1-1 By: Armbrister S.B. No. 1120
1-2 (In the Senate - Filed March 11, 1997; March 13, 1997, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 24, 1997, reported favorably, as amended, by the following
1-5 vote: Yeas 6, Nays 0; April 24, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Whitmire
1-7 Amend S.B. No. 1120 in SECTION 1 of the bill, in amended Section
1-8 1(8), Article 18.20, Code of Criminal Procedure (introduced
1-9 version, page 1, line 35), by striking "a [the]" and substituting
1-10 "the".
1-11 A BILL TO BE ENTITLED
1-12 AN ACT
1-13 relating to the interception of wire, oral, or electronic
1-14 communications, to the use of pen registers and trap and trace
1-15 devices, and to the civil and criminal consequences of improperly
1-16 engaging in those activities.
1-17 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-18 SECTION 1. Subdivisions (1), (8), (14), (15), and (19),
1-19 Section 1, Article 18.20, Code of Criminal Procedure, are amended
1-20 to read as follows:
1-21 (1) "Wire communication" means an aural transfer made
1-22 in whole or in part through the use of facilities for the
1-23 transmission of communications by the aid of wire, cable, or other
1-24 like connection between the point of origin and the point of
1-25 reception, including the use of such a connection in a switching
1-26 station, furnished or operated by a person authorized to engage in
1-27 providing or operating the facilities for the transmission of
1-28 communications as a communications common carrier. The term
1-29 includes the electronic storage of a wire communication[, but does
1-30 not include the radio portion of a cordless telephone communication
1-31 that is transmitted between the cordless telephone handset and its
1-32 base unit].
1-33 (8) "Prosecutor" means a district attorney, criminal
1-34 district attorney, or county attorney performing the duties of a
1-35 district attorney, with jurisdiction in a [the] county within an
1-36 administrative judicial district described by Section 3(b) [in
1-37 which the facility or place where the communication to be
1-38 intercepted is located].
1-39 (14) "Pen register" means a [mechanical or electronic]
1-40 device that attaches to a telephone line and records or decodes
1-41 electronic or other impulses to identify numbers dialed or
1-42 otherwise transmitted on the telephone line. The term does not
1-43 include a device used by a provider or customer of:
1-44 (A) a wire or electronic communication service
1-45 for purposes of charging a fee for the service; or
1-46 (B) a wire communication service during the
1-47 ordinary course of the provider's or customer's business, including
1-48 cost accounting and security control [is capable of recording
1-49 outgoing numbers dialed from that line but is not capable of
1-50 recording the origin of an incoming communication to that line or
1-51 the content of a communication carried between that line and
1-52 another line].
1-53 (15) "Electronic communication" means a transfer of
1-54 signs, signals, writing, images, sounds, data, or intelligence of
1-55 any nature transmitted in whole or in part by a wire, radio,
1-56 electromagnetic, photoelectronic, or photo-optical system. The
1-57 term does not include:
1-58 (A) [the radio portion of a cordless telephone
1-59 communication that is transmitted between the cordless telephone
1-60 handset and its base unit;]
1-61 [(B)] a wire or oral communication;
1-62 (B) [(C)] a communication made through a
1-63 tone-only paging device; or
1-64 (C) [(D)] a communication from a tracking
2-1 device.
2-2 (19) "Readily accessible to the general public" means,
2-3 with respect to a radio communication, a communication that is not:
2-4 (A) scrambled or encrypted;
2-5 (B) transmitted using modulation techniques
2-6 whose essential parameters have been withheld from the public with
2-7 the intention of preserving the privacy of the communication; [or]
2-8 (C) carried on a subcarrier or other signal
2-9 subsidiary to a radio transmission;
2-10 (D) transmitted over a communication system
2-11 provided by a common carrier, unless the communication is a
2-12 tone-only paging system communication;
2-13 (E) transmitted on frequencies allocated under
2-14 Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of
2-15 the Federal Communications Commission, unless, in the case of a
2-16 communication transmitted on a frequency allocated under Part 74
2-17 that is not exclusively allocated to broadcast auxiliary services,
2-18 the communication is a two-way voice communication by radio; or
2-19 (F) an electronic communication [frequencies
2-20 reserved for private use and licensed for private use under federal
2-21 or state law, other than a tone-only paging device communication].
2-22 SECTION 2. Subsection (b), Section 3, Article 18.20, Code of
2-23 Criminal Procedure, is amended to read as follows:
2-24 (b) Except as provided by Subsection (c) [of this section],
2-25 a [only the] judge appointed under Subsection (a) [of competent
2-26 jurisdiction for the administrative judicial district in which the
2-27 proposed interception will be made] may act on an application for
2-28 authorization to intercept wire, oral, or electronic communications
2-29 if the judge is appointed as the judge of competent jurisdiction
2-30 within the administrative judicial district in which the following
2-31 is located:
2-32 (1) the site of:
2-33 (A) the proposed interception; or
2-34 (B) the interception device to be installed or
2-35 monitored;
2-36 (2) the communication device to be intercepted;
2-37 (3) the billing, residential, or business address of
2-38 the subscriber to the electronic communications service to be
2-39 intercepted;
2-40 (4) the headquarters of the law enforcement agency
2-41 that makes a request for or executes an order authorizing an
2-42 interception; or
2-43 (5) the headquarters of the service provider.
2-44 SECTION 3. Section 16, Article 18.20, Code of Criminal
2-45 Procedure, is amended to read as follows:
2-46 Sec. 16. RECOVERY OF CIVIL DAMAGES AUTHORIZED. (a) A
2-47 person whose wire, oral, or electronic communication is
2-48 intercepted, disclosed, or used in violation of this article, or in
2-49 violation of Chapter 16, Penal Code, has a civil cause of action
2-50 against any person who intercepts, discloses, or uses or solicits
2-51 [procures] another person to intercept, disclose, or use the
2-52 communication and is entitled to recover from the person:
2-53 (1) actual damages but not less than liquidated
2-54 damages computed at a rate of $100 a day for each day of violation
2-55 or $1,000, whichever is higher;
2-56 (2) punitive damages; and
2-57 (3) a reasonable attorney's fee and other litigation
2-58 costs reasonably incurred.
2-59 (b) A good faith reliance on a court order or legislative
2-60 authorization constitutes a complete defense to an [any civil or
2-61 criminal] action brought under this section [article].
2-62 (c) A person is subject to suit by the federal or state
2-63 government in a court of competent jurisdiction for appropriate
2-64 injunctive relief if the person engages in conduct that:
2-65 (1) constitutes an offense under Section 16.05, Penal
2-66 Code, but is not for a tortious or illegal purpose or for the
2-67 purpose of direct or indirect commercial advantage or private
2-68 commercial gain; and
2-69 (2) involves a radio communication that is:
3-1 (A) transmitted on frequencies allocated under
3-2 Subpart D of Part 74 of the rules of the Federal Communications
3-3 Commission; and
3-4 (B) not scrambled or encrypted.
3-5 (d) A defendant is liable for a civil penalty of $500 if it
3-6 is shown at the trial of the civil suit brought under Subsection
3-7 (c) that the defendant:
3-8 (1) has been convicted of an offense under Section
3-9 16.05, Penal Code; or
3-10 (2) is found liable in a civil action brought under
3-11 Subsection (a).
3-12 (e) Each violation of an injunction ordered under Subsection
3-13 (c) is punishable by a fine of $500.
3-14 (f) The attorney general, or the county or district attorney
3-15 of the county in which the conduct, as described by Subsection (c),
3-16 is occurring, may file suit under Subsection (c) on behalf of the
3-17 state.
3-18 SECTION 4. Section 17, Article 18.20, Code of Criminal
3-19 Procedure, is amended to read as follows:
3-20 Sec. 17. NONAPPLICABILITY [EXCEPTIONS]. This article
3-21 [(a) It is an exception to the application of Section 16 that:]
3-22 [(1) an operator of a switchboard or an officer,
3-23 employee, or agent of a communication common carrier or provider of
3-24 wire or electronic communications service whose facilities are used
3-25 in the transmission of a wire or electronic communication
3-26 intercepts a communication or discloses or uses an intercepted
3-27 communication in the normal course of employment while engaged in
3-28 an activity that is a necessary incident to the rendition of
3-29 service or to the protection of the rights or property of the
3-30 provider or carrier of the communication, unless the interception
3-31 results from the communication common carrier's or provider of wire
3-32 or electronic communications service's use of service observing or
3-33 random monitoring for purposes other than mechanical or service
3-34 quality control checks;]
3-35 [(2) an officer, employee, or agent of a communication
3-36 common carrier or provider of wire or electronic communications
3-37 service provides information, facilities, or technical assistance
3-38 to an investigative or law enforcement officer who is authorized as
3-39 provided by this article to intercept a wire, oral, or electronic
3-40 communication;]
3-41 [(3) a person acting under color of law intercepts a
3-42 wire, oral, or electronic communication if the person is a party to
3-43 the communication or if one of the parties to the communication has
3-44 given prior consent to the interception; or]
3-45 [(4) a person not acting under color of law intercepts
3-46 a wire, oral, or electronic communication if the person is a party
3-47 to the communication or if one of the parties to the communication
3-48 has given prior consent to the interception unless the
3-49 communication is intercepted for the purpose of committing any
3-50 criminal or tortious act in violation of the constitution or laws
3-51 of the United States or of this state or for the purpose of
3-52 committing any other injurious act.]
3-53 [(b) Article 18.20 of this code] does not apply to conduct
3-54 described as an affirmative defense under Section 16.02(c)
3-55 [16.02(c)(5)], Penal Code.
3-56 SECTION 5. Section 1, Article 18.21, Code of Criminal
3-57 Procedure, is amended to read as follows:
3-58 Sec. 1. DEFINITIONS. In this article:
3-59 (1) "Aural transfer," "communication common carrier,"
3-60 "electronic communication," "electronic communications service,"
3-61 "electronic communications system," "electronic storage," "pen
3-62 register," "readily accessible to the general public," "user," and
3-63 "wire communication" have the meanings assigned by Article 18.20
3-64 [means a transfer containing the human voice at any point between
3-65 and including the point of origin and the point of reception].
3-66 (2) "Authorized peace officer" means:
3-67 (A) a sheriff or a sheriff's deputy;
3-68 (B) a constable or deputy constable;
3-69 (C) a marshal or police officer of an
4-1 incorporated city, town, or village;
4-2 (D) a ranger or officer commissioned by the
4-3 Public Safety Commission or the director of the Department of
4-4 Public Safety;
4-5 (E) an investigator of the district attorney's,
4-6 criminal district attorney's, or county attorney's office;
4-7 (F) a law enforcement agent of the Alcoholic
4-8 Beverage Commission; or
4-9 (G) a law enforcement officer commissioned by
4-10 the Parks and Wildlife Commission.
4-11 (3) ["Communications common carrier" means a person
4-12 engaged as a common carrier for hire in the transmission of wire or
4-13 electronic communications.]
4-14 [(4)] "Department" means the Department of Public
4-15 Safety.
4-16 (4) [(5) "Electronic communication" means a transfer
4-17 of signs, signals, writing, images, sounds, data, or intelligence
4-18 of any nature transmitted in whole or in part by a wire, radio,
4-19 electromagnetic, photoelectronic, or photo-optical system. The
4-20 term does not include:]
4-21 [(A) the radio portion of a cordless telephone
4-22 communication that is transmitted between the cordless telephone
4-23 handset and its base unit;]
4-24 [(B) a wire or oral communication;]
4-25 [(C) a communication made through a tone-only
4-26 paging device; or]
4-27 [(D) a communication from a tracking device.]
4-28 [(6) "Electronic communications service" means a
4-29 service that provides to users of the service the ability to send
4-30 or receive wire or electronic communications.]
4-31 [(7) "Electronic communications system" means a wire,
4-32 radio, electromagnetic, photo-optical or photoelectronic facility
4-33 for the transmission of wire or electronic communications, and any
4-34 computer facility or related electronic equipment for the
4-35 electronic storage of those communications.]
4-36 [(8) "Electronic storage" means:]
4-37 [(A) a temporary, intermediate storage of a wire
4-38 or electronic communication that is incidental to the electronic
4-39 transmission of the communication; or]
4-40 [(B) storage of a wire or electronic
4-41 communication by an electronic communications service for purposes
4-42 of backup protection of the communication.]
4-43 [(9) "Pen register" means a mechanical or electronic
4-44 device that attaches to a telephone line and is capable of
4-45 recording outgoing numbers dialed from that line but is not capable
4-46 of recording the origin of an incoming communication to that line
4-47 or the content of a communication carried between that line and
4-48 another line.]
4-49 [(10) "Readily accessible to the general public"
4-50 means, with respect to a radio communication, a communication that
4-51 is not:]
4-52 [(A) scrambled or encrypted;]
4-53 [(B) transmitted using modulation techniques
4-54 whose essential parameters have been withheld from the public with
4-55 the intention of preserving the privacy of the communication; or]
4-56 [(C) transmitted over frequencies reserved for
4-57 private use and licensed for private use under federal or state
4-58 law, other than a tone-only paging device communication.]
4-59 [(11)] "Remote computing service" means the provision
4-60 to the public of computer storage or processing services by means
4-61 of an electronic communications system.
4-62 (5) [(12)] "Supervisory official" means:
4-63 (A) an investigative agent or an assistant
4-64 investigative agent who is in charge of an investigation;
4-65 (B) an equivalent person at an investigating
4-66 agency's headquarters or regional office; and
4-67 (C) the principal prosecuting attorney of the
4-68 state or of a political subdivision of the state or the first
4-69 assistant or chief assistant prosecuting attorney in the office of
5-1 either.
5-2 (6) [(13)] "Tracking device" means an electronic or
5-3 mechanical device that permits only tracking the movement of a
5-4 person or object.
5-5 (7) [(14)] "Trap and trace device" means a [mechanical
5-6 or electronic] device that records [attaches to a telephone line
5-7 and is capable of recording] an incoming electronic or other
5-8 impulse that identifies the originating number of an instrument or
5-9 device from which a wire or electronic communication was
5-10 transmitted. The term does not include a device or
5-11 telecommunications network used in providing:
5-12 (A) [(1)] a caller identification service
5-13 authorized by the Public Utility Commission of Texas under Section
5-14 3.302 [87C], Public Utility Regulatory Act of 1995 (Article 1446c-0
5-15 [1446c], Vernon's Texas Civil Statutes);
5-16 (B) [(2)] the services referenced in [Subsection
5-17 (g),] Section 3.302(g) [87C], Public Utility Regulatory Act of 1995
5-18 (Article 1446c-0 [1446c], Vernon's Texas Civil Statutes); or
5-19 (C) [(3)] a caller identification service
5-20 provided by a commercial mobile radio service provider licensed by
5-21 the Federal Communications Commission.
5-22 [(15) "User" means a person who uses an electronic
5-23 communications service and is authorized by the provider of the
5-24 service to use the service.]
5-25 [(16) "Wire communication" means an aural transfer
5-26 made in whole or in part through the use of facilities for the
5-27 transmission of communications by the aid of wire, cable, or other
5-28 like connection between the point of origin and the point of
5-29 reception, including the use of such a connection in a switching
5-30 station, furnished or operated by a person authorized to engage in
5-31 providing or operating the facilities for the transmission of
5-32 communications as a communications common carrier. The term
5-33 includes the electronic storage of a wire communication but does
5-34 not include the radio portion of a cordless telephone communication
5-35 that is transmitted between the cordless telephone handset and its
5-36 base unit.]
5-37 SECTION 6. Subsection (f), Section 2, Article 18.21, Code of
5-38 Criminal Procedure, is amended to read as follows:
5-39 (f) An order for the installation and utilization of a pen
5-40 register or trap and trace device is valid for not more than 60
5-41 [30] days after the date the device is installed or after 10 days
5-42 after the date the order is entered, whichever occurs first, unless
5-43 prior to the expiration of the order the attorney for the state
5-44 applies for and obtains from the court an extension of the order.
5-45 The period of extension may not exceed 60 [30] days for each
5-46 extension granted, except that with the consent of the subscriber
5-47 or customer of the service on which the pen register or trap and
5-48 trace device is utilized, the court may extend an order for a
5-49 period not to exceed one year.
5-50 SECTION 7. Section 3, Article 18.21, Code of Criminal
5-51 Procedure, is amended to read as follows:
5-52 Sec. 3. EMERGENCY PEN REGISTER AND TRAP AND TRACE DEVICE
5-53 INSTALLATION. (a) An authorized peace officer, designated by [the
5-54 director of the department or by] the district or criminal district
5-55 attorney of the county where the installation will be used, may
5-56 install and use a pen register or trap and trace device if the
5-57 peace officer reasonably believes that:
5-58 (1) an emergency requiring the installation of a pen
5-59 register or trap and trace device before an order authorizing the
5-60 installation and use can, with due diligence, be obtained, exists
5-61 involving immediate danger of death or serious injury to any
5-62 person; and
5-63 (2) there are grounds under this article on which an
5-64 order could be entered to authorize the installation and use of a
5-65 pen register or trap and trace device.
5-66 (b) If an authorized peace officer installs a pen register
5-67 or trap and trace device under Subsection (a) [of this section],
5-68 the peace officer must obtain an order approving installation and
5-69 use within 48 hours after the installation begins [occurred]. If
6-1 authorization is not obtained within [those] 48 hours, the officer
6-2 shall terminate use of the pen register or the trap and trace
6-3 device on the expiration [shall immediately terminate at the lapse]
6-4 of the 48 hours or at the time the order is denied, whichever is
6-5 earlier.
6-6 (c) [The knowing installation or use by an authorized peace
6-7 officer of a pen register or trap and trace device under this
6-8 section without application for the authorizing order within 48
6-9 hours of the installation is not permitted and is not an exception
6-10 to the application of Section 16.03, Penal Code.]
6-11 [(d)] The state may not use as evidence in a [any
6-12 subsequent] criminal proceeding any information gained through the
6-13 use of a pen register or trap and trace device installed [issued]
6-14 under [Subsection (b) of] this section if authorization for the pen
6-15 register or trap and trace device is denied.
6-16 SECTION 8. Article 18.21, Code of Criminal Procedure, is
6-17 amended by adding Section 16 to read as follows:
6-18 Sec. 16. LIMITATION. A governmental agency authorized to
6-19 install and use a pen register under this article or other law must
6-20 use reasonably available technology to only record and decode
6-21 electronic or other impulses used to identify the numbers dialed or
6-22 otherwise transmitted.
6-23 SECTION 9. Subsection (c), Section 16.02, Penal Code, is
6-24 amended to read as follows:
6-25 (c) It is an affirmative defense to prosecution under
6-26 Subsection (b) that:
6-27 (1) an operator of a switchboard or an officer,
6-28 employee, or agent of a communication common carrier whose
6-29 facilities are used in the transmission of a wire or electronic
6-30 communication intercepts a communication or discloses or uses an
6-31 intercepted communication in the normal course of employment while
6-32 engaged in an activity that is a necessary incident to the
6-33 rendition of service or to the protection of the rights or property
6-34 of the carrier of the communication, unless the interception
6-35 results from the communication common carrier's use of service
6-36 observing or random monitoring for purposes other than mechanical
6-37 or service quality control checks;
6-38 (2) an officer, employee, or agent of a communication
6-39 common carrier provides information, facilities, or technical
6-40 assistance to an investigative or law enforcement officer who is
6-41 authorized as provided by this article to intercept a wire, oral,
6-42 or electronic communication;
6-43 (3) a person acting under color of law intercepts a
6-44 wire, oral, or electronic communication if the person is a party to
6-45 the communication or if one of the parties to the communication has
6-46 given prior consent to the interception;
6-47 (4) a person not acting under color of law intercepts
6-48 a wire, oral, or electronic communication if the person is a party
6-49 to the communication or if one of the parties to the communication
6-50 has given prior consent to the interception unless the
6-51 communication is intercepted for the purpose of committing any
6-52 criminal or tortious act in violation of the constitution or laws
6-53 of the United States or of this state or for the purpose of
6-54 committing any other injurious act;
6-55 (5) a person acting under color of law intercepts a
6-56 wire, oral, or electronic communication if:
6-57 (A) oral or written [prior] consent for the
6-58 interception is [has been] given by a magistrate before the
6-59 interception;
6-60 (B) an immediate life-threatening situation
6-61 exists;
6-62 (C) the person is a member of a law enforcement
6-63 unit specially trained to:
6-64 (i) respond to and deal with
6-65 life-threatening situations; or
6-66 (ii) install electronic, mechanical, or
6-67 other devices; and
6-68 (D) the interception ceases immediately on
6-69 termination of the life-threatening situation;
7-1 (6) an officer, employee, or agent of the Federal
7-2 Communications Commission intercepts a communication transmitted by
7-3 radio or discloses or uses an intercepted communication in the
7-4 normal course of employment and in the discharge of the monitoring
7-5 responsibilities exercised by the Federal Communications Commission
7-6 in the enforcement of Chapter 5, Title 47, United States Code;
7-7 (7) a person intercepts or obtains access to an
7-8 electronic communication that was made through an electronic
7-9 communication system that is configured to permit the communication
7-10 to be readily accessible to the general public;
7-11 (8) a person intercepts radio communication, other
7-12 than a cordless telephone communication that is transmitted between
7-13 a cordless telephone handset and a base unit, that is transmitted:
7-14 (A) by a station for the use of the general
7-15 public;
7-16 (B) to ships, aircraft, vehicles, or persons in
7-17 distress;
7-18 (C) by a governmental, law enforcement, civil
7-19 defense, private land mobile, or public safety communications
7-20 system that is readily accessible to the general public;
7-21 (D) by a station operating on an authorized
7-22 frequency within the bands allocated to the amateur, citizens band,
7-23 or general mobile radio services; or
7-24 (E) by a marine or aeronautical communications
7-25 system;
7-26 (9) a person intercepts a wire or electronic
7-27 communication the transmission of which causes harmful interference
7-28 to a lawfully operating station or consumer electronic equipment,
7-29 to the extent necessary to identify the source of the interference;
7-30 (10) a user of the same frequency intercepts a radio
7-31 communication made through a system that uses frequencies monitored
7-32 by individuals engaged in the provision or the use of the system,
7-33 if the communication is not scrambled or encrypted; or
7-34 (11) a provider of electronic communications service
7-35 records the fact that a wire or electronic communication was
7-36 initiated or completed in order to protect the provider, another
7-37 provider furnishing service towards the completion of the
7-38 communication, or a user of that service from fraudulent, unlawful,
7-39 or abusive use of the service.
7-40 SECTION 10. Subsections (a), (c), (d), and (e), Section
7-41 16.03, Penal Code, are amended to read as follows:
7-42 (a) A [Except as authorized by a court order obtained under
7-43 Article 18.21, Code of Criminal Procedure, or in an emergency under
7-44 the circumstances described and permitted under that article, a]
7-45 person commits an offense if the person [he] knowingly installs or
7-46 uses [utilizes] a pen register or trap and trace device to record
7-47 or decode electronic or other impulses for the purpose of
7-48 identifying telephone numbers dialed or otherwise transmitted on
7-49 [from or to] a telephone line [instrument].
7-50 (c) It is an affirmative defense to prosecution under
7-51 [exception to the application of] Subsection (a) that the actor is:
7-52 (1) an officer, employee, or agent of a communications
7-53 common carrier and the actor installs or uses [utilizes] a device
7-54 or equipment to record a number [the numbers] dialed from or to a
7-55 telephone instrument in the normal course of business of the
7-56 carrier for purposes of:
7-57 (A) protecting[, for the protection of] property
7-58 or services provided by the carrier; or
7-59 (B) assisting another who the actor reasonably
7-60 believes to be a[, or assists an authorized] peace officer
7-61 authorized to install or use a pen register or trap and trace
7-62 device[in executing an order issued] under Article 18.21, Code of
7-63 Criminal Procedure;
7-64 (2)[. (d) It is an exception to the application of
7-65 Subsection (a) that the installation or utilization of a pen
7-66 register or trap and trace device was made by] an officer, [agent,
7-67 or] employee, or agent of a lawful enterprise and the actor
7-68 installs or uses a device or equipment while engaged in an activity
7-69 that:
8-1 (A) is a necessary incident to the rendition of
8-2 service or to the protection of property of or services provided by
8-3 the enterprise; [,] and
8-4 (B) is [was] not made for the purpose of
8-5 gathering information for a law enforcement agency or private
8-6 investigative agency, other than information related to the theft
8-7 of communication or information services provided by the
8-8 enterprise; or
8-9 (3) a person authorized to install or use a pen
8-10 register or trap and trace device under Article 18.21, Code of
8-11 Criminal Procedure.
8-12 (d) [(e)] An offense under this section is a state jail
8-13 felony.
8-14 SECTION 11. Subsection (e), Section 16.04, Penal Code, is
8-15 amended to read as follows:
8-16 (e) It is an affirmative defense to prosecution under
8-17 [exception to the application of] Subsection (b) that the conduct
8-18 was authorized by:
8-19 (1) the provider of the wire or electronic
8-20 communications service;
8-21 (2) the user of the wire or electronic communications
8-22 service; [or]
8-23 (3) the addressee or intended recipient of the wire or
8-24 electronic communication; or
8-25 (4) Article 18.21, Code of Criminal Procedure.
8-26 SECTION 12. Subsections (b) through (e), Section 16.05,
8-27 Penal Code, are amended to read as follows:
8-28 (b) A [Except as provided by Subsection (c), a] person who
8-29 provides electronic communications service to the public commits an
8-30 offense if the person knowingly [he intentionally] divulges the
8-31 contents of a communication[, other than a communication to that
8-32 person or that person's agent, while the communication is in
8-33 transmission on that service,] to another who is not [any person
8-34 other than the addressee or] the intended recipient of the
8-35 communication [or the addressee's or intended recipient's agent].
8-36 (c) It is an affirmative defense to prosecution under
8-37 Subsection (b) that the actor divulged [A person who provides
8-38 electronic communications service to the public may divulge] the
8-39 contents of the [a] communication:
8-40 (1) as authorized by federal or state law;
8-41 (2) to a person employed, authorized, or whose
8-42 facilities are used to forward the communication to the
8-43 communication's destination; or
8-44 (3) to a law enforcement agency if [the contents were
8-45 obtained by the service provider and] the contents reasonably
8-46 appear to pertain to the commission of a crime.
8-47 (d) Except as provided by Subsection [Subsections] (e) [and
8-48 (f)], an offense under Subsection (b) that involves a scrambled or
8-49 encrypted radio communication is a state jail felony.
8-50 (e) If committed for a tortious or illegal purpose or to
8-51 gain a benefit, an offense under Subsection (b) that involves a
8-52 radio communication that is not scrambled or encrypted:
8-53 (1) is a Class A misdemeanor if the communication is
8-54 not [the radio portion of a cellular telephone communication,] a
8-55 public land mobile radio service communication[,] or a paging
8-56 service communication; or
8-57 (2) is a Class C misdemeanor if the communication is
8-58 [the radio portion of a cellular telephone communication,] a public
8-59 land [and] mobile radio service [or] communication or a paging
8-60 service communication.
8-61 SECTION 13. Subsection (f), Section 16.05, Penal Code, is
8-62 repealed.
8-63 SECTION 14. This Act takes effect September 1, 1997.
8-64 SECTION 15. (a) The changes in law made by Sections 8
8-65 through 11 and Section 13 of this Act apply only to an offense
8-66 committed on or after the effective date of this Act. For purposes
8-67 of this section, an offense is committed before the effective date
8-68 of this Act if any element of the offense occurs before the
8-69 effective date.
9-1 (b) An offense committed before the effective date of this
9-2 Act is covered by the law in effect when the offense was committed,
9-3 and the former law is continued in effect for that purpose.
9-4 SECTION 16. The importance of this legislation and the
9-5 crowded condition of the calendars in both houses create an
9-6 emergency and an imperative public necessity that the
9-7 constitutional rule requiring bills to be read on three several
9-8 days in each house be suspended, and this rule is hereby suspended.
9-9 * * * * *