83R10722 GCB-D
By: Wu H.B. No. 2841
A BILL TO BE ENTITLED
AN ACT
relating to interception of wire, oral, or electronic
communications for law enforcement purposes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1, Article 18.20, Code of Criminal
Procedure, is amended by amending Subdivisions (8), (9), (14), and
(22) and adding Subdivision (27) to read as follows:
(8) "Prosecutor" means a district attorney, criminal
district attorney, district attorney's or criminal district
attorney's designee who is an assistant district attorney in the
designator's jurisdiction, or county attorney performing the
duties of a district attorney, with jurisdiction in the county
within an administrative judicial district described by Section
3(b).
(9) "Director" means the director of the Department of
Public Safety or the director's designee who is an executive
manager of [, if the director is absent or unable to serve, the
assistant director of] the Department of Public Safety.
(14) "Pen register," "ESN reader," "trap and trace
device," "designated law enforcement agency," and "mobile tracking
device" have the meanings assigned by Article 18.21.
(22) "Immediate life-threatening situation" means an
[a hostage, barricade, or other] emergency situation that involves
an immediate danger of [in which a person unlawfully and directly:
[(A) threatens another with] death[;] or
[(B) exposes another to a substantial risk of]
serious bodily injury.
(27) "Chief law enforcement officer" means:
(A) the head law enforcement officer of a
designated law enforcement agency that is authorized to act under
Section 5A, including the chief of police of a municipal police
department and the sheriff of a county; or
(B) the chief law enforcement officer's designee
who is an executive manager of the designated law enforcement
agency.
SECTION 2. Section 3(b), Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
(b) Except as provided by Subsection (c), a judge appointed
under Subsection (a) may act on an application for authorization to
intercept wire, oral, or electronic communications if the judge is
appointed as the judge of competent jurisdiction within the
administrative judicial district in which the following is located:
(1) the site of:
(A) the proposed interception; or
(B) the interception device to be installed or
monitored;
(2) the communication device to be intercepted;
(3) the billing, residential, or business address of
the subscriber to the wire or electronic communications service to
be intercepted;
(4) the headquarters of the law enforcement agency
that makes a request for or executes an order authorizing an
interception; or
(5) the headquarters of the service provider.
SECTION 3. Sections 5(a) and (b), Article 18.20, Code of
Criminal Procedure, are amended to read as follows:
(a) Except as otherwise provided by this section and
Sections 8A and 8B, only the Department of Public Safety or, subject
to Section 5A, a designated law enforcement agency is authorized by
this article to own, possess, install, operate, or monitor an
electronic, mechanical, or other device. The Department of Public
Safety or designated law enforcement agency may be assisted by an
investigative or law enforcement officer or other person in the
operation and monitoring of an interception of wire, oral, or
electronic communications, provided that the officer or other
person:
(1) is designated by the director or a chief law
enforcement officer for that purpose; and
(2) acts in the presence and under the direction of:
(A) a commissioned officer of the Department of
Public Safety; or
(B) a commissioned officer of the designated law
enforcement agency who is trained for that purpose.
(b) The director or a chief law enforcement officer shall
designate in writing the commissioned officers of the Department of
Public Safety or designated law enforcement agency who are
responsible for the possession, installation, operation, and
monitoring of electronic, mechanical, or other devices for the
department or designated law enforcement agency.
SECTION 4. Article 18.20, Code of Criminal Procedure, is
amended by adding Section 5A to read as follows:
Sec. 5A. OVERSIGHT OF DESIGNATED LAW ENFORCEMENT AGENCIES
BY THE DEPARTMENT. (a) To be eligible to intercept a wire, oral, or
electronic communication under this article in a circumstance that
is not an immediate life-threatening situation, a designated law
enforcement agency must:
(1) adopt a written policy that addresses the
application of this article to the agency and details the agency's
protocol for intercepting wire, oral, or electronic
communications; and
(2) submit the policy to the director for approval.
(b) The director shall approve or deny a policy submitted
under Subsection (a). If the director approves a policy submitted
under Subsection (a), the chief law enforcement officer of the
designated law enforcement agency that submitted the policy shall
submit to the director a written list of the commissioned peace
officers of the agency who are authorized under Subsection (e) to
possess, install, monitor, or operate wire, oral, or electronic
communications interception equipment in a circumstance that is not
an immediate life-threatening situation.
(c) A designated law enforcement agency is authorized to
intercept wire, oral, or electronic communications under this
article in a circumstance that is not an immediate life-threatening
situation only if:
(1) the agency has complied with Subsections (a) and
(b); and
(2) the director has approved the agency's policy.
(d) The department may conduct an audit of a designated law
enforcement agency to ensure compliance with a written policy
adopted under Subsection (a) and with the other provisions of this
article. If after conducting an audit the department determines
that the designated law enforcement agency is not in compliance as
described by this subsection, the department shall notify the
agency in writing not later than the 30th day after the date of the
determination. If on the 90th day after the date the notice is
received the department determines that the agency is not in
compliance, the agency relinquishes the authority provided by this
article until the agency is in compliance.
(e) To be authorized to operate or monitor the interception
of a wire, oral, or electronic communication in a circumstance that
is not an immediate life-threatening situation, a commissioned
peace officer of a designated law enforcement agency must complete
at least 16 hours of training regarding the interception of such
communications. The chief law enforcement officer of the officer's
employing agency shall submit appropriate documentation of each
authorized peace officer's completion of training to the Commission
on Law Enforcement Officer Standards and Education.
(f) A designated law enforcement agency and the peace
officers of that agency are not authorized to intercept a wire,
oral, or electronic communication in an immediate life-threatening
situation except as provided by Section 8A.
SECTION 5. Section 6, Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
Sec. 6. REQUEST FOR APPLICATION FOR INTERCEPTION. (a) The
director or a chief law enforcement officer may, based on written
affidavits, request in writing that a prosecutor apply for an order
authorizing interception of wire, oral, or electronic
communications.
(b) The head of a local law enforcement agency, other than a
designated law enforcement agency authorized to act under Section
5A, or, if the head of the local law enforcement agency is absent or
unable to serve, the acting head of the local law enforcement agency
may, based on written affidavits, request in writing that a
prosecutor apply for an order authorizing interception of wire,
oral, or electronic communications. Prior to the requesting of an
application under this subsection, the head of a local law
enforcement agency must submit the request and supporting
affidavits to the director or a chief law enforcement officer, who
shall make a finding in writing whether the request and supporting
affidavits establish that other investigative procedures have been
tried and failed or they reasonably appear unlikely to succeed or to
be too dangerous if tried, is feasible, is justifiable, and whether
the Department of Public Safety or designated law enforcement
agency, as applicable, has the necessary resources available. The
prosecutor may file the application only after a written positive
finding on all the above requirements by the director or a chief law
enforcement officer.
SECTION 6. Section 9(d), Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
(d) An order entered pursuant to this section may not
authorize the interception of a wire, oral, or electronic
communication for longer than is necessary to achieve the objective
of the authorization and in no event may it authorize interception
for more than 30 days. The initial period of interception begins on
the earlier of the date the investigative or law enforcement
officer begins to intercept communications or the 10th day after
the date the interception order is entered. The issuing judge may
grant extensions of an order, but only on application for an
extension made in accordance with Section 8 and the court making the
findings required by Subsection (a). The period of extension may
not be longer than the authorizing judge deems necessary to achieve
the purposes for which it is granted and in no event may the
extension be for more than 30 days. To be valid, each order and
extension of an order must provide that the authorization to
intercept be executed as soon as practicable, be conducted in a way
that minimizes the interception of communications not otherwise
subject to interception under this article, and terminate on
obtaining the authorized objective or within 30 days, whichever
occurs sooner. If the intercepted communication is in code or a
foreign language and an expert in that code or language is not
reasonably available during the period of interception,
minimization may be accomplished as soon as practicable after the
interception.
SECTION 7. Section 15(c), Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
(c) Any judge or prosecutor required to file a report with
the Administrative Office of the United States Courts shall forward
a copy of the [such] report to the director of the Department of
Public Safety. On or before March 1 of each year, the director
shall submit to the governor; lieutenant governor; speaker of the
house of representatives; chairman, senate jurisprudence
committee; and chairman, house of representatives criminal
jurisprudence committee a report of all intercepts as defined
herein conducted pursuant to this article and terminated during the
preceding calendar year. The [Such] report must [shall] include:
(1) the reports of judges and prosecuting attorneys
forwarded to the director as required in this section;
(2) the number of Department of Public Safety
personnel and designated law enforcement agency personnel
authorized to possess, install, or operate electronic, mechanical,
or other devices;
(3) the number of Department of Public Safety and
other law enforcement personnel who participated or engaged in the
seizure of intercepts pursuant to this article during the preceding
calendar year; and
(4) the total cost to the Department of Public Safety
and designated law enforcement agencies of all activities and
procedures relating to the seizure of intercepts during the
preceding calendar year, including costs of equipment, manpower,
and expenses incurred as compensation for use of facilities or
technical assistance provided to the department and designated law
enforcement agencies.
SECTION 8. Section 1, Article 18.21, Code of Criminal
Procedure, is amended by amending Subdivision (1) and adding
Subdivision (4-a) to read as follows:
(1) "Aural transfer," "communication common carrier,"
"computer trespasser," "electronic communication," "electronic
communications service," "electronic communications system,"
"electronic storage," ["immediate life-threatening situation,"]
"member of a law enforcement unit specially trained to respond to
and deal with life-threatening situations," "readily accessible to
the general public," "user," and "wire communication" have the
meanings assigned by Article 18.20.
(4-a) "Immediate life-threatening situation" means a
hostage, barricade, or other emergency situation in which a person
unlawfully and directly:
(A) threatens another with death; or
(B) exposes another to a substantial risk of
serious bodily injury.
SECTION 9. (a) The changes in law made by this Act in
amending Sections 1, 3, 5, and 6 and adding Section 5A, Article
18.20, Code of Criminal Procedure, apply only to the interception
of wire, oral, or electronic communications on or after the
effective date of this Act. The interception of wire, oral, or
electronic communications before the effective date of this Act is
governed by the law in effect when the interception occurred, and
the former law is continued in effect for that purpose.
(b) The change in law made by this Act in amending Section 9,
Article 18.20, Code of Criminal Procedure, applies only to a court
order issued on or after the effective date of this Act. A court
order issued before the effective date of this Act is governed by
the law in effect on the date the court order was issued, and the
former law is continued in effect for that purpose.
SECTION 10. This Act takes effect September 1, 2013.