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.