By: Armbrister S.B. No. 1120
A BILL TO BE ENTITLED
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
1-24 administrative judicial district described by Section 3(b) [in
2-1 which the facility or place where the communication to be
2-2 intercepted is located].
2-3 (14) "Pen register" means a [mechanical or electronic]
2-4 device that attaches to a telephone line and records or decodes
2-5 electronic or other impulses to identify numbers dialed or
2-6 otherwise transmitted on the telephone line. The term does not
2-7 include a device used by a provider or customer of:
2-8 (A) a wire or electronic communication service
2-9 for purposes of charging a fee for the service; or
2-10 (B) a wire communication service during the
2-11 ordinary course of the provider's or customer's business, including
2-12 cost accounting and security control [is capable of recording
2-13 outgoing numbers dialed from that line but is not capable of
2-14 recording the origin of an incoming communication to that line or
2-15 the content of a communication carried between that line and
2-16 another line].
2-17 (15) "Electronic communication" means a transfer of
2-18 signs, signals, writing, images, sounds, data, or intelligence of
2-19 any nature transmitted in whole or in part by a wire, radio,
2-20 electromagnetic, photoelectronic, or photo-optical system. The
2-21 term does not include:
2-22 (A) [the radio portion of a cordless telephone
2-23 communication that is transmitted between the cordless telephone
2-24 handset and its base unit;]
2-25 [(B)] a wire or oral communication;
2-26 (B) [(C)] a communication made through a
2-27 tone-only paging device; or
3-1 (C) [(D)] a communication from a tracking
3-2 device.
3-3 (19) "Readily accessible to the general public" means,
3-4 with respect to a radio communication, a communication that is not:
3-5 (A) scrambled or encrypted;
3-6 (B) transmitted using modulation techniques
3-7 whose essential parameters have been withheld from the public with
3-8 the intention of preserving the privacy of the communication; [or]
3-9 (C) carried on a subcarrier or other signal
3-10 subsidiary to a radio transmission;
3-11 (D) transmitted over a communication system
3-12 provided by a common carrier, unless the communication is a
3-13 tone-only paging system communication;
3-14 (E) transmitted on frequencies allocated under
3-15 Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of
3-16 the Federal Communications Commission, unless, in the case of a
3-17 communication transmitted on a frequency allocated under Part 74
3-18 that is not exclusively allocated to broadcast auxiliary services,
3-19 the communication is a two-way voice communication by radio; or
3-20 (F) an electronic communication [frequencies
3-21 reserved for private use and licensed for private use under federal
3-22 or state law, other than a tone-only paging device communication].
3-23 SECTION 2. Subsection (b), Section 3, Article 18.20, Code of
3-24 Criminal Procedure, is amended to read as follows:
3-25 (b) Except as provided by Subsection (c) [of this section],
3-26 a [only the] judge appointed under Subsection (a) [of competent
3-27 jurisdiction for the administrative judicial district in which the
4-1 proposed interception will be made] may act on an application for
4-2 authorization to intercept wire, oral, or electronic communications
4-3 if the judge is appointed as the judge of competent jurisdiction
4-4 within the administrative judicial district in which the following
4-5 is located:
4-6 (1) the site of:
4-7 (A) the proposed interception; or
4-8 (B) the interception device to be installed or
4-9 monitored;
4-10 (2) the communication device to be intercepted;
4-11 (3) the billing, residential, or business address of
4-12 the subscriber to the electronic communications service to be
4-13 intercepted;
4-14 (4) the headquarters of the law enforcement agency
4-15 that makes a request for or executes an order authorizing an
4-16 interception; or
4-17 (5) the headquarters of the service provider.
4-18 SECTION 3. Section 16, Article 18.20, Code of Criminal
4-19 Procedure, is amended to read as follows:
4-20 Sec. 16. RECOVERY OF CIVIL DAMAGES AUTHORIZED. (a) A
4-21 person whose wire, oral, or electronic communication is
4-22 intercepted, disclosed, or used in violation of this article, or in
4-23 violation of Chapter 16, Penal Code, has a civil cause of action
4-24 against any person who intercepts, discloses, or uses or solicits
4-25 [procures] another person to intercept, disclose, or use the
4-26 communication and is entitled to recover from the person:
4-27 (1) actual damages but not less than liquidated
5-1 damages computed at a rate of $100 a day for each day of violation
5-2 or $1,000, whichever is higher;
5-3 (2) punitive damages; and
5-4 (3) a reasonable attorney's fee and other litigation
5-5 costs reasonably incurred.
5-6 (b) A good faith reliance on a court order or legislative
5-7 authorization constitutes a complete defense to an [any civil or
5-8 criminal] action brought under this section [article].
5-9 (c) A person is subject to suit by the federal or state
5-10 government in a court of competent jurisdiction for appropriate
5-11 injunctive relief if the person engages in conduct that:
5-12 (1) constitutes an offense under Section 16.05, Penal
5-13 Code, but is not for a tortious or illegal purpose or for the
5-14 purpose of direct or indirect commercial advantage or private
5-15 commercial gain; and
5-16 (2) involves a radio communication that is:
5-17 (A) transmitted on frequencies allocated under
5-18 Subpart D of Part 74 of the rules of the Federal Communications
5-19 Commission; and
5-20 (B) not scrambled or encrypted.
5-21 (d) A defendant is liable for a civil penalty of $500 if it
5-22 is shown at the trial of the civil suit brought under Subsection
5-23 (c) that the defendant:
5-24 (1) has been convicted of an offense under Section
5-25 16.05, Penal Code; or
5-26 (2) is found liable in a civil action brought under
5-27 Subsection (a).
6-1 (e) Each violation of an injunction ordered under Subsection
6-2 (c) is punishable by a fine of $500.
6-3 (f) The attorney general, or the county or district attorney
6-4 of the county in which the conduct, as described by Subsection (c),
6-5 is occurring, may file suit under Subsection (c) on behalf of the
6-6 state.
6-7 SECTION 4. Section 17, Article 18.20, Code of Criminal
6-8 Procedure, is amended to read as follows:
6-9 Sec. 17. NONAPPLICABILITY [EXCEPTIONS]. This article
6-10 [(a) It is an exception to the application of Section 16 that:]
6-11 [(1) an operator of a switchboard or an officer,
6-12 employee, or agent of a communication common carrier or provider of
6-13 wire or electronic communications service whose facilities are used
6-14 in the transmission of a wire or electronic communication
6-15 intercepts a communication or discloses or uses an intercepted
6-16 communication in the normal course of employment while engaged in
6-17 an activity that is a necessary incident to the rendition of
6-18 service or to the protection of the rights or property of the
6-19 provider or carrier of the communication, unless the interception
6-20 results from the communication common carrier's or provider of wire
6-21 or electronic communications service's use of service observing or
6-22 random monitoring for purposes other than mechanical or service
6-23 quality control checks;]
6-24 [(2) an officer, employee, or agent of a communication
6-25 common carrier or provider of wire or electronic communications
6-26 service provides information, facilities, or technical assistance
6-27 to an investigative or law enforcement officer who is authorized as
7-1 provided by this article to intercept a wire, oral, or electronic
7-2 communication;]
7-3 [(3) a person acting under color of law intercepts a
7-4 wire, oral, or electronic communication if the person is a party to
7-5 the communication or if one of the parties to the communication has
7-6 given prior consent to the interception; or]
7-7 [(4) a person not acting under color of law intercepts
7-8 a wire, oral, or electronic communication if the person is a party
7-9 to the communication or if one of the parties to the communication
7-10 has given prior consent to the interception unless the
7-11 communication is intercepted for the purpose of committing any
7-12 criminal or tortious act in violation of the constitution or laws
7-13 of the United States or of this state or for the purpose of
7-14 committing any other injurious act.]
7-15 [(b) Article 18.20 of this code] does not apply to conduct
7-16 described as an affirmative defense under Section 16.02(c)
7-17 [16.02(c)(5)], Penal Code.
7-18 SECTION 5. Section 1, Article 18.21, Code of Criminal
7-19 Procedure, is amended to read as follows:
7-20 Sec. 1. DEFINITIONS. In this article:
7-21 (1) "Aural transfer," "communication common carrier,"
7-22 "electronic communication," "electronic communications service,"
7-23 "electronic communications system," "electronic storage," "pen
7-24 register," "readily accessible to the general public," "user," and
7-25 "wire communication" have the meanings assigned by Article 18.20
7-26 [means a transfer containing the human voice at any point between
7-27 and including the point of origin and the point of reception].
8-1 (2) "Authorized peace officer" means:
8-2 (A) a sheriff or a sheriff's deputy;
8-3 (B) a constable or deputy constable;
8-4 (C) a marshal or police officer of an
8-5 incorporated city, town, or village;
8-6 (D) a ranger or officer commissioned by the
8-7 Public Safety Commission or the director of the Department of
8-8 Public Safety;
8-9 (E) an investigator of the district attorney's,
8-10 criminal district attorney's, or county attorney's office;
8-11 (F) a law enforcement agent of the Alcoholic
8-12 Beverage Commission; [or]
8-13 (G) a law enforcement officer commissioned by
8-14 the Parks and Wildlife Commission; or
8-15 (H) an enforcement officer employed by the Texas
8-16 Department of Criminal Justice pursuant to Section 493.015,
8-17 Government Code, as added by Chapter 321, Acts of the 74th
8-18 Legislature, 1995.
8-19 (3) ["Communications common carrier" means a person
8-20 engaged as a common carrier for hire in the transmission of wire or
8-21 electronic communications.]
8-22 [(4)] "Department" means the Department of Public
8-23 Safety.
8-24 (4) [(5) "Electronic communication" means a transfer
8-25 of signs, signals, writing, images, sounds, data, or intelligence
8-26 of any nature transmitted in whole or in part by a wire, radio,
8-27 electromagnetic, photoelectronic, or photo-optical system. The
9-1 term does not include:]
9-2 [(A) the radio portion of a cordless telephone
9-3 communication that is transmitted between the cordless telephone
9-4 handset and its base unit;]
9-5 [(B) a wire or oral communication;]
9-6 [(C) a communication made through a tone-only
9-7 paging device; or]
9-8 [(D) a communication from a tracking device.]
9-9 [(6) "Electronic communications service" means a
9-10 service that provides to users of the service the ability to send
9-11 or receive wire or electronic communications.]
9-12 [(7) "Electronic communications system" means a wire,
9-13 radio, electromagnetic, photo-optical or photoelectronic facility
9-14 for the transmission of wire or electronic communications, and any
9-15 computer facility or related electronic equipment for the
9-16 electronic storage of those communications.]
9-17 [(8) "Electronic storage" means:]
9-18 [(A) a temporary, intermediate storage of a wire
9-19 or electronic communication that is incidental to the electronic
9-20 transmission of the communication; or]
9-21 [(B) storage of a wire or electronic
9-22 communication by an electronic communications service for purposes
9-23 of backup protection of the communication.]
9-24 [(9) "Pen register" means a mechanical or electronic
9-25 device that attaches to a telephone line and is capable of
9-26 recording outgoing numbers dialed from that line but is not capable
9-27 of recording the origin of an incoming communication to that line
10-1 or the content of a communication carried between that line and
10-2 another line.]
10-3 [(10) "Readily accessible to the general public"
10-4 means, with respect to a radio communication, a communication that
10-5 is not:]
10-6 [(A) scrambled or encrypted;]
10-7 [(B) transmitted using modulation techniques
10-8 whose essential parameters have been withheld from the public with
10-9 the intention of preserving the privacy of the communication; or]
10-10 [(C) transmitted over frequencies reserved for
10-11 private use and licensed for private use under federal or state
10-12 law, other than a tone-only paging device communication.]
10-13 [(11)] "Remote computing service" means the provision
10-14 to the public of computer storage or processing services by means
10-15 of an electronic communications system.
10-16 (5) [(12)] "Supervisory official" means:
10-17 (A) an investigative agent or an assistant
10-18 investigative agent who is in charge of an investigation;
10-19 (B) an equivalent person at an investigating
10-20 agency's headquarters or regional office; and
10-21 (C) the principal prosecuting attorney of the
10-22 state or of a political subdivision of the state or the first
10-23 assistant or chief assistant prosecuting attorney in the office of
10-24 either.
10-25 (6) [(13)] "Tracking device" means an electronic or
10-26 mechanical device that permits only tracking the movement of a
10-27 person or object.
11-1 (7) [(14)] "Trap and trace device" means a [mechanical
11-2 or electronic] device that records [attaches to a telephone line
11-3 and is capable of recording] an incoming electronic or other
11-4 impulse that identifies the originating number of an instrument or
11-5 device from which a wire or electronic communication was
11-6 transmitted. The term does not include a device or
11-7 telecommunications network used in providing:
11-8 (A) [(1)] a caller identification service
11-9 authorized by the Public Utility Commission of Texas under Section
11-10 3.302 [87C], Public Utility Regulatory Act of 1995 (Article 1446c-0
11-11 [1446c], Vernon's Texas Civil Statutes);
11-12 (B) [(2)] the services referenced in [Subsection
11-13 (g),] Section 3.302(g) [87C], Public Utility Regulatory Act of 1995
11-14 (Article 1446c-0 [1446c], Vernon's Texas Civil Statutes); or
11-15 (C) [(3)] a caller identification service
11-16 provided by a commercial mobile radio service provider licensed by
11-17 the Federal Communications Commission.
11-18 [(15) "User" means a person who uses an electronic
11-19 communications service and is authorized by the provider of the
11-20 service to use the service.]
11-21 [(16) "Wire communication" means an aural transfer
11-22 made in whole or in part through the use of facilities for the
11-23 transmission of communications by the aid of wire, cable, or other
11-24 like connection between the point of origin and the point of
11-25 reception, including the use of such a connection in a switching
11-26 station, furnished or operated by a person authorized to engage in
11-27 providing or operating the facilities for the transmission of
12-1 communications as a communications common carrier. The term
12-2 includes the electronic storage of a wire communication but does
12-3 not include the radio portion of a cordless telephone communication
12-4 that is transmitted between the cordless telephone handset and its
12-5 base unit.]
12-6 SECTION 6. Subsection (f), Section 2, Article 18.21, Code of
12-7 Criminal Procedure, is amended to read as follows:
12-8 (f) An order for the installation and utilization of a pen
12-9 register or trap and trace device is valid for not more than 60
12-10 [30] days after the date the device is installed or after 10 days
12-11 after the date the order is entered, whichever occurs first, unless
12-12 prior to the expiration of the order the attorney for the state
12-13 applies for and obtains from the court an extension of the order.
12-14 The period of extension may not exceed 60 [30] days for each
12-15 extension granted, except that with the consent of the subscriber
12-16 or customer of the service on which the pen register or trap and
12-17 trace device is utilized, the court may extend an order for a
12-18 period not to exceed one year.
12-19 SECTION 7. Section 3, Article 18.21, Code of Criminal
12-20 Procedure, is amended to read as follows:
12-21 Sec. 3. EMERGENCY PEN REGISTER AND TRAP AND TRACE DEVICE
12-22 INSTALLATION. (a) An authorized peace officer, designated by [the
12-23 director of the department or by] the district or criminal district
12-24 attorney of the county where the installation will be used, may
12-25 install and use a pen register or trap and trace device if the
12-26 peace officer reasonably believes that:
12-27 (1) an emergency requiring the installation of a pen
13-1 register or trap and trace device before an order authorizing the
13-2 installation and use can, with due diligence, be obtained, exists
13-3 involving immediate danger of death or serious injury to any
13-4 person; and
13-5 (2) there are grounds under this article on which an
13-6 order could be entered to authorize the installation and use of a
13-7 pen register or trap and trace device.
13-8 (b) If an authorized peace officer installs a pen register
13-9 or trap and trace device under Subsection (a) [of this section],
13-10 the peace officer must obtain an order approving installation and
13-11 use within 48 hours after the installation begins [occurred]. If
13-12 authorization is not obtained within [those] 48 hours, the officer
13-13 shall terminate use of the pen register or the trap and trace
13-14 device on the expiration [shall immediately terminate at the lapse]
13-15 of the 48 hours or at the time the order is denied, whichever is
13-16 earlier.
13-17 (c) [The knowing installation or use by an authorized peace
13-18 officer of a pen register or trap and trace device under this
13-19 section without application for the authorizing order within 48
13-20 hours of the installation is not permitted and is not an exception
13-21 to the application of Section 16.03, Penal Code.]
13-22 [(d)] The state may not use as evidence in a [any
13-23 subsequent] criminal proceeding any information gained through the
13-24 use of a pen register or trap and trace device installed [issued]
13-25 under [Subsection (b) of] this section if authorization for the pen
13-26 register or trap and trace device is denied.
13-27 SECTION 8. Article 18.21, Code of Criminal Procedure, is
14-1 amended by adding Section 16 to read as follows:
14-2 Sec. 16. LIMITATION. A governmental agency authorized to
14-3 install and use a pen register under this article or other law must
14-4 use reasonably available technology to only record and decode
14-5 electronic or other impulses used to identify the numbers dialed or
14-6 otherwise transmitted.
14-7 SECTION 9. Subsection (c), Section 16.02, Penal Code, is
14-8 amended to read as follows:
14-9 (c) It is an affirmative defense to prosecution under
14-10 Subsection (b) that:
14-11 (1) an operator of a switchboard or an officer,
14-12 employee, or agent of a communication common carrier whose
14-13 facilities are used in the transmission of a wire or electronic
14-14 communication intercepts a communication or discloses or uses an
14-15 intercepted communication in the normal course of employment while
14-16 engaged in an activity that is a necessary incident to the
14-17 rendition of service or to the protection of the rights or property
14-18 of the carrier of the communication, unless the interception
14-19 results from the communication common carrier's use of service
14-20 observing or random monitoring for purposes other than mechanical
14-21 or service quality control checks;
14-22 (2) an officer, employee, or agent of a communication
14-23 common carrier provides information, facilities, or technical
14-24 assistance to an investigative or law enforcement officer who is
14-25 authorized as provided by this article to intercept a wire, oral,
14-26 or electronic communication;
14-27 (3) a person acting under color of law intercepts a
15-1 wire, oral, or electronic communication if the person is a party to
15-2 the communication or if one of the parties to the communication has
15-3 given prior consent to the interception;
15-4 (4) a person not acting under color of law intercepts
15-5 a wire, oral, or electronic communication if the person is a party
15-6 to the communication or if one of the parties to the communication
15-7 has given prior consent to the interception unless the
15-8 communication is intercepted for the purpose of committing any
15-9 criminal or tortious act in violation of the constitution or laws
15-10 of the United States or of this state or for the purpose of
15-11 committing any other injurious act;
15-12 (5) a person acting under color of law intercepts a
15-13 wire, oral, or electronic communication if:
15-14 (A) oral or written [prior] consent for the
15-15 interception is [has been] given by a magistrate before the
15-16 interception;
15-17 (B) an immediate life-threatening situation
15-18 exists;
15-19 (C) the person is a member of a law enforcement
15-20 unit specially trained to:
15-21 (i) respond to and deal with
15-22 life-threatening situations; or
15-23 (ii) install electronic, mechanical, or
15-24 other devices; and
15-25 (D) the interception ceases immediately on
15-26 termination of the life-threatening situation;
15-27 (6) an officer, employee, or agent of the Federal
16-1 Communications Commission intercepts a communication transmitted by
16-2 radio or discloses or uses an intercepted communication in the
16-3 normal course of employment and in the discharge of the monitoring
16-4 responsibilities exercised by the Federal Communications Commission
16-5 in the enforcement of Chapter 5, Title 47, United States Code;
16-6 (7) a person intercepts or obtains access to an
16-7 electronic communication that was made through an electronic
16-8 communication system that is configured to permit the communication
16-9 to be readily accessible to the general public;
16-10 (8) a person intercepts radio communication, other
16-11 than a cordless telephone communication that is transmitted between
16-12 a cordless telephone handset and a base unit, that is transmitted:
16-13 (A) by a station for the use of the general
16-14 public;
16-15 (B) to ships, aircraft, vehicles, or persons in
16-16 distress;
16-17 (C) by a governmental, law enforcement, civil
16-18 defense, private land mobile, or public safety communications
16-19 system that is readily accessible to the general public;
16-20 (D) by a station operating on an authorized
16-21 frequency within the bands allocated to the amateur, citizens band,
16-22 or general mobile radio services; or
16-23 (E) by a marine or aeronautical communications
16-24 system;
16-25 (9) a person intercepts a wire or electronic
16-26 communication the transmission of which causes harmful interference
16-27 to a lawfully operating station or consumer electronic equipment,
17-1 to the extent necessary to identify the source of the interference;
17-2 (10) a user of the same frequency intercepts a radio
17-3 communication made through a system that uses frequencies monitored
17-4 by individuals engaged in the provision or the use of the system,
17-5 if the communication is not scrambled or encrypted; or
17-6 (11) a provider of electronic communications service
17-7 records the fact that a wire or electronic communication was
17-8 initiated or completed in order to protect the provider, another
17-9 provider furnishing service towards the completion of the
17-10 communication, or a user of that service from fraudulent, unlawful,
17-11 or abusive use of the service.
17-12 SECTION 10. Subsections (a), (c), (d), and (e), Section
17-13 16.03, Penal Code, are amended to read as follows:
17-14 (a) A [Except as authorized by a court order obtained under
17-15 Article 18.21, Code of Criminal Procedure, or in an emergency under
17-16 the circumstances described and permitted under that article, a]
17-17 person commits an offense if the person [he] knowingly installs or
17-18 uses [utilizes] a pen register or trap and trace device to record
17-19 or decode electronic or other impulses for the purpose of
17-20 identifying telephone numbers dialed or otherwise transmitted on
17-21 [from or to] a telephone line [instrument].
17-22 (c) It is an affirmative defense to prosecution under
17-23 [exception to the application of] Subsection (a) that the actor is:
17-24 (1) an officer, employee, or agent of a communications
17-25 common carrier and the actor installs or uses [utilizes] a device
17-26 or equipment to record a number [the numbers] dialed from or to a
17-27 telephone instrument in the normal course of business of the
18-1 carrier for purposes of:
18-2 (A) protecting[, for the protection of] property
18-3 or services provided by the carrier; or
18-4 (B) assisting another who the actor reasonably
18-5 believes to be a[, or assists an authorized] peace officer
18-6 authorized to install or use a pen register or trap and trace
18-7 device[in executing an order issued] under Article 18.21, Code of
18-8 Criminal Procedure;
18-9 (2)[. (d) It is an exception to the application of
18-10 Subsection (a) that the installation or utilization of a pen
18-11 register or trap and trace device was made by] an officer, [agent,
18-12 or] employee, or agent of a lawful enterprise and the actor
18-13 installs or uses a device or equipment while engaged in an activity
18-14 that:
18-15 (A) is a necessary incident to the rendition of
18-16 service or to the protection of property of or services provided by
18-17 the enterprise; [,] and
18-18 (B) is [was] not made for the purpose of
18-19 gathering information for a law enforcement agency or private
18-20 investigative agency, other than information related to the theft
18-21 of communication or information services provided by the
18-22 enterprise; or
18-23 (3) a person authorized to install or use a pen
18-24 register or trap and trace device under Article 18.21, Code of
18-25 Criminal Procedure.
18-26 (d) [(e)] An offense under this section is a state jail
18-27 felony.
19-1 SECTION 11. Subsection (e), Section 16.04, Penal Code, is
19-2 amended to read as follows:
19-3 (e) It is an affirmative defense to prosecution under
19-4 [exception to the application of] Subsection (b) that the conduct
19-5 was authorized by:
19-6 (1) the provider of the wire or electronic
19-7 communications service;
19-8 (2) the user of the wire or electronic communications
19-9 service; [or]
19-10 (3) the addressee or intended recipient of the wire or
19-11 electronic communication; or
19-12 (4) Article 18.21, Code of Criminal Procedure.
19-13 SECTION 12. Subsections (b) through (e), Section 16.05,
19-14 Penal Code, are amended to read as follows:
19-15 (b) A [Except as provided by Subsection (c), a] person who
19-16 provides electronic communications service to the public commits an
19-17 offense if the person knowingly [he intentionally] divulges the
19-18 contents of a communication[, other than a communication to that
19-19 person or that person's agent, while the communication is in
19-20 transmission on that service,] to another who is not [any person
19-21 other than the addressee or] the intended recipient of the
19-22 communication [or the addressee's or intended recipient's agent].
19-23 (c) It is an affirmative defense to prosecution under
19-24 Subsection (b) that the actor divulged [A person who provides
19-25 electronic communications service to the public may divulge] the
19-26 contents of the [a] communication:
19-27 (1) as authorized by federal or state law;
20-1 (2) to a person employed, authorized, or whose
20-2 facilities are used to forward the communication to the
20-3 communication's destination; or
20-4 (3) to a law enforcement agency if [the contents were
20-5 obtained by the service provider and] the contents reasonably
20-6 appear to pertain to the commission of a crime.
20-7 (d) Except as provided by Subsection [Subsections] (e) [and
20-8 (f)], an offense under Subsection (b) that involves a scrambled or
20-9 encrypted radio communication is a state jail felony.
20-10 (e) If committed for a tortious or illegal purpose or to
20-11 gain a benefit, an offense under Subsection (b) that involves a
20-12 radio communication that is not scrambled or encrypted:
20-13 (1) is a Class A misdemeanor if the communication is
20-14 not [the radio portion of a cellular telephone communication,] a
20-15 public land mobile radio service communication[,] or a paging
20-16 service communication; or
20-17 (2) is a Class C misdemeanor if the communication is
20-18 [the radio portion of a cellular telephone communication,] a public
20-19 land [and] mobile radio service [or] communication or a paging
20-20 service communication.
20-21 SECTION 13. Subsection (f), Section 16.05, Penal Code, is
20-22 repealed.
20-23 SECTION 14. This Act takes effect September 1, 1997.
20-24 SECTION 15. (a) The changes in law made by Sections 8
20-25 through 11 and Section 13 of this Act apply only to an offense
20-26 committed on or after the effective date of this Act. For purposes
20-27 of this section, an offense is committed before the effective date
21-1 of this Act if any element of the offense occurs before the
21-2 effective date.
21-3 (b) An offense committed before the effective date of this
21-4 Act is covered by the law in effect when the offense was committed,
21-5 and the former law is continued in effect for that purpose.
21-6 SECTION 16. The importance of this legislation and the
21-7 crowded condition of the calendars in both houses create an
21-8 emergency and an imperative public necessity that the
21-9 constitutional rule requiring bills to be read on three several
21-10 days in each house be suspended, and this rule is hereby suspended.