Texas 2019 - 86th Regular

Texas House Bill HB3453 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R4850 JCG-F
2	2	By: Clardy H.B. No. 3453
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to subpoenas, orders, and warrants for the disclosure of
8	8	location information, electronic customer communications records,
9	9	and electronic customer data and for the use of pen registers, ESN
10	10	readers, cell site simulators, and mobile tracking devices;
11	11	creating a criminal offense.
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;
44	44	(13) electronic customer communications records and
45	45	electronic customer data held in electronic storage[, including the
46	46	contents of and records and other information related to a wire
47	47	communication or electronic communication held in electronic
48	48	storage]; [or]
49	49	(14) a cellular telephone or other wireless
50	50	communications device, subject to Article 18.0215; or
51	51	(15) location information.
52	52	(b) For purposes of this article [Subsection (a)(13)]:
53	53	(1) "Electronic communication" and "wire
54	54	communication" have the meanings assigned by Article 18A.001.
55	55	(2) "Electronic customer communications records,"
56	56	"electronic customer data," [and] "electronic storage," and
57	57	"location information" [storage"] have the meanings assigned by
58	58	Article 18B.001.
59	59	SECTION 2. Article 18.06(a), Code of Criminal Procedure, is
60	60	amended to read as follows:
61	61	(a) A peace officer to whom a search warrant is delivered
62	62	shall execute the warrant without delay and forthwith return the
63	63	warrant to the proper magistrate. A search warrant issued under
64	64	Article 18B.354, and Articles 18B.221 and 18B.222 if requiring the
65	65	disclosure of location information as defined by Article 18B.001,
66	66	must be executed in the manner provided by Article 18B.355 not later
67	67	than the 11th day after the date of issuance. In all other cases, a
68	68	search warrant must be executed within three days from the time of
69	69	its issuance. A warrant issued under this chapter, Chapter 18A, or
70	70	Chapter 18B shall be executed within a shorter period if so directed
71	71	in the warrant by the magistrate.
72	72	SECTION 3. Article 18B.001, Code of Criminal Procedure, is
73	73	amended by adding Subdivisions (1-a), (6-a), (9-a), and (9-b) and
74	74	amending Subdivisions (4), (7), and (8) to read as follows:
75	75	(1-a) "Cell site simulator" means a device that:
76	76	(A) locates or identifies a wireless
77	77	communications device in the immediate vicinity of the simulator by
78	78	simulating the functions of a wireless telecommunications network
79	79	transceiver; and
80	80	(B) is designed to collect information from the
81	81	wireless communications device.
82	82	(4) "Designated law enforcement office or agency"
83	83	means:
84	84	(A) the sheriff's department of a county with a
85	85	population of 3.3 million or more;
86	86	(B) a police department in a municipality with a
87	87	population of 500,000 or more; [or]
88	88	(C) the office of inspector general of the Texas
89	89	Department of Criminal Justice;
90	90	(D) a special investigator under Article 2.122
91	91	when assisting a peace officer of this state in:
92	92	(i) apprehending a fugitive from justice
93	93	charged with an offense under Article 18B.221(b)(2); or
94	94	(ii) resolving an emergency involving:
95	95	(a) an immediate life-threatening
96	96	situation;
97	97	(b) conspiratorial activities
98	98	characteristic of violent organized crime;
99	99	(c) an immediate threat to a national
100	100	security interest;
101	101	(d) an ongoing attack on a protected
102	102	computer, as defined by 18 U.S.C. Section 1030, that constitutes an
103	103	offense under Section 33.02, Penal Code, or an equivalent offense
104	104	under federal law; or
105	105	(e) the report of the disappearance of
106	106	an individual, including the report of a runaway individual younger
107	107	than 18 years of age, or a report of a suicidal individual, where
108	108	the report indicates the individual may be in danger based on the
109	109	circumstances of the disappearance, including circumstances such
110	110	as the age and mental or physical condition of the individual; or
111	111	(E) a prosecutor or assistant prosecutor in a
112	112	county with a population of more than 800,000.
113	113	(6-a) "Electronic customer communications records"
114	114	means data or records, other than location information or
115	115	electronic customer data, that:
116	116	(A) are in the possession, care, custody, or
117	117	control of a provider of an electronic communications service or
118	118	provider of a remote computing service; and
119	119	(B) contain:
120	120	(i) the content of a wire or electronic
121	121	communication sent to or by the customer, including:
122	122	(a) information that identifies by
123	123	name the recipient or destination of a wire or electronic
124	124	communication;
125	125	(b) the draft form of a wire or
126	126	electronic communication, regardless of whether the communication
127	127	was sent; or
128	128	(c) a summary description of the
129	129	content of a wire or electronic communication, such as file name,
130	130	subject line, or uniform resource locator; or
131	131	(ii) the content of files or records owned
132	132	or possessed by a customer that are stored by the applicable service
133	133	provider by or on behalf of the customer.
134	134	(7) "Electronic customer data" means data or records,
135	135	other than location information or electronic customer
136	136	communication records, that:
137	137	(A) are in the possession, care, custody, or
138	138	control of a provider of an electronic communications service or
139	139	provider of a remote computing service; and
140	140	(B) contain:
141	141	(i) information revealing the identity of
142	142	customers of the applicable service;
143	143	(ii) information about a customer's use of
144	144	the applicable service; and
145	145	(iii) information that identifies the
146	146	recipient or destination of a wire or electronic communication sent
147	147	to or by a customer[;
148	148	[(iv) the content of a wire or electronic
149	149	communication sent to or by a customer; and
150	150	[(v) any data stored with the applicable
151	151	service provider by or on behalf of a customer].
152	152	(8) "Electronic storage" means storage of electronic
153	153	customer data, electronic customer communications records, or
154	154	location information in a computer, computer network, or computer
155	155	system, regardless of whether the data is subject to recall,
156	156	further manipulation, deletion, or transmission. The term
157	157	includes storage of a wire or electronic communication by an
158	158	electronic communications service or a remote computing service.
159	159	(9-a) "Immediate life-threatening situation" has the
160	160	meaning assigned by Article 18A.201.
161	161	(9-b) "Location information" means data or records,
162	162	other than information identifying the subscriber or customer or
163	163	the account with which a wireless communications device is
164	164	associated or information composed of network transactional access
165	165	records unrelated to the location of a wireless communications
166	166	device, that:
167	167	(A) suggest the physical location of a wireless
168	168	communications device by identifying the first, intermediate, or
169	169	last point through which a wire or electronic communication enters
170	170	or departs the physical infrastructure of an electronic
171	171	communications system, including:
172	172	(i) data or records commonly known as cell
173	173	site location information; and
174	174	(ii) any data or records generated by
175	175	successor technologies operating similarly to the technology
176	176	described in this paragraph;
177	177	(B) are created by or accessible to a provider of
178	178	an electronic communications system and designed to identify the
179	179	physical location of a wireless communications device, including:
180	180	(i) information commonly known as E911 or
181	181	precision location information derived through a global
182	182	positioning system or multi-lateration measurements; and
183	183	(ii) any data or records generated by
184	184	successor technologies operating similarly to the technology
185	185	described in this paragraph; or
186	186	(C) are created by or accessed through the use of
187	187	a cell site simulator.
188	188	SECTION 4. Subchapter B, Chapter 18B, Code of Criminal
189	189	Procedure, is amended by adding Article 18B.050 to read as follows:
190	190	Art. 18B.050. APPLICABILITY. This subchapter and
191	191	Subchapters C and D do not apply to a cell site simulator.
192	192	SECTION 5. Article 18B.151, Code of Criminal Procedure, is
193	193	amended to read as follows:
194	194	Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN
195	195	REGISTER OR TRAP AND TRACE DEVICE. [(a) In this article,
196	196	"immediate life-threatening situation" has the meaning assigned by
197	197	Article 18A.201.
198	198	[(b)] A peace officer authorized to possess, install,
199	199	operate, or monitor a device under Subchapter E, Chapter 18A, may
200	200	install and use a pen register or trap and trace device if:
201	201	(1) another peace officer is designated to approve for
202	202	the authorized officer's agency the emergency required disclosure
203	203	of location information by:
204	204	(A) the head of the agency; and
205	205	(B) a district attorney or criminal district
206	206	attorney with jurisdiction over all or part of the other officer's
207	207	jurisdiction; and
208	208	(2) the peace officer described by Subdivision (1)
209	209	approves the installation and use of a pen register or trap and
210	210	trace device by reasonably determining that an emergency exists in
211	211	the territorial jurisdiction of the authorized officer, or another
212	212	officer the authorized officer is assisting, involving:
213	213	(A) an immediate life-threatening situation;
214	214	(B) conspiratorial activities characteristic of
215	215	violent organized crime;
216	216	(C) an immediate threat to a national security
217	217	interest;
218	218	(D) an ongoing attack on a protected computer, as
219	219	defined by 18 U.S.C. Section 1030, that constitutes an offense
220	220	under Section 33.02, Penal Code, or an equivalent offense under
221	221	federal law; or
222	222	(E) the report of the disappearance of an
223	223	individual, including the report of a runaway individual younger
224	224	than 18 years of age, or a report of a suicidal individual, where
225	225	the report indicates the individual may be in danger based on the
226	226	circumstances of the disappearance, including circumstances such
227	227	as the age and mental or physical condition of the individual [the
228	228	peace officer reasonably believes:
229	229	[(1) an immediate life-threatening situation exists
230	230	that:
231	231	[(A) is within the territorial jurisdiction of
232	232	the peace officer or another officer the peace officer is
233	233	assisting; and
234	234	[(B) requires the installation of a pen register
235	235	or trap and trace device before an order authorizing the
236	236	installation and use can, with due diligence, be obtained under
237	237	this chapter; and
238	238	[(2) there are sufficient grounds under this chapter
239	239	on which to obtain an order authorizing the installation and use of
240	240	a pen register or trap and trace device].
241	241	SECTION 6. Article 18B.152, Code of Criminal Procedure, is
242	242	amended by adding Subsection (c) to read as follows:
243	243	(c) In the event that no offense was readily apparent at the
244	244	time of the installation and use of a pen register or trap and trace
245	245	device under this subchapter, the judge shall note the exact date
246	246	and time at which the likelihood that an offense occurred became
247	247	apparent, if applicable. If no offense became apparent before the
248	248	conclusion of the emergency or issuance of an order authorizing
249	249	continued use of the device under Subchapter B, the judge shall
250	250	annotate the order to reflect that: "No affirmative investigative
251	251	or prosecutive use may be made of any pen register or trap and trace
252	252	records obtained pursuant to the device's emergency installation or
253	253	use."
254	254	SECTION 7. Article 18B.202(c), Code of Criminal Procedure,
255	255	is amended to read as follows:
256	256	(c) The affidavit must:
257	257	(1) state the name, department, agency, and address of
258	258	the applicant;
259	259	(2) identify the vehicle, container, or item to which,
260	260	in which, or on which the mobile tracking device is to be attached,
261	261	placed, or otherwise installed;
262	262	(3) state the name of the owner or possessor of the
263	263	vehicle, container, or item identified under Subdivision (2);
264	264	(4) state the judicial jurisdictional area in which
265	265	the vehicle, container, or item identified under Subdivision (2) is
266	266	expected to be found; and
267	267	(5) state the facts and circumstances that provide the
268	268	applicant with probable cause to believe [a reasonable suspicion]
269	269	that:
270	270	(A) criminal activity has been, is, or will be
271	271	committed; and
272	272	(B) the installation and use of a mobile tracking
273	273	device will [is likely to] produce:
274	274	(i) evidence of the offense;
275	275	(ii) the location of contraband, fruits of
276	276	the offense, or other items illegally possessed;
277	277	(iii) the location of criminal instruments;
278	278	(iv) the identity of a person to be
279	279	arrested; or
280	280	(v) the identity of a person being
281	281	unlawfully restrained [information that is material to an ongoing
282	282	criminal investigation of that criminal activity].
283	283	SECTION 8. Article 18B.205, Code of Criminal Procedure, is
284	284	amended to read as follows:
285	285	Art. 18B.205. DURATION OF ORDER. (a) An order under this
286	286	subchapter expires not later than the 45th [90th] day after the date
287	287	that the mobile tracking device was activated in place on or within
288	288	the vehicle, container, or item.
289	289	(b) For good cause shown, the judge may grant an extension
290	290	for an additional 45-day [90-day] period.
291	291	SECTION 9. Chapter 18B, Code of Criminal Procedure, is
292	292	amended by adding Subchapter E-1 to read as follows:
293	293	SUBCHAPTER E-1. WARRANT FOR USE OF CELL SITE SIMULATOR OR REQUIRING
294	294	DISCLOSURE OF LOCATION INFORMATION
295	295	Art. 18B.221. WARRANT FOR USE OF CELL SITE SIMULATOR OR
296	296	DISCLOSURE OF CERTAIN LOCATION INFORMATION. (a) A district judge
297	297	may issue a warrant:
298	298	(1) authorizing the use of a cell site simulator to
299	299	obtain location information from a cellular telephone or other
300	300	wireless communications device; or
301	301	(2) requiring the disclosure of location information
302	302	by a service provider who has possession, care, custody, or control
303	303	of the information, regardless of whether the location information
304	304	is held at a location in this state or another state.
305	305	(b) A district judge may issue a warrant described by
306	306	Subsection (a) only:
307	307	(1) except as provided by Article 18B.230, on
308	308	application by:
309	309	(A) a prosecutor; or
310	310	(B) an assistant prosecutor, if applying on
311	311	request of:
312	312	(i) an authorized peace officer
313	313	commissioned by the department; or
314	314	(ii) an authorized peace officer of a
315	315	designated law enforcement office or agency; and
316	316	(2) for the investigation of:
317	317	(A) an offense under:
318	318	(i) Section 19.02, Penal Code;
319	319	(ii) Section 19.03, Penal Code;
320	320	(iii) Section 20.03, Penal Code;
321	321	(iv) Section 20.04, Penal Code;
322	322	(v) Chapter 20A, Penal Code;
323	323	(vi) Section 21.02, Penal Code;
324	324	(vii) Section 21.11, Penal Code;
325	325	(viii) Section 22.011, Penal Code;
326	326	(ix) Section 22.02, Penal Code;
327	327	(x) Section 22.021, Penal Code;
328	328	(xi) Section 22.04, Penal Code;
329	329	(xii) Section 22.041, Penal Code;
330	330	(xiii) Section 29.02, Penal Code;
331	331	(xiv) Section 29.03, Penal Code;
332	332	(xv) Section 30.02, Penal Code, if the
333	333	offense is punishable under Subsection (d) of that section;
334	334	(xvi) Chapter 34, Penal Code;
335	335	(xvii) Section 36.05, Penal Code;
336	336	(xviii) Section 37.11, Penal Code;
337	337	(xix) Section 38.06, Penal Code;
338	338	(xx) Section 38.07, Penal Code;
339	339	(xxi) Section 39.03, Penal Code;
340	340	(xxii) Section 43.04, Penal Code;
341	341	(xxiii) Section 43.05, Penal Code;
342	342	(xxiv) Chapter 481, Health and Safety Code,
343	343	other than an offense involving marihuana;
344	344	(xxv) Chapter 483, Health and Safety Code; or
345	345	(xxvi) Chapter 485, Health and Safety Code;
346	346	(B) a felony under Chapter 71, Penal Code;
347	347	(C) any sex offense for which a person is subject
348	348	to registration under Chapter 62 and in which the victim was younger
349	349	than 18 years of age at the time the offense was committed;
350	350	(D) an offense of another jurisdiction in the
351	351	United States equivalent to an offense under Paragraph (A), (B), or
352	352	(C), committed by a fugitive from justice, regardless of whether
353	353	the offense was committed in this state or another jurisdiction; or
354	354	(E) an emergency for which a judge may issue a
355	355	warrant under Article 18B.230.
356	356	(c) An application under this article must:
357	357	(1) be made in writing under oath; and
358	358	(2) include:
359	359	(A) the name, department, agency, and address of
360	360	the applicant;
361	361	(B) the offense being investigated and for which
362	362	the application is being made;
363	363	(C) the case number or unique identifier assigned
364	364	by the law enforcement agency to the investigation of the offense
365	365	for which the application is being made;
366	366	(D) the name of:
367	367	(i) the customer or subscriber whose data
368	368	or device is the subject of the application, if the application
369	369	seeks location information related to a particular subscriber or
370	370	customer and the name of the customer or subscriber is known to the
371	371	applicant; and
372	372	(ii) the person who is the subject of the
373	373	application, if that person is not described by Subparagraph (i);
374	374	and
375	375	(E) the account number or unique identifier that
376	376	is the subject of the application.
377	377	(d) The accompanying affidavit must contain a statement of
378	378	facts and circumstances demonstrating:
379	379	(1) probable cause that:
380	380	(A) an offense listed in Subsection (b)(2) has
381	381	been, is being, or will be committed; and
382	382	(B) would lead a reasonably prudent person to
383	383	believe the location information being sought or the use of a cell
384	384	site simulator will produce:
385	385	(i) evidence of the offense;
386	386	(ii) contraband, fruits of the offense, or
387	387	other items illegally possessed;
388	388	(iii) criminal instruments;
389	389	(iv) a person to be arrested; or
390	390	(v) a person being unlawfully restrained;
391	391	or
392	392	(2) that the use of a cell site simulator or the
393	393	required disclosure of location information will resolve an
394	394	emergency described by Article 18B.230(a)(2)(A).
395	395	Art. 18B.222. WARRANT FOR MASS, INDISCRIMINATE LOCATION
396	396	INFORMATION. (a) In accordance with the requirements of this
397	397	subchapter for the application and issuance of a warrant requiring
398	398	the disclosure of location information by a service provider, other
399	399	than Articles 18B.221(c)(2)(D) and (E), a district judge may issue
400	400	a warrant requiring the disclosure of location information by a
401	401	provider of an electronic communications service or a remote
402	402	computing service based on the location where an offense occurred
403	403	if the application includes:
404	404	(1) the location where the offense occurred; and
405	405	(2) each provider on whom the warrant will be served.
406	406	(b) The location information disclosed pursuant to a
407	407	warrant issued under this article may not be used to further an
408	408	investigation unrelated to the investigation of the offense for
409	409	which the warrant application was made, unless an authorized peace
410	410	officer, prosecutor, or assistant prosecutor:
411	411	(1) makes an application, other than the warrant
412	412	application, to a district judge to use the location information to
413	413	further an unrelated investigation; and
414	414	(2) shows good cause for that use.
415	415	(c) Unless authorized by a district judge, a law enforcement
416	416	agency holding location information disclosed pursuant to a warrant
417	417	issued under this article may not commingle:
418	418	(1) the location information determined relevant to
419	419	the investigation of the offense for which the warrant application
420	420	was made;
421	421	(2) the location information determined to be
422	422	irrelevant to that investigation; and
423	423	(3) other than the location information described by
424	424	Subdivision (1), each set of location information disclosed by a
425	425	different provider pursuant to a warrant issued under this article.
426	426	(d) A district judge may review similar applications for a
427	427	warrant under this article and instruct an agency holding
428	428	separately the location information under Subsection (c) to compare
429	429	the information to determine whether the information is relevant to
430	430	the cases or to other locations identified in similar applications.
431	431	Art. 18B.223. JURISDICTION. An application under this
432	432	subchapter must be filed in a judicial district in which is located:
433	433	(1) the headquarters of:
434	434	(A) the office of the prosecutor filing an
435	435	application under this subchapter;
436	436	(B) a law enforcement agency that requests the
437	437	prosecutor to file an application for a warrant under this
438	438	subchapter or that proposes to execute the warrant, if one is issued
439	439	under this subchapter; or
440	440	(C) a service provider required to disclose
441	441	location information held in electronic storage;
442	442	(2) the site of the proposed use of a cell site
443	443	simulator; or
444	444	(3) the billing, residential, or business address of
445	445	the subscriber or customer of a provider of an electronic
446	446	communications service or remote computing service who is the
447	447	subject of the application.
448	448	Art. 18B.224. DURATION OF WARRANT. (a) A warrant issued
449	449	under this subchapter authorizing the use of a cell site simulator
450	450	is valid for a period not to exceed 30 days.
451	451	(b) A warrant issued under this subchapter requiring the
452	452	ongoing disclosure of prospective location information is valid for
453	453	a period not to exceed 60 days.
454	454	Art. 18B.225. USE OF LOCATION INFORMATION IN UNRELATED
455	455	INVESTIGATION PROHIBITED. Except as provided by Article 18B.222(b)
456	456	or (d), location information obtained pursuant to a warrant issued
457	457	under this subchapter:
458	458	(1) may not be used to further an investigation
459	459	unrelated to the investigation of the offense for which the warrant
460	460	application was made; and
461	461	(2) may be used to investigate or prosecute offenses
462	462	and defendants related to the offense for which the warrant
463	463	application was made.
464	464	Art. 18B.226. CERTAIN RESTRICTIONS ON USE OF CELL SITE
465	465	SIMULATOR. (a) Under a warrant issued under this subchapter
466	466	authorizing the use of a cell site simulator:
467	467	(1) if the cell site simulator is used to locate a
468	468	known person's wireless communications device, location
469	469	information that is derived from the simulator's use and is
470	470	irrelevant to locating the device must be deleted on the date the
471	471	information was collected; and
472	472	(2) unless granted an exception by a district judge to
473	473	the requirement described in this subdivision, if the cell site
474	474	simulator is used to locate an unknown wireless communications
475	475	device, location information that is derived from the simulator's
476	476	use and is irrelevant to locating the device must be deleted not
477	477	later than the 30th day after the date the simulator is first used,
478	478	and not later than the earlier of the following:
479	479	(A) at the end of each 30-day period following
480	480	the initial 30-day period described by this subdivision; or
481	481	(B) the expiration of the warrant.
482	482	(b) The district judge who issues a warrant under this
483	483	subchapter for the use of a cell site simulator may extend a period
484	484	described by Subsection (a) if the applicant for the warrant shows
485	485	good cause for the extension. The judge may grant a subsequent
486	486	extension only if the applicant shows good cause for the subsequent
487	487	extension. An extension granted under this subsection may not
488	488	exceed 90 days, unless the judge makes a finding in the record that
489	489	the circumstances of the investigation justify an extension longer
490	490	than 90 days.
491	491	(c) A district judge may not issue a warrant to authorize
492	492	using or configuring a cell site simulator for, and a person acting
493	493	under a warrant issued under this subchapter may not use or
494	494	configure a cell site simulator for:
495	495	(1) intercepting, capturing, or collecting the
496	496	content of any electronic communication; or
497	497	(2) collecting information on the attendees of a
498	498	public gathering.
499	499	Art. 18B.227. PRESERVATION OF CERTAIN LOCATION
500	500	INFORMATION. (a) Location information disclosed by a service
501	501	provider pursuant to a warrant issued under this subchapter:
502	502	(1) must be preserved; and
503	503	(2) except as provided by 18B.222(b) or (d), may not be
504	504	used in the investigation or prosecution of an offense unrelated to
505	505	the offense for which the warrant application was made.
506	506	(b) As soon as practicable after receiving a timely request
507	507	from a defendant, the attorney representing the state shall produce
508	508	and permit inspection and electronic and print duplication of the
509	509	location information described by Subsection (a) by or on behalf of
510	510	the defendant.
511	511	Art. 18B.228. WARRANTS SEALED. (a) Notwithstanding any
512	512	other law, other than Subsections (b) and (c), a district judge
513	513	issuing a warrant under this subchapter shall seal the warrant and
514	514	applicable affidavit.
515	515	(b) A judge shall authorize the disclosure of the warrant
516	516	and applicable affidavit to:
517	517	(1) a defendant, or the attorney representing the
518	518	defendant, in a criminal action, if the defendant or attorney makes
519	519	a timely request for disclosure; or
520	520	(2) the public, if at an in camera hearing the judge
521	521	finds that the warrant application or affidavit does not
522	522	substantially comply with requirements for the issuance of a
523	523	warrant under this subchapter.
524	524	(c) A judge authorizing disclosure under Subsection (b)
525	525	shall redact information tending to reveal the identity of
526	526	cooperating witnesses, informants, or undercover peace officers.
527	527	Art. 18B.229. NOTICE TO SUBSCRIBER OR CUSTOMER. An
528	528	authorized peace officer may require a provider of an electronic
529	529	communications service or a provider of a remote computing service
530	530	to disclose location information without giving the subscriber or
531	531	customer notice if the officer obtains:
532	532	(1) a warrant under this subchapter; or
533	533	(2) the consent of the subscriber or customer.
534	534	Art. 18B.230. EMERGENCY USE OF CELL SITE SIMULATOR OR
535	535	REQUIRED DISCLOSURE OF LOCATION INFORMATION. (a) Subject to
536	536	Subsections (c) and (d), an authorized peace officer may without a
537	537	warrant require a service provider who has possession, care,
538	538	custody, or control of location information to disclose the
539	539	information, if:
540	540	(1) a peace officer in the authorized officer's agency
541	541	is designated to approve for the agency the emergency required
542	542	disclosure of location information by:
543	543	(A) the head of the agency; and
544	544	(B) a district attorney or criminal district
545	545	attorney with jurisdiction over all or part of the agency's
546	546	jurisdiction; and
547	547	(2) the peace officer described by Subdivision (1)
548	548	approves the authorized officer's requiring the disclosure of the
549	549	information by reasonably determining that:
550	550	(A) an emergency exists in the territorial
551	551	jurisdiction of the authorized officer, or another officer the
552	552	authorized officer is assisting, involving:
553	553	(i) an immediate life-threatening
554	554	situation;
555	555	(ii) conspiratorial activities
556	556	characteristic of violent organized crime;
557	557	(iii) an immediate threat to a national
558	558	security interest;
559	559	(iv) an ongoing attack on a protected
560	560	computer, as defined by 18 U.S.C. Section 1030, that constitutes an
561	561	offense under Section 33.02, Penal Code, or an equivalent offense
562	562	under federal law; or
563	563	(v) the report of the disappearance of an
564	564	individual, including the report of a runaway individual younger
565	565	than 18 years of age, or a report of a suicidal individual, where
566	566	the report indicates the individual may be in danger based on the
567	567	circumstances of the disappearance, including circumstances such
568	568	as the age and mental or physical condition of the individual; and
569	569	(B) requiring the information may resolve the
570	570	emergency.
571	571	(b) Subject to Subsections (c) and (d), an authorized peace
572	572	officer of the department or a designated law enforcement office or
573	573	agency may without a warrant use a cell site simulator if the head
574	574	of the authorized officer's agency or that person's designee
575	575	approves the authorized officer's use of the cell site simulator by
576	576	reasonably determining that:
577	577	(1) an emergency described by Subsection (a)(2)(A)
578	578	exists in the applicable judicial district under Article 18B.223;
579	579	and
580	580	(2) use of the cell site simulator may resolve the
581	581	emergency.
582	582	(c) An authorized officer who requires disclosure of
583	583	location information or uses a cell site simulator under Subsection
584	584	(a) or (b) shall:
585	585	(1) promptly report the required disclosure of
586	586	location information or the use of the simulator to, as applicable:
587	587	(A) if using a cell site simulator, the
588	588	prosecutor in the county in which the simulator is used; or
589	589	(B) if requiring the disclosure of location
590	590	information, the prosecutor in the county where the peace officer's
591	591	agency is headquartered; and
592	592	(2) within 48 hours after providing notice of the
593	593	required disclosure or within 48 hours after the use of the
594	594	simulator begins, as applicable, obtain a warrant under this
595	595	subchapter authorizing the required disclosure or the use of the
596	596	simulator.
597	597	(d) If a warrant application is denied or is not issued
598	598	within the 48-hour period, the peace officer shall delete the
599	599	disclosed location information or terminate use of the cell site
600	600	simulator promptly on the earlier of the denial of the warrant
601	601	application or the expiration of 48 hours.
602	602	Art. 18B.231. EXECUTION OF WARRANT. Article 18B.355
603	603	applies to the execution of a warrant issued under this subchapter
604	604	in the same manner as the article applies to the execution of a
605	605	warrant for electronic customer communications records.
606	606	Art. 18B.232. WARRANT ISSUED IN ANOTHER STATE. Any
607	607	domestic entity that provides electronic communications services
608	608	or remote computing services to the public shall comply with a
609	609	warrant issued in another state and seeking location information
610	610	described by Article 18B.221, if the warrant is served on the entity
611	611	in a manner equivalent to the service of process requirements
612	612	provided by Article 18B.355(b).
613	613	SECTION 10. Article 18B.351, Code of Criminal Procedure, is
614	614	amended to read as follows:
615	615	Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER
616	616	COMMUNICATIONS RECORDS AND ELECTRONIC CUSTOMER DATA. (a) An
617	617	authorized peace officer may require a provider of an electronic
618	618	communications service or a provider of a remote computing service
619	619	to disclose electronic customer communications records or
620	620	electronic customer data that is in electronic storage by obtaining
621	621	a warrant under Article 18B.354.
622	622	(b) An authorized peace officer may require a provider of an
623	623	electronic communications service or a provider of a remote
624	624	computing service to disclose [only] electronic customer data [that
625	625	is information revealing the identity of customers of the
626	626	applicable service or information about a customer's use of the
627	627	applicable service,] without giving the subscriber or customer
628	628	notice:
629	629	(1) by obtaining an administrative subpoena
630	630	authorized by statute;
631	631	(2) by obtaining a grand jury subpoena;
632	632	(3) by obtaining a court order under Article 18B.352;
633	633	(4) by obtaining a warrant under Article 18B.354;
634	634	(5) by obtaining the consent of the subscriber or
635	635	customer to the disclosure of the data; or
636	636	(6) as otherwise permitted by applicable federal law.
637	637	SECTION 11. Article 18B.352(a), Code of Criminal Procedure,
638	638	is amended to read as follows:
639	639	(a) A court shall issue an order authorizing disclosure of
640	640	electronic customer data related to [contents, records, or other
641	641	information of] a wire or electronic communication held in
642	642	electronic storage if the court determines that there is a
643	643	reasonable belief that the information sought is relevant and
644	644	material to an ongoing criminal investigation [to a legitimate law
645	645	enforcement inquiry].
646	646	SECTION 12. Article 18B.353, Code of Criminal Procedure, is
647	647	amended to read as follows:
648	648	Art. 18B.353. WARRANT ISSUED IN THIS STATE: APPLICABILITY.
649	649	Articles 18B.354-18B.357 apply to a warrant required under Article
650	650	18B.351 to obtain electronic customer communications records or
651	651	electronic customer data[, including the contents of a wire or
652	652	electronic communication].
653	653	SECTION 13. Articles 18B.354(a), (b), and (c), Code of
654	654	Criminal Procedure, are amended to read as follows:
655	655	(a) On the filing of an application by an authorized peace
656	656	officer, a district judge may issue a search warrant under this
657	657	article for electronic customer communications records or
658	658	electronic customer data held in electronic storage[, including the
659	659	contents of and records and other information related to a wire or
660	660	electronic communication held in electronic storage,] by a provider
661	661	of an electronic communications service or a provider of a remote
662	662	computing service described by Article 18B.355(b), regardless of
663	663	whether the electronic customer communications records or
664	664	electronic customer data is held at a location in this state or
665	665	another state. An application made under this subsection must
666	666	demonstrate probable cause for the issuance of the warrant and must
667	667	be supported by the oath of the authorized peace officer.
668	668	(b) A search warrant may not be issued under this article
669	669	unless the sworn affidavit required by Article 18.01(b) provides
670	670	sufficient and substantial facts to establish probable cause that:
671	671	(1) a specific offense has been committed; and
672	672	(2) the electronic customer communications records or
673	673	electronic customer data sought:
674	674	(A) constitutes evidence of that offense or
675	675	evidence that a particular person committed that offense, or
676	676	reveals the location of a fugitive from justice charged with a
677	677	felony offense described by Article 18B.221(b)(2)(A), (B), (C), or
678	678	(D); and
679	679	(B) is held in electronic storage by the service
680	680	provider on which the warrant is served under Article 18B.355(c).
681	681	(c) Only the electronic customer communications records or
682	682	electronic customer data described in the sworn affidavit required
683	683	by Article 18.01(b) may be seized under the warrant.
684	684	SECTION 14. Article 18B.356(c), Code of Criminal Procedure,
685	685	is amended to read as follows:
686	686	(c) The service provider shall produce all electronic
687	687	customer communications records, electronic customer data,
688	688	[contents of communications,] and other information sought,
689	689	regardless of where the information is held and within the period
690	690	allowed for compliance with the warrant, as provided by Subsection
691	691	(a) or (b).
692	692	SECTION 15. Articles 18B.406(a) and (d), Code of Criminal
693	693	Procedure, are amended to read as follows:
694	694	(a) Not later than the 14th day after the date a subscriber
695	695	or customer receives notice under Article 18B.402, the subscriber
696	696	or customer may file a written motion to quash the subpoena or
697	697	vacate the court order in the court that issued the subpoena or
698	698	court order. The motion must contain an affidavit or other sworn
699	699	statement stating:
700	700	(1) that the applicant is a subscriber or customer of
701	701	the provider of an electronic communications service or the
702	702	provider of a remote computing service from which the electronic
703	703	customer data held in electronic storage for the subscriber or
704	704	customer has been sought; and
705	705	(2) the applicant's reasons for believing that the
706	706	electronic customer data sought is not relevant and material to an
707	707	ongoing criminal investigation [a legitimate law enforcement
708	708	inquiry] or that there has not been substantial compliance with the
709	709	provisions of this chapter in some other respect.
710	710	(d) The court shall rule on the motion as soon as
711	711	practicable after the filing of the peace officer's response. The
712	712	court shall deny the motion if the court finds that the applicant is
713	713	not the subscriber or customer whose data is the subject of the
714	714	subpoena or court order or that there is reason to believe that the
715	715	peace officer's inquiry is legitimate and that the data sought is
716	716	relevant to that inquiry. The court shall quash the subpoena or
717	717	vacate the court order if the court finds that the applicant is the
718	718	subscriber or customer whose data is the subject of the subpoena or
719	719	court order and that there is not a reason to believe that the data
720	720	is relevant and material to an ongoing criminal investigation [a
721	721	legitimate law enforcement inquiry] or that there has not been
722	722	substantial compliance with the provisions of this chapter.
723	723	SECTION 16. Article 18B.451, Code of Criminal Procedure, is
724	724	amended to read as follows:
725	725	Art. 18B.451. SUBPOENA AUTHORITY. (a) Except as provided
726	726	by Subsection (b), the [The] director of the department or the
727	727	director's designee, the inspector general of the Texas Department
728	728	of Criminal Justice or the inspector general's designee, or the
729	729	sheriff or chief of a designated law enforcement agency or the
730	730	sheriff's or chief's designee may issue an administrative subpoena
731	731	to a communication common carrier or a provider of an electronic
732	732	communications service to compel the production of any carrier's or
733	733	service provider's business records that:
734	734	(1) disclose information about:
735	735	(A) the carrier's or service provider's
736	736	customers; or
737	737	(B) users of the services offered by the carrier
738	738	or service provider; and
739	739	(2) are material to a criminal investigation.
740	740	(b) A person described by Subsection (a) may not compel the
741	741	production of business records containing location information or
742	742	electronic customer communications records by issuing an
743	743	administrative subpoena under Subsection (a).
744	744	SECTION 17. Article 18B.501(a), Code of Criminal Procedure,
745	745	is amended to read as follows:
746	746	(a) An authorized peace officer seeking electronic customer
747	747	communications records or electronic customer data under Article
748	748	18B.351 may apply to the court for an order commanding the service
749	749	provider to whom a warrant, subpoena, or court order is directed not
750	750	to disclose to any person the existence of the warrant, subpoena, or
751	751	court order. The order is effective for the period the court
752	752	considers appropriate.
753	753	SECTION 18. Articles 18B.503(a) and (b), Code of Criminal
754	754	Procedure, are amended to read as follows:
755	755	(a) Except as provided by Subsection (c), an authorized
756	756	peace officer who obtains electronic customer communications
757	757	records or electronic customer data under Article 18B.351 or
758	758	18B.359 or other information under this chapter shall reimburse the
759	759	person assembling or providing the records, data, or information
760	760	for all costs that are reasonably necessary and that have been
761	761	directly incurred in searching for, assembling, reproducing, or
762	762	otherwise providing the records, data, or information, including
763	763	costs arising from necessary disruption of normal operations of a
764	764	provider of an electronic communications service or a provider of a
765	765	remote computing service in which the electronic customer
766	766	communications records or electronic customer data may be held in
767	767	electronic storage or in which the other information may be stored.
768	768	(b) The authorized peace officer and the person providing
769	769	the electronic customer communications records, electronic
770	770	customer data, or other information may agree on the amount of
771	771	reimbursement. If there is not an agreement, the court that issued
772	772	the order for production of the records, data, or information shall
773	773	determine the amount. If a court order was not issued for
774	774	production of the records, data, or information, the court before
775	775	which any criminal prosecution relating to the records, data, or
776	776	information would be brought shall determine the amount.
777	777	SECTION 19. Chapter 16, Penal Code, is amended by adding
778	778	Section 16.07 to read as follows:
779	779	Sec. 16.07. UNLAWFUL USE OF CELL SITE SIMULATOR. (a) In
780	780	this section:
781	781	(1) "Cell site simulator" has the meaning assigned by
782	782	Article 18B.001, Code of Criminal Procedure.
783	783	(2) "Communication common carrier" and "electronic
784	784	communication" have the meanings assigned by Article 18A.001, Code
785	785	of Criminal Procedure.
786	786	(b) A person commits an offense if the person knowingly uses
787	787	a cell site simulator to locate or identify a wireless
788	788	communications device or intercept the content of an electronic
789	789	communication.
790	790	(c) An offense under this section is a state jail felony.
791	791	(d) It is an affirmative defense to prosecution under this
792	792	section that the actor:
793	793	(1) is an officer, employee, or agent of a
794	794	communication common carrier and the actor uses a cell site
795	795	simulator in the regular course of business of the carrier for the
796	796	purpose of:
797	797	(A) protecting property or services provided by
798	798	the carrier; or
799	799	(B) assisting another whom the actor reasonably
800	800	believes to be a peace officer authorized to use a cell site
801	801	simulator under Article 18B.221, Code of Criminal Procedure;
802	802	(2) is a person authorized to use a cell site simulator
803	803	under Article 18B.221, Code of Criminal Procedure; or
804	804	(3) obtained the effective consent of the owner or
805	805	renter of the wireless communications device and the simulator was
806	806	not used to commit an offense or other prohibited act.
807	807	SECTION 20. Chapter 18B, Code of Criminal Procedure, as
808	808	amended by this Act, applies to the disclosure of certain
809	809	information by a provider of a wire or electronic communications
810	810	service or remote computing service or by a communication common
811	811	carrier under a warrant, order, or other legal process on or after
812	812	the effective date of this Act.
813	813	SECTION 21. This Act takes effect September 1, 2019.