By Armbrister S.B. No. 1345
77R5122 PEP-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. 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
2-1 or before any court, grand jury, department, officer, agency,
2-2 regulatory body, legislative committee, or other authority of the
2-3 United States or of this state or a political subdivision of this
2-4 state unless:
2-5 (1) the communication was intercepted in violation of
2-6 this article, Section 16.02, Penal Code, or federal law; or
2-7 (2) [if] the disclosure of the contents of the
2-8 intercepted communication or evidence derived from the
2-9 communication [that information] would be in violation of this
2-10 article, Section 16.02, Penal Code, or federal law.
2-11 (b) The contents of an intercepted communication and
2-12 evidence derived from an intercepted communication may be received
2-13 in a civil trial, hearing, or other proceeding only if the civil
2-14 trial, hearing, or other proceeding arises out of a violation of a
2-15 penal law [the Penal Code, Code of Criminal Procedure, Controlled
2-16 Substances Act, or Dangerous Drug Act].
2-17 (c) This section does not prohibit the use or admissibility
2-18 of the contents of a communication or evidence derived from the
2-19 communication if the communication was intercepted in a
2-20 jurisdiction outside of this state in compliance with the law of
2-21 that jurisdiction.
2-22 SECTION 3. Section 4, Article 18.20, Code of Criminal
2-23 Procedure, is amended to read as follows:
2-24 Sec. 4. OFFENSES FOR WHICH INTERCEPTIONS MAY BE AUTHORIZED.
2-25 A judge may issue an order authorizing interception of wire, oral,
2-26 or electronic communications only if the prosecutor applying for
2-27 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. Section 5(a), Article 18.20, Code of Criminal
3-15 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
3-27 commissioned officer of the Department of Public Safety [is present
4-1 at all times].
4-2 SECTION 5. Article 18.20, Code of Criminal Procedure, is
4-3 amended by adding Section 8A to read as follows:
4-4 Sec. 8A. EMERGENCY INSTALLATION AND USE OF INTERCEPTING
4-5 DEVICE. (a) The prosecutor in a county in which an electronic,
4-6 mechanical, or other device is to be installed or used to intercept
4-7 wire, oral, or electronic communications shall designate in writing
4-8 each peace officer in the county, other than a commissioned officer
4-9 of the Department of Public Safety, who:
4-10 (1) is a member of a law enforcement unit specially
4-11 trained to respond to and deal with life-threatening situations;
4-12 and
4-13 (2) is authorized to possess such a device and
4-14 responsible for the installation, operation, and monitoring of the
4-15 device in an immediate life-threatening situation.
4-16 (b) A peace officer designated under Subsection (a) or
4-17 under Section 5(b) may possess, install, operate, or monitor an
4-18 electronic, mechanical, or other device to intercept wire, oral, or
4-19 electronic communications if the officer:
4-20 (1) reasonably believes an immediate life-threatening
4-21 situation exists that:
4-22 (A) is within the territorial jurisdiction of
4-23 the officer or another officer the officer is assisting; and
4-24 (B) requires interception of communications
4-25 before an order authorizing the interception can, with due
4-26 diligence, be obtained under this section;
4-27 (2) reasonably believes there are sufficient grounds
5-1 under this section on which to obtain an order authorizing the
5-2 interception; and
5-3 (3) obtains from a magistrate oral or written consent
5-4 to the interception before beginning the interception.
5-5 (c) A magistrate may give oral or written consent to the
5-6 interception of communications under this section.
5-7 (d) If an officer installs or uses a device under Subsection
5-8 (b), the officer shall:
5-9 (1) promptly report the installation or use to the
5-10 prosecutor in the county in which the device is installed or used;
5-11 and
5-12 (2) within 48 hours after the installation is complete
5-13 or the interception begins, whichever occurs first, obtain a
5-14 written order from a judge of competent jurisdiction authorizing
5-15 the interception.
5-16 (e) A judge may issue an order authorizing interception of
5-17 communications under this section during the 48-hour period
5-18 prescribed by Subsection (d)(2). If an order is denied or is not
5-19 issued within the 48-hour period, the officer shall terminate use
5-20 of and remove the device promptly on the earlier of the denial or
5-21 the expiration of 48 hours.
5-22 (f) The state may not use as evidence in a criminal
5-23 proceeding any information gained through the use of a device
5-24 installed under this section if authorization for the device is not
5-25 sought or is sought but not obtained.
5-26 SECTION 6. Sections 9(c) and (d), Article 18.20, Code of
5-27 Criminal Procedure, are amended to read as follows:
6-1 (c) On request of the applicant for [In] an order
6-2 authorizing the interception of a wire, oral, or electronic
6-3 communication, the judge may issue a separate order directing
6-4 [issuing it, on request of the applicant, shall direct] that a
6-5 provider of wire or electronic communications service, a
6-6 communication common carrier, landlord, custodian, or other person
6-7 furnish the applicant all information, facilities, and technical
6-8 assistance necessary to accomplish the interception unobtrusively
6-9 and with a minimum of interference with the services that the
6-10 provider, carrier, landlord, custodian, or other person is
6-11 providing the person whose communications are to be intercepted.
6-12 Any provider of wire or electronic communications service,
6-13 communication common carrier, landlord, custodian, or other person
6-14 furnishing facilities or technical assistance is entitled to
6-15 compensation by the applicant for the facilities or assistance at
6-16 the prevailing rates.
6-17 (d) An order entered pursuant to this section may not
6-18 authorize the interception of a wire, oral, or electronic
6-19 communication for longer than is necessary to achieve the objective
6-20 of the authorization and in no event may it authorize interception
6-21 for more than 30 days. The issuing judge may grant extensions of
6-22 an order, but only on application for an extension made in
6-23 accordance with Section 8 [of this article] and the court making
6-24 the findings required by Subsection (a) [of this section]. The
6-25 period of extension may not be longer than the authorizing judge
6-26 deems necessary to achieve the purposes for which it is granted and
6-27 in no event may the extension be for more than 30 days. To be
7-1 valid, each order and extension of an order must provide that the
7-2 authorization to intercept be executed as soon as practicable, be
7-3 conducted in a way that minimizes the interception of
7-4 communications not otherwise subject to interception under this
7-5 article, and terminate on obtaining the authorized objective or
7-6 within 30 days, whichever occurs sooner. If the intercepted
7-7 communication is in code or a foreign language and an expert in
7-8 that code or language is not reasonably available during the period
7-9 of interception, minimization may be accomplished as soon as
7-10 practicable after the interception.
7-11 SECTION 7. Section 1, Article 18.21, Code of Criminal
7-12 Procedure, is amended by amending Subdivision (1) and adding
7-13 Subdivisions (8) and (9) to read as follows:
7-14 (1) "Aural transfer," "communication common carrier,"
7-15 "electronic communication," "electronic communications service,"
7-16 "electronic communications system," "electronic storage,"
7-17 "immediate life-threatening situation," "member of a law
7-18 enforcement unit specially trained to respond to and deal with
7-19 life-threatening situations," "pen register," "readily accessible
7-20 to the general public," "user," and "wire communication" have the
7-21 meanings assigned by Article 18.20.
7-22 (8) "ESN reader" means a device that records the
7-23 electronic serial number from the data track of a wireless
7-24 telephone, cellular telephone, or similar communication device that
7-25 transmits its operational status to a base site.
7-26 (9) "Prosecutor" means a district attorney, criminal
7-27 district attorney, or county attorney performing the duties of a
8-1 district attorney.
8-2 SECTION 8. Section 2, Article 18.21, Code of Criminal
8-3 Procedure, is amended to read as follows:
8-4 Sec. 2. APPLICATION AND ORDER [OF PEN REGISTERS OR TRAP AND
8-5 TRACE DEVICES]. (a) A prosecutor with jurisdiction in a county
8-6 within a judicial district described by this subsection [An
8-7 authorized peace officer commissioned by the department] may
8-8 [request an attorney for the state to] file an application for the
8-9 installation and use of a pen register, ESN reader, trap and trace
8-10 device, or similar equipment that combines the function of a pen
8-11 register and a trap and trace device with a district judge in [of]
8-12 the judicial district. The judicial district must be a district in
8-13 which is located:
8-14 (1) the site of the proposed installation or use of
8-15 the device or equipment;
8-16 (2) the site of the communication device on which the
8-17 device or equipment is proposed to be installed or used;
8-18 (3) the billing, residential, or business address of
8-19 the subscriber to the electronic communications service on which
8-20 the device or equipment is proposed to be installed or used;
8-21 (4) the headquarters of:
8-22 (A) the office of the prosecutor filing an
8-23 application under this section; or
8-24 (B) a law enforcement agency that requests the
8-25 prosecutor to file an application under this section or that
8-26 proposes to execute an order authorizing installation and use of
8-27 the device or equipment; or
9-1 (5) the headquarters of a service provider ordered to
9-2 install the device or equipment [the proposed installation will be
9-3 made for the installation and use of a pen register to obtain
9-4 information material to the investigation of a criminal offense].
9-5 (b) A prosecutor [district or criminal district attorney]
9-6 may [on his own motion] file an application under this section on
9-7 the prosecutor's own motion or on the request of an authorized
9-8 peace officer, regardless of whether the officer is commissioned by
9-9 the department. A prosecutor who files an application on the
9-10 prosecutor's own motion or who files an application for the
9-11 installation and use of a pen register, ESN reader, or similar
9-12 equipment on the request of an authorized peace officer not
9-13 commissioned by the department [The district or criminal district
9-14 attorney who is acting on his own motion] must make the application
9-15 personally and may not do so through an assistant or some other
9-16 person acting on the prosecutor's [his] behalf. A prosecutor may
9-17 make an application through an assistant or other person acting on
9-18 the prosecutor's behalf if the prosecutor files an application for
9-19 the installation and use of:
9-20 (1) a pen register, ESN reader, or similar equipment
9-21 on the request of an authorized peace officer who is commissioned
9-22 by the department; or
9-23 (2) a trap and trace device or similar equipment on
9-24 the request of an authorized peace officer, regardless of whether
9-25 the officer is commissioned by the department.
9-26 [(b) An authorized peace officer may request an attorney for
9-27 the state to file an application with a judge of the judicial
10-1 district in which the proposed installation will be made for the
10-2 installation and use of a trap and trace device to obtain
10-3 information material to the investigation of a criminal offense. A
10-4 district or criminal district attorney may on his own motion file
10-5 an application under this section. The district or criminal
10-6 district attorney who is acting on his own motion must make the
10-7 application personally and may not do so through an assistant or
10-8 some other person acting on his behalf.]
10-9 (c) The application must:
10-10 (1) be made in writing under oath;
10-11 (2) [and must] include the name of the subscriber and
10-12 [,] the telephone number [or numbers,] and [the] location of the
10-13 communication device [telephone instrument or instruments] on which
10-14 the pen register, ESN reader, [or] trap and trace device, or
10-15 similar equipment will be used, to the extent that information is
10-16 known or is reasonably ascertainable; and
10-17 (3) [utilized. The application must also] state that
10-18 the installation and use [utilization] of the device or equipment
10-19 [pen register or trap and trace device] will be material to the
10-20 investigation of a criminal offense.
10-21 (d) On presentation of the application, the judge may order
10-22 the installation and use [utilization] of the pen register, ESN
10-23 reader, or similar equipment by an authorized peace officer
10-24 commissioned by the department, and, on request of the applicant,
10-25 the judge shall direct in the order that a communication
10-26 [communications] common carrier or a provider of electronic
10-27 communications service furnish all information, facilities, and
11-1 technical assistance necessary to facilitate the installation and
11-2 use [utilization] of the device or equipment [pen register] by the
11-3 department unobtrusively and with a minimum of interference to the
11-4 services provided by the carrier or service. The carrier or
11-5 service is entitled to compensation at the prevailing rates for the
11-6 facilities and assistance provided to the department.
11-7 (e) On presentation of the application, the judge may order
11-8 the installation and use [operation] of the trap and trace device
11-9 or similar equipment by the communication [communications] common
11-10 carrier or other person on the appropriate line. The [, and in
11-11 that order the] judge may [shall] direct the communication
11-12 [communications] common carrier or other person, including [and]
11-13 any landlord or other custodian of equipment to furnish all
11-14 information, facilities, and technical assistance necessary to
11-15 install or use [and operate] the device or equipment unobtrusively
11-16 and with a minimum of interference to the services provided by the
11-17 communication [communications] common carrier, landlord, custodian,
11-18 or other person. Unless otherwise ordered by the court, the
11-19 results of the trap and trace device or similar equipment shall be
11-20 furnished to the applicant, designated by the court, at reasonable
11-21 intervals during regular business hours, for the duration of the
11-22 order. The carrier is entitled to compensation at the prevailing
11-23 rates for the facilities and assistance provided to the law
11-24 enforcement agency.
11-25 (f) Except as otherwise provided by this subsection, an [An]
11-26 order for the installation and use [utilization] of a [pen register
11-27 or trap and trace] device or equipment under this section is valid
12-1 for not more than 60 days after the earlier of the date the device
12-2 or equipment is installed or the 10th day [after 10 days] after the
12-3 date the order is entered, [whichever occurs first,] unless [prior
12-4 to the expiration of the order] the prosecutor [attorney for the
12-5 state] applies for and obtains from the court an extension of the
12-6 order before the order expires. The period of extension may not
12-7 exceed 60 days for each extension granted, except that with the
12-8 consent of the subscriber or customer of the service on which the
12-9 [pen register or trap and trace] device or equipment is used
12-10 [utilized], the court may extend an order for a period not to
12-11 exceed one year.
12-12 (g) The district court shall seal an application and order
12-13 [for the installation and utilization of a pen register or trap and
12-14 trace device] granted under this article. [The contents of an
12-15 application or order may not be disclosed except in the course of a
12-16 judicial proceeding and an unauthorized disclosure is punishable as
12-17 contempt of court.]
12-18 (h) A peace officer is not required to file an application
12-19 or obtain an order under this section before the officer makes an
12-20 otherwise lawful search, with or without a warrant, to determine
12-21 the contents of a caller identification message, pager message, or
12-22 voice message that is contained within the memory of an end-user's
12-23 identification, paging, or answering device.
12-24 SECTION 9. Section 3, Article 18.21, Code of Criminal
12-25 Procedure, is amended to read as follows:
12-26 Sec. 3. EMERGENCY INSTALLATION AND USE OF PEN REGISTER OR
12-27 [AND] TRAP AND TRACE DEVICE [INSTALLATION]. (a) A [An authorized]
13-1 peace officer authorized to possess, install, operate, or monitor a
13-2 device under Section 8A, Article 18.20, may[, designated by the
13-3 district or criminal district attorney of the county where the
13-4 installation will be used, may] install and use a pen register or
13-5 trap and trace device if the [peace] officer:
13-6 (1) reasonably believes an immediate life-threatening
13-7 situation exists that:
13-8 (A) is within the territorial jurisdiction of
13-9 the officer or another officer the officer is assisting; and
13-10 (B) requires [(1) an emergency requiring] the
13-11 installation of a pen register or trap and trace device before an
13-12 order authorizing the installation and use can, with due diligence,
13-13 be obtained under this article [, exists involving immediate danger
13-14 of death or serious injury to any person]; and
13-15 (2) reasonably believes there are sufficient grounds
13-16 under this article on which to obtain an order authorizing [could
13-17 be entered to authorize] the installation and use of a pen register
13-18 or trap and trace device.
13-19 (b) If an [authorized peace] officer installs or uses a pen
13-20 register or trap and trace device under Subsection (a), the [peace]
13-21 officer shall:
13-22 (1) promptly report the installation or use to the
13-23 prosecutor in the county in which the device is installed or used;
13-24 and
13-25 (2) within 48 hours after the installation is complete
13-26 or the use of the device begins, whichever occurs first, obtain an
13-27 order under Section 2 authorizing the installation and use [must
14-1 obtain an order approving installation and use within 48 hours
14-2 after the installation begins].
14-3 (c) A judge may issue an order authorizing the installation
14-4 and use of a device under this section during the 48-hour period
14-5 prescribed by Subsection (b)(2). If an order is denied or is not
14-6 issued within the 48-hour period, [If authorization is not obtained
14-7 within 48 hours,] the officer shall terminate use of and remove the
14-8 pen register or the trap and trace device promptly on the earlier
14-9 of the denial or the expiration of [the] 48 hours [or at the time
14-10 the order is denied, whichever is earlier].
14-11 (d) [(c)] The state may not use as evidence in a criminal
14-12 proceeding any information gained through the use of a pen register
14-13 or trap and trace device installed under this section if an
14-14 authorized peace officer does not apply for or applies for but does
14-15 not obtain authorization for the pen register or trap and trace
14-16 device [is denied].
14-17 SECTION 10. Section 14, Article 18.21, Code of Criminal
14-18 Procedure, is amended by adding Subsection (g) to read as follows:
14-19 (g) This section does not apply to a global positioning or
14-20 similar device installed in or on an item of property by the owner
14-21 or with the consent of the owner of the property. A device
14-22 described by this subsection may be monitored by a private entity
14-23 in an emergency.
14-24 SECTION 11. Section 16.02, Penal Code, is amended to read as
14-25 follows:
14-26 Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF
14-27 WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS. (a) In this section,
15-1 "covert entry," "communication common carrier," "contents,"
15-2 "electronic, mechanical, or other device," "immediate
15-3 life-threatening situation," "intercept," "investigative or law
15-4 enforcement officer," "member of a law enforcement unit specially
15-5 trained to respond to and deal with life-threatening situations,"
15-6 "oral communication," "electronic communication," "readily
15-7 accessible to the general public," and "wire communication" have
15-8 the meanings given those terms in Article 18.20, Code of Criminal
15-9 Procedure.
15-10 (b) A person commits an offense if the person [he]:
15-11 (1) intentionally intercepts, endeavors to intercept,
15-12 or procures another person to intercept or endeavor to intercept a
15-13 wire, oral, or electronic communication;
15-14 (2) intentionally discloses or endeavors to disclose
15-15 to another person the contents of a wire, oral, or electronic
15-16 communication if the person [he] knows or has reason to know the
15-17 information was obtained through the interception of a wire, oral,
15-18 or electronic communication in violation of this subsection;
15-19 (3) intentionally uses or endeavors to use the
15-20 contents of a wire, oral, or electronic communication if the person
15-21 [he] knows or is reckless about whether the information was
15-22 obtained through the interception of a wire, oral, or electronic
15-23 communication in violation of this subsection;
15-24 (4) knowingly or intentionally effects a covert entry
15-25 for the purpose of intercepting wire, oral, or electronic
15-26 communications without court order or authorization; or
15-27 (5) intentionally uses, endeavors to use, or procures
16-1 any other person to use or endeavor to use any electronic,
16-2 mechanical, or other device to intercept any oral communication
16-3 when the device:
16-4 (A) is affixed to, or otherwise transmits a
16-5 signal through a wire, cable, or other connection used in wire
16-6 communications; or
16-7 (B) transmits communications by radio or
16-8 interferes with the transmission of communications by radio.
16-9 (c) It is an affirmative defense to prosecution under
16-10 Subsection (b) that:
16-11 (1) an operator of a switchboard or an officer,
16-12 employee, or agent of a communication common carrier whose
16-13 facilities are used in the transmission of a wire or electronic
16-14 communication intercepts a communication or discloses or uses an
16-15 intercepted communication in the normal course of employment while
16-16 engaged in an activity that is a necessary incident to the
16-17 rendition of service or to the protection of the rights or property
16-18 of the carrier of the communication, unless the interception
16-19 results from the communication common carrier's use of service
16-20 observing or random monitoring for purposes other than mechanical
16-21 or service quality control checks;
16-22 (2) an officer, employee, or agent of a communication
16-23 common carrier provides information, facilities, or technical
16-24 assistance to an investigative or law enforcement officer who is
16-25 authorized as provided by this article to intercept a wire, oral,
16-26 or electronic communication;
16-27 (3) a person acting under color of law intercepts a
17-1 wire, oral, or electronic communication if the person is a party to
17-2 the communication or if one of the parties to the communication has
17-3 given prior consent to the interception;
17-4 (4) a person not acting under color of law intercepts
17-5 a wire, oral, or electronic communication if the person is a party
17-6 to the communication or if one of the parties to the communication
17-7 has given prior consent to the interception unless the
17-8 communication is intercepted for the purpose of committing any
17-9 criminal or tortious act in violation of the constitution or laws
17-10 of the United States or of this state or for the purpose of
17-11 committing any other injurious act;
17-12 (5) a person acting under color of law intercepts a
17-13 wire, oral, or electronic communication if:
17-14 (A) oral or written consent for the interception
17-15 is given by a magistrate before the interception;
17-16 (B) an immediate life-threatening situation
17-17 exists;
17-18 (C) the person is a member of a law enforcement
17-19 unit specially trained to:
17-20 (i) respond to and deal with
17-21 life-threatening situations; or
17-22 (ii) install electronic, mechanical, or
17-23 other devices; and
17-24 (D) the interception ceases immediately on
17-25 termination of the life-threatening situation;
17-26 (6) an officer, employee, or agent of the Federal
17-27 Communications Commission intercepts a communication transmitted by
18-1 radio or discloses or uses an intercepted communication in the
18-2 normal course of employment and in the discharge of the monitoring
18-3 responsibilities exercised by the Federal Communications Commission
18-4 in the enforcement of Chapter 5, Title 47, United States Code;
18-5 (7) a person intercepts or obtains access to an
18-6 electronic communication that was made through an electronic
18-7 communication system that is configured to permit the communication
18-8 to be readily accessible to the general public;
18-9 (8) a person intercepts radio communication, other
18-10 than a cordless telephone communication that is transmitted between
18-11 a cordless telephone handset and a base unit, that is transmitted:
18-12 (A) by a station for the use of the general
18-13 public;
18-14 (B) to ships, aircraft, vehicles, or persons in
18-15 distress;
18-16 (C) by a governmental, law enforcement, civil
18-17 defense, private land mobile, or public safety communications
18-18 system that is readily accessible to the general public, unless the
18-19 radio communication is transmitted by a law enforcement
18-20 representative to or from a mobile data terminal;
18-21 (D) by a station operating on an authorized
18-22 frequency within the bands allocated to the amateur, citizens band,
18-23 or general mobile radio services; or
18-24 (E) by a marine or aeronautical communications
18-25 system;
18-26 (9) a person intercepts a wire or electronic
18-27 communication the transmission of which causes harmful interference
19-1 to a lawfully operating station or consumer electronic equipment,
19-2 to the extent necessary to identify the source of the interference;
19-3 (10) a user of the same frequency intercepts a radio
19-4 communication made through a system that uses frequencies monitored
19-5 by individuals engaged in the provision or the use of the system,
19-6 if the communication is not scrambled or encrypted; or
19-7 (11) a provider of electronic communications service
19-8 records the fact that a wire or electronic communication was
19-9 initiated or completed in order to protect the provider, another
19-10 provider furnishing service towards the completion of the
19-11 communication, or a user of that service from fraudulent, unlawful,
19-12 or abusive use of the service.
19-13 (d) [(1)] A person commits an offense if the person [he]:
19-14 (1) [(A)] intentionally manufactures, assembles,
19-15 possesses, or sells an electronic, mechanical, or other device
19-16 knowing or having reason to know that the device is designed
19-17 primarily for nonconsensual interception of wire, electronic, or
19-18 oral communications and that the device or a component of the
19-19 device has been or will be used for an unlawful purpose; or
19-20 (2) [(B)] places in a newspaper, magazine, handbill,
19-21 or other publication an advertisement of an electronic, mechanical,
19-22 or other device:
19-23 (A) [(i)] knowing or having reason to know that
19-24 the device is designed primarily for nonconsensual interception of
19-25 wire, electronic, or oral communications;
19-26 (B) [(ii)] promoting the use of the device for
19-27 the purpose of nonconsensual interception of wire, electronic, or
20-1 oral communications; or
20-2 (C) [(iii)] knowing or having reason to know
20-3 that the advertisement will promote the use of the device for the
20-4 purpose of nonconsensual interception of wire, electronic, or oral
20-5 communications.
20-6 [(2) An offense under Subdivision (1) is a state jail
20-7 felony.]
20-8 (e) It is an affirmative defense to prosecution under
20-9 Subsection (d) that the manufacture, assembly, possession, or sale
20-10 of an electronic, mechanical, or other device that is designed
20-11 primarily for the purpose of nonconsensual interception of wire,
20-12 electronic, or oral communication is by:
20-13 (1) a communication common carrier or a provider of
20-14 wire or electronic communications service or an officer, agent, or
20-15 employee of or a person under contract with a communication common
20-16 carrier or provider acting in the normal course of the provider's
20-17 or communication carrier's business;
20-18 (2) an officer, agent, or employee of a person under
20-19 contract with, bidding on contracts with, or doing business with
20-20 the United States or this state acting in the normal course of the
20-21 activities of the United States or this state; [or]
20-22 (3) a member of the Department of Public Safety who is
20-23 specifically trained to install wire, oral, or electronic
20-24 communications intercept equipment; or
20-25 (4) a member of a local law enforcement agency that
20-26 has an established unit specifically designated to respond to and
20-27 deal with life-threatening situations [or specifically trained to
21-1 install wire, oral, or electronic communications intercept
21-2 equipment].
21-3 (f) An [Except as provided by Subsections (d) and (h), an]
21-4 offense under this section is a felony of the second degree, unless
21-5 the offense is committed under Subsection (d) or (g), in which
21-6 event the offense is a state jail felony.
21-7 (g) [For purposes of this section:]
21-8 [(1) An immediate life-threatening situation exists
21-9 when human life is directly threatened in either a hostage or
21-10 barricade situation.]
21-11 [(2) "Member of a law enforcement unit specially
21-12 trained to respond to and deal with life-threatening situations"
21-13 means a peace officer who has received a minimum of 40 hours a year
21-14 of training in hostage and barricade suspect situations. This
21-15 training must be evidenced by the submission of appropriate
21-16 documentation to the Commission on Law Enforcement Officer
21-17 Standards and Education.]
21-18 [(h) (1)] A person commits an offense if, knowing that a
21-19 government attorney or an investigative or law enforcement officer
21-20 has been authorized or has applied for authorization to intercept
21-21 wire, electronic, or oral communications, the person obstructs,
21-22 impedes, prevents, gives notice to another of, or attempts to give
21-23 notice to another of the interception.
21-24 (h) [(2) An offense under this subsection is a state jail
21-25 felony.]
21-26 [(i)] This section expires September 1, 2005, and shall not
21-27 be in force on and after that date.
22-1 SECTION 12. The change in law made by this Act applies only
22-2 to an offense committed on or after the effective date of this Act.
22-3 An offense committed before the effective date of this Act is
22-4 covered by the law in effect when the offense was committed, and
22-5 the former law is continued in effect for that purpose. For
22-6 purposes of this section, an offense was committed before the
22-7 effective date of this Act if any element of the offense occurred
22-8 before that date.
22-9 SECTION 13. This Act takes effect September 1, 2001.