AN ACT
1-1 relating to the interception of wire, oral, or electronic
1-2 communications, to the use of pen registers and trap and trace
1-3 devices, and to the civil and criminal consequences of improperly
1-4 engaging in those activities.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subdivisions (1), (8), (14), (15), and (19),
1-7 Section 1, Article 18.20, Code of Criminal Procedure, are amended
1-8 to read as follows:
1-9 (1) "Wire communication" means an aural transfer made
1-10 in whole or in part through the use of facilities for the
1-11 transmission of communications by the aid of wire, cable, or other
1-12 like connection between the point of origin and the point of
1-13 reception, including the use of such a connection in a switching
1-14 station, furnished or operated by a person authorized to engage in
1-15 providing or operating the facilities for the transmission of
1-16 communications as a communications common carrier. The term
1-17 includes the electronic storage of a wire communication[, but does
1-18 not include the radio portion of a cordless telephone communication
1-19 that is transmitted between the cordless telephone handset and its
1-20 base unit].
1-21 (8) "Prosecutor" means a district attorney, criminal
1-22 district attorney, or county attorney performing the duties of a
1-23 district attorney, with jurisdiction in the county within an
2-1 administrative judicial district described by Section 3(b) [in
2-2 which the facility or place where the communication to be
2-3 intercepted is located].
2-4 (14) "Pen register" means a [mechanical or electronic]
2-5 device that attaches to a telephone line and records or decodes
2-6 electronic or other impulses to identify numbers dialed or
2-7 otherwise transmitted on the telephone line. The term does not
2-8 include a device used by a provider or customer of:
2-9 (A) a wire or electronic communication service
2-10 for purposes of charging a fee for the service; or
2-11 (B) a wire communication service during the
2-12 ordinary course of the provider's or customer's business, including
2-13 cost accounting and security control [is capable of recording
2-14 outgoing numbers dialed from that line but is not capable of
2-15 recording the origin of an incoming communication to that line or
2-16 the content of a communication carried between that line and
2-17 another line].
2-18 (15) "Electronic communication" means a transfer of
2-19 signs, signals, writing, images, sounds, data, or intelligence of
2-20 any nature transmitted in whole or in part by a wire, radio,
2-21 electromagnetic, photoelectronic, or photo-optical system. The
2-22 term does not include:
2-23 (A) [the radio portion of a cordless telephone
2-24 communication that is transmitted between the cordless telephone
2-25 handset and its base unit;]
3-1 [(B)] a wire or oral communication;
3-2 (B) [(C)] a communication made through a
3-3 tone-only paging device; or
3-4 (C) [(D)] a communication from a tracking
3-5 device.
3-6 (19) "Readily accessible to the general public" means,
3-7 with respect to a radio communication, a communication that is not:
3-8 (A) scrambled or encrypted;
3-9 (B) transmitted using modulation techniques
3-10 whose essential parameters have been withheld from the public with
3-11 the intention of preserving the privacy of the communication; [or]
3-12 (C) carried on a subcarrier or other signal
3-13 subsidiary to a radio transmission;
3-14 (D) transmitted over a communication system
3-15 provided by a common carrier, unless the communication is a
3-16 tone-only paging system communication;
3-17 (E) transmitted on frequencies allocated under
3-18 Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of
3-19 the Federal Communications Commission, unless, in the case of a
3-20 communication transmitted on a frequency allocated under Part 74
3-21 that is not exclusively allocated to broadcast auxiliary services,
3-22 the communication is a two-way voice communication by radio; or
3-23 (F) an electronic communication [frequencies
3-24 reserved for private use and licensed for private use under federal
3-25 or state law, other than a tone-only paging device communication].
4-1 SECTION 2. Subsection (b), Section 3, Article 18.20, Code of
4-2 Criminal Procedure, is amended to read as follows:
4-3 (b) Except as provided by Subsection (c) [of this section],
4-4 a [only the] judge appointed under Subsection (a) [of competent
4-5 jurisdiction for the administrative judicial district in which the
4-6 proposed interception will be made] may act on an application for
4-7 authorization to intercept wire, oral, or electronic communications
4-8 if the judge is appointed as the judge of competent jurisdiction
4-9 within the administrative judicial district in which the following
4-10 is located:
4-11 (1) the site of:
4-12 (A) the proposed interception; or
4-13 (B) the interception device to be installed or
4-14 monitored;
4-15 (2) the communication device to be intercepted;
4-16 (3) the billing, residential, or business address of
4-17 the subscriber to the electronic communications service to be
4-18 intercepted;
4-19 (4) the headquarters of the law enforcement agency
4-20 that makes a request for or executes an order authorizing an
4-21 interception; or
4-22 (5) the headquarters of the service provider.
4-23 SECTION 3. Section 16, Article 18.20, Code of Criminal
4-24 Procedure, is amended to read as follows:
4-25 Sec. 16. RECOVERY OF CIVIL DAMAGES AUTHORIZED. (a) A
5-1 person whose wire, oral, or electronic communication is
5-2 intercepted, disclosed, or used in violation of this article, or in
5-3 violation of Chapter 16, Penal Code, has a civil cause of action
5-4 against any person who intercepts, discloses, or uses or solicits
5-5 [procures] another person to intercept, disclose, or use the
5-6 communication and is entitled to recover from the person:
5-7 (1) actual damages but not less than liquidated
5-8 damages computed at a rate of $100 a day for each day of violation
5-9 or $1,000, whichever is higher;
5-10 (2) punitive damages; and
5-11 (3) a reasonable attorney's fee and other litigation
5-12 costs reasonably incurred.
5-13 (b) A good faith reliance on a court order or legislative
5-14 authorization constitutes a complete defense to an [any civil or
5-15 criminal] action brought under this section [article].
5-16 (c) A person is subject to suit by the federal or state
5-17 government in a court of competent jurisdiction for appropriate
5-18 injunctive relief if the person engages in conduct that:
5-19 (1) constitutes an offense under Section 16.05, Penal
5-20 Code, but is not for a tortious or illegal purpose or for the
5-21 purpose of direct or indirect commercial advantage or private
5-22 commercial gain; and
5-23 (2) involves a radio communication that is:
5-24 (A) transmitted on frequencies allocated under
5-25 Subpart D of Part 74 of the rules of the Federal Communications
6-1 Commission; and
6-2 (B) not scrambled or encrypted.
6-3 (d) A defendant is liable for a civil penalty of $500 if it
6-4 is shown at the trial of the civil suit brought under Subsection
6-5 (c) that the defendant:
6-6 (1) has been convicted of an offense under Section
6-7 16.05, Penal Code; or
6-8 (2) is found liable in a civil action brought under
6-9 Subsection (a).
6-10 (e) Each violation of an injunction ordered under Subsection
6-11 (c) is punishable by a fine of $500.
6-12 (f) The attorney general, or the county or district attorney
6-13 of the county in which the conduct, as described by Subsection (c),
6-14 is occurring, may file suit under Subsection (c) on behalf of the
6-15 state.
6-16 SECTION 4. Section 17, Article 18.20, Code of Criminal
6-17 Procedure, is amended to read as follows:
6-18 Sec. 17. NONAPPLICABILITY [EXCEPTIONS]. This article
6-19 [(a) It is an exception to the application of Section 16 that:]
6-20 [(1) an operator of a switchboard or an officer,
6-21 employee, or agent of a communication common carrier or provider of
6-22 wire or electronic communications service whose facilities are used
6-23 in the transmission of a wire or electronic communication
6-24 intercepts a communication or discloses or uses an intercepted
6-25 communication in the normal course of employment while engaged in
7-1 an activity that is a necessary incident to the rendition of
7-2 service or to the protection of the rights or property of the
7-3 provider or carrier of the communication, unless the interception
7-4 results from the communication common carrier's or provider of wire
7-5 or electronic communications service's use of service observing or
7-6 random monitoring for purposes other than mechanical or service
7-7 quality control checks;]
7-8 [(2) an officer, employee, or agent of a communication
7-9 common carrier or provider of wire or electronic communications
7-10 service provides information, facilities, or technical assistance
7-11 to an investigative or law enforcement officer who is authorized as
7-12 provided by this article to intercept a wire, oral, or electronic
7-13 communication;]
7-14 [(3) a person acting under color of law intercepts a
7-15 wire, oral, or electronic communication if the person is a party to
7-16 the communication or if one of the parties to the communication has
7-17 given prior consent to the interception; or]
7-18 [(4) a person not acting under color of law intercepts
7-19 a wire, oral, or electronic communication if the person is a party
7-20 to the communication or if one of the parties to the communication
7-21 has given prior consent to the interception unless the
7-22 communication is intercepted for the purpose of committing any
7-23 criminal or tortious act in violation of the constitution or laws
7-24 of the United States or of this state or for the purpose of
7-25 committing any other injurious act.]
8-1 [(b) Article 18.20 of this code] does not apply to conduct
8-2 described as an affirmative defense under Section 16.02(c)
8-3 [16.02(c)(5)], Penal Code.
8-4 SECTION 5. Section 1, Article 18.21, Code of Criminal
8-5 Procedure, is amended to read as follows:
8-6 Sec. 1. DEFINITIONS. In this article:
8-7 (1) "Aural transfer," "communication common carrier,"
8-8 "electronic communication," "electronic communications service,"
8-9 "electronic communications system," "electronic storage," "pen
8-10 register," "readily accessible to the general public," "user," and
8-11 "wire communication" have the meanings assigned by Article 18.20
8-12 [means a transfer containing the human voice at any point between
8-13 and including the point of origin and the point of reception].
8-14 (2) "Authorized peace officer" means:
8-15 (A) a sheriff or a sheriff's deputy;
8-16 (B) a constable or deputy constable;
8-17 (C) a marshal or police officer of an
8-18 incorporated city, town, or village;
8-19 (D) a ranger or officer commissioned by the
8-20 Public Safety Commission or the director of the Department of
8-21 Public Safety;
8-22 (E) an investigator of the district attorney's,
8-23 criminal district attorney's, or county attorney's office;
8-24 (F) a law enforcement agent of the Alcoholic
8-25 Beverage Commission; [or]
9-1 (G) a law enforcement officer commissioned by
9-2 the Parks and Wildlife Commission; or
9-3 (H) an enforcement officer employed by the Texas
9-4 Department of Criminal Justice pursuant to Section 493.015,
9-5 Government Code, as added by Chapter 321, Acts of the 74th
9-6 Legislature, 1995.
9-7 (3) ["Communications common carrier" means a person
9-8 engaged as a common carrier for hire in the transmission of wire or
9-9 electronic communications.]
9-10 [(4)] "Department" means the Department of Public
9-11 Safety.
9-12 (4) [(5) "Electronic communication" means a transfer
9-13 of signs, signals, writing, images, sounds, data, or intelligence
9-14 of any nature transmitted in whole or in part by a wire, radio,
9-15 electromagnetic, photoelectronic, or photo-optical system. The
9-16 term does not include:]
9-17 [(A) the radio portion of a cordless telephone
9-18 communication that is transmitted between the cordless telephone
9-19 handset and its base unit;]
9-20 [(B) a wire or oral communication;]
9-21 [(C) a communication made through a tone-only
9-22 paging device; or]
9-23 [(D) a communication from a tracking device.]
9-24 [(6) "Electronic communications service" means a
9-25 service that provides to users of the service the ability to send
10-1 or receive wire or electronic communications.]
10-2 [(7) "Electronic communications system" means a wire,
10-3 radio, electromagnetic, photo-optical or photoelectronic facility
10-4 for the transmission of wire or electronic communications, and any
10-5 computer facility or related electronic equipment for the
10-6 electronic storage of those communications.]
10-7 [(8) "Electronic storage" means:]
10-8 [(A) a temporary, intermediate storage of a wire
10-9 or electronic communication that is incidental to the electronic
10-10 transmission of the communication; or]
10-11 [(B) storage of a wire or electronic
10-12 communication by an electronic communications service for purposes
10-13 of backup protection of the communication.]
10-14 [(9) "Pen register" means a mechanical or electronic
10-15 device that attaches to a telephone line and is capable of
10-16 recording outgoing numbers dialed from that line but is not capable
10-17 of recording the origin of an incoming communication to that line
10-18 or the content of a communication carried between that line and
10-19 another line.]
10-20 [(10) "Readily accessible to the general public"
10-21 means, with respect to a radio communication, a communication that
10-22 is not:]
10-23 [(A) scrambled or encrypted;]
10-24 [(B) transmitted using modulation techniques
10-25 whose essential parameters have been withheld from the public with
11-1 the intention of preserving the privacy of the communication; or]
11-2 [(C) transmitted over frequencies reserved for
11-3 private use and licensed for private use under federal or state
11-4 law, other than a tone-only paging device communication.]
11-5 [(11)] "Remote computing service" means the provision
11-6 to the public of computer storage or processing services by means
11-7 of an electronic communications system.
11-8 (5) [(12)] "Supervisory official" means:
11-9 (A) an investigative agent or an assistant
11-10 investigative agent who is in charge of an investigation;
11-11 (B) an equivalent person at an investigating
11-12 agency's headquarters or regional office; and
11-13 (C) the principal prosecuting attorney of the
11-14 state or of a political subdivision of the state or the first
11-15 assistant or chief assistant prosecuting attorney in the office of
11-16 either.
11-17 (6) [(13)] "Tracking device" means an electronic or
11-18 mechanical device that permits only tracking the movement of a
11-19 person or object.
11-20 (7) [(14)] "Trap and trace device" means a [mechanical
11-21 or electronic] device that records [attaches to a telephone line
11-22 and is capable of recording] an incoming electronic or other
11-23 impulse that identifies the originating number of an instrument or
11-24 device from which a wire or electronic communication was
11-25 transmitted. The term does not include a device or
12-1 telecommunications network used in providing:
12-2 (A) [(1)] a caller identification service
12-3 authorized by the Public Utility Commission of Texas under Section
12-4 3.302 [87C], Public Utility Regulatory Act of 1995 (Article 1446c-0
12-5 [1446c], Vernon's Texas Civil Statutes);
12-6 (B) [(2)] the services referenced in [Subsection
12-7 (g),] Section 3.302(g) [87C], Public Utility Regulatory Act of 1995
12-8 (Article 1446c-0 [1446c], Vernon's Texas Civil Statutes); or
12-9 (C) [(3)] a caller identification service
12-10 provided by a commercial mobile radio service provider licensed by
12-11 the Federal Communications Commission.
12-12 [(15) "User" means a person who uses an electronic
12-13 communications service and is authorized by the provider of the
12-14 service to use the service.]
12-15 [(16) "Wire communication" means an aural transfer
12-16 made in whole or in part through the use of facilities for the
12-17 transmission of communications by the aid of wire, cable, or other
12-18 like connection between the point of origin and the point of
12-19 reception, including the use of such a connection in a switching
12-20 station, furnished or operated by a person authorized to engage in
12-21 providing or operating the facilities for the transmission of
12-22 communications as a communications common carrier. The term
12-23 includes the electronic storage of a wire communication but does
12-24 not include the radio portion of a cordless telephone communication
12-25 that is transmitted between the cordless telephone handset and its
13-1 base unit.]
13-2 SECTION 6. Subsection (f), Section 2, Article 18.21, Code of
13-3 Criminal Procedure, is amended to read as follows:
13-4 (f) An order for the installation and utilization of a pen
13-5 register or trap and trace device is valid for not more than 60
13-6 [30] days after the date the device is installed or after 10 days
13-7 after the date the order is entered, whichever occurs first, unless
13-8 prior to the expiration of the order the attorney for the state
13-9 applies for and obtains from the court an extension of the order.
13-10 The period of extension may not exceed 60 [30] days for each
13-11 extension granted, except that with the consent of the subscriber
13-12 or customer of the service on which the pen register or trap and
13-13 trace device is utilized, the court may extend an order for a
13-14 period not to exceed one year.
13-15 SECTION 7. Section 3, Article 18.21, Code of Criminal
13-16 Procedure, is amended to read as follows:
13-17 Sec. 3. EMERGENCY PEN REGISTER AND TRAP AND TRACE DEVICE
13-18 INSTALLATION. (a) An authorized peace officer, designated by [the
13-19 director of the department or by] the district or criminal district
13-20 attorney of the county where the installation will be used, may
13-21 install and use a pen register or trap and trace device if the
13-22 peace officer reasonably believes that:
13-23 (1) an emergency requiring the installation of a pen
13-24 register or trap and trace device before an order authorizing the
13-25 installation and use can, with due diligence, be obtained, exists
14-1 involving immediate danger of death or serious injury to any
14-2 person; and
14-3 (2) there are grounds under this article on which an
14-4 order could be entered to authorize the installation and use of a
14-5 pen register or trap and trace device.
14-6 (b) If an authorized peace officer installs a pen register
14-7 or trap and trace device under Subsection (a) [of this section],
14-8 the peace officer must obtain an order approving installation and
14-9 use within 48 hours after the installation begins [occurred]. If
14-10 authorization is not obtained within [those] 48 hours, the officer
14-11 shall terminate use of the pen register or the trap and trace
14-12 device on the expiration [shall immediately terminate at the lapse]
14-13 of the 48 hours or at the time the order is denied, whichever is
14-14 earlier.
14-15 (c) [The knowing installation or use by an authorized peace
14-16 officer of a pen register or trap and trace device under this
14-17 section without application for the authorizing order within 48
14-18 hours of the installation is not permitted and is not an exception
14-19 to the application of Section 16.03, Penal Code.]
14-20 [(d)] The state may not use as evidence in a [any
14-21 subsequent] criminal proceeding any information gained through the
14-22 use of a pen register or trap and trace device installed [issued]
14-23 under [Subsection (b) of] this section if authorization for the pen
14-24 register or trap and trace device is denied.
14-25 SECTION 8. Article 18.21, Code of Criminal Procedure, is
15-1 amended by adding Section 16 to read as follows:
15-2 Sec. 16. LIMITATION. A governmental agency authorized to
15-3 install and use a pen register under this article or other law must
15-4 use reasonably available technology to only record and decode
15-5 electronic or other impulses used to identify the numbers dialed or
15-6 otherwise transmitted.
15-7 SECTION 9. Subsection (c), Section 16.02, Penal Code, is
15-8 amended to read as follows:
15-9 (c) It is an affirmative defense to prosecution under
15-10 Subsection (b) that:
15-11 (1) an operator of a switchboard or an officer,
15-12 employee, or agent of a communication common carrier whose
15-13 facilities are used in the transmission of a wire or electronic
15-14 communication intercepts a communication or discloses or uses an
15-15 intercepted communication in the normal course of employment while
15-16 engaged in an activity that is a necessary incident to the
15-17 rendition of service or to the protection of the rights or property
15-18 of the carrier of the communication, unless the interception
15-19 results from the communication common carrier's use of service
15-20 observing or random monitoring for purposes other than mechanical
15-21 or service quality control checks;
15-22 (2) an officer, employee, or agent of a communication
15-23 common carrier provides information, facilities, or technical
15-24 assistance to an investigative or law enforcement officer who is
15-25 authorized as provided by this article to intercept a wire, oral,
16-1 or electronic communication;
16-2 (3) a person acting under color of law intercepts a
16-3 wire, oral, or electronic communication if the person is a party to
16-4 the communication or if one of the parties to the communication has
16-5 given prior consent to the interception;
16-6 (4) a person not acting under color of law intercepts
16-7 a wire, oral, or electronic communication if the person is a party
16-8 to the communication or if one of the parties to the communication
16-9 has given prior consent to the interception unless the
16-10 communication is intercepted for the purpose of committing any
16-11 criminal or tortious act in violation of the constitution or laws
16-12 of the United States or of this state or for the purpose of
16-13 committing any other injurious act;
16-14 (5) a person acting under color of law intercepts a
16-15 wire, oral, or electronic communication if:
16-16 (A) oral or written [prior] consent for the
16-17 interception is [has been] given by a magistrate before the
16-18 interception;
16-19 (B) an immediate life-threatening situation
16-20 exists;
16-21 (C) the person is a member of a law enforcement
16-22 unit specially trained to:
16-23 (i) respond to and deal with
16-24 life-threatening situations; or
16-25 (ii) install electronic, mechanical, or
17-1 other devices; and
17-2 (D) the interception ceases immediately on
17-3 termination of the life-threatening situation;
17-4 (6) an officer, employee, or agent of the Federal
17-5 Communications Commission intercepts a communication transmitted by
17-6 radio or discloses or uses an intercepted communication in the
17-7 normal course of employment and in the discharge of the monitoring
17-8 responsibilities exercised by the Federal Communications Commission
17-9 in the enforcement of Chapter 5, Title 47, United States Code;
17-10 (7) a person intercepts or obtains access to an
17-11 electronic communication that was made through an electronic
17-12 communication system that is configured to permit the communication
17-13 to be readily accessible to the general public;
17-14 (8) a person intercepts radio communication, other
17-15 than a cordless telephone communication that is transmitted between
17-16 a cordless telephone handset and a base unit, that is transmitted:
17-17 (A) by a station for the use of the general
17-18 public;
17-19 (B) to ships, aircraft, vehicles, or persons in
17-20 distress;
17-21 (C) by a governmental, law enforcement, civil
17-22 defense, private land mobile, or public safety communications
17-23 system that is readily accessible to the general public, unless the
17-24 radio communication is transmitted by a law enforcement
17-25 representative to or from a mobile data terminal;
18-1 (D) by a station operating on an authorized
18-2 frequency within the bands allocated to the amateur, citizens band,
18-3 or general mobile radio services; or
18-4 (E) by a marine or aeronautical communications
18-5 system;
18-6 (9) a person intercepts a wire or electronic
18-7 communication the transmission of which causes harmful interference
18-8 to a lawfully operating station or consumer electronic equipment,
18-9 to the extent necessary to identify the source of the interference;
18-10 (10) a user of the same frequency intercepts a radio
18-11 communication made through a system that uses frequencies monitored
18-12 by individuals engaged in the provision or the use of the system,
18-13 if the communication is not scrambled or encrypted; or
18-14 (11) a provider of electronic communications service
18-15 records the fact that a wire or electronic communication was
18-16 initiated or completed in order to protect the provider, another
18-17 provider furnishing service towards the completion of the
18-18 communication, or a user of that service from fraudulent, unlawful,
18-19 or abusive use of the service.
18-20 SECTION 10. Subsections (a), (c), (d), and (e), Section
18-21 16.03, Penal Code, are amended to read as follows:
18-22 (a) A [Except as authorized by a court order obtained under
18-23 Article 18.21, Code of Criminal Procedure, or in an emergency under
18-24 the circumstances described and permitted under that article, a]
18-25 person commits an offense if the person [he] knowingly installs or
19-1 uses [utilizes] a pen register or trap and trace device to record
19-2 or decode electronic or other impulses for the purpose of
19-3 identifying telephone numbers dialed or otherwise transmitted on
19-4 [from or to] a telephone line [instrument].
19-5 (c) It is an affirmative defense to prosecution under
19-6 [exception to the application of] Subsection (a) that the actor is:
19-7 (1) an officer, employee, or agent of a communications
19-8 common carrier and the actor installs or uses [utilizes] a device
19-9 or equipment to record a number [the numbers] dialed from or to a
19-10 telephone instrument in the normal course of business of the
19-11 carrier for purposes of:
19-12 (A) protecting[, for the protection of] property
19-13 or services provided by the carrier; or
19-14 (B) assisting another who the actor reasonably
19-15 believes to be a[, or assists an authorized] peace officer
19-16 authorized to install or use a pen register or trap and trace
19-17 device [in executing an order issued] under Article 18.21, Code of
19-18 Criminal Procedure;
19-19 (2)[. (d) It is an exception to the application of
19-20 Subsection (a) that the installation or utilization of a pen
19-21 register or trap and trace device was made by] an officer, [agent,
19-22 or] employee, or agent of a lawful enterprise and the actor
19-23 installs or uses a device or equipment while engaged in an activity
19-24 that:
19-25 (A) is a necessary incident to the rendition of
20-1 service or to the protection of property of or services provided by
20-2 the enterprise;[,] and
20-3 (B) is [was] not made for the purpose of
20-4 gathering information for a law enforcement agency or private
20-5 investigative agency, other than information related to the theft
20-6 of communication or information services provided by the
20-7 enterprise; or
20-8 (3) a person authorized to install or use a pen
20-9 register or trap and trace device under Article 18.21, Code of
20-10 Criminal Procedure.
20-11 (d) [(e)] An offense under this section is a state jail
20-12 felony.
20-13 SECTION 11. Subsection (e), Section 16.04, Penal Code, is
20-14 amended to read as follows:
20-15 (e) It is an affirmative defense to prosecution under
20-16 [exception to the application of] Subsection (b) that the conduct
20-17 was authorized by:
20-18 (1) the provider of the wire or electronic
20-19 communications service;
20-20 (2) the user of the wire or electronic communications
20-21 service; [or]
20-22 (3) the addressee or intended recipient of the wire or
20-23 electronic communication; or
20-24 (4) Article 18.21, Code of Criminal Procedure.
20-25 SECTION 12. Subsections (b) through (e), Section 16.05,
21-1 Penal Code, are amended to read as follows:
21-2 (b) A [Except as provided by Subsection (c), a] person who
21-3 provides electronic communications service to the public commits an
21-4 offense if the person knowingly [he intentionally] divulges the
21-5 contents of a communication[, other than a communication to that
21-6 person or that person's agent, while the communication is in
21-7 transmission on that service,] to another who is not [any person
21-8 other than the addressee or] the intended recipient of the
21-9 communication [or the addressee's or intended recipient's agent].
21-10 (c) It is an affirmative defense to prosecution under
21-11 Subsection (b) that the actor divulged [A person who provides
21-12 electronic communications service to the public may divulge] the
21-13 contents of the [a] communication:
21-14 (1) as authorized by federal or state law;
21-15 (2) to a person employed, authorized, or whose
21-16 facilities are used to forward the communication to the
21-17 communication's destination; or
21-18 (3) to a law enforcement agency if [the contents were
21-19 obtained by the service provider and] the contents reasonably
21-20 appear to pertain to the commission of a crime.
21-21 (d) Except as provided by Subsection [Subsections] (e) [and
21-22 (f)], an offense under Subsection (b) that involves a scrambled or
21-23 encrypted radio communication is a state jail felony.
21-24 (e) If committed for a tortious or illegal purpose or to
21-25 gain a benefit, an offense under Subsection (b) that involves a
22-1 radio communication that is not scrambled or encrypted:
22-2 (1) is a Class A misdemeanor if the communication is
22-3 not [the radio portion of a cellular telephone communication,] a
22-4 public land mobile radio service communication[,] or a paging
22-5 service communication; or
22-6 (2) is a Class C misdemeanor if the communication is
22-7 [the radio portion of a cellular telephone communication,] a public
22-8 land [and] mobile radio service [or] communication or a paging
22-9 service communication.
22-10 SECTION 13. Subsection (f), Section 16.05, Penal Code, is
22-11 repealed.
22-12 SECTION 14. This Act takes effect September 1, 1997.
22-13 SECTION 15. (a) The changes in law made by Sections 8
22-14 through 11 and Section 13 of this Act apply only to an offense
22-15 committed on or after the effective date of this Act. For purposes
22-16 of this section, an offense is committed before the effective date
22-17 of this Act if any element of the offense occurs before the
22-18 effective date.
22-19 (b) An offense committed before the effective date of this
22-20 Act is covered by the law in effect when the offense was committed,
22-21 and the former law is continued in effect for that purpose.
22-22 SECTION 16. The importance of this legislation and the
22-23 crowded condition of the calendars in both houses create an
22-24 emergency and an imperative public necessity that the
22-25 constitutional rule requiring bills to be read on three several
23-1 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1120 passed the Senate on
April 29, 1997, by a viva-voce vote; and that the Senate concurred
in House amendment on June 1, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1120 passed the House, with
amendment, on May 26, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor