Texas 2011 - 82nd Regular

Texas House Bill HB2354 Compare Versions

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1	1	By: Madden (Senate Sponsor - Whitmire) H.B. No. 2354
2	2	(In the Senate - Received from the House April 26, 2011;
3	3	April 29, 2011, read first time and referred to Committee on
4	4	Criminal Justice; May 12, 2011, reported favorably by the
5	5	following vote: Yeas 7, Nays 0; May 12, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the installation and use of a pen register, ESN reader,
11	11	trap and trace device, mobile tracking device, or similar equipment
12	12	in a correctional facility operated by or under contract with the
13	13	Texas Department of Criminal Justice.
14	14	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
15	15	SECTION 1. Sections 1(2) and (3-a), Article 18.21, Code of
16	16	Criminal Procedure, are amended to read as follows:
17	17	(2) "Authorized peace officer" means:
18	18	(A) a sheriff or a sheriff's deputy;
19	19	(B) a constable or deputy constable;
20	20	(C) a marshal or police officer of an
21	21	incorporated city;
22	22	(D) a ranger or officer commissioned by the
23	23	Public Safety Commission or the director of the Department of
24	24	Public Safety;
25	25	(E) an investigator of a prosecutor's office;
26	26	(F) a law enforcement agent of the Alcoholic
27	27	Beverage Commission;
28	28	(G) a law enforcement officer commissioned by the
29	29	Parks and Wildlife Commission; or
30	30	(H) an enforcement officer appointed by the
31	31	inspector general [executive director] of the Texas Department of
32	32	Criminal Justice under Section 493.019, Government Code.
33	33	(3-a) "Designated law enforcement office or agency"
34	34	means:
35	35	(A) the sheriff's department of a county with a
36	36	population of 3.3 million or more; [or]
37	37	(B) a police department in a municipality with a
38	38	population of 500,000 or more; or
39	39	(C) the office of inspector general of the Texas
40	40	Department of Criminal Justice.
41	41	SECTION 2. Sections 2(b), (d), (e), (i), (j), (k), (l), and
42	42	(m), Article 18.21, Code of Criminal Procedure, are amended to read
43	43	as follows:
44	44	(b) A prosecutor may file an application under this section
45	45	or under federal law on the prosecutor's own motion or on the
46	46	request of an authorized peace officer, regardless of whether the
47	47	officer is commissioned by the department. A prosecutor who files
48	48	an application on the prosecutor's own motion or who files an
49	49	application for the installation and use of a pen register, ESN
50	50	reader, or similar equipment on the request of an authorized peace
51	51	officer not commissioned by the department, other than an
52	52	authorized peace officer employed by a designated law enforcement
53	53	office or agency, must make the application personally and may not
54	54	do so through an assistant or some other person acting on the
55	55	prosecutor's behalf. A prosecutor may make an application through
56	56	an assistant or other person acting on the prosecutor's behalf if
57	57	the prosecutor files an application for the installation and use
58	58	of:
59	59	(1) a pen register, ESN reader, or similar equipment
60	60	on the request of:
61	61	(A) an authorized peace officer who is
62	62	commissioned by the department; or
63	63	(B) an authorized peace officer of a designated
64	64	law enforcement office or agency; or
65	65	(2) a trap and trace device or similar equipment on the
66	66	request of an authorized peace officer, regardless of whether the
67	67	officer is commissioned by the department.
68	68	(d) On presentation of the application, the judge may order
69	69	the installation and use of the pen register, ESN reader, or similar
70	70	equipment by an authorized peace officer commissioned by the
71	71	department or an authorized peace officer of a designated law
72	72	enforcement office or agency, and, on request of the applicant, the
73	73	judge shall direct in the order that a communication common carrier
74	74	or a provider of electronic communications service furnish all
75	75	information, facilities, and technical assistance necessary to
76	76	facilitate the installation and use of the device or equipment by
77	77	the department or designated law enforcement office or agency
78	78	unobtrusively and with a minimum of interference to the services
79	79	provided by the carrier or service. The carrier or service is
80	80	entitled to compensation at the prevailing rates for the facilities
81	81	and assistance provided to the department or a designated law
82	82	enforcement office or agency.
83	83	(e) On presentation of the application, the judge may order
84	84	the installation and use of the trap and trace device or similar
85	85	equipment by the communication common carrier or other person on
86	86	the appropriate line. The judge may direct the communication
87	87	common carrier or other person, including any landlord or other
88	88	custodian of equipment, to furnish all information, facilities, and
89	89	technical assistance necessary to install or use the device or
90	90	equipment unobtrusively and with a minimum of interference to the
91	91	services provided by the communication common carrier, landlord,
92	92	custodian, or other person. Unless otherwise ordered by the court,
93	93	the results of the trap and trace device or similar equipment shall
94	94	be furnished to the applicant, designated by the court, at
95	95	reasonable intervals during regular business hours, for the
96	96	duration of the order. The carrier is entitled to compensation at
97	97	the prevailing rates for the facilities and assistance provided to
98	98	the designated law enforcement office or agency.
99	99	(i) A peace officer of a designated law enforcement office
100	100	or agency is authorized to possess, install, operate, or monitor a
101	101	pen register, ESN reader, or similar equipment if the officer's
102	102	name is on the list submitted to the director of the department
103	103	under Subsection (k).
104	104	(j) Each designated law enforcement office or agency shall:
105	105	(1) adopt a written policy governing the application
106	106	of this article to the office or agency; and
107	107	(2) submit the policy to the director of the
108	108	department, or the director's designee, for approval.
109	109	(k) If the director of the department or the director's
110	110	designee approves the policy submitted under Subsection (j), the
111	111	inspector general of the Texas Department of Criminal Justice or
112	112	the inspector general's designee, or the sheriff or chief of a
113	113	designated law enforcement agency[, as applicable,] or the
114	114	sheriff's or chief's designee, as applicable, shall submit to the
115	115	director a written list of all officers in the designated law
116	116	enforcement office or agency who are authorized to possess,
117	117	install, monitor, or operate pen registers, ESN readers, or similar
118	118	equipment.
119	119	(l) The department may conduct an audit of a designated law
120	120	enforcement office or agency to ensure compliance with this
121	121	article. If the department determines from the audit that the
122	122	designated law enforcement office or agency is not in compliance
123	123	with the policy adopted by the office or agency under Subsection
124	124	(j), the department shall notify the office or agency in writing
125	125	that it is not in compliance. If the department determines that the
126	126	office or agency still is not in compliance with the policy 90 days
127	127	after the date the office or agency receives written notice under
128	128	this subsection, the office or agency loses the authority granted
129	129	by this article until:
130	130	(1) the office or agency adopts a new written policy
131	131	governing the application of this article to the office or agency;
132	132	and
133	133	(2) the department approves the written policy.
134	134	(m) The inspector general of the Texas Department of
135	135	Criminal Justice or the sheriff or chief of a designated law
136	136	enforcement agency, as applicable, shall submit to the director of
137	137	the department a written report of expenditures made by the
138	138	designated law enforcement office or agency for the purchase and
139	139	maintenance of a pen register, ESN reader, or similar equipment,
140	140	authorized under this article [pursuant to Subsection (i)]. The
141	141	director of the department shall report those [such] expenditures
142	142	publicly on an annual basis via the department's website, or other
143	143	comparable means.
144	144	SECTION 3. Section 6(e), Article 18.21, Code of Criminal
145	145	Procedure, is amended to read as follows:
146	146	(e) The service provider may not destroy or permit the
147	147	destruction of the copy until the information has been delivered to
148	148	the designated law enforcement office or agency or until the
149	149	resolution of any court proceedings, including appeals of any
150	150	proceedings, relating to the subpoena or court order requesting the
151	151	creation of the copy, whichever occurs last.
152	152	SECTION 4. Section 6(g)(2), Article 18.21, Code of Criminal
153	153	Procedure, is amended to read as follows:
154	154	(2) The subscriber or customer shall give written
155	155	notice to the service provider of the challenge to the subpoena or
156	156	court order. The authorized peace officer or designated law
157	157	enforcement office or agency requesting the subpoena or court order
158	158	shall be served a copy of the papers filed by personal delivery or
159	159	by registered or certified mail.
160	160	SECTION 5. Section 15, Article 18.21, Code of Criminal
161	161	Procedure, is amended to read as follows:
162	162	Sec. 15. SUBPOENA AUTHORITY. (a) The director of the
163	163	department or [,] the director's designee, the inspector general of
164	164	the Texas Department of Criminal Justice or the inspector general's
165	165	designee, or the sheriff or chief of a designated law enforcement
166	166	agency[,] or the sheriff's or chief's designee[,] may issue an
167	167	administrative subpoena to a communications common carrier or an
168	168	electronic communications service to compel the production of the
169	169	carrier's or service's business records that:
170	170	(1) disclose information about:
171	171	(A) the carrier's or service's customers; or
172	172	(B) users of the services offered by the carrier
173	173	or service; and
174	174	(2) are material to a criminal investigation.
175	175	(b) Not later than the 30th day after the date on which the
176	176	administrative subpoena is issued under Subsection (a), the
177	177	inspector general of the Texas Department of Criminal Justice or
178	178	the sheriff or chief of a designated law enforcement agency, as
179	179	applicable, shall report the issuance of the subpoena to the
180	180	department.
181	181	(c) If, based on reports received under Subsection (b), the
182	182	department determines that a designated law enforcement office or
183	183	agency is not in compliance with the policy adopted by the office or
184	184	agency under Section 2(j), the department shall notify the office
185	185	or agency in writing that it is not in compliance. If the
186	186	department determines that the office or agency still is not in
187	187	compliance with the policy 90 days after the date the office or
188	188	agency receives written notice under this subsection, the office or
189	189	agency loses the authority granted by this article until:
190	190	(1) the office or agency adopts a new written policy
191	191	governing the application of this article to the office or agency;
192	192	and
193	193	(2) the department approves the written policy.
194	194	SECTION 6. This Act takes effect September 1, 2011.
195	195	* * * * *