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