81R2292 PEP-F
By: Madden H.B. No. 1481
A BILL TO BE ENTITLED
AN ACT
relating to certain offenses regarding the possession or use of a
cellular telephone by an inmate or defendant in a correctional or
detention facility and to the detection and monitoring of that
possession or use.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 38.11(a) and (j), Penal Code, as
amended by Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of
the 79th Legislature, Regular Session, 2005, are reenacted and
amended to read as follows:
(a) A person commits an offense if the person provides:
(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 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 the Texas Youth
Commission or another [a] secure correctional facility for
juveniles or a 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 local jail regulated by the Commission on Jail Standards; or
(5) a cigarette or tobacco product to a person
confined in a local jail regulated by the Commission on Jail
Standards 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 an inmate confined in the jail; or
(B) places restrictions on:
(i) the possession of a cigarette or
tobacco product by an inmate confined in the jail; or
(ii) the manner in which a cigarette or
tobacco product may be provided to an inmate confined in the jail.
(j) A person commits an offense if the person, while an
inmate of a correctional facility operated by or under contract
with the Texas Department of Criminal Justice or while in the
custody of the Texas Youth Commission or another [a] secure
correctional facility for juveniles or a secure detention facility
for juveniles, possesses a cellular telephone or other wireless
communications device or a component of one of those devices.
SECTION 2. Section 38.11, Penal Code, is amended by adding
Subsection (k) to read as follows:
(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 an inmate of a correctional facility operated
by or under contract with the Texas Department of Criminal Justice
or by a person in the custody of the Texas Youth Commission or
another secure correctional facility for juveniles or a secure
detention facility for juveniles, 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 inmate or 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 inmate or 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 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 Section
8A, 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. 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 6. 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 7. 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 8. 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 9. 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 10. This Act takes effect September 1, 2009.