By: Madden (Senate Sponsor - Whitmire) H.B. No. 2354
(In the Senate - Received from the House April 26, 2011;
April 29, 2011, read first time and referred to Committee on
Criminal Justice; May 12, 2011, reported favorably by the
following vote: Yeas 7, Nays 0; May 12, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the installation and use of a pen register, ESN reader,
trap and trace device, mobile tracking device, or similar equipment
in a correctional facility operated by or under contract with the
Texas Department of Criminal Justice.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 1(2) and (3-a), Article 18.21, Code of
Criminal Procedure, are amended to read as follows:
(2) "Authorized peace officer" means:
(A) a sheriff or a sheriff's deputy;
(B) a constable or deputy constable;
(C) a marshal or police officer of an
incorporated city;
(D) a ranger or officer commissioned by the
Public Safety Commission or the director of the Department of
Public Safety;
(E) an investigator of a prosecutor's office;
(F) a law enforcement agent of the Alcoholic
Beverage Commission;
(G) a law enforcement officer commissioned by the
Parks and Wildlife Commission; or
(H) an enforcement officer appointed by the
inspector general [executive director] of the Texas Department of
Criminal Justice under Section 493.019, Government Code.
(3-a) "Designated law enforcement office or agency"
means:
(A) the sheriff's department of a county with a
population of 3.3 million or more; [or]
(B) a police department in a municipality with a
population of 500,000 or more; or
(C) the office of inspector general of the Texas
Department of Criminal Justice.
SECTION 2. Sections 2(b), (d), (e), (i), (j), (k), (l), and
(m), Article 18.21, Code of Criminal Procedure, are amended to read
as follows:
(b) A prosecutor may file an application under this section
or under federal law on the prosecutor's own motion or on the
request of an authorized peace officer, regardless of whether the
officer is commissioned by the department. A prosecutor who files
an application on the prosecutor's own motion or who files an
application for the installation and use of a pen register, ESN
reader, or similar equipment on the request of an authorized peace
officer not commissioned by the department, other than an
authorized peace officer employed by a designated law enforcement
office or agency, must make the application personally and may not
do so through an assistant or some other person acting on the
prosecutor's behalf. A prosecutor may make an application through
an assistant or other person acting on the prosecutor's behalf if
the prosecutor files an application for the installation and use
of:
(1) a pen register, ESN reader, or similar equipment
on the request of:
(A) an authorized peace officer who is
commissioned by the department; or
(B) an authorized peace officer of a designated
law enforcement office or agency; or
(2) a trap and trace device or similar equipment on the
request of an authorized peace officer, regardless of whether the
officer is commissioned by the department.
(d) On presentation of the application, the judge may order
the installation and use of the pen register, ESN reader, or similar
equipment by an authorized peace officer commissioned by the
department or an authorized peace officer of a designated law
enforcement office or agency, and, on request of the applicant, the
judge shall direct in the order that a communication common carrier
or a provider of electronic communications service furnish all
information, facilities, and technical assistance necessary to
facilitate the installation and use of the device or equipment by
the department or designated law enforcement office or agency
unobtrusively and with a minimum of interference to the services
provided by the carrier or service. The carrier or service is
entitled to compensation at the prevailing rates for the facilities
and assistance provided to the department or a designated law
enforcement office or agency.
(e) On presentation of the application, the judge may order
the installation and use of the trap and trace device or similar
equipment by the communication common carrier or other person on
the appropriate line. The judge may direct the communication
common carrier or other person, including any landlord or other
custodian of equipment, to furnish all information, facilities, and
technical assistance necessary to install or use the device or
equipment unobtrusively and with a minimum of interference to the
services provided by the communication common carrier, landlord,
custodian, or other person. Unless otherwise ordered by the court,
the results of the trap and trace device or similar equipment shall
be furnished to the applicant, designated by the court, at
reasonable intervals during regular business hours, for the
duration of the order. The carrier is entitled to compensation at
the prevailing rates for the facilities and assistance provided to
the designated law enforcement office or agency.
(i) A peace officer of a designated law enforcement office
or agency is authorized to possess, install, operate, or monitor a
pen register, ESN reader, or similar equipment if the officer's
name is on the list submitted to the director of the department
under Subsection (k).
(j) Each designated law enforcement office or agency shall:
(1) adopt a written policy governing the application
of this article to the office or agency; and
(2) submit the policy to the director of the
department, or the director's designee, for approval.
(k) If the director of the department or the director's
designee approves the policy submitted under Subsection (j), the
inspector general of the Texas Department of Criminal Justice or
the inspector general's designee, or the sheriff or chief of a
designated law enforcement agency[, as applicable,] or the
sheriff's or chief's designee, as applicable, shall submit to the
director a written list of all officers in the designated law
enforcement office or agency who are authorized to possess,
install, monitor, or operate pen registers, ESN readers, or similar
equipment.
(l) The department may conduct an audit of a designated law
enforcement office or agency to ensure compliance with this
article. If the department determines from the audit that the
designated law enforcement office or agency is not in compliance
with the policy adopted by the office or agency under Subsection
(j), the department shall notify the office or agency in writing
that it is not in compliance. If the department determines that the
office or agency still is not in compliance with the policy 90 days
after the date the office or agency receives written notice under
this subsection, the office or agency loses the authority granted
by this article until:
(1) the office or agency adopts a new written policy
governing the application of this article to the office or agency;
and
(2) the department approves the written policy.
(m) The inspector general of the Texas Department of
Criminal Justice or the sheriff or chief of a designated law
enforcement agency, as applicable, shall submit to the director of
the department a written report of expenditures made by the
designated law enforcement office or agency for the purchase and
maintenance of a pen register, ESN reader, or similar equipment,
authorized under this article [pursuant to Subsection (i)]. The
director of the department shall report those [such] expenditures
publicly on an annual basis via the department's website, or other
comparable means.
SECTION 3. Section 6(e), Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
(e) The service provider may not destroy or permit the
destruction of the copy until the information has been delivered to
the designated law enforcement office or agency or until the
resolution of any court proceedings, including appeals of any
proceedings, relating to the subpoena or court order requesting the
creation of the copy, whichever occurs last.
SECTION 4. Section 6(g)(2), Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
(2) The subscriber or customer shall give written
notice to the service provider of the challenge to the subpoena or
court order. The authorized peace officer or designated law
enforcement office or agency requesting the subpoena or court order
shall be served a copy of the papers filed by personal delivery or
by registered or certified mail.
SECTION 5. Section 15, Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
Sec. 15. SUBPOENA AUTHORITY. (a) The director of the
department or [,] the director's designee, the inspector general of
the Texas Department of Criminal Justice or the inspector general's
designee, or the sheriff or chief of a designated law enforcement
agency[,] or the sheriff's or chief's designee[,] may issue an
administrative subpoena to a communications common carrier or an
electronic communications service to compel the production of the
carrier's or service's business records that:
(1) disclose information about:
(A) the carrier's or service's customers; or
(B) users of the services offered by the carrier
or service; and
(2) are material to a criminal investigation.
(b) Not later than the 30th day after the date on which the
administrative subpoena is issued under Subsection (a), the
inspector general of the Texas Department of Criminal Justice or
the sheriff or chief of a designated law enforcement agency, as
applicable, shall report the issuance of the subpoena to the
department.
(c) If, based on reports received under Subsection (b), the
department determines that a designated law enforcement office or
agency is not in compliance with the policy adopted by the office or
agency under Section 2(j), the department shall notify the office
or agency in writing that it is not in compliance. If the
department determines that the office or agency still is not in
compliance with the policy 90 days after the date the office or
agency receives written notice under this subsection, the office or
agency loses the authority granted by this article until:
(1) the office or agency adopts a new written policy
governing the application of this article to the office or agency;
and
(2) the department approves the written policy.
SECTION 6. This Act takes effect September 1, 2011.
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