By: Hughes S.B. No. 1343
(In the Senate - Filed March 6, 2017; March 14, 2017, read
first time and referred to Committee on State Affairs;
April 11, 2017, reported favorably by the following vote: Yeas 9,
Nays 0; April 11, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to the prosecution of criminal offenses regarding
unauthorized recordings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 641.001(4), 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. Section 641.054, Business & Commerce Code, is
amended to read as follows:
Sec. 641.054. IMPROPER LABELING. (a) A person commits an
offense if:
(1) for commercial advantage or private financial
gain, the person knowingly:
(A) advertises, offers for sale, sells, rents, or
transports a recording;
(B) causes the sale, resale, rental, or
transportation of a recording; or
(C) possesses a recording for a purpose described
by Paragraph (A) or (B); and
(2) the outside cover, box, or jacket of the recording
does not clearly and conspicuously disclose[:
[(A)] the actual name and address of the
manufacturer[; and
[(B) the name of the performer or group].
(b) An offense under this section is punishable by:
(1) imprisonment for a term of not more than five
years, a fine not to exceed $250,000, or both imprisonment and the
fine, if:
(A) the offense involves [at least] 65 or more
improperly labeled [unauthorized] recordings, or the commercial
equivalent thereof, 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 not 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, or the commercial equivalent
thereof, during a 180-day period; or
(3) confinement in the county jail for a term of not
more than one year, a fine not to exceed $25,000, or both
confinement and the fine, if the offense is not otherwise
punishable under Subdivision (1) or (2).
SECTION 3. 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 that is used in the commission of the offense, as
provided by Chapter 59, Code of Criminal Procedure.
SECTION 4. Article 42.037, Code of Criminal Procedure, is
amended by adding Subsections (t), (u), and (v) 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)(A):
(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.
(v) For purposes of Subsection (t)(1)(B), the possession of
a nonconforming recording intended for sale constitutes an actual
financial loss to an owner or lawful producer equal to the actual
value of the legitimate wholesale purchases displaced by the
nonconforming recordings.
SECTION 5. Article 59.01(2), 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, 20.06, 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 151, 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 32, Human
Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
involves the state Medicaid program;
(vii) a Class B misdemeanor under Chapter
522, Business & Commerce Code;
(viii) a Class A misdemeanor under Section
306.051, Business & Commerce Code;
(ix) any offense under Section 42.10, Penal
Code;
(x) any offense under Section 46.06(a)(1)
or 46.14, Penal Code;
(xi) any offense under Chapter 71, Penal
Code;
(xii) any offense under Section 20.05 or
20.06, Penal Code; [or]
(xiii) an offense under Section 326.002,
Business & Commerce Code; or
(xiv) 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)(vii), (ix), (x), or (xi) 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)(vii), (ix), (x),
or (xi) 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 6. 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 7. This Act takes effect September 1, 2017.
* * * * *