By Yarbrough, Keel, et al. H.B. No. 3373
75R7385 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the unlawful interception, use, or disclosure of
1-3 certain wire, oral, or electronic communications.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 16.02(c), Penal Code, is amended to read
1-6 as follows:
1-7 (c) It is an affirmative defense to prosecution under
1-8 Subsection (b) that:
1-9 (1) an operator of a switchboard or an officer,
1-10 employee, or agent of a communication common carrier whose
1-11 facilities are used in the transmission of a wire or electronic
1-12 communication intercepts a communication or discloses or uses an
1-13 intercepted communication in the normal course of employment while
1-14 engaged in an activity that is a necessary incident to the
1-15 rendition of service or to the protection of the rights or property
1-16 of the carrier of the communication, unless the interception
1-17 results from the communication common carrier's use of service
1-18 observing or random monitoring for purposes other than mechanical
1-19 or service quality control checks;
1-20 (2) an officer, employee, or agent of a communication
1-21 common carrier provides information, facilities, or technical
1-22 assistance to an investigative or law enforcement officer who is
1-23 authorized as provided by this article to intercept a wire, oral,
1-24 or electronic communication;
2-1 (3) a person acting under color of law intercepts a
2-2 wire, oral, or electronic communication if the person is a party to
2-3 the communication or if one of the parties to the communication has
2-4 given prior consent to the interception;
2-5 (4) a person not acting under color of law intercepts
2-6 a wire, oral, or electronic communication if the person is a party
2-7 to the communication or if one of the parties to the communication
2-8 has given prior consent to the interception unless the
2-9 communication is intercepted for the purpose of committing any
2-10 criminal or tortious act in violation of the constitution or laws
2-11 of the United States or of this state or for the purpose of
2-12 committing any other injurious act;
2-13 (5) a person acting under color of law intercepts a
2-14 wire, oral, or electronic communication if:
2-15 (A) prior consent for the interception has been
2-16 given by a magistrate;
2-17 (B) an immediate life-threatening situation
2-18 exists;
2-19 (C) the person is a member of a law enforcement
2-20 unit specially trained to:
2-21 (i) respond to and deal with
2-22 life-threatening situations; or
2-23 (ii) install electronic, mechanical, or
2-24 other devices; and
2-25 (D) the interception ceases immediately on
2-26 termination of the life-threatening situation;
2-27 (6) an officer, employee, or agent of the Federal
3-1 Communications Commission intercepts a communication transmitted by
3-2 radio or discloses or uses an intercepted communication in the
3-3 normal course of employment and in the discharge of the monitoring
3-4 responsibilities exercised by the Federal Communications Commission
3-5 in the enforcement of Chapter 5, Title 47, United States Code;
3-6 (7) a person intercepts or obtains access to an
3-7 electronic communication that was made through an electronic
3-8 communication system that is configured to permit the communication
3-9 to be readily accessible to the general public;
3-10 (8) a person intercepts radio communication that is
3-11 transmitted:
3-12 (A) by a station for the use of the general
3-13 public;
3-14 (B) to ships, aircraft, vehicles, or persons in
3-15 distress;
3-16 (C) by a governmental, law enforcement, civil
3-17 defense, private land mobile, or public safety communications
3-18 system that is readily accessible to the general public, unless the
3-19 radio communication is transmitted by a law enforcement
3-20 representative to or from a mobile data terminal;
3-21 (D) by a station operating on an authorized
3-22 frequency within the bands allocated to the amateur, citizens band,
3-23 or general mobile radio services; or
3-24 (E) by a marine or aeronautical communications
3-25 system;
3-26 (9) a person intercepts a wire or electronic
3-27 communication the transmission of which causes harmful interference
4-1 to a lawfully operating station or consumer electronic equipment,
4-2 to the extent necessary to identify the source of the interference;
4-3 (10) a user of the same frequency intercepts a radio
4-4 communication made through a system that uses frequencies monitored
4-5 by individuals engaged in the provision or the use of the system,
4-6 if the communication is not scrambled or encrypted; or
4-7 (11) a provider of electronic communications service
4-8 records the fact that a wire or electronic communication was
4-9 initiated or completed in order to protect the provider, another
4-10 provider furnishing service towards the completion of the
4-11 communication, or a user of that service from fraudulent, unlawful,
4-12 or abusive use of the service.
4-13 SECTION 2. This Act takes effect September 1, 1997. The
4-14 change in law made by this Act applies only to an offense committed
4-15 on or after the effective date of this Act. An offense committed
4-16 before the effective date of this Act is covered by the law in
4-17 effect when the offense was committed, and the former law is
4-18 continued in effect for that purpose. For purposes of this
4-19 section, an offense was committed before the effective date of this
4-20 Act if any element of the offense occurred before that date.
4-21 SECTION 3. The importance of this legislation and the
4-22 crowded condition of the calendars in both houses create an
4-23 emergency and an imperative public necessity that the
4-24 constitutional rule requiring bills to be read on three several
4-25 days in each house be suspended, and this rule is hereby suspended.