78R6349 PEP-F
By: Wilson H.B. No. 2121
A BILL TO BE ENTITLED
AN ACT
relating to the criminal and civil consequences of conduct
involving the theft of or tampering with certain communication or
information services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading of Section 31.12, Penal Code, is
amended to read as follows:
Sec. 31.12. THEFT OF OR TAMPERING WITH COMMUNICATION
[MULTICHANNEL VIDEO OR INFORMATION] SERVICES.
SECTION 2. Sections 31.12(a), (b), and (e), Penal Code, are
amended to read as follows:
(a) A person commits an offense if, with the intent to harm
or defraud a communication service [without the authorization of
the multichannel video or information services] provider, the
person [intentionally or knowingly]:
(1) obtains or uses a communication service without:
(A) obtaining the authorization of the provider;
or
(B) making a payment to the provider in the
amount normally charged by the provider for the service; or
(2) [makes or maintains a connection, whether
physically, electrically, electronically, or inductively, to:
[(A) a cable, wire, or other component of or
media attached to a multichannel video or information services
system; or
[(B) a television set, videotape recorder, or
other receiver attached to a multichannel video or information
system;
[(2) attaches, causes to be attached, or maintains the
attachment of a device to:
[(A) a cable, wire, or other component of or
media attached to a multichannel video or information services
system; or
[(B) a television set, videotape recorder, or
other receiver attached to a multichannel video or information
services system;
[(3)] tampers with, modifies, or maintains a
modification to a communication device provided by or installed by
the provider [a multichannel video or information services
provider; or
[(4) tampers with, modifies, or maintains a
modification to an access device or uses that access device or any
unauthorized access device to obtain services from a multichannel
video or information services provider].
(b) In this section:
(1) "Communication device" means a device,
instrument, machine, electronic mechanism, equipment, software,
technology, transmission line, or connection capable of accessing,
acquiring, decrypting, intercepting, receiving, transmitting, or
retransmitting any communication service and includes any
appurtenance to and any accessory, component, or part of those
items, including any computer chip or circuit, splitter, connector,
switch, security module, smart card, and transmission hardware.
["Access device," "connection," and "device" mean an access device,
connection, or device wholly or partly designed to make
intelligible an encrypted, encoded, scrambled, or other
nonstandard signal carried by a multichannel video or information
services provider.]
(2) "Communication service" means a service directly
or indirectly provided to facilitate the origination,
transmission, emission, or reception of signs, signals, writing,
images, sounds, data, or intelligence of any nature by any means,
including:
(A) telephone or cellular telephone;
(B) wire or wireless, radio, microwave,
electromagnetic, photoelectric, photo-electronic, fiber optical,
photo-optical, cable television, satellite, or data transmission;
or
(C) an Internet-based distribution system,
network, or facility. ["Encrypted, encoded, scrambled, or other
nonstandard signal" means any type of signal or transmission not
intended to produce an intelligible program or service without the
use of a device, signal, or information provided by a multichannel
video or information services provider.]
(3) "Communication service provider" means any person
or entity directly or indirectly providing a communication service
and includes:
(A) a cellular, paging, or other wireless
communications company or other person or entity that supplies the
facility, cell site, mobile telephone switching office, or other
equipment or service for the company; and
(B) any other person or entity that owns or
operates a system, network, or facility that provides a
communication service. ["Multichannel video or information
services provider" means a licensed cable television system, video
dialtone system, multichannel multipoint distribution services
system, direct broadcast satellite system, or other system
providing video or information services that are distributed by
cable, wire, radio frequency, or other media.]
(e) For the purposes of this section, each [connection,
attachment,] modification[,] or act of tampering is a separate
offense.
SECTION 3. The heading to Section 31.13, Penal Code, is
amended to read as follows:
Sec. 31.13. POSSESSION OR USE OF COMMUNICATION DEVICE OR
UNAUTHORIZED ACCESS [MANUFACTURE, DISTRIBUTION, OR ADVERTISEMENT
OF MULTICHANNEL VIDEO OR INFORMATION SERVICES] DEVICE.
SECTION 4. Sections 31.13(a), (b), and (d), Penal Code, are
amended to read as follows:
(a) A person commits an offense if, with the intent to harm
or defraud a communication service provider, the person possesses
or uses a communication device or unauthorized access device [for
remuneration intentionally or knowingly manufactures, assembles,
modifies, imports into the state, exports out of the state,
distributes, advertises, or offers for sale, with an intent to aid
in the commission of an offense under Section 31.12, a device, a kit
or part for a device, or a plan for a system of components wholly or
partly designed to make intelligible an encrypted, encoded,
scrambled, or other nonstandard signal carried or caused by a
multichannel video or information services provider].
(b) In this section and Section 31.145:
(1) "Communication device," "communication service,"
and "communication service provider" [, "device," "encrypted,
encoded, scrambled, or other nonstandard signal," and
"multichannel video or information services provider"] have the
meanings assigned by Section 31.12.
(2) "Unauthorized access device" means a device,
instrument, machine, electronic mechanism, equipment, software,
technology, transmission line, or connection that is manufactured,
distributed, advertised, offered for sale, or used for the purpose
of defeating or circumventing any technology, device, or software,
or any accessory, component, or part of those items used by a
communication service provider to protect the provider's
communication service from unauthorized access, acquisition,
decryption, interception, receipt, transmission, or
retransmission.
(d) An offense under this section is a Class A misdemeanor,
unless it is shown on the trial of the offense that the offense was
committed with respect to five or more communication devices or
unauthorized access devices in a single criminal episode, in which
event it is a state jail felony.
SECTION 5. The heading to Section 31.14, Penal Code, is
amended to read as follows:
Sec. 31.14. MANUFACTURE, DISTRIBUTION, SALE, [OR] LEASE, OR
ADVERTISEMENT OF COMMUNICATION DEVICE OR UNAUTHORIZED ACCESS
[MULTICHANNEL VIDEO OR INFORMATION SERVICES] DEVICE.
SECTION 6. Sections 31.14(a), (b), and (d), Penal Code, are
amended to read as follows:
(a) A person commits an offense if the person intentionally
or knowingly manufactures, assembles, imports into the state,
exports out of the state, distributes, advertises, sells, or
leases, or offers for sale or lease:
(1) a communication device with an intent to:
(A) aid in the commission of an offense under
Section 31.12 or 31.13; or
(B) conceal from a communication service
provider, or from any lawful authority, the existence or place of
origin or destination of any communication;
(2) an unauthorized access device; or
(3) plans or instructions for assembling or
manufacturing a communication device or unauthorized access
device, with the knowledge that another person intends to use the
plans or instructions for an unlawful purpose [, a device, a kit or
part for a device, or a plan for a system of components wholly or
partly designed to make intelligible an encrypted, encoded,
scrambled, or other nonstandard signal carried or caused by a
multichannel video or information services provider].
(b) In this section:
(1) "Communication device," "communication service,"
and "communication service provider" [, "device," "encrypted,
encoded, scrambled, or other nonstandard signal," and
"multichannel video or information services provider"] have the
meanings assigned by Section 31.12.
(2) "Unauthorized access device" has the meaning
assigned by Section 31.13.
(d) Except as otherwise provided by this subsection, an [An]
offense under this section is a Class A misdemeanor. An offense
under this section is:
(1) a state jail felony if it is shown on the trial of
the offense that:
(A) the offense was committed with respect to
more than one but not more than 50 communication devices or
unauthorized access devices in a single criminal episode; or
(B) the defendant has been previously convicted
one time of an offense under this section or of an offense under
federal law or the laws of another state containing elements that
are substantially similar to the elements of an offense under this
section; or
(2) a felony of the third degree if it is shown on the
trial of the offense that:
(A) the offense was committed with respect to
more than 50 communication devices or unauthorized access devices
in a single criminal episode; or
(B) the defendant has been previously convicted
on two or more occasions of an offense under this section or of an
offense under federal law or the laws of another state containing
elements that are substantially similar to the elements of an
offense under this section.
SECTION 7. Chapter 31, Penal Code, is amended by adding
Section 31.145 to read as follows:
Sec. 31.145. PRESUMPTION FOR OFFENSES AFFECTING
COMMUNICATION SERVICE. For purposes of the prosecution of an
offense under Section 31.12, 31.13, or 31.14, it is prima facie
evidence of the actor's intent to harm or defraud a communication
service provider that the actor failed to respond within 30 days to
written notice from the provider stating that:
(1) there is an unauthorized connection between the
actor's property and a system, network, or facility owned or
operated by the provider;
(2) the provider has reason to believe the actor is in
possession or control of a communication device that is connected
in a manner that facilitates the unauthorized access, acquisition,
decryption, interception, receipt, transmission, or retransmission
of the provider's communication service; or
(3) the provider has reason to believe the actor is in
possession of five or more communication devices or unauthorized
access devices for a purpose that is prohibited by law.
SECTION 8. Section 134.002(2), Civil Practice and Remedies
Code, is amended to read as follows:
(2) "Theft" means unlawfully appropriating property
or unlawfully obtaining services as described by Section 31.03,
31.04, 31.05, 31.06, 31.07, or 31.11, [31.12, 31.13, or 31.14,]
Penal Code.
SECTION 9. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 135 to read as follows:
CHAPTER 135. COMMUNICATION SERVICES OFFENSES
Sec. 135.001. DEFINITIONS. In this section:
(1) "Claimant" means a person who files an action
under this section.
(2) "Communication device," "communication service,"
and "communication service provider" have the meanings assigned by
Section 31.12, Penal Code.
(3) "Communication services offense" means conduct
that constitutes an offense under Section 31.12, 31.13, or 31.14,
Penal Code.
(4) "Unauthorized access device" has the meaning
assigned by Section 31.13, Penal Code.
Sec. 135.002. EQUITABLE REMEDIES. A claimant, including a
communication service provider, aggrieved by a communication
services offense may obtain a declaratory judgment or other
equitable remedy, including a preliminary or final injunction to
prevent or restrain the conduct that constitutes the communication
services offense. The claimant may obtain a remedy under this
subsection regardless of whether the claimant proves that the
claimant has suffered or is threatened with actual damages or
irreparable harm or lacks an adequate remedy at law.
Sec. 135.003. DAMAGES. (a) A claimant may elect at any
time before the final judgment is entered to recover damages under
Subsection (b) or under Subsection (c).
(b) A claimant that elects to recover damages under this
subsection may recover actual damages incurred by the claimant
arising out of the communication services offense and any profits
of the defendant attributable to the communication services offense
that are not included in the computation of the claimant's actual
damages. Actual damages computed under this subsection include the
retail value of the communication services to which the defendant
had unauthorized access as a result of the offense and the retail
value of any unauthorized communication services obtained by other
persons through the defendant's provision or distribution of a
communication device or unauthorized access device. The claimant
may prove actual damages by proving only that the defendant
manufactured, distributed, or sold any communication device or
unauthorized access device and is not required to prove the devices
were actually used to commit a communication services offense. The
claimant may prove the defendant's profits by proving only the
defendant's gross revenue. The defendant's expenses and profits
attributable to factors other than the communication services
offense may not be deducted unless proved by the defendant.
(c) A claimant that elects to recover damages under this
subsection may recover, instead of actual damages and the
defendant's profits, an amount of damages specified by the court
for each communication device or unauthorized access device
involved in the communication services offense and for each day the
defendant committed the communication services offense. The amount
of damages specified by the court must be least $2,500 and not more
than $10,000, as the court considers just.
(d) If the court determines that the communication services
offense was committed wilfully and for the purposes of commercial
advantage or private financial gain, the court may increase the
amount of damages awarded under Subsection (b) or (c) by an amount
of not more than $50,000 for each communication or unauthorized
access device involved in the action and for each day the defendant
committed the communication services offense.
Sec. 135.004. ADDITIONAL REMEDIES. In an action filed
under this section, the court may:
(1) at any time while the action is pending, order the
impoundment, on any terms the court considers reasonable, of any
communication device or unlawful access device that is in the
custody or control of the defendant and that the court reasonably
believes to be involved in the communication services offense;
(2) as part of a final judgment or decree in which the
court finds the conduct of the defendant constitutes a
communication services offense, order the remedial modification or
destruction of any communication device, unauthorized access
device, or other device or piece of equipment involved in the
offense that is in the custody or control of the defendant; and
(3) award a claimant who prevails in an action under
this section reasonable attorney's fees and costs, including expert
witness fees and the costs of investigation, testing, and storage
of impounded items.
SECTION 10. (a) This Act takes effect September 1, 2003.
(b) The changes in law made by Sections 1 through 7 of this
Act apply only to an offense committed on or after September 1,
2003. An offense committed before September 1, 2003, is covered by
the law in effect when the offense was committed, and the former law
is continued in effect for that purpose. For purposes of this
subsection, an offense was committed before September 1, 2003, if
any element of the offense was committed before that date.
(c) The changes in law made by Sections 8 and 9 of this Act
apply only to a cause of action that accrues on or after September
1, 2003. A cause of action that accrues before September 1, 2003,
is governed by the law in effect immediately before that date, and
that law is continued in effect for that purpose.