By Armbrister                                   S.B. No. 1120

      75R8338 JMC-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the interception of wire, oral, or electronic

 1-3     communications, to the use of pen registers and trap and trace

 1-4     devices, and to the civil and criminal consequences of improperly

 1-5     engaging in those activities.

 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-7           SECTION 1.  Subdivisions (1), (8), (14), (15), and (19),

 1-8     Section 1, Article 18.20, Code of Criminal Procedure, are  amended

 1-9     to read as follows:

1-10                 (1)  "Wire communication" means an aural transfer made

1-11     in whole or in part through the use of facilities for the

1-12     transmission of communications by the aid of wire, cable, or other

1-13     like connection between the point of origin and the point of

1-14     reception, including the use of such a connection in a switching

1-15     station, furnished or operated by a person authorized to engage in

1-16     providing or operating the facilities for the transmission of

1-17     communications as a communications common carrier.  The term

1-18     includes the electronic storage of a wire communication [, but does

1-19     not include the radio portion of a cordless telephone communication

1-20     that is transmitted between the cordless telephone handset and its

1-21     base unit].

1-22                 (8)  "Prosecutor" means a district  attorney, criminal

1-23     district attorney, or county attorney performing the duties of a

1-24     district attorney, with jurisdiction in a [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;]

2-26                       [(B)]  a wire or oral communication;

2-27                       (B) [(C)]  a communication made through a

 3-1     tone-only paging device; or

 3-2                       (C) [(D)]  a communication from a tracking

 3-3     device.

 3-4                 (19)  "Readily accessible to the general public" means,

 3-5     with respect to a radio communication, a communication that is not:

 3-6                       (A)  scrambled or encrypted;

 3-7                       (B)  transmitted using modulation techniques

 3-8     whose essential parameters have been withheld from the public with

 3-9     the intention of preserving the privacy of the communication; [or]

3-10                       (C)  carried on a subcarrier or other signal

3-11     subsidiary to a radio transmission;

3-12                       (D)  transmitted over a communication system

3-13     provided by a common carrier, unless the communication is a tone

3-14     only paging system communication;

3-15                       (E)  transmitted on frequencies allocated under

3-16     part 25, subpart D, E, or F of part 74, or part 94 of the Rules of

3-17     the Federal Communications Commission, unless, in the case of a

3-18     communication transmitted on a frequency allocated under part 74

3-19     that is not exclusively allocated to broadcast auxiliary services,

3-20     the communication is a two-way voice communication by radio; or

3-21                       (F)  an electronic communication [frequencies

3-22     reserved for private use and licensed for private use under federal

3-23     or state law, other than a tone-only paging device communication].

3-24           SECTION 2.  Section 3(b), Article 18.20, Code of Criminal

3-25     Procedure, is amended to read as follows:

3-26           (b)  Except as provided by Subsection (c) [of this section],

3-27     a [only the] judge appointed under Subsection (a) [of competent

 4-1     jurisdiction for the administrative judicial district in which the

 4-2     proposed interception will be made] may act on an application for

 4-3     authorization to intercept wire, oral, or electronic communications

 4-4     if the judge is appointed as the judge of competent jurisdiction

 4-5     within the administrative judicial district in which the following

 4-6     is located:

 4-7                 (1)  the site of:

 4-8                       (A)  the proposed interception; or

 4-9                       (B)  the interception device to be installed or

4-10     monitored;

4-11                 (2)  the communication device to be intercepted;

4-12                 (3)  the billing, residential, or business address of

4-13     the subscriber to the electronic communications service to be

4-14     intercepted;

4-15                 (4)  the headquarters of the law enforcement agency

4-16     that  makes a request for or executes an order authorizing an

4-17     interception; or

4-18                 (5)  the headquarters of the service provider.

4-19           SECTION 3.  Section 16, Article 18.20, Code of Criminal

4-20     Procedure, is amended to read as follows:

4-21           Sec. 16.  RECOVERY OF CIVIL DAMAGES AUTHORIZED.  (a)  A

4-22     person whose wire, oral, or electronic communication is

4-23     intercepted, disclosed, or used in violation of this article, or in

4-24     violation of Chapter 16, Penal Code, has a civil cause of action

4-25     against any person who  intercepts, discloses, or uses or solicits

4-26     [procures] another person to intercept, disclose, or use the

4-27     communication and is entitled to recover from the person:

 5-1                 (1)  actual damages but not less than liquidated

 5-2     damages computed at a rate of $100 a day for each day of violation

 5-3     or $1,000, whichever is higher;

 5-4                 (2)  punitive damages; and

 5-5                 (3)  a reasonable attorney's fee and other litigation

 5-6     costs reasonably incurred.

 5-7           (b)  A good faith reliance on a court order or legislative

 5-8     authorization constitutes a complete defense to an [any civil or

 5-9     criminal] action brought under this section [article].

5-10           (c)  A person is subject to suit by the federal or state

5-11     government in a court of competent jurisdiction for appropriate

5-12     injunctive relief if the person engages in conduct that:

5-13                 (1)  constitutes an offense under Section 16.05, Penal

5-14     Code, but is not for a tortious or illegal purpose or for the

5-15     purpose of direct or indirect commercial advantage or private

5-16     commercial gain; and

5-17                 (2)  involves a radio communication that is:

5-18                       (A)  transmitted on frequencies allocated under

5-19     Subpart D of Part 74 of the rules of the Federal Communications

5-20     Commission; and

5-21                       (B)  not scrambled or encrypted.

5-22           (d)  A defendant is liable for a civil penalty of $500 if it

5-23     is shown at the trial of the civil suit brought under Subsection

5-24     (c) that the defendant:

5-25                 (1)  has been convicted of an offense under Section

5-26     16.05, Penal Code; or

5-27                 (2)  is found liable in a civil action brought under

 6-1     Subsection (a).

 6-2           (e)  Each violation of an injunction ordered under Subsection

 6-3     (c) is punishable by a fine of $500.

 6-4           (f)  The attorney general, or the county or district attorney

 6-5     of the county in which the conduct, as described by Subsection (c),

 6-6     is occurring, may file suit under Subsection (c) on behalf of the

 6-7     state.

 6-8           SECTION 4.  Section 17, Article 18.20, Code of Criminal

 6-9     Procedure, is amended to read as follows:

6-10           Sec. 17.  NONAPPLICABILITY [EXCEPTIONS].  This article [(a)

6-11     It is an exception to the application of Section 16 that: (1) an

6-12     operator of a switchboard or an officer, employee, or agent of a

6-13     communication common carrier or provider of wire or electronic

6-14     communications service whose facilities are used in the

6-15     transmission of a wire or electronic communication intercepts a

6-16     communication or discloses or uses an intercepted communication in

6-17     the normal course of employment while engaged in an activity that

6-18     is a necessary incident to the rendition of service or to the

6-19     protection of the rights or property of the provider or carrier of

6-20     the communication, unless the interception results from the

6-21     communication common carrier's or provider of wire or electronic

6-22     communications service's use of service observing or random

6-23     monitoring for purposes other than mechanical or service quality

6-24     control checks; (2) an officer, employee, or agent of a

6-25     communication common carrier or provider of wire or electronic

6-26     communications service provides information, facilities, or

6-27     technical assistance to an investigative or law enforcement officer

 7-1     who is authorized as provided by this article to intercept a wire,

 7-2     oral, or electronic communication; (3) a person acting under color

 7-3     of law intercepts a wire, oral, or electronic communication if the

 7-4     person is a party to the communication or if one of the parties to

 7-5     the communication has given prior consent to the interception; or

 7-6     (4) a person not acting under color of law intercepts a wire, oral,

 7-7     or electronic communication if the person is a party to the

 7-8     communication or if one of the parties to the communication has

 7-9     given prior consent to the interception unless the communication is

7-10     intercepted for the purpose of committing any criminal or tortious

7-11     act in violation of the constitution or laws of the United States

7-12     or of this state or for the purpose of committing any other

7-13     injurious act.]

7-14           [(b)  Article 18.20 of this code] does not apply to conduct

7-15     described as an affirmative defense under Section 16.02(c)

7-16     [16.02(c)(5)], Penal Code.

7-17           SECTION 5.  Section 1, Article 18.21, Code of Criminal

7-18     Procedure, is amended to read as follows:

7-19           Sec. 1.  DEFINITIONS.  In this article:

7-20                 (1)  "Aural transfer," "communication common carrier,"

7-21     "electronic communication," "electronic communications service,"

7-22     "electronic communications system," "electronic storage," "pen

7-23     register," "readily accessible to the general public," "user," and

7-24     "wire communication" have the meanings assigned by Article 18.20

7-25     [means a transfer containing the human voice at any point between

7-26     and including the point of origin and the point of reception].

7-27                 (2)  "Authorized peace officer" means:

 8-1                       (A)  a sheriff or a sheriff's deputy;

 8-2                       (B)  a constable or deputy constable;

 8-3                       (C)  a marshal or police officer of an

 8-4     incorporated city, town, or village;

 8-5                       (D)  a ranger or officer commissioned by the

 8-6     Public Safety Commission or the director of the Department of

 8-7     Public Safety;

 8-8                       (E)  an investigator of the district attorney's,

 8-9     criminal district attorney's, or county attorney's office;

8-10                       (F)  a law enforcement agent of the Alcoholic

8-11     Beverage Commission; or

8-12                       (G)  a law enforcement officer commissioned by

8-13     the Parks and Wildlife Commission.

8-14                 (3)  ["Communications common carrier" means a person

8-15     engaged as a common carrier for hire in the transmission of wire or

8-16     electronic communications.]

8-17                 [(4)]  "Department" means the Department of Public

8-18     Safety.

8-19                 (4) [(5)  "Electronic communication" means a transfer

8-20     of signs, signals, writing, images, sounds, data, or intelligence

8-21     of any nature transmitted in whole or in part by a wire, radio,

8-22     electromagnetic, photoelectronic, or photo-optical system.  The

8-23     term does not include:]

8-24                       [(A)  the radio portion of a cordless telephone

8-25     communication that is transmitted between the cordless telephone

8-26     handset and its base unit;]

8-27                       [(B)  a wire or oral communication;]

 9-1                       [(C)  a communication made through a tone-only

 9-2     paging device; or]

 9-3                       [(D)  a communication from a tracking device.]

 9-4                 [(6)  "Electronic communications service" means a

 9-5     service that provides to users of the service the ability to send

 9-6     or receive wire or electronic communications.]

 9-7                 [(7)  "Electronic communications system" means a wire,

 9-8     radio, electromagnetic, photo-optical or photoelectronic facility

 9-9     for the transmission of wire or electronic communications, and any

9-10     computer facility or related electronic equipment for the

9-11     electronic storage of those communications.]

9-12                 [(8)  "Electronic storage" means:]

9-13                       [(A)  a temporary, intermediate storage of a wire

9-14     or electronic communication that is incidental to the electronic

9-15     transmission of the communication; or]

9-16                       [(B)  storage of a wire or electronic

9-17     communication by an electronic communications service for purposes

9-18     of backup protection of the communication.]

9-19                 [(9)  "Pen register" means a mechanical or electronic

9-20     device that attaches to a telephone line and is capable of

9-21     recording outgoing numbers dialed from that line but is not capable

9-22     of recording the origin of an incoming communication to that line

9-23     or the content of a communication carried between that line and

9-24     another line.]

9-25                 [(10)  "Readily accessible to the general public"

9-26     means, with respect to a radio communication, a communication that

9-27     is not:]

 10-1                      [(A)  scrambled or encrypted;]

 10-2                      [(B)  transmitted using modulation techniques

 10-3    whose essential parameters have been withheld from the public with

 10-4    the intention of preserving the privacy of the communication; or]

 10-5                      [(C)  transmitted over frequencies reserved for

 10-6    private use and licensed for private use under federal or state

 10-7    law, other than a tone-only paging device communication.]

 10-8                [(11)]  "Remote computing service" means the provision

 10-9    to the public of computer storage or processing services by means

10-10    of an electronic communications system.

10-11                (5) [(12)]  "Supervisory official" means:

10-12                      (A)  an investigative agent or an assistant

10-13    investigative agent who is in charge of an investigation;

10-14                      (B)  an equivalent person at an investigating

10-15    agency's headquarters or regional office; and

10-16                      (C)  the principal prosecuting attorney of the

10-17    state or of a political subdivision of the state or the first

10-18    assistant or chief assistant prosecuting attorney in the office of

10-19    either.

10-20                (6) [(13)]  "Tracking device" means an electronic or

10-21    mechanical device that permits only tracking the movement of a

10-22    person or object.

10-23                (7) [(14)]  "Trap and trace device" means a [mechanical

10-24    or electronic] device that records [attaches to a telephone line

10-25    and is capable of recording] an incoming electronic or other

10-26    impulse that identifies the originating number of an instrument or

10-27    device from which a wire or electronic communication was

 11-1    transmitted.  The term does not include a device or

 11-2    telecommunications network used in providing:

 11-3                      (A) [(1)]  a caller identification service

 11-4    authorized by the Public Utility Commission of Texas under Section

 11-5    3.302 [87C], Public Utility Regulatory Act of 1995 (Article 1446c-0

 11-6    [1446c], Vernon's Texas Civil Statutes);

 11-7                      (B) [(2)]  the services referenced in [Subsection

 11-8    (g),] Section 3.302(g) [87C], Public Utility Regulatory Act of 1995

 11-9    (Article 1446c-0 [1446c], Vernon's Texas Civil Statutes); or

11-10                      (C) [(3)]  a caller identification service

11-11    provided by a commercial mobile radio service provider licensed by

11-12    the Federal Communications Commission.

11-13                [(15)  "User" means a person who uses an electronic

11-14    communications service and is authorized by the provider of the

11-15    service to use the service.]

11-16                [(16)  "Wire communication" means an aural transfer

11-17    made in whole or in part through the use of facilities for the

11-18    transmission of communications by the aid of wire, cable, or other

11-19    like connection between the point of origin and the point of

11-20    reception, including the use of such a connection in a switching

11-21    station, furnished or operated by a person authorized to engage in

11-22    providing or operating the facilities for the transmission of

11-23    communications as a communications common carrier.  The term

11-24    includes the electronic storage of a wire communication but does

11-25    not include the radio portion of a cordless telephone communication

11-26    that is transmitted between the cordless telephone handset and its

11-27    base unit.]

 12-1          SECTION 6.  Section 2(f), Article 18.21, Code of Criminal

 12-2    Procedure, is amended to read  as follows:

 12-3          (f)  An order for the installation and utilization of a pen

 12-4    register or trap and trace device is valid for not more than 60

 12-5    [30] days after the date the device is installed or after 10 days

 12-6    after the date the order is entered, whichever occurs first, unless

 12-7    prior to the expiration of the order the attorney for the state

 12-8    applies for and obtains from the court an extension of the order.

 12-9    The period of extension may not exceed 60 [30] days for each

12-10    extension granted, except that with the consent of the subscriber

12-11    or customer of the service on which the pen register or trap and

12-12    trace device is utilized, the court may extend an order for a

12-13    period not to exceed one year.

12-14          SECTION 7.  Section 3, Article 18.21, Code of Criminal

12-15    Procedure, is amended to read as follows:

12-16          Sec. 3.  Emergency pen register and trap and trace device

12-17    installation.  (a)  An authorized peace officer, designated by [the

12-18    director of the department or by] the district or criminal district

12-19    attorney of the county where the installation will be used, may

12-20    install and use a pen register or trap and trace device if the

12-21    peace officer reasonably believes that:

12-22                (1)  an emergency requiring the installation of a pen

12-23    register or trap and trace device before an order authorizing the

12-24    installation and use can, with due diligence, be obtained, exists

12-25    involving immediate danger of death or serious injury to any

12-26    person; and

12-27                (2)  there are grounds under this article on which an

 13-1    order could be entered to authorize the installation and use of a

 13-2    pen register or trap and trace device.

 13-3          (b)  If an authorized peace officer installs a pen register

 13-4    or trap and trace device under Subsection (a) [of this section],

 13-5    the peace officer must obtain an order approving installation and

 13-6    use within 48 hours after the installation begins [occurred].  If

 13-7    authorization is not obtained within [those] 48 hours, the officer

 13-8    shall terminate use of the pen register or the trap and trace

 13-9    device on the expiration [shall immediately terminate at the lapse]

13-10    of the 48 hours or at the time the order is denied, whichever is

13-11    earlier.

13-12          (c)  [The knowing installation or use by an authorized peace

13-13    officer of a pen register or trap and trace device under this

13-14    section without application for the authorizing order within 48

13-15    hours of the installation is not permitted and is not an exception

13-16    to the application of Section 16.03, Penal Code.]

13-17          [(d)]  The state may not use as evidence in a [any

13-18    subsequent] criminal proceeding any information gained through the

13-19    use of a pen register or trap and trace device installed [issued]

13-20    under [Subsection (b) of] this section if authorization for the pen

13-21    register or trap and trace device is denied.

13-22          SECTION 8.  Article 18.21, Code of Criminal Procedure, is

13-23    amended by adding Section 16 to read as follows:

13-24          Sec. 16.  LIMITATION.  A governmental agency authorized to

13-25    install and use a pen register under this article or other law,

13-26    must use reasonably available technology to only record and decode

13-27    electronic or other impulses used to identify the numbers dialed or

 14-1    otherwise transmitted.

 14-2          SECTION 9.  Section 16.02(c), Penal Code, is amended to read

 14-3    as follows:

 14-4          (c)  It is an affirmative defense to prosecution under

 14-5    Subsection (b) that:

 14-6                (1)  an operator of a switchboard or an officer,

 14-7    employee, or agent of a communication common carrier whose

 14-8    facilities are used in the transmission of a wire or electronic

 14-9    communication intercepts a communication or discloses or uses an

14-10    intercepted communication in the normal course of employment while

14-11    engaged in an activity that is a necessary incident to the

14-12    rendition of service or to the protection of the rights or property

14-13    of the carrier of the communication, unless the interception

14-14    results from the communication common carrier's use of service

14-15    observing or random monitoring for purposes other than mechanical

14-16    or service quality control checks;

14-17                (2)  an officer, employee, or agent of a communication

14-18    common carrier provides information, facilities, or technical

14-19    assistance to an investigative or law enforcement officer who is

14-20    authorized as provided by this article to intercept a wire, oral,

14-21    or electronic communication;

14-22                (3)  a person acting under color of law intercepts a

14-23    wire, oral, or electronic communication if the person is a party to

14-24    the communication or if one of the parties to the communication has

14-25    given prior consent to the interception;

14-26                (4)  a person not acting under color of law intercepts

14-27    a wire, oral, or electronic communication if the person is a party

 15-1    to the communication or if one of the parties to the communication

 15-2    has given prior consent to the interception unless the

 15-3    communication is intercepted for the purpose of committing any

 15-4    criminal or tortious act in violation of the constitution or laws

 15-5    of the United States or of this state or for the purpose of

 15-6    committing any other injurious act;

 15-7                (5)  a person acting under color of law intercepts a

 15-8    wire, oral, or electronic communication if:

 15-9                      (A)  oral or written [prior] consent for the

15-10    interception is [has been] given by a magistrate before the

15-11    interception;

15-12                      (B)  an immediate life-threatening situation

15-13    exists;

15-14                      (C)  the person is a member of a law enforcement

15-15    unit specially trained to:

15-16                            (i)  respond to and deal with

15-17    life-threatening situations;  or

15-18                            (ii)  install electronic, mechanical, or

15-19    other devices;  and

15-20                      (D)  the interception ceases immediately on

15-21    termination of the life-threatening situation;

15-22                (6)  an officer, employee, or agent of the Federal

15-23    Communications Commission intercepts a communication transmitted by

15-24    radio or discloses or uses an intercepted communication in the

15-25    normal course of employment and in the discharge of the monitoring

15-26    responsibilities exercised by the Federal Communications Commission

15-27    in the enforcement of Chapter 5, Title 47, United States Code;

 16-1                (7)  a person intercepts or obtains access to an

 16-2    electronic communication that was made through an electronic

 16-3    communication system that is configured to permit the communication

 16-4    to be readily accessible to the general public;

 16-5                (8)  a person intercepts radio communication, other

 16-6    than a cordless telephone communication that is transmitted between

 16-7    a cordless telephone handset and a base unit, that is transmitted:

 16-8                      (A)  by a station for the use of the general

 16-9    public;

16-10                      (B)  to ships, aircraft, vehicles, or persons in

16-11    distress;

16-12                      (C)  by a governmental, law enforcement, civil

16-13    defense, private land mobile, or public safety communications

16-14    system that is readily accessible to the general public;

16-15                      (D)  by a station operating on an authorized

16-16    frequency within the bands allocated to the amateur, citizens band,

16-17    or general mobile radio services; or

16-18                      (E)  by a marine or aeronautical communications

16-19    system;

16-20                (9)  a person intercepts a wire or electronic

16-21    communication the transmission of which causes harmful interference

16-22    to a lawfully operating station or consumer electronic equipment,

16-23    to the extent necessary to identify the source of the interference;

16-24                (10)  a user of the same frequency intercepts a radio

16-25    communication made through a system that uses frequencies monitored

16-26    by individuals engaged in the provision or the use of the system,

16-27    if the communication is not scrambled or encrypted; or

 17-1                (11)  a provider of electronic communications service

 17-2    records the fact that a wire or electronic communication was

 17-3    initiated or completed in order to protect the provider, another

 17-4    provider furnishing service towards the completion of the

 17-5    communication, or a user of that service from fraudulent, unlawful,

 17-6    or abusive use of the service.

 17-7          SECTION 10.  Sections 16.03(a) and (c)-(e), Penal Code, are

 17-8    amended to read as follows:

 17-9          (a)  A [Except as authorized by a court order obtained under

17-10    Article 18.21, Code of Criminal Procedure, or in an emergency under

17-11    the circumstances described and permitted under that article, a]

17-12    person commits an offense if the person [he] knowingly installs or

17-13    uses [utilizes] a pen register or trap and trace device to record

17-14    or decode electronic or other impulses for the purpose of

17-15    identifying telephone numbers dialed or otherwise transmitted on

17-16    [from or to] a telephone line [instrument].

17-17          (c)  It is an affirmative defense to prosecution under

17-18    [exception to the application of] Subsection (a) that the actor is:

17-19                (1)  an officer, employee, or agent of a communications

17-20    common carrier and the actor installs or uses [utilizes] a device

17-21    or equipment to record a number [the numbers] dialed from or to a

17-22    telephone instrument in the normal course of business of the

17-23    carrier for purposes of:

17-24                      (A)  protecting [, for the protection of]

17-25    property or services provided by the carrier; or

17-26                      (B)  assisting another who the actor reasonably

17-27    believes to be a [, or assists an authorized] peace officer

 18-1    authorized to install or use a pen register or trap and trace

 18-2    device [in executing an order issued] under Article 18.21, Code of

 18-3    Criminal Procedure;[.]

 18-4                (2) [(d)  It is an exception to the application of

 18-5    Subsection (a) that the installation or utilization of a pen

 18-6    register or trap and trace device was made by] an officer, [agent,

 18-7    or] employee, or agent of a lawful enterprise and the actor

 18-8    installs or uses a device or equipment while engaged in an activity

 18-9    that:

18-10                      (A)  is a necessary incident to the rendition of

18-11    service or to the protection of property of or services provided by

18-12    the enterprise; [,] and

18-13                      (B)  is [was] not made for the purpose of

18-14    gathering information for a law enforcement agency or private

18-15    investigative agency, other than information related to the theft

18-16    of communication or information services provided by the

18-17    enterprise; or

18-18                (3)  a person authorized to install or use a pen

18-19    register or trap and trace device under Article 18.21, Code of

18-20    Criminal Procedure.

18-21          (d) [(e)]  An offense under this section is a state jail

18-22    felony.

18-23          SECTION 11.  Section 16.04(e), Penal Code, is amended to read

18-24    as follows:

18-25          (e)  It is an affirmative defense to prosecution under

18-26    [exception to the application of] Subsection (b) that the conduct

18-27    was authorized by:

 19-1                (1)  the provider of the wire or electronic

 19-2    communications service;

 19-3                (2)  the user of the wire or electronic communications

 19-4    service; [or]

 19-5                (3)  the addressee or intended recipient of the wire or

 19-6    electronic communication; or

 19-7                (4)  Article 18.21, Code of Criminal Procedure.

 19-8          SECTION 12.  Sections 16.05(b)-(e), Penal Code, are amended

 19-9    to read as follows:

19-10          (b)  A [Except as provided by Subsection (c), a] person who

19-11    provides electronic communications service to the public commits an

19-12    offense if the person knowingly [he intentionally] divulges the

19-13    contents of a communication [, other than a communication to that

19-14    person or that person's agent, while the communication is in

19-15    transmission on that service,] to another who is not [any person

19-16    other than the addressee or] the intended recipient of the

19-17    communication [or the addressee's or intended recipient's agent].

19-18          (c)  It is an affirmative defense to prosecution under

19-19    Subsection (b) that the actor divulged [A person who provides

19-20    electronic communications service to the public may divulge] the

19-21    contents of the [a] communication:

19-22                (1)  as authorized by federal or state law;

19-23                (2)  to a person employed, authorized, or whose

19-24    facilities are used to forward the communication to the

19-25    communication's destination; or

19-26                (3)  to a law enforcement agency if [the contents were

19-27    obtained by the service provider and] the contents reasonably

 20-1    appear to pertain to the commission of a crime.

 20-2          (d)  Except as provided by Subsection [Subsections] (e) [and

 20-3    (f)], an offense under Subsection (b) that involves a scrambled or

 20-4    encrypted  radio communication is a state jail felony.

 20-5          (e)  If committed for a tortious or illegal purpose or to

 20-6    gain a benefit, an offense under Subsection (b) that involves a

 20-7    radio communication that is not scrambled or encrypted:

 20-8                (1)  is a Class A misdemeanor if the communication is

 20-9    not [the radio portion of a cellular telephone communication,] a

20-10    public land mobile radio service communication[,] or a paging

20-11    service communication; or

20-12                (2)  is a Class C misdemeanor if the communication is

20-13    [the radio portion of a cellular telephone communication,] a public

20-14    land [and] mobile radio service [or] communication or a paging

20-15    service communication.

20-16          SECTION 13.  Section 16.05(f), Penal Code, is repealed.

20-17          SECTION 14.  This Act takes effect September 1, 1997.

20-18          SECTION 15.  (a) The changes in law made by Sections 8-11 and

20-19    Section 13 of this Act apply only to an offense committed on or

20-20    after the effective date of this Act.  For purposes of this

20-21    section, an offense is committed before the effective date of this

20-22    Act if any element of the offense occurs before the effective date.

20-23          (b)  An offense committed before the effective date of this

20-24    Act is covered by the law in effect when the offense was committed,

20-25    and the former law is continued in effect for that purpose.

20-26          SECTION 16.  The importance of this legislation and the

20-27    crowded condition of the calendars in both houses create an

 21-1    emergency and an imperative public necessity that the

 21-2    constitutional rule requiring bills to be read on three several

 21-3    days in each house be suspended, and this rule is hereby suspended.