| 1 | 1 | | 89R5769 JDK-D |
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| 2 | 2 | | By: Nichols S.B. No. 2372 |
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| 3 | 3 | | |
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| 4 | 4 | | |
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| 5 | 5 | | |
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| 6 | 6 | | |
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| 7 | 7 | | A BILL TO BE ENTITLED |
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| 8 | 8 | | AN ACT |
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| 9 | 9 | | relating to the creation of the criminal offense of fraudulent use, |
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| 10 | 10 | | possession, or tampering with gift cards or gift card data. |
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| 11 | 11 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 12 | 12 | | SECTION 1. Subchapter C, Chapter 32, Penal Code, is amended |
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| 13 | 13 | | by adding Section 32.316 to read as follows: |
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| 14 | 14 | | Sec. 32.316. FRAUDULENT USE, POSSESSION, OR TAMPERING WITH |
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| 15 | 15 | | GIFT CARDS OR GIFT CARD DATA. (a) In this section: |
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| 16 | 16 | | (1) "Counterfeit gift card" means a gift card that: |
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| 17 | 17 | | (A) purports on its face to have been issued by an |
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| 18 | 18 | | issuer that did not issue the card; |
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| 19 | 19 | | (B) has been altered to contain a digital imprint |
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| 20 | 20 | | other than that which was placed on the card by the issuer; |
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| 21 | 21 | | (C) contains a digital imprint with information |
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| 22 | 22 | | differing from that which is printed or embossed on the card by the |
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| 23 | 23 | | issuer; or |
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| 24 | 24 | | (D) has been altered to change the information on |
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| 25 | 25 | | the face of the gift card from that which was printed or embossed on |
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| 26 | 26 | | the card by the issuer. |
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| 27 | 27 | | (2) "Digital imprint" means the digital data placed on |
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| 28 | 28 | | a gift card's magnetic strip or chip. |
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| 29 | 29 | | (3) "Gift card" means a card entitling the holder to |
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| 30 | 30 | | receive goods or services of a specified value from the issuer. |
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| 31 | 31 | | (4) "Owner" means, with reference to a gift card: |
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| 32 | 32 | | (A) a retailer, if the gift card has not been |
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| 33 | 33 | | activated; or |
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| 34 | 34 | | (B) a purchaser, if the gift card has been |
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| 35 | 35 | | purchased and activated by a retailer. |
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| 36 | 36 | | (b) A person commits an offense if the person, with the |
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| 37 | 37 | | intent to harm or defraud another, without the consent of the owner: |
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| 38 | 38 | | (1) removes a gift card from a retail location without |
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| 39 | 39 | | first activating the gift card at the point of sale; |
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| 40 | 40 | | (2) transports an un-activated gift card that was |
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| 41 | 41 | | previously acquired unlawfully into a retail location that sells |
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| 42 | 42 | | gift cards and places or attempts to place the gift card on a gift |
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| 43 | 43 | | card rack, kiosk, or any other display in a manner that would entice |
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| 44 | 44 | | the public to purchase the gift card; |
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| 45 | 45 | | (3) possesses the data stored on the digital imprint |
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| 46 | 46 | | of a gift card without first purchasing the gift card; or |
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| 47 | 47 | | (4) possesses, transports, or uses a counterfeit gift |
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| 48 | 48 | | card. |
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| 49 | 49 | | (c) If an actor possesses three or more un-activated gift |
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| 50 | 50 | | cards, counterfeit gift cards, or digital imprints of gift cards |
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| 51 | 51 | | that have not been purchased, a rebuttable presumption exists that |
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| 52 | 52 | | the actor possesses each item without the consent of the owner. |
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| 53 | 53 | | (d) The presumption established under Subsection (c) does |
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| 54 | 54 | | not apply to a business or other commercial entity or a governmental |
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| 55 | 55 | | agency that is engaged in a business activity or governmental |
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| 56 | 56 | | function that does not violate a penal law of this state. |
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| 57 | 57 | | (e) An offense under this section is: |
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| 58 | 58 | | (1) a state jail felony if the actor engaged in conduct |
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| 59 | 59 | | described by Subsection (b) with respect to fewer than five |
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| 60 | 60 | | un-activated gift cards, counterfeit gift cards, or digital |
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| 61 | 61 | | imprints of gift cards; |
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| 62 | 62 | | (2) a felony of the third degree if the actor engaged |
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| 63 | 63 | | in conduct described by Subsection (b) with respect to 5 or more but |
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| 64 | 64 | | fewer than 10 un-activated gift cards, counterfeit gift cards, or |
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| 65 | 65 | | digital imprints of gift cards; |
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| 66 | 66 | | (3) a felony of the second degree if the actor engaged |
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| 67 | 67 | | in conduct described by Subsection (b) with respect to 10 or more |
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| 68 | 68 | | but fewer than 50 un-activated gift cards, counterfeit gift cards, |
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| 69 | 69 | | or digital imprints of gift cards; or |
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| 70 | 70 | | (4) a felony of the first degree if the actor engaged |
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| 71 | 71 | | in conduct described by Subsection (b) with respect to 50 or more |
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| 72 | 72 | | un-activated gift cards, counterfeit gift cards, or digital |
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| 73 | 73 | | imprints of gift cards. |
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| 74 | 74 | | (f) If a court orders a defendant convicted of an offense |
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| 75 | 75 | | under this section to make restitution to a victim of the offense, |
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| 76 | 76 | | the court may order the defendant to reimburse the victim for lost |
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| 77 | 77 | | income or other expenses, other than attorney's fees, incurred as a |
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| 78 | 78 | | result of the offense. |
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| 79 | 79 | | (g) If conduct that constitutes an offense under this |
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| 80 | 80 | | section also constitutes an offense under any other law, the actor |
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| 81 | 81 | | may be prosecuted under this section, the other law, or both. |
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| 82 | 82 | | SECTION 2. This Act takes effect September 1, 2025. |
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