Texas 2015 - 84th Regular

Texas House Bill HB2263 Compare Versions

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1	1	84R3316 GCB-F
2	2	By: Hughes, Geren, Oliveira, Davis of Dallas, H.B. No. 2263
3	3	et al.
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to warrants or orders issued to obtain location
9	9	information from wireless communications devices and to public
10	10	access to law enforcement or prosecutor requests for certain
11	11	related location or communication information.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Article 18.02, Code of Criminal Procedure, is
14	14	amended to read as follows:
15	15	Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may
16	16	be issued to search for and seize:
17	17	(1) property acquired by theft or in any other manner
18	18	which makes its acquisition a penal offense;
19	19	(2) property specially designed, made, or adapted for
20	20	or commonly used in the commission of an offense;
21	21	(3) arms and munitions kept or prepared for the
22	22	purposes of insurrection or riot;
23	23	(4) weapons prohibited by the Penal Code;
24	24	(5) gambling devices or equipment, altered gambling
25	25	equipment, or gambling paraphernalia;
26	26	(6) obscene materials kept or prepared for commercial
27	27	distribution or exhibition, subject to the additional rules set
28	28	forth by law;
29	29	(7) a drug, controlled substance, immediate
30	30	precursor, chemical precursor, or other controlled substance
31	31	property, including an apparatus or paraphernalia kept, prepared,
32	32	or manufactured in violation of the laws of this state;
33	33	(8) any property the possession of which is prohibited
34	34	by law;
35	35	(9) implements or instruments used in the commission
36	36	of a crime;
37	37	(10) property or items, except the personal writings
38	38	by the accused, constituting evidence of an offense or constituting
39	39	evidence tending to show that a particular person committed an
40	40	offense;
41	41	(11) persons;
42	42	(12) contraband subject to forfeiture under Chapter 59
43	43	of this code; [or]
44	44	(13) electronic customer data held in electronic
45	45	storage, including the contents of and records and other
46	46	information related to a wire communication or electronic
47	47	communication held in electronic storage; or
48	48	(14) location information.
49	49	(b) For purposes of Subsections [Subsection] (a)(13) and
50	50	(14), "electronic communication," "electronic storage," and "wire
51	51	communication" have the meanings assigned by Article 18.20, and
52	52	"electronic customer data" and "location information" have [has]
53	53	the meanings [meaning] assigned by Article 18.21.
54	54	SECTION 2. Section 1, Article 18.21, Code of Criminal
55	55	Procedure, is amended by adding Subdivision (4-a) to read as
56	56	follows:
57	57	(4-a) "Location information" means any information
58	58	that:
59	59	(A) concerns the location of a cellular telephone
60	60	or other wireless communications device; and
61	61	(B) is wholly or partly generated by or derived
62	62	from the operation of the device.
63	63	SECTION 3. Section 2, Article 18.21, Code of Criminal
64	64	Procedure, is amended by amending Subsection (g) and adding
65	65	Subsection (g-1) to read as follows:
66	66	(g) At the request of the prosecutor or a peace officer, the
67	67	[The] district court may [shall] seal the [an] application and
68	68	order as provided by [granted under] this subsection. The
69	69	application and order may be sealed for an initial period not to
70	70	exceed 180 days. For good cause shown, the court may grant one or
71	71	more additional one-year periods. With respect to any application
72	72	that is or becomes subject to disclosure, on a judicial
73	73	determination that the disclosure of identifying information for a
74	74	person who is a victim, witness, peace officer, or informant would
75	75	cause an adverse result as defined by Section 8(b), the court shall
76	76	redact the identifying information from the application and from
77	77	the record of the application retained and submitted as described
78	78	by Subsection (g-1). On a showing of clear and convincing evidence
79	79	that disclosure of identifying personal information would cause an
80	80	adverse result, the court may permanently seal the application
81	81	[article].
82	82	(g-1) The court shall retain a record of any application
83	83	made or order granted under this section and submit the record to
84	84	the department in accordance with Section 17.
85	85	SECTION 4. Article 18.21, Code of Criminal Procedure, is
86	86	amended by adding Section 14A to read as follows:
87	87	Sec. 14A. WARRANT FOR LOCATION INFORMATION FROM CELLULAR
88	88	TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE. (a) A district
89	89	judge may issue a warrant for location information provided by the
90	90	mobile tracking features of a cellular telephone or other wireless
91	91	communications device. A warrant under this section may be issued
92	92	in the same judicial district as, or in a judicial district that is
93	93	contiguous to the same judicial district as, the site of:
94	94	(1) the investigation; or
95	95	(2) the person, vehicle, container, item, or object
96	96	the movement of which will be tracked by the location information
97	97	obtained from the wireless communications device.
98	98	(b) The warrant may authorize the acquisition of location
99	99	information obtained from a wireless communications device that, at
100	100	the time the location information is acquired, is located outside
101	101	the judicial district but within the state if the applicant for the
102	102	warrant reasonably believes the device to be located within the
103	103	district at the time the warrant is issued.
104	104	(c) A district judge may issue the warrant only on the
105	105	application of a peace officer. An application must be written and
106	106	signed and sworn to or affirmed before the judge. The affidavit
107	107	must:
108	108	(1) state the name, department, agency, and address of
109	109	the applicant;
110	110	(2) identify the wireless communications device to be
111	111	monitored;
112	112	(3) state the name of the owner or possessor of the
113	113	device to be monitored;
114	114	(4) state the judicial district in which the device is
115	115	reasonably expected to be located; and
116	116	(5) state the facts and circumstances that provide the
117	117	applicant with probable cause to believe that:
118	118	(A) criminal activity has been, is, or will be
119	119	committed; and
120	120	(B) acquisition of location information from the
121	121	device is likely to produce evidence in a criminal investigation of
122	122	the criminal activity described in Paragraph (A).
123	123	(d) A warrant issued under this section must be executed
124	124	within the period provided by Article 18.07 by properly serving the
125	125	warrant on a communication common carrier, an electronic
126	126	communications service, or a remote computing service. A warrant
127	127	issued under this section expires not later than the 90th day after
128	128	the date the warrant is issued, and location information may not be
129	129	obtained after the expiration date without an extension of the
130	130	warrant. For good cause shown, the judge may grant an extension for
131	131	an additional 90-day period.
132	132	(e) At the request of a peace officer, the district court
133	133	may seal the application and warrant as provided by this
134	134	subsection. The application and warrant may be sealed for an
135	135	initial period not to exceed 180 days. For good cause shown, the
136	136	court may grant one or more additional one-year periods. With
137	137	respect to any application that is or becomes subject to
138	138	disclosure, on a judicial determination that the disclosure of
139	139	identifying information for a person who is a victim, witness,
140	140	peace officer, or informant would cause an adverse result as
141	141	defined by Section 8(b), the court shall redact the identifying
142	142	information from the application and from the record of the
143	143	application retained and submitted as described by Subsection (f).
144	144	On a showing of clear and convincing evidence that disclosure of
145	145	identifying personal information would cause an adverse result, the
146	146	court may permanently seal the application.
147	147	(f) The court shall retain a record of any application made
148	148	or warrant issued under this section and submit the record to the
149	149	department in accordance with Section 17.
150	150	(g) Notwithstanding any other law, location information may
151	151	be obtained from a wireless communications device without a warrant
152	152	by:
153	153	(1) a private entity or a peace officer if the device
154	154	is reported stolen by the owner; or
155	155	(2) a peace officer if:
156	156	(A) there exists an immediate life-threatening
157	157	situation, as defined by Section 1(22), Article 18.20; or
158	158	(B) the officer reasonably believes the device is
159	159	in the possession of a fugitive from justice for whom an arrest
160	160	warrant has been issued for committing a felony offense.
161	161	(h) A peace officer may apply for, and a district court may
162	162	issue, an order authorizing the officer to obtain location
163	163	information from a wireless communications device on the officer's
164	164	showing that there are reasonable grounds to believe that the
165	165	device is in the possession of a fugitive from justice for whom an
166	166	arrest warrant has been issued for committing a felony offense.
167	167	(i) Regardless of whether an order has been issued with
168	168	respect to the matter under Subsection (h), a peace officer must
169	169	apply for a warrant to obtain location information from a wireless
170	170	communications device under Subsection (g)(2) as soon as
171	171	practicable. If the district judge finds that the applicable
172	172	situation under Subsection (g)(2) did not occur and declines to
173	173	issue the warrant, any evidence obtained is not admissible in a
174	174	criminal action.
175	175	SECTION 5. Section 15(a), Article 18.21, Code of Criminal
176	176	Procedure, is amended to read as follows:
177	177	(a) The director of the department or the director's
178	178	designee, the inspector general of the Texas Department of Criminal
179	179	Justice or the inspector general's designee, or the sheriff or
180	180	chief of a [designated] law enforcement agency or the sheriff's or
181	181	chief's designee may issue an administrative subpoena to a
182	182	communication [communications] common carrier, [or] an electronic
183	183	communications service, or a remote computing service to compel the
184	184	production of the carrier's or service's business records that:
185	185	(1) disclose information, excluding any location
186	186	information, about:
187	187	(A) the carrier's or service's customers; or
188	188	(B) users of the services offered by the carrier
189	189	or service; and
190	190	(2) are material to a criminal investigation.
191	191	SECTION 6. Article 18.21, Code of Criminal Procedure, is
192	192	amended by adding Section 15A to read as follows:
193	193	Sec. 15A. COMPELLING PRODUCTION OF BUSINESS RECORDS
194	194	DISCLOSING LOCATION INFORMATION. On application by the director of
195	195	the department or the director's designee, the inspector general of
196	196	the Texas Department of Criminal Justice or the inspector general's
197	197	designee, or the sheriff or chief of a law enforcement agency or the
198	198	sheriff's or chief's designee, the district court may issue a
199	199	warrant pursuant to Article 18.02 to a communication common
200	200	carrier, an electronic communications service, or a remote
201	201	computing service to compel the production of the carrier's or
202	202	service's business records that disclose location information
203	203	about the carrier's or service's customers or users of the
204	204	services offered by the carrier or service, if there is probable
205	205	cause to believe the records disclosing location information will
206	206	provide evidence in a criminal investigation.
207	207	SECTION 7. Article 18.21, Code of Criminal Procedure, is
208	208	amended by adding Section 17 to read as follows:
209	209	Sec. 17. ANNUAL REPORT OF WARRANTS AND ORDERS. (a) Not
210	210	later than the 60th day after the date of expiration of a warrant or
211	211	order issued under this article or an order extending the period of
212	212	a warrant or order issued under this article, or not later than the
213	213	60th day after the date the court denies an application for a
214	214	warrant or order under this article, the court shall submit to the
215	215	department the following information, as applicable:
216	216	(1) the receipt of an application for a warrant or
217	217	order under this article;
218	218	(2) the type of warrant or order for which the
219	219	application was made;
220	220	(3) whether any application for an order of extension
221	221	was granted, granted as modified by the court, or denied;
222	222	(4) the period of monitoring authorized by the warrant
223	223	or order and the number and duration of any extensions of the
224	224	warrant or order;
225	225	(5) the offense under investigation, as specified in
226	226	the application for the warrant or order or an extension of the
227	227	warrant or order; and
228	228	(6) the law enforcement agency or prosecutor that
229	229	submitted an application for the warrant or order or an extension of
230	230	the warrant or order.
231	231	(b) Not later than March 15 of each year, each prosecutor
232	232	that submits an application for a warrant or order or an extension
233	233	of a warrant or order under this article shall submit to the
234	234	department the following information for the preceding calendar
235	235	year:
236	236	(1) the information required to be submitted by a
237	237	court under Subsection (a) with respect to each application
238	238	submitted by the prosecutor for the warrant or order or an extension
239	239	of the warrant or order;
240	240	(2) a general description of information collected
241	241	under each warrant or order that was issued by the court, including
242	242	the approximate number of individuals for whom location information
243	243	was intercepted and the approximate duration of the monitoring of
244	244	the location information of those individuals;
245	245	(3) the number of arrests made as a result of
246	246	information obtained under a warrant or order issued under this
247	247	article;
248	248	(4) the number of criminal trials commenced as a
249	249	result of information obtained under a warrant or order issued
250	250	under this article; and
251	251	(5) the number of convictions obtained as a result of
252	252	information obtained under a warrant or order issued under this
253	253	article.
254	254	(c) Information submitted to the department under this
255	255	section is public information and subject to disclosure under
256	256	Chapter 552, Government Code.
257	257	(d) Not later than June 1 of each year, the public safety
258	258	director of the department shall submit a report to the governor,
259	259	the lieutenant governor, the speaker of the house of
260	260	representatives, and the chairs of the standing committees of the
261	261	senate and house of representatives with primary jurisdiction over
262	262	criminal justice. The report must contain the following
263	263	information for the preceding calendar year:
264	264	(1) an assessment of the extent of tracking or
265	265	monitoring by law enforcement agencies of pen register, trap and
266	266	trace, ESN reader, and location information;
267	267	(2) a comparison of the ratio of the number of
268	268	applications for warrants or orders made under this article to the
269	269	number of arrests and convictions resulting from information
270	270	obtained under a warrant or order issued under this article; and
271	271	(3) identification of the types of offenses
272	272	investigated under a warrant or order issued under this article.
273	273	SECTION 8. This Act takes effect September 1, 2015.