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