By: Williams S.B. No. 1116
(In the Senate - Filed March 11, 2003; March 17, 2003, read
first time and referred to Committee on Criminal Justice;
May 12, 2003, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 7, Nays 0; May 12, 2003,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1116 By: Williams
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. Subsections (a) and (b), Section 31.12, Penal
Code, are amended to read as follows:
(a) A person commits an offense if, without the effective
consent of a communication service provider and with the intent to
defraud the [without the authorization of the multichannel video or
information services] provider, the person intentionally or
knowingly:
(1) 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 [a multichannel video or information services] provider; or
(4) obtains or uses a communication service without
making a payment to the provider in the amount requested by the
provider for the service [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 any service
lawfully provided, directly or indirectly, for a charge or
compensation to facilitate the lawful origination, transmission,
emission, or reception of signs, signals, writing, images, sounds,
data, audio, video, or intelligence of any nature by any means,
including:
(A) telephone or cellular telephone;
(B) a wire or wireless, radio, microwave,
electromagnetic, photoelectric, photo-electronic, fiber optical,
photo-optical, cable television, multichannel video, satellite,
information, or data transmission system, network, or facility; 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 lawful communication
service and includes without limitation:
(A) a cellular, paging, or other wireless
communications company or other person or entity that supplies the
facility, cell site, mobile telephone switching office, telephone
number, or other equipment or service for the company;
(B) a multichannel video or information services
provider; and
(C) any other person or entity that owns or
operates a system, network, or facility that provides a
communication service.
(4) "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.
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. Subsections (a), (b), and (d), Section 31.13,
Penal Code, are amended to read as follows:
(a) A person commits an offense if, with the intent to
defraud a communication service provider, the person intentionally
or knowingly possesses or uses a communication device or
unauthorized access device for the purpose of committing an
offense under Section 31.12 or 31.14 [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:
(1) "Communication device," "communication service,"
and "communication service[, "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,
developed, distributed, advertised, offered for sale, or used
primarily for the purpose of defeating or circumventing any
effective 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. Subsections (a), (b), and (d), Section 31.14,
Penal Code, are amended to read as follows:
(a) A person commits an offense if, with the intent to
defraud a communication service provider, the person intentionally
or knowingly manufactures, develops, assembles, imports into the
state, exports out of the state, licenses, distributes, advertises,
sells, or leases, or offers for sale or lease:
(1) a communication device with an intent to aid in the
commission of an offense under Section 31.12 or 31.13;
(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 the purpose of committing an offense
under Subdivision (1) or (2) or under Section 31.12 or 31.13[, 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[, "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
Sections 31.145 and 31.146 to read as follows:
Sec. 31.145. PRESUMPTION FOR OFFENSES AFFECTING
COMMUNICATION SERVICE. (a) For purposes of Section 31.12, 31.13,
or 31.14, an intent to defraud is presumed if, not later than the
30th day after the date the actor receives a written notice from the
provider that complies with Subsection (b), the actor fails to
deliver to the provider a written response in which the actor admits
or denies the statements contained in the written notice from the
provider.
(b) For purposes of this section, a written notice from the
provider must:
(1) state that the provider has reason to believe:
(A) there is an unauthorized connection between
the actor's property and a system, network, or facility owned or
operated by the provider;
(B) 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
(C) the actor is in possession of five or more
communication devices or unauthorized access devices for a purpose
that is prohibited by law;
(2) be addressed to the actor at the location where the
provider reasonably believes the circumstances described by
Subdivision (1) exist; and
(3) be sent by registered or certified mail, return
receipt requested.
(c) A written notice that complies with Subsection (b) is
presumed to be received by the actor not later than the fifth day
after the date the notice is sent.
(d) The presumption established by this section does not
apply if the actor is:
(1) a person who takes any of the following actions
with respect to a multipurpose device as defined by Section 31.146:
(A) manufactures, develops, produces, designs,
assembles, licenses, distributes, transfers, imports into this
state, sells, or leases the device;
(B) offers, promotes, or advertises the device
for sale, use, or distribution; or
(C) possesses the device for use in an action
described by Paragraph (A) or (B);
(2) a state or local law enforcement agency; or
(3) a communication service provider.
Sec. 31.146. DEFENSE TO PROSECUTION FOR OFFENSES AFFECTING
COMMUNICATION SERVICE. (a) It is a defense to prosecution under
Section 31.12, 31.13, or 31.14 that:
(1) the actor, for a purpose other than committing an
offense under any of those sections, took any of the following
actions with respect to a multipurpose device:
(A) manufactured, developed, produced, designed,
assembled, licensed, distributed, transferred, imported into this
state, sold, or leased the device;
(B) offered, promoted, or advertised the device
for sale, use, or distribution; or
(C) possessed the device for use in an action
described by Paragraph (A) or (B);
(2) the device has a commercially significant use or
purpose other than as an unauthorized access device or to commit
another offense under any of those sections; and
(3) the device was not marketed by the actor or an
accomplice for use as an unauthorized access device or for the
purpose of committing another offense under any of those sections.
(b) In this section, "multipurpose device" means any
communication device that is capable of more than one function and
includes any component of the device.
SECTION 8. Subdivision (2), Section 134.002, 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 chapter:
(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) "Multipurpose device" has the meaning assigned by
Section 31.146, Penal Code.
(5) "Unauthorized access device" has the meaning
assigned by Section 31.13, Penal Code.
Sec. 135.002. 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 device
was 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:
(1) each communication device or unauthorized access
device involved in the communication services offense;
(2) each day the defendant committed the communication
services offense; or
(3) both Subdivisions (1) and (2).
(d) The amount of damages specified by the court under
Subsection (c) must be at least $2,500 and not more than $10,000, as
the court considers just.
(e) 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:
(1) $50,000 for each communication or unauthorized
access device involved in the action;
(2) $50,000 for each day the defendant committed the
communication services offense; or
(3) both Subdivisions (1) and (2).
Sec. 135.003. ATTORNEY'S FEES AND COURT COSTS. The court
shall award a claimant who prevails in an action filed under this
section reasonable attorney's fees and costs, including expert
witness fees and the costs of investigation, testing, and storage
of any impounded items.
Sec. 135.004. INAPPLICABILITY TO CERTAIN CLAIMS. A person
described by Section 31.145(d)(1), Penal Code, is not civilly
liable for an offense under Section 31.12, 31.13, or 31.14, Penal
Code, unless the person acts with the mental state required to
establish the offense, including the intent to defraud a
communication service provider, and the multipurpose device:
(1) is, for the primary purpose of committing an
offense under any of those sections:
(A) manufactured, developed, produced, designed,
assembled, licensed, distributed, transferred, imported into this
state, sold, or leased;
(B) offered, promoted, or advertised for sale,
use, or distribution; or
(C) possessed for use in an action described by
Paragraph (A) or (B);
(2) has only a limited commercially significant use or
purpose other than as an unauthorized access device or to commit
another offense under any of those sections; and
(3) is marketed by that person, or by another person
acting in concert with that person and with that person's
knowledge, for use as an unauthorized access device or for the
purpose of committing another offense under any of those sections.
SECTION 10. This Act does not require that the design or the
design and selection of parts, software code, or components for a
communication device provide for a response to any particular
technology, device, or software, or any component or part of that
item, used by the provider, owner, or license holder of any
communication service or of any data, audio or video programs, or
transmissions to protect that communication, data, audio or video
service, program, or transmission from unauthorized receipt,
acquisition, interception, access, decryption, disclosure,
communications, transmission, or retransmission.
SECTION 11. This Act does not impose criminal or civil
liability on any person, including any of the following entities,
unless the person acts with the mental state required to establish
an offense under Section 31.12, 31.13, or 31.14, Penal Code, as
amended by this Act, including the intent to defraud a
communication service provider:
(1) a communication service provider as defined by
Section 31.12, Penal Code, as amended by this Act;
(2) a municipality;
(3) a state or local law enforcement agency; or
(4) any other state or local governmental agency or
authority.
SECTION 12. This Act does not impose criminal or civil
liability on any person for using a communication device to connect
one or more multipurpose devices at the person's residential or
business premises unless:
(1) the person acts with the mental state required to
establish an offense under Section 31.12, 31.13, or 31.14, Penal
Code, as amended by this Act, including the intent to defraud a
communication service provider; and
(2) the device causes material electronic or physical
harm to the communication service provider's system, network, or
facility.
SECTION 13. (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.
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