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CHAPTER 16. CRIMINAL INSTRUMENTS, INTERCEPTION OF WIRE OR ORAL
COMMUNICATION, AND INSTALLATION OF TRACKING DEVICE
§ 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF
WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS
Text of section expires Sept. 1, 2005
(a) In this section, "computer trespasser," "covert entry,"
"communication common carrier," "contents," "electronic
communication," "electronic, mechanical, or other device,"
"immediate life-threatening situation," "intercept,"
"investigative or law enforcement officer," "member of a law
enforcement unit specially trained to respond to and deal with
life-threatening situations," "oral communication," "protected
computer," "readily accessible to the general public," and "wire
communication" have the meanings given those terms in Article
18.20, Code of Criminal Procedure.
(b) A person commits an offense if the person:
(1) intentionally intercepts, endeavors to intercept,
or procures another person to intercept or endeavor to intercept a
wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose
to another person the contents of a wire, oral, or electronic
communication if the person knows or has reason to know the
information was obtained through the interception of a wire, oral,
or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the
contents of a wire, oral, or electronic communication if the person
knows or is reckless about whether the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection;
(4) knowingly or intentionally effects a covert entry
for the purpose of intercepting wire, oral, or electronic
communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures
any other person to use or endeavor to use any electronic,
mechanical, or other device to intercept any oral communication
when the device:
(A) is affixed to, or otherwise transmits a
signal through a wire, cable, or other connection used in wire
communications; or
(B) transmits communications by radio or
interferes with the transmission of communications by radio.
(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) 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 is a party to the communication;
or
(B) one of the parties to the communication 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.
(d) A person commits an offense if the person:
(1) intentionally manufactures, assembles, possesses,
or sells an electronic, mechanical, or other device knowing or
having reason to know that the device is designed primarily for
nonconsensual interception of wire, electronic, or oral
communications and that the device or a component of the device has
been or will be used for an unlawful purpose; or
(2) places in a newspaper, magazine, handbill, or
other publication an advertisement of an electronic, mechanical, or
other device:
(A) knowing or having reason to know that the
device is designed primarily for nonconsensual interception of
wire, electronic, or oral communications;
(B) promoting the use of the device for the
purpose of nonconsensual interception of wire, electronic, or oral
communications; or
(C) knowing or having reason to know that the
advertisement will promote the use of the device for the purpose of
nonconsensual interception of wire, electronic, or oral
communications.
(e) It is an affirmative defense to prosecution under
Subsection (d) that the manufacture, assembly, possession, or sale
of an electronic, mechanical, or other device that is designed
primarily for the purpose of nonconsensual interception of wire,
electronic, or oral communication is by:
(1) a communication common carrier or a provider of
wire or electronic communications service or an officer, agent, or
employee of or a person under contract with a communication common
carrier or provider acting in the normal course of the provider's or
communication carrier's business;
(2) an officer, agent, or employee of a person under
contract with, bidding on contracts with, or doing business with the United States or this state acting in the normal course of the
activities of the United States or this state;
(3) a member of the Department of Public Safety who is
specifically trained to install wire, oral, or electronic
communications intercept equipment; or
(4) a member of a local law enforcement agency that has
an established unit specifically designated to respond to and deal
with life-threatening situations.
(f) An offense under this section is a felony of the second
degree, unless the offense is committed under Subsection (d) or
(g), in which event the offense is a state jail felony.
(g) A person commits an offense if, knowing that a
government attorney or an investigative or law enforcement officer
has been authorized or has applied for authorization to intercept
wire, electronic, or oral communications, the person obstructs,
impedes, prevents, gives notice to another of, or attempts to give
notice to another of the interception.
(h) This section expires September 1, 2005, and shall not be
in force on and after that date.
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