| 1 | 1 | | 85R2139 JRR-D |
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| 2 | 2 | | By: Sanford H.B. No. 2544 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | A BILL TO BE ENTITLED |
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| 6 | 6 | | AN ACT |
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| 7 | 7 | | relating to the prosecution of the offense of unlawful installation |
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| 8 | 8 | | of tracking device or malicious software. |
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| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 10 | 10 | | SECTION 1. The heading to Section 16.06, Penal Code, is |
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| 11 | 11 | | amended to read as follows: |
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| 12 | 12 | | Sec. 16.06. UNLAWFUL INSTALLATION OF TRACKING DEVICE OR |
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| 13 | 13 | | MALICIOUS SOFTWARE. |
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| 14 | 14 | | SECTION 2. Section 16.06(a), Penal Code, is amended by |
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| 15 | 15 | | adding Subdivision (1-a) to read as follows: |
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| 16 | 16 | | (1-a) "Malicious software" means any intentionally |
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| 17 | 17 | | imperceptible program, application, or other software, including |
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| 18 | 18 | | malware, that is designed to obtain or transmit electronic |
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| 19 | 19 | | communications, including e-mails, text messages, instant |
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| 20 | 20 | | messages, or keystrokes, or other private information from a |
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| 21 | 21 | | computer system. |
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| 22 | 22 | | SECTION 3. Section 16.06, Penal Code, is amended by |
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| 23 | 23 | | amending Subsections (b), (d), and (e) and adding Subsection (d-1) |
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| 24 | 24 | | to read as follows: |
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| 25 | 25 | | (b) A person commits an offense if the person knowingly |
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| 26 | 26 | | installs: |
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| 27 | 27 | | (1) an electronic or mechanical tracking device on a |
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| 28 | 28 | | motor vehicle owned or leased by another person; or |
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| 29 | 29 | | (2) malicious software on a computer system that is |
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| 30 | 30 | | part of a motor vehicle described by Subdivision (1). |
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| 31 | 31 | | (d) It is an affirmative defense to prosecution under this |
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| 32 | 32 | | section that the person: |
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| 33 | 33 | | (1) obtained the effective consent of the owner or |
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| 34 | 34 | | lessee of the motor vehicle before the electronic or mechanical |
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| 35 | 35 | | tracking device or malicious software was installed; |
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| 36 | 36 | | (2) assisted another whom the person reasonably |
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| 37 | 37 | | believed to be a peace officer authorized to install the device or |
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| 38 | 38 | | software in the course of a criminal investigation or pursuant to an |
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| 39 | 39 | | order of a court to gather information for a law enforcement agency; |
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| 40 | 40 | | or |
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| 41 | 41 | | (3) was a private investigator licensed under Chapter |
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| 42 | 42 | | 1702, Occupations Code, who installed the device or software: |
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| 43 | 43 | | (A) with written consent: |
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| 44 | 44 | | (i) to install the device or software given |
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| 45 | 45 | | by the owner or lessee of the motor vehicle; and |
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| 46 | 46 | | (ii) to enter private residential property, |
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| 47 | 47 | | if that entry was necessary to install the device or software, given |
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| 48 | 48 | | by the owner or lessee of the property; or |
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| 49 | 49 | | (B) pursuant to an order of or other |
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| 50 | 50 | | authorization from a court to gather information. |
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| 51 | 51 | | (d-1) It is a defense to prosecution under this section |
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| 52 | 52 | | that: |
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| 53 | 53 | | (1) the victim is younger than 18 years of age; and |
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| 54 | 54 | | (2) the actor is the victim's parent or legal guardian. |
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| 55 | 55 | | (e) This section does not apply to a peace officer who |
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| 56 | 56 | | installed the device or software in the course of a criminal |
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| 57 | 57 | | investigation or pursuant to an order of a court to gather |
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| 58 | 58 | | information for a law enforcement agency. |
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| 59 | 59 | | SECTION 4. The change in law made by this Act applies only |
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| 60 | 60 | | to an offense committed on or after the effective date of this Act. |
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| 61 | 61 | | An offense committed before the effective date of this Act is |
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| 62 | 62 | | governed by the law in effect on the date the offense was committed, |
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| 63 | 63 | | and the former law is continued in effect for that purpose. For |
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| 64 | 64 | | purposes of this section, an offense was committed before the |
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| 65 | 65 | | effective date of this Act if any element of the offense occurred |
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| 66 | 66 | | before that date. |
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| 67 | 67 | | SECTION 5. This Act takes effect September 1, 2017. |
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