Texas 2011 - 82nd Regular

Texas House Bill HB1457 Compare Versions

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1	1	82R21244 SJM-F
2	2	By: Fletcher H.B. No. 1457
3	3	Substitute the following for H.B. No. 1457:
4	4	By: Pena C.S.H.B. No. 1457
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to interception of wire, oral, or electronic
10	10	communications for law enforcement purposes.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 1, Article 18.20, Code of Criminal
13	13	Procedure, is amended by amending Subdivisions (8), (9), and (14)
14	14	and adding Subdivision (27) to read as follows:
15	15	(8) "Prosecutor" means a district attorney, criminal
16	16	district attorney, district attorney's or criminal district
17	17	attorney's designee who is an assistant district attorney in the
18	18	designator's jurisdiction, or county attorney performing the
19	19	duties of a district attorney, with jurisdiction in the county
20	20	within an administrative judicial district described by Section
21	21	3(b).
22	22	(9) "Director" means the director of the Department of
23	23	Public Safety or the director's designee who is an executive
24	24	manager of [, if the director is absent or unable to serve, the
25	25	assistant director of] the Department of Public Safety.
26	26	(14) "Pen register," "ESN reader," "trap and trace
27	27	device," "designated law enforcement agency," and "mobile tracking
28	28	device" have the meanings assigned by Article 18.21.
29	29	(27) "Chief law enforcement officer" means:
30	30	(A) the head law enforcement officer of a
31	31	designated law enforcement agency that is authorized to act under
32	32	Section 5A, including the chief of police of a municipal police
33	33	department and the sheriff of a county; or
34	34	(B) the chief law enforcement officer's designee
35	35	who is an executive manager of the designated law enforcement
36	36	agency.
37	37	SECTION 2. Section 3(b), Article 18.20, Code of Criminal
38	38	Procedure, is amended to read as follows:
39	39	(b) Except as provided by Subsection (c), a judge appointed
40	40	under Subsection (a) may act on an application for authorization to
41	41	intercept wire, oral, or electronic communications if the judge is
42	42	appointed as the judge of competent jurisdiction within the
43	43	administrative judicial district in which the following is located:
44	44	(1) the site of:
45	45	(A) the proposed interception; or
46	46	(B) the interception device to be installed or
47	47	monitored;
48	48	(2) the communication device to be intercepted;
49	49	(3) the billing, residential, or business address of
50	50	the subscriber to the wire or electronic communications service to
51	51	be intercepted;
52	52	(4) the headquarters of the law enforcement agency
53	53	that makes a request for or executes an order authorizing an
54	54	interception; or
55	55	(5) the headquarters of the service provider.
56	56	SECTION 3. Sections 5(a) and (b), Article 18.20, Code of
57	57	Criminal Procedure, are amended to read as follows:
58	58	(a) Except as otherwise provided by this section and
59	59	Sections 8A and 8B, only the Department of Public Safety or, subject
60	60	to Section 5A, a designated law enforcement agency is authorized by
61	61	this article to own, possess, install, operate, or monitor an
62	62	electronic, mechanical, or other device. The Department of Public
63	63	Safety or designated law enforcement agency may be assisted by an
64	64	investigative or law enforcement officer or other person in the
65	65	operation and monitoring of an interception of wire, oral, or
66	66	electronic communications, provided that the officer or other
67	67	person:
68	68	(1) is designated by the director or a chief law
69	69	enforcement officer for that purpose; and
70	70	(2) acts in the presence and under the direction of:
71	71	(A) a commissioned officer of the Department of
72	72	Public Safety; or
73	73	(B) a commissioned officer of the designated law
74	74	enforcement agency who is trained for that purpose.
75	75	(b) The director or a chief law enforcement officer shall
76	76	designate in writing the commissioned officers of the Department of
77	77	Public Safety or designated law enforcement agency who are
78	78	responsible for the possession, installation, operation, and
79	79	monitoring of electronic, mechanical, or other devices for the
80	80	department or designated law enforcement agency.
81	81	SECTION 4. Article 18.20, Code of Criminal Procedure, is
82	82	amended by adding Section 5A to read as follows:
83	83	Sec. 5A. OVERSIGHT OF DESIGNATED LAW ENFORCEMENT AGENCIES
84	84	BY THE DEPARTMENT. (a) To be eligible to intercept a wire, oral, or
85	85	electronic communication under this article in a circumstance that
86	86	is not an immediate life-threatening situation, a designated law
87	87	enforcement agency must:
88	88	(1) adopt a written policy that addresses the
89	89	application of this article to the agency and details the agency's
90	90	protocol for intercepting wire, oral, or electronic
91	91	communications; and
92	92	(2) submit the policy to the director for approval.
93	93	(b) The director shall approve or deny a policy submitted
94	94	under Subsection (a). If the director approves a policy submitted
95	95	under Subsection (a), the chief law enforcement officer of the
96	96	designated law enforcement agency that submitted the policy shall
97	97	submit to the director a written list of the commissioned peace
98	98	officers of the agency who are authorized under Subsection (e) to
99	99	possess, install, monitor, or operate wire, oral, or electronic
100	100	communications interception equipment in a circumstance that is not
101	101	an immediate life-threatening situation.
102	102	(c) A designated law enforcement agency is authorized to
103	103	intercept wire, oral, or electronic communications under this
104	104	article in a circumstance that is not an immediate life-threatening
105	105	situation only if:
106	106	(1) the agency has complied with Subsections (a) and
107	107	(b); and
108	108	(2) the director has approved the agency's policy.
109	109	(d) The department may conduct an audit of a designated law
110	110	enforcement agency to ensure compliance with a written policy
111	111	adopted under Subsection (a) and with the other provisions of this
112	112	article. If after conducting an audit the department determines
113	113	that the designated law enforcement agency is not in compliance as
114	114	described by this subsection, the department shall notify the
115	115	agency in writing not later than the 30th day after the date of the
116	116	determination. If on the 90th day after the date the notice is
117	117	received the department determines that the agency is not in
118	118	compliance, the agency relinquishes the authority provided by this
119	119	article until the agency is in compliance.
120	120	(e) To be authorized to operate or monitor the interception
121	121	of a wire, oral, or electronic communication in a circumstance that
122	122	is not an immediate life-threatening situation, a commissioned
123	123	peace officer of a designated law enforcement agency must complete
124	124	at least 16 hours of training regarding the interception of such
125	125	communications. The chief law enforcement officer of the officer's
126	126	employing agency shall submit appropriate documentation of each
127	127	authorized peace officer's completion of training to the Commission
128	128	on Law Enforcement Officer Standards and Education.
129	129	(f) A designated law enforcement agency and the peace
130	130	officers of that agency are not authorized to intercept a wire,
131	131	oral, or electronic communication in an immediate life-threatening
132	132	situation except as provided by Section 8A.
133	133	SECTION 5. Section 6, Article 18.20, Code of Criminal
134	134	Procedure, is amended to read as follows:
135	135	Sec. 6. REQUEST FOR APPLICATION FOR INTERCEPTION. (a) The
136	136	director or a chief law enforcement officer may, based on written
137	137	affidavits, request in writing that a prosecutor apply for an order
138	138	authorizing interception of wire, oral, or electronic
139	139	communications.
140	140	(b) The head of a local law enforcement agency, other than a
141	141	designated law enforcement agency authorized to act under Section
142	142	5A, or, if the head of the local law enforcement agency is absent or
143	143	unable to serve, the acting head of the local law enforcement agency
144	144	may, based on written affidavits, request in writing that a
145	145	prosecutor apply for an order authorizing interception of wire,
146	146	oral, or electronic communications. Prior to the requesting of an
147	147	application under this subsection, the head of a local law
148	148	enforcement agency must submit the request and supporting
149	149	affidavits to the director or a chief law enforcement officer, who
150	150	shall make a finding in writing whether the request and supporting
151	151	affidavits establish that other investigative procedures have been
152	152	tried and failed or they reasonably appear unlikely to succeed or to
153	153	be too dangerous if tried, is feasible, is justifiable, and whether
154	154	the Department of Public Safety or designated law enforcement
155	155	agency, as applicable, has the necessary resources available. The
156	156	prosecutor may file the application only after a written positive
157	157	finding on all the above requirements by the director or a chief law
158	158	enforcement officer.
159	159	SECTION 6. Section 9(d), Article 18.20, Code of Criminal
160	160	Procedure, is amended to read as follows:
161	161	(d) An order entered pursuant to this section may not
162	162	authorize the interception of a wire, oral, or electronic
163	163	communication for longer than is necessary to achieve the objective
164	164	of the authorization and in no event may it authorize interception
165	165	for more than 30 days. The initial period of interception begins on
166	166	the earlier of the date the investigative or law enforcement
167	167	officer begins to intercept communications or the 10th day after
168	168	the date the interception order is entered. The issuing judge may
169	169	grant extensions of an order, but only on application for an
170	170	extension made in accordance with Section 8 and the court making the
171	171	findings required by Subsection (a). The period of extension may
172	172	not be longer than the authorizing judge deems necessary to achieve
173	173	the purposes for which it is granted and in no event may the
174	174	extension be for more than 30 days. To be valid, each order and
175	175	extension of an order must provide that the authorization to
176	176	intercept be executed as soon as practicable, be conducted in a way
177	177	that minimizes the interception of communications not otherwise
178	178	subject to interception under this article, and terminate on
179	179	obtaining the authorized objective or within 30 days, whichever
180	180	occurs sooner. If the intercepted communication is in code or a
181	181	foreign language and an expert in that code or language is not
182	182	reasonably available during the period of interception,
183	183	minimization may be accomplished as soon as practicable after the
184	184	interception.
185	185	SECTION 7. Section 15(c), Article 18.20, Code of Criminal
186	186	Procedure, is amended to read as follows:
187	187	(c) Any judge or prosecutor required to file a report with
188	188	the Administrative Office of the United States Courts shall forward
189	189	a copy of the [such] report to the director of the Department of
190	190	Public Safety. On or before March 1 of each year, the director
191	191	shall submit to the governor; lieutenant governor; speaker of the
192	192	house of representatives; chairman, senate jurisprudence
193	193	committee; and chairman, house of representatives criminal
194	194	jurisprudence committee a report of all intercepts as defined
195	195	herein conducted pursuant to this article and terminated during the
196	196	preceding calendar year. The [Such] report must [shall] include:
197	197	(1) the reports of judges and prosecuting attorneys
198	198	forwarded to the director as required in this section;
199	199	(2) the number of Department of Public Safety
200	200	personnel and designated law enforcement agency personnel
201	201	authorized to possess, install, or operate electronic, mechanical,
202	202	or other devices;
203	203	(3) the number of Department of Public Safety and
204	204	other law enforcement personnel who participated or engaged in the
205	205	seizure of intercepts pursuant to this article during the preceding
206	206	calendar year; and
207	207	(4) the total cost to the Department of Public Safety
208	208	and designated law enforcement agencies of all activities and
209	209	procedures relating to the seizure of intercepts during the
210	210	preceding calendar year, including costs of equipment, manpower,
211	211	and expenses incurred as compensation for use of facilities or
212	212	technical assistance provided to the department and designated law
213	213	enforcement agencies.
214	214	SECTION 8. (a) The changes in law made by this Act in
215	215	amending Sections 1, 3, 5, and 6 and adding Section 5A, Article
216	216	18.20, Code of Criminal Procedure, apply only to the interception
217	217	of wire, oral, or electronic communications on or after the
218	218	effective date of this Act. The interception of wire, oral, or
219	219	electronic communications before the effective date of this Act is
220	220	governed by the law in effect when the interception occurred, and
221	221	the former law is continued in effect for that purpose.
222	222	(b) The change in law made by this Act in amending Section 9,
223	223	Article 18.20, Code of Criminal Procedure, applies only to a court
224	224	order issued on or after the effective date of this Act. A court
225	225	order issued before the effective date of this Act is governed by
226	226	the law in effect on the date the court order was issued, and the
227	227	former law is continued in effect for that purpose.
228	228	SECTION 9. This Act takes effect September 1, 2011.