By: Huffman	S.B. No. 1098

	A BILL TO BE ENTITLED
	AN ACT
	relating to certain offenses involving unauthorized recordings.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Subdivision (4), Section 641.001, Business &
	Commerce Code, is amended to read as follows:
	(4)  "Recording" means a tangible medium on which
	sounds, images, or both are recorded or otherwise stored,
	including:
	(A)  an original phonograph record, disc, tape,
	audio or video cassette, wire, film, memory card, flash drive, hard
	drive, data storage device, or other medium now existing or later
	developed; or
	(B)  a copy or reproduction that wholly or partly
	duplicates the original.
	SECTION 2.  Section 641.051, Business & Commerce Code, is
	amended by adding Subsection (e) to read as follows:
	(e)  This section does not apply to a person who, while
	engaged in radio or television broadcasting, transfers or causes to
	be transferred a recording:
	(1)  for or in connection with a broadcast or telecast
	transmission or for a related purpose; or
	(2)  for archival purposes.
	SECTION 3.  The heading to Section 641.054, Business &
	Commerce Code, is amended to read as follows:
	Sec. 641.054.  IMPROPER LABELING.
	SECTION 4.  Subsection (b), Section 641.054, Business &
	Commerce Code, is amended to read as follows:
	(b)  An offense under this section is punishable by:
	(1)  imprisonment for a term of not more than five
	years, a fine of not less than $500 and not more than [to exceed]
	$250,000, or both imprisonment and the fine, if:
	(A)  the offense involves [at least] 65 or more
	improperly labeled [unauthorized] recordings during a 180-day
	period; or
	(B)  the defendant has been previously convicted
	under this section;
	(2)  imprisonment for a term of not more than two years,
	a fine of not less than $250 and not more than [to exceed] $250,000,
	or both imprisonment and the fine, if the offense involves more than
	seven but fewer than 65 improperly labeled [unauthorized]
	recordings during a 180-day period; or
	(3)  confinement in the county jail for a term of not
	more than one year, a fine of not less than $100 and not more than
	[to exceed] $25,000, or both confinement and the fine, if the
	offense is not otherwise punishable under Subdivision (1) or (2).
	SECTION 5.  Section 641.055, Business & Commerce Code, is
	amended to read as follows:
	Sec. 641.055.  FORFEITURE.  If a person is convicted of an
	offense under [a violation of] this chapter, the court in its
	judgment of conviction shall order the forfeiture and destruction
	or other disposition of:
	(1)  all recordings on which the conviction is based;
	[and]
	(2)  all devices and equipment used or intended to be
	used in the manufacture of the recordings on which the conviction is
	based; and
	(3)  for an offense punishable as a felony, all
	contraband, as that term is defined by Article 59.01, Code of
	Criminal Procedure, that is used in the commission of the offense.
	SECTION 6.  Article 42.037, Code of Criminal Procedure, is
	amended by adding Subsections (t) and (u) to read as follows:
	(t)  If a person is convicted of an offense under Section
	641.054, Business & Commerce Code, the court shall order the person
	to make restitution to an owner or lawful producer of a master
	recording that has suffered financial loss as a result of the
	offense or to a trade association that represents that owner or
	lawful producer.  The amount of restitution ordered shall be:
	(1)  the greater of:
	(A)  the aggregate wholesale value of the lawfully
	manufactured and authorized recordings corresponding to the number
	of nonconforming recordings involved in the offense; or
	(B)  the actual financial loss to the owner,
	lawful producer, or trade association; and
	(2)  the costs associated with investigating the
	offense.
	(u)  For purposes of Subsection (t):
	(1)  the calculation of the aggregate wholesale value
	is based on the average wholesale value of the lawfully
	manufactured and authorized recordings; and
	(2)  the specific wholesale value of each nonconforming
	recording is not relevant to the calculation.
	SECTION 7.  Subdivision (2), Article 59.01, Code of Criminal
	Procedure, as amended by Chapters 153 (S.B. 2225), 1130 (H.B.
	2086), and 1357 (S.B. 554), Acts of the 81st Legislature, Regular
	Session, 2009, is reenacted and 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 32, Human
	Resources Code, or Chapter 31, 32, 35A, or 37, Penal Code, that
	involves the state Medicaid program;
	(viii)  a Class B misdemeanor under Chapter
	522, Business & Commerce Code;
	(ix)  a Class A misdemeanor under Section
	306.051, Business & Commerce Code; [or]
	(x)  any offense under Section 42.10, Penal
	Code;
	(xi) [(x)]  any offense under Section
	46.06(a)(1) or 46.14, Penal Code;
	(xii) [(x)]  any offense under Chapter 71,
	Penal Code; or
	(xiii)  any felony under Chapter 641,
	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), (x), (xi), or (xii)
	[(B)(viii) or (x)] 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), (x),
	(xi), or (xii) [(B)(viii) or (x)] 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 8.  The change in law made by this Act applies 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 at the time the offense was committed.
	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 9.  To the extent of any conflict, this Act prevails
	over another Act of the 82nd Legislature, Regular Session, 2011,
	relating to nonsubstantive additions to and corrections in enacted
	codes.
	SECTION 10.  This Act takes effect September 1, 2011.