By: Hopson (Senate Sponsor - Hinojosa) H.B. No. 2138
(In the Senate - Received from the House April 28, 2003;
May 1, 2003, read first time and referred to Committee on Criminal
Justice; May 23, 2003, reported favorably by the following vote:
Yeas 4, Nays 0; May 23, 2003, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the use of certain electronic devices for the purpose of
committing identity theft; providing criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 35, Business & Commerce
Code, is amended by adding Section 35.58 to read as follows:
Sec. 35.58. IDENTITY THEFT BY ELECTRONIC DEVICE. (a) In
this section:
(1) "Payment card" means a credit card, a debit card, a
check card, or any other card that is issued to an authorized user
to purchase or obtain goods, services, money, or any other thing of
value.
(2) "Re-encoder" means an electronic device that can
be used to transfer encoded information from a magnetic strip on a
payment card onto the magnetic strip of a different payment card.
(3) "Scanning device" means an electronic device used
to access, read, scan, or store information encoded on the magnetic
strip of a payment card.
(b) A person commits an offense if the person uses a
scanning device or re-encoder to access, read, scan, store, or
transfer information encoded on the magnetic strip of a payment
card without the consent of an authorized user of the payment card
and with intent to harm or defraud another.
(c) An offense under this section is a Class B misdemeanor.
(d) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section or the other law.
SECTION 2. Articles 18.18(a), (b), (e), (f), and (g), Code
of Criminal Procedure, are amended to read as follows:
(a) Following the final conviction of a person for
possession of a gambling device or equipment, altered gambling
equipment, or gambling paraphernalia, for an offense involving a
criminal instrument, for an offense involving an obscene device or
material, or for an offense involving a scanning device or
re-encoder, the court entering the judgment of conviction shall
order that the machine, device, gambling equipment or gambling
paraphernalia, instrument, obscene device or material, or scanning
device or re-encoder be destroyed or forfeited to the state. Not
later than the 30th day after the final conviction of a person for
an offense involving a prohibited weapon, the court entering the
judgment of conviction on its own motion, on the motion of the
prosecuting attorney in the case, or on the motion of the law
enforcement agency initiating the complaint on notice to the
prosecuting attorney in the case if the prosecutor fails to move for
the order shall order that the prohibited weapon be destroyed or
forfeited to the law enforcement agency that initiated the
complaint. If the court fails to enter the order within the time
required by this subsection, any magistrate in the county in which
the offense occurred may enter the order. Following the final
conviction of a person for an offense involving dog fighting, the
court entering the judgment of conviction shall order that any
dog-fighting equipment be destroyed or forfeited to the state.
Destruction of dogs, if necessary, must be carried out by a
veterinarian licensed in this state or, if one is not available, by
trained personnel of a humane society or an animal shelter. If
forfeited, the court shall order the contraband delivered to the
state, any political subdivision of the state, or to any state
institution or agency. If gambling proceeds were seized, the court
shall order them forfeited to the state and shall transmit them to
the grand jury of the county in which they were seized for use in
investigating alleged violations of the Penal Code, or to the
state, any political subdivision of the state, or to any state
institution or agency.
(b) If there is no prosecution or conviction following
seizure, the magistrate to whom the return was made shall notify in
writing the person found in possession of the alleged gambling
device or equipment, altered gambling equipment or gambling
paraphernalia, gambling proceeds, prohibited weapon, obscene
device or material, scanning device or re-encoder, criminal
instrument, or dog-fighting equipment to show cause why the
property seized should not be destroyed or the proceeds forfeited.
The magistrate, on the motion of the law enforcement agency seizing
a prohibited weapon, shall order the weapon destroyed or forfeited
to the law enforcement agency seizing the weapon, unless a person
shows cause as to why the prohibited weapon should not be destroyed
or forfeited. A law enforcement agency shall make a motion under
this section in a timely manner after the time at which the agency
is informed in writing by the attorney representing the state that
no prosecution will arise from the seizure.
(e) Any person interested in the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
scanning device or re-encoder, criminal instrument, or
dog-fighting equipment seized must appear before the magistrate on
the 20th day following the date the notice was mailed or posted.
Failure to timely appear forfeits any interest the person may have
in the property or proceeds seized, and no person after failing to
timely appear may contest destruction or forfeiture.
(f) If a person timely appears to show cause why the
property or proceeds should not be destroyed or forfeited, the
magistrate shall conduct a hearing on the issue and determine the
nature of property or proceeds and the person's interest therein.
Unless the person proves by a preponderance of the evidence that the
property or proceeds is not gambling equipment, altered gambling
equipment, gambling paraphernalia, gambling device, gambling
proceeds, prohibited weapon, criminal instrument, scanning device
or re-encoder, or dog-fighting equipment and that he is entitled to
possession, the magistrate shall dispose of the property or
proceeds in accordance with Paragraph (a) of this article.
(g) For purposes of this article:
(1) "criminal instrument" has the meaning defined in
the Penal Code;
(2) "gambling device or equipment, altered gambling
equipment or gambling paraphernalia" has the meaning defined in the
Penal Code;
(3) "prohibited weapon" has the meaning defined in the
Penal Code; [and]
(4) "dog-fighting equipment" means:
(A) equipment used for training or handling a
fighting dog, including a harness, treadmill, cage, decoy, pen,
house for keeping a fighting dog, feeding apparatus, or training
pen;
(B) equipment used for transporting a fighting
dog, including any automobile, or other vehicle, and its
appurtenances which are intended to be used as a vehicle for
transporting a fighting dog;
(C) equipment used to promote or advertise an
exhibition of dog fighting, including a printing press or similar
equipment, paper, ink, or photography equipment; or
(D) a dog trained, being trained, or intended to
be used to fight with another dog;[.]
(5) [(6)] "obscene device or material" means a device
or material introduced into evidence and thereafter found obscene
by virtue of a final judgment after all appellate remedies have been
exhausted;
(6) "re-encoder" has the meaning assigned by Section
35.58, Business & Commerce Code; and
(7) "scanning device" has the meaning assigned by
Section 35.58, Business & Commerce Code.
SECTION 3. Article 59.01(2), Code of Criminal Procedure, is
amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
21.11, 38.04, 43.25, or 43.26 or Chapter 29, 30, 31, 32, 33, 33A, or
35, Penal Code; or
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes);
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
[or]
(vi) any felony under Chapter 152, Finance
Code; or
(vii) a Class B misdemeanor under Section
35.58, Business & Commerce Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(vii) of this subdivision, or a
crime of violence; or
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(vii) of this
subdivision, or a crime of violence.
SECTION 4. This Act takes effect September 1, 2003.
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