Texas 2013 - 83rd Regular

Texas Senate Bill SB188 Compare Versions

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1	1	By: Huffman S.B. No. 188
2	2	(In the Senate - Filed January 18, 2013; January 29, 2013,
3	3	read first time and referred to Committee on Criminal Justice;
4	4	March 13, 2013, reported favorably by the following vote: Yeas 6,
5	5	Nays 0; March 13, 2013, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to interception of wire, oral, or electronic
11	11	communications for law enforcement purposes.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Section 1, Article 18.20, Code of Criminal
14	14	Procedure, is amended by amending Subdivisions (8), (9), and (14)
15	15	and adding Subdivision (27) to read as follows:
16	16	(8) "Prosecutor" means a district attorney, criminal
17	17	district attorney, district attorney's or criminal district
18	18	attorney's designee who is an assistant district attorney in the
19	19	district attorney's or criminal district attorney's jurisdiction,
20	20	or county attorney performing the duties of a district attorney,
21	21	with jurisdiction in the county within an administrative judicial
22	22	district described by Section 3(b).
23	23	(9) "Director" means the director of the Department of
24	24	Public Safety or the director's designee who is an executive
25	25	manager of [, if the director is absent or unable to serve, the
26	26	assistant director of] the Department of Public Safety.
27	27	(14) "Pen register," "ESN reader," "trap and trace
28	28	device," "designated law enforcement agency," and "mobile tracking
29	29	device" have the meanings assigned by Article 18.21.
30	30	(27) "Chief law enforcement officer" means:
31	31	(A) the head law enforcement officer of a
32	32	designated law enforcement agency that is authorized to act under
33	33	Section 5A, including the chief of police of a municipal police
34	34	department and the sheriff of a county; or
35	35	(B) the chief law enforcement officer's designee
36	36	who is an executive manager of the designated law enforcement
37	37	agency.
38	38	SECTION 2. Subsection (b), Section 3, Article 18.20, Code
39	39	of Criminal Procedure, is amended to read as follows:
40	40	(b) Except as provided by Subsection (c), a judge appointed
41	41	under Subsection (a) may act on an application for authorization to
42	42	intercept wire, oral, or electronic communications if the judge is
43	43	appointed as the judge of competent jurisdiction within the
44	44	administrative judicial district in which the following is located:
45	45	(1) the site of:
46	46	(A) the proposed interception; or
47	47	(B) the interception device to be installed or
48	48	monitored;
49	49	(2) the communication device to be intercepted;
50	50	(3) the billing, residential, or business address of
51	51	the subscriber to the wire or electronic communications service to
52	52	be intercepted;
53	53	(4) the headquarters of the law enforcement agency
54	54	that makes a request for or executes an order authorizing an
55	55	interception; or
56	56	(5) the headquarters of the service provider.
57	57	SECTION 3. Subsections (a) and (b), Section 5, Article
58	58	18.20, Code of Criminal Procedure, are amended to read as follows:
59	59	(a) Except as otherwise provided by this section and
60	60	Sections 8A and 8B, only the Department of Public Safety or, subject
61	61	to Section 5A, a designated law enforcement agency is authorized by
62	62	this article to own, possess, install, operate, or monitor an
63	63	electronic, mechanical, or other device. The Department of Public
64	64	Safety or designated law enforcement agency may be assisted by an
65	65	investigative or law enforcement officer or other person in the
66	66	operation and monitoring of an interception of wire, oral, or
67	67	electronic communications, provided that the officer or other
68	68	person:
69	69	(1) is designated by the director or a chief law
70	70	enforcement officer for that purpose; and
71	71	(2) acts in the presence and under the direction of:
72	72	(A) a commissioned officer of the Department of
73	73	Public Safety; or
74	74	(B) a commissioned officer of the designated law
75	75	enforcement agency who is trained for that purpose.
76	76	(b) The director or a chief law enforcement officer shall
77	77	designate in writing the commissioned officers of the Department of
78	78	Public Safety or designated law enforcement agency who are
79	79	responsible for the possession, installation, operation, and
80	80	monitoring of electronic, mechanical, or other devices for the
81	81	department or designated law enforcement agency.
82	82	SECTION 4. Article 18.20, Code of Criminal Procedure, is
83	83	amended by adding Section 5A to read as follows:
84	84	Sec. 5A. OVERSIGHT OF DESIGNATED LAW ENFORCEMENT AGENCIES
85	85	BY THE DEPARTMENT. (a) To be eligible to intercept a wire, oral,
86	86	or electronic communication under this article in a circumstance
87	87	that is not an immediate life-threatening situation, a designated
88	88	law enforcement agency must:
89	89	(1) adopt a written policy that addresses the
90	90	application of this article to the agency and details the agency's
91	91	protocol for intercepting wire, oral, or electronic
92	92	communications; and
93	93	(2) submit the policy to the director for approval.
94	94	(b) The director shall approve or deny a policy submitted
95	95	under Subsection (a). If the director approves a policy submitted
96	96	under Subsection (a), the chief law enforcement officer of the
97	97	designated law enforcement agency that submitted the policy shall
98	98	submit to the director a written list of the commissioned peace
99	99	officers of the agency who are authorized under Subsection (e) to
100	100	possess, install, monitor, or operate wire, oral, or electronic
101	101	communications interception equipment in a circumstance that is not
102	102	an immediate life-threatening situation.
103	103	(c) A designated law enforcement agency is authorized to
104	104	intercept wire, oral, or electronic communications under this
105	105	article in a circumstance that is not an immediate life-threatening
106	106	situation only if:
107	107	(1) the agency has complied with Subsections (a) and
108	108	(b); and
109	109	(2) the director has approved the agency's policy.
110	110	(d) The Department of Public Safety may conduct an audit of
111	111	a designated law enforcement agency to ensure compliance with a
112	112	written policy adopted under Subsection (a) and with the other
113	113	provisions of this article. If after conducting an audit the
114	114	department determines that the designated law enforcement agency is
115	115	not in compliance as described by this subsection, the department
116	116	shall notify the agency in writing not later than the 30th day after
117	117	the date of the determination. If on the 90th day after the date the
118	118	notice is received the department determines that the agency is not
119	119	in compliance, the agency relinquishes the authority provided by
120	120	this article until the agency is in compliance.
121	121	(e) To be authorized to operate or monitor the interception
122	122	of a wire, oral, or electronic communication in a circumstance that
123	123	is not an immediate life-threatening situation, a commissioned
124	124	peace officer of a designated law enforcement agency must complete
125	125	at least 16 hours of training regarding the interception of such
126	126	communications. The chief law enforcement officer of the officer's
127	127	employing agency shall submit appropriate documentation of each
128	128	authorized peace officer's completion of training to the Commission
129	129	on Law Enforcement Officer Standards and Education.
130	130	(f) A designated law enforcement agency and the peace
131	131	officers of that agency are not authorized to intercept a wire,
132	132	oral, or electronic communication in an immediate life-threatening
133	133	situation except as provided by Section 8A.
134	134	SECTION 5. Section 6, Article 18.20, Code of Criminal
135	135	Procedure, is amended to read as follows:
136	136	Sec. 6. REQUEST FOR APPLICATION FOR INTERCEPTION. (a) The
137	137	director or a chief law enforcement officer may, based on written
138	138	affidavits, request in writing that a prosecutor apply for an order
139	139	authorizing interception of wire, oral, or electronic
140	140	communications.
141	141	(b) The head of a local law enforcement agency, other than a
142	142	designated law enforcement agency authorized to act under Section
143	143	5A, or, if the head of the local law enforcement agency is absent or
144	144	unable to serve, the acting head of the local law enforcement agency
145	145	may, based on written affidavits, request in writing that a
146	146	prosecutor apply for an order authorizing interception of wire,
147	147	oral, or electronic communications. Prior to the requesting of an
148	148	application under this subsection, the head of a local law
149	149	enforcement agency must submit the request and supporting
150	150	affidavits to the director or a chief law enforcement officer, who
151	151	shall make a finding in writing whether the request and supporting
152	152	affidavits establish that other investigative procedures have been
153	153	tried and failed or they reasonably appear unlikely to succeed or to
154	154	be too dangerous if tried, is feasible, is justifiable, and whether
155	155	the Department of Public Safety or designated law enforcement
156	156	agency, as applicable, has the necessary resources available. The
157	157	prosecutor may file the application only after a written positive
158	158	finding on all the above requirements by the director or a chief law
159	159	enforcement officer.
160	160	SECTION 6. Subsection (d), Section 9, Article 18.20, Code
161	161	of Criminal Procedure, is amended to read as follows:
162	162	(d) An order entered pursuant to this section may not
163	163	authorize the interception of a wire, oral, or electronic
164	164	communication for longer than is necessary to achieve the objective
165	165	of the authorization and in no event may it authorize interception
166	166	for more than 30 days. The initial period of interception begins on
167	167	the earlier of the date the investigative or law enforcement
168	168	officer begins to intercept communications or the 10th day after
169	169	the date the interception order is entered. The issuing judge may
170	170	grant extensions of an order, but only on application for an
171	171	extension made in accordance with Section 8 and the court making the
172	172	findings required by Subsection (a). The period of extension may
173	173	not be longer than the authorizing judge deems necessary to achieve
174	174	the purposes for which it is granted and in no event may the
175	175	extension be for more than 30 days. To be valid, each order and
176	176	extension of an order must provide that the authorization to
177	177	intercept be executed as soon as practicable, be conducted in a way
178	178	that minimizes the interception of communications not otherwise
179	179	subject to interception under this article, and terminate on
180	180	obtaining the authorized objective or within 30 days, whichever
181	181	occurs sooner. If the intercepted communication is in code or a
182	182	foreign language and an expert in that code or language is not
183	183	reasonably available during the period of interception,
184	184	minimization may be accomplished as soon as practicable after the
185	185	interception.
186	186	SECTION 7. Subsection (c), Section 15, Article 18.20, Code
187	187	of Criminal Procedure, is amended to read as follows:
188	188	(c) Any judge or prosecutor required to file a report with
189	189	the Administrative Office of the United States Courts shall forward
190	190	a copy of the [such] report to the director of the Department of
191	191	Public Safety. On or before March 1 of each year, the director
192	192	shall submit to the governor; lieutenant governor; speaker of the
193	193	house of representatives; chairman, senate jurisprudence
194	194	committee; and chairman, house of representatives criminal
195	195	jurisprudence committee a report of all intercepts as defined
196	196	herein conducted pursuant to this article and terminated during the
197	197	preceding calendar year. The [Such] report must [shall] include:
198	198	(1) the reports of judges and prosecuting attorneys
199	199	forwarded to the director as required in this section;
200	200	(2) the number of Department of Public Safety
201	201	personnel and designated law enforcement agency personnel
202	202	authorized to possess, install, or operate electronic, mechanical,
203	203	or other devices;
204	204	(3) the number of Department of Public Safety and
205	205	other law enforcement personnel who participated or engaged in the
206	206	seizure of intercepts pursuant to this article during the preceding
207	207	calendar year; and
208	208	(4) the total cost to the Department of Public Safety
209	209	and designated law enforcement agencies of all activities and
210	210	procedures relating to the seizure of intercepts during the
211	211	preceding calendar year, including costs of equipment, manpower,
212	212	and expenses incurred as compensation for use of facilities or
213	213	technical assistance provided to the department and designated law
214	214	enforcement agencies.
215	215	SECTION 8. (a) The changes in law made by this Act in
216	216	amending Sections 1, 3, 5, and 6 and adding Section 5A, Article
217	217	18.20, Code of Criminal Procedure, apply only to the interception
218	218	of wire, oral, or electronic communications on or after the
219	219	effective date of this Act. The interception of wire, oral, or
220	220	electronic communications before the effective date of this Act is
221	221	governed by the law in effect when the interception occurred, and
222	222	the former law is continued in effect for that purpose.
223	223	(b) The change in law made by this Act in amending Section 9,
224	224	Article 18.20, Code of Criminal Procedure, applies only to a court
225	225	order issued on or after the effective date of this Act. A court
226	226	order issued before the effective date of this Act is governed by
227	227	the law in effect on the date the court order was issued, and the
228	228	former law is continued in effect for that purpose.
229	229	SECTION 9. This Act takes effect September 1, 2013.
230	230	* * * * *