By: Duncan S.B. No. 698
A BILL TO BE ENTITLED
relating to commercial electronic mail; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Business & Commerce Code, is amended by
adding Chapter 46 to read as follows:
CHAPTER 46. ELECTRONIC MAIL SOLICITATION
Sec. 46.001. DEFINITIONS. In this chapter:
(1) "Commercial electronic mail message" means an
electronic mail message that advertises, offers for sale or lease,
or promotes any goods, services, business opportunity, property, or
any other article, commodity, or thing of value.
(2) "Electronic mail" means a message, file, or other
information that is transmitted through a local, regional, or
global computer network, regardless of whether the message, file,
or other information is viewed, stored for retrieval at a later
time, printed, or filtered by a computer program that is designed or
intended to filter or screen those items.
(3) "Electronic mail service provider" means a person
(A) is qualified to do business in this state;
(B) is an intermediary in sending or receiving
electronic mail; and
(C) provides an end user of an electronic mail
service the ability to send or receive electronic mail.
(4) "Established business relationship" means a prior
or existing relationship of a person formed by a voluntary two-way
communication between a person and another person, regardless of
whether consideration is exchanged, regarding products or services
offered by one of the persons, that has not been terminated by
(5) "Internet domain name" refers to a globally
unique, hierarchical reference to an Internet host or service,
assigned through a centralized Internet naming authority and
composed of a series of character strings separated by periods with
the right-most string specifying the top of the hierarchy.
(6) "Obscene" has the meaning assigned by Section
43.21, Penal Code.
(7) "Sender" means a person who initiates an
electronic mail message.
(8) "Sexual conduct" has the meaning assigned by
Section 43.25, Penal Code.
(9) "Unsolicited commercial electronic mail message"
means a commercial electronic mail message sent without the consent
of the recipient by a person with whom the recipient does not have
an established business relationship. The term does not include
electronic mail sent by an organization using electronic mail for
the purpose of communicating exclusively with members, employees,
or contractors of the organization.
Sec. 46.002. CERTAIN ELECTRONIC MAIL MESSAGES PROHIBITED.
(a) A person may not transmit a commercial electronic mail message
(1) falsifies electronic mail transmission
information or other routing information for an unsolicited
commercial electronic mail message; or
(2) contains false, deceptive, or misleading
information in the subject line.
(b) A person may not send a commercial electronic mail
message that uses another person's Internet domain name without the
other person's consent.
Sec. 46.003. UNSOLICITED ELECTRONIC MAIL MESSAGES. (a) A
person may not take any action to send an unsolicited commercial
electronic mail message unless:
(1) "ADV:" is used as the first four characters in the
subject line of the message or, if the message contains any obscene
material or material depicting sexual conduct,
"ADULT-ADVERTISEMENT" is used as the first word in the subject line
of the message; and
(2) the sender of the message or a person acting on
behalf of the sender provides a functioning return electronic mail
address to which a recipient may, at no cost to the recipient, send
a reply requesting the removal of the recipient's electronic mail
address from the sender's electronic mail list.
(b) A sender shall remove a person's electronic mail address
from the sender's electronic mail list not later than the 90th day
after the date on which the sender receives a request for removal of
that address under Subsection (a)(2).
Sec. 46.004. SALE OR PROVISION OF ADDRESS ON ELECTRONIC
MAIL LIST PROHIBITED. A sender or a person acting on behalf of the
sender may not sell or otherwise provide the electronic mail
address of a person who requests the removal of that address from
the sender's electronic mail list under Section 46.003(a)(2),
except as required by other law.
Sec. 46.005. CRIMINAL PENALTY. A person commits an offense
if the person takes any action to send a message containing obscene
material or material depicting sexual conduct in violation of
Section 46.003(1). An offense under this section is a Class B
Sec. 46.006. CIVIL PENALTY. (a) A person who violates this
chapter other than Section 46.009 is liable to the state for a civil
penalty in an amount not to exceed the lesser of:
(1) $10 for each unlawful message or action; or
(2) $25,000 for each day an unlawful message is
received or an action is taken.
(b) The attorney general or the prosecuting attorney in the
county in which the violation occurs may:
(1) bring suit to recover the civil penalty imposed
under Subsection (a); and
(2) seek an injunction to prevent or restrain a
violation of this chapter.
(c) The attorney general or the prosecuting attorney may
recover reasonable expenses incurred in obtaining a civil penalty
under this section, including court costs, reasonable attorney's
fees, investigative costs, witness fees, and deposition expenses.
Sec. 46.007. DECEPTIVE TRADE PRACTICES. A violation of
this chapter is a false, misleading, or deceptive act or practice
under Subchapter E, Chapter 17, and any public or private right or
remedy prescribed by that subchapter may be used to enforce this
Sec. 46.008. CIVIL LIABILITY. (a) A person injured by a
violation of this chapter may bring an action to recover actual
damages, including lost profits. A person who prevails in the
action is entitled to reasonable attorney's fees and court costs.
(b) In lieu of actual damages, a person injured by a
violation of this chapter arising from the transmission of an
unsolicited or commercial electronic mail message, other than an
electronic mail service provider, may recover the lesser of:
(1) $10 for each unlawful message; or
(2) $25,000 for each day the unlawful message is
(c) In lieu of actual damages, an electronic mail service
provider injured by a violation of this chapter arising from the
transmission of an unsolicited or commercial electronic mail
message may recover the greater of:
(1) $10 for each unlawful message; or
(2) $25,000 for each day the unlawful message is
(d) At the request of a party to any action brought under
this chapter, the court, in its discretion, may conduct a legal
proceeding in such a manner as to protect the secrecy and security
of the computer, computer network, computer data, computer program,
and computer software involved to prevent a possible recurrence of
the same or a similar act by another person and to protect any trade
secrets of a party to the action.
Sec. 46.009. NOTICE TO ATTORNEY GENERAL. (a) A person who
brings an action under Section 46.008 shall give notice of the
action to the attorney general by sending a copy of the petition by
registered or certified mail not later than the 30th day after the
date the petition was filed and at least 10 days before the date set
for a hearing on the action.
(b) The attorney general may intervene in the action by:
(1) filing a notice of intervention with the court in
which the action is pending; and
(2) serving each party to the action with a copy of the
notice of intervention.
(c) A person who violates Subsection (a) is liable to the
state for a civil penalty in an amount not to exceed $200 for each
violation. The attorney general may bring suit to recover the civil
penalty imposed under this subsection in the court in which the
action is instituted.
Sec. 46.010. BLOCKING OF COMMERCIAL ELECTRONIC MAIL
MESSAGE. An electronic mail service provider may on its own
initiative block the receipt or transmission through its service of
any commercial electronic mail message that the provider reasonably
believes is or will be sent in violation of this chapter.
Sec. 46.011. IMMUNITY FROM LIABILITY. (a) An electronic
mail service provider does not violate Section 46.002 or 46.003,
and a person injured by a violation of this chapter does not have a
cause of action against an electronic mail service provider under
this chapter, solely because the provider:
(1) is an intermediary between the sender, or any
person acting on behalf of the sender, and recipient in the
transmission of electronic mail that violates this chapter; or
(2) provides transmission of an unsolicited
commercial electronic mail message through the provider's computer
network or facilities.
(b) An electronic mail service provider may not be held
liable for an action taken in good faith under Section 46.010.
SECTION 2. This Act takes effect September 1, 2003, and
applies only to an electronic mail message that is sent on or after