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                                  * * * * *