Texas 2019 - 86th Regular

Texas House Bill HB352 Compare Versions

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

Old	New	Differences
1	1	86R102 JCG-D
2	2	By: Blanco H.B. No. 352
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to warrants issued to obtain cell site information through
8	8	the use of a cell site simulator device and to public access to
9	9	certain information relating to investigatory equipment; creating
10	10	a criminal offense.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Article 18.02(a), Code of Criminal Procedure, is
13	13	amended to read as follows:
14	14	(a) A search warrant may be issued to search for and seize:
15	15	(1) property acquired by theft or in any other manner
16	16	which makes its acquisition a penal offense;
17	17	(2) property specially designed, made, or adapted for
18	18	or commonly used in the commission of an offense;
19	19	(3) arms and munitions kept or prepared for the
20	20	purposes of insurrection or riot;
21	21	(4) weapons prohibited by the Penal Code;
22	22	(5) gambling devices or equipment, altered gambling
23	23	equipment, or gambling paraphernalia;
24	24	(6) obscene materials kept or prepared for commercial
25	25	distribution or exhibition, subject to the additional rules set
26	26	forth by law;
27	27	(7) a drug, controlled substance, immediate
28	28	precursor, chemical precursor, or other controlled substance
29	29	property, including an apparatus or paraphernalia kept, prepared,
30	30	or manufactured in violation of the laws of this state;
31	31	(8) any property the possession of which is prohibited
32	32	by law;
33	33	(9) implements or instruments used in the commission
34	34	of a crime;
35	35	(10) property or items, except the personal writings
36	36	by the accused, constituting evidence of an offense or constituting
37	37	evidence tending to show that a particular person committed an
38	38	offense;
39	39	(11) persons;
40	40	(12) contraband subject to forfeiture under Chapter 59
41	41	[of this code];
42	42	(13) electronic customer data held in electronic
43	43	storage, including the contents of and records and other
44	44	information related to a wire communication or electronic
45	45	communication held in electronic storage; [or]
46	46	(14) a cellular telephone or other wireless
47	47	communications device, subject to Article 18.0215; or
48	48	(15) cell site information as defined by Article
49	49	18B.221.
50	50	SECTION 2. Chapter 18B, Code of Criminal Procedure, is
51	51	amended by adding Subchapter E-1 to read as follows:
52	52	SUBCHAPTER E-1. CELL SITE SIMULATOR DEVICES
53	53	Art. 18B.221. DEFINITIONS. In this subchapter:
54	54	(1) "Cell site information" means any information,
55	55	including the content of a wire communication or electronic
56	56	communication, that is obtained from a cellular telephone or other
57	57	wireless communications device by operation of a cell site
58	58	simulator device and that concerns the location of the telephone or
59	59	device or reveals the identity of the subscriber or customer of a
60	60	communication common carrier, an electronic communications
61	61	service, or a remote computing service.
62	62	(2) "Cell site simulator device" means an
63	63	international mobile subscriber identity catcher or other device or
64	64	equipment that mimics a cellular telephone tower by transmitting to
65	65	cellular telephones or other wireless communications devices
66	66	within range of the device a signal that causes those cellular
67	67	telephones or other wireless communications devices to send cell
68	68	site information to the device.
69	69	Art. 18B.222. WARRANT FOR CELL SITE INFORMATION. (a) A
70	70	district judge may issue a warrant for the use of a cell site
71	71	simulator device to obtain cell site information from a cellular
72	72	telephone or other wireless communications device.
73	73	(b) A district judge may issue the warrant only on the
74	74	application of an authorized peace officer. An application must be
75	75	written and signed and sworn to or affirmed before the judge. The
76	76	affidavit must:
77	77	(1) state the name, department, agency, and address of
78	78	the applicant;
79	79	(2) identify the cellular telephone or other wireless
80	80	communications device to be monitored;
81	81	(3) state the name of the owner or possessor of the
82	82	cellular telephone or other wireless communications device to be
83	83	monitored;
84	84	(4) state the judicial district in which the cellular
85	85	telephone or other wireless communications device is reasonably
86	86	expected to be located; and
87	87	(5) state the facts and circumstances that provide the
88	88	applicant with probable cause to believe that:
89	89	(A) criminal activity has been, is being, or will
90	90	be committed; and
91	91	(B) acquisition of cell site information from the
92	92	cellular telephone or other wireless communications device is
93	93	likely to produce evidence in a criminal investigation of the
94	94	criminal activity described in Paragraph (A).
95	95	Art. 18B.223. JURISDICTION. (a) A warrant under this
96	96	subchapter may be issued in the same judicial district as the site
97	97	of:
98	98	(1) the investigation;
99	99	(2) the person who owns or possesses the cellular
100	100	telephone or other wireless communications device with respect to
101	101	which the warrant is sought; or
102	102	(3) the cellular telephone or other wireless
103	103	communications device with respect to which the warrant is sought.
104	104	(b) The warrant may authorize the acquisition of cell site
105	105	information obtained from a cellular telephone or other wireless
106	106	communications device that, at the time the cell site information
107	107	is acquired, is located outside the judicial district but within
108	108	the state if the applicant for the warrant reasonably believes the
109	109	telephone or device to be located within the district at the time
110	110	the warrant is issued.
111	111	Art. 18B.224. DURATION OF WARRANT. (a) A warrant issued
112	112	under this subchapter expires not later than the 90th day after the
113	113	date the warrant is issued, and cell site information may not be
114	114	obtained after the expiration date without an extension of the
115	115	warrant.
116	116	(b) For good cause shown, the judge may grant an extension
117	117	for an additional 90-day period.
118	118	Art. 18B.225. NOTIFICATION OF OWNER OR POSSESSOR. Not
119	119	later than the seventh day after the date of the expiration of a
120	120	warrant or the date of the expiration of any additional period, as
121	121	applicable, the authorized peace officer who requested the warrant
122	122	shall deliver a copy of the warrant to the owner or possessor of the
123	123	cellular telephone or other wireless communications device
124	124	searched by the cell site simulator device.
125	125	Art. 18B.226. ACCESS TO CELL SITE INFORMATION WITHOUT
126	126	WARRANT. (a) Notwithstanding any other law, an authorized peace
127	127	officer may obtain cell site information from a cellular telephone
128	128	or other wireless communications device by operation of a cell site
129	129	simulator device and without a warrant if:
130	130	(1) the telephone or device is reported stolen by the
131	131	owner or possessor; or
132	132	(2) there exists an immediate life-threatening
133	133	situation, as defined by Article 18A.201, that:
134	134	(A) is in the territorial jurisdiction of the law
135	135	enforcement agency that employs:
136	136	(i) the authorized peace officer operating
137	137	the device; or
138	138	(ii) a peace officer the authorized peace
139	139	officer operating the device is assisting; and
140	140	(B) to prevent death or serious bodily injury,
141	141	necessitates the use of the device before a warrant may be obtained
142	142	under this subchapter.
143	143	(b) An authorized peace officer must apply as soon as
144	144	practicable for a warrant to obtain cell site information from a
145	145	cellular telephone or other wireless communications device under a
146	146	circumstance described by Subsection (a)(2). If the district judge
147	147	finds that an immediate life-threatening situation, as defined by
148	148	Article 18A.201, did not occur and declines to issue the warrant,
149	149	any evidence obtained is not admissible in a criminal action.
150	150	Art. 18B.227. PROHIBITED ACTS BY PEACE OFFICER. A peace
151	151	officer may not obtain or use cell site information to assist with,
152	152	participate in, provide material support or resources for, or
153	153	enable or facilitate an investigation conducted by a law
154	154	enforcement agency of the federal government or of another state:
155	155	(1) without:
156	156	(A) the effective consent of the owner or
157	157	possessor of the cellular telephone or other wireless
158	158	communications device; or
159	159	(B) a warrant obtained under this subchapter; or
160	160	(2) unless Article 18B.226 or another exception to the
161	161	warrant requirement under state or federal law applies.
162	162	Art. 18B.228. CONTROL OF CELL SITE SIMULATOR DEVICE.
163	163	Except as otherwise provided by this subchapter, only the
164	164	department or a county or municipal law enforcement agency is
165	165	authorized to own, possess, install, operate, or monitor a cell
166	166	site simulator device.
167	167	Art. 18B.229. POLICY FOR DELETING EXTRANEOUS CELL SITE
168	168	INFORMATION REQUIRED. A state or local law enforcement agency that
169	169	obtains or uses a cell site simulator device shall adopt a written
170	170	policy for promptly deleting any cell site information collected by
171	171	the device that:
172	172	(1) is not relevant to a warrant issued under this
173	173	subchapter authorizing the use of the device; or
174	174	(2) does not provide the agency with a reasonable
175	175	suspicion that other criminal activity has been, is being, or will
176	176	be committed.
177	177	SECTION 3. Article 39.14(c), Code of Criminal Procedure, is
178	178	amended to read as follows:
179	179	(c) Except as otherwise provided by this subsection, if [If]
180	180	only a portion of the applicable document, item, or information is
181	181	subject to discovery under this article, the state is not required
182	182	to produce or permit the inspection of the remaining portion that is
183	183	not subject to discovery and may withhold or redact that portion.
184	184	The state shall inform the defendant that a portion of the document,
185	185	item, or information has been withheld or redacted. On request of
186	186	the defendant, the court shall conduct a hearing to determine
187	187	whether withholding or redaction is justified under this article or
188	188	other law. The state may not withhold on a claim of confidentiality
189	189	arising under a contract with any party, including under a
190	190	nondisclosure agreement, any portion of a document, an item, or
191	191	information that was obtained as a result of the execution of a
192	192	warrant under Subchapter E-1, Chapter 18B, and that is otherwise
193	193	discoverable under this article.
194	194	SECTION 4. Section 552.022(a), Government Code, is amended
195	195	to read as follows:
196	196	(a) Without limiting the amount or kind of information that
197	197	is public information under this chapter, the following categories
198	198	of information are public information and not excepted from
199	199	required disclosure unless made confidential under this chapter or
200	200	other law:
201	201	(1) a completed report, audit, evaluation, or
202	202	investigation made of, for, or by a governmental body, except as
203	203	provided by Section 552.108;
204	204	(2) the name, sex, ethnicity, salary, title, and dates
205	205	of employment of each employee and officer of a governmental body;
206	206	(3) information in an account, voucher, or contract
207	207	relating to the receipt or expenditure of public or other funds by a
208	208	governmental body;
209	209	(4) the name of each official and the final record of
210	210	voting on all proceedings in a governmental body;
211	211	(5) all working papers, research material, and
212	212	information used to estimate the need for or expenditure of public
213	213	funds or taxes by a governmental body, on completion of the
214	214	estimate;
215	215	(6) the name, place of business, and the name of the
216	216	municipality to which local sales and use taxes are credited, if
217	217	any, for the named person, of a person reporting or paying sales and
218	218	use taxes under Chapter 151, Tax Code;
219	219	(7) a description of an agency's central and field
220	220	organizations, including:
221	221	(A) the established places at which the public
222	222	may obtain information, submit information or requests, or obtain
223	223	decisions;
224	224	(B) the employees from whom the public may obtain
225	225	information, submit information or requests, or obtain decisions;
226	226	(C) in the case of a uniformed service, the
227	227	members from whom the public may obtain information, submit
228	228	information or requests, or obtain decisions; and
229	229	(D) the methods by which the public may obtain
230	230	information, submit information or requests, or obtain decisions;
231	231	(8) a statement of the general course and method by
232	232	which an agency's functions are channeled and determined, including
233	233	the nature and requirements of all formal and informal policies and
234	234	procedures;
235	235	(9) a rule of procedure, a description of forms
236	236	available or the places at which forms may be obtained, and
237	237	instructions relating to the scope and content of all papers,
238	238	reports, or examinations;
239	239	(10) a substantive rule of general applicability
240	240	adopted or issued by an agency as authorized by law, and a statement
241	241	of general policy or interpretation of general applicability
242	242	formulated and adopted by an agency;
243	243	(11) each amendment, revision, or repeal of
244	244	information described by Subdivisions (7)-(10);
245	245	(12) final opinions, including concurring and
246	246	dissenting opinions, and orders issued in the adjudication of
247	247	cases;
248	248	(13) a policy statement or interpretation that has
249	249	been adopted or issued by an agency;
250	250	(14) administrative staff manuals and instructions to
251	251	staff that affect a member of the public;
252	252	(15) information regarded as open to the public under
253	253	an agency's policies;
254	254	(16) information that is in a bill for attorney's fees
255	255	and that is not privileged under the attorney-client privilege;
256	256	(17) information that is also contained in a public
257	257	court record; [and]
258	258	(18) a settlement agreement to which a governmental
259	259	body is a party; and
260	260	(19) information regarding the purchase, sale,
261	261	receipt, possession, or use of investigatory equipment by a state
262	262	or local law enforcement agency or by a criminal justice agency of
263	263	the state or of a political subdivision of the state.
264	264	SECTION 5. Section 552.108, Government Code, is amended by
265	265	adding Subsection (d) to read as follows:
266	266	(d) This section does not except from the requirements of
267	267	Section 552.021 information regarding the purchase, sale, receipt,
268	268	possession, or use of investigatory equipment by a state or local
269	269	law enforcement agency or by a criminal justice agency of the state
270	270	or of a political subdivision of the state.
271	271	SECTION 6. Subchapter C, Chapter 552, Government Code, is
272	272	amended by adding Section 552.1086 to read as follows:
273	273	Sec. 552.1086. INVESTIGATORY EQUIPMENT. (a) Information
274	274	described by Section 552.022(a)(19) remains subject to the
275	275	requirements of Section 552.021 regardless of whether that
276	276	information is included in a contract in which one of the parties is
277	277	the state, a state agency, a political subdivision of the state, or
278	278	an agency of a political subdivision of the state.
279	279	(b) A term included in a contract described by Subsection
280	280	(a) or in any nondisclosure agreement between the parties to that
281	281	contract is not effective to except from disclosure information
282	282	described by Section 552.022(a)(19).
283	283	SECTION 7. The heading to Section 16.03, Penal Code, is
284	284	amended to read as follows:
285	285	Sec. 16.03. UNLAWFUL USE OF CELL SITE SIMULATOR DEVICE, PEN
286	286	REGISTER, OR TRAP AND TRACE DEVICE.
287	287	SECTION 8. Section 16.03, Penal Code, is amended by
288	288	amending Subsections (a), (b), as effective January 1, 2019, and
289	289	(c), as effective January 1, 2019, and adding Subsections (a-1),
290	290	(c-1), and (c-2) to read as follows:
291	291	(a) A person commits an offense if the person knowingly
292	292	installs or uses:
293	293	(1) a cell site simulator device to obtain cell site
294	294	information from a cellular telephone or other wireless
295	295	communications device; or
296	296	(2) a pen register or trap and trace device to record
297	297	or decode electronic or other impulses for the purpose of
298	298	identifying telephone numbers dialed or otherwise transmitted on a
299	299	telephone line.
300	300	(a-1) A person commits an offense if the person knowingly
301	301	obtains or uses cell site information to assist with, participate
302	302	in, provide material support or resources for, or enable or
303	303	facilitate an investigation conducted by a law enforcement agency
304	304	of the federal government or of another state.
305	305	(b) In this section:
306	306	(1) "Authorized peace officer," "pen register,"
307	307	"remote computing service," and "trap and trace device" have the
308	308	meanings assigned by Article 18B.001, Code of Criminal Procedure.
309	309	(2) "Cell site information" and "cell site simulator
310	310	device" have the meanings assigned by Article 18B.221, Code of
311	311	Criminal Procedure.
312	312	(3) "Communication common carrier" and "electronic
313	313	communications service" have [has] the meanings [meaning] assigned
314	314	by Article 18A.001, Code of Criminal Procedure.
315	315	(c) It is an affirmative defense to prosecution under
316	316	Subsection (a) that the actor is:
317	317	(1) an officer, employee, or agent of a communication
318	318	common carrier or of the provider of an electronic communications
319	319	service or remote computing service and the actor installs or uses a
320	320	device or equipment to obtain information from a cellular telephone
321	321	or other wireless communications device or to record a number
322	322	dialed from or to a telephone [instrument] in the normal course of
323	323	business of the carrier or service provider for purposes of:
324	324	(A) protecting property or services provided by
325	325	the carrier or service provider; or
326	326	(B) assisting another who the actor reasonably
327	327	believes to be a peace officer authorized to install or use a cell
328	328	site simulator device, pen register, or trap and trace device under
329	329	Chapter 18B, Code of Criminal Procedure;
330	330	(2) an officer, employee, or agent of a lawful
331	331	enterprise and the actor installs or uses a device or equipment
332	332	while engaged in an activity that:
333	333	(A) is a necessary incident to the rendition of
334	334	service or to the protection of property of or services provided by
335	335	the enterprise; and
336	336	(B) is not made for the purpose of gathering
337	337	information for a law enforcement agency or private investigative
338	338	agency, other than information related to the theft of
339	339	communication or information services provided by the enterprise;
340	340	or
341	341	(3) a person authorized to install or use a cell site
342	342	simulator device, pen register, or trap and trace device under
343	343	Chapter 18B, Code of Criminal Procedure.
344	344	(c-1) It is an affirmative defense to prosecution under
345	345	Subsection (a) for the use of a cell site simulator device that the
346	346	owner or possessor of a cellular telephone or other wireless
347	347	communications device gave effective consent to the actor's
348	348	retrieval of cell site information from the telephone or device.
349	349	(c-2) It is an affirmative defense to prosecution under
350	350	Subsection (a-1) that the actor is an authorized peace officer and:
351	351	(1) the actor obtained the effective consent of the
352	352	owner or possessor of the cellular telephone or other wireless
353	353	communications device;
354	354	(2) a warrant authorizing the conduct has been
355	355	obtained under Subchapter E-1, Chapter 18B, Code of Criminal
356	356	Procedure; or
357	357	(3) Article 18B.226, Code of Criminal Procedure, or
358	358	another exception to the warrant requirement under state or federal
359	359	law applies.
360	360	SECTION 9. The changes in law made by this Act to Article
361	361	18.02 and Chapter 18B, Code of Criminal Procedure, apply only to a
362	362	warrant issued on or after the effective date of this Act. A
363	363	warrant issued before the effective date of this Act is governed by
364	364	the law in effect on the date the warrant was issued, and the former
365	365	law is continued in effect for that purpose.
366	366	SECTION 10. The change in law made by this Act to Article
367	367	39.14(c), Code of Criminal Procedure, applies only to the
368	368	prosecution of an offense committed on or after the effective date
369	369	of this Act. The prosecution of an offense committed before the
370	370	effective date of this Act is governed by the law in effect on the
371	371	date the offense was committed, and the former law is continued in
372	372	effect for that purpose. For purposes of this section, an offense
373	373	is committed before the effective date of this Act if any element of
374	374	the offense occurs before the effective date.
375	375	SECTION 11. The changes in law made by this Act to Chapter
376	376	552, Government Code, apply to information, records, and notations
377	377	collected, made, assembled, or maintained on, before, or after the
378	378	effective date of this Act.
379	379	SECTION 12. The change in law made by this Act to Section
380	380	16.03, Penal Code, applies only to an offense committed on or after
381	381	the effective date of this Act. An offense committed before the
382	382	effective date of this Act is governed by the law in effect on the
383	383	date the offense was committed, and the former law is continued in
384	384	effect for that purpose. For purposes of this section, an offense
385	385	was committed before the effective date of this Act if any element
386	386	of the offense occurred before that date.
387	387	SECTION 13. This Act takes effect September 1, 2019.