1-1 By: Armbrister S.B. No. 1345
1-2 (In the Senate - Filed March 8, 2001; March 13, 2001, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 9, 2001, reported favorably by the following vote: Yeas 7,
1-5 Nays 0; April 9, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the interception of wire, oral, or electronic
1-9 communications, to the use of pen registers and trap and trace
1-10 devices, and to the civil and criminal consequences of improperly
1-11 engaging in those activities.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 1, Article 18.20, Code of Criminal
1-14 Procedure, is amended by adding Subdivisions (22) and (23) to read
1-15 as follows:
1-16 (22) "Immediate life-threatening situation" means a
1-17 hostage, barricade, or similar emergency situation in which human
1-18 life is directly threatened.
1-19 (23) "Member of a law enforcement unit specially
1-20 trained to respond to and deal with life-threatening situations"
1-21 means a peace officer who receives a minimum of 40 hours a year of
1-22 training in hostage and barricade suspect situations as evidenced
1-23 by the submission of appropriate documentation to the Commission on
1-24 Law Enforcement Officer Standards and Education.
1-25 SECTION 2. Section 2, Article 18.20, Code of Criminal
1-26 Procedure, is amended to read as follows:
1-27 Sec. 2. PROHIBITION OF USE AS EVIDENCE OF INTERCEPTED
1-28 COMMUNICATIONS. (a) The contents of an intercepted communication
1-29 and evidence derived from an intercepted communication may [not] be
1-30 received in evidence in any trial, hearing, or other proceeding in
1-31 or before any court, grand jury, department, officer, agency,
1-32 regulatory body, legislative committee, or other authority of the
1-33 United States or of this state or a political subdivision of this
1-34 state unless:
1-35 (1) the communication was intercepted in violation of
1-36 this article, Section 16.02, Penal Code, or federal law; or
1-37 (2) [if] the disclosure of the contents of the
1-38 intercepted communication or evidence derived from the
1-39 communication [that information] would be in violation of this
1-40 article, Section 16.02, Penal Code, or federal law.
1-41 (b) The contents of an intercepted communication and
1-42 evidence derived from an intercepted communication may be received
1-43 in a civil trial, hearing, or other proceeding only if the civil
1-44 trial, hearing, or other proceeding arises out of a violation of a
1-45 penal law [the Penal Code, Code of Criminal Procedure, Controlled
1-46 Substances Act, or Dangerous Drug Act].
1-47 (c) This section does not prohibit the use or admissibility
1-48 of the contents of a communication or evidence derived from the
1-49 communication if the communication was intercepted in a
1-50 jurisdiction outside this state in compliance with the law of that
1-51 jurisdiction.
1-52 SECTION 3. Section 4, Article 18.20, Code of Criminal
1-53 Procedure, is amended to read as follows:
1-54 Sec. 4. OFFENSES FOR WHICH INTERCEPTIONS MAY BE AUTHORIZED.
1-55 A judge may issue an order authorizing interception of wire, oral,
1-56 or electronic communications only if the prosecutor applying for
1-57 the order shows probable cause to believe that the interception
1-58 will provide evidence of the commission of:
1-59 (1) a felony under Section 19.03(a)(3) or Section
1-60 43.26, Penal Code;
1-61 (2) a felony [(other than felony possession of
1-62 marihuana)] under:
1-63 (A) Chapter 481, Health and Safety Code, other
1-64 than felony possession of marihuana;
2-1 (B) [or] Section 485.033, Health and Safety
2-2 Code; or
2-3 (C) [of a felony under] Chapter 483, Health and
2-4 Safety Code; or
2-5 (3) an attempt, conspiracy, or solicitation to commit
2-6 an offense listed in this section.
2-7 SECTION 4. Subsection (a), Section 5, Article 18.20, Code of
2-8 Criminal Procedure, is amended to read as follows:
2-9 (a) Except as provided by Section 8A, only [Only] the
2-10 Department of Public Safety is authorized by this article to own,
2-11 possess, install, operate, or monitor an electronic, mechanical, or
2-12 other device. The Department of Public Safety may be assisted by
2-13 an investigative or law enforcement officer or other person in the
2-14 operation and monitoring of an interception of wire, oral, or
2-15 electronic communications, provided that the officer or other
2-16 person:
2-17 (1) is designated by the director for that purpose;
2-18 and
2-19 (2) acts in the presence and under the direction of a
2-20 commissioned officer of the Department of Public Safety [is present
2-21 at all times].
2-22 SECTION 5. Article 18.20, Code of Criminal Procedure, is
2-23 amended by adding Section 8A to read as follows:
2-24 Sec. 8A. EMERGENCY INSTALLATION AND USE OF INTERCEPTING
2-25 DEVICE. (a) The prosecutor in a county in which an electronic,
2-26 mechanical, or other device is to be installed or used to intercept
2-27 wire, oral, or electronic communications shall designate in writing
2-28 each peace officer in the county, other than a commissioned officer
2-29 of the Department of Public Safety, who:
2-30 (1) is a member of a law enforcement unit specially
2-31 trained to respond to and deal with life-threatening situations;
2-32 and
2-33 (2) is authorized to possess such a device and
2-34 responsible for the installation, operation, and monitoring of the
2-35 device in an immediate life-threatening situation.
2-36 (b) A peace officer designated under Subsection (a) or under
2-37 Section 5(b) may possess, install, operate, or monitor an
2-38 electronic, mechanical, or other device to intercept wire, oral, or
2-39 electronic communications if the officer:
2-40 (1) reasonably believes an immediate life-threatening
2-41 situation exists that:
2-42 (A) is within the territorial jurisdiction of
2-43 the officer or another officer the officer is assisting; and
2-44 (B) requires interception of communications
2-45 before an order authorizing the interception can, with due
2-46 diligence, be obtained under this section;
2-47 (2) reasonably believes there are sufficient grounds
2-48 under this section on which to obtain an order authorizing the
2-49 interception; and
2-50 (3) obtains from a magistrate oral or written consent
2-51 to the interception before beginning the interception.
2-52 (c) A magistrate may give oral or written consent to the
2-53 interception of communications under this section.
2-54 (d) If an officer installs or uses a device under Subsection
2-55 (b), the officer shall:
2-56 (1) promptly report the installation or use to the
2-57 prosecutor in the county in which the device is installed or used;
2-58 and
2-59 (2) within 48 hours after the installation is complete
2-60 or the interception begins, whichever occurs first, obtain a
2-61 written order from a judge of competent jurisdiction authorizing
2-62 the interception.
2-63 (e) A judge may issue an order authorizing interception of
2-64 communications under this section during the 48-hour period
2-65 prescribed by Subsection (d)(2). If an order is denied or is not
2-66 issued within the 48-hour period, the officer shall terminate use
2-67 of and remove the device promptly on the earlier of the denial or
2-68 the expiration of 48 hours.
2-69 (f) The state may not use as evidence in a criminal
3-1 proceeding any information gained through the use of a device
3-2 installed under this section if authorization for the device is not
3-3 sought or is sought but not obtained.
3-4 SECTION 6. Subsections (c) and (d), Section 9, Article
3-5 18.20, Code of Criminal Procedure, are amended to read as follows:
3-6 (c) On request of the applicant for [In] an order
3-7 authorizing the interception of a wire, oral, or electronic
3-8 communication, the judge may issue a separate order directing
3-9 [issuing it, on request of the applicant, shall direct] that a
3-10 provider of wire or electronic communications service, a
3-11 communication common carrier, landlord, custodian, or other person
3-12 furnish the applicant all information, facilities, and technical
3-13 assistance necessary to accomplish the interception unobtrusively
3-14 and with a minimum of interference with the services that the
3-15 provider, carrier, landlord, custodian, or other person is
3-16 providing the person whose communications are to be intercepted.
3-17 Any provider of wire or electronic communications service,
3-18 communication common carrier, landlord, custodian, or other person
3-19 furnishing facilities or technical assistance is entitled to
3-20 compensation by the applicant for the facilities or assistance at
3-21 the prevailing rates.
3-22 (d) An order entered pursuant to this section may not
3-23 authorize the interception of a wire, oral, or electronic
3-24 communication for longer than is necessary to achieve the objective
3-25 of the authorization and in no event may it authorize interception
3-26 for more than 30 days. The issuing judge may grant extensions of
3-27 an order, but only on application for an extension made in
3-28 accordance with Section 8 [of this article] and the court making
3-29 the findings required by Subsection (a) [of this section]. The
3-30 period of extension may not be longer than the authorizing judge
3-31 deems necessary to achieve the purposes for which it is granted and
3-32 in no event may the extension be for more than 30 days. To be
3-33 valid, each order and extension of an order must provide that the
3-34 authorization to intercept be executed as soon as practicable, be
3-35 conducted in a way that minimizes the interception of
3-36 communications not otherwise subject to interception under this
3-37 article, and terminate on obtaining the authorized objective or
3-38 within 30 days, whichever occurs sooner. If the intercepted
3-39 communication is in code or a foreign language and an expert in
3-40 that code or language is not reasonably available during the period
3-41 of interception, minimization may be accomplished as soon as
3-42 practicable after the interception.
3-43 SECTION 7. Section 1, Article 18.21, Code of Criminal
3-44 Procedure, is amended by amending Subdivision (1) and adding
3-45 Subdivisions (8) and (9) to read as follows:
3-46 (1) "Aural transfer," "communication common carrier,"
3-47 "electronic communication," "electronic communications service,"
3-48 "electronic communications system," "electronic storage,"
3-49 "immediate life-threatening situation," "member of a law
3-50 enforcement unit specially trained to respond to and deal with
3-51 life-threatening situations," "pen register," "readily accessible
3-52 to the general public," "user," and "wire communication" have the
3-53 meanings assigned by Article 18.20.
3-54 (8) "ESN reader" means a device that records the
3-55 electronic serial number from the data track of a wireless
3-56 telephone, cellular telephone, or similar communication device that
3-57 transmits its operational status to a base site.
3-58 (9) "Prosecutor" means a district attorney, criminal
3-59 district attorney, or county attorney performing the duties of a
3-60 district attorney.
3-61 SECTION 8. Section 2, Article 18.21, Code of Criminal
3-62 Procedure, is amended to read as follows:
3-63 Sec. 2. APPLICATION AND ORDER [OF PEN REGISTERS OR TRAP AND
3-64 TRACE DEVICES]. (a) A prosecutor with jurisdiction in a county
3-65 within a judicial district described by this subsection [An
3-66 authorized peace officer commissioned by the department] may
3-67 [request an attorney for the state to] file an application for the
3-68 installation and use of a pen register, ESN reader, trap and trace
3-69 device, or similar equipment that combines the function of a pen
4-1 register and a trap and trace device with a district judge in [of]
4-2 the judicial district. The judicial district must be a district in
4-3 which is located:
4-4 (1) the site of the proposed installation or use of
4-5 the device or equipment;
4-6 (2) the site of the communication device on which the
4-7 device or equipment is proposed to be installed or used;
4-8 (3) the billing, residential, or business address of
4-9 the subscriber to the electronic communications service on which
4-10 the device or equipment is proposed to be installed or used;
4-11 (4) the headquarters of:
4-12 (A) the office of the prosecutor filing an
4-13 application under this section; or
4-14 (B) a law enforcement agency that requests the
4-15 prosecutor to file an application under this section or that
4-16 proposes to execute an order authorizing installation and use of
4-17 the device or equipment; or
4-18 (5) the headquarters of a service provider ordered to
4-19 install the device or equipment [the proposed installation will be
4-20 made for the installation and use of a pen register to obtain
4-21 information material to the investigation of a criminal offense].
4-22 (b) A prosecutor [district or criminal district attorney]
4-23 may [on his own motion] file an application under this section on
4-24 the prosecutor's own motion or on the request of an authorized
4-25 peace officer, regardless of whether the officer is commissioned by
4-26 the department. A prosecutor who files an application on the
4-27 prosecutor's own motion or who files an application for the
4-28 installation and use of a pen register, ESN reader, or similar
4-29 equipment on the request of an authorized peace officer not
4-30 commissioned by the department [The district or criminal district
4-31 attorney who is acting on his own motion] must make the application
4-32 personally and may not do so through an assistant or some other
4-33 person acting on the prosecutor's [his] behalf. A prosecutor may
4-34 make an application through an assistant or other person acting on
4-35 the prosecutor's behalf if the prosecutor files an application for
4-36 the installation and use of:
4-37 (1) a pen register, ESN reader, or similar equipment
4-38 on the request of an authorized peace officer who is commissioned
4-39 by the department; or
4-40 (2) a trap and trace device or similar equipment on
4-41 the request of an authorized peace officer, regardless of whether
4-42 the officer is commissioned by the department.
4-43 [(b) An authorized peace officer may request an attorney for
4-44 the state to file an application with a judge of the judicial
4-45 district in which the proposed installation will be made for the
4-46 installation and use of a trap and trace device to obtain
4-47 information material to the investigation of a criminal offense. A
4-48 district or criminal district attorney may on his own motion file
4-49 an application under this section. The district or criminal
4-50 district attorney who is acting on his own motion must make the
4-51 application personally and may not do so through an assistant or
4-52 some other person acting on his behalf.]
4-53 (c) The application must:
4-54 (1) be made in writing under oath;
4-55 (2) [and must] include the name of the subscriber and
4-56 [,] the telephone number [or numbers,] and [the] location of the
4-57 communication device [telephone instrument or instruments] on which
4-58 the pen register, ESN reader, [or] trap and trace device, or
4-59 similar equipment will be used, to the extent that information is
4-60 known or is reasonably ascertainable; and
4-61 (3) [utilized. The application must also] state that
4-62 the installation and use [utilization] of the [pen register or trap
4-63 and trace] device or equipment will be material to the
4-64 investigation of a criminal offense.
4-65 (d) On presentation of the application, the judge may order
4-66 the installation and use [utilization] of the pen register, ESN
4-67 reader, or similar equipment by an authorized peace officer
4-68 commissioned by the department, and, on request of the applicant,
4-69 the judge shall direct in the order that a communication
5-1 [communications] common carrier or a provider of electronic
5-2 communications service furnish all information, facilities, and
5-3 technical assistance necessary to facilitate the installation and
5-4 use [utilization] of the device or equipment [pen register] by the
5-5 department unobtrusively and with a minimum of interference to the
5-6 services provided by the carrier or service. The carrier or
5-7 service is entitled to compensation at the prevailing rates for the
5-8 facilities and assistance provided to the department.
5-9 (e) On presentation of the application, the judge may order
5-10 the installation and use [operation] of the trap and trace device
5-11 or similar equipment by the communication [communications] common
5-12 carrier or other person on the appropriate line. The[, and in that
5-13 order the] judge may [shall] direct the communication
5-14 [communications] common carrier or other person, including [and]
5-15 any landlord or other custodian of equipment, to furnish all
5-16 information, facilities, and technical assistance necessary to
5-17 install or use [and operate] the device or equipment unobtrusively
5-18 and with a minimum of interference to the services provided by the
5-19 communication [communications] common carrier, landlord, custodian,
5-20 or other person. Unless otherwise ordered by the court, the
5-21 results of the trap and trace device or similar equipment shall be
5-22 furnished to the applicant, designated by the court, at reasonable
5-23 intervals during regular business hours, for the duration of the
5-24 order. The carrier is entitled to compensation at the prevailing
5-25 rates for the facilities and assistance provided to the law
5-26 enforcement agency.
5-27 (f) Except as otherwise provided by this subsection, an [An]
5-28 order for the installation and use [utilization] of a [pen register
5-29 or trap and trace] device or equipment under this section is valid
5-30 for not more than 60 days after the earlier of the date the device
5-31 or equipment is installed or the 10th day [after 10 days] after the
5-32 date the order is entered, [whichever occurs first,] unless [prior
5-33 to the expiration of the order] the prosecutor [attorney for the
5-34 state] applies for and obtains from the court an extension of the
5-35 order before the order expires. The period of extension may not
5-36 exceed 60 days for each extension granted, except that with the
5-37 consent of the subscriber or customer of the service on which the
5-38 [pen register or trap and trace] device or equipment is used
5-39 [utilized], the court may extend an order for a period not to
5-40 exceed one year.
5-41 (g) The district court shall seal an application and order
5-42 [for the installation and utilization of a pen register or trap and
5-43 trace device] granted under this article[. The contents of an
5-44 application or order may not be disclosed except in the course of a
5-45 judicial proceeding and an unauthorized disclosure is punishable as
5-46 contempt of court].
5-47 (h) A peace officer is not required to file an application
5-48 or obtain an order under this section before the officer makes an
5-49 otherwise lawful search, with or without a warrant, to determine
5-50 the contents of a caller identification message, pager message, or
5-51 voice message that is contained within the memory of an end-user's
5-52 identification, paging, or answering device.
5-53 SECTION 9. Section 3, Article 18.21, Code of Criminal
5-54 Procedure, is amended to read as follows:
5-55 Sec. 3. EMERGENCY INSTALLATION AND USE OF PEN REGISTER OR
5-56 [AND] TRAP AND TRACE DEVICE [INSTALLATION]. (a) A [An authorized]
5-57 peace officer authorized to possess, install, operate, or monitor a
5-58 device under Section 8A, Article 18.20, [designated by the district
5-59 or criminal district attorney of the county where the installation
5-60 will be used,] may install and use a pen register or trap and trace
5-61 device if the [peace] officer:
5-62 (1) reasonably believes an immediate life-threatening
5-63 situation exists that:
5-64 (A) is within the territorial jurisdiction of
5-65 the officer or another officer the officer is assisting; and
5-66 (B) requires [(1) an emergency requiring] the
5-67 installation of a pen register or trap and trace device before an
5-68 order authorizing the installation and use can, with due diligence,
5-69 be obtained under this article[, exists involving immediate danger
6-1 of death or serious injury to any person]; and
6-2 (2) reasonably believes there are sufficient grounds
6-3 under this article on which to obtain an order authorizing [could
6-4 be entered to authorize] the installation and use of a pen register
6-5 or trap and trace device.
6-6 (b) If an [authorized peace] officer installs or uses a pen
6-7 register or trap and trace device under Subsection (a), the [peace]
6-8 officer shall:
6-9 (1) promptly report the installation or use to the
6-10 prosecutor in the county in which the device is installed or used;
6-11 and
6-12 (2) within 48 hours after the installation is complete
6-13 or the use of the device begins, whichever occurs first, obtain an
6-14 order under Section 2 authorizing the installation and use [must
6-15 obtain an order approving installation and use within 48 hours
6-16 after the installation begins].
6-17 (c) A judge may issue an order authorizing the installation
6-18 and use of a device under this section during the 48-hour period
6-19 prescribed by Subsection (b)(2). If an order is denied or is not
6-20 issued within the 48-hour period [If authorization is not obtained
6-21 within 48 hours], the officer shall terminate use of and remove the
6-22 pen register or the trap and trace device promptly on the earlier
6-23 of the denial or the expiration of [the] 48 hours [or at the time
6-24 the order is denied, whichever is earlier].
6-25 (d) [(c)] The state may not use as evidence in a criminal
6-26 proceeding any information gained through the use of a pen register
6-27 or trap and trace device installed under this section if an
6-28 authorized peace officer does not apply for or applies for but does
6-29 not obtain authorization for the pen register or trap and trace
6-30 device [is denied].
6-31 SECTION 10. Section 14, Article 18.21, Code of Criminal
6-32 Procedure, is amended by adding Subsection (g) to read as follows:
6-33 (g) This section does not apply to a global positioning or
6-34 similar device installed in or on an item of property by the owner
6-35 or with the consent of the owner of the property. A device
6-36 described by this subsection may be monitored by a private entity
6-37 in an emergency.
6-38 SECTION 11. Section 16.02, Penal Code, is amended to read as
6-39 follows:
6-40 Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF
6-41 WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS. (a) In this section,
6-42 "covert entry," "communication common carrier," "contents,"
6-43 "electronic, mechanical, or other device," "immediate
6-44 life-threatening situation," "intercept," "investigative or law
6-45 enforcement officer," "member of a law enforcement unit specially
6-46 trained to respond to and deal with life-threatening situations,"
6-47 "oral communication," "electronic communication," "readily
6-48 accessible to the general public," and "wire communication" have
6-49 the meanings given those terms in Article 18.20, Code of Criminal
6-50 Procedure.
6-51 (b) A person commits an offense if the person [he]:
6-52 (1) intentionally intercepts, endeavors to intercept,
6-53 or procures another person to intercept or endeavor to intercept a
6-54 wire, oral, or electronic communication;
6-55 (2) intentionally discloses or endeavors to disclose
6-56 to another person the contents of a wire, oral, or electronic
6-57 communication if the person [he] knows or has reason to know the
6-58 information was obtained through the interception of a wire, oral,
6-59 or electronic communication in violation of this subsection;
6-60 (3) intentionally uses or endeavors to use the
6-61 contents of a wire, oral, or electronic communication if the person
6-62 [he] knows or is reckless about whether the information was
6-63 obtained through the interception of a wire, oral, or electronic
6-64 communication in violation of this subsection;
6-65 (4) knowingly or intentionally effects a covert entry
6-66 for the purpose of intercepting wire, oral, or electronic
6-67 communications without court order or authorization; or
6-68 (5) intentionally uses, endeavors to use, or procures
6-69 any other person to use or endeavor to use any electronic,
7-1 mechanical, or other device to intercept any oral communication
7-2 when the device:
7-3 (A) is affixed to, or otherwise transmits a
7-4 signal through a wire, cable, or other connection used in wire
7-5 communications; or
7-6 (B) transmits communications by radio or
7-7 interferes with the transmission of communications by radio.
7-8 (c) It is an affirmative defense to prosecution under
7-9 Subsection (b) that:
7-10 (1) an operator of a switchboard or an officer,
7-11 employee, or agent of a communication common carrier whose
7-12 facilities are used in the transmission of a wire or electronic
7-13 communication intercepts a communication or discloses or uses an
7-14 intercepted communication in the normal course of employment while
7-15 engaged in an activity that is a necessary incident to the
7-16 rendition of service or to the protection of the rights or property
7-17 of the carrier of the communication, unless the interception
7-18 results from the communication common carrier's use of service
7-19 observing or random monitoring for purposes other than mechanical
7-20 or service quality control checks;
7-21 (2) an officer, employee, or agent of a communication
7-22 common carrier provides information, facilities, or technical
7-23 assistance to an investigative or law enforcement officer who is
7-24 authorized as provided by this article to intercept a wire, oral,
7-25 or electronic communication;
7-26 (3) a person acting under color of law intercepts a
7-27 wire, oral, or electronic communication if the person is a party to
7-28 the communication or if one of the parties to the communication has
7-29 given prior consent to the interception;
7-30 (4) a person not acting under color of law intercepts
7-31 a wire, oral, or electronic communication if the person is a party
7-32 to the communication or if one of the parties to the communication
7-33 has given prior consent to the interception unless the
7-34 communication is intercepted for the purpose of committing any
7-35 criminal or tortious act in violation of the constitution or laws
7-36 of the United States or of this state or for the purpose of
7-37 committing any other injurious act;
7-38 (5) a person acting under color of law intercepts a
7-39 wire, oral, or electronic communication if:
7-40 (A) oral or written consent for the interception
7-41 is given by a magistrate before the interception;
7-42 (B) an immediate life-threatening situation
7-43 exists;
7-44 (C) the person is a member of a law enforcement
7-45 unit specially trained to:
7-46 (i) respond to and deal with
7-47 life-threatening situations; or
7-48 (ii) install electronic, mechanical, or
7-49 other devices; and
7-50 (D) the interception ceases immediately on
7-51 termination of the life-threatening situation;
7-52 (6) an officer, employee, or agent of the Federal
7-53 Communications Commission intercepts a communication transmitted by
7-54 radio or discloses or uses an intercepted communication in the
7-55 normal course of employment and in the discharge of the monitoring
7-56 responsibilities exercised by the Federal Communications Commission
7-57 in the enforcement of Chapter 5, Title 47, United States Code;
7-58 (7) a person intercepts or obtains access to an
7-59 electronic communication that was made through an electronic
7-60 communication system that is configured to permit the communication
7-61 to be readily accessible to the general public;
7-62 (8) a person intercepts radio communication, other
7-63 than a cordless telephone communication that is transmitted between
7-64 a cordless telephone handset and a base unit, that is transmitted:
7-65 (A) by a station for the use of the general
7-66 public;
7-67 (B) to ships, aircraft, vehicles, or persons in
7-68 distress;
7-69 (C) by a governmental, law enforcement, civil
8-1 defense, private land mobile, or public safety communications
8-2 system that is readily accessible to the general public, unless the
8-3 radio communication is transmitted by a law enforcement
8-4 representative to or from a mobile data terminal;
8-5 (D) by a station operating on an authorized
8-6 frequency within the bands allocated to the amateur, citizens band,
8-7 or general mobile radio services; or
8-8 (E) by a marine or aeronautical communications
8-9 system;
8-10 (9) a person intercepts a wire or electronic
8-11 communication the transmission of which causes harmful interference
8-12 to a lawfully operating station or consumer electronic equipment,
8-13 to the extent necessary to identify the source of the interference;
8-14 (10) a user of the same frequency intercepts a radio
8-15 communication made through a system that uses frequencies monitored
8-16 by individuals engaged in the provision or the use of the system,
8-17 if the communication is not scrambled or encrypted; or
8-18 (11) a provider of electronic communications service
8-19 records the fact that a wire or electronic communication was
8-20 initiated or completed in order to protect the provider, another
8-21 provider furnishing service towards the completion of the
8-22 communication, or a user of that service from fraudulent, unlawful,
8-23 or abusive use of the service.
8-24 (d)[(1)] A person commits an offense if the person [he]:
8-25 (1) [(A)] intentionally manufactures, assembles,
8-26 possesses, or sells an electronic, mechanical, or other device
8-27 knowing or having reason to know that the device is designed
8-28 primarily for nonconsensual interception of wire, electronic, or
8-29 oral communications and that the device or a component of the
8-30 device has been or will be used for an unlawful purpose; or
8-31 (2) [(B)] places in a newspaper, magazine, handbill,
8-32 or other publication an advertisement of an electronic, mechanical,
8-33 or other device:
8-34 (A) [(i)] knowing or having reason to know that
8-35 the device is designed primarily for nonconsensual interception of
8-36 wire, electronic, or oral communications;
8-37 (B) [(ii)] promoting the use of the device for
8-38 the purpose of nonconsensual interception of wire, electronic, or
8-39 oral communications; or
8-40 (C) [(iii)] knowing or having reason to know
8-41 that the advertisement will promote the use of the device for the
8-42 purpose of nonconsensual interception of wire, electronic, or oral
8-43 communications.
8-44 [(2) An offense under Subdivision (1) is a state jail
8-45 felony.]
8-46 (e) It is an affirmative defense to prosecution under
8-47 Subsection (d) that the manufacture, assembly, possession, or sale
8-48 of an electronic, mechanical, or other device that is designed
8-49 primarily for the purpose of nonconsensual interception of wire,
8-50 electronic, or oral communication is by:
8-51 (1) a communication common carrier or a provider of
8-52 wire or electronic communications service or an officer, agent, or
8-53 employee of or a person under contract with a communication common
8-54 carrier or provider acting in the normal course of the provider's
8-55 or communication carrier's business;
8-56 (2) an officer, agent, or employee of a person under
8-57 contract with, bidding on contracts with, or doing business with
8-58 the United States or this state acting in the normal course of the
8-59 activities of the United States or this state; [or]
8-60 (3) a member of the Department of Public Safety who is
8-61 specifically trained to install wire, oral, or electronic
8-62 communications intercept equipment; or
8-63 (4) a member of a local law enforcement agency that
8-64 has an established unit specifically designated to respond to and
8-65 deal with life-threatening situations [or specifically trained to
8-66 install wire, oral, or electronic communications intercept
8-67 equipment].
8-68 (f) An [Except as provided by Subsections (d) and (h), an]
8-69 offense under this section is a felony of the second degree, unless
9-1 the offense is committed under Subsection (d) or (g), in which
9-2 event the offense is a state jail felony.
9-3 (g) [For purposes of this section:]
9-4 [(1) An immediate life-threatening situation exists
9-5 when human life is directly threatened in either a hostage or
9-6 barricade situation.]
9-7 [(2) "Member of a law enforcement unit specially
9-8 trained to respond to and deal with life-threatening situations"
9-9 means a peace officer who has received a minimum of 40 hours a year
9-10 of training in hostage and barricade suspect situations. This
9-11 training must be evidenced by the submission of appropriate
9-12 documentation to the Commission on Law Enforcement Officer
9-13 Standards and Education.]
9-14 [(h) (1)] A person commits an offense if, knowing that a
9-15 government attorney or an investigative or law enforcement officer
9-16 has been authorized or has applied for authorization to intercept
9-17 wire, electronic, or oral communications, the person obstructs,
9-18 impedes, prevents, gives notice to another of, or attempts to give
9-19 notice to another of the interception.
9-20 (h) [(2) An offense under this subsection is a state jail
9-21 felony.]
9-22 [(i)] This section expires September 1, 2005, and shall not
9-23 be in force on and after that date.
9-24 SECTION 12. The change in law made by this Act applies only
9-25 to an offense committed on or after the effective date of this Act.
9-26 An offense committed before the effective date of this Act is
9-27 covered by the law in effect when the offense was committed, and
9-28 the former law is continued in effect for that purpose. For
9-29 purposes of this section, an offense was committed before the
9-30 effective date of this Act if any element of the offense occurred
9-31 before that date.
9-32 SECTION 13. This Act takes effect September 1, 2001.
9-33 * * * * *