83R4649 GCB-F
By: Hinojosa S.B. No. 786
A BILL TO BE ENTITLED
AN ACT
relating to warrants issued to obtain location information from
wireless communications devices and to public access to law
enforcement or prosecutor requests for certain related location or
communication information.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 18.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be
issued to search for and seize:
(1) property acquired by theft or in any other manner
which makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for
or commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set
forth by law;
(7) a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance
property, including an apparatus or paraphernalia kept, prepared,
or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited
by law;
(9) implements or instruments used in the commission
of a crime;
(10) property or items, except the personal writings
by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;
(11) persons; [or]
(12) contraband subject to forfeiture under Chapter 59
of this code; or
(13) location information as defined by Article 18.21.
SECTION 2. Section 1, Article 18.21, Code of Criminal
Procedure, is amended by adding Subdivision (4-a) to read as
follows:
(4-a) "Location information" means any information
that:
(A) concerns the location of a cellular telephone
or other wireless communications device; and
(B) is wholly or partly generated by or derived
from the operation of the device.
SECTION 3. Section 2(g), Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
(g) At the request of the prosecutor or an authorized peace
officer, the [The] district court may [shall] seal an application
and order granted under this article. The application and order may
be sealed only for an initial period not to exceed 180 days, except
that for good cause shown the court may grant an additional 180-day
period. The court shall retain a record of any application made or
order granted under this article and submit the record to the
department in accordance with Section 17.
SECTION 4. Article 18.21, Code of Criminal Procedure, is
amended by adding Section 14A to read as follows:
Sec. 14A. WARRANT FOR LOCATION INFORMATION FROM CELLULAR
TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE. (a) A district
judge may issue a warrant for location information provided by the
preinstalled mobile tracking features of a cellular telephone or
other wireless communications device. A warrant under this section
may be issued only in the same judicial district as the site of:
(1) the investigation; or
(2) the person, vehicle, container, item, or object
the movement of which will be tracked by the location information
obtained from the wireless communications device.
(b) The warrant may authorize the acquisition of location
information obtained from a wireless communications device that, at
the time the location information is acquired, is located outside
the judicial district but within the state if the applicant for the
warrant reasonably believes the device to be located within the
district at the time the warrant is issued.
(c) A district judge may issue the warrant only on the
application of an authorized peace officer. An application must be
written and signed and sworn to or affirmed before the judge. The
affidavit must:
(1) state the name, department, agency, and address of
the applicant;
(2) identify the wireless communications device to be
monitored;
(3) state the name of the owner or possessor of the
device to be monitored;
(4) state the judicial district in which the device is
reasonably expected to be located; and
(5) state the facts and circumstances that provide the
applicant with probable cause to believe that:
(A) criminal activity has been, is, or will be
committed; and
(B) acquisition of location information from the
device is likely to produce evidence in a criminal investigation of
the criminal activity described in Paragraph (A).
(d) A warrant issued under this section must be executed
within the period provided by Article 18.07 by properly serving the
warrant on a communication common carrier or an electronic
communications service. A warrant issued under this section
expires not later than the 90th day after the date the warrant is
issued, and location information may not be obtained after the
expiration date without an extension of the warrant. For good cause
shown, the judge may grant an extension for an additional 90-day
period. The court shall retain a record of any application made or
order granted under this section and submit the record to the
department in accordance with Section 17.
(e) A wireless communications device may be monitored
without a warrant by a private entity or authorized peace officer
if:
(1) the device is reported stolen by the owner; or
(2) there exists an immediate life-threatening
situation.
(f) An authorized peace officer must apply for a warrant for
monitoring a wireless communications device under Subsection
(e)(2) as soon as practicable. If the district judge finds that an
immediate life-threatening situation did not occur and declines to
issue the warrant, any evidence obtained is not admissible in a
criminal action.
SECTION 5. Section 15(a), Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
(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
communication [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, excluding any location
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.
SECTION 6. Article 18.21, Code of Criminal Procedure, is
amended by adding Section 15A to read as follows:
Sec. 15A. COMPELLING PRODUCTION OF BUSINESS RECORDS
DISCLOSING LOCATION INFORMATION. On application by 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, the district court may
issue a warrant pursuant to Article 18.02 to a communication common
carrier or an electronic communications service to compel the
production of the carrier's or service's business records that
disclose location information about the carrier's or service's
customers or users of the services offered by the carrier or
service, if there is probable cause to believe the records
disclosing location information will provide evidence in a criminal
investigation.
SECTION 7. Article 18.21, Code of Criminal Procedure, is
amended by adding Section 17 to read as follows:
Sec. 17. ANNUAL REPORT OF WARRANTS AND ORDERS. (a) Not
later than January 15 of each year, a communication common carrier
or electronic communications service doing business in this state
shall report to the department the following information for the
preceding calendar year, disaggregated by each law enforcement
agency in this state making the applicable requests:
(1) the number of requests made for pen register or
trap and trace information;
(2) the number of requests made for ESN reader
information;
(3) the number of requests made for location
information;
(4) the number of individuals whose location
information was disclosed; and
(5) the amount that each law enforcement agency was
billed by the communication common carrier or electronic
communications service for each request made under Subdivision (1),
(2), or (3).
(b) Not later than the 30th day after the date of expiration
of a warrant or order issued under this article or an order
extending the period of a warrant or order issued under this
article, or not later than the 30th day after the date the court
denies an application for a warrant or order under this article, the
court shall submit to the department the following information, as
applicable:
(1) the receipt of an application for a warrant or
order under this article;
(2) the type of warrant or order for which the
application was made;
(3) whether any application for an order of extension
was granted, granted as modified by the court, or denied;
(4) the period of monitoring authorized by the warrant
or order and the number and duration of any extensions of the
warrant or order;
(5) the offense under investigation, as specified in
the application for the warrant or order or an extension of the
warrant or order; and
(6) the law enforcement agency or prosecutor that
submitted an application for the warrant or order or an extension of
the warrant or order.
(c) Not later than January 15 of each year, each prosecutor
that submits an application for a warrant or order or an extension
of a warrant or order under this article shall submit to the
department the following information for the preceding calendar
year:
(1) the information required to be submitted by a
court under Subsection (b) with respect to each application
submitted by the prosecutor for the warrant or order or an extension
of the warrant or order;
(2) a general description of information collected
under each warrant or order that was issued by the court, including
the approximate number of individuals for whom location information
was intercepted and the approximate duration of the monitoring of
the location information of those individuals;
(3) the number of arrests made as a result of
information obtained under a warrant or order issued under this
article;
(4) the number of criminal trials commenced as a
result of information obtained under a warrant or order issued
under this article; and
(5) the number of convictions obtained as a result of
information obtained under a warrant or order issued under this
article.
(d) Information submitted to the department under this
section is public information and subject to disclosure under
Chapter 552, Government Code.
(e) Not later than March 1 of each year, the public safety
director of the department shall submit a report to the governor,
the lieutenant governor, the speaker of the house of
representatives, and the chairs of the standing committees of the
senate and house of representatives with primary jurisdiction over
criminal justice. The report must contain the following
information for the preceding calendar year:
(1) an assessment of the extent of tracking or
monitoring by law enforcement agencies of pen register, trap and
trace, ESN reader, and location information;
(2) a comparison of the ratio of the number of
applications for warrants or orders made under this article to the
number of arrests and convictions resulting from information
obtained under a warrant or order issued under this article;
(3) identification of the types of offenses
investigated under a warrant or order issued under this article;
and
(4) with respect to both state and local
jurisdictions, an estimate of the total cost of conducting
investigations under a warrant or order issued under this article.
SECTION 8. This Act takes effect September 1, 2013.