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.