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.