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A BILL TO BE ENTITLED
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AN ACT
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relating to the unlawful interception, use, or disclosure of wire, |
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oral, or electronic communications. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 123.001(2), Civil Practice and Remedies |
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Code, is amended to read as follows: |
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(2) "Interception" means the aural acquisition of the |
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contents of a communication through the use of an interception |
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device that is made without the consent of each [a] party to the |
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communication, but does not include the ordinary use of: |
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(A) a telephone or telegraph instrument or |
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facility or telephone and telegraph equipment; |
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(B) a hearing aid designed to correct subnormal |
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hearing to not better than normal; |
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(C) a radio, television, or other wireless |
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receiver; or |
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(D) a cable system that relays a public wireless |
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broadcast from a common antenna to a receiver. |
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SECTION 2. Section 123.003, Civil Practice and Remedies |
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Code, is amended by adding Subsection (a-1) to read as follows: |
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(a-1) A person may intercept a wire, oral, or electronic |
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communication if the person is a party to the communication, or one |
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of the parties to the communication has given prior consent to the |
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interception, and the communication: |
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(1) is made for the purpose of reporting or responding |
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to an immediate life-threatening situation, as defined by Article |
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18A.201, Code of Criminal Procedure; or |
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(2) constitutes a violation of Section 21.18, 22.07, |
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25.07, 25.071, 25.072, 33.021, 33.07, 38.12, 42.06, 42.061, 42.07, |
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or 47.05, Penal Code. |
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SECTION 3. Section 16.02, Penal Code, is amended by |
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amending Subsection (c) and adding Subsections (c-1) and (c-2) to |
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read as follows: |
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(c) It is an affirmative defense to prosecution under |
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Subsection (b) that: |
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(1) an operator of a switchboard or an officer, |
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employee, or agent of a communication common carrier whose |
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facilities are used in the transmission of a wire or electronic |
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communication intercepts a communication or discloses or uses an |
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intercepted communication in the normal course of employment while |
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engaged in an activity that is a necessary incident to the rendition |
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of service or to the protection of the rights or property of the |
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carrier of the communication, unless the interception results from |
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the communication common carrier's use of service observing or |
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random monitoring for purposes other than mechanical or service |
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quality control checks; |
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(2) an officer, employee, or agent of a communication |
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common carrier provides information, facilities, or technical |
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assistance to an investigative or law enforcement officer who is |
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authorized as provided by this section to intercept a wire, oral, or |
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electronic communication; |
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(3) a person acting under color of law intercepts: |
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(A) a wire, oral, or electronic communication, |
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if: |
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(i) each [the person is a] party to the |
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communication [or if one of the parties to the communication] has |
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given prior consent to the interception; or |
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(ii) the person is a party to the |
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communication, or one of the parties to the communication has given |
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prior consent to the interception, and the communication: |
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(a) is made for the purpose of |
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reporting or responding to an immediate life-threatening |
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situation; or |
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(b) constitutes a violation of |
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Section 21.18, 22.07, 25.07, 25.071, 25.072, 33.021, 33.07, 38.12, |
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42.06, 42.061, 42.07, or 47.05; |
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(B) a wire, oral, or electronic communication, if |
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the person is acting under the authority of Chapter 18A, Code of |
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Criminal Procedure; or |
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(C) a wire or electronic communication made by a |
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computer trespasser and transmitted to, through, or from a |
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protected computer, if: |
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(i) the interception did not acquire a |
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communication other than one transmitted to or from the computer |
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trespasser; |
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(ii) the owner of the protected computer |
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consented to the interception of the computer trespasser's |
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communications on the protected computer; and |
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(iii) the actor was lawfully engaged in an |
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ongoing criminal investigation and the actor had reasonable |
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suspicion to believe that the contents of the computer trespasser's |
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communications likely to be obtained would be material to the |
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investigation; |
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(4) a person not acting under color of law intercepts a |
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wire, oral, or electronic communication, if: |
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(A) each [the person is a] party to the |
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communication[; or
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[(B) one of the parties to the communication] has |
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given prior consent to the interception, unless the communication |
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is intercepted for the purpose of committing an unlawful act; or |
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(B) the person is a party to the communication, |
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or one of the parties to the communication has given prior consent |
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to the interception, and the communication: |
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(i) is made for the purpose of reporting or |
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responding to an immediate life-threatening situation; or |
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(ii) constitutes a violation of Section |
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21.18, 22.07, 25.07, 25.071, 25.072, 33.021, 33.07, 38.12, 42.06, |
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42.061, 42.07, or 47.05; |
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(5) a person acting under color of law intercepts a |
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wire, oral, or electronic communication if: |
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(A) oral or written consent for the interception |
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is given by a magistrate before the interception; |
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(B) an immediate life-threatening situation |
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exists; |
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(C) the person is a member of a law enforcement |
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unit specially trained to: |
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(i) respond to and deal with |
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life-threatening situations; or |
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(ii) install interception devices; and |
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(D) the interception ceases immediately on |
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termination of the life-threatening situation; |
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(6) an officer, employee, or agent of the Federal |
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Communications Commission intercepts a communication transmitted |
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by radio or discloses or uses an intercepted communication in the |
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normal course of employment and in the discharge of the monitoring |
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responsibilities exercised by the Federal Communications |
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Commission in the enforcement of Chapter 5, Title 47, United States |
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Code; |
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(7) a person intercepts or obtains access to an |
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electronic communication that was made through an electronic |
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communication system that is configured to permit the communication |
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to be readily accessible to the general public; |
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(8) a person intercepts radio communication, other |
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than a cordless telephone communication that is transmitted between |
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a cordless telephone handset and a base unit, that is transmitted: |
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(A) by a station for the use of the general |
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public; |
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(B) to ships, aircraft, vehicles, or persons in |
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distress; |
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(C) by a governmental, law enforcement, civil |
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defense, private land mobile, or public safety communications |
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system that is readily accessible to the general public, unless the |
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radio communication is transmitted by a law enforcement |
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representative to or from a mobile data terminal; |
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(D) by a station operating on an authorized |
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frequency within the bands allocated to the amateur, citizens band, |
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or general mobile radio services; or |
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(E) by a marine or aeronautical communications |
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system; |
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(9) a person intercepts a wire or electronic |
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communication the transmission of which causes harmful |
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interference to a lawfully operating station or consumer electronic |
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equipment, to the extent necessary to identify the source of the |
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interference; |
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(10) a user of the same frequency intercepts a radio |
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communication made through a system that uses frequencies monitored |
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by individuals engaged in the provision or the use of the system, if |
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the communication is not scrambled or encrypted; or |
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(11) a provider of an electronic communications |
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service records the fact that a wire or electronic communication |
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was initiated or completed in order to protect the provider, |
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another provider furnishing service towards the completion of the |
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communication, or a user of that service from fraudulent, unlawful, |
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or abusive use of the service. |
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(c-1) For purposes of Subsections (c)(3)(A) and (c)(4), a |
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party is considered to have given consent if: |
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(1) a clear warning is given to the party that the |
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communication is about to be recorded or transmitted and: |
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(A) a recording is made of the warning, if the |
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communication will be recorded; and |
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(B) on receipt of the warning, the party does not |
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terminate the communication; or |
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(2) the recording or transmission is made by an |
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employee of any regularly published newspaper, magazine, wire |
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service, radio station, or television station and: |
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(A) the recording or transmission is made in the |
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course of bona fide news-gathering duties on a full-time or a |
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contractual or part-time basis; |
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(B) a recording or transmitting device is readily |
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apparent to the party; and |
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(C) the party does not terminate the |
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communication. |
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(c-2) For purposes of Subsections (c)(3)(A) and (c)(4), a |
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party's withdrawal of consent after the communication is made does |
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not affect the availability of the defense provided by Subsection |
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(c). |
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SECTION 4. The change in law made by this Act applies only |
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to an offense committed on or after the effective date of this Act. |
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An offense committed before the effective date of this Act is |
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governed by the law in effect on the date the offense was committed, |
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and the former law is continued in effect for that purpose. For |
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purposes of this section, an offense was committed before the |
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effective date of this Act if any element of the offense occurred |
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before that date. |
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SECTION 5. This Act takes effect September 1, 2019. |