Bill Text: TX SB1644 | 2019-2020 | 86th Legislature | Introduced

---

Bill Title: Relating to the unlawful interception, use, or disclosure of wire, oral, or electronic communications.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2019-03-14 - Referred to Criminal Justice [SB1644 Detail]

Download: Texas-2019-SB1644-Introduced.html

---

86R4340 JSC-D
By: Miles S.B. No. 1644

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