SRC-BWC S.B. 917 77(R)BILL ANALYSIS


Senate Research CenterS.B. 917
By: Shapiro
Criminal Justice
6/12/2001
Enrolled


DIGEST AND PURPOSE 

Currently, Chapter 33 of the Penal Code, which governs computer crimes,
defines "aggregate amount" for purposes of determining the range of
punishment in the chapter to mean the amount of any direct or indirect loss
incurred by a victim, including the value of money, property, or service
stolen or rendered unrecoverable by the offense or any expenditure required
by the victim to verify that a computer, computer network, computer
program, or computer system was not altered, acquired, damaged, deleted, or
disrupted by the offense.  The inclusion of the word "or" has resulted in
confusion, leading some to assert that a prosecutor has to elect one
division or the other in determining "aggregate amount."  Also, unlike
other penal code sections, such as Sections 33A.02(a) and 33A.04(c), that
permit the aggregation of damage or loss incurred pursuant to one scheme or
continuing course of conduct in order to determine the appropriate
punishment upon conviction, currently Section 33.02 contains no such
provision permitting aggregation.  As a consequence, a person may have
committed multiple violations of Section 33.02 as part of one scheme or one
continuing course of conduct but may only be charged and found guilty of
one separate offense for each discrete violation.  S.B. 917 amends two
provisions of Chapter 33 of the Penal Code.   The first provision amends
the definition of "aggregate amount" in Section 33.01(2) by deleting "or"
and substituting "and" in order to make it clear that prosecutors may
consider both categories of costs together in determining "aggregate
amount." The second provision amends Section 33.02 by adding Subsection
(c), which permits aggregation of damages or losses incurred and thereby
permits the prosecution of multiple violations of the section when those
multiple violations are part of one scheme or one continuing course of
conduct.   

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 33.02, Penal Code, by adding Subsection (c) to
authorize the conduct, when benefits are obtained, a victim is defrauded or
harmed, or property is altered, damaged, or deleted in violation of this
section, whether or not in a single incident, to be considered as one
offense and the value of the benefits obtained and of the losses incurred
because of the fraud, harm or alteration, damage, or deletion of property
to be aggregated in determining the grade of the offense. 

SECTION 2.  Amends Chapter 38, Code of Criminal Procedure, by adding
Article 38.39, as follows: 

Art. 38.39.  EVIDENCE IN AN AGGREGATION PROSECUTION WITH NUMEROUS VICTIMS.
Provides that in trials involving an allegation of a continuing scheme of
fraud or theft alleged to have been committed against a large class of
victims in an aggregate amount or value, it need not be proved by direct
evidence that each alleged victim did not consent or did not effectively
consent to the transaction in question.  Provides that it shall be
sufficient if the lack of consent or effective consent to a particular
transaction or transactions is proven by either direct or circumstantial
evidence.   
SECTION 3.  Effective date:  September 1, 2001.
                        Makes application of this Act prospective.