By: Ellis S.B. No. 529
(Oliveira)
A BILL TO BE ENTITLED
AN ACT
relating to the creation of the offense of installation, transfer,
use, or possession of an automated sales suppression device or
phantom-ware.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 10, Business & Commerce Code,
is amended by adding Chapter 326 to read as follows:
CHAPTER 326. AUTOMATED SALES SUPPRESSION DEVICES; PHANTOM-WARE
Sec. 326.001. DEFINITIONS. In this chapter:
(1) "Automated sales suppression device" means a
device or software program that falsifies an electronic record,
including transaction data or a transaction report, of an
electronic cash register or other point-of-sale system. The term
includes a device that carries the software program or an Internet
link to the software program.
(2) "Electronic cash register" means a device or
point-of-sale system that maintains a register or documentation
through an electronic device or computer system that is designed to
record transaction data for the purpose of computing, compiling, or
processing retail sales transaction data.
(3) "Phantom-ware" means a hidden programming option
that is embedded in the operating system of an electronic cash
register or hardwired into an electronic cash register and that may
be used to create a second set of transaction reports or to
eliminate or manipulate an original transaction report, which may
or may not be preserved in a digital format, to represent the
original or manipulated report of a transaction in the electronic
cash register.
(4) "Transaction data" includes data identifying an
item purchased by a customer, a price for an item, a taxability
determination for an item, a segregated tax amount for an item, an
amount of cash or credit tendered for an item, a net amount of cash
returned to a customer who purchased an item, a date or time of a
purchase, a receipt or invoice number for a transaction, and a
vendor's name, address, or identification number.
(5) "Transaction report" means a report that:
(A) contains documentation of each sale, amount
of tax or fee collected, media total, or discount void at an
electronic cash register and that is printed on a cash register tape
at the end of a day or a shift; or
(B) documents every action at an electronic cash
register and is stored electronically.
Sec. 326.002. AUTOMATED SALES SUPPRESSION DEVICES AND
PHANTOM-WARE PROHIBITED; CRIMINAL OFFENSE. (a) A person commits
an offense if the person knowingly sells, purchases, installs,
transfers, uses, or possesses an automated sales suppression device
or phantom-ware.
(b) An offense under this section is a state jail felony.
SECTION 2. Subdivision (2), Article 59.01, Code of Criminal
Procedure, is 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, or Chapter 43, 20A, 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;
(x) any offense under Section 42.10, Penal
Code;
(xi) any offense under Section 46.06(a)(1)
or 46.14, Penal Code;
(xii) any offense under Chapter 71, Penal
Code; [or]
(xiii) any offense under Section 20.05,
Penal Code; or
(xiv) an offense under Section 326.002,
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) 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) of this subdivision, or a crime of violence;
(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; or
(F) used to facilitate or intended to be used to
facilitate the commission of a felony under Section 20A.02 or
Chapter 43, Penal Code.
SECTION 3. This Act takes effect September 1, 2013.