Texas 2009 - 81st Regular

Texas House Bill HB1481 Compare Versions

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1	1	81R8032 PEP-F
2	2	By: Madden H.B. No. 1481
3	3	Substitute the following for H.B. No. 1481:
4	4	By: McReynolds C.S.H.B. No. 1481
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to certain offenses regarding the possession or use of a
10	10	cellular telephone by an inmate or defendant in a correctional or
11	11	detention facility and to the detection and monitoring of that
12	12	possession or use.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Sections 38.11(a) and (j), Penal Code, as
15	15	amended by Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of
16	16	the 79th Legislature, Regular Session, 2005, are reenacted and
17	17	amended to read as follows:
18	18	(a) A person commits an offense if the person provides, or
19	19	possesses with the intent to provide:
20	20	(1) an alcoholic beverage, controlled substance, or
21	21	dangerous drug to an inmate of a correctional facility or to a
22	22	person in the custody of a secure correctional facility or secure
23	23	detention facility for juveniles, except on the prescription of a
24	24	physician or practitioner, as defined in Section 551.003,
25	25	Occupations Code;
26	26	(2) a deadly weapon to an inmate of a correctional
27	27	facility or to a person in the custody of a secure correctional
28	28	facility or secure detention facility for juveniles;
29	29	(3) a cellular telephone or other wireless
30	30	communications device or a component of one of those devices,
31	31	cigarette, tobacco product, or money to an inmate of a correctional
32	32	facility operated by or under contract with the Texas Department of
33	33	Criminal Justice or to a person in the custody of the Texas Youth
34	34	Commission or another [a] secure correctional facility for
35	35	juveniles or a secure detention facility for juveniles, except for
36	36	money that is provided for the benefit of the juvenile in accordance
37	37	with facility rules;
38	38	(4) a cellular telephone or money to a person confined
39	39	in a local jail regulated by the Commission on Jail Standards; or
40	40	(5) a cigarette or tobacco product to a person
41	41	confined in a local jail regulated by the Commission on Jail
42	42	Standards and in providing the cigarette or tobacco product the
43	43	person violates a rule or regulation adopted by the sheriff or jail
44	44	administrator that:
45	45	(A) prohibits the possession of a cigarette or
46	46	tobacco product by an inmate confined in the jail; or
47	47	(B) places restrictions on:
48	48	(i) the possession of a cigarette or
49	49	tobacco product by an inmate confined in the jail; or
50	50	(ii) the manner in which a cigarette or
51	51	tobacco product may be provided to an inmate confined in the jail.
52	52	(j) A person commits an offense if the person, while an
53	53	inmate of a correctional facility operated by or under contract
54	54	with the Texas Department of Criminal Justice or while in the
55	55	custody of the Texas Youth Commission or another [a] secure
56	56	correctional facility for juveniles or a secure detention facility
57	57	for juveniles, possesses a cellular telephone or other wireless
58	58	communications device or a component of one of those devices.
59	59	SECTION 2. Section 38.11(f), Penal Code, is amended by
60	60	adding Subdivision (6) to read as follows:
61	61	(6) "Component" means any item necessary for the
62	62	current, ongoing, or future operation of a cellular telephone or
63	63	other wireless communications device, including a subscriber
64	64	identity module card or functionally equivalent portable memory
65	65	chip, a battery or battery charger, and any number of minutes that
66	66	have been purchased or for which a contract has been entered into
67	67	and during which a cellular telephone or other wireless
68	68	communications device is capable of transmitting or receiving
69	69	communications.
70	70	SECTION 3. Section 38.11, Penal Code, is amended by adding
71	71	Subsection (k) to read as follows:
72	72	(k) A person commits an offense if, with the intent to
73	73	provide to or make a cellular telephone or other wireless
74	74	communications device or a component of one of those devices
75	75	available for use by an inmate of a correctional facility operated
76	76	by or under contract with the Texas Department of Criminal Justice
77	77	or by a person in the custody of the Texas Youth Commission or
78	78	another secure correctional facility for juveniles or a secure
79	79	detention facility for juveniles, the person:
80	80	(1) acquires a cellular telephone or other wireless
81	81	communications device or a component of one of those devices to be
82	82	delivered to the inmate or person in custody;
83	83	(2) provides a cellular telephone or other wireless
84	84	communications device or a component of one of those devices to
85	85	another person for delivery to the inmate or person in custody; or
86	86	(3) makes a payment to a communication common carrier,
87	87	as defined by Article 18.20, Code of Criminal Procedure, or to any
88	88	communication service that provides to its users the ability to
89	89	send or receive wire or electronic communications.
90	90	SECTION 4. The heading to Article 18.20, Code of Criminal
91	91	Procedure, is amended to read as follows:
92	92	Art. 18.20. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL,
93	93	OR ELECTRONIC COMMUNICATIONS.
94	94	SECTION 5. Section 4, Article 18.20, Code of Criminal
95	95	Procedure, is amended to read as follows:
96	96	Sec. 4. OFFENSES FOR WHICH INTERCEPTIONS MAY BE
97	97	AUTHORIZED. A judge of competent jurisdiction may issue an order
98	98	authorizing interception of wire, oral, or electronic
99	99	communications only if the prosecutor applying for the order shows
100	100	probable cause to believe that the interception will provide
101	101	evidence of the commission of:
102	102	(1) a felony under Section 19.02, 19.03, or 43.26,
103	103	Penal Code;
104	104	(2) a felony under:
105	105	(A) Chapter 481, Health and Safety Code, other
106	106	than felony possession of marihuana;
107	107	(B) Section 485.032 [485.033], Health and Safety
108	108	Code; or
109	109	(C) Chapter 483, Health and Safety Code;
110	110	(3) an offense under Section 20.03 or 20.04, Penal
111	111	Code;
112	112	(4) an offense under Chapter 20A, Penal Code;
113	113	(5) an offense under Chapter 34, Penal Code, if the
114	114	criminal activity giving rise to the proceeds involves the
115	115	commission of an offense under Title 5, Penal Code, or an offense
116	116	under federal law or the laws of another state containing elements
117	117	that are substantially similar to the elements of an offense under
118	118	Title 5; [or]
119	119	(6) an offense under Section 38.11, Penal Code; or
120	120	(7) an attempt, conspiracy, or solicitation to commit
121	121	an offense listed in this section.
122	122	SECTION 6. Section 5, Article 18.20, Code of Criminal
123	123	Procedure, is amended by amending Subsection (a) and adding
124	124	Subsections (c) and (d) to read as follows:
125	125	(a) Except as otherwise provided by this section and
126	126	Sections [Section] 8A and 8B, only the Department of Public Safety
127	127	is authorized by this article to own, possess, install, operate, or
128	128	monitor an electronic, mechanical, or other device. The Department
129	129	of Public Safety may be assisted by an investigative or law
130	130	enforcement officer or other person in the operation and monitoring
131	131	of an interception of wire, oral, or electronic communications,
132	132	provided that the officer or other person:
133	133	(1) is designated by the director for that purpose;
134	134	and
135	135	(2) acts in the presence and under the direction of a
136	136	commissioned officer of the Department of Public Safety.
137	137	(c) The Texas Department of Criminal Justice may own
138	138	electronic, mechanical, or other devices for a use or purpose
139	139	authorized by Section 500.008, Government Code, and the inspector
140	140	general of the Texas Department of Criminal Justice, a commissioned
141	141	officer of that office, or another person acting in the presence and
142	142	under the direction of a commissioned officer of that office may
143	143	possess, install, operate, or monitor those devices as provided by
144	144	Section 500.008.
145	145	(d) The Texas Youth Commission may own electronic,
146	146	mechanical, or other devices for a use or purpose authorized by
147	147	Section 61.0455, Human Resources Code, and the inspector general of
148	148	the Texas Youth Commission, a commissioned officer of that office,
149	149	or another person acting in the presence and under the direction of
150	150	a commissioned officer of that office may possess, install,
151	151	operate, or monitor those devices as provided by Section 61.0455.
152	152	SECTION 7. Article 18.20, Code of Criminal Procedure, is
153	153	amended by adding Section 8B to read as follows:
154	154	Sec. 8B. DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS
155	155	COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY. (a)
156	156	In this section, "correctional facility" has the meaning assigned
157	157	by Section 39.04(e), Penal Code.
158	158	(b) Notwithstanding any other provision of this article or
159	159	Article 18.21, the office of the inspector general of the Texas
160	160	Department of Criminal Justice may:
161	161	(1) without a warrant, use electronic, mechanical, or
162	162	other devices to detect the presence or use of a cellular telephone
163	163	or other wireless communications device in a correctional facility;
164	164	(2) without a warrant, intercept, monitor, detect, or,
165	165	as authorized by applicable federal laws and regulations, prevent
166	166	the transmission of any communication transmitted through the use
167	167	of a cellular telephone or other wireless communications device in
168	168	a correctional facility; and
169	169	(3) use, to the extent authorized by law, any
170	170	information obtained under Subdivision (2), including the contents
171	171	of an intercepted communication, in any criminal or civil
172	172	proceeding before a court or other governmental agency or entity.
173	173	(c) Not later than the 30th day after the date on which the
174	174	office of the inspector general uses an electronic, mechanical, or
175	175	other device under Subsection (b), the inspector general shall
176	176	report the use of the device to:
177	177	(1) a prosecutor with jurisdiction in the county in
178	178	which the device was used; or
179	179	(2) the special prosecution unit established under
180	180	Subchapter E, Chapter 41, Government Code, if that unit has
181	181	jurisdiction in the county in which the device was used.
182	182	(d) When using an electronic, mechanical, or other device
183	183	under Subsection (b), the office of the inspector general shall
184	184	minimize the impact of the device on any communication that is not
185	185	reasonably related to the detection of the presence or use of a
186	186	cellular telephone or other wireless communications device in a
187	187	correctional facility.
188	188	(e) A person confined in a correctional facility does not
189	189	have an expectation of privacy with respect to the possession or use
190	190	of a cellular telephone or other wireless communications device
191	191	located on the premises of the facility. The person who is
192	192	confined, and any person with whom that person communicates through
193	193	the use of a cellular telephone or other wireless communications
194	194	device, does not have an expectation of privacy with respect to the
195	195	contents of any communication transmitted by the cellular telephone
196	196	or wireless communications device.
197	197	SECTION 8. Section 17, Article 18.20, Code of Criminal
198	198	Procedure, is amended to read as follows:
199	199	Sec. 17. NONAPPLICABILITY. This article does not apply to
200	200	conduct described as an affirmative defense under Section 16.02(c),
201	201	Penal Code, except as otherwise specifically provided by that
202	202	section.
203	203	SECTION 9. Chapter 500, Government Code, is amended by
204	204	adding Section 500.008 to read as follows:
205	205	Sec. 500.008. DETECTION AND MONITORING OF CELLULAR
206	206	TELEPHONES. (a) The department may own and the office of inspector
207	207	general may possess, install, operate, or monitor an electronic,
208	208	mechanical, or other device, as defined by Article 18.20, Code of
209	209	Criminal Procedure.
210	210	(b) The inspector general shall designate in writing the
211	211	commissioned officers of the office of inspector general who are
212	212	authorized to possess, install, operate, and monitor electronic,
213	213	mechanical, or other devices for the department.
214	214	(c) An investigative or law enforcement officer or other
215	215	person, on request of the office of inspector general, may assist
216	216	the office in the operation and monitoring of an interception of
217	217	wire, oral, or electronic communications if the investigative or
218	218	law enforcement officer or other person:
219	219	(1) is designated by the executive director for that
220	220	purpose; and
221	221	(2) acts in the presence and under the direction of a
222	222	commissioned officer of the inspector general.
223	223	SECTION 10. Subchapter C, Chapter 61, Human Resources Code,
224	224	is amended by adding Section 61.0455 to read as follows:
225	225	Sec. 61.0455. DETECTION AND MONITORING OF CELLULAR
226	226	TELEPHONES. (a) The commission may own and the office of the
227	227	inspector general may possess, install, operate, or monitor an
228	228	electronic, mechanical, or other device, as defined by Article
229	229	18.20, Code of Criminal Procedure.
230	230	(b) The inspector general shall designate in writing the
231	231	commissioned officers of the office of inspector general who are
232	232	authorized to possess, install, operate, and monitor electronic,
233	233	mechanical, or other devices for the commission.
234	234	(c) An investigative or law enforcement officer or other
235	235	person, on request of the office of inspector general, may assist
236	236	the office in the operation and monitoring of an interception of
237	237	wire, oral, or electronic communications if the investigative or
238	238	law enforcement officer or other person:
239	239	(1) is designated by the executive commissioner for
240	240	that purpose; and
241	241	(2) acts in the presence and under the direction of a
242	242	commissioned officer of the inspector general.
243	243	SECTION 11. Section 16.02, Penal Code, is amended by adding
244	244	Subsection (e-1) to read as follows:
245	245	(e-1) It is a defense to prosecution under Subsection (d)(1)
246	246	that the electronic, mechanical, or other device is possessed by a
247	247	person authorized to possess the device under Section 500.008,
248	248	Government Code, or Section 61.0455, Human Resources Code.
249	249	SECTION 12. The changes in law made by this Act with respect
250	250	to Sections 16.02 and 38.11, Penal Code, apply only to an offense
251	251	committed on or after the effective date of this Act. An offense
252	252	committed before the effective date of this Act is governed by the
253	253	law in effect when the offense was committed, and the former law is
254	254	continued in effect for that purpose. For purposes of this section,
255	255	an offense was committed before the effective date of this Act if
256	256	any element of the offense occurred before that date.
257	257	SECTION 13. This Act takes effect September 1, 2009.