75R10655 PEP-D                           

         By Carter                                             H.B. No. 1482

         Substitute the following for H.B. No. 1482:

         By Talton                                         C.S.H.B. No. 1482

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to computer and telecommunications offenses; providing

 1-3     penalties.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 33.01, Penal Code, is amended to read as

 1-6     follows:

 1-7           Sec. 33.01.  DEFINITIONS.  In this chapter:

 1-8                 (1)  "Access" means to approach, instruct, communicate

 1-9     with, store data in, retrieve or intercept data from, alter data or

1-10     computer software in, or otherwise make use of any resource of a

1-11     computer, [computer system, or] computer network, computer program,

1-12     or computer system.

1-13                 (2)  "Aggregate amount" means the amount of:

1-14                       (A)  any direct or indirect loss incurred by a

1-15     victim, including the value of money, property, or service stolen

1-16     or rendered unrecoverable by the offense; or

1-17                       (B)  any expenditure required by the victim to

1-18     verify that a computer, computer network, computer program, or

1-19     computer system was not altered, acquired, damaged, deleted, or

1-20     disrupted by the offense.

1-21                 (3)  "Communications common carrier" means a person who

1-22     owns or operates a telephone system in this state that includes

1-23     equipment or facilities for the conveyance, transmission, or

1-24     reception of communications and who receives compensation from

 2-1     persons who use that system.

 2-2                 (4) [(3)]  "Computer" means an electronic, magnetic,

 2-3     optical, electrochemical, or other high-speed data processing

 2-4     device that performs logical, arithmetic, or memory functions by

 2-5     the manipulations of electronic or magnetic impulses and includes

 2-6     all input, output, processing, storage, or communication facilities

 2-7     that are connected or related to the device.

 2-8                 (5) [(4)]  "Computer network" means the interconnection

 2-9     of two or more computers or computer systems by satellite,

2-10     microwave, line, or other communication medium with the capability

2-11     to transmit information among the computers.

2-12                 (6) [(5)]  "Computer program" means an ordered set of

2-13     data representing coded instructions or statements that when

2-14     executed by a computer cause the computer to process data or

2-15     perform specific functions.

2-16                 [(6)  "Computer security system" means the design,

2-17     procedures, or other measures that the person responsible for the

2-18     operation and use of a computer employs to restrict the use of the

2-19     computer to particular persons or uses or that the owner or

2-20     licensee of data stored or maintained by a computer in which the

2-21     owner or licensee is entitled to store or maintain the data employs

2-22     to restrict access to the data.]

2-23                 (7)  "Computer services" means the product of the use

2-24     of a computer, the information stored in the computer, or the

2-25     personnel supporting the computer, including computer time, data

2-26     processing, and storage functions.

2-27                 (8)  "Computer system" means any combination of a

 3-1     computer or computer network with the documentation, computer

 3-2     software, or physical facilities supporting the computer or

 3-3     computer network.

 3-4                 (9)  "Computer software" means a set of computer

 3-5     programs, procedures, and associated documentation related to the

 3-6     operation of a computer, computer system, or computer network.

 3-7                 (10)  "Computer virus" means an unwanted computer

 3-8     program or other set of instructions inserted into a computer's

 3-9     memory, operating system, or program that is specifically

3-10     constructed with the ability to replicate itself or to affect the

3-11     other programs or files in the computer by attaching a copy of the

3-12     unwanted program or other set of instructions to one or more

3-13     computer programs or files.

3-14                 (11)  "Data" means a representation of information,

3-15     knowledge, facts, concepts, or instructions that is being prepared

3-16     or has been prepared in a formalized manner and is intended to be

3-17     stored or processed, is being  stored or processed, or has been

3-18     stored or processed in a  computer.  Data may be embodied in any

3-19     form, including but not limited to computer printouts, magnetic

3-20     storage media, laser storage media, and punchcards, or may be

3-21     stored internally in the memory of the computer.

3-22                 (12)  "Effective consent" includes consent by a person

3-23     legally authorized to act for the owner.  Consent is not effective

3-24     if:

3-25                       (A)  induced by deception, as defined by Section

3-26     31.01, or induced by coercion;

3-27                       (B)  given by a person the actor knows is not

 4-1     legally authorized to act for the owner;

 4-2                       (C)  given by a person who by reason of youth,

 4-3     mental disease or defect, or intoxication is known by the actor to

 4-4     be unable to make reasonable property dispositions;

 4-5                       (D)  given solely to detect the commission of an

 4-6     offense; or

 4-7                       (E)  used for a purpose other than that for which

 4-8     the consent was given.

 4-9                 (13)  "Electric utility" has the meaning assigned by

4-10     Subsection (c), Section 3, Public Utility Regulatory Act (Article

4-11     1446c, Vernon's Texas Civil Statutes).

4-12                 (14)  "Harm" includes partial or total alteration,

4-13     damage, or erasure of stored data, interruption of computer

4-14     services, introduction of a computer virus, or any other loss,

4-15     disadvantage, or injury that might reasonably be suffered as a

4-16     result of the actor's conduct.

4-17                 (15)  "Owner" means a person who:

4-18                       (A)  has title to the property, possession of the

4-19     property, whether lawful or not, or a greater right to possession

4-20     of the property than the actor;

4-21                       (B)  has the right to restrict access to the

4-22     property; or

4-23                       (C)  is the licensee of data or computer

4-24     software.

4-25                 (16)  "Property" means:

4-26                       (A)  tangible or intangible personal property

4-27     including a computer, computer system, computer network, computer

 5-1     software, or data; or

 5-2                       (B)  the use of a computer, computer system,

 5-3     computer network, computer software, or data.

 5-4           SECTION 2.  Section 33.02, Penal Code, is amended to read as

 5-5     follows:

 5-6           Sec. 33.02.  BREACH OF COMPUTER SECURITY.  (a)  A person

 5-7     commits an offense if the person knowingly accesses a computer,

 5-8     computer network, or computer system without the effective consent

 5-9     of the owner.

5-10           (b)  [A person commits an offense if the person intentionally

5-11     or knowingly gives a password, identifying code, personal

5-12     identification number, debit card number, bank account number, or

5-13     other confidential information about a computer security system to

5-14     another person without the effective consent of the person

5-15     employing the computer security system to restrict access to a

5-16     computer, computer network, computer system, or data.]

5-17           [(c)]  An offense under this section is a Class B [A]

5-18     misdemeanor unless in committing the offense the actor knowingly

5-19     obtains [actor's intent is to obtain] a benefit, defrauds [or

5-20     defraud] or harms [harm] another, or alters, damages, or deletes

5-21     property, in which event the offense is:

5-22                 (1)  a Class A misdemeanor if the aggregate amount

5-23     involved is less than $1,500;

5-24                 (2)  a state jail felony if:

5-25                       (A)  the aggregate [value of the benefit or the]

5-26     amount involved is $1,500 or more but [of the loss or harm is] less

5-27     than $20,000; or

 6-1                       (B)  the aggregate amount involved is less than

 6-2     $1,500 and the defendant has been previously convicted two or more

 6-3     times of an offense under this chapter;

 6-4                 (3) [(2)]  a felony of the third degree if the

 6-5     aggregate [value of the benefit or the] amount involved [of the

 6-6     loss or harm] is $20,000 or more but less than $100,000;

 6-7                 (4)  a felony of the second degree if the aggregate

 6-8     amount involved is $100,000 or more but less than $200,000; or

 6-9                 (5)  a felony of the first degree if the aggregate

6-10     amount involved is $200,000 or more.

6-11           [(d)  A person who is subject to prosecution under this

6-12     section and any other section of this code may be prosecuted under

6-13     either or both sections.]

6-14           SECTION 3.  Title 7, Penal Code, is amended by adding Chapter

6-15     33A to read as follows:

6-16                   CHAPTER 33A.  TELECOMMUNICATIONS CRIMES

6-17           Sec. 33A.01.  DEFINITIONS.  In this chapter:

6-18                 (1)  "Counterfeit telecommunications access device"

6-19     means a telecommunications access device that is false, fraudulent,

6-20     not issued to a legitimate telecommunications access device

6-21     subscriber account, or otherwise unlawful or invalid.

6-22                 (2)  "Counterfeit telecommunications device" means a

6-23     telecommunications device that has been altered or programmed alone

6-24     or with another telecommunications device to acquire, intercept,

6-25     receive, or otherwise facilitate the use of a telecommunications

6-26     service without the authority or consent of the telecommunications

6-27     service provider and includes a clone telephone, clone microchip,

 7-1     tumbler telephone, tumbler microchip, or wireless scanning device

 7-2     capable of acquiring, intercepting, receiving, or otherwise

 7-3     facilitating the use of a telecommunications service without

 7-4     immediate detection.

 7-5                 (3)  "Deliver" means to actually or constructively

 7-6     sell, give, loan, or otherwise transfer a telecommunications

 7-7     device, or a counterfeit telecommunications device or any

 7-8     telecommunications plans, instructions, or materials, to another

 7-9     person.

7-10                 (4)  "Publish" means to communicate information or make

7-11     information available to another person orally, in writing, or by

7-12     means of telecommunications and includes communicating information

7-13     on a computer bulletin board or similar system.

7-14                 (5)  "Telecommunications" means the origination,

7-15     emission, transmission, or reception of data, images, signals,

7-16     sounds, or other intelligence or equivalence of intelligence over a

7-17     communications system by any method, including an electronic,

7-18     magnetic, optical, digital, or analog method.

7-19                 (6)  "Telecommunications access device" means an

7-20     instrument, device, card, plate, code, account number, personal

7-21     identification number, electronic serial number, mobile

7-22     identification number, counterfeit number, or financial transaction

7-23     device that alone or with another telecommunications access device

7-24     can acquire, intercept, provide, receive, use, or otherwise

7-25     facilitate the use of a telecommunications device, counterfeit

7-26     telecommunications device, or telecommunications service.

7-27                 (7)  "Telecommunications device" means any instrument,

 8-1     equipment, machine, or device that facilitates telecommunications

 8-2     and includes a computer, computer chip or circuit, telephone,

 8-3     pager, personal communications device, transponder, receiver,

 8-4     radio, modem, or device that enables use of a modem.

 8-5                 (8)  "Telecommunications service" means the provision,

 8-6     facilitation, or generation of telecommunications through the use

 8-7     of a telecommunications device or telecommunications access device

 8-8     over a telecommunications system.

 8-9                 (9)  "Value of the telecommunications service obtained

8-10     or attempted to be obtained" includes the value of:

8-11                       (A)  a lawful charge for telecommunications

8-12     service avoided or attempted to be avoided;

8-13                       (B)  money, property, or telecommunications

8-14     service lost, stolen, or rendered unrecoverable by an offense; and

8-15                       (C)  an expenditure incurred by a victim to

8-16     verify that a telecommunications device or telecommunications

8-17     access device or telecommunications service was not altered,

8-18     acquired, damaged, or disrupted as a result of an offense.

8-19           Sec. 33A.02.  UNAUTHORIZED USE OF TELECOMMUNICATIONS SERVICE.

8-20     (a)  A person commits an offense if the person is an officer,

8-21     shareholder, partner, employee, agent, or independent contractor of

8-22     a telecommunications service provider and the person knowingly and

8-23     without authority uses or diverts telecommunications service for

8-24     the person's own benefit or to the benefit of another.

8-25           (b)  An offense under this section is:

8-26                 (1)  a Class B misdemeanor if the value of the

8-27     telecommunications service used or diverted is less than $500;

 9-1                 (2)  a Class A misdemeanor if:

 9-2                       (A)  the value of the telecommunications service

 9-3     used or diverted is $500 or more but less than $1,500; or

 9-4                       (B)  the value of the telecommunications service

 9-5     used or diverted is less than $500 and the defendant has been

 9-6     previously convicted of an offense under this chapter;

 9-7                 (3)  a state jail felony if:

 9-8                       (A)  the value of the telecommunications service

 9-9     used or diverted is $1,500 or more but less than $20,000; or

9-10                       (B)  the value of the telecommunications service

9-11     used or diverted is less than $1,500 and the defendant has been

9-12     previously convicted two or more times of an offense under this

9-13     chapter;

9-14                 (4)  a felony of the third degree if the value of the

9-15     telecommunications service used or diverted is $20,000 or more but

9-16     less than $100,000;

9-17                 (5)  a felony of the second degree if the value of the

9-18     telecommunications service used or diverted is $100,000 or more but

9-19     less than $200,000; or

9-20                 (6)  a felony of the first degree if the value of the

9-21     telecommunications service used or diverted is $200,000 or more.

9-22           (c)  When telecommunications service is used or diverted in

9-23     violation of this section pursuant to one scheme or continuing

9-24     course of conduct, whether or not in a single incident, the conduct

9-25     may be considered as one offense and the values of the service used

9-26     or diverted may be aggregated in determining the grade of the

9-27     offense.

 10-1          Sec. 33A.03.  MANUFACTURE, POSSESSION, OR DELIVERY OF

 10-2    UNLAWFUL TELECOMMUNICATIONS DEVICE.  (a)  A person commits an

 10-3    offense if the person manufactures, possesses, delivers, offers to

 10-4    deliver, or advertises:

 10-5                (1)  a counterfeit telecommunications device; or

 10-6                (2)  a telecommunications device that is intended to be

 10-7    used to:

 10-8                      (A)  commit an offense under Section 33A.04; or

 10-9                      (B)  conceal the existence or place of origin or

10-10    destination of a telecommunications service.

10-11          (b)  A person commits an offense if the person delivers,

10-12    offers to deliver, or advertises plans, instructions, or materials

10-13    for manufacture of:

10-14                (1)  a counterfeit telecommunications device; or

10-15                (2)  a telecommunications device that is intended to be

10-16    used to commit an offense under Subsection (a).

10-17          (c)  An offense under this section is a felony of the third

10-18    degree.

10-19          Sec. 33A.04.  THEFT OF TELECOMMUNICATIONS SERVICE.  (a)  A

10-20    person commits an offense if the person knowingly obtains or

10-21    attempts to obtain telecommunications service to avoid or cause

10-22    another person to avoid a lawful charge for that service by using:

10-23                (1)  a telecommunications access device without the

10-24    authority or consent of the subscriber or lawful holder of the

10-25    device or pursuant to an agreement for an exchange of value with

10-26    the subscriber or lawful holder of the device to allow another

10-27    person to use the device;

 11-1                (2)  a counterfeit telecommunications access device;

 11-2                (3)  a telecommunications device or counterfeit

 11-3    telecommunications device; or

 11-4                (4)  a fraudulent or deceptive scheme, pretense,

 11-5    method, or conspiracy, or other device or means, including a false,

 11-6    altered, or stolen identification.

 11-7          (b)  An offense under this section is:

 11-8                (1)  a Class B misdemeanor if the value of the

 11-9    telecommunications service obtained or attempted to be obtained is

11-10    less than $500;

11-11                (2)  a Class A misdemeanor if:

11-12                      (A)  the value of the telecommunications service

11-13    obtained or attempted to be obtained is $500 or more but less than

11-14    $1,500; or

11-15                      (B)  the value of the telecommunications service

11-16    obtained or attempted to be obtained is less than $500 and the

11-17    defendant has been previously convicted of an offense under this

11-18    chapter;

11-19                (3)  a state jail felony if:

11-20                      (A)  the value of the telecommunications service

11-21    obtained or attempted to be obtained is $1,500 or more but less

11-22    than $20,000; or

11-23                      (B)  the value of the telecommunications service

11-24    obtained or attempted to be obtained is less than $1,500 and the

11-25    defendant has been previously convicted two or more times of an

11-26    offense under this chapter;

11-27                (4)  a felony of the third degree if the value of the

 12-1    telecommunications service obtained or attempted to be obtained is

 12-2    $20,000 or more but less than $100,000;

 12-3                (5)  a felony of the second degree if the value of the

 12-4    telecommunications service obtained or attempted to be obtained is

 12-5    $100,000 or more but less than $200,000; or

 12-6                (6)  a felony of the first degree if the value of the

 12-7    telecommunications service obtained or attempted to be obtained is

 12-8    $200,000 or more.

 12-9          (c)  When telecommunications service is obtained or attempted

12-10    to be obtained in violation of this section pursuant to one scheme

12-11    or continuing course of conduct, whether or not in a single

12-12    incident, the conduct may be considered as one offense and the

12-13    values of the service obtained or attempted to be obtained may be

12-14    aggregated in determining the grade of the offense.

12-15          Sec. 33A.05.  PUBLICATION OF TELECOMMUNICATIONS ACCESS

12-16    DEVICE.  (a)  A person commits an offense if the person with

12-17    criminal negligence publishes a telecommunications access device or

12-18    counterfeit telecommunications access device that is designed to be

12-19    used to commit an offense under Section 33A.04.

12-20          (b)  Except as otherwise provided by this subsection, an

12-21    offense under this section is a Class A misdemeanor.  An offense

12-22    under this section is a felony of the third degree if the person

12-23    has been previously convicted of an offense under this chapter.

12-24          SECTION 4.  Article 13.25, Code of Criminal Procedure, is

12-25    amended to read as follows:

12-26          Art. 13.25.  COMPUTER CRIMES.  (a)  In this section "access,"

12-27    "computer," "computer network," "computer program," "computer

 13-1    system,"  and "owner" have the meanings assigned to those terms by

 13-2    [in] Section 33.01, Penal Code.

 13-3          (b)  An offense under Chapter 33, Penal Code, may be

 13-4    prosecuted in:

 13-5                (1)  the county of the principal place of business of

 13-6    the owner or lessee of a computer, computer network, or computer

 13-7    system[, or computer network] involved in the offense [violation];

 13-8                (2)  any county in which a defendant had control or

 13-9    possession of:

13-10                      (A)  any proceeds of [from] the offense;

13-11    [violation] or

13-12                      (B)  any books, records, documents, property,

13-13    negotiable instruments, computer programs, or other material [that

13-14    were] used in furtherance of the offense [violation]; or

13-15                (3)  any county from which, to which, or through which

13-16    [any] access to a computer, [or] computer network, computer

13-17    program, or computer system was made in violation of Chapter 33,

13-18    whether by wires, electromagnetic waves, microwaves, or any other

13-19    means of communication.

13-20          SECTION 5.  Chapter 13, Code of Criminal Procedure, is

13-21    amended by adding Article 13.26 to read as follows:

13-22          Art. 13.26.  TELECOMMUNICATIONS CRIMES.  An offense under

13-23    Chapter 33A, Penal Code, may be prosecuted in the county in which

13-24    the telecommunications service originated or terminated or in the

13-25    county to which the bill for the telecommunications service was or

13-26    would have been delivered.

13-27          SECTION 6.  Article 59.01(2), Code of Criminal Procedure, is

 14-1    amended to read as follows:

 14-2                (2)  "Contraband" means property of any nature,

 14-3    including real, personal, tangible, or intangible, that is:

 14-4                      (A)  used in the commission of:

 14-5                            (i)  any first or second degree felony

 14-6    under the Penal Code;

 14-7                            (ii)  any felony under Section 38.04 or

 14-8    Chapters 29, 30, 31, 32, 33, 33A, or 35, Penal Code; or

 14-9                            (iii)  any felony under The Securities Act

14-10    (Article 581-1 et seq., Vernon's Texas Civil Statutes);

14-11                      (B)  used or intended to be used in the

14-12    commission of:

14-13                            (i)  any felony under Chapter 481, Health

14-14    and Safety Code (Texas Controlled Substances Act);

14-15                            (ii)  any felony under Chapter 483, Health

14-16    and Safety Code;

14-17                            (iii)  a felony under Article 350, Revised

14-18    Statutes;

14-19                            (iv)  any felony under Chapter 34, Penal

14-20    Code;

14-21                            (v)  a Class A misdemeanor under Subchapter

14-22    B, Chapter 365, Health and Safety Code, if the defendant has been

14-23    previously convicted twice of an offense under that subchapter; or

14-24                            (vi)  any felony under The Sale of Checks

14-25    Act (Article 489d, Vernon's Texas Civil Statutes);

14-26                      (C)  the proceeds gained from the commission of a

14-27    felony listed in Paragraph (A) or (B) of this subdivision or a

 15-1    crime of violence; or

 15-2                      (D)  acquired with proceeds gained from the

 15-3    commission of a felony listed in Paragraph (A) or (B) of this

 15-4    subdivision or a crime of violence.

 15-5          SECTION 7.  This Act takes effect September 1, 1997.  The

 15-6    changes in law made by this Act apply only to an offense committed

 15-7    on or after the effective date of this Act.  An offense committed

 15-8    before September 1, 1997, is covered by the law in effect when the

 15-9    offense was committed, and the former law is continued in effect

15-10    for that purpose.  For purposes of this section, an offense was

15-11    committed before the effective date of this Act if any element of

15-12    the offense occurred before that date.

15-13          SECTION 8.  The importance of this legislation and the

15-14    crowded condition of the calendars in both houses create an

15-15    emergency and an imperative public necessity that the

15-16    constitutional rule requiring bills to be read on three several

15-17    days in each house be suspended, and this rule is hereby suspended.