Hefner Bill Adds A Copper Possession Offense That Can Overlap Existing Law

The text as introduced · 2,859 words

89R8475 JCG-F

By: Hefner
H.B. No. 3552

A BILL TO BE ENTITLED

AN ACT

relating to criminal conduct involving the theft or unauthorized

possession of copper or brass and to the sale of copper or brass

material to metal recycling entities; creating criminal offenses;

providing an administrative penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

ARTICLE 1. CRIMINAL PENALTIES

SECTION 1.01. Section 423.0045(a)(1-a), Government Code,

is amended to read as follows:

(1-a) "Critical infrastructure facility" means:

(A) one of the following, if completely enclosed

by a fence or other physical barrier that is obviously designed to

exclude intruders, or if clearly marked with a sign or signs that

are posted on the property, are reasonably likely to come to the

attention of intruders, and indicate that entry is forbidden:

(i) a petroleum or alumina refinery;

(ii) an electrical power generating

facility, substation, switching station, or electrical control

center;

(iii) a chemical, polymer, or rubber

manufacturing facility;

(iv) a water intake structure, water

treatment facility, wastewater treatment plant, or pump station;

(v) a natural gas compressor station;

(vi) a liquid natural gas terminal or

storage facility;

(vii) a telecommunications central

switching office or any structure used as part of a system to

provide [ wired or wireless ] telecommunications services , cable

television services, or Internet access services ;

(viii) a port, a railroad switching yard, a

trucking terminal, or any other freight transportation facility;

(ix) a gas processing plant, including a

plant used in the processing, treatment, or fractionation of

natural gas;

(x) a transmission facility used by a

federally licensed radio or television station;

(xi) a steelmaking facility that uses an

electric arc furnace to make steel;

(xii) a dam that is classified as a high

hazard by the Texas Commission on Environmental Quality; or

(xiii) a concentrated animal feeding

operation, as defined by Section 26.048, Water Code; or

(B) if enclosed by a fence or other physical

barrier obviously designed to exclude intruders:

(i) any portion of an aboveground oil, gas,

or chemical pipeline;

(ii) an oil or gas drilling site;

(iii) a group of tanks used to store crude

oil, such as a tank battery;

(iv) an oil, gas, or chemical production

facility;

(v) an oil or gas wellhead; or

(vi) any oil and gas facility that has an

active flare.

SECTION 1.02. Section 28.03(g), Penal Code, is amended by

adding Subdivision (10) to read as follows:

(10) "Critical infrastructure facility" has the

meaning assigned by Section 423.0045, Government Code, and includes

any component of a system:

(A) on which a 9-1-1 service, as defined by

Section 771.001, Health and Safety Code, depends to properly

function; or

(B) that enables interoperable communications

between emergency services personnel, as defined by Section 22.01,

during an emergency or disaster.

SECTION 1.03. Section 28.03, Penal Code, is amended by

adding Subsection (l) to read as follows:

(l) Notwithstanding Subsection (b), an offense under this

section is a felony of the third degree if the actor committed the

offense by damaging or destroying a copper or brass component of a

critical infrastructure facility or of equipment appurtenant to the

facility or on which the facility depends to properly function, and

the damage or destruction causes, wholly or partly, the impairment

or interruption of the facility or that equipment.

SECTION 1.04. Section 31.01, Penal Code, is amended by

adding Subdivisions (15) and (16) to read as follows:

(15) "Critical infrastructure facility" has the

meaning assigned by Section 423.0045, Government Code, and includes

any component of a system:

(A) on which a 9-1-1 service, as defined by

Section 771.001, Health and Safety Code, depends to properly

function; or

(B) that enables interoperable communications

between emergency services personnel, as defined by Section 22.01,

during an emergency or disaster.

(16) "Firearm" has the meaning assigned by Section

46.01.

SECTION 1.05. Section 31.03, Penal Code, is amended by

adding Subsection (f-2) to read as follows:

(f-2) An offense described for purposes of punishment by

Subsection (e)(4)-(6) is increased to the next higher category of

offense if it is shown on the trial of the offense that:

(1) the property stolen was copper or brass; and

(2) the actor committed the offense by unlawfully

appropriating the property from a critical infrastructure facility

or from equipment appurtenant to the facility or on which the

facility depends to properly function.

SECTION 1.06. Chapter 31, Penal Code, is amended by adding

Section 31.22 to read as follows:

Sec. 31.22. UNAUTHORIZED POSSESSION OF CERTAIN COPPER OR

BRASS MATERIAL. (a) In this section, "copper or brass material"

has the meaning assigned by Section 1956.001(4)(A) or (B),

Occupations Code.

(b) A person commits an offense if the person:

(1) intentionally or knowingly possesses copper or

brass material; and

(2) is not a person who is authorized under Subsection

(c) to possess the copper or brass material.

(c) A person is presumed to be authorized to possess copper

or brass material if the person is:

(1) the owner of the material;

(2) a public utility or common carrier;

(3) a telecommunications provider as defined by

Section 51.002, Utilities Code;

(4) a cable service provider as defined by Section

66.002, Utilities Code;

(5) a video service provider as defined by Section

66.002, Utilities Code;

(6) a manufacturing, industrial, commercial, retail,

or other business that sells the material in the ordinary course of

the seller's business;

(7) a carrier-for-hire acting in the course and scope

of the carrier's business;

(8) a metal recycling entity registered under Chapter

1956, Occupations Code, and acting within the course and scope of

the entity's business;

(9) a person acting in the ordinary course of the

person's business who lawfully acquires possession of the materials

during construction, remodeling, demolition, or salvage of a

building or other structure in which the materials were installed

or contained; or

(10) an agent for a person described by Subdivisions

(1)-(9) acting within the course and scope of the agent's authority

to act on behalf of the person.

(d) The presumption established under Subsection (c) does

not apply to a person who knows that the material was unlawfully

obtained.

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

this section is a state jail felony.

(f) An offense under this section is a felony of the third

degree if it is shown on the trial of the offense that:

(1) the copper or brass material was unlawfully

obtained from a critical infrastructure facility; or

(2) the person:

(A) has been previously convicted of an offense

under this section;

(B) has been previously convicted of any of the

following offenses with respect to copper or brass material:

(i) an offense under Section 28.03 or

31.03;

(ii) conspiracy under Section 15.02 to

commit an offense under Section 28.03 or 31.03; or

(iii) an offense under Chapter 71;

(C) in connection with the offense, engaged in

conduct with respect to copper or brass material constituting:

(i) conspiracy under Section 15.02 to

commit an offense under Section 28.03, Section 31.03, or Chapter

71; or

(ii) an offense under Chapter 71; or

(D) possessed a firearm during the commission of

the offense.

(g) If conduct constituting an offense under this section

also constitutes an offense under any other law, the actor may be

prosecuted under this section, the other law, or both.

SECTION 1.07. Section 71.02(a), Penal Code, as amended by

Chapters 269 (S.B. 224), 369 (H.B. 1442), 462 (S.B. 1900), 885 (H.B.

4635), and 910 (H.B. 6), Acts of the 88th Legislature, Regular

Session, 2023, is reenacted and amended to read as follows:

(a) A person commits an offense if, with the intent to

establish, maintain, or participate in a combination or in the

profits of a combination or as a member of a criminal street gang or

foreign terrorist organization, the person commits or conspires to

commit one or more of the following:

(1) murder, capital murder, arson, aggravated

robbery, robbery, burglary, theft, aggravated kidnapping,

kidnapping, aggravated assault, aggravated sexual assault, sexual

assault, continuous sexual abuse of young child or disabled

individual, solicitation of a minor, forgery, deadly conduct,

assault punishable as a Class A misdemeanor, burglary of a motor

vehicle, or unauthorized use of a motor vehicle;

(2) any gambling offense punishable as a Class A

misdemeanor;

(3) promotion of prostitution, aggravated promotion

of prostitution, or compelling prostitution;

(4) unlawful manufacture, transportation, repair, or

sale of firearms or prohibited weapons;

(5) unlawful manufacture, delivery, dispensation, or

distribution of a controlled substance or dangerous drug, or

unlawful possession of a controlled substance or dangerous drug:

(A) through forgery, fraud, misrepresentation,

or deception; or

(B) with the intent to deliver the controlled

substance or dangerous drug;

(5-a) causing the unlawful delivery, dispensation, or

distribution of a controlled substance or dangerous drug in

violation of Subtitle B, Title 3, Occupations Code;

[ (5-b) any unlawful possession with intent to deliver a

controlled substance or dangerous drug;

[ (5-b) unlawful possession with intent to deliver a

controlled substance listed in Penalty Group 1-B under Section

481.1022, Health and Safety Code; ]

(6) any unlawful wholesale promotion or possession of

any obscene material or obscene device with the intent to wholesale

promote the same;

(7) any offense under Subchapter B, Chapter 43,

depicting or involving conduct by or directed toward a child

younger than 18 years of age;

(8) any felony offense under Chapter 32;

(9) any offense under Chapter 36;

(10) any offense under Chapter 34, 35, or 35A;

(11) any offense under Section 37.11(a);

(12) any offense under Chapter 20A;

(13) any offense under Section 37.10;

(14) any offense under Section 38.06, 38.07, 38.09, or

38.11;

(15) any offense under Section 42.10;

(16) any offense under Section 46.06(a)(1) or 46.14;

(17) any offense under Section 20.05, 20.06, or 20.07;

(18) any offense under Section 16.02;

(19) any offense punishable under Section 42.03(d) or

(e);

(20) [ (19) ] an offense under Section 28.03 that is

punishable under Subsection (b)(4)(E) or (l) of that section;

(21) [ (20) ] an offense under Section 31.21 or 31.22

that is punishable under Subsection (d) or (e), respectively, of

those sections [ that section ]; [ or ]

(22) [ (20) ] any offense classified as a felony under

the Tax Code; or

(23) [ (21) ] any offense under Section 545.420,

Transportation Code.

SECTION 1.08. Section 31.03(h)(8), Penal Code, is repealed.

ARTICLE 2. REGULATION OF METAL RECYCLING ENTITIES

SECTION 2.01. Chapter 1956, Occupations Code, is amended by

adding Subchapter C-2 to read as follows:

SUBCHAPTER C-2. TRANSACTIONS INVOLVING CERTAIN COPPER OR BRASS

MATERIAL

Sec. 1956.131. DEFINITION. Notwithstanding Section

1956.001, in this subchapter, the term "copper or brass material"

does not include the material described by Section 1956.001(4)(C).

Sec. 1956.132. APPLICABILITY; EFFECT OF LAW.

(a) Notwithstanding any other provision of this chapter, this

subchapter applies to the purchase or acquisition, from a person

described by Section 1956.002(1), of copper or brass material.

(b) This subchapter does not affect any requirement under

Subchapter A-3, including any requirement applicable to the

purchase or acquisition of copper or brass material from a person

not described by Section 1956.002(1).

Sec. 1956.133. LIMITATION ON PURCHASING OR OTHERWISE

ACQUIRING CERTAIN COPPER OR BRASS MATERIAL. A metal recycling

entity may not purchase or otherwise acquire copper or brass

material from a person described by Section 1956.002(1), unless

each of the following is satisfied:

(1) the person selling the copper or brass material to

the metal recycling entity acquired it in the ordinary course of the

person's business, including in the ordinary course of business of

any of the following entities:

(A) a business that owns the copper or brass

material;

(B) a public utility or common carrier;

(C) a telecommunications provider as defined by

Section 51.002, Utilities Code;

(D) a cable service provider as defined by

Section 66.002, Utilities Code;

(E) a video service provider as defined by

Section 66.002, Utilities Code;

(F) a manufacturing, industrial, commercial,

retail, or other business that sells the material in the ordinary

course of the seller's business;

(G) a carrier-for-hire acting in the course and

scope of the carrier's business;

(H) a metal recycling entity registered under

this chapter acting within the course and scope of the entity's

business; or

(I) a person acting in the ordinary course of the

person's business who lawfully acquires possession of the materials

during the construction, remodeling, demolition, or salvage of a

building or other structure in which the materials were installed

or contained; or

(2) any individual acting on behalf of the person

described by Subdivision (1) who has apparent authority to enter

into the transaction and is acting in the scope of that authority.

Sec. 1956.134. CERTAIN RECORDS REQUIRED WHEN PURCHASING OR

OTHERWISE ACQUIRING CERTAIN COPPER OR BRASS MATERIAL; OFFENSE.

(a) A metal recycling entity shall maintain an accurate record of

each transaction in which the entity purchases or otherwise

acquires copper or brass material from a person described by

Section 1956.133.

(b) A record meets the requirements of Subsection (a) if it

contains:

(1) a description of the volume of copper or brass

material purchased or otherwise acquired made in accordance with

the custom of the trade for the material that is the subject of the

transaction;

(2) the business name of the person from whom the

copper or brass material was purchased or otherwise acquired;

(3) the following, as applicable:

(A) the information printed on the material that

shows the manufacturer of the material, the date of manufacture of

the material, the identification code for the material, and the

type and size of the material; and

(B) any other information required by commission

rule for materials that are damaged to the extent that the

information described by Paragraph (A) is difficult to ascertain;

and

(4) the date of the transaction.

(c) A metal recycling entity shall preserve each record

required by this section until the second anniversary of the date

the record was made. The records must be maintained in an easily

retrievable format and must be available for inspection as provided

by Section 1956.135 not later than 72 hours after the time of

purchase or acquisition.

(d) A record containing the information described by

Subsection (b) that is maintained in accordance with other law or as

a routine business practice satisfies the requirements of

Subsection (a).

(e) The commission by rule shall prescribe the method by

which a metal recycling entity is required to document in a record

required by this section the type of seller, including a seller

listed in Section 1956.133, from which the entity purchased or

acquired copper or brass material.

(f) A metal recycling entity commits an offense if the

entity intentionally or knowingly fails to maintain a record as

required by this section. An offense under this subsection is a

Class A misdemeanor.

Sec. 1956.135. INSPECTION OF RECORDS. On request, a metal

recycling entity shall permit a peace officer, a representative of

the department, or a representative of a county, municipality, or

other political subdivision that issues a license or permit under

Section 1956.003(b) to, during the entity's usual business hours:

(1) enter the premises of the entity; and

(2) inspect a record required to be maintained by

Section 1956.134.

Sec. 1956.136. EFFECT ON LOCAL LAW. (a) Notwithstanding

Section 1956.003, a county, municipality, or political subdivision

of this state may not:

(1) with respect to copper or brass material, restrict

the purchase, acquisition, sale, transfer, or possession of the

material by a person described by Section 1956.133; or

(2) alter or add to the recordkeeping requirements

provided by Section 1956.134.

(b) Subsection (a) does not affect the authority of a

county, municipality, or political subdivision of this state to:

(1) issue a license or permit as provided by Section

1956.003; or

(2) inspect a record as provided by Section 1956.135.

Sec. 1956.137. ADMINISTRATIVE PENALTY. (a) The

commission may impose an administrative penalty under Subchapter R,

Chapter 411, Government Code, on a metal recycling entity that:

(1) violates Section 1956.133 due to the entity's

failure to exercise due diligence in purchasing or acquiring copper

or brass material; or

(2) violates Section 1956.134.

(b) The amount of the administrative penalty may not exceed

$10,000.

ARTICLE 3. TRANSITIONS; EFFECTIVE DATE

SECTION 3.01. As soon as practicable after the effective

date of this Act, the Public Safety Commission shall adopt rules

necessary to implement Subchapter C-2, Chapter 1956, Occupations

Code, as added by this Act.

SECTION 3.02. The changes in law made by this Act to

Sections 28.03 and 71.02, Penal Code, apply only to an offense

committed on or after September 1, 2025. An offense committed

before September 1, 2025, is governed by the law in effect on the

date 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 September 1, 2025, if any element of the

offense occurred before that date.

SECTION 3.03. This Act takes effect immediately if it

receives a vote of two-thirds of all the members elected to each

house, as provided by Section 39, Article III, Texas Constitution.

If this Act does not receive the vote necessary for immediate

effect, this Act takes effect September 1, 2025.