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 * * * * *