Texas 2019 - 86th Regular

Texas House Bill HB3914 Compare Versions

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

Old	New	Differences
1	1	86R12560 JCG-F
2	2	By: Sherman, Sr. H.B. No. 3914
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to warrants and orders issued for the use of tracking
8	8	equipment and access to electronic communications to further a
9	9	criminal investigation.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Article 18.02(a), Code of Criminal Procedure, is
12	12	amended to read as follows:
13	13	(a) A search warrant may be issued to search for and seize:
14	14	(1) property acquired by theft or in any other manner
15	15	which makes its acquisition a penal offense;
16	16	(2) property specially designed, made, or adapted for
17	17	or commonly used in the commission of an offense;
18	18	(3) arms and munitions kept or prepared for the
19	19	purposes of insurrection or riot;
20	20	(4) weapons prohibited by the Penal Code;
21	21	(5) gambling devices or equipment, altered gambling
22	22	equipment, or gambling paraphernalia;
23	23	(6) obscene materials kept or prepared for commercial
24	24	distribution or exhibition, subject to the additional rules set
25	25	forth by law;
26	26	(7) a drug, controlled substance, immediate
27	27	precursor, chemical precursor, or other controlled substance
28	28	property, including an apparatus or paraphernalia kept, prepared,
29	29	or manufactured in violation of the laws of this state;
30	30	(8) any property the possession of which is prohibited
31	31	by law;
32	32	(9) implements or instruments used in the commission
33	33	of a crime;
34	34	(10) property or items, except the personal writings
35	35	by the accused, constituting evidence of an offense or constituting
36	36	evidence tending to show that a particular person committed an
37	37	offense;
38	38	(11) persons;
39	39	(12) contraband subject to forfeiture under Chapter 59
40	40	[of this code];
41	41	(13) electronic customer data held in electronic
42	42	storage, including:
43	43	(A) the contents of and records and other
44	44	information related to a wire communication or electronic
45	45	communication held in electronic storage; and
46	46	(B) location information; or
47	47	(14) a cellular telephone or other wireless
48	48	communications device, subject to Article 18.0215.
49	49	SECTION 2. Article 18.02(b)(2), Code of Criminal Procedure,
50	50	is amended to read as follows:
51	51	(2) "Electronic customer data," [data" and]
52	52	"electronic storage," and "location information" [storage"] have
53	53	the meanings assigned by Article 18B.001.
54	54	SECTION 3. Article 18B.001, Code of Criminal Procedure, is
55	55	amended by amending Subdivisions (1), (4), and (7) and adding
56	56	Subdivision (9-a) to read as follows:
57	57	(1) "Authorized peace officer" means:
58	58	(A) a sheriff or deputy sheriff;
59	59	(B) a constable or deputy constable;
60	60	(C) a marshal or police officer of a
61	61	municipality;
62	62	(D) a ranger or officer commissioned by the
63	63	Public Safety Commission or the director of the department;
64	64	(E) an investigator of a prosecutor's office;
65	65	(F) a law enforcement agent of the Texas
66	66	Alcoholic Beverage Commission;
67	67	(G) a law enforcement officer commissioned by the
68	68	Parks and Wildlife Commission;
69	69	(H) an enforcement officer appointed by the
70	70	inspector general of the Texas Department of Criminal Justice under
71	71	Section 493.019, Government Code;
72	72	(I) an investigator commissioned by the attorney
73	73	general under Section 402.009, Government Code; [or]
74	74	(J) a member of an arson investigating unit
75	75	commissioned by a municipality, a county, or the state;
76	76	(K) a criminal investigator of the United States
77	77	as described by Article 2.122(a); or
78	78	(L) a peace officer appointed by a federal agency
79	79	listed in Article 2.122(a) as a criminal investigator of the
80	80	agency.
81	81	(4) "Designated law enforcement office or agency"
82	82	means:
83	83	(A) the sheriff's department of a county with a
84	84	population of 3.3 million or more;
85	85	(B) a police department in a municipality with a
86	86	population of 500,000 or more; [or]
87	87	(C) the office of inspector general of the Texas
88	88	Department of Criminal Justice;
89	89	(D) the office of a prosecutor; or
90	90	(E) a federal agency described by Article
91	91	2.122(a) that has employed:
92	92	(i) a criminal investigator; or
93	93	(ii) a peace officer described by
94	94	Subdivision (1)(L).
95	95	(7) Except as otherwise provided by this chapter,
96	96	"electronic ["Electronic] customer data" means data or records
97	97	that:
98	98	(A) are in the possession, care, custody, or
99	99	control of a provider of an electronic communications service or
100	100	provider of a remote computing service; and
101	101	(B) contain:
102	102	(i) information revealing the identity of
103	103	customers of the applicable service;
104	104	(ii) information about a customer's use of
105	105	the applicable service;
106	106	(iii) information that identifies the
107	107	recipient or destination of a wire or electronic communication sent
108	108	to or by a customer;
109	109	(iv) the content of a wire or electronic
110	110	communication sent to or by a customer; [and]
111	111	(v) any data stored with the applicable
112	112	service provider by or on behalf of a customer; and
113	113	(vi) location information.
114	114	(9-a) "Location information" means information that
115	115	reveals the location of a wireless communications device obtained
116	116	by any of the following methods:
117	117	(A) using GPS location-based measurements,
118	118	including the querying of the target device's GPS service and the
119	119	returned coordinates;
120	120	(B) comparing a record of the target device's IP
121	121	address to a list of known IP addresses and approximate known
122	122	locations;
123	123	(C) querying the target device's operating
124	124	system for the identity of nearby cellular towers and uploading the
125	125	information to a server where the cellular tower identification may
126	126	be compared to a list of known cellular tower locations;
127	127	(D) querying the target device's operating
128	128	system for the identifier (such as SSID or (B)SSID) associated with
129	129	a nearby Wi-Fi access point and uploading that information to a
130	130	server where the access point's identifier may be compared to a
131	131	database or list of known identifiers of Wi-Fi access points in
132	132	known locations;
133	133	(E) using records derived from the device's
134	134	connections to radio antennas through which a provider of an
135	135	electronic communications service or provider of a remote computing
136	136	service provides wireless service to that device;
137	137	(F) using enhanced 9-1-1 location-based
138	138	measurements; and
139	139	(G) any combination of methods described in this
140	140	subdivision or another similar method used to determine the
141	141	location of a wireless communications device.
142	142	SECTION 4. Articles 18B.051(a), (c), and (d), Code of
143	143	Criminal Procedure, are amended to read as follows:
144	144	(a) A prosecutor with jurisdiction in a county within a
145	145	judicial district described by Article 18B.052 may file with a
146	146	district judge in the judicial district an application for the
147	147	installation and use of a pen register, ESN reader, trap and trace
148	148	device, or similar equipment or the use of similar equipment that
149	149	does not require installation [that combines the function of a pen
150	150	register and a trap and trace device].
151	151	(c) A prosecutor must make an application personally and may
152	152	not make the application through an assistant or other person
153	153	acting on the prosecutor's behalf if the prosecutor:
154	154	(1) files an application on the prosecutor's own
155	155	motion; or
156	156	(2) files an application for the use or installation
157	157	and use, as applicable, of a pen register, ESN reader, or similar
158	158	equipment on the request of an authorized peace officer not
159	159	commissioned by the department, other than an authorized peace
160	160	officer employed by a designated law enforcement office or agency.
161	161	(d) A prosecutor may make an application through an
162	162	assistant or other person acting on the prosecutor's behalf if the
163	163	prosecutor files an application for the use or installation and
164	164	use, as applicable, of:
165	165	(1) a pen register, ESN reader, or similar equipment
166	166	on the request of:
167	167	(A) an authorized peace officer who is
168	168	commissioned by the department; or
169	169	(B) an authorized peace officer of a designated
170	170	law enforcement office or agency; or
171	171	(2) a trap and trace device or similar equipment on the
172	172	request of an authorized peace officer, regardless of whether the
173	173	peace officer is commissioned by the department.
174	174	SECTION 5. Article 18B.053, Code of Criminal Procedure, is
175	175	amended to read as follows:
176	176	Art. 18B.053. APPLICATION REQUIREMENTS. An application
177	177	under this subchapter must:
178	178	(1) be made in writing under oath;
179	179	(2) include the name of the subscriber and the
180	180	telephone number and location of the communication device on which
181	181	the pen register, ESN reader, trap and trace device, or similar
182	182	equipment will be used, to the extent that information is known or
183	183	is reasonably ascertainable; [and]
184	184	(3) state that the use or installation and use, as
185	185	applicable, of the device or equipment will likely produce
186	186	information that is material to an ongoing criminal investigation;
187	187	and
188	188	(4) state articulable facts sufficient to support a
189	189	finding of probable cause to believe that the use or installation
190	190	and use, as applicable, of the device or equipment will:
191	191	(A) produce evidence of an offense in the
192	192	criminal investigation; or
193	193	(B) result in the apprehension of a fugitive from
194	194	justice.
195	195	SECTION 6. Article 18B.101(a), Code of Criminal Procedure,
196	196	is amended to read as follows:
197	197	(a) On presentation of an application under Subchapter B, a
198	198	judge may order the use or installation and use, as applicable, of a
199	199	pen register, ESN reader, or similar equipment by an authorized
200	200	peace officer commissioned by the department or an authorized peace
201	201	officer of a designated law enforcement office or agency.
202	202	SECTION 7. Article 18B.104(a), Code of Criminal Procedure,
203	203	is amended to read as follows:
204	204	(a) An order for the use or installation and use of a device
205	205	or equipment under this subchapter is valid for a period not to
206	206	exceed 60 days after the earlier of the date the device or equipment
207	207	is installed or used or the 10th day after the date the order is
208	208	entered, unless the prosecutor applies for and obtains an extension
209	209	of the order from the court before the order expires.
210	210	SECTION 8. Article 18B.105, Code of Criminal Procedure, is
211	211	amended to read as follows:
212	212	Art. 18B.105. SEALING RECORDS OF APPLICATION AND ORDER. A
213	213	district court shall seal an application and order granted under
214	214	this chapter. The court may not unseal the application and order
215	215	until after the order has expired.
216	216	SECTION 9. Article 18B.151(b), Code of Criminal Procedure,
217	217	is amended to read as follows:
218	218	(b) An authorized peace officer employed by a designated law
219	219	enforcement agency [A peace officer authorized to possess, install,
220	220	operate, or monitor a device under Subchapter E, Chapter 18A,] may
221	221	use or install and use, as applicable, a pen register, [or] trap and
222	222	trace device, ESN reader, or other similar device if the peace
223	223	officer has probable cause to believe [reasonably believes]:
224	224	(1) an immediate life-threatening situation exists
225	225	that:
226	226	(A) is within the territorial jurisdiction of the
227	227	peace officer or another authorized peace officer the peace officer
228	228	is assisting; and
229	229	(B) requires the use or installation and use of a
230	230	pen register, [or] trap and trace device, ESN reader, or other
231	231	similar device before an order authorizing the installation and use
232	232	can, with due diligence, be obtained under this chapter; and
233	233	(2) there are sufficient grounds under this chapter on
234	234	which to obtain an order authorizing the use or installation and use
235	235	of a pen register, [or] trap and trace device, ESN reader, or other
236	236	similar device.
237	237	SECTION 10. Article 18B.152, Code of Criminal Procedure, is
238	238	amended to read as follows:
239	239	Art. 18B.152. ORDER AUTHORIZING EMERGENCY INSTALLATION OR
240	240	[AND] USE. (a) A peace officer who installs or uses a pen register,
241	241	[or] trap and trace device, ESN reader, or other similar device
242	242	under Article 18B.151 shall:
243	243	(1) promptly report the installation or use of the
244	244	device to the prosecutor or an assistant of the prosecutor in the
245	245	county in which the device is installed or used; and
246	246	(2) within 48 hours after the installation of the
247	247	device is complete or the use of the device begins, whichever occurs
248	248	first, obtain an order under Subchapter C authorizing the use or
249	249	installation and use of the device.
250	250	(b) A judge may issue an order authorizing the use or
251	251	installation and use of a device under this subchapter during the
252	252	48-hour period prescribed by Subsection (a)(2). If an order is
253	253	denied or is not issued within the 48-hour period, the peace officer
254	254	shall terminate use of, and if necessary remove, the [pen register
255	255	or trap and trace] device promptly on the earlier of the denial or
256	256	the expiration of 48 hours.
257	257	SECTION 11. Article 18B.153, Code of Criminal Procedure, is
258	258	amended to read as follows:
259	259	Art. 18B.153. ADMISSIBILITY OF EVIDENCE OBTAINED. The
260	260	state may not use as evidence in a criminal proceeding any
261	261	information gained through [the use of] a pen register, [or] trap
262	262	and trace device, ESN reader, or other similar device installed or
263	263	used under this subchapter if an authorized peace officer:
264	264	(1) does not apply for authorization for the [pen
265	265	register or trap and trace] device; or
266	266	(2) applies for but does not obtain that
267	267	authorization.
268	268	SECTION 12. Article 18B.202(c), Code of Criminal Procedure,
269	269	is amended to read as follows:
270	270	(c) The affidavit must:
271	271	(1) state the name, department, agency, and address of
272	272	the applicant;
273	273	(2) identify the vehicle, container, or item to which,
274	274	in which, or on which the mobile tracking device is to be attached,
275	275	placed, or otherwise installed;
276	276	(3) state the name of the owner or possessor of the
277	277	vehicle, container, or item identified under Subdivision (2);
278	278	(4) state the judicial jurisdictional area in which
279	279	the vehicle, container, or item identified under Subdivision (2) is
280	280	expected to be found; and
281	281	(5) state the facts and circumstances that provide the
282	282	applicant with probable cause [a reasonable suspicion] that:
283	283	(A) criminal activity has been, is, or will be
284	284	committed; and
285	285	(B) the installation and use of a mobile tracking
286	286	device is likely to produce information that is material to an
287	287	ongoing criminal investigation of that criminal activity.
288	288	SECTION 13. Article 18B.253, Code of Criminal Procedure, is
289	289	amended to read as follows:
290	290	Art. 18B.253. LIMITATION: PEN REGISTERS AND SIMILAR
291	291	DEVICES. To prevent inclusion of the contents of a wire or
292	292	electronic communication, a governmental agency authorized to use
293	293	or install and use a pen register, trap and trace device, ESN
294	294	reader, or similar device under this chapter or other law must, as
295	295	applicable:
296	296	(1) use reasonably available technology to only record
297	297	and decode electronic or other impulses used to identify the
298	298	numbers dialed, routed, addressed, or otherwise processed or
299	299	transmitted by the communication; or
300	300	(2) otherwise configure the device such that the
301	301	device does not collect the content of a wire or electronic
302	302	communication, and if necessary, immediately delete the content of
303	303	a wire or electronic communication incidentally collected in using
304	304	the device.
305	305	SECTION 14. Chapter 18B, Code of Criminal Procedure, is
306	306	amended by adding Subchapter G-1 to read as follows:
307	307	SUBCHAPTER G-1. CERTAIN ELECTRONIC CUSTOMER DATA
308	308	Art. 18B.321. DEFINITION. In this subchapter, "electronic
309	309	customer data" means data or records, other than the content of a
310	310	wire or electronic communication, that:
311	311	(1) are in the possession, care, custody, or control
312	312	of a provider of an electronic communications service or provider
313	313	of a remote computing service; and
314	314	(2) contain:
315	315	(A) information revealing the identity of
316	316	customers of the applicable service;
317	317	(B) information about a customer's use of the
318	318	applicable service;
319	319	(C) information that identifies the recipient or
320	320	destination of a wire or electronic communication sent to or by a
321	321	customer; and
322	322	(D) location information.
323	323	Art. 18B.322. PROSPECTIVE SURVEILLANCE; APPLICABILITY OF
324	324	OTHER PROVISIONS. (a) With respect to location information, this
325	325	subchapter applies only to a warrant described by Article 18B.323
326	326	for the required disclosure of location information that is created
327	327	after the issuance of the warrant.
328	328	(b) Article 18B.104 applies to the duration of a warrant
329	329	issued under this subchapter in the same manner as that article
330	330	applies to an order issued under Subchapter C.
331	331	(c) Articles 18B.355, 18B.356, and 18B.357 apply to a
332	332	warrant required under this subchapter to obtain electronic
333	333	customer data.
334	334	Art. 18B.323. REQUIREMENTS REGARDING REQUEST FOR AND FILING
335	335	OF APPLICATION. (a) To require a provider of an electronic
336	336	communications service or a provider of a remote computing service
337	337	to disclose electronic customer data held in electronic storage,
338	338	only a prosecutor with jurisdiction in a county within a judicial
339	339	district described by Article 18B.052(3) or (4) may file with a
340	340	district judge in the judicial district an application for a
341	341	warrant under this subchapter.
342	342	(b) A prosecutor may file an application under this
343	343	subchapter or under federal law on:
344	344	(1) the prosecutor's own motion; or
345	345	(2) the request of an authorized peace officer,
346	346	regardless of whether the peace officer is commissioned by the
347	347	department.
348	348	(c) A prosecutor must make an application under this
349	349	subchapter personally and may not make the application through an
350	350	assistant or other person acting on the prosecutor's behalf if the
351	351	prosecutor:
352	352	(1) files an application on the prosecutor's own
353	353	motion; or
354	354	(2) files an application on the request of an
355	355	authorized peace officer not commissioned by the department, other
356	356	than an authorized peace officer employed by a designated law
357	357	enforcement office or agency.
358	358	(d) A prosecutor may make an application under this
359	359	subchapter through an assistant or other person acting on the
360	360	prosecutor's behalf if the prosecutor files the application on the
361	361	request of:
362	362	(1) an authorized peace officer who is commissioned by
363	363	the department; or
364	364	(2) an authorized peace officer of a designated law
365	365	enforcement office or agency.
366	366	Art. 18B.324. APPLICATION AND ISSUANCE OF WARRANT. (a) On
367	367	the filing of an application under this subchapter, a district
368	368	judge may issue a search warrant under this article for electronic
369	369	customer data held in electronic storage by a provider of an
370	370	electronic communications service or a provider of a remote
371	371	computing service described by Article 18B.355(b), regardless of
372	372	whether the customer data is held at a location in this state or
373	373	another state. An application made under this subsection must
374	374	demonstrate probable cause for the issuance of the warrant and must
375	375	be supported by the oath of the applicant.
376	376	(b) A search warrant may not be issued under this article
377	377	unless the sworn affidavit required by Article 18.01(b) provides
378	378	sufficient and substantial facts to establish probable cause that:
379	379	(1) the disclosure of the electronic customer data
380	380	sought will:
381	381	(A) produce evidence of an offense under
382	382	investigation; or
383	383	(B) result in the apprehension of a fugitive from
384	384	justice; and
385	385	(2) the electronic customer data sought is held in
386	386	electronic storage by the service provider on which the warrant is
387	387	served under Article 18B.355(c).
388	388	(c) Only the electronic customer data described in the sworn
389	389	affidavit required by Article 18.01(b) may be seized under the
390	390	warrant.
391	391	(d) A warrant issued under this article shall run in the
392	392	name of "The State of Texas."
393	393	(e) A district court shall seal an affidavit and warrant
394	394	granted under this subchapter and may not unseal the affidavit and
395	395	warrant until after the order expires.
396	396	SECTION 15. Article 18B.352(a), Code of Criminal Procedure,
397	397	is amended to read as follows:
398	398	(a) A court shall issue an order authorizing disclosure of
399	399	contents, records, or other information, other than location
400	400	information, of a wire or electronic communication held in
401	401	electronic storage if the court determines that there is a
402	402	reasonable belief based on specific articulable facts that:
403	403	(1) the information sought is relevant to a legitimate
404	404	law enforcement inquiry; and
405	405	(2) the information:
406	406	(A) reveals the identity of customers of the
407	407	applicable service; or
408	408	(B) is about a customer's use of the applicable
409	409	service.
410	410	SECTION 16. Articles 18B.355(b) and (c), Code of Criminal
411	411	Procedure, are amended to read as follows:
412	412	(b) An order issued under Article 18B.352 or a [A] warrant
413	413	issued under Article 18B.354 may be served only on a provider of an
414	414	electronic communications service or a provider of a remote
415	415	computing service that is a domestic entity or a company or entity
416	416	otherwise doing business in this state under a contract or a terms
417	417	of service agreement with a resident of this state, if any part of
418	418	that contract or agreement is to be performed in this state.
419	419	(c) An order issued under Article 18B.352 or a [A] search
420	420	warrant issued under Article 18B.354 is served when an authorized
421	421	peace officer delivers the warrant by hand, by facsimile or other
422	422	electronic transmission, or, in a manner allowing proof of
423	423	delivery, by means of the United States mail or a private delivery
424	424	service to:
425	425	(1) a person specified by Section 5.255, Business
426	426	Organizations Code;
427	427	(2) the secretary of state in the case of a company or
428	428	entity to which Section 5.251, Business Organizations Code,
429	429	applies; or
430	430	(3) any other person or entity designated to receive
431	431	the service of process.
432	432	SECTION 17. Article 18B.501(a), Code of Criminal Procedure,
433	433	is amended to read as follows:
434	434	(a) An authorized peace officer seeking electronic customer
435	435	data under Article 18B.351 or other customer information under this
436	436	chapter may apply to the court for an order commanding the service
437	437	provider to whom a warrant, subpoena, or court order is directed not
438	438	to disclose to any person the existence of the warrant, subpoena, or
439	439	court order. The order is effective for the period the court
440	440	considers appropriate.
441	441	SECTION 18. The changes in law made by this Act by amending
442	442	Article 18.02 and Chapter 18B, Code of Criminal Procedure, apply
443	443	only to a warrant or other court order issued on or after the
444	444	effective date of this Act. A warrant or order issued before the
445	445	effective date of this Act is governed by the law in effect on the
446	446	date the warrant or order was issued, and the former law is
447	447	continued in effect for that purpose.
448	448	SECTION 19. This Act takes effect January 1, 2020.