84R3316 GCB-F
By: Hughes, Geren, Oliveira, Davis of Dallas, H.B. No. 2263
et al.
A BILL TO BE ENTITLED
AN ACT
relating to warrants or orders 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) 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;
(12) contraband subject to forfeiture under Chapter 59
of this code; [or]
(13) electronic customer data held in electronic
storage, including the contents of and records and other
information related to a wire communication or electronic
communication held in electronic storage; or
(14) location information.
(b) For purposes of Subsections [Subsection] (a)(13) and
(14), "electronic communication," "electronic storage," and "wire
communication" have the meanings assigned by Article 18.20, and
"electronic customer data" and "location information" have [has]
the meanings [meaning] assigned 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, Article 18.21, Code of Criminal
Procedure, is amended by amending Subsection (g) and adding
Subsection (g-1) to read as follows:
(g) At the request of the prosecutor or a peace officer, the
[The] district court may [shall] seal the [an] application and
order as provided by [granted under] this subsection. The
application and order may be sealed for an initial period not to
exceed 180 days. For good cause shown, the court may grant one or
more additional one-year periods. With respect to any application
that is or becomes subject to disclosure, on a judicial
determination that the disclosure of identifying information for a
person who is a victim, witness, peace officer, or informant would
cause an adverse result as defined by Section 8(b), the court shall
redact the identifying information from the application and from
the record of the application retained and submitted as described
by Subsection (g-1). On a showing of clear and convincing evidence
that disclosure of identifying personal information would cause an
adverse result, the court may permanently seal the application
[article].
(g-1) 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.
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
mobile tracking features of a cellular telephone or other wireless
communications device. A warrant under this section may be issued
in the same judicial district as, or in a judicial district that is
contiguous to 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 a 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, an electronic
communications service, or a remote computing 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.
(e) At the request of a peace officer, the district court
may seal the application and warrant as provided by this
subsection. The application and warrant may be sealed for an
initial period not to exceed 180 days. For good cause shown, the
court may grant one or more additional one-year periods. With
respect to any application that is or becomes subject to
disclosure, on a judicial determination that the disclosure of
identifying information for a person who is a victim, witness,
peace officer, or informant would cause an adverse result as
defined by Section 8(b), the court shall redact the identifying
information from the application and from the record of the
application retained and submitted as described by Subsection (f).
On a showing of clear and convincing evidence that disclosure of
identifying personal information would cause an adverse result, the
court may permanently seal the application.
(f) The court shall retain a record of any application made
or warrant issued under this section and submit the record to the
department in accordance with Section 17.
(g) Notwithstanding any other law, location information may
be obtained from a wireless communications device without a warrant
by:
(1) a private entity or a peace officer if the device
is reported stolen by the owner; or
(2) a peace officer if:
(A) there exists an immediate life-threatening
situation, as defined by Section 1(22), Article 18.20; or
(B) the officer reasonably believes the device is
in the possession of a fugitive from justice for whom an arrest
warrant has been issued for committing a felony offense.
(h) A peace officer may apply for, and a district court may
issue, an order authorizing the officer to obtain location
information from a wireless communications device on the officer's
showing that there are reasonable grounds to believe that the
device is in the possession of a fugitive from justice for whom an
arrest warrant has been issued for committing a felony offense.
(i) Regardless of whether an order has been issued with
respect to the matter under Subsection (h), a peace officer must
apply for a warrant to obtain location information from a wireless
communications device under Subsection (g)(2) as soon as
practicable. If the district judge finds that the applicable
situation under Subsection (g)(2) 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, or a remote computing 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 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, an electronic communications service, or a remote
computing 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 the 60th 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
60th 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.
(b) Not later than March 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 (a) 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.
(c) Information submitted to the department under this
section is public information and subject to disclosure under
Chapter 552, Government Code.
(d) Not later than June 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; and
(3) identification of the types of offenses
investigated under a warrant or order issued under this article.
SECTION 8. This Act takes effect September 1, 2015.