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A BILL TO BE ENTITLED
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AN ACT
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relating to the protection of customer telephone records; providing |
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a penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 35, Business & Commerce Code, is amended |
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by adding Subchapter L to read as follows: |
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SUBCHAPTER L. PROTECTION OF CUSTOMER TELEPHONE RECORDS |
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Sec. 35.151. DEFINITIONS. In this subchapter: |
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(1) "Caller identification record" means a record |
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that: |
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(A) is delivered electronically to the recipient |
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of a telephone call simultaneously with the reception of the call; |
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and |
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(B) indicates the telephone number from which the |
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telephone call was made or other similar information regarding the |
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call. |
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(2) "Telephone company" means a provider of commercial |
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telephone services, or a provider that bills for those services, |
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regardless of the technology used to provide that service, |
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including landline, radio, wireless, microwave, satellite, Voice |
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over Internet Protocol (VoIP), or other cable, broadband, or |
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digital technology. |
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(3) "Telephone record" means a written, electronic, or |
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oral record, other than a caller identification record collected |
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and retained by or on behalf of a customer, created by a telephone |
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company about a customer, that includes: |
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(A) the telephone number: |
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(i) dialed by a customer; or |
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(ii) of an incoming call made to a customer; |
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(B) the time a call was made to or by a customer; |
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(C) the duration of a call made to or by a |
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customer; or |
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(D) the location from which a call was initiated |
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or at which a call was received by a customer. |
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Sec. 35.152. CONSTRUCTION OF SUBCHAPTER. This subchapter |
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does not apply to expand the obligations or duties of a telephone |
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company under federal or other state law to protect telephone |
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records. |
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Sec. 35.153. UNAUTHORIZED OR FRAUDULENT PROCUREMENT, SALE, |
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OR RECEIPT OF TELEPHONE RECORDS. (a) A person commits an offense |
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if the person: |
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(1) obtains, attempts to obtain, or conspires with |
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another to obtain a telephone record of a resident of this state |
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without the authorization of the resident to whom the record |
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pertains by: |
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(A) making a statement the person knows to be |
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false to an agent of a telephone company; |
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(B) making a statement the person knows to be |
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false to a telephone company; |
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(C) fraudulently accessing the record through |
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the telephone company's Internet website; or |
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(D) providing to a telephone company a document |
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that the person knows: |
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(i) is fraudulent; |
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(ii) has been lost or stolen; |
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(iii) has been obtained by fraud; or |
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(iv) contains a false, fictitious, or |
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fraudulent statement or representation; |
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(2) asks another person to obtain a telephone record |
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of a resident of this state knowing that the record will be obtained |
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in a manner prohibited by this section; |
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(3) sells, transfers, or attempts to sell or transfer |
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a telephone record of a resident of this state without |
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authorization of the resident to whom the record pertains; or |
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(4) offers to obtain or offers to sell a telephone |
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record that has been or will be obtained without authorization from |
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the resident to whom the record pertains. |
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(b) An offense under this section is a Class A misdemeanor, |
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except that a fine shall not exceed $20,000. |
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(c) In addition to the penalties provided by Subsection (b), |
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a person convicted of an offense under this section may be required |
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to forfeit personal property used or intended to be used in |
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violation of this section. |
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(d) In addition to the penalties provided by Subsections (b) |
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and (c), a person convicted of an offense under this section shall |
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be ordered to pay to a resident whose telephone record was obtained |
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in a manner prohibited by this section an amount equal to the sum |
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of: |
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(1) the greater of the resident's financial loss, if |
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proof of the loss is submitted to the satisfaction of the court, or |
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$1,000; and |
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(2) the amount of any financial gain received by the |
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person as the direct result of the offense. |
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(e) An offense under this section may be prosecuted in: |
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(1) the county in which the customer whose telephone |
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record is the subject of the prosecution resided at the time of the |
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offense; or |
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(2) any county in which any part of the offense took |
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place regardless of whether the defendant was ever present in the |
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county. |
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(f) If venue lies in more than one county under Subsection |
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(e), a defendant may be prosecuted in only one county for the same |
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conduct. |
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(g) If conduct constituting an offense under this section |
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also constitutes an offense under another section of this code or of |
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any other law, including the Penal Code, the actor may be prosecuted |
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under either section or under both sections. |
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(h) This section does not create a private right of action. |
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Sec. 35.154. EXCEPTIONS. Section 35.153 does not apply to: |
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(1) a person who acted pursuant to a valid court order, |
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warrant, subpoena, or civil investigative demand; |
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(2) a telephone company that disclosed a telephone |
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record: |
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(A) the disclosure of which is otherwise |
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authorized by law; |
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(B) reasonably believing the disclosure was |
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necessary to: |
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(i) provide service to a customer; |
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(ii) protect an individual from fraudulent, |
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abusive, or unlawful use of a telephone record or telephone |
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service; or |
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(iii) protect the rights or property of the |
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company; |
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(C) to the National Center for Missing and |
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Exploited Children in connection with a report submitted under 42 |
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U.S.C. Section 13032; |
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(D) for purposes of testing the company's |
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security procedures or systems for maintaining the confidentiality |
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of customer information; |
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(E) to a governmental entity, if the company |
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reasonably believed that an emergency involving danger of death or |
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serious physical injury to a person justified disclosure of the |
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information; |
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(F) in connection with the sale or transfer of |
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all or part of the company's business, the purchase or acquisition |
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of all or part of another company's business, or the migration of a |
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customer from one telephone company to another telephone company; |
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(G) necessarily incident to the rendition of the |
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service, to initiate, render, bill, and collect the customer's |
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charges, or to protect the customer of those services and other |
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carriers from fraudulent, abusive, or unlawful use of, or |
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subscription to, such services; or |
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(H) while acting reasonably and in good faith, |
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notwithstanding a later determination that the action was not |
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authorized; or |
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(3) a person or a telephone company that acted in |
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connection with the official duties of a 9-1-1 governmental entity |
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or a public agency solely for purposes of delivering or assisting in |
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the delivery of 9-1-1 emergency services and other emergency |
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services. |
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Sec. 35.155. DECEPTIVE TRADE PRACTICE; ENFORCEMENT. A |
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violation of this subchapter is a false, misleading, or deceptive |
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act or practice under Section 17.46 and is subject to action only by |
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the consumer protection division of the attorney general's office |
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as provided by Section 17.46(a). |
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Sec. 35.156. CONSISTENCY WITH FEDERAL LAW. This |
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subchapter may not be construed in a manner that is inconsistent |
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with 18 U.S.C. Section 1038, 47 U.S.C. Section 222, or any other |
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applicable federal law or rule. |
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Sec. 35.157. NONAPPLICABILITY TO LAW ENFORCEMENT AGENCIES. |
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This subchapter does not prohibit any lawfully authorized |
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investigative, protective, or intelligence activity of a law |
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enforcement agency of the United States, a state, or a political |
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subdivision of a state or of an intelligence agency of the United |
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States. |
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SECTION 2. Article 59.01(2), Code of Criminal Procedure, is |
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amended to read as follows: |
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(2) "Contraband" means property of any nature, |
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including real, personal, tangible, or intangible, that is: |
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(A) used in the commission of: |
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(i) any first or second degree felony under |
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the Penal Code; |
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(ii) any felony under Section 15.031(b), |
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20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30, |
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31, 32, 33, 33A, or 35, Penal Code; |
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(iii) any felony under The Securities Act |
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(Article 581-1 et seq., Vernon's Texas Civil Statutes); or |
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(iv) any offense under Chapter 49, Penal |
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Code, that is punishable as a felony of the third degree or state |
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jail felony, if the defendant has been previously convicted three |
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times of an offense under that chapter; |
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(B) used or intended to be used in the commission |
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of: |
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(i) any felony under Chapter 481, Health |
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and Safety Code (Texas Controlled Substances Act); |
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(ii) any felony under Chapter 483, Health |
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and Safety Code; |
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(iii) a felony under Chapter 153, Finance |
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Code; |
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(iv) any felony under Chapter 34, Penal |
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Code; |
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(v) a Class A misdemeanor under Subchapter |
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B, Chapter 365, Health and Safety Code, if the defendant has been |
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previously convicted twice of an offense under that subchapter; |
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(vi) any felony under Chapter 152, Finance |
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Code; |
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(vii) any felony under Chapter 31, 32, or |
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37, Penal Code, that involves the state Medicaid program, or any |
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felony under Chapter 36, Human Resources Code; [or] |
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(viii) a Class B misdemeanor under Section |
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35.60, Business & Commerce Code; or |
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(ix) a Class A misdemeanor under Section |
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35.153, Business & Commerce Code; |
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(C) the proceeds gained from the commission of a |
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felony listed in Paragraph (A) or (B) of this subdivision, a |
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misdemeanor listed in Paragraph (B)(viii) of this subdivision, or a |
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crime of violence; |
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(D) acquired with proceeds gained from the |
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commission of a felony listed in Paragraph (A) or (B) of this |
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subdivision, a misdemeanor listed in Paragraph (B)(viii) of this |
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subdivision, or a crime of violence; or |
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(E) used to facilitate or intended to be used to |
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facilitate the commission of a felony under Section 15.031 or |
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43.25, Penal Code. |
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SECTION 3. This Act takes effect September 1, 2007. |
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