18.21, Code of Criminal Procedure,
   7-21  or under a court order obtained under that article.
   7-22        (d) <(e)>  An offense under this section is a state jail
   7-23  felony.
   7-24        SECTION 9.  Subsection (e), Section 16.04, Penal Code, is
   7-25  amended to read as follows:
   7-26        (e)  It is an affirmative defense to prosecution under
   7-27  <exception to the application of> Subsection (b) that the conduct
   7-28  was authorized by:
   7-29              (1)  the provider of the wire or electronic
   7-30  communications service;
   7-31              (2)  the user of the wire or electronic communications
   7-32  service; <or>
   7-33              (3)  the addressee or intended recipient of the wire or
   7-34  electronic communication; or
   7-35              (4)  Article 18.21, Code of Criminal Procedure.
   7-36        SECTION 10.  Section 16.05, Penal Code, is amended to read as
   7-37  follows:
   7-38        Sec. 16.05.  Illegal Divulgence of Public Communications.
   7-39  (a)  In this section:
   7-40              (1) <,>  "Electronic <electronic> communication,"
   7-41  "electronic communications service," and "electronic communications
   7-42  system" have the meanings given those terms in Article 18.20, Code
   7-43  of Criminal Procedure.
   7-44              (2)  "Intended recipient" means the person to whom a
   7-45  communication is addressed or directed or an agent of that person.
   7-46        (b)  A <Except as provided by Subsection (c), a> person who
   7-47  provides electronic communications service to the public commits an
   7-48  offense if, while an electronic communication is in transmission on
   7-49  that service, the person <he> intentionally or knowingly divulges
   7-50  the contents of the <a> communication to another who is not<, other
   7-51  than a communication to that person or that person's agent, while
   7-52  the communication is in transmission on that service, to any person
   7-53  other than the addressee or> the intended recipient of the
   7-54  communication <or the addressee's or intended recipient's agent>.
   7-55        (c)  It is an affirmative defense to prosecution under
   7-56  Subsection (b) that the actor divulged <A person who provides
   7-57  electronic communications service to the public may divulge> the
   7-58  contents of the <a> communication:
   7-59              (1)  as authorized by federal or state law;
   7-60              (2)  to another for the purpose for forwarding <a
   7-61  person employed, authorized, or whose facilities are used to
   7-62  forward> the communication to its <the communication's> destination
   7-63  and the other was an employee, an authorized agent, or a person in
   7-64  control of the facility used to forward the communication; or
   7-65              (3)  to a law enforcement agency if <the contents were
   7-66  obtained by the service provider and> the contents reasonably
   7-67  appeared to contain information relating <appear to pertain> to the
   7-68  commission of a crime.
   7-69        (d)  An <Except as provided by Subsections (e) and (f), an>
   7-70  offense under this section that involves a scrambled or encrypted
    8-1  radio communication <Subsection (b)> is a state jail felony.
    8-2        (e)  An <If committed for a tortious or illegal purpose or to
    8-3  gain a benefit, an> offense under this section <Subsection (b)>
    8-4  that does not involve a scrambled or encrypted <involves a> radio
    8-5  communication and that is committed unlawfully or to gain a benefit
    8-6  <not scrambled or encrypted>:
    8-7              (1)  is a Class A misdemeanor if the communication is
    8-8  not <the radio portion of a cellular telephone communication,> a
    8-9  public land mobile radio service communication<,> or a paging
   8-10  service communication; or
   8-11              (2)  is a Class C misdemeanor if the communication is
   8-12  <the radio portion of a cellular telephone communication,> a public
   8-13  land <and> mobile radio service <or> communication or a paging
   8-14  service communication.
   8-15        <(f)(1)  A person who engages in conduct constituting an
   8-16  offense under Subsection (b) that is not for a tortious or illegal
   8-17  purpose or for the purpose of direct or indirect commercial
   8-18  advantage or private commercial gain and involves a radio
   8-19  communication that is transmitted on frequencies allocated under
   8-20  Subpart D or Part 74 of the rules of the Federal Communications
   8-21  Commission and that is not scrambled or encrypted shall be subject
   8-22  to suit by the federal or state government in a court of competent
   8-23  jurisdiction for appropriate injunctive relief.  If it is shown on
   8-24  the trial of the civil suit that the defendant has been convicted
   8-25  of an offense under Subsection (b) or that the defendant has been
   8-26  found liable in a civil action under Article 18.20, Code of
   8-27  Criminal Procedure, in addition to granting injunctive relief the
   8-28  court shall impose a civil penalty of $500 on the defendant.>
   8-29              <(2)  A court may use any means within the court's
   8-30  authority to enforce an injunction issued under Subdivision (1) and
   8-31  shall impose a fine as for contempt of court of not less than $500
   8-32  for each violation of the injunction.>
   8-33        SECTION 11.  This Act takes effect September 1, 1995.
   8-34        SECTION 12.  (a)  The change in law made by this Act applies
   8-35  only to an offense committed on or after the effective date of this
   8-36  Act.  For purposes of this section, an offense is committed before
   8-37  the effective date of this Act if any element of the offense occurs
   8-38  before the effective date.
   8-39        (b)  An offense committed before the effective date of this
   8-40  Act is covered by the law in effect when the offense was committed,
   8-41  and the former law is continued in effect for this purpose.
   8-42        SECTION 13.  The importance of this legislation and the
   8-43  crowded condition of the calendars in both houses create an
   8-44  emergency and an imperative public necessity that the
   8-45  constitutional rule requiring bills to be read on three several
   8-46  days in each house be suspended, and this rule is hereby suspended,
   8-47  and that this Act take effect and be in force from and after its
   8-48  passage, and it is so enacted.
   8-49                               * * * * *