1-1 By: Carter, et al. (Senate Sponsor - Armbrister) H.B. No. 1482
1-2 (In the Senate - Received from the House April 21, 1997;
1-3 April 22, 1997, read first time and referred to Committee on
1-4 Criminal Justice; May 7, 1997, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 7, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to computer and telecommunications offenses; providing
1-9 penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 33.01, Penal Code, is amended to read as
1-12 follows:
1-13 Sec. 33.01. DEFINITIONS. In this chapter:
1-14 (1) "Access" means to approach, instruct, communicate
1-15 with, store data in, retrieve or intercept data from, alter data or
1-16 computer software in, or otherwise make use of any resource of a
1-17 computer, [computer system, or] computer network, computer program,
1-18 or computer system.
1-19 (2) "Aggregate amount" means the amount of:
1-20 (A) any direct or indirect loss incurred by a
1-21 victim, including the value of money, property, or service stolen
1-22 or rendered unrecoverable by the offense; or
1-23 (B) any expenditure required by the victim to
1-24 verify that a computer, computer network, computer program, or
1-25 computer system was not altered, acquired, damaged, deleted, or
1-26 disrupted by the offense.
1-27 (3) "Communications common carrier" means a person who
1-28 owns or operates a telephone system in this state that includes
1-29 equipment or facilities for the conveyance, transmission, or
1-30 reception of communications and who receives compensation from
1-31 persons who use that system.
1-32 (4) [(3)] "Computer" means an electronic, magnetic,
1-33 optical, electrochemical, or other high-speed data processing
1-34 device that performs logical, arithmetic, or memory functions by
1-35 the manipulations of electronic or magnetic impulses and includes
1-36 all input, output, processing, storage, or communication facilities
1-37 that are connected or related to the device.
1-38 (5) [(4)] "Computer network" means the interconnection
1-39 of two or more computers or computer systems by satellite,
1-40 microwave, line, or other communication medium with the capability
1-41 to transmit information among the computers.
1-42 (6) [(5)] "Computer program" means an ordered set of
1-43 data representing coded instructions or statements that when
1-44 executed by a computer cause the computer to process data or
1-45 perform specific functions.
1-46 [(6) "Computer security system" means the design,
1-47 procedures, or other measures that the person responsible for the
1-48 operation and use of a computer employs to restrict the use of the
1-49 computer to particular persons or uses or that the owner or
1-50 licensee of data stored or maintained by a computer in which the
1-51 owner or licensee is entitled to store or maintain the data employs
1-52 to restrict access to the data.]
1-53 (7) "Computer services" means the product of the use
1-54 of a computer, the information stored in the computer, or the
1-55 personnel supporting the computer, including computer time, data
1-56 processing, and storage functions.
1-57 (8) "Computer system" means any combination of a
1-58 computer or computer network with the documentation, computer
1-59 software, or physical facilities supporting the computer or
1-60 computer network.
1-61 (9) "Computer software" means a set of computer
1-62 programs, procedures, and associated documentation related to the
1-63 operation of a computer, computer system, or computer network.
1-64 (10) "Computer virus" means an unwanted computer
2-1 program or other set of instructions inserted into a computer's
2-2 memory, operating system, or program that is specifically
2-3 constructed with the ability to replicate itself or to affect the
2-4 other programs or files in the computer by attaching a copy of the
2-5 unwanted program or other set of instructions to one or more
2-6 computer programs or files.
2-7 (11) "Data" means a representation of information,
2-8 knowledge, facts, concepts, or instructions that is being prepared
2-9 or has been prepared in a formalized manner and is intended to be
2-10 stored or processed, is being stored or processed, or has been
2-11 stored or processed in a computer. Data may be embodied in any
2-12 form, including but not limited to computer printouts, magnetic
2-13 storage media, laser storage media, and punchcards, or may be
2-14 stored internally in the memory of the computer.
2-15 (12) "Effective consent" includes consent by a person
2-16 legally authorized to act for the owner. Consent is not effective
2-17 if:
2-18 (A) induced by deception, as defined by Section
2-19 31.01, or induced by coercion;
2-20 (B) given by a person the actor knows is not
2-21 legally authorized to act for the owner;
2-22 (C) given by a person who by reason of youth,
2-23 mental disease or defect, or intoxication is known by the actor to
2-24 be unable to make reasonable property dispositions;
2-25 (D) given solely to detect the commission of an
2-26 offense; or
2-27 (E) used for a purpose other than that for which
2-28 the consent was given.
2-29 (13) "Electric utility" has the meaning assigned by
2-30 Subsection (c), Section 3, Public Utility Regulatory Act (Article
2-31 1446c, Vernon's Texas Civil Statutes).
2-32 (14) "Harm" includes partial or total alteration,
2-33 damage, or erasure of stored data, interruption of computer
2-34 services, introduction of a computer virus, or any other loss,
2-35 disadvantage, or injury that might reasonably be suffered as a
2-36 result of the actor's conduct.
2-37 (15) "Owner" means a person who:
2-38 (A) has title to the property, possession of the
2-39 property, whether lawful or not, or a greater right to possession
2-40 of the property than the actor;
2-41 (B) has the right to restrict access to the
2-42 property; or
2-43 (C) is the licensee of data or computer
2-44 software.
2-45 (16) "Property" means:
2-46 (A) tangible or intangible personal property
2-47 including a computer, computer system, computer network, computer
2-48 software, or data; or
2-49 (B) the use of a computer, computer system,
2-50 computer network, computer software, or data.
2-51 SECTION 2. Section 33.02, Penal Code, is amended to read as
2-52 follows:
2-53 Sec. 33.02. BREACH OF COMPUTER SECURITY. (a) A person
2-54 commits an offense if the person knowingly accesses a computer,
2-55 computer network, or computer system without the effective consent
2-56 of the owner.
2-57 (b) [A person commits an offense if the person intentionally
2-58 or knowingly gives a password, identifying code, personal
2-59 identification number, debit card number, bank account number, or
2-60 other confidential information about a computer security system to
2-61 another person without the effective consent of the person
2-62 employing the computer security system to restrict access to a
2-63 computer, computer network, computer system, or data.]
2-64 [(c)] An offense under this section is a Class B [A]
2-65 misdemeanor unless in committing the offense the actor knowingly
2-66 obtains [actor's intent is to obtain] a benefit, defrauds [or
2-67 defraud] or harms [harm] another, or alters, damages, or deletes
2-68 property, in which event the offense is:
2-69 (1) a Class A misdemeanor if the aggregate amount
3-1 involved is less than $1,500;
3-2 (2) a state jail felony if:
3-3 (A) the aggregate [value of the benefit or the]
3-4 amount involved is $1,500 or more but [of the loss or harm is] less
3-5 than $20,000; or
3-6 (B) the aggregate amount involved is less than
3-7 $1,500 and the defendant has been previously convicted two or more
3-8 times of an offense under this chapter;
3-9 (3) [(2)] a felony of the third degree if the
3-10 aggregate [value of the benefit or the] amount involved [of the
3-11 loss or harm] is $20,000 or more but less than $100,000;
3-12 (4) a felony of the second degree if the aggregate
3-13 amount involved is $100,000 or more but less than $200,000; or
3-14 (5) a felony of the first degree if the aggregate
3-15 amount involved is $200,000 or more.
3-16 [(d) A person who is subject to prosecution under this
3-17 section and any other section of this code may be prosecuted under
3-18 either or both sections.]
3-19 SECTION 3. Title 7, Penal Code, is amended by adding Chapter
3-20 33A to read as follows:
3-21 CHAPTER 33A. TELECOMMUNICATIONS CRIMES
3-22 Sec. 33A.01. DEFINITIONS. In this chapter:
3-23 (1) "Counterfeit telecommunications access device"
3-24 means a telecommunications access device that is false, fraudulent,
3-25 not issued to a legitimate telecommunications access device
3-26 subscriber account, or otherwise unlawful or invalid.
3-27 (2) "Counterfeit telecommunications device" means a
3-28 telecommunications device that has been altered or programmed alone
3-29 or with another telecommunications device to acquire, intercept,
3-30 receive, or otherwise facilitate the use of a telecommunications
3-31 service without the authority or consent of the telecommunications
3-32 service provider and includes a clone telephone, clone microchip,
3-33 tumbler telephone, tumbler microchip, or wireless scanning device
3-34 capable of acquiring, intercepting, receiving, or otherwise
3-35 facilitating the use of a telecommunications service without
3-36 immediate detection.
3-37 (3) "Deliver" means to actually or constructively
3-38 sell, give, loan, or otherwise transfer a telecommunications
3-39 device, or a counterfeit telecommunications device or any
3-40 telecommunications plans, instructions, or materials, to another
3-41 person.
3-42 (4) "Publish" means to communicate information or make
3-43 information available to another person orally, in writing, or by
3-44 means of telecommunications and includes communicating information
3-45 on a computer bulletin board or similar system.
3-46 (5) "Telecommunications" means the origination,
3-47 emission, transmission, or reception of data, images, signals,
3-48 sounds, or other intelligence or equivalence of intelligence over a
3-49 communications system by any method, including an electronic,
3-50 magnetic, optical, digital, or analog method.
3-51 (6) "Telecommunications access device" means an
3-52 instrument, device, card, plate, code, account number, personal
3-53 identification number, electronic serial number, mobile
3-54 identification number, counterfeit number, or financial transaction
3-55 device that alone or with another telecommunications access device
3-56 can acquire, intercept, provide, receive, use, or otherwise
3-57 facilitate the use of a telecommunications device, counterfeit
3-58 telecommunications device, or telecommunications service.
3-59 (7) "Telecommunications device" means any instrument,
3-60 equipment, machine, or device that facilitates telecommunications
3-61 and includes a computer, computer chip or circuit, telephone,
3-62 pager, personal communications device, transponder, receiver,
3-63 radio, modem, or device that enables use of a modem.
3-64 (8) "Telecommunications service" means the provision,
3-65 facilitation, or generation of telecommunications through the use
3-66 of a telecommunications device or telecommunications access device
3-67 over a telecommunications system.
3-68 (9) "Value of the telecommunications service obtained
3-69 or attempted to be obtained" includes the value of:
4-1 (A) a lawful charge for telecommunications
4-2 service avoided or attempted to be avoided;
4-3 (B) money, property, or telecommunications
4-4 service lost, stolen, or rendered unrecoverable by an offense; and
4-5 (C) an expenditure incurred by a victim to
4-6 verify that a telecommunications device or telecommunications
4-7 access device or telecommunications service was not altered,
4-8 acquired, damaged, or disrupted as a result of an offense.
4-9 Sec. 33A.02. UNAUTHORIZED USE OF TELECOMMUNICATIONS SERVICE.
4-10 (a) A person commits an offense if the person is an officer,
4-11 shareholder, partner, employee, agent, or independent contractor of
4-12 a telecommunications service provider and the person knowingly and
4-13 without authority uses or diverts telecommunications service for
4-14 the person's own benefit or to the benefit of another.
4-15 (b) An offense under this section is:
4-16 (1) a Class B misdemeanor if the value of the
4-17 telecommunications service used or diverted is less than $500;
4-18 (2) a Class A misdemeanor if:
4-19 (A) the value of the telecommunications service
4-20 used or diverted is $500 or more but less than $1,500; or
4-21 (B) the value of the telecommunications service
4-22 used or diverted is less than $500 and the defendant has been
4-23 previously convicted of an offense under this chapter;
4-24 (3) a state jail felony if:
4-25 (A) the value of the telecommunications service
4-26 used or diverted is $1,500 or more but less than $20,000; or
4-27 (B) the value of the telecommunications service
4-28 used or diverted is less than $1,500 and the defendant has been
4-29 previously convicted two or more times of an offense under this
4-30 chapter;
4-31 (4) a felony of the third degree if the value of the
4-32 telecommunications service used or diverted is $20,000 or more but
4-33 less than $100,000;
4-34 (5) a felony of the second degree if the value of the
4-35 telecommunications service used or diverted is $100,000 or more but
4-36 less than $200,000; or
4-37 (6) a felony of the first degree if the value of the
4-38 telecommunications service used or diverted is $200,000 or more.
4-39 (c) When telecommunications service is used or diverted in
4-40 violation of this section pursuant to one scheme or continuing
4-41 course of conduct, whether or not in a single incident, the conduct
4-42 may be considered as one offense and the values of the service used
4-43 or diverted may be aggregated in determining the grade of the
4-44 offense.
4-45 Sec. 33A.03. MANUFACTURE, POSSESSION, OR DELIVERY OF
4-46 UNLAWFUL TELECOMMUNICATIONS DEVICE. (a) A person commits an
4-47 offense if the person manufactures, possesses, delivers, offers to
4-48 deliver, or advertises:
4-49 (1) a counterfeit telecommunications device; or
4-50 (2) a telecommunications device that is intended to be
4-51 used to:
4-52 (A) commit an offense under Section 33A.04; or
4-53 (B) conceal the existence or place of origin or
4-54 destination of a telecommunications service.
4-55 (b) A person commits an offense if the person delivers,
4-56 offers to deliver, or advertises plans, instructions, or materials
4-57 for manufacture of:
4-58 (1) a counterfeit telecommunications device; or
4-59 (2) a telecommunications device that is intended to be
4-60 used to commit an offense under Subsection (a).
4-61 (c) An offense under this section is a felony of the third
4-62 degree.
4-63 (d) It is a defense to prosecution under this section that
4-64 the person was an officer, agent, or employee of a
4-65 telecommunications service provider who engaged in the conduct for
4-66 the purpose of gathering information for a law enforcement
4-67 investigation related to an offense under this chapter.
4-68 Sec. 33A.04. THEFT OF TELECOMMUNICATIONS SERVICE. (a) A
4-69 person commits an offense if the person knowingly obtains or
5-1 attempts to obtain telecommunications service to avoid or cause
5-2 another person to avoid a lawful charge for that service by using:
5-3 (1) a telecommunications access device without the
5-4 authority or consent of the subscriber or lawful holder of the
5-5 device or pursuant to an agreement for an exchange of value with
5-6 the subscriber or lawful holder of the device to allow another
5-7 person to use the device;
5-8 (2) a counterfeit telecommunications access device;
5-9 (3) a telecommunications device or counterfeit
5-10 telecommunications device; or
5-11 (4) a fraudulent or deceptive scheme, pretense,
5-12 method, or conspiracy, or other device or means, including a false,
5-13 altered, or stolen identification.
5-14 (b) An offense under this section is:
5-15 (1) a Class B misdemeanor if the value of the
5-16 telecommunications service obtained or attempted to be obtained is
5-17 less than $500;
5-18 (2) a Class A misdemeanor if:
5-19 (A) the value of the telecommunications service
5-20 obtained or attempted to be obtained is $500 or more but less than
5-21 $1,500; or
5-22 (B) the value of the telecommunications service
5-23 obtained or attempted to be obtained is less than $500 and the
5-24 defendant has been previously convicted of an offense under this
5-25 chapter;
5-26 (3) a state jail felony if:
5-27 (A) the value of the telecommunications service
5-28 obtained or attempted to be obtained is $1,500 or more but less
5-29 than $20,000; or
5-30 (B) the value of the telecommunications service
5-31 obtained or attempted to be obtained is less than $1,500 and the
5-32 defendant has been previously convicted two or more times of an
5-33 offense under this chapter;
5-34 (4) a felony of the third degree if the value of the
5-35 telecommunications service obtained or attempted to be obtained is
5-36 $20,000 or more but less than $100,000;
5-37 (5) a felony of the second degree if the value of the
5-38 telecommunications service obtained or attempted to be obtained is
5-39 $100,000 or more but less than $200,000; or
5-40 (6) a felony of the first degree if the value of the
5-41 telecommunications service obtained or attempted to be obtained is
5-42 $200,000 or more.
5-43 (c) When telecommunications service is obtained or attempted
5-44 to be obtained in violation of this section pursuant to one scheme
5-45 or continuing course of conduct, whether or not in a single
5-46 incident, the conduct may be considered as one offense and the
5-47 values of the service obtained or attempted to be obtained may be
5-48 aggregated in determining the grade of the offense.
5-49 Sec. 33A.05. PUBLICATION OF TELECOMMUNICATIONS ACCESS
5-50 DEVICE. (a) A person commits an offense if the person with
5-51 criminal negligence publishes a telecommunications access device or
5-52 counterfeit telecommunications access device that is designed to be
5-53 used to commit an offense under Section 33A.04.
5-54 (b) Except as otherwise provided by this subsection, an
5-55 offense under this section is a Class A misdemeanor. An offense
5-56 under this section is a felony of the third degree if the person
5-57 has been previously convicted of an offense under this chapter.
5-58 Sec. 33A.06. ASSISTANCE BY ATTORNEY GENERAL. The attorney
5-59 general, if requested to do so by a prosecuting attorney, may
5-60 assist the prosecuting attorney in the investigation or prosecution
5-61 of an offense under this chapter or of any other offense involving
5-62 the use of telecommunications equipment, services, or devices.
5-63 SECTION 4. Article 13.25, Code of Criminal Procedure, is
5-64 amended to read as follows:
5-65 Art. 13.25. COMPUTER CRIMES. (a) In this section "access,"
5-66 "computer," "computer network," "computer program," "computer
5-67 system," and "owner" have the meanings assigned to those terms by
5-68 [in] Section 33.01, Penal Code.
5-69 (b) An offense under Chapter 33, Penal Code, may be
6-1 prosecuted in:
6-2 (1) the county of the principal place of business of
6-3 the owner or lessee of a computer, computer network, or computer
6-4 system[, or computer network] involved in the offense [violation];
6-5 (2) any county in which a defendant had control or
6-6 possession of:
6-7 (A) any proceeds of [from] the offense;
6-8 [violation] or
6-9 (B) any books, records, documents, property,
6-10 negotiable instruments, computer programs, or other material [that
6-11 were] used in furtherance of the offense [violation]; or
6-12 (3) any county from which, to which, or through which
6-13 [any] access to a computer, [or] computer network, computer
6-14 program, or computer system was made in violation of Chapter 33,
6-15 whether by wires, electromagnetic waves, microwaves, or any other
6-16 means of communication.
6-17 SECTION 5. Chapter 13, Code of Criminal Procedure, is
6-18 amended by adding Article 13.26 to read as follows:
6-19 Art. 13.26. TELECOMMUNICATIONS CRIMES. An offense under
6-20 Chapter 33A, Penal Code, may be prosecuted in the county in which
6-21 the telecommunications service originated or terminated or in the
6-22 county to which the bill for the telecommunications service was or
6-23 would have been delivered.
6-24 SECTION 6. Article 59.01(2), Code of Criminal Procedure, is
6-25 amended to read as follows:
6-26 (2) "Contraband" means property of any nature,
6-27 including real, personal, tangible, or intangible, that is:
6-28 (A) used in the commission of:
6-29 (i) any first or second degree felony
6-30 under the Penal Code;
6-31 (ii) any felony under Section 38.04 or
6-32 Chapters 29, 30, 31, 32, 33, 33A, or 35, Penal Code; or
6-33 (iii) any felony under The Securities Act
6-34 (Article 581-1 et seq., Vernon's Texas Civil Statutes);
6-35 (B) used or intended to be used in the
6-36 commission of:
6-37 (i) any felony under Chapter 481, Health
6-38 and Safety Code (Texas Controlled Substances Act);
6-39 (ii) any felony under Chapter 483, Health
6-40 and Safety Code;
6-41 (iii) a felony under Article 350, Revised
6-42 Statutes;
6-43 (iv) any felony under Chapter 34, Penal
6-44 Code;
6-45 (v) a Class A misdemeanor under Subchapter
6-46 B, Chapter 365, Health and Safety Code, if the defendant has been
6-47 previously convicted twice of an offense under that subchapter; or
6-48 (vi) any felony under The Sale of Checks
6-49 Act (Article 489d, Vernon's Texas Civil Statutes);
6-50 (C) the proceeds gained from the commission of a
6-51 felony listed in Paragraph (A) or (B) of this subdivision or a
6-52 crime of violence; or
6-53 (D) acquired with proceeds gained from the
6-54 commission of a felony listed in Paragraph (A) or (B) of this
6-55 subdivision or a crime of violence.
6-56 SECTION 7. This Act takes effect September 1, 1997. The
6-57 changes in law made by this Act apply only to an offense committed
6-58 on or after the effective date of this Act. An offense committed
6-59 before September 1, 1997, is covered by the law in effect when the
6-60 offense was committed, and the former law is continued in effect
6-61 for that purpose. For purposes of this section, an offense was
6-62 committed before the effective date of this Act if any element of
6-63 the offense occurred before that date.
6-64 SECTION 8. The importance of this legislation and the
6-65 crowded condition of the calendars in both houses create an
6-66 emergency and an imperative public necessity that the
6-67 constitutional rule requiring bills to be read on three several
6-68 days in each house be suspended, and this rule is hereby suspended.
6-69 * * * * *