81R165 ATP-D
By: Carona, Davis, Wendy S.B. No. 1635
A BILL TO BE ENTITLED
AN ACT
relating to the sale of certain communications equipment and mobile
telephone services; providing criminal and civil penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 10, Business & Commerce Code,
is amended by adding Chapter 307 to read as follows:
CHAPTER 307. SALE OF CERTAIN MOBILE TELEPHONES, STORAGE DEVICES,
MOBILE TELEPHONE SERVICES, AND OTHER EQUIPMENT
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 307.001. DEFINITIONS. In this chapter:
(1) "Department" means the Department of Public
Safety.
(2) "Mobile telephone" includes a cellular telephone
or similar wireless communication device that can be used as a
telephone.
(3) "SIM card" means a subscriber identity module or
functionally equivalent storage device.
Sec. 307.002. APPLICABILITY. (a) With respect to a mobile
telephone or wireless communication service, this chapter applies
only to:
(1) a mobile telephone for which access to a wireless
communication service is provided to a customer without the
customer being required to enter into a credit account or other
contract, including a month-to-month contract, except as otherwise
provided by this chapter; or
(2) wireless communication service provided to a
customer without the customer being required to enter into a credit
account or other contract, including a month-to-month contract.
(b) This chapter applies only to a SIM card to be purchased
in connection or for use with a mobile telephone.
(c) With respect to the sale of a mobile telephone or SIM
card, this chapter does not apply to a sale by:
(1) a manufacturer of a mobile telephone or SIM card to
an authorized reseller;
(2) a wireless carrier to an authorized reseller; or
(3) an authorized reseller to another authorized
reseller.
(d) Except as otherwise provided by this section, this
chapter applies to a person who sells a mobile telephone or SIM card
or provides wireless communication service to a customer in this
state, regardless of the person's location.
(e) In this section:
(1) "Authorized reseller" means a person authorized
by:
(A) a manufacturer to sell the manufacturer's
mobile telephones or SIM cards; or
(B) a wireless carrier to sell mobile telephones
or SIM cards manufactured by a certain manufacturer.
(2) "Wireless carrier" has the meaning assigned by 47
U.S.C. Section 615b.
Sec. 307.003. COSTS OF COMPLIANCE WITH CHAPTER. A person
who sells a mobile telephone, SIM card, or Voice over Internet
Protocol telephone or adapter to which this chapter applies may
charge a customer a reasonable fee in an amount appropriate to
offset the costs incurred by the person in complying with this
chapter.
[Sections 307.004-307.050 reserved for expansion]
SUBCHAPTER B. INFORMATION RELATED TO SALE OR USE OF CERTAIN
COMMUNICATIONS EQUIPMENT
Sec. 307.051. CERTAIN INFORMATION REQUIRED; OFFENSE. (a)
Before completing a sale of a mobile telephone or SIM card to which
this chapter applies, a mobile telephone for which access to a
wireless communication service is provided under a month-to-month
contract, or a Voice over Internet Protocol telephone or adapter,
the seller shall:
(1) require the purchaser to provide:
(A) the purchaser's full name;
(B) the purchaser's complete address;
(C) the number of the driver's license or other
identification issued by a governmental entity to the purchaser;
and
(D) the purchaser's date of birth; and
(2) verify the information provided under Subdivision
(1) by:
(A) requiring the purchaser to display the
purchaser's driver's license or other government-issued
identification containing the purchaser's photograph and
information, if the transaction is in person; or
(B) other means, for transactions not conducted
in person.
(b) A purchaser who provides false or misleading
information when providing information required under this section
commits an offense. An offense under this subsection is a Class A
misdemeanor unless the defendant has been previously convicted of
an offense under this subsection, in which event the offense is a
state jail felony.
(c) For purposes of complying with Subsection (a)(2), the
seller may access electronically readable information on the
purchaser's driver's license or identification card.
Sec. 307.052. RECORD OF SALE; TRANSMISSION OF RECORD. (a)
A person who sells a mobile telephone or SIM card to which this
chapter applies shall make a record of the sale that includes:
(1) the information obtained from the purchaser under
Section 307.051;
(2) the make and model of the mobile telephone;
(3) any assigned 10-digit telephone number or other
subscriber or account identifier known at the time of purchase; and
(4) if applicable to the mobile telephone, SIM card,
or service to be accessed by the mobile telephone:
(A) the international mobile equipment
identifier (IMEI) number;
(B) the electronic serial number (ESN);
(C) the mobile equipment identifier (MEID);
(D) the international mobile subscriber
identifier (IMSI);
(E) the machine address code (MAC) address; and
(F) any other specific equipment or service
account identifier.
(b) A person who sells a mobile telephone or SIM card to
which this chapter applies shall promptly electronically transmit
the record made under Subsection (a) to the provider of the wireless
communication service to be accessed by the telephone. If
electronic transmission of the information is not available, the
person may submit the information by other means that promptly and
accurately submit the information.
(c) A wireless communication service provider shall provide
a transmission confirmation receipt to each person who sells a
mobile telephone or SIM card to which this chapter applies on the
provider's receipt of a transmission from the person under
Subsection (b).
(d) Each person who sells a mobile telephone or SIM card to
which this chapter applies shall promptly dispose of the record on
receipt of a transmission confirmation under Subsection (c). Each
wireless communication service provider to which a record is
transmitted under Subsection (b) and each person who sells a mobile
telephone for which access to a wireless communication service is
provided under a month-to-month contract and who obtains and
records information under Section 301.051 shall maintain the record
until the second anniversary of the date on which the telephone or
SIM card was sold.
(e) If a mobile telephone or SIM card to which this chapter
applies is resold in a subsequent retail transaction or in a
transaction not made in the ordinary course of the seller's legal
business, the seller in that transaction shall comply with this
section.
Sec. 307.053. LIMITATION ON NUMBER OF DEVICES THAT MAY BE
SOLD. A person may not sell to another person in a 24-hour period
more than five of any combination of the following:
(1) mobile telephones to which this chapter applies;
and
(2) SIM cards to which this chapter applies.
Sec. 307.054. COLLECTION AND MAINTENANCE OF INFORMATION
REGARDING CERTAIN DEVICES. A person who sells a Voice over Internet
Protocol telephone or adapter shall record the machine address code
of each device sold and maintain the record until the second
anniversary of the date on which the device was sold.
Sec. 307.055. COLLECTION OF CALL INFORMATION. (a) A
wireless communication service provider shall collect, record, and
maintain information relating to all communications, including
telephone calls, text messages, and data transmissions and
receptions, made and received using a mobile telephone to which
this chapter applies and that accesses the provider's wireless
communication service in the same manner as the provider collects,
records, and maintains the information relating to communications
made and received using a mobile telephone accessing the provider's
wireless communication service that is not paid for in advance or is
paid for under a credit account or other contract.
(b) A law enforcement agency may access information
collected under this section only by presenting a subpoena
compelling disclosure of the information.
(c) The fee charged by a wireless communication service
provider for the production of information in compliance with a
subpoena required by Subsection (b) may not exceed $200.
Sec. 307.056. COMMERCIAL USE OF INFORMATION PROHIBITED. A
person may not use information obtained under this subchapter for
commercial purposes unless the person to which the information
pertains consents to that use by signing a document that:
(1) clearly states that information pertaining to the
person will be used for commercial purposes; and
(2) is separate from any other document given to that
person.
Sec. 307.057. DISCLOSURE OF INFORMATION PROHIBITED. (a) A
person may not disclose information obtained under this subchapter
to another person except as provided by this subchapter, court
order, or other law.
(b) A person who violates Subsection (a) commits an offense.
An offense under this subsection is a Class A misdemeanor.
Sec. 307.058. RESPONSIBILITY FOR ACTIONS OF OTHER PARTIES.
In complying with this subchapter:
(1) a person who sells a mobile telephone or SIM card
to which this chapter applies is not responsible for an act or
failure to act by a wireless communication service provider; and
(2) a wireless communication service provider is not
responsible for an act or failure to act by a person who sells such a
mobile telephone or SIM card.
[Sections 307.059-307.100 reserved for expansion]
SUBCHAPTER C. CERTIFICATE OF REGISTRATION
Sec. 307.101. REGISTRATION REQUIRED. A person may not sell
a mobile telephone or SIM card to which this chapter applies or
provide wireless communication service to be accessed by such a
mobile telephone unless the person is registered under this
subchapter.
Sec. 307.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. (a)
The department shall issue a certificate of registration to an
applicant who:
(1) completes an application form;
(2) pays the registration fee; and
(3) presents any relevant evidence relating to the
applicant's qualifications as required by department rule.
(b) The department shall prescribe an application form and
may establish qualifications for the holder of a certificate of
registration under this chapter. The application form must require
an applicant to provide the address of the applicant's place of
business.
Sec. 307.103. TERM OF CERTIFICATE. (a) A certificate of
registration is valid for two years after the date of issuance.
(b) The department shall adopt a system under which
certificates of registration expire and are renewed on various
dates.
(c) Not later than the 45th day before the date a person's
certificate of registration is scheduled to expire, the department
shall send written notice of the impending expiration to the person
at the person's last known address according to department records.
(d) A person whose certificate of registration has expired
may not sell a mobile telephone or SIM card to which this chapter
applies or provide wireless communication service to be accessed by
such a mobile telephone until the certificate has been renewed.
Sec. 307.104. RENEWAL OF CERTIFICATE. (a) To renew a
certificate of registration, a person must submit an application
for renewal in the manner prescribed by the department.
(b) A person who is otherwise eligible to renew a
certificate of registration may renew an unexpired certificate by
paying the required renewal fee to the department before the
expiration date of the certificate.
(c) A person whose certificate of registration has been
expired for 90 days or less may renew the certificate by paying to
the department a renewal fee that is equal to 1-1/2 times the
normally required renewal fee.
(d) A person whose certificate of registration has been
expired for more than 90 days but less than one year may renew the
certificate by paying to the department a renewal fee that is equal
to two times the normally required renewal fee.
(e) A person whose certificate of registration has been
expired for one year or more may not renew the certificate. The
person may obtain a new certificate of registration by complying
with the requirements and procedures for an original certificate.
Sec. 307.105. FEES. (a) The department shall prescribe
fees for the issuance or renewal of a certificate of registration
under this chapter. The fees may not exceed the amount necessary to
cover the costs of administering this subchapter and complying with
Subchapter D.
(b) A fee collected under this section shall be deposited in
a separate account in the general revenue fund and may be
appropriated only to the department for the purposes of
administering this subchapter and complying with Subchapter D.
[Sections 307.106-307.150 reserved for expansion]
SUBCHAPTER D. DATABASE AND REPORT
Sec. 307.151. ELECTRONIC DATABASE. (a) The department
shall create and maintain an electronic database containing the
names of each person registered under Subchapter C.
(b) Information contained in the database is confidential
and not subject to disclosure under Chapter 552, Government Code.
Sec. 307.152. REPORT TO LEGISLATURE. The department
annually shall submit to both houses of the legislature a report
that includes:
(1) the number of persons registered as:
(A) sellers of mobile telephones or SIM cards to
which this chapter applies; and
(B) providers of wireless communication services
to be accessed by the mobile telephones; and
(2) the number of mobile telephones and SIM cards sold
during the year for which the report is made.
[Sections 307.153-307.200 reserved for expansion]
SUBCHAPTER E. PENALTIES
Sec. 307.201. CIVIL PENALTY. (a) A person who violates
this chapter is subject to a civil penalty in an amount not to
exceed the greater of:
(1) $1,000 for each violation; or
(2) $20,000.
(b) Each day that a violation continues or occurs is a
separate violation for purposes of imposing a penalty under this
section.
(c) The attorney general may bring suit to recover a penalty
under this section.
Sec. 307.202. OFFENSE OF POSSESSION OF ILLEGALLY OBTAINED
MOBILE TELEPHONE OR INFORMATION STORAGE DEVICE. (a) A person
commits an offense if the person intentionally violates this
chapter in obtaining or possessing a mobile telephone or SIM card to
which this chapter applies.
(b) An offense under this section is a Class A misdemeanor.
Sec. 307.203. OFFENSE OF CREATING, USING, OR POSSESSING
UNTRACEABLE MOBILE TELEPHONE. (a) A person may not alter a mobile
telephone to render untraceable or unidentifiable the telephone's
telephone number, electronic serial number, or mobile
identification number without the consent of the mobile telephone's
manufacturer.
(b) A person commits an offense if the person uses or
possesses a mobile telephone that has been altered in violation of
Subsection (a).
(c) An offense under this section is a Class A misdemeanor
unless the defendant has been previously convicted of an offense
under this section, in which event the offense is a state jail
felony.
SECTION 2. Subchapter D, Chapter 12, Penal Code, is amended
by adding Section 12.50 to read as follows:
Sec. 12.50. PENALTY IF PREPAID MOBILE TELEPHONE USED TO
COMMIT OFFENSE. (a) In this section, "prepaid mobile telephone"
means a cellular telephone or similar wireless communication device
that can be used as a telephone and for which access to a wireless
communication service is paid for in advance or otherwise provided
to a customer without the customer being required to enter into a
credit account or other contract, including a month-to-month
contract.
(b) If it is shown on the trial of an offense, other than an
offense punishable as a felony of the first degree or a Class A
misdemeanor, that the actor used a prepaid mobile telephone to
enable the actor to commit the offense, the punishment for the
offense is increased to the punishment prescribed for the next
higher category of offense. If the offense is a Class A
misdemeanor, the minimum term of confinement is increased to 180
days.
SECTION 3. Section 521.126(d), Transportation Code, is
amended to read as follows:
(d) The prohibition provided by Subsection (b) does not
apply to a person who accesses, uses, compiles, or maintains a
database of the information for a law enforcement or governmental
purpose, including:
(1) an officer or employee of the department carrying
out law enforcement or government purposes;
(2) a peace officer, as defined by Article 2.12, Code
of Criminal Procedure, acting in the officer's official capacity;
(3) a license deputy, as defined by Section 12.702,
Parks and Wildlife Code, issuing a license, stamp, tag, permit, or
other similar item through use of a point-of-sale system under
Section 12.703, Parks and Wildlife Code;
(4) a person acting as authorized by Section 109.61,
Alcoholic Beverage Code;
(5) a person establishing the identity of a voter
under Chapter 63, Election Code;
(6) a person acting as authorized by Section 161.0825,
Health and Safety Code; [or]
(7) a person screening an individual who will work
with or have access to children if the person is an employee or an
agent of an employee of a public school district or an organization
exempt from federal income tax under Section 501(c)(3), Internal
Revenue Code of 1986, as amended, that sponsors a program for youth;
or
(8) a person acting as authorized by Section
307.051(c), Business & Commerce Code.
SECTION 4. The change in law made by Section 12.50, Penal
Code, as added 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 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 5. This Act takes effect September 1, 2009.