CHAPTER 16. CRIMINAL INSTRUMENTS, INTERCEPTION OF WIRE OR ORAL COMMUNICATION, AND INSTALLATION OF TRACKING DEVICE - Texas Statutes

PENAL CODE

TITLE 4. INCHOATE OFFENSES

CHAPTER 16. CRIMINAL INSTRUMENTS, INTERCEPTION OF WIRE OR ORAL

COMMUNICATION, AND INSTALLATION OF TRACKING DEVICE

Sec. 16.01. UNLAWFUL USE OF CRIMINAL INSTRUMENT. (a) A person

commits an offense if:

(1) he possesses a criminal instrument with intent to use it in

the commission of an offense; or

(2) with knowledge of its character and with intent to use or

aid or permit another to use in the commission of an offense, he

manufactures, adapts, sells, installs, or sets up a criminal

instrument.

(b) For the purpose of this section, "criminal instrument" means

anything, the possession, manufacture, or sale of which is not

otherwise an offense, that is specially designed, made, or

adapted for use in the commission of an offense.

(c) An offense under Subsection (a)(1) is one category lower

than the offense intended. An offense under Subsection (a)(2) is

a state jail felony.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974.

Amended by Acts 1975, 64th Leg., p. 913, ch. 342, Sec. 7, eff.

Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994.

Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE,

ORAL, OR ELECTRONIC COMMUNICATIONS. (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.

(e-1) It is a defense to prosecution under Subsection (d)(1)

that the electronic, mechanical, or other device is possessed by

a person authorized to possess the device under Section 500.008,

Government Code, or Section 61.0455, Human Resources Code.

(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) Repealed by Acts 2005, 79th Leg., Ch. 889, Sec. 1, eff. June

17, 2005.

Added by Acts 1981, 67th Leg., p. 738, ch. 275, Sec. 2, eff. Aug.

31, 1981. Amended by Acts 1983, 68th Leg., p. 4878, ch. 864, Sec.

1 to 3, eff. June 19, 1983; Acts 1989, 71st Leg., ch. 1166, Sec.

16, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 790, Sec. 16,

eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01,

eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1051, Sec. 9, eff.

Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1270, Sec. 11, eff.

Sept. 1, 2001; Acts 2003, 78th Leg., ch. 678, Sec. 1, eff. Sept.

1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

889, Sec. 1, eff. June 17, 2005.

Acts 2009, 81st Leg., R.S., Ch.

1169, Sec. 9, eff. September 1, 2009.

Sec. 16.03. UNLAWFUL USE OF PEN REGISTER OR TRAP AND TRACE

DEVICE. (a) A person commits an offense if the person knowingly

installs or uses a pen register or trap and trace device to

record or decode electronic or other impulses for the purpose of

identifying telephone numbers dialed or otherwise transmitted on

a telephone line.

(b) In this section, "authorized peace officer," "communications

common carrier," "pen register," and "trap and trace device" have

the meanings assigned by Article 18.21, Code of Criminal

Procedure.

(c) It is an affirmative defense to prosecution under Subsection

(a) that the actor is:

(1) an officer, employee, or agent of a communications common

carrier and the actor installs or uses a device or equipment to

record a number dialed from or to a telephone instrument in the

normal course of business of the carrier for purposes of:

(A) protecting property or services provided by the carrier; or

(B) assisting another who the actor reasonably believes to be a

peace officer authorized to install or use a pen register or trap

and trace device under Article 18.21, Code of Criminal Procedure;

(2) an officer, employee, or agent of a lawful enterprise and

the actor installs or uses a device or equipment while engaged in

an activity that:

(A) is a necessary incident to the rendition of service or to

the protection of property of or services provided by the

enterprise; and

(B) is not made for the purpose of gathering information for a

law enforcement agency or private investigative agency, other

than information related to the theft of communication or

information services provided by the enterprise; or

(3) a person authorized to install or use a pen register or trap

and trace device under Article 18.21, Code of Criminal Procedure.

(d) An offense under this section is a state jail felony.

Added by Acts 1985, 69th Leg., ch. 587, Sec. 6, eff. Aug. 26,

1985. Amended by Acts 1989, 71st Leg., ch. 958, Sec. 2, eff.

Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1051, Sec. 10, eff.

Sept. 1, 1997.

Sec. 16.04. UNLAWFUL ACCESS TO STORED COMMUNICATIONS. (a) In

this section, "electronic communication," "electronic storage,"

"user," and "wire communication" have the meanings assigned to

those terms in Article 18.21, Code of Criminal Procedure.

(b) A person commits an offense if the person obtains, alters,

or prevents authorized access to a wire or electronic

communication while the communication is in electronic storage

by:

(1) intentionally obtaining access without authorization to a

facility through which a wire or electronic communications

service is provided; or

(2) intentionally exceeding an authorization for access to a

facility through which a wire or electronic communications

service is provided.

(c) Except as provided by Subsection (d), an offense under

Subsection (b) is a Class A misdemeanor.

(d) If committed to obtain a benefit or to harm another, an

offense is a state jail felony.

(e) It is an affirmative defense to prosecution under Subsection

(b) that the conduct was authorized by:

(1) the provider of the wire or electronic communications

service;

(2) the user of the wire or electronic communications service;

(3) the addressee or intended recipient of the wire or

electronic communication; or

(4) Article 18.21, Code of Criminal Procedure.

Added by Acts 1989, 71st Leg., ch. 958, Sec. 3, eff. Sept. 1,

1989. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff.

Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1051, Sec. 11, eff.

Sept. 1, 1997.

Sec. 16.05. ILLEGAL DIVULGENCE OF PUBLIC COMMUNICATIONS. (a)

In this section, "electronic communication," "electronic

communications service," and "electronic communications system"

have the meanings given those terms in Article 18.20, Code of

Criminal Procedure.

(b) A person who provides electronic communications service to

the public commits an offense if the person knowingly divulges

the contents of a communication to another who is not the

intended recipient of the communication.

(c) It is an affirmative defense to prosecution under Subsection

(b) that the actor divulged the contents of the communication:

(1) as authorized by federal or state law;

(2) to a person employed, authorized, or whose facilities are

used to forward the communication to the communication's

destination; or

(3) to a law enforcement agency if the contents reasonably

appear to pertain to the commission of a crime.

(d) Except as provided by Subsection (e), an offense under

Subsection (b) that involves a scrambled or encrypted radio

communication is a state jail felony.

(e) If committed for a tortious or illegal purpose or to gain a

benefit, an offense under Subsection (b) that involves a radio

communication that is not scrambled or encrypted:

(1) is a Class A misdemeanor if the communication is not a

public land mobile radio service communication or a paging

service communication; or

(2) is a Class C misdemeanor if the communication is a public

land mobile radio service communication or a paging service

communication.

(f) Repealed by Acts 1997, 75th Leg., ch. 1051, Sec. 13, eff.

Sept. 1, 1997.

Added by Acts 1989, 71st Leg., ch. 1166, Sec. 17, eff. Sept. 1,

1989. Renumbered from Penal Code Sec. 16.04 by Acts 1990, 71st

Leg., 6th C.S., ch. 12, Sec. 2(24), eff. Sept. 6, 1990. Amended

by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994;

Acts 1997, 75th Leg., ch. 1051, Sec. 12, 13, eff. Sept. 1, 1997.

Sec. 16.06. UNLAWFUL INSTALLATION OF TRACKING DEVICE. (a) In

this section:

(1) "Electronic or mechanical tracking device" means a device

capable of emitting an electronic frequency or other signal that

may be used by a person to identify, monitor, or record the

location of another person or object.

(2) "Motor vehicle" has the meaning assigned by Section 501.002,

Transportation Code.

(b) A person commits an offense if the person knowingly installs

an electronic or mechanical tracking device on a motor vehicle

owned or leased by another person.

(c) An offense under this section is a Class A misdemeanor.

(d) It is an affirmative defense to prosecution under this

section that the person:

(1) obtained the effective consent of the owner or lessee of the

motor vehicle before the electronic or mechanical tracking device

was installed;

(2) assisted another whom the person reasonably believed to be

a peace officer authorized to install the device in the course of

a criminal investigation or pursuant to an order of a court to

gather information for a law enforcement agency; or

(3) was a private investigator licensed under Chapter 1702,

Occupations Code, who installed the device:

(A) with written consent:

(i) to install the device given by the owner or lessee of the

motor vehicle; and

(ii) to enter private residential property, if that entry was

necessary to install the device, given by the owner or lessee of

the property; or

(B) pursuant to an order of or other authorization from a court

to gather information.

(e) This section does not apply to a peace officer who installed

the device in the course of a criminal investigation or pursuant

to an order of a court to gather information for a law

enforcement agency.

Added by Acts 1999, 76th Leg., ch. 728, Sec. 1, eff. Sept. 1,

1999. Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.828,

eff. Sept. 1, 2001.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1122, Sec. 1, eff. September 1, 2009.