Texas 2011 - 82nd Regular

Texas Senate Bill SB687 Compare Versions

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1	1	By: Huffman S.B. No. 687
2	2	(Fletcher)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to interception of wire, oral, or electronic
8	8	communications for law enforcement purposes.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 1, Article 18.20, Code of Criminal
11	11	Procedure, is amended by amending Subdivisions (8), (9), and (14)
12	12	and adding Subdivision (27) to read as follows:
13	13	(8) "Prosecutor" means a district attorney, criminal
14	14	district attorney, district attorney's or criminal district
15	15	attorney's designee who is an assistant district attorney in the
16	16	designator's jurisdiction, or county attorney performing the
17	17	duties of a district attorney, with jurisdiction in the county
18	18	within an administrative judicial district described by Section
19	19	3(b).
20	20	(9) "Director" means the director of the Department of
21	21	Public Safety or the director's designee who is an executive
22	22	manager of[, if the director is absent or unable to serve, the
23	23	assistant director of] the Department of Public Safety.
24	24	(14) "Pen register," "ESN reader," "trap and trace
25	25	device," "designated law enforcement agency," and "mobile tracking
26	26	device" have the meanings assigned by Article 18.21.
27	27	(27) "Chief law enforcement officer" means:
28	28	(A) the head law enforcement officer of a
29	29	designated law enforcement agency that is authorized to act under
30	30	Section 5A, including the chief of police of a municipal police
31	31	department and the sheriff of a county; or
32	32	(B) the chief law enforcement officer's designee
33	33	who is an executive manager of the designated law enforcement
34	34	agency.
35	35	SECTION 2. Subsection (b), Section 3, Article 18.20, Code
36	36	of Criminal Procedure, is amended to read as follows:
37	37	(b) Except as provided by Subsection (c), a judge appointed
38	38	under Subsection (a) may act on an application for authorization to
39	39	intercept wire, oral, or electronic communications if the judge is
40	40	appointed as the judge of competent jurisdiction within the
41	41	administrative judicial district in which the following is located:
42	42	(1) the site of:
43	43	(A) the proposed interception; or
44	44	(B) the interception device to be installed or
45	45	monitored;
46	46	(2) the communication device to be intercepted;
47	47	(3) the billing, residential, or business address of
48	48	the subscriber to the wire or electronic communications service to
49	49	be intercepted;
50	50	(4) the headquarters of the law enforcement agency
51	51	that makes a request for or executes an order authorizing an
52	52	interception; or
53	53	(5) the headquarters of the service provider.
54	54	SECTION 3. Subsections (a) and (b), Section 5, Article
55	55	18.20, Code of Criminal Procedure, are amended to read as follows:
56	56	(a) Except as otherwise provided by this section and
57	57	Sections 8A and 8B, only the Department of Public Safety or, subject
58	58	to Section 5A, a designated law enforcement agency is authorized by
59	59	this article to own, possess, install, operate, or monitor an
60	60	electronic, mechanical, or other device. The Department of Public
61	61	Safety or designated law enforcement agency may be assisted by an
62	62	investigative or law enforcement officer or other person in the
63	63	operation and monitoring of an interception of wire, oral, or
64	64	electronic communications, provided that the officer or other
65	65	person:
66	66	(1) is designated by the director or a chief law
67	67	enforcement officer for that purpose; and
68	68	(2) acts in the presence and under the direction of:
69	69	(A) a commissioned officer of the Department of
70	70	Public Safety; or
71	71	(B) a commissioned officer of the designated law
72	72	enforcement agency who is trained for that purpose.
73	73	(b) The director or a chief law enforcement officer shall
74	74	designate in writing the commissioned officers of the Department of
75	75	Public Safety or designated law enforcement agency who are
76	76	responsible for the possession, installation, operation, and
77	77	monitoring of electronic, mechanical, or other devices for the
78	78	department or designated law enforcement agency.
79	79	SECTION 4. Article 18.20, Code of Criminal Procedure, is
80	80	amended by adding Section 5A to read as follows:
81	81	Sec. 5A. OVERSIGHT OF DESIGNATED LAW ENFORCEMENT AGENCIES
82	82	BY THE DEPARTMENT. (a) To be eligible to intercept a wire, oral,
83	83	or electronic communication under this article in a circumstance
84	84	that is not an immediate life-threatening situation, a designated
85	85	law enforcement agency must:
86	86	(1) adopt a written policy that addresses the
87	87	application of this article to the agency and details the agency's
88	88	protocol for intercepting wire, oral, or electronic
89	89	communications; and
90	90	(2) submit the policy to the director for approval.
91	91	(b) The director shall approve or deny a policy submitted
92	92	under Subsection (a). If the director approves a policy submitted
93	93	under Subsection (a), the chief law enforcement officer of the
94	94	designated law enforcement agency that submitted the policy shall
95	95	submit to the director a written list of the commissioned peace
96	96	officers of the agency who are authorized under Subsection (e) to
97	97	possess, install, monitor, or operate wire, oral, or electronic
98	98	communications interception equipment in a circumstance that is not
99	99	an immediate life-threatening situation.
100	100	(c) A designated law enforcement agency is authorized to
101	101	intercept wire, oral, or electronic communications under this
102	102	article in a circumstance that is not an immediate life-threatening
103	103	situation only if:
104	104	(1) the agency has complied with Subsections (a) and
105	105	(b); and
106	106	(2) the director has approved the agency's policy.
107	107	(d) The department may conduct an audit of a designated law
108	108	enforcement agency to ensure compliance with a written policy
109	109	adopted under Subsection (a) and with the other provisions of this
110	110	article. If after conducting an audit the department determines
111	111	that the designated law enforcement agency is not in compliance as
112	112	described by this subsection, the department shall notify the
113	113	agency in writing not later than the 30th day after the date of the
114	114	determination. If on the 90th day after the date the notice is
115	115	received the department determines that the agency is not in
116	116	compliance, the agency relinquishes the authority provided by this
117	117	article until the agency is in compliance.
118	118	(e) To be authorized to operate or monitor the interception
119	119	of a wire, oral, or electronic communication in a circumstance that
120	120	is not an immediate life-threatening situation, a commissioned
121	121	peace officer of a designated law enforcement agency must complete
122	122	at least 16 hours of training regarding the interception of such
123	123	communications. The chief law enforcement officer of the officer's
124	124	employing agency shall submit appropriate documentation of each
125	125	authorized peace officer's completion of training to the Commission
126	126	on Law Enforcement Officer Standards and Education.
127	127	(f) A designated law enforcement agency and the peace
128	128	officers of that agency are not authorized to intercept a wire,
129	129	oral, or electronic communication in an immediate life-threatening
130	130	situation except as provided by Section 8A.
131	131	SECTION 5. Section 6, Article 18.20, Code of Criminal
132	132	Procedure, is amended to read as follows:
133	133	Sec. 6. REQUEST FOR APPLICATION FOR INTERCEPTION. (a) The
134	134	director or a chief law enforcement officer may, based on written
135	135	affidavits, request in writing that a prosecutor apply for an order
136	136	authorizing interception of wire, oral, or electronic
137	137	communications.
138	138	(b) The head of a local law enforcement agency, other than a
139	139	designated law enforcement agency authorized to act under Section
140	140	5A, or, if the head of the local law enforcement agency is absent or
141	141	unable to serve, the acting head of the local law enforcement agency
142	142	may, based on written affidavits, request in writing that a
143	143	prosecutor apply for an order authorizing interception of wire,
144	144	oral, or electronic communications. Prior to the requesting of an
145	145	application under this subsection, the head of a local law
146	146	enforcement agency must submit the request and supporting
147	147	affidavits to the director or a chief law enforcement officer, who
148	148	shall make a finding in writing whether the request and supporting
149	149	affidavits establish that other investigative procedures have been
150	150	tried and failed or they reasonably appear unlikely to succeed or to
151	151	be too dangerous if tried, is feasible, is justifiable, and whether
152	152	the Department of Public Safety or designated law enforcement
153	153	agency, as applicable, has the necessary resources available. The
154	154	prosecutor may file the application only after a written positive
155	155	finding on all the above requirements by the director or a chief law
156	156	enforcement officer.
157	157	SECTION 6. Subsection (d), Section 9, Article 18.20, Code
158	158	of Criminal Procedure, is amended to read as follows:
159	159	(d) An order entered pursuant to this section may not
160	160	authorize the interception of a wire, oral, or electronic
161	161	communication for longer than is necessary to achieve the objective
162	162	of the authorization and in no event may it authorize interception
163	163	for more than 30 days. The initial period of interception begins on
164	164	the earlier of the date the investigative or law enforcement
165	165	officer begins to intercept communications or the 10th day after
166	166	the date the interception order is entered. The issuing judge may
167	167	grant extensions of an order, but only on application for an
168	168	extension made in accordance with Section 8 and the court making the
169	169	findings required by Subsection (a). The period of extension may
170	170	not be longer than the authorizing judge deems necessary to achieve
171	171	the purposes for which it is granted and in no event may the
172	172	extension be for more than 30 days. To be valid, each order and
173	173	extension of an order must provide that the authorization to
174	174	intercept be executed as soon as practicable, be conducted in a way
175	175	that minimizes the interception of communications not otherwise
176	176	subject to interception under this article, and terminate on
177	177	obtaining the authorized objective or within 30 days, whichever
178	178	occurs sooner. If the intercepted communication is in code or a
179	179	foreign language and an expert in that code or language is not
180	180	reasonably available during the period of interception,
181	181	minimization may be accomplished as soon as practicable after the
182	182	interception.
183	183	SECTION 7. Subsection (c), Section 15, Article 18.20, Code
184	184	of Criminal Procedure, is amended to read as follows:
185	185	(c) Any judge or prosecutor required to file a report with
186	186	the Administrative Office of the United States Courts shall forward
187	187	a copy of the [such] report to the director of the Department of
188	188	Public Safety. On or before March 1 of each year, the director
189	189	shall submit to the governor; lieutenant governor; speaker of the
190	190	house of representatives; chairman, senate jurisprudence
191	191	committee; and chairman, house of representatives criminal
192	192	jurisprudence committee a report of all intercepts as defined
193	193	herein conducted pursuant to this article and terminated during the
194	194	preceding calendar year. The [Such] report must [shall] include:
195	195	(1) the reports of judges and prosecuting attorneys
196	196	forwarded to the director as required in this section;
197	197	(2) the number of Department of Public Safety
198	198	personnel and designated law enforcement agency personnel
199	199	authorized to possess, install, or operate electronic, mechanical,
200	200	or other devices;
201	201	(3) the number of Department of Public Safety and
202	202	other law enforcement personnel who participated or engaged in the
203	203	seizure of intercepts pursuant to this article during the preceding
204	204	calendar year; and
205	205	(4) the total cost to the Department of Public Safety
206	206	and designated law enforcement agencies of all activities and
207	207	procedures relating to the seizure of intercepts during the
208	208	preceding calendar year, including costs of equipment, manpower,
209	209	and expenses incurred as compensation for use of facilities or
210	210	technical assistance provided to the department and designated law
211	211	enforcement agencies.
212	212	SECTION 8. (a) The changes in law made by this Act in
213	213	amending Sections 1, 3, 5, and 6 and adding Section 5A, Article
214	214	18.20, Code of Criminal Procedure, apply only to the interception
215	215	of wire, oral, or electronic communications on or after the
216	216	effective date of this Act. The interception of wire, oral, or
217	217	electronic communications before the effective date of this Act is
218	218	governed by the law in effect when the interception occurred, and
219	219	the former law is continued in effect for that purpose.
220	220	(b) The change in law made by this Act in amending Section 9,
221	221	Article 18.20, Code of Criminal Procedure, applies only to a court
222	222	order issued on or after the effective date of this Act. A court
223	223	order issued before the effective date of this Act is governed by
224	224	the law in effect on the date the court order was issued, and the
225	225	former law is continued in effect for that purpose.
226	226	SECTION 9. This Act takes effect September 1, 2011.