H.B. No. 3228
 
 
 
 
AN ACT
  relating to the offense of prohibited substances and items in
  correctional facilities.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 38.11, Penal Code, as amended by
  Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of the 79th
  Legislature, Regular Session, 2005, is reenacted and amended to
  read as follows:
         Sec. 38.11.  PROHIBITED SUBSTANCES AND ITEMS IN [ADULT OR
  JUVENILE] CORRECTIONAL [OR DETENTION] FACILITY [OR ON PROPERTY OF
  TEXAS DEPARTMENT OF CRIMINAL JUSTICE OR TEXAS YOUTH COMMISSION].  
  (a)  A person commits an offense if the person provides, or
  possesses with the intent to provide:
               (1)  an alcoholic beverage, controlled substance, or
  dangerous drug to [an inmate of a correctional facility or to] a
  person in the custody of a [secure] correctional facility [or
  secure detention facility for juveniles], except on the
  prescription of a [physician or] practitioner[, as defined in
  Section 551.003, Occupations Code];
               (2)  a deadly weapon to [an inmate of a correctional
  facility or to] a person in the custody of a [secure] correctional
  facility [or secure detention facility for juveniles];
               (3)  a cellular telephone or other wireless
  communications device or a component of one of those devices[,
  cigarette, tobacco product, or money] to a person in the custody [an
  inmate] of a correctional facility [operated by or under contract
  with the Texas Department of Criminal Justice or to a person in the
  custody of a secure correctional facility or secure detention
  facility for juveniles, except for money that is provided for the
  benefit of the juvenile in accordance with facility rules];
               (4)  [a cellular telephone or] money to a person
  confined in a correctional facility [local jail regulated by the
  Commission on Jail Standards]; or
               (5)  a cigarette or tobacco product to a person
  confined in a correctional facility, except that if the facility is
  a local jail regulated by the Commission on Jail Standards, the
  person commits an offense only if [and in] providing the cigarette
  or tobacco product [the person] violates a rule or regulation
  adopted by the sheriff or jail administrator that:
                     (A)  prohibits the possession of a cigarette or
  tobacco product by a person [an inmate] confined in the jail; or
                     (B)  places restrictions on:
                           (i)  the possession of a cigarette or
  tobacco product by a person [an inmate] confined in the jail; or
                           (ii)  the manner in which a cigarette or
  tobacco product may be provided to a person [an inmate] confined in
  the jail.
         (b)  A person commits an offense if the person takes an
  alcoholic beverage, controlled substance, or dangerous drug into a
  correctional facility [or a secure correctional facility or secure
  detention facility for juveniles, except for delivery to a facility
  warehouse, pharmacy, or physician].
         (c)  A person commits an offense if the person takes a
  controlled substance or dangerous drug on property owned, used, or
  controlled by a correctional facility [the Texas Department of
  Criminal Justice, the Texas Youth Commission, or a secure
  correctional facility or secure detention facility for juveniles,
  except for delivery to a warehouse, pharmacy, or physician on
  property owned, used, or controlled by the department, the
  commission, or the facility].
         (d)  A person commits an offense if the person:
               (1)  possesses a controlled substance or dangerous drug
  while in a correctional facility or[:
                     [(A)]  on property owned, used, or controlled by
  [the Texas Department of Criminal Justice, the Texas Youth
  Commission, or] a [secure] correctional facility [or secure
  detention facility for juveniles; or
                     [(B)     in a correctional facility or a secure
  correctional facility or secure detention facility for juveniles];
  or
               (2)  possesses a deadly weapon while in a correctional
  facility [or in a secure correctional facility or secure detention
  facility for juveniles].
         (e)  It is an affirmative defense to prosecution under
  Subsection (b), (c), or (d)(1) [of this section] that the person
  possessed the alcoholic beverage, controlled substance, or
  dangerous drug pursuant to a prescription issued by a practitioner
  or while delivering the beverage, substance, or drug to a
  warehouse, pharmacy, or practitioner [physician] on property
  owned, used, or controlled by the [department, the Texas Youth
  Commission, or by the operator of a secure] correctional facility
  [or secure detention facility for juveniles].  It is an affirmative
  defense to prosecution under Subsection (d)(2) [of this section]
  that the person possessing the deadly weapon is a peace officer or
  is an officer or employee of the correctional facility who is 
  authorized to possess the deadly weapon while on duty or traveling
  to or from the person's place of assignment.
         (f)  In this section:
               (1)  "Practitioner" has the meaning assigned by Section
  481.002, Health and Safety Code.
               (2)  "Prescription" has the meaning assigned by Section
  481.002, Health and Safety Code.
               (3)  "Cigarette" has the meaning assigned by Section
  154.001, Tax Code.
               (4)  "Tobacco product" has the meaning assigned by
  Section 155.001, Tax Code.
               (5)  "Component" means any item necessary for the
  current, ongoing, or future operation of a cellular telephone or
  other wireless communications device, including a subscriber
  identity module card or functionally equivalent portable memory
  chip, a battery or battery charger, and any number of minutes that
  have been purchased or for which a contract has been entered into
  and during which a cellular telephone or other wireless
  communications device is capable of transmitting or receiving
  communications.
               (6)  "Correctional facility" means:
                     (A)  any place described by Section
  1.07(a)(14)(A), (B), or (C); or
                     (B)  a secure correctional facility or secure
  detention facility, as defined ["Secure correctional facility" and
  "secure detention facility" have the meanings assigned] by Section
  51.02, Family Code.
         (g)  An offense under this section is a felony of the third
  degree.
         (h)  Notwithstanding Section 15.01(d), if a person commits
  the offense of criminal attempt to commit an offense under
  Subsection (a), [or] (b), or (c), the offense committed under
  Section 15.01 is a felony of the third degree.
         (i)  It is an affirmative defense to prosecution under
  Subsection (b) that the actor:
               (1)  is a duly authorized member of the clergy with
  rights and privileges granted by an ordaining authority that
  includes administration of a religious ritual or ceremony requiring
  the presence or consumption of an alcoholic beverage;  and
               (2)  takes four ounces or less of an alcoholic beverage
  into the correctional facility [or the secure correctional facility
  or secure detention facility for juveniles] and personally consumes
  all of the alcoholic beverage or departs from the facility with any
  portion of the beverage not consumed.
         (j)  A person commits an offense if the person, while
  confined in [an inmate of] a correctional facility, [operated by or
  under contract with the Texas Department of Criminal Justice or
  while in the custody of a secure correctional facility or secure
  detention facility for juveniles] possesses a cellular telephone or
  other wireless communications device or a component of one of those
  devices.
         (k)  A person commits an offense if, with the intent to
  provide to or make a cellular telephone or other wireless
  communications device or a component of one of those devices
  available for use by a person in the custody of a correctional
  facility, the person:
               (1)  acquires a cellular telephone or other wireless
  communications device or a component of one of those devices to be
  delivered to the person in custody;
               (2)  provides a cellular telephone or other wireless
  communications device or a component of one of those devices to
  another person for delivery to the person in custody; or
               (3)  makes a payment to a communication common carrier,
  as defined by Article 18.20, Code of Criminal Procedure, or to any
  communication service that provides to its users the ability to
  send or receive wire or electronic communications.
         SECTION 2.  The heading to Article 18.20, Code of Criminal
  Procedure, is amended to read as follows:
         Art. 18.20.  DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL,
  OR ELECTRONIC COMMUNICATIONS.
         SECTION 3.  Section 4, Article 18.20, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 4.  OFFENSES FOR WHICH INTERCEPTIONS MAY BE
  AUTHORIZED.  A judge of competent jurisdiction may issue an order
  authorizing interception of wire, oral, or electronic
  communications only if the prosecutor applying for the order shows
  probable cause to believe that the interception will provide
  evidence of the commission of:
               (1)  a felony under Section 19.02, 19.03, or 43.26,
  Penal Code;
               (2)  a felony under:
                     (A)  Chapter 481, Health and Safety Code, other
  than felony possession of marihuana;
                     (B)  Section 485.032 [485.033], Health and Safety
  Code; or
                     (C)  Chapter 483, Health and Safety Code;
               (3)  an offense under Section 20.03 or 20.04, Penal
  Code;
               (4)  an offense under Chapter 20A, Penal Code;
               (5)  an offense under Chapter 34, Penal Code, if the
  criminal activity giving rise to the proceeds involves the
  commission of an offense under Title 5, Penal Code, or an offense
  under federal law or the laws of another state containing elements
  that are substantially similar to the elements of an offense under
  Title 5; [or]
               (6)  an offense under Section 38.11, Penal Code; or
               (7)  an attempt, conspiracy, or solicitation to commit
  an offense listed in this section.
         SECTION 4.  Section 5, Article 18.20, Code of Criminal
  Procedure, is amended by amending Subsection (a) and adding
  Subsections (c) and (d) to read as follows:
         (a)  Except as otherwise provided by this section and
  Sections [Section] 8A and 8B, only the Department of Public Safety
  is authorized by this article to own, possess, install, operate, or
  monitor an electronic, mechanical, or other device. The Department
  of Public Safety may be assisted by an investigative or law
  enforcement officer or other person in the operation and monitoring
  of an interception of wire, oral, or electronic communications,
  provided that the officer or other person:
               (1)  is designated by the director for that purpose;
  and
               (2)  acts in the presence and under the direction of a
  commissioned officer of the Department of Public Safety.
         (c)  The Texas Department of Criminal Justice may own
  electronic, mechanical, or other devices for a use or purpose
  authorized by Section 500.008, Government Code, and the inspector
  general of the Texas Department of Criminal Justice, a commissioned
  officer of that office, or another person acting in the presence and
  under the direction of a commissioned officer of that office may
  possess, install, operate, or monitor those devices as provided by
  Section 500.008.
         (d)  The Texas Youth Commission may own electronic,
  mechanical, or other devices for a use or purpose authorized by
  Section 61.0455, Human Resources Code, and the inspector general of
  the Texas Youth Commission, a commissioned officer of that office,
  or another person acting in the presence and under the direction of
  a commissioned officer of that office may possess, install,
  operate, or monitor those devices as provided by Section 61.0455.
         SECTION 5.  Article 18.20, Code of Criminal Procedure, is
  amended by adding Section 8B to read as follows:
         Sec. 8B.  DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS
  COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY. (a)
  In this section, "correctional facility" has the meaning assigned
  by Section 39.04(e), Penal Code.
         (b)  Notwithstanding any other provision of this article or
  Article 18.21, the office of the inspector general of the Texas
  Department of Criminal Justice may:
               (1)  without a warrant, use electronic, mechanical, or
  other devices to detect the presence or use of a cellular telephone
  or other wireless communications device in a correctional facility;
               (2)  without a warrant, intercept, monitor, detect, or,
  as authorized by applicable federal laws and regulations, prevent
  the transmission of any communication transmitted through the use
  of a cellular telephone or other wireless communications device in
  a correctional facility; and
               (3)  use, to the extent authorized by law, any
  information obtained under Subdivision (2), including the contents
  of an intercepted communication, in any criminal or civil
  proceeding before a court or other governmental agency or entity.
         (c)  Not later than the 30th day after the date on which the
  office of the inspector general uses an electronic, mechanical, or
  other device under Subsection (b), the inspector general shall
  report the use of the device to:
               (1)  a prosecutor with jurisdiction in the county in
  which the device was used; or
               (2)  the special prosecution unit established under
  Subchapter E, Chapter 41, Government Code, if that unit has
  jurisdiction in the county in which the device was used.
         (d)  When using an electronic, mechanical, or other device
  under Subsection (b), the office of the inspector general shall
  minimize the impact of the device on any communication that is not
  reasonably related to the detection of the presence or use of a
  cellular telephone or other wireless communications device in a
  correctional facility.
         (e)  A person confined in a correctional facility does not
  have an expectation of privacy with respect to the possession or use
  of a cellular telephone or other wireless communications device
  located on the premises of the facility. The person who is
  confined, and any person with whom that person communicates through
  the use of a cellular telephone or other wireless communications
  device, does not have an expectation of privacy with respect to the
  contents of any communication transmitted by the cellular telephone
  or wireless communications device.
         SECTION 6.  Section 17, Article 18.20, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 17.  NONAPPLICABILITY. This article does not apply to
  conduct described as an affirmative defense under Section 16.02(c),
  Penal Code, except as otherwise specifically provided by that
  section.
         SECTION 7.  Chapter 500, Government Code, is amended by
  adding Section 500.008 to read as follows:
         Sec. 500.008.  DETECTION AND MONITORING OF CELLULAR
  TELEPHONES. (a) The department may own and the office of inspector
  general may possess, install, operate, or monitor an electronic,
  mechanical, or other device, as defined by Article 18.20, Code of
  Criminal Procedure.
         (b)  The inspector general shall designate in writing the
  commissioned officers of the office of inspector general who are
  authorized to possess, install, operate, and monitor electronic,
  mechanical, or other devices for the department.
         (c)  An investigative or law enforcement officer or other
  person, on request of the office of inspector general, may assist
  the office in the operation and monitoring of an interception of
  wire, oral, or electronic communications if the investigative or
  law enforcement officer or other person:
               (1)  is designated by the executive director for that
  purpose; and
               (2)  acts in the presence and under the direction of a
  commissioned officer of the inspector general.
         SECTION 8.  Subchapter C, Chapter 61, Human Resources Code,
  is amended by adding Section 61.0455 to read as follows:
         Sec. 61.0455.  DETECTION AND MONITORING OF CELLULAR
  TELEPHONES. (a) The commission may own and the office of the
  inspector general may possess, install, operate, or monitor an
  electronic, mechanical, or other device, as defined by Article
  18.20, Code of Criminal Procedure.
         (b)  The inspector general shall designate in writing the
  commissioned officers of the office of inspector general who are
  authorized to possess, install, operate, and monitor electronic,
  mechanical, or other devices for the commission.
         (c)  An investigative or law enforcement officer or other
  person, on request of the office of inspector general, may assist
  the office in the operation and monitoring of an interception of
  wire, oral, or electronic communications if the investigative or
  law enforcement officer or other person:
               (1)  is designated by the executive commissioner for
  that purpose; and
               (2)  acts in the presence and under the direction of a
  commissioned officer of the inspector general.
         SECTION 9.  Section 16.02, Penal Code, is amended by adding
  Subsection (e-1) to read as follows:
         (e-1)  It is a defense to prosecution under Subsection (d)(1)
  that the electronic, mechanical, or other device is possessed by a
  person authorized to possess the device under Section 500.008,
  Government Code, or Section 61.0455, Human Resources Code.
         SECTION 10.  The changes in law made by this Act with respect
  to Sections 16.02 and 38.11, Penal Code, apply only to an offense
  committed on or after the effective date of this Act. An offense
  committed before the effective date of this Act is governed 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 section,
  an offense was committed before the effective date of this Act if
  any element of the offense occurred before that date.
         SECTION 11.  This Act takes effect September 1, 2009.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3228 was passed by the House on May 4,
  2009, by the following vote:  Yeas 142, Nays 0, 1 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 3228 on May 29, 2009, by the following vote:  Yeas 138, Nays 1,
  1 present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 3228 was passed by the Senate, with
  amendments, on May 26, 2009, by the following vote:  Yeas 31, Nays
  0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor