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.