By: Schofield H.B. No. 3169
A BILL TO BE ENTITLED
AN ACT
relating to requiring the consent of all parties to legally
intercept certain communications.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 123.001(2), Civil Practice and Remedies
Code, is amended to read as follows:
(2) "Interception" means the aural acquisition of the
contents of a communication through the use of an electronic,
mechanical, or other device that is made without the consent of all
parties [a party] to the communication, but does not include the
ordinary use of:
(A) a telephone or telegraph instrument or
facility or telephone and telegraph equipment;
(B) a hearing aid designed to correct subnormal
hearing to not better than normal;
(C) a radio, television, or other wireless
receiver; or
(D) a cable system that relays a public wireless
broadcast from a common antenna to a receiver
.
SECTION 2. Section 16.02, Penal Code, is amended by
amending Subsection (c) and adding Subsection (c-1) to read as
follows:
(c) It is an affirmative defense to prosecution under
Subsection (b) that:
(1) an operator of a switchboard or an officer,
employee, or agent of a communication common carrier whose
facilities are used in the transmission of a wire or electronic
communication intercepts a communication or discloses or uses an
intercepted communication in the normal course of employment while
engaged in an activity that is a necessary incident to the rendition
of service or to the protection of the rights or property of the
carrier of the communication, unless the interception results from
the communication common carrier's use of service observing or
random monitoring for purposes other than mechanical or service
quality control checks;
(2) an officer, employee, or agent of a communication
common carrier provides information, facilities, or technical
assistance to an investigative or law enforcement officer who is
authorized as provided by this section to intercept a wire, oral, or
electronic communication;
(3) a person acting under color of law intercepts:
(A) a wire, oral, or electronic communication, if
the person is a party to the communication or if one of the parties
to the communication has given prior consent to the interception;
(B) a wire, oral, or electronic communication, if
the person is acting under the authority of Article 18.20, Code of
Criminal Procedure; or
(C) a wire or electronic communication made by a
computer trespasser and transmitted to, through, or from a
protected computer, if:
(i) the interception did not acquire a
communication other than one transmitted to or from the computer
trespasser;
(ii) the owner of the protected computer
consented to the interception of the computer trespasser's
communications on the protected computer; and
(iii) the actor was lawfully engaged in an
ongoing criminal investigation and the actor had reasonable
suspicion to believe that the contents of the computer trespasser's
communications likely to be obtained would be material to the
investigation;
(4) a person not acting under color of law intercepts a
wire, oral, or electronic communication, if:
(A) the person alleges that the communication:
(i) is of an emergency nature, such as the
reporting of a fire, medical emergency, crime, or disaster;
(ii) conveys a threat to themselves or
others or makes other unlawful requests or demands [is a party to
the communication]; [or]
(B) the person is an employee of a communication
common carrier requested to intercept a wire, oral, or electronic
communication for the sole purpose of tracing the origin of such
communication when the interception is requested by the recipient
of the communication and the recipient alleges that the
communication:
(i) is obscene, harassing, or threatening
in nature; or
(ii) occurs anonymously, repeatedly, or at
an extremely inconvenient hour; or
(C) all [one] of the parties to the communication
have [has] given prior consent to the interception, unless the
communication is intercepted for the purpose of committing an
unlawful act;
(5) a person acting under color of law intercepts a
wire, oral, or electronic communication if:
(A) oral or written consent for the interception
is given by a magistrate before the interception;
(B) an immediate life-threatening situation
exists;
(C) the person is a member of a law enforcement
unit specially trained to:
(i) respond to and deal with
life-threatening situations; or
(ii) install electronic, mechanical, or
other devices; and
(D) the interception ceases immediately on
termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal
Communications Commission intercepts a communication transmitted
by radio or discloses or uses an intercepted communication in the
normal course of employment and in the discharge of the monitoring
responsibilities exercised by the Federal Communications
Commission in the enforcement of Chapter 5, Title 47, United States
Code;
(7) a person intercepts or obtains access to an
electronic communication that was made through an electronic
communication system that is configured to permit the communication
to be readily accessible to the general public;
(8) a person intercepts radio communication, other
than a cordless telephone communication that is transmitted between
a cordless telephone handset and a base unit, that is transmitted:
(A) by a station for the use of the general
public;
(B) to ships, aircraft, vehicles, or persons in
distress;
(C) by a governmental, law enforcement, civil
defense, private land mobile, or public safety communications
system that is readily accessible to the general public, unless the
radio communication is transmitted by a law enforcement
representative to or from a mobile data terminal;
(D) by a station operating on an authorized
frequency within the bands allocated to the amateur, citizens band,
or general mobile radio services; or
(E) by a marine or aeronautical communications
system;
(9) a person intercepts a wire or electronic
communication the transmission of which causes harmful
interference to a lawfully operating station or consumer electronic
equipment, to the extent necessary to identify the source of the
interference;
(10) a user of the same frequency intercepts a radio
communication made through a system that uses frequencies monitored
by individuals engaged in the provision or the use of the system, if
the communication is not scrambled or encrypted; or
(11) a provider of electronic communications service
records the fact that a wire or electronic communication was
initiated or completed in order to protect the provider, another
provider furnishing service towards the completion of the
communication, or a user of that service from fraudulent, unlawful,
or abusive use of the service.
(c-1) A person conducting an interception under Subsection
(c)(4)(B) shall notify local police authorities within 48 hours
after the time of the interception.
SECTION 3. 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 when the offense was committed, and
the former law is continued in effect for that purpose. For the
purposes of this section, an offense is committed before the
effective date of this Act if any element of the offense is
committed before that date.
SECTION 4. This Act takes effect September 1, 2015.