H.B. No. 73
 
 
 
 
AN ACT
  relating to the protection of customer telephone records; providing
  a penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 35, Business & Commerce Code, is amended
  by adding Subchapter L to read as follows:
  SUBCHAPTER L.  PROTECTION OF CUSTOMER TELEPHONE RECORDS
         Sec. 35.151.  DEFINITIONS.  In this subchapter:
               (1)  "Caller identification record" means a record
  that:
                     (A)  is delivered electronically to the recipient
  of a telephone call simultaneously with the reception of the call;
  and
                     (B)  indicates the telephone number from which the
  telephone call was made or other similar information regarding the
  call.
               (2)  "Telephone company" means a provider of commercial
  telephone services, or a provider that bills for those services,
  regardless of the technology used to provide that service,
  including landline, radio, wireless, microwave, satellite, Voice
  over Internet Protocol (VoIP), or other cable, broadband, or
  digital technology.
               (3)  "Telephone record" means a written, electronic, or
  oral record, other than a caller identification record collected
  and retained by or on behalf of a customer, created by a telephone
  company about a customer, that includes:
                     (A)  the telephone number:
                           (i)  dialed by a customer; or
                           (ii)  of an incoming call made to a customer;
                     (B)  the time a call was made to or by a customer;
                     (C)  the duration of a call made to or by a
  customer; or
                     (D)  the location from which a call was initiated
  or at which a call was received by a customer.
         Sec. 35.152.  CONSTRUCTION OF SUBCHAPTER. This subchapter
  does not apply to expand the obligations or duties of a telephone
  company under federal or other state law to protect telephone
  records.
         Sec. 35.153.  UNAUTHORIZED OR FRAUDULENT PROCUREMENT, SALE,
  OR RECEIPT OF TELEPHONE RECORDS.  (a)  A person commits an offense
  if the person:
               (1)  obtains, attempts to obtain, or conspires with
  another to obtain a telephone record of a resident of this state
  without the authorization of the resident to whom the record
  pertains by:
                     (A)  making a statement the person knows to be
  false to an agent of a telephone company;
                     (B)  making a statement the person knows to be
  false to a telephone company;
                     (C)  fraudulently accessing the record through
  the telephone company's Internet website; or
                     (D)  providing to a telephone company a document
  that the person knows:
                           (i)  is fraudulent;
                           (ii)  has been lost or stolen;
                           (iii)  has been obtained by fraud; or
                           (iv)  contains a false, fictitious, or
  fraudulent statement or representation;
               (2)  asks another person to obtain a telephone record
  of a resident of this state knowing that the record will be obtained
  in a manner prohibited by this section;
               (3)  sells, transfers, or attempts to sell or transfer
  a telephone record of a resident of this state without
  authorization of the resident to whom the record pertains; or
               (4)  offers to obtain or offers to sell a telephone
  record that has been or will be obtained without authorization from
  the resident to whom the record pertains.
         (b)  An offense under this section is a Class A misdemeanor,
  except that a fine shall not exceed $20,000.
         (c)  In addition to the penalties provided by Subsection (b),
  a person convicted of an offense under this section may be required
  to forfeit personal property used or intended to be used in
  violation of this section.
         (d)  In addition to the penalties provided by Subsections (b)
  and (c), a person convicted of an offense under this section shall
  be ordered to pay to a resident whose telephone record was obtained
  in a manner prohibited by this section an amount equal to the sum
  of:
               (1)  the greater of the resident's financial loss, if
  proof of the loss is submitted to the satisfaction of the court, or
  $1,000; and
               (2)  the amount of any financial gain received by the
  person as the direct result of the offense.
         (e)  An offense under this section may be prosecuted in:
               (1)  the county in which the customer whose telephone
  record is the subject of the prosecution resided at the time of the
  offense; or
               (2)  any county in which any part of the offense took
  place regardless of whether the defendant was ever present in the
  county.
         (f)  If venue lies in more than one county under Subsection
  (e), a defendant may be prosecuted in only one county for the same
  conduct.
         (g)  If conduct constituting an offense under this section
  also constitutes an offense under another section of this code or of
  any other law, including the Penal Code, the actor may be prosecuted
  under either section or under both sections.
         (h)  This section does not create a private right of action.
         Sec. 35.154.  EXCEPTIONS.  Section 35.153 does not apply to:
               (1)  a person who acted pursuant to a valid court order,
  warrant, subpoena, or civil investigative demand;
               (2)  a telephone company that disclosed a telephone
  record:
                     (A)  the disclosure of which is otherwise
  authorized by law;
                     (B)  reasonably believing the disclosure was
  necessary to:
                           (i)  provide service to a customer;
                           (ii)  protect an individual from fraudulent,
  abusive, or unlawful use of a telephone record or telephone
  service; or
                           (iii)  protect the rights or property of the
  company;
                     (C)  to the National Center for Missing and
  Exploited Children in connection with a report submitted under 42
  U.S.C. Section 13032;
                     (D)  for purposes of testing the company's
  security procedures or systems for maintaining the confidentiality
  of customer information;
                     (E)  to a governmental entity, if the company
  reasonably believed that an emergency involving danger of death or
  serious physical injury to a person justified disclosure of the
  information;
                     (F)  in connection with the sale or transfer of
  all or part of the company's business, the purchase or acquisition
  of all or part of another company's business, or the migration of a
  customer from one telephone company to another telephone company;
                     (G)  necessarily incident to the rendition of the
  service, to initiate, render, bill, and collect the customer's
  charges, or to protect the customer of those services and other
  carriers from fraudulent, abusive, or unlawful use of, or
  subscription to, such services; or
                     (H)  while acting reasonably and in good faith,
  notwithstanding a later determination that the action was not
  authorized; or
               (3)  a person or a telephone company that acted in
  connection with the official duties of a 9-1-1 governmental entity
  or a public agency solely for purposes of delivering or assisting in
  the delivery of 9-1-1 emergency services and other emergency
  services.
         Sec. 35.155.  DECEPTIVE TRADE PRACTICE; ENFORCEMENT.  A
  violation of this subchapter is a false, misleading, or deceptive
  act or practice under Section 17.46 and is subject to action only by
  the consumer protection division of the attorney general's office
  as provided by Section 17.46(a).
         Sec. 35.156.  CONSISTENCY WITH FEDERAL LAW.  This
  subchapter may not be construed in a manner that is inconsistent
  with 18 U.S.C. Section 1038, 47 U.S.C. Section 222, or any other
  applicable federal law or rule.
         Sec. 35.157.  NONAPPLICABILITY TO LAW ENFORCEMENT AGENCIES.
  This subchapter does not prohibit any lawfully authorized
  investigative, protective, or intelligence activity of a law
  enforcement agency of the United States, a state, or a political
  subdivision of a state or of an intelligence agency of the United
  States.
         SECTION 2.  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, 21.11, 38.04, Subchapter B of Chapter 43, or Chapter 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 153, 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 152, Finance
  Code;
                           (vii)  any felony under Chapter 31, 32, or
  37, Penal Code, that involves the state Medicaid program, or any
  felony under Chapter 36, Human Resources Code; [or]
                           (viii)  a Class B misdemeanor under Section
  35.60, Business & Commerce Code; or
                           (ix)  a Class A misdemeanor under Section
  35.153, 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)(viii) 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)(viii) of this
  subdivision, or a crime of violence; or
                     (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.
         SECTION 3.  This Act takes effect September 1, 2007.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 73 was passed by the House on April 4,
  2007, by the following vote:  Yeas 143, Nays 0, 2 present, not
  voting; and that the House concurred in Senate amendments to H.B.
  No. 73 on May 17, 2007, by the following vote:  Yeas 143, Nays 0, 1
  present, not voting.
 
  ______________________________
  Chief Clerk of the House   
 
         I certify that H.B. No. 73 was passed by the Senate, with
  amendments, on May 15, 2007, by the following vote:  Yeas 31, Nays
  0.
 
  ______________________________
  Secretary of the Senate   
  APPROVED: __________________
                  Date       
   
           __________________
                Governor