86R102 JCG-D
By: Blanco H.B. No. 352
A BILL TO BE ENTITLED
AN ACT
relating to warrants issued to obtain cell site information through
the use of a cell site simulator device and to public access to
certain information relating to investigatory equipment; creating
a criminal 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];
(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) a cellular telephone or other wireless
communications device, subject to Article 18.0215; or
(15) cell site information as defined by Article
18B.221.
SECTION 2. Chapter 18B, Code of Criminal Procedure, is
amended by adding Subchapter E-1 to read as follows:
SUBCHAPTER E-1. CELL SITE SIMULATOR DEVICES
Art. 18B.221. DEFINITIONS. In this subchapter:
(1) "Cell site information" means any information,
including the content of a wire communication or electronic
communication, that is obtained from a cellular telephone or other
wireless communications device by operation of a cell site
simulator device and that concerns the location of the telephone or
device or reveals the identity of the subscriber or customer of a
communication common carrier, an electronic communications
service, or a remote computing service.
(2) "Cell site simulator device" means an
international mobile subscriber identity catcher or other device or
equipment that mimics a cellular telephone tower by transmitting to
cellular telephones or other wireless communications devices
within range of the device a signal that causes those cellular
telephones or other wireless communications devices to send cell
site information to the device.
Art. 18B.222. WARRANT FOR CELL SITE INFORMATION. (a) A
district judge may issue a warrant for the use of a cell site
simulator device to obtain cell site information from a cellular
telephone or other wireless communications device.
(b) A district judge may issue the warrant only on the
application of an authorized 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 other wireless
communications device to be monitored;
(3) state the name of the owner or possessor of the
cellular telephone or other wireless communications device to be
monitored;
(4) state the judicial district in which the cellular
telephone or other wireless communications device is reasonably
expected to be located; and
(5) state the facts and circumstances that provide the
applicant with probable cause to believe that:
(A) criminal activity has been, is being, or will
be committed; and
(B) acquisition of cell site information from the
cellular telephone or other wireless communications device is
likely to produce evidence in a criminal investigation of the
criminal activity described in Paragraph (A).
Art. 18B.223. JURISDICTION. (a) A warrant under this
subchapter may be issued in the same judicial district as the site
of:
(1) the investigation;
(2) the person who owns or possesses the cellular
telephone or other wireless communications device with respect to
which the warrant is sought; or
(3) the cellular telephone or other wireless
communications device with respect to which the warrant is sought.
(b) The warrant may authorize the acquisition of cell site
information obtained from a cellular telephone or other wireless
communications device that, at the time the cell site 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.
Art. 18B.224. DURATION OF WARRANT. (a) A warrant issued
under this subchapter expires not later than the 90th day after the
date the warrant is issued, and cell site information may not be
obtained after the expiration date without an extension of the
warrant.
(b) For good cause shown, the judge may grant an extension
for an additional 90-day period.
Art. 18B.225. NOTIFICATION OF OWNER OR POSSESSOR. Not
later than the seventh day after the date of the expiration of a
warrant or the date of the expiration of any additional period, as
applicable, the authorized peace officer who requested the warrant
shall deliver a copy of the warrant to the owner or possessor of the
cellular telephone or other wireless communications device
searched by the cell site simulator device.
Art. 18B.226. ACCESS TO CELL SITE INFORMATION WITHOUT
WARRANT. (a) Notwithstanding any other law, an authorized peace
officer may obtain cell site information from a cellular telephone
or other wireless communications device by operation of a cell site
simulator device and without a warrant if:
(1) the telephone or device is reported stolen by the
owner or possessor; or
(2) there exists an immediate life-threatening
situation, as defined by Article 18A.201, that:
(A) is in the territorial jurisdiction of the law
enforcement agency that employs:
(i) the authorized peace officer operating
the device; or
(ii) a peace officer the authorized peace
officer operating the device is assisting; and
(B) to prevent death or serious bodily injury,
necessitates the use of the device before a warrant may be obtained
under this subchapter.
(b) An authorized peace officer must apply as soon as
practicable for a warrant to obtain cell site information from a
cellular telephone or other wireless communications device under a
circumstance described by Subsection (a)(2). If the district judge
finds that an immediate life-threatening situation, as defined by
Article 18A.201, did not occur and declines to issue the warrant,
any evidence obtained is not admissible in a criminal action.
Art. 18B.227. PROHIBITED ACTS BY PEACE OFFICER. A peace
officer may not obtain or use cell site information to assist with,
participate in, provide material support or resources for, or
enable or facilitate an investigation conducted by a law
enforcement agency of the federal government or of another state:
(1) without:
(A) the effective consent of the owner or
possessor of the cellular telephone or other wireless
communications device; or
(B) a warrant obtained under this subchapter; or
(2) unless Article 18B.226 or another exception to the
warrant requirement under state or federal law applies.
Art. 18B.228. CONTROL OF CELL SITE SIMULATOR DEVICE.
Except as otherwise provided by this subchapter, only the
department or a county or municipal law enforcement agency is
authorized to own, possess, install, operate, or monitor a cell
site simulator device.
Art. 18B.229. POLICY FOR DELETING EXTRANEOUS CELL SITE
INFORMATION REQUIRED. A state or local law enforcement agency that
obtains or uses a cell site simulator device shall adopt a written
policy for promptly deleting any cell site information collected by
the device that:
(1) is not relevant to a warrant issued under this
subchapter authorizing the use of the device; or
(2) does not provide the agency with a reasonable
suspicion that other criminal activity has been, is being, or will
be committed.
SECTION 3. Article 39.14(c), Code of Criminal Procedure, is
amended to read as follows:
(c) Except as otherwise provided by this subsection, if [If]
only a portion of the applicable document, item, or information is
subject to discovery under this article, the state is not required
to produce or permit the inspection of the remaining portion that is
not subject to discovery and may withhold or redact that portion.
The state shall inform the defendant that a portion of the document,
item, or information has been withheld or redacted. On request of
the defendant, the court shall conduct a hearing to determine
whether withholding or redaction is justified under this article or
other law. The state may not withhold on a claim of confidentiality
arising under a contract with any party, including under a
nondisclosure agreement, any portion of a document, an item, or
information that was obtained as a result of the execution of a
warrant under Subchapter E-1, Chapter 18B, and that is otherwise
discoverable under this article.
SECTION 4. Section 552.022(a), Government Code, is amended
to read as follows:
(a) Without limiting the amount or kind of information that
is public information under this chapter, the following categories
of information are public information and not excepted from
required disclosure unless made confidential under this chapter or
other law:
(1) a completed report, audit, evaluation, or
investigation made of, for, or by a governmental body, except as
provided by Section 552.108;
(2) the name, sex, ethnicity, salary, title, and dates
of employment of each employee and officer of a governmental body;
(3) information in an account, voucher, or contract
relating to the receipt or expenditure of public or other funds by a
governmental body;
(4) the name of each official and the final record of
voting on all proceedings in a governmental body;
(5) all working papers, research material, and
information used to estimate the need for or expenditure of public
funds or taxes by a governmental body, on completion of the
estimate;
(6) the name, place of business, and the name of the
municipality to which local sales and use taxes are credited, if
any, for the named person, of a person reporting or paying sales and
use taxes under Chapter 151, Tax Code;
(7) a description of an agency's central and field
organizations, including:
(A) the established places at which the public
may obtain information, submit information or requests, or obtain
decisions;
(B) the employees from whom the public may obtain
information, submit information or requests, or obtain decisions;
(C) in the case of a uniformed service, the
members from whom the public may obtain information, submit
information or requests, or obtain decisions; and
(D) the methods by which the public may obtain
information, submit information or requests, or obtain decisions;
(8) a statement of the general course and method by
which an agency's functions are channeled and determined, including
the nature and requirements of all formal and informal policies and
procedures;
(9) a rule of procedure, a description of forms
available or the places at which forms may be obtained, and
instructions relating to the scope and content of all papers,
reports, or examinations;
(10) a substantive rule of general applicability
adopted or issued by an agency as authorized by law, and a statement
of general policy or interpretation of general applicability
formulated and adopted by an agency;
(11) each amendment, revision, or repeal of
information described by Subdivisions (7)-(10);
(12) final opinions, including concurring and
dissenting opinions, and orders issued in the adjudication of
cases;
(13) a policy statement or interpretation that has
been adopted or issued by an agency;
(14) administrative staff manuals and instructions to
staff that affect a member of the public;
(15) information regarded as open to the public under
an agency's policies;
(16) information that is in a bill for attorney's fees
and that is not privileged under the attorney-client privilege;
(17) information that is also contained in a public
court record; [and]
(18) a settlement agreement to which a governmental
body is a party; and
(19) information regarding the purchase, sale,
receipt, possession, or use of investigatory equipment by a state
or local law enforcement agency or by a criminal justice agency of
the state or of a political subdivision of the state.
SECTION 5. Section 552.108, Government Code, is amended by
adding Subsection (d) to read as follows:
(d) This section does not except from the requirements of
Section 552.021 information regarding the purchase, sale, receipt,
possession, or use of investigatory equipment by a state or local
law enforcement agency or by a criminal justice agency of the state
or of a political subdivision of the state.
SECTION 6. Subchapter C, Chapter 552, Government Code, is
amended by adding Section 552.1086 to read as follows:
Sec. 552.1086. INVESTIGATORY EQUIPMENT. (a) Information
described by Section 552.022(a)(19) remains subject to the
requirements of Section 552.021 regardless of whether that
information is included in a contract in which one of the parties is
the state, a state agency, a political subdivision of the state, or
an agency of a political subdivision of the state.
(b) A term included in a contract described by Subsection
(a) or in any nondisclosure agreement between the parties to that
contract is not effective to except from disclosure information
described by Section 552.022(a)(19).
SECTION 7. The heading to Section 16.03, Penal Code, is
amended to read as follows:
Sec. 16.03. UNLAWFUL USE OF CELL SITE SIMULATOR DEVICE, PEN
REGISTER, OR TRAP AND TRACE DEVICE.
SECTION 8. Section 16.03, Penal Code, is amended by
amending Subsections (a), (b), as effective January 1, 2019, and
(c), as effective January 1, 2019, and adding Subsections (a-1),
(c-1), and (c-2) to read as follows:
(a) A person commits an offense if the person knowingly
installs or uses:
(1) a cell site simulator device to obtain cell site
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.
(a-1) A person commits an offense if the person knowingly
obtains or uses cell site information to assist with, participate
in, provide material support or resources for, or enable or
facilitate an investigation conducted by a law enforcement agency
of the federal government or of another state.
(b) In this section:
(1) "Authorized peace officer," "pen register,"
"remote computing service," and "trap and trace device" have the
meanings assigned by Article 18B.001, Code of Criminal Procedure.
(2) "Cell site information" and "cell site simulator
device" have the meanings assigned by Article 18B.221, Code of
Criminal Procedure.
(3) "Communication common carrier" and "electronic
communications service" have [has] the meanings [meaning] assigned
by Article 18A.001, 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 communication
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 a cell
site simulator device, pen register, or trap and trace device under
Chapter 18B, 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 a cell site
simulator device, pen register, or trap and trace device under
Chapter 18B, Code of Criminal Procedure.
(c-1) It is an affirmative defense to prosecution under
Subsection (a) for the use of a cell site simulator device that the
owner or possessor of a cellular telephone or other wireless
communications device gave effective consent to the actor's
retrieval of cell site information from the telephone or device.
(c-2) It is an affirmative defense to prosecution under
Subsection (a-1) that the actor is an authorized peace officer and:
(1) the actor obtained the effective consent of the
owner or possessor of the cellular telephone or other wireless
communications device;
(2) a warrant authorizing the conduct has been
obtained under Subchapter E-1, Chapter 18B, Code of Criminal
Procedure; or
(3) Article 18B.226, Code of Criminal Procedure, or
another exception to the warrant requirement under state or federal
law applies.
SECTION 9. The changes in law made by this Act to Article
18.02 and Chapter 18B, Code of Criminal Procedure, apply 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.
SECTION 10. The change in law made by this Act to Article
39.14(c), Code of Criminal Procedure, applies only to the
prosecution of an offense committed on or after the effective date
of this Act. The prosecution of an offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
is committed before the effective date of this Act if any element of
the offense occurs before the effective date.
SECTION 11. The changes in law made by this Act to Chapter
552, Government Code, apply to information, records, and notations
collected, made, assembled, or maintained on, before, or after the
effective date of this Act.
SECTION 12. The change in law made by this Act to Section
16.03, Penal Code, applies only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
SECTION 13. This Act takes effect September 1, 2019.