84R1142 GCB-F
By: Estes, Ellis S.B. No. 942
A BILL TO BE ENTITLED
AN ACT
relating to warrants or orders issued to obtain certain information
through installation or use of global positioning system wireless
device trackers, international mobile subscriber identity
locators, or other devices or equipment, and to public access to law
enforcement or prosecutor requests for certain related location or
communication information; creating an offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 18.02(a), Code of Criminal Procedure, is
amended to read as follows:
(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 as defined by Article 18.21.
SECTION 2. Section 1(14), Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
(14) "Global positioning system wireless device
tracker," "international mobile subscriber identity locator," "pen
["Pen] register," "ESN reader," "trap and trace device," and
"mobile tracking device" have the meanings assigned by Article
18.21.
SECTION 3. Section 9(c), Article 18.20, Code of Criminal
Procedure, is amended to read as follows:
(c) On request of the applicant for an order authorizing the
interception of a wire, oral, or electronic communication, the
judge may issue a separate order directing that a provider of a wire
or electronic communications service or remote computing service, a
communication common carrier, landlord, custodian, or other person
furnish the applicant all information, facilities, and technical
assistance necessary to accomplish the interception unobtrusively
and with a minimum of interference with the services that the
provider, carrier, landlord, custodian, or other person is
providing the person whose communications are to be intercepted.
Any provider of a wire or electronic communications service or
remote computing service, communication common carrier, landlord,
custodian, or other person furnishing facilities or technical
assistance is entitled to compensation by the applicant for
reasonable expenses incurred in providing the facilities or
assistance at the prevailing rates. The interception order may
include an order to:
(1) install or use a global positioning system
wireless device tracker, international mobile subscriber identity
locator, pen register, ESN reader, trap and trace device, or mobile
tracking device, or a similar device or equipment [that combines
the function of a pen register and trap and trace device]; or
(2) disclose a stored communication, information
subject to an administrative subpoena, or information subject to
access under Article 18.21[, Code of Criminal Procedure].
SECTION 4. The heading to Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
Art. 18.21. GLOBAL POSITIONING SYSTEM WIRELESS DEVICE
TRACKERS, INTERNATIONAL MOBILE SUBSCRIBER IDENTITY LOCATORS, PEN
REGISTERS, ESN READERS, AND TRAP AND TRACE DEVICES; ACCESS TO
STORED COMMUNICATIONS; MOBILE TRACKING DEVICES
SECTION 5. Section 1, Article 18.21, Code of Criminal
Procedure, is amended by amending Subdivisions (4) and (5) and
adding Subdivisions (4-a), (4-b), and (4-c) to read as follows:
(4) "ESN reader" means a device that records the
electronic serial number from the data track of a [wireless
telephone,] cellular telephone[,] or other wireless communications
[similar communication] device that transmits its operational
status to a base site, if the device does not intercept the contents
of a communication.
(4-a) "Global positioning system wireless device
tracker" means any device, program, or application that uses a
satellite-based navigation system to obtain location information
from a cellular telephone or other wireless communications device.
(4-b) "International mobile subscriber identity
locator" means a device that:
(A) connects to a cellular telephone or other
wireless communications device in the same manner as a cellular
telephone tower connects to a cellular telephone or other wireless
communications device; and
(B) obtains or reveals location information
about or the identity of a subscriber or customer of a communication
common carrier, an electronic communications service, or a remote
computing service from the cellular telephone or other wireless
communications device.
(4-c) "Location information" means any information
that concerns the location of a cellular telephone or other
wireless communications device and is wholly or partly generated by
or derived from the operation of the telephone or device. The term
includes information regarding the current or past location of the
cellular telephone or other wireless communications device.
(5) "Mobile tracking device" means an electronic or
mechanical device that permits tracking the movement of a person,
vehicle, container, item, or object. The term does not include a
global positioning system wireless device tracker.
SECTION 6. Section 2, Article 18.21, Code of Criminal
Procedure, is amended by amending Subsections (a), (b), (c), (d),
(e), (f), (g), (i), (k), and (m) and adding Subsections (a-1) and
(g-1) to read as follows:
(a) A prosecutor with jurisdiction in a county within a
judicial district described by Subsection (a-1) [this subsection]
may file [an application for the installation and use of a pen
register, ESN reader, trap and trace device, or similar equipment
that combines the function of a pen register and a trap and trace
device] with a district judge in the judicial district an
application for the installation or use of:
(1) a global positioning system wireless device
tracker;
(2) an international mobile subscriber identity
locator;
(3) a pen register;
(4) an ESN reader;
(5) a trap and trace device; or
(6) a similar device or equipment.
(a-1) The judicial district in which an application may be
filed under Subsection (a) must be a district in which is located:
(1) the site of the proposed installation or use of the
device or equipment described by Subsection (a);
(2) the site of the cellular telephone, wireless
communications device, or other communication device on which the
device or equipment described by Subsection (a) is proposed to be
installed or used;
(3) the billing, residential, or business address of
the subscriber or customer of [to] the electronic communications
service, remote computing service, or communication common carrier
on which the device or equipment described by Subsection (a) is
proposed to be installed or used;
(4) the headquarters of:
(A) the office of the prosecutor filing an
application under this section; or
(B) a law enforcement agency that requests the
prosecutor to file an application under this section or that
proposes to execute an order authorizing installation or [and] use
of the device or equipment described by Subsection (a); or
(5) the headquarters of a carrier or service provider
ordered to install the device or equipment described by Subsection
(a).
(b)(1) A prosecutor may file an application under this
section or under federal law on the prosecutor's own motion or on
the request of an authorized peace officer, regardless of whether
the officer is commissioned by the department.
(2) A prosecutor who files an application on the
prosecutor's own motion or who files an application for the
installation or [and] use of a global positioning system wireless
device tracker, international mobile subscriber identity locator,
pen register, ESN reader, or a similar device or equipment on the
request of an authorized peace officer not commissioned by the
department, other than an authorized peace officer employed by a
designated law enforcement office or agency, must make the
application personally and may not do so through an assistant or
some other person acting on the prosecutor's behalf.
(3) A prosecutor may make an application through an
assistant or other person acting on the prosecutor's behalf if the
prosecutor files an application for the installation and use of:
(A) [(1)] a global positioning system wireless
device tracker, international mobile subscriber identity locator,
pen register, ESN reader, or a similar device or equipment on the
request of:
(i) [(A)] an authorized peace officer who
is commissioned by the department; or
(ii) [(B)] an authorized peace officer of a
designated law enforcement office or agency; or
(B) [(2)] a trap and trace device or a similar
device or equipment on the request of an authorized peace officer,
regardless of whether the officer is commissioned by the
department.
(c) The application must:
(1) be made in writing under oath;
(2) include the name of the subscriber or customer and
the telephone number and location of the cellular telephone,
wireless communications device, or other communication device on
which the [pen register, ESN reader, trap and trace] device[,] or
[similar] equipment described by Subsection (a) will be installed
or used, to the extent that information is known or is reasonably
ascertainable; and
(3) state that the installation or [and] use of the
device or equipment will likely produce information that is
material to an ongoing criminal investigation.
(d) On presentation of the application, the judge may order
the installation or [and] use of the global positioning system
wireless device tracker, international mobile subscriber identity
locator, pen register, ESN reader, or a similar device or equipment
by an authorized peace officer commissioned by the department or an
authorized peace officer of a designated law enforcement office or
agency, and, on request of the applicant, the judge shall direct in
the order that a communication common carrier or a provider of an
electronic communications service or remote computing service
furnish all information, facilities, and technical assistance
necessary to facilitate the installation or [and] use of the device
or equipment by the department or designated law enforcement office
or agency unobtrusively and with a minimum of interference to the
services provided by the carrier or service provider. The carrier
or service provider is entitled to compensation at the prevailing
rates for the facilities and assistance provided to the department
or a designated law enforcement office or agency.
(e) On presentation of the application, the judge may order
the installation or [and] use of the trap and trace device or a
similar device or equipment by the communication common carrier or
other person on the appropriate line. The judge may direct the
communication common carrier or other person, including any
landlord or other custodian of equipment, to furnish all
information, facilities, and technical assistance necessary to
install or use the device or equipment unobtrusively and with a
minimum of interference to the services provided by the
communication common carrier, landlord, custodian, or other
person. Unless otherwise ordered by the court, the results of the
trap and trace device or a similar device or equipment shall be
furnished to the applicant, designated by the court, at reasonable
intervals during regular business hours, for the duration of the
order. The carrier is entitled to compensation at the prevailing
rates for the facilities and assistance provided to the designated
law enforcement office or agency.
(f) Except as otherwise provided by this subsection, an
order for the installation or [and] use of a device or equipment
described by Subsection (a) [under this section] is valid for not
more than 60 days after the earlier of the date the device or
equipment is installed or the 10th day after the date the order is
entered, unless the prosecutor applies for and obtains from the
court an extension of the order before the order expires. The
period of extension may not exceed 60 days for each extension
granted, except that with the consent of the subscriber or customer
of the carrier or service provider on which the device or equipment
is used, the court may extend an order for a period not to exceed one
year.
(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 18.
(i) A peace officer of a designated law enforcement office
or agency is authorized to possess, install, operate, or monitor a
global positioning system wireless device tracker, international
mobile subscriber identity locator, pen register, ESN reader, or a
similar device or equipment if the officer's name is on the list
submitted to the director of the department under Subsection (k).
(k) If the director of the department or the director's
designee approves the policy submitted under Subsection (j), 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, as applicable, shall submit to the director a written
list of all officers in the designated law enforcement office or
agency who are authorized to possess, install, monitor, or operate
global positioning system wireless device trackers, international
mobile subscriber identity locators, pen registers, ESN readers, or
similar devices or equipment.
(m) The inspector general of the Texas Department of
Criminal Justice or the sheriff or chief of a designated law
enforcement agency, as applicable, shall submit to the director of
the department a written report of expenditures made by the
designated law enforcement office or agency for the purchase and
maintenance of a global positioning system wireless device tracker,
international mobile subscriber identity locator, pen register,
ESN reader, or a similar device or equipment, authorized under this
article. The director of the department shall report those
expenditures publicly on an annual basis via the department's
website, or other comparable means.
SECTION 7. Section 3, Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
Sec. 3. EMERGENCY INSTALLATION OR [AND] USE OF GLOBAL
POSITIONING SYSTEM WIRELESS DEVICE TRACKER, INTERNATIONAL MOBILE
SUBSCRIBER IDENTITY LOCATOR, PEN REGISTER, OR TRAP AND TRACE
DEVICE. (a) A peace officer authorized to possess, install,
operate, or monitor a device under Section 8A, Article 18.20, may
install and use a global positioning system wireless device
tracker, international mobile subscriber identity locator, pen
register, [or] trap and trace device, or a similar device or
equipment if the officer:
(1) reasonably believes an immediate life-threatening
situation exists that:
(A) is within the territorial jurisdiction of the
officer or another officer the officer is assisting; and
(B) requires the installation or use of a global
positioning system wireless device tracker, international mobile
subscriber identity locator, pen register, or trap and trace device
before an order authorizing the installation or [and] use can, with
due diligence, be obtained under this article; and
(2) reasonably believes there are sufficient grounds
under this article on which to obtain an order authorizing the
installation and use of the device or equipment described by this
subsection [a pen register or trap and trace device].
(b) If an officer installs or uses a global positioning
system wireless device tracker, international mobile subscriber
identity locator, pen register, or trap and trace device under
Subsection (a), the officer shall:
(1) promptly report the installation or use to the
prosecutor in the county in which the device or equipment is
installed or used; and
(2) within 48 hours after the installation is complete
or the use of the device or equipment begins, whichever occurs
first, obtain an order under Section 2 authorizing the installation
or [and] use.
(c) A judge may issue an order authorizing the installation
or [and] use of a device or equipment under this section during the
48-hour period prescribed by Subsection (b)(2). If an order is
denied or is not issued within the 48-hour period, on the earlier of
the denial or the expiration of the 48-hour period, the officer
shall immediately terminate use of the device or equipment
described by Subsection (a) and remove the [pen register or the trap
and trace] device or equipment [promptly on the earlier of the
denial or the expiration of 48 hours].
(d) The state may not use as evidence in a criminal
proceeding any information gained through [the use of] a [pen
register or trap and trace] device or equipment installed or used
under this section if an authorized peace officer does not apply for
or applies for but does not obtain authorization for the
installation or use of the [pen register or trap and trace] device
or equipment.
SECTION 8. 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 that is obtained
from a cellular telephone or other wireless communications device
by using a global positioning system wireless device tracker or an
international mobile subscriber identity locator.
(b) 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 cellular telephone or wireless communications
device.
(c) The warrant may authorize the acquisition of location
information obtained from a cellular telephone or 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
telephone or device to be located within the district at the time
the warrant is issued.
(d) A warrant issued under this section for location
information does not authorize the use of a global positioning
system wireless device tracker or an international mobile
subscriber identity locator unless the warrant specifically states
that device or equipment may be used.
(e) 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 cellular telephone or wireless
communications device to be monitored;
(3) state the name of the owner or possessor of the
telephone or device to be monitored;
(4) state the judicial district in which the telephone
or device is reasonably expected to be located;
(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
telephone or device is likely to produce evidence in a criminal
investigation of the criminal activity described in Paragraph (A);
and
(6) if applicable, request authorization to use a
global positioning system wireless device tracker or an
international mobile subscriber identity locator to obtain
location information and state the reason the use of that device or
equipment is necessary.
(f) A warrant issued under this section that requires action
by a communication common carrier, an electronic communications
service, or a remote computing service must be executed within the
period provided by Article 18.07 by properly serving the warrant on
the carrier or service provider.
(g) 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.
(h) 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.
(i) 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 (j).
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.
(j) 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 18.
(k) Notwithstanding any other law, location information may
be obtained from a cellular telephone or wireless communications
device without a warrant by:
(1) a private entity or a peace officer if the
telephone or 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
telephone or device is in the possession of a fugitive from justice
for whom an arrest warrant has been issued for committing a felony
offense.
(l) A peace officer may apply for, and a district court may
issue, an order authorizing the officer to obtain location
information from a cellular telephone or wireless communications
device on the officer's showing that there are reasonable grounds
to believe that the telephone or device is in the possession of a
fugitive from justice for whom an arrest warrant has been issued for
committing a felony offense.
(m) Regardless of whether an order has been issued with
respect to the matter under Subsection (l), a peace officer must
apply for a warrant to obtain location information from a cellular
telephone or wireless communications device under Subsection
(k)(2) as soon as practicable. If the district judge finds that the
applicable situation under Subsection (k)(2) did not occur and
declines to issue the warrant, any evidence obtained is not
admissible in a criminal action.
SECTION 9. 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 a provider of an
electronic communications service or remote computing service to
compel the production of the carrier's or service provider's
[service's] business records that:
(1) disclose information, excluding any location
information, about:
(A) the carrier's or service provider's
subscribers or [service's] customers; or
(B) other users of the services offered by the
carrier or service provider; and
(2) are material to a criminal investigation.
SECTION 10. Article 18.21, Code of Criminal Procedure, is
amended by adding Sections 15A, 17, and 18 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 under Article 18.02 to a communication common carrier or a
provider of an electronic communications service or remote
computing service to compel the production of the carrier's or
service provider's business records that disclose location
information about the carrier's or service provider's subscribers
or customers or other users of the services offered by the carrier
or service provider, if there is probable cause to believe the
records disclosing location information will provide evidence in a
criminal investigation.
Sec. 17. CONTROL OF INTERNATIONAL MOBILE SUBSCRIBER
IDENTITY LOCATOR. (a) Except as otherwise provided by this
section, only the department or a county or municipal law
enforcement agency is authorized to own, possess, install, operate,
or monitor an international mobile subscriber identity locator.
(b) An investigative or law enforcement officer or other
person may assist the department or a county or municipal law
enforcement agency in the operation or monitoring of an
international mobile subscriber identity locator, provided that
the officer or other person:
(1) is designated for that purpose by the director or
the head of the county or municipal law enforcement agency, as
applicable; and
(2) acts in the presence and under the direction of a
commissioned officer of the department or the county or municipal
law enforcement agency.
(c) The director and the head of a county or municipal law
enforcement agency shall designate in writing the commissioned
officers who are responsible for the possession, installation,
operation, or monitoring of an international mobile subscriber
identity locator for the department or law enforcement agency.
Sec. 18. 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) whether the warrant authorized the use of a global
positioning system wireless device tracker or an international
mobile subscriber identity locator;
(5) the period of monitoring authorized by the warrant
or order and the number and duration of any extensions of the
warrant or order;
(6) the offense under investigation, as specified in
the application for the warrant or order or an extension of the
warrant or order; and
(7) the law enforcement office or agency or the
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 the tracking or
monitoring performed by law enforcement offices and agencies by
means of the installation or use of a global positioning system
wireless device tracker, international mobile subscriber identity
locator, pen register, ESN reader, trap and trace device, or a
similar device or equipment;
(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 11. Section 54.978(e), Government Code, is amended
to read as follows:
(e) In this subsection, "global positioning system wireless
device tracker," "international mobile subscriber identity
locator," "pen register," "ESN reader," "trap and trace device,"
and "mobile tracking device" have the meanings assigned by Section
18.21, Code of Criminal Procedure. A magistrate may:
(1) notwithstanding Section 2(a), Article 18.21, Code
of Criminal Procedure, issue an order under Section 2, Article
18.21, Code of Criminal Procedure, for the installation and use of:
(A) a global positioning system wireless device
tracker;
(B) an international mobile subscriber identity
locator;
(C) a pen register;
(D) [(B)] an ESN reader;
(E) [(C)] a trap and trace device; or
(F) a similar device or [(D)] equipment [that
combines the function of a pen register and a trap and trace
device];
(2) issue an order to obtain access to stored
communications under Section 5, Article 18.21, Code of Criminal
Procedure; and
(3) notwithstanding Section 14(a), Article 18.21,
Code of Criminal Procedure, issue an order for the installation and
use of a mobile tracking device under Section 14, Article 18.21,
Code of Criminal Procedure.
SECTION 12. The heading to Section 16.03, Penal Code, is
amended to read as follows:
Sec. 16.03. UNLAWFUL USE OF INTERNATIONAL MOBILE SUBSCRIBER
IDENTITY LOCATOR, PEN REGISTER, OR TRAP AND TRACE DEVICE.
SECTION 13. Sections 16.03(a), (b), and (c), Penal Code,
are amended to read as follows:
(a) A person commits an offense if the person knowingly
installs or uses:
(1) an international mobile subscriber identity
locator to obtain location information from a cellular telephone or
other wireless communications device; or
(2) a pen register or trap and trace device to record
or decode electronic or other impulses for the purpose of
identifying telephone numbers dialed or otherwise transmitted on a
telephone line.
(b) In this section, "authorized peace officer,"
"communications common carrier," "international mobile subscriber
identity locator," "location information," "pen register," and
"trap and trace device" have the meanings assigned by Article
18.21, Code of Criminal Procedure.
(c) It is an affirmative defense to prosecution under
Subsection (a) that the actor is:
(1) an officer, employee, or agent of a communications
common carrier or of the provider of an electronic communications
service or remote computing service and the actor installs or uses a
device or equipment to obtain information from a cellular telephone
or other wireless communications device or to record a number
dialed from or to a telephone [instrument] in the normal course of
business of the carrier or service provider for purposes of:
(A) protecting property or services provided by
the carrier or service provider; or
(B) assisting another who the actor reasonably
believes to be a peace officer authorized to install or use an
international mobile subscriber identity locator, a pen register,
or a trap and trace device under Article 18.21, Code of Criminal
Procedure;
(2) an officer, employee, or agent of a lawful
enterprise and the actor installs or uses a device or equipment
while engaged in an activity that:
(A) is a necessary incident to the rendition of
service or to the protection of property of or services provided by
the enterprise; and
(B) is not made for the purpose of gathering
information for a law enforcement agency or private investigative
agency, other than information related to the theft of
communication or information services provided by the enterprise;
or
(3) a person authorized to install or use an
international mobile subscriber identity locator, a pen register,
or a trap and trace device under Article 18.21, Code of Criminal
Procedure.
SECTION 14. (a) The change in law made by this Act applies
only to a warrant issued on or after the effective date of this Act.
A warrant issued before the effective date of this Act is governed
by the law in effect on the date the warrant was issued, and the
former law is continued in effect for that purpose.
(b) A prosecutor is not required to file the initial annual
report required by Section 18(b), Article 18.21, Code of Criminal
Procedure, as added by this Act, before March 15, 2017. The initial
annual report must cover the 2016 calendar year.
SECTION 15. This Act takes effect September 1, 2015.