By: Huffman S.B. No. 1098
(In the Senate - Filed March 2, 2011; March 16, 2011, read
first time and referred to Committee on Jurisprudence;
March 30, 2011, reported favorably by the following vote: Yeas 7,
Nays 0; March 30, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to certain offenses involving unauthorized recordings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subdivision (4), Section 641.001, Business &
Commerce Code, is amended to read as follows:
(4) "Recording" means a tangible medium on which
sounds, images, or both are recorded or otherwise stored,
including:
(A) an original phonograph record, disc, tape,
audio or video cassette, wire, film, memory card, flash drive, hard
drive, data storage device, or other medium now existing or later
developed; or
(B) a copy or reproduction that wholly or partly
duplicates the original.
SECTION 2. The heading to Section 641.054, Business &
Commerce Code, is amended to read as follows:
Sec. 641.054. IMPROPER LABELING.
SECTION 3. Subsection (b), Section 641.054, Business &
Commerce Code, is amended to read as follows:
(b) An offense under this section is punishable by:
(1) imprisonment for a term of not more than five
years, a fine of not less than $500 and not more than [to exceed]
$250,000, or both imprisonment and the fine, if:
(A) the offense involves [at least] 65 or more
improperly labeled [unauthorized] recordings during a 180-day
period; or
(B) the defendant has been previously convicted
under this section;
(2) imprisonment for a term of not more than two years,
a fine of not less than $250 and not more than [to exceed] $250,000,
or both imprisonment and the fine, if the offense involves more than
seven but fewer than 65 improperly labeled [unauthorized]
recordings during a 180-day period; or
(3) confinement in the county jail for a term of not
more than one year, a fine of not less than $100 and not more than
[to exceed] $25,000, or both confinement and the fine, if the
offense is not otherwise punishable under Subdivision (1) or (2).
SECTION 4. Section 641.055, Business & Commerce Code, is
amended to read as follows:
Sec. 641.055. FORFEITURE. If a person is convicted of an
offense under [a violation of] this chapter, the court in its
judgment of conviction shall order the forfeiture and destruction
or other disposition of:
(1) all recordings on which the conviction is based;
[and]
(2) all devices and equipment used or intended to be
used in the manufacture of the recordings on which the conviction is
based; and
(3) for an offense punishable as a felony, all
contraband, as that term is defined by Article 59.01, Code of
Criminal Procedure, that is used in the commission of the offense.
SECTION 5. Article 42.037, Code of Criminal Procedure, is
amended by adding Subsections (t) and (u) to read as follows:
(t) If a person is convicted of an offense under Section
641.054, Business & Commerce Code, the court shall order the person
to make restitution to an owner or lawful producer of a master
recording that has suffered financial loss as a result of the
offense or to a trade association that represents that owner or
lawful producer. The amount of restitution ordered shall be:
(1) the greater of:
(A) the aggregate wholesale value of the lawfully
manufactured and authorized recordings corresponding to the number
of nonconforming recordings involved in the offense; or
(B) the actual financial loss to the owner,
lawful producer, or trade association; and
(2) the costs associated with investigating the
offense.
(u) For purposes of Subsection (t):
(1) the calculation of the aggregate wholesale value
is based on the average wholesale value of the lawfully
manufactured and authorized recordings; and
(2) the specific wholesale value of each nonconforming
recording is not relevant to the calculation.
SECTION 6. Subdivision (2), Article 59.01, Code of Criminal
Procedure, as amended by Chapters 153 (S.B. 2225), 1130 (H.B.
2086), and 1357 (S.B. 554), Acts of the 81st Legislature, Regular
Session, 2009, is reenacted and amended to read as follows:
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
20.05, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 29, 30,
31, 32, 33, 33A, or 35, Penal Code;
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes); or
(iv) any offense under Chapter 49, Penal
Code, that is punishable as a felony of the third degree or state
jail felony, if the defendant has been previously convicted three
times of an offense under that chapter;
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
(vi) any felony under Chapter 152, Finance
Code;
(vii) any felony under Chapter 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(viii) a Class B misdemeanor under Chapter
522, Business & Commerce Code;
(ix) a Class A misdemeanor under Section
306.051, Business & Commerce Code; [or]
(x) any offense under Section 42.10, Penal
Code;
(xi) [(x)] any offense under Section
46.06(a)(1) or 46.14, Penal Code;
(xii) [(x)] any offense under Chapter 71,
Penal Code; or
(xiii) any felony under Chapter 641,
Business & Commerce Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision, a
misdemeanor listed in Paragraph (B)(viii), (x), (xi), or (xii)
[(B)(viii) or (x)] of this subdivision, or a crime of violence;
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision, a misdemeanor listed in Paragraph (B)(viii), (x),
(xi), or (xii) [(B)(viii) or (x)] of this subdivision, or a crime of
violence; or
(E) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 15.031 or
43.25, Penal Code.
SECTION 7. 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 at the time the offense was committed.
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 8. To the extent of any conflict, this Act prevails
over another Act of the 82nd Legislature, Regular Session, 2011,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 9. This Act takes effect September 1, 2011.
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