By:  Armbrister                                       S.B. No. 1345
                                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.  Section 1, Article 18.20, Code of Criminal
 1-8     Procedure, is amended by adding Subdivisions (22) and (23) to read
 1-9     as follows:
1-10                 (22)  "Immediate life-threatening situation" means a
1-11     hostage, barricade, or similar emergency situation in which human
1-12     life is directly threatened.
1-13                 (23)  "Member of a law enforcement unit specially
1-14     trained to respond to and deal with life-threatening situations"
1-15     means a peace officer who receives a minimum of 40 hours a year of
1-16     training in hostage and barricade suspect situations as evidenced
1-17     by the submission of appropriate documentation to the Commission on
1-18     Law Enforcement Officer Standards and Education.
1-19           SECTION 2.  Section 2, Article 18.20, Code of Criminal
1-20     Procedure, is amended to read as follows:
1-21           Sec. 2.  PROHIBITION OF USE AS EVIDENCE OF INTERCEPTED
1-22     COMMUNICATIONS.  (a)  The contents of an intercepted communication
1-23     and evidence derived from an intercepted communication may [not] be
1-24     received in evidence in any trial, hearing, or other proceeding in
1-25     or before any court, grand jury, department, officer, agency,
 2-1     regulatory body, legislative committee, or other authority of the
 2-2     United States or of this state or a political subdivision of this
 2-3     state unless:
 2-4                 (1)  the communication was intercepted in violation of
 2-5     this article, Section 16.02, Penal Code, or federal law; or
 2-6                 (2)  [if] the disclosure of the contents of the
 2-7     intercepted communication or evidence derived from the
 2-8     communication [that information] would be in violation of this
 2-9     article, Section 16.02, Penal Code, or federal law.
2-10           (b)  The contents of an intercepted communication and
2-11     evidence derived from an intercepted communication may be received
2-12     in a civil trial, hearing, or other proceeding only if the civil
2-13     trial, hearing, or other proceeding arises out of a violation of a
2-14     penal law [the Penal Code, Code of Criminal Procedure, Controlled
2-15     Substances Act, or Dangerous Drug Act].
2-16           (c)  This section does not prohibit the use or admissibility
2-17     of the contents of a communication or evidence derived from the
2-18     communication if the communication was intercepted in a
2-19     jurisdiction outside this state in compliance with the law of that
2-20     jurisdiction.
2-21           SECTION 3.  Section 4, Article 18.20, Code of Criminal
2-22     Procedure, is amended to read as follows:
2-23           Sec. 4.  OFFENSES FOR WHICH INTERCEPTIONS MAY BE AUTHORIZED.
2-24     A judge may issue an order authorizing interception of wire, oral,
2-25     or electronic communications only if the prosecutor applying for
2-26     the order shows probable cause to believe that the interception
 3-1     will provide evidence of the commission of:
 3-2                 (1)  a felony under Section 19.03(a)(3) or Section
 3-3     43.26, Penal Code;
 3-4                 (2)  a felony [(other than felony possession of
 3-5     marihuana)] under:
 3-6                       (A)  Chapter 481, Health and Safety Code, other
 3-7     than felony possession of marihuana;
 3-8                       (B)  [or] Section 485.033, Health and Safety
 3-9     Code; or
3-10                       (C)  [of a felony under] Chapter 483, Health and
3-11     Safety Code; or
3-12                 (3)  an attempt, conspiracy, or solicitation to commit
3-13     an offense listed in this section.
3-14           SECTION 4.  Subsection (a), Section 5, Article 18.20, Code of
3-15     Criminal Procedure, is amended to read as follows:
3-16           (a)  Except as provided by Section 8A, only [Only] the
3-17     Department of Public Safety is authorized by this article to own,
3-18     possess, install, operate, or monitor an electronic, mechanical, or
3-19     other device.  The Department of Public Safety may be assisted by
3-20     an investigative or law enforcement officer or other person in the
3-21     operation and monitoring of an interception of wire, oral, or
3-22     electronic communications, provided that the officer or other
3-23     person:
3-24                 (1)  is designated by the director for that purpose;
3-25     and
3-26                 (2)  acts in the presence and under the direction of a
 4-1     commissioned officer of the Department of Public Safety [is present
 4-2     at all times].
 4-3           SECTION 5.  Article 18.20, Code of Criminal Procedure, is
 4-4     amended by adding Section 8A to read as follows:
 4-5           Sec. 8A.  EMERGENCY INSTALLATION AND USE OF INTERCEPTING
 4-6     DEVICE.  (a)  The prosecutor in a county in which an electronic,
 4-7     mechanical, or other device is to be installed or used to intercept
 4-8     wire, oral, or electronic communications shall designate in writing
 4-9     each peace officer in the county, other than a commissioned officer
4-10     of the Department of Public Safety, who:
4-11                 (1)  is a member of a law enforcement unit specially
4-12     trained to respond to and deal with life-threatening situations;
4-13     and
4-14                 (2)  is authorized to possess such a device and
4-15     responsible for the installation, operation, and monitoring of the
4-16     device in an immediate life-threatening situation.
4-17           (b)  A peace officer designated under  Subsection (a)  or
4-18     under Section 5(b) may possess, install, operate, or monitor an
4-19     electronic, mechanical, or other device to intercept wire, oral, or
4-20     electronic communications if the officer:
4-21                 (1)  reasonably believes an immediate life-threatening
4-22     situation exists that:
4-23                       (A)  is within the territorial jurisdiction of
4-24     the officer or another officer the officer is assisting; and
4-25                       (B)  requires interception of communications
4-26     before an order authorizing the interception can, with due
 5-1     diligence, be obtained under this section;
 5-2                 (2)  reasonably believes there are sufficient grounds
 5-3     under this section on which to obtain an order authorizing the
 5-4     interception; and
 5-5                 (3)  obtains from a magistrate oral or written consent
 5-6     to the interception before beginning the interception.
 5-7           (c)  A magistrate may give oral or written consent to the
 5-8     interception of communications under this section.
 5-9           (d)  If an officer installs or uses a device under Subsection
5-10     (b), the officer shall:
5-11                 (1)  promptly report the installation or use to the
5-12     prosecutor in the county in which the device is installed or used;
5-13     and
5-14                 (2)  within 48 hours after the installation is complete
5-15     or the interception begins, whichever occurs first, obtain a
5-16     written order from a judge of competent jurisdiction authorizing
5-17     the interception.
5-18           (e)  A judge may issue an order authorizing interception of
5-19     communications under this section during the 48-hour period
5-20     prescribed by Subsection (d)(2).  If an order is denied or is not
5-21     issued within the 48-hour period, the officer shall terminate use
5-22     of and remove the device promptly on the earlier of the denial or
5-23     the expiration of 48 hours.
5-24           (f)  The state may not use as evidence in a criminal
5-25     proceeding any information gained through the use of a device
5-26     installed under this section if authorization for the device is not
 6-1     sought or is sought but not obtained.
 6-2           SECTION 6.  Subsections (c) and (d), Section 9, Article
 6-3     18.20, Code of Criminal Procedure, are amended to read as follows:
 6-4           (c)  On request of the applicant for [In] an order
 6-5     authorizing the interception of a wire, oral, or electronic
 6-6     communication, the judge may issue a separate order directing
 6-7     [issuing it, on request of the applicant, shall direct] that a
 6-8     provider of wire or electronic communications service, a
 6-9     communication common carrier, landlord, custodian, or other person
6-10     furnish the applicant all information, facilities, and technical
6-11     assistance necessary to accomplish the interception unobtrusively
6-12     and with a minimum of interference with the services that the
6-13     provider, carrier, landlord, custodian, or other person is
6-14     providing the person whose communications are to be intercepted.
6-15     Any provider of wire or electronic communications service,
6-16     communication common carrier, landlord, custodian, or other person
6-17     furnishing facilities or technical assistance is entitled to
6-18     compensation by the applicant for the facilities or assistance at
6-19     the prevailing rates.
6-20           (d)  An order entered pursuant to this section may not
6-21     authorize the interception of a wire, oral, or electronic
6-22     communication for longer than is necessary to achieve the objective
6-23     of the authorization and in no event may it authorize interception
6-24     for more than 30 days.  The issuing judge may grant extensions of
6-25     an order, but only on application for an extension made in
6-26     accordance with Section 8 [of this article] and the court making
 7-1     the findings required by Subsection (a)  [of this section].  The
 7-2     period of extension may not be longer than the authorizing judge
 7-3     deems necessary to achieve the purposes for which it is granted and
 7-4     in no event may the extension be for more than 30 days.  To be
 7-5     valid, each order and extension of an order must provide that the
 7-6     authorization to intercept be executed as soon as practicable, be
 7-7     conducted in a way that minimizes the interception of
 7-8     communications not otherwise subject to interception under this
 7-9     article, and terminate on obtaining the authorized objective or
7-10     within 30 days, whichever occurs sooner.  If the intercepted
7-11     communication is in code or a foreign language and an expert in
7-12     that code or language is not reasonably available during the period
7-13     of interception, minimization may be accomplished as soon as
7-14     practicable after the interception.
7-15           SECTION 7.  Section 1, Article 18.21, Code of Criminal
7-16     Procedure, is amended by amending Subdivision (1) and adding
7-17     Subdivisions (8) and (9) to read as follows:
7-18                 (1)  "Aural transfer," "communication common carrier,"
7-19     "electronic communication," "electronic communications service,"
7-20     "electronic communications system," "electronic storage,"
7-21     "immediate life-threatening situation," "member of a law
7-22     enforcement unit specially trained to respond to and deal with
7-23     life-threatening situations," "pen register," "readily accessible
7-24     to the general public," "user," and "wire communication" have the
7-25     meanings assigned by Article 18.20.
7-26                 (8)  "ESN reader" means a device that records the
 8-1     electronic serial number from the data track of a wireless
 8-2     telephone, cellular telephone, or similar communication device that
 8-3     transmits its operational status to a base site.
 8-4                 (9)  "Prosecutor" means a district attorney, criminal
 8-5     district attorney, or county attorney performing the duties of a
 8-6     district attorney.
 8-7           SECTION 8.  Section 2, Article 18.21, Code of Criminal
 8-8     Procedure, is amended to read as follows:
 8-9           Sec. 2.  APPLICATION AND ORDER [OF PEN REGISTERS OR TRAP AND
8-10     TRACE DEVICES].  (a)  A prosecutor with jurisdiction in a county
8-11     within a judicial district described by this subsection [An
8-12     authorized peace officer commissioned by the department] may
8-13     [request an attorney for the state to] file an application for the
8-14     installation and use of a  pen register, ESN reader, trap and trace
8-15     device, or similar equipment that combines the function of a pen
8-16     register and a trap and trace device with a district judge in [of]
8-17     the judicial district.  The judicial district must be a district in
8-18     which is located:
8-19                 (1)  the site of the proposed installation or use of
8-20     the device or equipment;
8-21                 (2)  the site of the communication device on which the
8-22     device or equipment is proposed to be installed or used;
8-23                 (3)  the billing, residential, or business address of
8-24     the subscriber to the electronic communications service on which
8-25     the device or equipment is proposed to be installed or used;
8-26                 (4)  the headquarters of:
 9-1                       (A)  the office of the prosecutor filing an
 9-2     application under this section; or
 9-3                       (B)  a law enforcement agency that requests the
 9-4     prosecutor to file an application under this section or that
 9-5     proposes to execute an order authorizing installation and use of
 9-6     the device or equipment; or
 9-7                 (5)  the headquarters of a service provider ordered to
 9-8     install the device or equipment [the proposed installation will be
 9-9     made for the installation and use of a pen register to obtain
9-10     information material to the investigation of a criminal offense].
9-11           (b)  A prosecutor [district or criminal district attorney]
9-12     may [on his own motion] file an application under this section on
9-13     the prosecutor's own motion or on the request of an authorized
9-14     peace officer, regardless of whether the officer is commissioned by
9-15     the department.  A prosecutor who files an application on the
9-16     prosecutor's own motion or who files an application for the
9-17     installation and use of a pen register, ESN reader, or similar
9-18     equipment on the request of an authorized peace officer not
9-19     commissioned by the department [The district or criminal district
9-20     attorney who is acting on his own motion] must make the application
9-21     personally and may not do so through an assistant or some other
9-22     person acting on the prosecutor's [his] behalf.  A prosecutor may
9-23     make an application through an assistant or other person acting on
9-24     the prosecutor's behalf if the prosecutor files an application for
9-25     the installation and use of:
9-26                 (1)  a pen register, ESN reader, or similar equipment
 10-1    on the request of an authorized peace officer who is commissioned
 10-2    by the department; or
 10-3                (2)  a trap and trace device or similar equipment on
 10-4    the request of an authorized peace officer, regardless of whether
 10-5    the officer is commissioned by the department.
 10-6          [(b)  An authorized peace officer may request an attorney for
 10-7    the state to file an application with a judge of the judicial
 10-8    district in which the proposed installation will be made for the
 10-9    installation and use of a trap and trace device to obtain
10-10    information material to the investigation of a criminal offense.  A
10-11    district or criminal district attorney may on his own motion file
10-12    an application under this section.  The district or criminal
10-13    district attorney who is acting on his own motion must make the
10-14    application personally and may not do so through an assistant or
10-15    some other person acting on his behalf.]
10-16          (c)  The application must:
10-17                (1)  be made in writing under oath;
10-18                (2)  [and must] include the name of the subscriber and
10-19    [,] the telephone number [or numbers,] and [the] location of the
10-20    communication device [telephone instrument or instruments] on which
10-21    the pen register, ESN reader, [or] trap and trace device, or
10-22    similar equipment will be used, to the extent that information is
10-23    known or is reasonably ascertainable; and
10-24                (3)  [utilized.  The application must also] state that
10-25    the installation and use [utilization] of the [pen register or trap
10-26    and trace] device or equipment will be material to the
 11-1    investigation of a criminal offense.
 11-2          (d)  On presentation of the application, the judge may order
 11-3    the installation and use [utilization] of the pen register, ESN
 11-4    reader, or similar equipment by an authorized peace officer
 11-5    commissioned by the department, and, on request of the applicant,
 11-6    the judge shall direct in the order that a communication
 11-7    [communications] common carrier or a provider of electronic
 11-8    communications service furnish all information, facilities, and
 11-9    technical assistance necessary to facilitate the installation and
11-10    use [utilization] of the device or equipment [pen register] by the
11-11    department unobtrusively and with a minimum of interference to the
11-12    services provided by the carrier or service.  The carrier or
11-13    service is entitled to compensation at the prevailing rates for the
11-14    facilities and assistance provided to the department.
11-15          (e)  On presentation of the application, the judge may order
11-16    the installation and use [operation] of the trap and trace device
11-17    or similar equipment by the communication [communications] common
11-18    carrier or other person on the appropriate line.  The[, and in that
11-19    order the] judge may [shall] direct the communication
11-20    [communications] common carrier or other person, including [and]
11-21    any landlord or other custodian of equipment, to furnish all
11-22    information, facilities, and technical assistance necessary to
11-23    install or use [and operate] the device or equipment unobtrusively
11-24    and with a minimum of interference to the services provided by the
11-25    communication [communications] common carrier, landlord, custodian,
11-26    or other person.  Unless otherwise ordered by the court, the
 12-1    results of the trap and trace device or similar equipment shall be
 12-2    furnished to the applicant, designated by the court, at reasonable
 12-3    intervals during regular business hours, for the duration of the
 12-4    order.  The carrier is entitled to compensation at the prevailing
 12-5    rates for the facilities and assistance provided to the law
 12-6    enforcement agency.
 12-7          (f)  Except as otherwise provided by this subsection, an [An]
 12-8    order for the installation and use [utilization] of a [pen register
 12-9    or trap and trace] device or equipment under this section is valid
12-10    for not more than 60 days after the earlier of the date the device
12-11    or equipment is installed or the 10th day [after 10 days] after the
12-12    date the order is entered, [whichever occurs first,] unless [prior
12-13    to the expiration of the order] the prosecutor [attorney for the
12-14    state] applies for and obtains from the court an extension of the
12-15    order before the order expires.  The period of extension may not
12-16    exceed 60 days for each extension granted, except that with the
12-17    consent of the subscriber or customer of the service on which the
12-18    [pen register or trap and trace] device or equipment is used
12-19    [utilized], the court may extend an order for a period not to
12-20    exceed one year.
12-21          (g)  The district court shall seal an application and order
12-22    [for the installation and utilization of a pen register or trap and
12-23    trace device] granted under this article[.  The contents of an
12-24    application or order may not be disclosed except in the course of a
12-25    judicial proceeding and an unauthorized disclosure is punishable as
12-26    contempt of court].
 13-1          (h)  A peace officer is not required to file an application
 13-2    or obtain an order under this section before the officer makes an
 13-3    otherwise lawful search, with or without a warrant, to determine
 13-4    the contents of a caller identification message, pager message, or
 13-5    voice message that is contained within the memory of an end-user's
 13-6    identification, paging, or answering device.
 13-7          SECTION 9.  Section 3, Article 18.21, Code of Criminal
 13-8    Procedure, is amended to read as follows:
 13-9          Sec. 3.  EMERGENCY INSTALLATION AND USE OF PEN REGISTER OR
13-10    [AND] TRAP AND TRACE DEVICE [INSTALLATION].  (a)  A [An authorized]
13-11    peace officer authorized to possess, install, operate, or monitor a
13-12    device under Section 8A, Article 18.20, [designated by the district
13-13    or criminal district attorney of the county where the installation
13-14    will be used,] may install and use a pen register or trap and trace
13-15    device if the [peace] officer:
13-16                (1)  reasonably believes an immediate life-threatening
13-17    situation exists that:
13-18                      (A)  is within the territorial jurisdiction of
13-19    the officer or another officer the officer is assisting; and
13-20                      (B)  requires [(1) an emergency requiring] the
13-21    installation of a pen register or trap and trace device before an
13-22    order authorizing the installation and use can, with due diligence,
13-23    be obtained under this article[, exists involving immediate danger
13-24    of death or serious injury to any person]; and
13-25                (2)  reasonably believes there are sufficient grounds
13-26    under this article on which to obtain an order authorizing [could
 14-1    be entered to authorize] the installation and use of a pen register
 14-2    or trap and trace device.
 14-3          (b)  If an [authorized peace] officer installs or uses a pen
 14-4    register or trap and trace device under Subsection (a), the [peace]
 14-5    officer shall:
 14-6                (1)  promptly report the installation or use to the
 14-7    prosecutor in the county in which the device is installed or used;
 14-8    and
 14-9                (2)  within 48 hours after the installation is complete
14-10    or the use of the device begins, whichever occurs first, obtain an
14-11    order under Section 2 authorizing the installation and use [must
14-12    obtain an order approving installation and use within 48 hours
14-13    after the installation begins].
14-14          (c)  A judge may issue an order authorizing the installation
14-15    and use of a device under this section during the 48-hour period
14-16    prescribed by Subsection (b)(2).  If an order is denied or is not
14-17    issued within the 48-hour period [If authorization is not obtained
14-18    within 48 hours], the officer shall terminate use of and remove the
14-19    pen register or the trap and trace device promptly on the earlier
14-20    of the denial or the expiration of [the] 48 hours [or at the time
14-21    the order is denied, whichever is earlier].
14-22          (d) [(c)]  The state may not use as evidence in a criminal
14-23    proceeding any information gained through the use of a pen register
14-24    or trap and trace device installed under this section if an
14-25    authorized peace officer does not apply for or applies for but does
14-26    not obtain authorization for the pen register or trap and trace
 15-1    device [is denied].
 15-2          SECTION 10.  Section 14, Article 18.21, Code of Criminal
 15-3    Procedure, is amended by adding Subsection (g) to read as follows:
 15-4          (g)  This section does not apply to a global positioning or
 15-5    similar device installed in or on an item of property by the owner
 15-6    or with the consent of the owner of the property.  A device
 15-7    described by this subsection may be monitored by a private entity
 15-8    in an emergency.
 15-9          SECTION 11.  Section 16.02, Penal Code, is amended to read as
15-10    follows:
15-11          Sec. 16.02.  UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF
15-12    WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.  (a)  In this section,
15-13    "covert entry," "communication common carrier," "contents,"
15-14    "electronic, mechanical, or other device," "immediate
15-15    life-threatening situation," "intercept," "investigative or law
15-16    enforcement officer," "member of a law enforcement unit specially
15-17    trained to respond to and deal with life-threatening situations,"
15-18    "oral communication," "electronic communication," "readily
15-19    accessible to the general public," and "wire communication" have
15-20    the meanings given those terms in Article 18.20, Code of Criminal
15-21    Procedure.
15-22          (b)  A person commits an offense if the person [he]:
15-23                (1)  intentionally intercepts, endeavors to intercept,
15-24    or procures another person to intercept or endeavor to intercept a
15-25    wire, oral, or electronic communication;
15-26                (2)  intentionally discloses or endeavors to disclose
 16-1    to another person the contents of a wire, oral, or electronic
 16-2    communication if the person [he] knows or has reason to know the
 16-3    information was obtained through the interception of a wire, oral,
 16-4    or electronic communication in violation of this subsection;
 16-5                (3)  intentionally uses or endeavors to use the
 16-6    contents of a wire, oral, or electronic communication if the person
 16-7    [he] knows or is reckless about whether the information was
 16-8    obtained through the interception of a wire, oral, or electronic
 16-9    communication in violation of this subsection;
16-10                (4)  knowingly or intentionally effects a covert entry
16-11    for the purpose of intercepting wire, oral, or electronic
16-12    communications without court order or authorization; or
16-13                (5)  intentionally uses, endeavors to use, or procures
16-14    any other person to use or endeavor to use any electronic,
16-15    mechanical, or other device to intercept any oral communication
16-16    when the device:
16-17                      (A)  is affixed to, or otherwise transmits a
16-18    signal through a wire, cable, or other connection used in wire
16-19    communications; or
16-20                      (B)  transmits communications by radio or
16-21    interferes with the transmission of communications by radio.
16-22          (c)  It is an affirmative defense to prosecution under
16-23    Subsection (b) that:
16-24                (1)  an operator of a switchboard or an officer,
16-25    employee, or agent of a communication common carrier whose
16-26    facilities are used in the transmission of a wire or electronic
 17-1    communication intercepts a communication or discloses or uses an
 17-2    intercepted communication in the normal course of employment while
 17-3    engaged in an activity that is a necessary incident to the
 17-4    rendition of service or to the protection of the rights or property
 17-5    of the carrier of the communication, unless the interception
 17-6    results from the communication common carrier's use of service
 17-7    observing or random monitoring for purposes other than mechanical
 17-8    or service quality control checks;
 17-9                (2)  an officer, employee, or agent of a communication
17-10    common carrier provides information, facilities, or technical
17-11    assistance to an investigative or law enforcement officer who is
17-12    authorized as provided by this article to intercept a wire, oral,
17-13    or electronic communication;
17-14                (3)  a person acting under color of law intercepts a
17-15    wire, oral, or electronic communication if the person is a party to
17-16    the communication or if one of the parties to the communication has
17-17    given prior consent to the interception;
17-18                (4)  a person not acting under color of law intercepts
17-19    a wire, oral, or electronic communication if the person is a party
17-20    to the communication or if one of the parties to the communication
17-21    has given prior consent to the interception unless the
17-22    communication is intercepted for the purpose of committing any
17-23    criminal or tortious act in violation of the constitution or laws
17-24    of the United States or of this state or for the purpose of
17-25    committing any other injurious act;
17-26                (5)  a person acting under color of law intercepts a
 18-1    wire, oral, or electronic communication if:
 18-2                      (A)  oral or written consent for the interception
 18-3    is given by a magistrate before the interception;
 18-4                      (B)  an immediate life-threatening situation
 18-5    exists;
 18-6                      (C)  the person is a member of a law enforcement
 18-7    unit specially trained to:
 18-8                            (i)  respond to and deal with
 18-9    life-threatening situations; or
18-10                            (ii)  install electronic, mechanical, or
18-11    other devices; and
18-12                      (D)  the interception ceases immediately on
18-13    termination of the life-threatening situation;
18-14                (6)  an officer, employee, or agent of the Federal
18-15    Communications Commission intercepts a communication transmitted by
18-16    radio or discloses or uses an intercepted communication in the
18-17    normal course of employment and in the discharge of the monitoring
18-18    responsibilities exercised by the Federal Communications Commission
18-19    in the enforcement of Chapter 5, Title 47, United States Code;
18-20                (7)  a person intercepts or obtains access to an
18-21    electronic communication that was made through an electronic
18-22    communication system that is configured to permit the communication
18-23    to be readily accessible to the general public;
18-24                (8)  a person intercepts radio communication, other
18-25    than a cordless telephone communication that is transmitted between
18-26    a cordless telephone handset and a base unit, that is transmitted:
 19-1                      (A)  by a station for the use of the general
 19-2    public;
 19-3                      (B)  to ships, aircraft, vehicles, or persons in
 19-4    distress;
 19-5                      (C)  by a governmental, law enforcement, civil
 19-6    defense, private land mobile, or public safety communications
 19-7    system that is readily accessible to the general public, unless the
 19-8    radio communication is transmitted by a law enforcement
 19-9    representative to or from a mobile data terminal;
19-10                      (D)  by a station operating on an authorized
19-11    frequency within the bands allocated to the amateur, citizens band,
19-12    or general mobile radio services; or
19-13                      (E)  by a marine or aeronautical communications
19-14    system;
19-15                (9)  a person intercepts a wire or electronic
19-16    communication the transmission of which causes harmful interference
19-17    to a lawfully operating station or consumer electronic equipment,
19-18    to the extent necessary to identify the source of the interference;
19-19                (10)  a user of the same frequency intercepts a radio
19-20    communication made through a system that uses frequencies monitored
19-21    by individuals engaged in the provision or the use of the system,
19-22    if the communication is not scrambled or encrypted; or
19-23                (11)  a provider of electronic communications service
19-24    records the fact that a wire or electronic communication was
19-25    initiated or completed in order to protect the provider, another
19-26    provider furnishing service towards the completion of the
 20-1    communication, or a user of that service from fraudulent, unlawful,
 20-2    or abusive use of the service.
 20-3          (d)[(1)]  A person commits an offense if the person [he]:
 20-4                (1) [(A)]  intentionally manufactures, assembles,
 20-5    possesses, or sells an electronic, mechanical, or other device
 20-6    knowing or having reason to know that the device is designed
 20-7    primarily for nonconsensual interception of wire, electronic, or
 20-8    oral communications and that the device or a component of the
 20-9    device has been or will be used for an unlawful purpose; or
20-10                (2) [(B)]  places in a newspaper, magazine, handbill,
20-11    or other publication an advertisement of an electronic, mechanical,
20-12    or other device:
20-13                      (A) [(i)]  knowing or having reason to know that
20-14    the device is designed primarily for nonconsensual interception of
20-15    wire, electronic, or oral communications;
20-16                      (B) [(ii)]  promoting the use of the device for
20-17    the purpose of nonconsensual interception of wire, electronic, or
20-18    oral communications; or
20-19                      (C) [(iii)]  knowing or having reason to know
20-20    that the advertisement will promote the use of the device for the
20-21    purpose of nonconsensual interception of wire, electronic, or oral
20-22    communications.
20-23                [(2)  An offense under Subdivision (1) is a state jail
20-24    felony.]
20-25          (e)  It is an affirmative defense to prosecution under
20-26    Subsection (d) that the manufacture, assembly, possession, or sale
 21-1    of an electronic, mechanical, or other device that is designed
 21-2    primarily for the purpose of nonconsensual interception of wire,
 21-3    electronic, or oral communication is by:
 21-4                (1)  a communication common carrier or a provider of
 21-5    wire or electronic communications service or an officer, agent, or
 21-6    employee of or a person under contract with a communication common
 21-7    carrier or provider acting in the normal course of the provider's
 21-8    or communication carrier's business;
 21-9                (2)  an officer, agent, or employee of a person under
21-10    contract with, bidding on contracts with, or doing business with
21-11    the United States or this state acting in the normal course of the
21-12    activities of the United States or this state; [or]
21-13                (3)  a member of the Department of Public Safety who is
21-14    specifically trained to install wire, oral, or electronic
21-15    communications intercept equipment; or
21-16                (4)  a member of a local law enforcement agency that
21-17    has an established unit specifically designated to respond to and
21-18    deal with life-threatening situations [or specifically trained to
21-19    install wire, oral, or electronic communications intercept
21-20    equipment].
21-21          (f)  An [Except as provided by Subsections (d) and (h), an]
21-22    offense under this section is a felony of the second degree, unless
21-23    the offense is committed under Subsection (d) or (g), in which
21-24    event the offense is a state jail felony.
21-25          (g)  [For purposes of this section:]
21-26                [(1)  An immediate life-threatening situation exists
 22-1    when human life is directly threatened in either a hostage or
 22-2    barricade situation.]
 22-3                [(2)  "Member of a law enforcement unit specially
 22-4    trained to respond to and deal with life-threatening situations"
 22-5    means a peace officer who has received a minimum of 40 hours a year
 22-6    of training in hostage and barricade suspect situations.  This
 22-7    training must be evidenced by the submission of appropriate
 22-8    documentation to the Commission on Law Enforcement Officer
 22-9    Standards and Education.]
22-10          [(h) (1)]  A person commits an offense if, knowing that a
22-11    government attorney or an investigative or law enforcement officer
22-12    has been authorized or has applied for authorization to intercept
22-13    wire, electronic, or oral communications, the person obstructs,
22-14    impedes, prevents, gives notice to another of, or attempts to give
22-15    notice to another of the interception.
22-16          (h) [(2)  An offense under this subsection is a state jail
22-17    felony.]
22-18          [(i)]  This section expires September 1, 2005, and shall not
22-19    be in force on and after that date.
22-20          SECTION 12.  The change in law made by this Act applies only
22-21    to an offense committed on or after the effective date of this Act.
22-22    An offense committed before the effective date of this Act is
22-23    covered by the law in effect when the offense was committed, and
22-24    the former law is continued in effect for that purpose.  For
22-25    purposes of this section, an offense was committed before the
22-26    effective date of this Act if any element of the offense occurred
 23-1    before that date.
 23-2          SECTION 13.  This Act takes effect September 1, 2001.