Texas 2009 - 81st Regular

Texas Senate Bill SB1635 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R165 ATP-D
2	2	By: Carona, Davis, Wendy S.B. No. 1635
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the sale of certain communications equipment and mobile
8	8	telephone services; providing criminal and civil penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subtitle A, Title 10, Business & Commerce Code,
11	11	is amended by adding Chapter 307 to read as follows:
12	12	CHAPTER 307. SALE OF CERTAIN MOBILE TELEPHONES, STORAGE DEVICES,
13	13	MOBILE TELEPHONE SERVICES, AND OTHER EQUIPMENT
14	14	SUBCHAPTER A. GENERAL PROVISIONS
15	15	Sec. 307.001. DEFINITIONS. In this chapter:
16	16	(1) "Department" means the Department of Public
17	17	Safety.
18	18	(2) "Mobile telephone" includes a cellular telephone
19	19	or similar wireless communication device that can be used as a
20	20	telephone.
21	21	(3) "SIM card" means a subscriber identity module or
22	22	functionally equivalent storage device.
23	23	Sec. 307.002. APPLICABILITY. (a) With respect to a mobile
24	24	telephone or wireless communication service, this chapter applies
25	25	only to:
26	26	(1) a mobile telephone for which access to a wireless
27	27	communication service is provided to a customer without the
28	28	customer being required to enter into a credit account or other
29	29	contract, including a month-to-month contract, except as otherwise
30	30	provided by this chapter; or
31	31	(2) wireless communication service provided to a
32	32	customer without the customer being required to enter into a credit
33	33	account or other contract, including a month-to-month contract.
34	34	(b) This chapter applies only to a SIM card to be purchased
35	35	in connection or for use with a mobile telephone.
36	36	(c) With respect to the sale of a mobile telephone or SIM
37	37	card, this chapter does not apply to a sale by:
38	38	(1) a manufacturer of a mobile telephone or SIM card to
39	39	an authorized reseller;
40	40	(2) a wireless carrier to an authorized reseller; or
41	41	(3) an authorized reseller to another authorized
42	42	reseller.
43	43	(d) Except as otherwise provided by this section, this
44	44	chapter applies to a person who sells a mobile telephone or SIM card
45	45	or provides wireless communication service to a customer in this
46	46	state, regardless of the person's location.
47	47	(e) In this section:
48	48	(1) "Authorized reseller" means a person authorized
49	49	by:
50	50	(A) a manufacturer to sell the manufacturer's
51	51	mobile telephones or SIM cards; or
52	52	(B) a wireless carrier to sell mobile telephones
53	53	or SIM cards manufactured by a certain manufacturer.
54	54	(2) "Wireless carrier" has the meaning assigned by 47
55	55	U.S.C. Section 615b.
56	56	Sec. 307.003. COSTS OF COMPLIANCE WITH CHAPTER. A person
57	57	who sells a mobile telephone, SIM card, or Voice over Internet
58	58	Protocol telephone or adapter to which this chapter applies may
59	59	charge a customer a reasonable fee in an amount appropriate to
60	60	offset the costs incurred by the person in complying with this
61	61	chapter.
62	62	[Sections 307.004-307.050 reserved for expansion]
63	63	SUBCHAPTER B. INFORMATION RELATED TO SALE OR USE OF CERTAIN
64	64	COMMUNICATIONS EQUIPMENT
65	65	Sec. 307.051. CERTAIN INFORMATION REQUIRED; OFFENSE. (a)
66	66	Before completing a sale of a mobile telephone or SIM card to which
67	67	this chapter applies, a mobile telephone for which access to a
68	68	wireless communication service is provided under a month-to-month
69	69	contract, or a Voice over Internet Protocol telephone or adapter,
70	70	the seller shall:
71	71	(1) require the purchaser to provide:
72	72	(A) the purchaser's full name;
73	73	(B) the purchaser's complete address;
74	74	(C) the number of the driver's license or other
75	75	identification issued by a governmental entity to the purchaser;
76	76	and
77	77	(D) the purchaser's date of birth; and
78	78	(2) verify the information provided under Subdivision
79	79	(1) by:
80	80	(A) requiring the purchaser to display the
81	81	purchaser's driver's license or other government-issued
82	82	identification containing the purchaser's photograph and
83	83	information, if the transaction is in person; or
84	84	(B) other means, for transactions not conducted
85	85	in person.
86	86	(b) A purchaser who provides false or misleading
87	87	information when providing information required under this section
88	88	commits an offense. An offense under this subsection is a Class A
89	89	misdemeanor unless the defendant has been previously convicted of
90	90	an offense under this subsection, in which event the offense is a
91	91	state jail felony.
92	92	(c) For purposes of complying with Subsection (a)(2), the
93	93	seller may access electronically readable information on the
94	94	purchaser's driver's license or identification card.
95	95	Sec. 307.052. RECORD OF SALE; TRANSMISSION OF RECORD. (a)
96	96	A person who sells a mobile telephone or SIM card to which this
97	97	chapter applies shall make a record of the sale that includes:
98	98	(1) the information obtained from the purchaser under
99	99	Section 307.051;
100	100	(2) the make and model of the mobile telephone;
101	101	(3) any assigned 10-digit telephone number or other
102	102	subscriber or account identifier known at the time of purchase; and
103	103	(4) if applicable to the mobile telephone, SIM card,
104	104	or service to be accessed by the mobile telephone:
105	105	(A) the international mobile equipment
106	106	identifier (IMEI) number;
107	107	(B) the electronic serial number (ESN);
108	108	(C) the mobile equipment identifier (MEID);
109	109	(D) the international mobile subscriber
110	110	identifier (IMSI);
111	111	(E) the machine address code (MAC) address; and
112	112	(F) any other specific equipment or service
113	113	account identifier.
114	114	(b) A person who sells a mobile telephone or SIM card to
115	115	which this chapter applies shall promptly electronically transmit
116	116	the record made under Subsection (a) to the provider of the wireless
117	117	communication service to be accessed by the telephone. If
118	118	electronic transmission of the information is not available, the
119	119	person may submit the information by other means that promptly and
120	120	accurately submit the information.
121	121	(c) A wireless communication service provider shall provide
122	122	a transmission confirmation receipt to each person who sells a
123	123	mobile telephone or SIM card to which this chapter applies on the
124	124	provider's receipt of a transmission from the person under
125	125	Subsection (b).
126	126	(d) Each person who sells a mobile telephone or SIM card to
127	127	which this chapter applies shall promptly dispose of the record on
128	128	receipt of a transmission confirmation under Subsection (c). Each
129	129	wireless communication service provider to which a record is
130	130	transmitted under Subsection (b) and each person who sells a mobile
131	131	telephone for which access to a wireless communication service is
132	132	provided under a month-to-month contract and who obtains and
133	133	records information under Section 301.051 shall maintain the record
134	134	until the second anniversary of the date on which the telephone or
135	135	SIM card was sold.
136	136	(e) If a mobile telephone or SIM card to which this chapter
137	137	applies is resold in a subsequent retail transaction or in a
138	138	transaction not made in the ordinary course of the seller's legal
139	139	business, the seller in that transaction shall comply with this
140	140	section.
141	141	Sec. 307.053. LIMITATION ON NUMBER OF DEVICES THAT MAY BE
142	142	SOLD. A person may not sell to another person in a 24-hour period
143	143	more than five of any combination of the following:
144	144	(1) mobile telephones to which this chapter applies;
145	145	and
146	146	(2) SIM cards to which this chapter applies.
147	147	Sec. 307.054. COLLECTION AND MAINTENANCE OF INFORMATION
148	148	REGARDING CERTAIN DEVICES. A person who sells a Voice over Internet
149	149	Protocol telephone or adapter shall record the machine address code
150	150	of each device sold and maintain the record until the second
151	151	anniversary of the date on which the device was sold.
152	152	Sec. 307.055. COLLECTION OF CALL INFORMATION. (a) A
153	153	wireless communication service provider shall collect, record, and
154	154	maintain information relating to all communications, including
155	155	telephone calls, text messages, and data transmissions and
156	156	receptions, made and received using a mobile telephone to which
157	157	this chapter applies and that accesses the provider's wireless
158	158	communication service in the same manner as the provider collects,
159	159	records, and maintains the information relating to communications
160	160	made and received using a mobile telephone accessing the provider's
161	161	wireless communication service that is not paid for in advance or is
162	162	paid for under a credit account or other contract.
163	163	(b) A law enforcement agency may access information
164	164	collected under this section only by presenting a subpoena
165	165	compelling disclosure of the information.
166	166	(c) The fee charged by a wireless communication service
167	167	provider for the production of information in compliance with a
168	168	subpoena required by Subsection (b) may not exceed $200.
169	169	Sec. 307.056. COMMERCIAL USE OF INFORMATION PROHIBITED. A
170	170	person may not use information obtained under this subchapter for
171	171	commercial purposes unless the person to which the information
172	172	pertains consents to that use by signing a document that:
173	173	(1) clearly states that information pertaining to the
174	174	person will be used for commercial purposes; and
175	175	(2) is separate from any other document given to that
176	176	person.
177	177	Sec. 307.057. DISCLOSURE OF INFORMATION PROHIBITED. (a) A
178	178	person may not disclose information obtained under this subchapter
179	179	to another person except as provided by this subchapter, court
180	180	order, or other law.
181	181	(b) A person who violates Subsection (a) commits an offense.
182	182	An offense under this subsection is a Class A misdemeanor.
183	183	Sec. 307.058. RESPONSIBILITY FOR ACTIONS OF OTHER PARTIES.
184	184	In complying with this subchapter:
185	185	(1) a person who sells a mobile telephone or SIM card
186	186	to which this chapter applies is not responsible for an act or
187	187	failure to act by a wireless communication service provider; and
188	188	(2) a wireless communication service provider is not
189	189	responsible for an act or failure to act by a person who sells such a
190	190	mobile telephone or SIM card.
191	191	[Sections 307.059-307.100 reserved for expansion]
192	192	SUBCHAPTER C. CERTIFICATE OF REGISTRATION
193	193	Sec. 307.101. REGISTRATION REQUIRED. A person may not sell
194	194	a mobile telephone or SIM card to which this chapter applies or
195	195	provide wireless communication service to be accessed by such a
196	196	mobile telephone unless the person is registered under this
197	197	subchapter.
198	198	Sec. 307.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. (a)
199	199	The department shall issue a certificate of registration to an
200	200	applicant who:
201	201	(1) completes an application form;
202	202	(2) pays the registration fee; and
203	203	(3) presents any relevant evidence relating to the
204	204	applicant's qualifications as required by department rule.
205	205	(b) The department shall prescribe an application form and
206	206	may establish qualifications for the holder of a certificate of
207	207	registration under this chapter. The application form must require
208	208	an applicant to provide the address of the applicant's place of
209	209	business.
210	210	Sec. 307.103. TERM OF CERTIFICATE. (a) A certificate of
211	211	registration is valid for two years after the date of issuance.
212	212	(b) The department shall adopt a system under which
213	213	certificates of registration expire and are renewed on various
214	214	dates.
215	215	(c) Not later than the 45th day before the date a person's
216	216	certificate of registration is scheduled to expire, the department
217	217	shall send written notice of the impending expiration to the person
218	218	at the person's last known address according to department records.
219	219	(d) A person whose certificate of registration has expired
220	220	may not sell a mobile telephone or SIM card to which this chapter
221	221	applies or provide wireless communication service to be accessed by
222	222	such a mobile telephone until the certificate has been renewed.
223	223	Sec. 307.104. RENEWAL OF CERTIFICATE. (a) To renew a
224	224	certificate of registration, a person must submit an application
225	225	for renewal in the manner prescribed by the department.
226	226	(b) A person who is otherwise eligible to renew a
227	227	certificate of registration may renew an unexpired certificate by
228	228	paying the required renewal fee to the department before the
229	229	expiration date of the certificate.
230	230	(c) A person whose certificate of registration has been
231	231	expired for 90 days or less may renew the certificate by paying to
232	232	the department a renewal fee that is equal to 1-1/2 times the
233	233	normally required renewal fee.
234	234	(d) A person whose certificate of registration has been
235	235	expired for more than 90 days but less than one year may renew the
236	236	certificate by paying to the department a renewal fee that is equal
237	237	to two times the normally required renewal fee.
238	238	(e) A person whose certificate of registration has been
239	239	expired for one year or more may not renew the certificate. The
240	240	person may obtain a new certificate of registration by complying
241	241	with the requirements and procedures for an original certificate.
242	242	Sec. 307.105. FEES. (a) The department shall prescribe
243	243	fees for the issuance or renewal of a certificate of registration
244	244	under this chapter. The fees may not exceed the amount necessary to
245	245	cover the costs of administering this subchapter and complying with
246	246	Subchapter D.
247	247	(b) A fee collected under this section shall be deposited in
248	248	a separate account in the general revenue fund and may be
249	249	appropriated only to the department for the purposes of
250	250	administering this subchapter and complying with Subchapter D.
251	251	[Sections 307.106-307.150 reserved for expansion]
252	252	SUBCHAPTER D. DATABASE AND REPORT
253	253	Sec. 307.151. ELECTRONIC DATABASE. (a) The department
254	254	shall create and maintain an electronic database containing the
255	255	names of each person registered under Subchapter C.
256	256	(b) Information contained in the database is confidential
257	257	and not subject to disclosure under Chapter 552, Government Code.
258	258	Sec. 307.152. REPORT TO LEGISLATURE. The department
259	259	annually shall submit to both houses of the legislature a report
260	260	that includes:
261	261	(1) the number of persons registered as:
262	262	(A) sellers of mobile telephones or SIM cards to
263	263	which this chapter applies; and
264	264	(B) providers of wireless communication services
265	265	to be accessed by the mobile telephones; and
266	266	(2) the number of mobile telephones and SIM cards sold
267	267	during the year for which the report is made.
268	268	[Sections 307.153-307.200 reserved for expansion]
269	269	SUBCHAPTER E. PENALTIES
270	270	Sec. 307.201. CIVIL PENALTY. (a) A person who violates
271	271	this chapter is subject to a civil penalty in an amount not to
272	272	exceed the greater of:
273	273	(1) $1,000 for each violation; or
274	274	(2) $20,000.
275	275	(b) Each day that a violation continues or occurs is a
276	276	separate violation for purposes of imposing a penalty under this
277	277	section.
278	278	(c) The attorney general may bring suit to recover a penalty
279	279	under this section.
280	280	Sec. 307.202. OFFENSE OF POSSESSION OF ILLEGALLY OBTAINED
281	281	MOBILE TELEPHONE OR INFORMATION STORAGE DEVICE. (a) A person
282	282	commits an offense if the person intentionally violates this
283	283	chapter in obtaining or possessing a mobile telephone or SIM card to
284	284	which this chapter applies.
285	285	(b) An offense under this section is a Class A misdemeanor.
286	286	Sec. 307.203. OFFENSE OF CREATING, USING, OR POSSESSING
287	287	UNTRACEABLE MOBILE TELEPHONE. (a) A person may not alter a mobile
288	288	telephone to render untraceable or unidentifiable the telephone's
289	289	telephone number, electronic serial number, or mobile
290	290	identification number without the consent of the mobile telephone's
291	291	manufacturer.
292	292	(b) A person commits an offense if the person uses or
293	293	possesses a mobile telephone that has been altered in violation of
294	294	Subsection (a).
295	295	(c) An offense under this section is a Class A misdemeanor
296	296	unless the defendant has been previously convicted of an offense
297	297	under this section, in which event the offense is a state jail
298	298	felony.
299	299	SECTION 2. Subchapter D, Chapter 12, Penal Code, is amended
300	300	by adding Section 12.50 to read as follows:
301	301	Sec. 12.50. PENALTY IF PREPAID MOBILE TELEPHONE USED TO
302	302	COMMIT OFFENSE. (a) In this section, "prepaid mobile telephone"
303	303	means a cellular telephone or similar wireless communication device
304	304	that can be used as a telephone and for which access to a wireless
305	305	communication service is paid for in advance or otherwise provided
306	306	to a customer without the customer being required to enter into a
307	307	credit account or other contract, including a month-to-month
308	308	contract.
309	309	(b) If it is shown on the trial of an offense, other than an
310	310	offense punishable as a felony of the first degree or a Class A
311	311	misdemeanor, that the actor used a prepaid mobile telephone to
312	312	enable the actor to commit the offense, the punishment for the
313	313	offense is increased to the punishment prescribed for the next
314	314	higher category of offense. If the offense is a Class A
315	315	misdemeanor, the minimum term of confinement is increased to 180
316	316	days.
317	317	SECTION 3. Section 521.126(d), Transportation Code, is
318	318	amended to read as follows:
319	319	(d) The prohibition provided by Subsection (b) does not
320	320	apply to a person who accesses, uses, compiles, or maintains a
321	321	database of the information for a law enforcement or governmental
322	322	purpose, including:
323	323	(1) an officer or employee of the department carrying
324	324	out law enforcement or government purposes;
325	325	(2) a peace officer, as defined by Article 2.12, Code
326	326	of Criminal Procedure, acting in the officer's official capacity;
327	327	(3) a license deputy, as defined by Section 12.702,
328	328	Parks and Wildlife Code, issuing a license, stamp, tag, permit, or
329	329	other similar item through use of a point-of-sale system under
330	330	Section 12.703, Parks and Wildlife Code;
331	331	(4) a person acting as authorized by Section 109.61,
332	332	Alcoholic Beverage Code;
333	333	(5) a person establishing the identity of a voter
334	334	under Chapter 63, Election Code;
335	335	(6) a person acting as authorized by Section 161.0825,
336	336	Health and Safety Code; [or]
337	337	(7) a person screening an individual who will work
338	338	with or have access to children if the person is an employee or an
339	339	agent of an employee of a public school district or an organization
340	340	exempt from federal income tax under Section 501(c)(3), Internal
341	341	Revenue Code of 1986, as amended, that sponsors a program for youth;
342	342	or
343	343	(8) a person acting as authorized by Section
344	344	307.051(c), Business & Commerce Code.
345	345	SECTION 4. The change in law made by Section 12.50, Penal
346	346	Code, as added by this Act, applies only to an offense committed on
347	347	or after the effective date of this Act. An offense committed
348	348	before the effective date of this Act is governed by the law in
349	349	effect when the offense was committed, and the former law is
350	350	continued in effect for that purpose. For purposes of this section,
351	351	an offense was committed before the effective date of this Act if
352	352	any element of the offense occurred before that date.
353	353	SECTION 5. This Act takes effect September 1, 2009.