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A BILL TO BE ENTITLED
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AN ACT
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relating to the sale of certain communications equipment and mobile |
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telephone services; providing criminal and civil penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle A, Title 10, Business & Commerce Code, |
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is amended by adding Chapter 307 to read as follows: |
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CHAPTER 307. SALE OF CERTAIN MOBILE TELEPHONES, STORAGE DEVICES, |
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MOBILE TELEPHONE SERVICES, AND OTHER EQUIPMENT |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 307.001. DEFINITIONS. In this chapter: |
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(1) "Department" means the Department of Public |
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Safety. |
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(2) "Mobile telephone" includes a cellular telephone |
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or similar wireless communication device that can be used as a |
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telephone. |
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(3) "SIM card" means a subscriber identity module or |
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functionally equivalent storage device. |
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Sec. 307.002. APPLICABILITY. (a) With respect to a mobile |
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telephone or wireless communication service, this chapter applies |
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only to: |
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(1) a mobile telephone for which access to a wireless |
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communication service is provided to a customer without the |
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customer being required to enter into a credit account or other |
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contract, including a month-to-month contract, except as otherwise |
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provided by this chapter; or |
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(2) wireless communication service provided to a |
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customer without the customer being required to enter into a credit |
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account or other contract, including a month-to-month contract. |
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(b) This chapter applies only to a SIM card to be purchased |
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in connection or for use with a mobile telephone. |
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(c) With respect to the sale of a mobile telephone or SIM |
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card, this chapter does not apply to a sale by: |
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(1) a manufacturer of a mobile telephone or SIM card to |
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an authorized reseller; |
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(2) a wireless carrier to an authorized reseller; or |
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(3) an authorized reseller to another authorized |
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reseller. |
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(d) Except as otherwise provided by this section, this |
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chapter applies to a person who sells a mobile telephone or SIM card |
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or provides wireless communication service to a customer in this |
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state, regardless of the person's location. |
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(e) In this section: |
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(1) "Authorized reseller" means a person authorized |
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by: |
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(A) a manufacturer to sell the manufacturer's |
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mobile telephones or SIM cards; or |
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(B) a wireless carrier to sell mobile telephones |
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or SIM cards manufactured by a certain manufacturer. |
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(2) "Wireless carrier" has the meaning assigned by 47 |
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U.S.C. Section 615b. |
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Sec. 307.003. COSTS OF COMPLIANCE WITH CHAPTER. A person |
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who sells a mobile telephone, SIM card, or Voice over Internet |
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Protocol telephone or adapter to which this chapter applies may |
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charge a customer a reasonable fee in an amount appropriate to |
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offset the costs incurred by the person in complying with this |
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chapter. |
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[Sections 307.004-307.050 reserved for expansion] |
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SUBCHAPTER B. INFORMATION RELATED TO SALE OR USE OF CERTAIN |
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COMMUNICATIONS EQUIPMENT |
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Sec. 307.051. CERTAIN INFORMATION REQUIRED; OFFENSE. (a) |
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Before completing a sale of a mobile telephone or SIM card to which |
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this chapter applies, a mobile telephone for which access to a |
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wireless communication service is provided under a month-to-month |
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contract, or a Voice over Internet Protocol telephone or adapter, |
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the seller shall: |
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(1) require the purchaser to provide: |
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(A) the purchaser's full name; |
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(B) the purchaser's complete address; |
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(C) the number of the driver's license or other |
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identification issued by a governmental entity to the purchaser; |
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and |
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(D) the purchaser's date of birth; and |
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(2) verify the information provided under Subdivision |
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(1) by: |
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(A) requiring the purchaser to display the |
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purchaser's driver's license or other government-issued |
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identification containing the purchaser's photograph and |
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information, if the transaction is in person; or |
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(B) other means, for transactions not conducted |
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in person. |
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(b) A purchaser who provides false or misleading |
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information when providing information required under this section |
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commits an offense. An offense under this subsection is a Class A |
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misdemeanor unless the defendant has been previously convicted of |
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an offense under this subsection, in which event the offense is a |
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state jail felony. |
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(c) For purposes of complying with Subsection (a)(2), the |
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seller may access electronically readable information on the |
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purchaser's driver's license or identification card. |
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Sec. 307.052. RECORD OF SALE; TRANSMISSION OF RECORD. (a) |
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A person who sells a mobile telephone or SIM card to which this |
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chapter applies shall make a record of the sale that includes: |
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(1) the information obtained from the purchaser under |
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Section 307.051; |
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(2) the make and model of the mobile telephone; |
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(3) any assigned 10-digit telephone number or other |
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subscriber or account identifier known at the time of purchase; and |
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(4) if applicable to the mobile telephone, SIM card, |
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or service to be accessed by the mobile telephone: |
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(A) the international mobile equipment |
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identifier (IMEI) number; |
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(B) the electronic serial number (ESN); |
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(C) the mobile equipment identifier (MEID); |
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(D) the international mobile subscriber |
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identifier (IMSI); |
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(E) the machine address code (MAC) address; and |
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(F) any other specific equipment or service |
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account identifier. |
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(b) A person who sells a mobile telephone or SIM card to |
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which this chapter applies shall promptly electronically transmit |
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the record made under Subsection (a) to the provider of the wireless |
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communication service to be accessed by the telephone. If |
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electronic transmission of the information is not available, the |
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person may submit the information by other means that promptly and |
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accurately submit the information. |
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(c) A wireless communication service provider shall provide |
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a transmission confirmation receipt to each person who sells a |
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mobile telephone or SIM card to which this chapter applies on the |
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provider's receipt of a transmission from the person under |
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Subsection (b). |
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(d) Each person who sells a mobile telephone or SIM card to |
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which this chapter applies shall promptly dispose of the record on |
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receipt of a transmission confirmation under Subsection (c). Each |
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wireless communication service provider to which a record is |
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transmitted under Subsection (b) and each person who sells a mobile |
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telephone for which access to a wireless communication service is |
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provided under a month-to-month contract and who obtains and |
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records information under Section 301.051 shall maintain the record |
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until the second anniversary of the date on which the telephone or |
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SIM card was sold. |
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(e) If a mobile telephone or SIM card to which this chapter |
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applies is resold in a subsequent retail transaction or in a |
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transaction not made in the ordinary course of the seller's legal |
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business, the seller in that transaction shall comply with this |
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section. |
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Sec. 307.053. LIMITATION ON NUMBER OF DEVICES THAT MAY BE |
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SOLD. A person may not sell to another person in a 24-hour period |
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more than five of any combination of the following: |
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(1) mobile telephones to which this chapter applies; |
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and |
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(2) SIM cards to which this chapter applies. |
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Sec. 307.054. COLLECTION AND MAINTENANCE OF INFORMATION |
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REGARDING CERTAIN DEVICES. A person who sells a Voice over Internet |
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Protocol telephone or adapter shall record the machine address code |
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of each device sold and maintain the record until the second |
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anniversary of the date on which the device was sold. |
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Sec. 307.055. COLLECTION OF CALL INFORMATION. (a) A |
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wireless communication service provider shall collect, record, and |
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maintain information relating to all communications, including |
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telephone calls, text messages, and data transmissions and |
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receptions, made and received using a mobile telephone to which |
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this chapter applies and that accesses the provider's wireless |
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communication service in the same manner as the provider collects, |
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records, and maintains the information relating to communications |
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made and received using a mobile telephone accessing the provider's |
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wireless communication service that is not paid for in advance or is |
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paid for under a credit account or other contract. |
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(b) A law enforcement agency may access information |
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collected under this section only by presenting a subpoena |
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compelling disclosure of the information. |
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(c) The fee charged by a wireless communication service |
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provider for the production of information in compliance with a |
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subpoena required by Subsection (b) may not exceed $200. |
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Sec. 307.056. COMMERCIAL USE OF INFORMATION PROHIBITED. A |
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person may not use information obtained under this subchapter for |
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commercial purposes unless the person to which the information |
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pertains consents to that use by signing a document that: |
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(1) clearly states that information pertaining to the |
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person will be used for commercial purposes; and |
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(2) is separate from any other document given to that |
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person. |
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Sec. 307.057. DISCLOSURE OF INFORMATION PROHIBITED. (a) A |
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person may not disclose information obtained under this subchapter |
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to another person except as provided by this subchapter, court |
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order, or other law. |
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(b) A person who violates Subsection (a) commits an offense. |
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An offense under this subsection is a Class A misdemeanor. |
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Sec. 307.058. RESPONSIBILITY FOR ACTIONS OF OTHER PARTIES. |
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In complying with this subchapter: |
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(1) a person who sells a mobile telephone or SIM card |
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to which this chapter applies is not responsible for an act or |
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failure to act by a wireless communication service provider; and |
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(2) a wireless communication service provider is not |
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responsible for an act or failure to act by a person who sells such a |
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mobile telephone or SIM card. |
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[Sections 307.059-307.100 reserved for expansion] |
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SUBCHAPTER C. CERTIFICATE OF REGISTRATION |
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Sec. 307.101. REGISTRATION REQUIRED. A person may not sell |
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a mobile telephone or SIM card to which this chapter applies or |
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provide wireless communication service to be accessed by such a |
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mobile telephone unless the person is registered under this |
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subchapter. |
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Sec. 307.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. (a) |
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The department shall issue a certificate of registration to an |
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applicant who: |
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(1) completes an application form; |
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(2) pays the registration fee; and |
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(3) presents any relevant evidence relating to the |
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applicant's qualifications as required by department rule. |
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(b) The department shall prescribe an application form and |
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may establish qualifications for the holder of a certificate of |
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registration under this chapter. The application form must require |
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an applicant to provide the address of the applicant's place of |
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business. |
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Sec. 307.103. TERM OF CERTIFICATE. (a) A certificate of |
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registration is valid for two years after the date of issuance. |
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(b) The department shall adopt a system under which |
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certificates of registration expire and are renewed on various |
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dates. |
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(c) Not later than the 45th day before the date a person's |
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certificate of registration is scheduled to expire, the department |
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shall send written notice of the impending expiration to the person |
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at the person's last known address according to department records. |
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(d) A person whose certificate of registration has expired |
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may not sell a mobile telephone or SIM card to which this chapter |
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applies or provide wireless communication service to be accessed by |
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such a mobile telephone until the certificate has been renewed. |
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Sec. 307.104. RENEWAL OF CERTIFICATE. (a) To renew a |
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certificate of registration, a person must submit an application |
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for renewal in the manner prescribed by the department. |
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(b) A person who is otherwise eligible to renew a |
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certificate of registration may renew an unexpired certificate by |
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paying the required renewal fee to the department before the |
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expiration date of the certificate. |
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(c) A person whose certificate of registration has been |
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expired for 90 days or less may renew the certificate by paying to |
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the department a renewal fee that is equal to 1-1/2 times the |
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normally required renewal fee. |
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(d) A person whose certificate of registration has been |
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expired for more than 90 days but less than one year may renew the |
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certificate by paying to the department a renewal fee that is equal |
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to two times the normally required renewal fee. |
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(e) A person whose certificate of registration has been |
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expired for one year or more may not renew the certificate. The |
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person may obtain a new certificate of registration by complying |
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with the requirements and procedures for an original certificate. |
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Sec. 307.105. FEES. (a) The department shall prescribe |
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fees for the issuance or renewal of a certificate of registration |
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under this chapter. The fees may not exceed the amount necessary to |
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cover the costs of administering this subchapter and complying with |
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Subchapter D. |
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(b) A fee collected under this section shall be deposited in |
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a separate account in the general revenue fund and may be |
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appropriated only to the department for the purposes of |
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administering this subchapter and complying with Subchapter D. |
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[Sections 307.106-307.150 reserved for expansion] |
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SUBCHAPTER D. DATABASE AND REPORT |
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Sec. 307.151. ELECTRONIC DATABASE. (a) The department |
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shall create and maintain an electronic database containing the |
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names of each person registered under Subchapter C. |
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(b) Information contained in the database is confidential |
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and not subject to disclosure under Chapter 552, Government Code. |
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Sec. 307.152. REPORT TO LEGISLATURE. The department |
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annually shall submit to both houses of the legislature a report |
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that includes: |
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(1) the number of persons registered as: |
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(A) sellers of mobile telephones or SIM cards to |
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which this chapter applies; and |
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(B) providers of wireless communication services |
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to be accessed by the mobile telephones; and |
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(2) the number of mobile telephones and SIM cards sold |
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during the year for which the report is made. |
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[Sections 307.153-307.200 reserved for expansion] |
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SUBCHAPTER E. PENALTIES |
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Sec. 307.201. CIVIL PENALTY. (a) A person who violates |
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this chapter is subject to a civil penalty in an amount not to |
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exceed the greater of: |
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(1) $1,000 for each violation; or |
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(2) $20,000. |
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(b) Each day that a violation continues or occurs is a |
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separate violation for purposes of imposing a penalty under this |
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section. |
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(c) The attorney general may bring suit to recover a penalty |
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under this section. |
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Sec. 307.202. OFFENSE OF POSSESSION OF ILLEGALLY OBTAINED |
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MOBILE TELEPHONE OR INFORMATION STORAGE DEVICE. (a) A person |
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commits an offense if the person intentionally violates this |
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chapter in obtaining or possessing a mobile telephone or SIM card to |
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which this chapter applies. |
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(b) An offense under this section is a Class A misdemeanor. |
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Sec. 307.203. OFFENSE OF CREATING, USING, OR POSSESSING |
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UNTRACEABLE MOBILE TELEPHONE. (a) A person may not alter a mobile |
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telephone to render untraceable or unidentifiable the telephone's |
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telephone number, electronic serial number, or mobile |
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identification number without the consent of the mobile telephone's |
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manufacturer. |
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(b) A person commits an offense if the person uses or |
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possesses a mobile telephone that has been altered in violation of |
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Subsection (a). |
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(c) An offense under this section is a Class A misdemeanor |
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unless the defendant has been previously convicted of an offense |
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under this section, in which event the offense is a state jail |
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felony. |
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SECTION 2. Subchapter D, Chapter 12, Penal Code, is amended |
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by adding Section 12.50 to read as follows: |
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Sec. 12.50. PENALTY IF PREPAID MOBILE TELEPHONE USED TO |
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COMMIT OFFENSE. (a) In this section, "prepaid mobile telephone" |
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means a cellular telephone or similar wireless communication device |
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that can be used as a telephone and for which access to a wireless |
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communication service is paid for in advance or otherwise provided |
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to a customer without the customer being required to enter into a |
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credit account or other contract, including a month-to-month |
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contract. |
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(b) If it is shown on the trial of an offense, other than an |
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offense punishable as a felony of the first degree or a Class A |
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misdemeanor, that the actor used a prepaid mobile telephone to |
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enable the actor to commit the offense, the punishment for the |
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offense is increased to the punishment prescribed for the next |
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higher category of offense. If the offense is a Class A |
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misdemeanor, the minimum term of confinement is increased to 180 |
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days. |
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SECTION 3. Section 521.126(d), Transportation Code, is |
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amended to read as follows: |
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(d) The prohibition provided by Subsection (b) does not |
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apply to a person who accesses, uses, compiles, or maintains a |
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database of the information for a law enforcement or governmental |
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purpose, including: |
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(1) an officer or employee of the department carrying |
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out law enforcement or government purposes; |
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(2) a peace officer, as defined by Article 2.12, Code |
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of Criminal Procedure, acting in the officer's official capacity; |
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(3) a license deputy, as defined by Section 12.702, |
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Parks and Wildlife Code, issuing a license, stamp, tag, permit, or |
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other similar item through use of a point-of-sale system under |
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Section 12.703, Parks and Wildlife Code; |
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(4) a person acting as authorized by Section 109.61, |
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Alcoholic Beverage Code; |
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(5) a person establishing the identity of a voter |
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under Chapter 63, Election Code; |
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(6) a person acting as authorized by Section 161.0825, |
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Health and Safety Code; [or] |
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(7) a person screening an individual who will work |
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with or have access to children if the person is an employee or an |
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agent of an employee of a public school district or an organization |
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exempt from federal income tax under Section 501(c)(3), Internal |
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Revenue Code of 1986, as amended, that sponsors a program for youth; |
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or |
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(8) a person acting as authorized by Section |
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307.051(c), Business & Commerce Code. |
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SECTION 4. The change in law made by Section 12.50, Penal |
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Code, as added by this Act, applies only to an offense committed on |
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or after the effective date of this Act. An offense committed |
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before the effective date of this Act is governed by the law in |
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effect when the offense was committed, and the former law is |
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continued in effect for that purpose. For purposes of this section, |
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an offense was committed before the effective date of this Act if |
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any element of the offense occurred before that date. |
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SECTION 5. This Act takes effect September 1, 2009. |