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�	H.B.�No.�3228

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�	AN ACT
�	relating to the offense of prohibited substances and items in
�	correctional facilities.
�	�������BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
�	�������SECTION�1.��Section 38.11, Penal Code, as amended by
�	Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of the 79th
�	Legislature, Regular Session, 2005, is reenacted and amended to
�	read as follows:
�	�������Sec.�38.11.��PROHIBITED SUBSTANCES AND ITEMS IN [ADULT OR
�	JUVENILE] CORRECTIONAL [OR DETENTION] FACILITY [OR ON PROPERTY OF
�	TEXAS DEPARTMENT OF CRIMINAL JUSTICE OR TEXAS YOUTH COMMISSION]. �
�	(a) �A person commits an offense if the person provides, or
�	possesses with the intent to provide:
�	�������������(1)��an alcoholic beverage, controlled substance, or
�	dangerous drug to [an inmate of a correctional facility or to] a
�	person in the custody of a [secure] correctional facility [or
�	secure detention facility for juveniles], except on the
�	prescription of a [physician or] practitioner[, as defined in
�	Section 551.003, Occupations Code];
�	�������������(2)��a deadly weapon to [an inmate of a correctional
�	facility or to] a person in the custody of a [secure] correctional
�	facility [or secure detention facility for juveniles];
�	�������������(3)��a cellular telephone or other wireless
�	communications device or a component of one of those devices[,
�	cigarette, tobacco product, or money] to a person in the custody [an
�	inmate] of a correctional facility [operated by or under contract
�	with the Texas Department of Criminal Justice or to a person in the
�	custody of a secure correctional facility or secure detention
�	facility for juveniles, except for money that is provided for the
�	benefit of the juvenile in accordance with facility rules];
�	�������������(4)��[a cellular telephone or] money to a person
�	confined in a correctional facility [local jail regulated by the
�	Commission on Jail Standards]; or
�	�������������(5)��a cigarette or tobacco product to a person
�	confined in a correctional facility, except that if the facility is
�	a local jail regulated by the Commission on Jail Standards, the
�	person commits an offense only if [and in] providing the cigarette
�	or tobacco product [the person] violates a rule or regulation
�	adopted by the sheriff or jail administrator that:
�	�������������������(A)��prohibits the possession of a cigarette or
�	tobacco product by a person�[an inmate] confined in the jail; or
�	�������������������(B)��places restrictions on:
�	�������������������������(i)��the possession of a cigarette or
�	tobacco product by a person�[an inmate] confined in the jail; or
�	�������������������������(ii)��the manner in which a cigarette or
�	tobacco product may be provided to a person�[an inmate] confined in
�	the jail.
�	�������(b)��A person commits an offense if the person takes an
�	alcoholic beverage, controlled substance, or dangerous drug into a
�	correctional facility [or a secure correctional facility or secure
�	detention facility for juveniles, except for delivery to a facility
�	warehouse, pharmacy, or physician].
�	�������(c)��A person commits an offense if the person takes a
�	controlled substance or dangerous drug on property owned, used, or
�	controlled by a correctional facility [the Texas Department of
�	Criminal Justice, the Texas Youth Commission, or a secure
�	correctional facility or secure detention facility for juveniles,
�	except for delivery to a warehouse, pharmacy, or physician on
�	property owned, used, or controlled by the department, the
�	commission, or the facility].
�	�������(d)��A person commits an offense if the person:
�	�������������(1)��possesses a controlled substance or dangerous drug
�	while in a correctional facility or[:
�	�������������������[(A)]��on property owned, used, or controlled by
�	[the Texas Department of Criminal Justice, the Texas Youth
�	Commission, or] a [secure] correctional facility [or secure
�	detention facility for juveniles; or
�	�������������������[(B) � � in a correctional facility or a secure
�	correctional facility or secure detention facility for juveniles];
�	or
�	�������������(2)��possesses a deadly weapon while in a correctional
�	facility [or in a secure correctional facility or secure detention
�	facility for juveniles].
�	�������(e)��It is an affirmative defense to prosecution under
�	Subsection (b), (c), or (d)(1) [of this section] that the person
�	possessed the alcoholic beverage,�controlled substance, or
�	dangerous drug pursuant to a prescription issued by a practitioner
�	or while delivering the beverage,�substance, or drug to a
�	warehouse, pharmacy, or practitioner [physician] on property
�	owned, used, or controlled by the [department, the Texas Youth
�	Commission, or by the operator of a secure] correctional facility
�	[or secure detention facility for juveniles]. �It is an affirmative
�	defense to prosecution under Subsection (d)(2) [of this section]
�	that the person possessing the deadly weapon is a peace officer or
�	is an officer or employee of the correctional facility who is�
�	authorized to possess the deadly weapon while on duty or traveling
�	to or from the person's place of assignment.
�	�������(f)��In this section:
�	�������������(1)��"Practitioner" has the meaning assigned by Section
�	481.002, Health and Safety Code.
�	�������������(2)��"Prescription" has the meaning assigned by Section
�	481.002, Health and Safety Code.
�	�������������(3)��"Cigarette" has the meaning assigned by Section
�	154.001, Tax Code.
�	�������������(4)��"Tobacco product" has the meaning assigned by
�	Section 155.001, Tax Code.
�	�������������(5)��"Component" means any item necessary for the
�	current, ongoing, or future operation of a cellular telephone or
�	other wireless communications device, including a subscriber
�	identity module card or functionally equivalent portable memory
�	chip, a battery or battery charger, and any number of minutes that
�	have been purchased or for which a contract has been entered into
�	and during which a cellular telephone or other wireless
�	communications device is capable of transmitting or receiving
�	communications.
�	�������������(6)��"Correctional facility"�means:
�	�������������������(A)��any place described by Section
�	1.07(a)(14)(A), (B), or (C); or
�	�������������������(B)��a secure correctional facility or secure
�	detention facility, as defined�["Secure correctional facility" and
�	"secure detention facility" have the meanings assigned] by Section
�	51.02, Family Code.
�	�������(g)��An offense under this section is a felony of the third
�	degree.
�	�������(h)��Notwithstanding Section 15.01(d), if a person commits
�	the offense of criminal attempt to commit an offense under
�	Subsection (a), [or] (b), or (c), the offense committed under
�	Section 15.01 is a felony of the third degree.
�	�������(i)��It is an affirmative defense to prosecution under
�	Subsection (b) that the actor:
�	�������������(1)��is a duly authorized member of the clergy with
�	rights and privileges granted by an ordaining authority that
�	includes administration of a religious ritual or ceremony requiring
�	the presence or consumption of an alcoholic beverage;��and
�	�������������(2)��takes four ounces or less of an alcoholic beverage
�	into the correctional facility [or the secure correctional facility
�	or secure detention facility for juveniles] and personally consumes
�	all of the alcoholic beverage or departs from the facility with any
�	portion of the beverage not consumed.
�	�������(j)��A person commits an offense if the person, while
�	confined in�[an inmate of] a correctional facility, [operated by or
�	under contract with the Texas Department of Criminal Justice or
�	while in the custody of a secure correctional facility or secure
�	detention facility for juveniles] possesses a cellular telephone or
�	other wireless communications device or a component of one of those
�	devices.
�	�������(k)��A person commits an offense if, with the intent to
�	provide to or make a cellular telephone or other wireless
�	communications device or a component of one of those devices
�	available for use by a person in the custody of a correctional
�	facility, the person:
�	�������������(1)��acquires a cellular telephone or other wireless
�	communications device or a component of one of those devices to be
�	delivered to the person in custody;
�	�������������(2)��provides a cellular telephone or other wireless
�	communications device or a component of one of those devices to
�	another person for delivery to the person in custody; or
�	�������������(3)��makes a payment to a communication common carrier,
�	as defined by Article 18.20, Code of Criminal Procedure, or to any
�	communication service that provides to its users the ability to
�	send or receive wire or electronic communications.
�	�������SECTION�2.��The heading to Article 18.20, Code of Criminal
�	Procedure, is amended to read as follows:
�	�������Art.�18.20.��DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL,
�	OR ELECTRONIC COMMUNICATIONS.
�	�������SECTION�3.��Section 4, Article 18.20, Code of Criminal
�	Procedure, is amended to read as follows:
�	�������Sec.�4.��OFFENSES FOR WHICH INTERCEPTIONS MAY BE
�	AUTHORIZED.��A judge of competent jurisdiction may issue an order
�	authorizing interception of wire, oral, or electronic
�	communications only if the prosecutor applying for the order shows
�	probable cause to believe that the interception will provide
�	evidence of the commission of:
�	�������������(1)��a felony under Section 19.02, 19.03, or 43.26,
�	Penal Code;
�	�������������(2)��a felony under:
�	�������������������(A)��Chapter 481, Health and Safety Code, other
�	than felony possession of marihuana;
�	�������������������(B)��Section 485.032 [485.033], Health and Safety
�	Code; or
�	�������������������(C)��Chapter 483, Health and Safety Code;
�	�������������(3)��an offense under Section 20.03 or 20.04, Penal
�	Code;
�	�������������(4)��an offense under Chapter 20A, Penal Code;
�	�������������(5)��an offense under Chapter 34, Penal Code, if the
�	criminal activity giving rise to the proceeds involves the
�	commission of an offense under Title 5, Penal Code, or an offense
�	under federal law or the laws of another state containing elements
�	that are substantially similar to the elements of an offense under
�	Title 5; [or]
�	�������������(6)��an offense under Section 38.11, Penal Code; or
�	�������������(7)��an attempt, conspiracy, or solicitation to commit
�	an offense listed in this section.
�	�������SECTION�4.��Section 5, Article 18.20, Code of Criminal
�	Procedure, is amended by amending Subsection (a) and adding
�	Subsections (c) and (d) to read as follows:
�	�������(a)��Except as otherwise provided by this section and
�	Sections [Section] 8A and 8B, only the Department of Public Safety
�	is authorized by this article to own, possess, install, operate, or
�	monitor an electronic, mechanical, or other device. The Department
�	of Public Safety may be assisted by an investigative or law
�	enforcement officer or other person in the operation and monitoring
�	of an interception of wire, oral, or electronic communications,
�	provided that the officer or other person:
�	�������������(1)��is designated by the director for that purpose;
�	and
�	�������������(2)��acts in the presence and under the direction of a
�	commissioned officer of the Department of Public Safety.
�	�������(c)��The Texas Department of Criminal Justice may own
�	electronic, mechanical, or other devices for a use or purpose
�	authorized by Section 500.008, Government Code, and the inspector
�	general of the Texas Department of Criminal Justice, a commissioned
�	officer of that office, or another person acting in the presence and
�	under the direction of a commissioned officer of that office may
�	possess, install, operate, or monitor those devices as provided by
�	Section 500.008.
�	�������(d)��The Texas Youth Commission may own electronic,
�	mechanical, or other devices for a use or purpose authorized by
�	Section 61.0455, Human Resources Code, and the inspector general of
�	the Texas Youth Commission, a commissioned officer of that office,
�	or another person acting in the presence and under the direction of
�	a commissioned officer of that office may possess, install,
�	operate, or monitor those devices as provided by Section 61.0455.
�	�������SECTION�5.��Article 18.20, Code of Criminal Procedure, is
�	amended by adding Section 8B to read as follows:
�	�������Sec.�8B.��DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS
�	COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY. (a)
�	In this section, "correctional facility" has the meaning assigned
�	by Section 39.04(e), Penal Code.
�	�������(b)��Notwithstanding any other provision of this article or
�	Article 18.21, the office of the inspector general of the Texas
�	Department of Criminal Justice may:
�	�������������(1)��without a warrant, use electronic, mechanical, or
�	other devices to detect the presence or use of a cellular telephone
�	or other wireless communications device in a correctional facility;
�	�������������(2)��without a warrant, intercept, monitor, detect, or,
�	as authorized by applicable federal laws and regulations, prevent
�	the transmission of any communication transmitted through the use
�	of a cellular telephone or other wireless communications device in
�	a correctional facility; and
�	�������������(3)��use, to the extent authorized by law, any
�	information obtained under Subdivision (2), including the contents
�	of an intercepted communication, in any criminal or civil
�	proceeding before a court or other governmental agency or entity.
�	�������(c)��Not later than the 30th day after the date on which the
�	office of the inspector general uses an electronic, mechanical, or
�	other device under Subsection (b), the inspector general shall
�	report the use of the device to:
�	�������������(1)��a prosecutor with jurisdiction in the county in
�	which the device was used; or
�	�������������(2)��the special prosecution unit established under
�	Subchapter E, Chapter 41, Government Code, if that unit has
�	jurisdiction in the county in which the device was used.
�	�������(d)��When using an electronic, mechanical, or other device
�	under Subsection (b), the office of the inspector general shall
�	minimize the impact of the device on any communication that is not
�	reasonably related to the detection of the presence or use of a
�	cellular telephone or other wireless communications device in a
�	correctional facility.
�	�������(e)��A person confined in a correctional facility does not
�	have an expectation of privacy with respect to the possession or use
�	of a cellular telephone or other wireless communications device
�	located on the premises of the facility. The person who is
�	confined, and any person with whom that person communicates through
�	the use of a cellular telephone or other wireless communications
�	device, does not have an expectation of privacy with respect to the
�	contents of any communication transmitted by the cellular telephone
�	or wireless communications device.
�	�������SECTION�6.��Section 17, Article 18.20, Code of Criminal
�	Procedure, is amended to read as follows:
�	�������Sec.�17.��NONAPPLICABILITY. This article does not apply to
�	conduct described as an affirmative defense under Section 16.02(c),
�	Penal Code, except as otherwise specifically provided by that
�	section.
�	�������SECTION�7.��Chapter 500, Government Code, is amended by
�	adding Section 500.008 to read as follows:
�	�������Sec.�500.008.��DETECTION AND MONITORING OF CELLULAR
�	TELEPHONES. (a) The department may own and the office of inspector
�	general may possess, install, operate, or monitor an electronic,
�	mechanical, or other device, as defined by Article 18.20, Code of
�	Criminal Procedure.
�	�������(b)��The inspector general shall designate in writing the
�	commissioned officers of the office of inspector general who are
�	authorized to possess, install, operate, and monitor electronic,
�	mechanical, or other devices for the department.
�	�������(c)��An investigative or law enforcement officer or other
�	person, on request of the office of inspector general, may assist
�	the office in the operation and monitoring of an interception of
�	wire, oral, or electronic communications if the investigative or
�	law enforcement officer or other person:
�	�������������(1)��is designated by the executive director for that
�	purpose; and
�	�������������(2)��acts in the presence and under the direction of a
�	commissioned officer of the inspector general.
�	�������SECTION�8.��Subchapter C, Chapter 61, Human Resources Code,
�	is amended by adding Section 61.0455 to read as follows:
�	�������Sec.�61.0455.��DETECTION AND MONITORING OF CELLULAR
�	TELEPHONES. (a) The commission may own and the office of the
�	inspector general may possess, install, operate, or monitor an
�	electronic, mechanical, or other device, as defined by Article
�	18.20, Code of Criminal Procedure.
�	�������(b)��The inspector general shall designate in writing the
�	commissioned officers of the office of inspector general who are
�	authorized to possess, install, operate, and monitor electronic,
�	mechanical, or other devices for the commission.
�	�������(c)��An investigative or law enforcement officer or other
�	person, on request of the office of inspector general, may assist
�	the office in the operation and monitoring of an interception of
�	wire, oral, or electronic communications if the investigative or
�	law enforcement officer or other person:
�	�������������(1)��is designated by the executive commissioner for
�	that purpose; and
�	�������������(2)��acts in the presence and under the direction of a
�	commissioned officer of the inspector general.
�	�������SECTION�9.��Section 16.02, Penal Code, is amended by adding
�	Subsection (e-1) to read as follows:
�	�������(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.
�	�������SECTION�10.��The changes in law made by this Act with respect
�	to Sections 16.02 and 38.11, Penal Code, apply only to an offense
�	committed on or after the effective date of this Act. An offense
�	committed before the effective date of this Act is governed by the
�	law in effect when the offense was committed, and the former law is
�	continued in effect for that purpose. For purposes of this section,
�	an offense was committed before the effective date of this Act if
�	any element of the offense occurred before that date.
�	�������SECTION�11.��This Act takes effect September 1, 2009.
�
�
�	______________________________	______________________________
�	���President of the Senate	Speaker of the House�����
�
�
�	�������I certify that H.B. No. 3228 was passed by the House on May 4,
�	2009, by the following vote:��Yeas 142, Nays 0, 1 present, not
�	voting; and that the House concurred in Senate amendments to H.B.
�	No. 3228 on May 29, 2009, by the following vote:��Yeas 138, Nays 1,
�	1 present, not voting.
�
�	______________________________
�	Chief Clerk of the House���
�
�	�������I certify that H.B. No. 3228 was passed by the Senate, with
�	amendments, on May 26, 2009, by the following vote:��Yeas 31, Nays
�	0.
�
�	______________________________
�	Secretary of the Senate���
�	APPROVED: __________________
�	����������������Date�������
�	�
�	�������� __________________
�	��������������Governor�������