Texas 2019 - 86th Regular

Texas Senate Bill SB2093 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1	1		By: Hughes S.B. No. 2093
	2	+	(In the Senate - Filed March 7, 2019; March 21, 2019, read
	3	+	first time and referred to Committee on Criminal Justice;
	4	+	May 6, 2019, reported adversely, with favorable Committee
	5	+	Substitute by the following vote: Yeas 7, Nays 0; May 6, 2019, sent
	6	+	to printer.)
	7	+	COMMITTEE SUBSTITUTE FOR S.B. No. 2093 By: Whitmire
2	8
3	9
4	10		A BILL TO BE ENTITLED
5	11		AN ACT
6	12		relating to subpoenas, orders, and warrants for the disclosure of
7	13		location information, electronic customer communications records,
8	14		and electronic customer data and for the use of pen registers, ESN
9	15		readers, cell site simulators, and mobile tracking devices;
10	16		creating a criminal offense.
11	17		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	18		SECTION 1. Article 18.02, Code of Criminal Procedure, is
13	19		amended to read as follows:
14	20		Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant
15	21		may be issued to search for and seize:
16	22		(1) property acquired by theft or in any other manner
17	23		which makes its acquisition a penal offense;
18	24		(2) property specially designed, made, or adapted for
19	25		or commonly used in the commission of an offense;
20	26		(3) arms and munitions kept or prepared for the
21	27		purposes of insurrection or riot;
22	28		(4) weapons prohibited by the Penal Code;
23	29		(5) gambling devices or equipment, altered gambling
24	30		equipment, or gambling paraphernalia;
25	31		(6) obscene materials kept or prepared for commercial
26	32		distribution or exhibition, subject to the additional rules set
27	33		forth by law;
28	34		(7) a drug, controlled substance, immediate
29	35		precursor, chemical precursor, or other controlled substance
30	36		property, including an apparatus or paraphernalia kept, prepared,
31	37		or manufactured in violation of the laws of this state;
32	38		(8) any property the possession of which is prohibited
33	39		by law;
34	40		(9) implements or instruments used in the commission
35	41		of a crime;
36	42		(10) property or items, except the personal writings
37	43		by the accused, constituting evidence of an offense or constituting
38	44		evidence tending to show that a particular person committed an
39	45		offense;
40	46		(11) persons;
41	47		(12) contraband subject to forfeiture under Chapter 59
42	48		of this code;
43	49		(13) electronic customer communications records and
44	50		electronic customer data held in electronic storage[, including the
45	51		contents of and records and other information related to a wire
46	52		communication or electronic communication held in electronic
47	53		storage]; [or]
48	54		(14) a cellular telephone or other wireless
49	55		communications device, subject to Article 18.0215; or
50	56		(15) location information.
51	57		(b) For purposes of this article [Subsection (a)(13)]:
52	58		(1) "Electronic communication" and "wire
53	59		communication" have the meanings assigned by Article 18A.001.
54	60		(2) "Electronic customer communications records,"
55	61		"electronic customer data," [and] "electronic storage," and
56	62		"location information" [storage"] have the meanings assigned by
57	63		Article 18B.001.
58	64		SECTION 2. Article 18.06(a), Code of Criminal Procedure, is
59	65		amended to read as follows:
60	66		(a) A peace officer to whom a search warrant is delivered
61	67		shall execute the warrant without delay and forthwith return the
62	68		warrant to the proper magistrate. A search warrant issued under
63	69		Article 18B.354, and Articles 18B.222 and 18B.223 if requiring the
64	70		disclosure of location information, as defined by Article 18B.001,
65	71		must be executed in the manner provided by Article 18B.355 not later
66	72		than the 30th [11th] day after the date of issuance. In all other
67	73		cases, a search warrant must be executed within three days from the
68	74		time of its issuance. A warrant issued under this chapter, Chapter
69	75		18A, or Chapter 18B shall be executed within a shorter period if so
70	76		directed in the warrant by the magistrate.
71	77		SECTION 3. Article 18B.001, Code of Criminal Procedure, is
72	78		amended by adding Subdivisions (1-a), (6-a), (9-a), and (9-b) and
73	79		amending Subdivisions (4), (7), and (8) to read as follows:
74	80		(1-a) "Cell site simulator" means a device that:
75	81		(A) locates or identifies a wireless
76	82		communications device in the immediate vicinity of the simulator by
77	83		simulating the functions of a wireless telecommunications network
78	84		transceiver; and
79	85		(B) is designed to collect location information
80	86		from the wireless communications device.
81	87		(4) "Designated law enforcement office or agency"
82	88		means:
83	89		(A) the sheriff's department of a county with a
84	90		population of 3.3 million or more;
85	91		(B) a police department in a municipality with a
86	92		population of 500,000 or more; [or]
87	93		(C) the office of inspector general of the Texas
88	94		Department of Criminal Justice;
89	95		(D) a special investigator under Article 2.122
90	96		when assisting a peace officer of this state in:
91	97		(i) apprehending a person charged with an
92	98		offense under Article 18B.222(b)(2); or
93	99		(ii) resolving an emergency situation
94	100		involving:
95	101		(a) an immediate life-threatening
96	102		situation;
97	103		(b) conspiratorial activities
98	104		characteristic of an imminent threat from violent organized crime;
99	105		(c) an ongoing attack on a protected
100	106		computer, as defined by 18 U.S.C. Section 1030, that constitutes an
101	107		offense under Section 33.02, Penal Code, or an equivalent offense
102	108		under federal law; or
103	109		(d) the report of the disappearance of
104	110		an individual, including the report of a runaway individual younger
105	111		than 18 years of age, or a report of a suicidal individual, where
106	112		the report indicates the individual may be in danger based on the
107	113		circumstances of the disappearance, including circumstances such
108	114		as the age and mental or physical condition of the individual; or
109	115		(E) a prosecutor, assistant prosecutor, or a
110	116		peace officer who is an investigator of a prosecutor's office in a
111	117		county with a population of more than 800,000.
112	118		(6-a) "Electronic customer communications records"
113	119		means data or records, other than location information or
114	120		electronic customer data, that:
115	121		(A) are in the possession, care, custody, or
116	122		control of a provider of an electronic communications service or a
117	123		provider of a remote computing service; and
118	124		(B) contain:
119	125		(i) the content of a wire or electronic
120	126		communication sent to or by the customer, including:
121	127		(a) information that identifies by
122	128		name the recipient or destination of a wire or electronic
123	129		communication;
124	130		(b) the draft form of a wire or
125	131		electronic communication, regardless of whether the communication
126	132		was sent; or
127	133		(c) a summary description of the
128	134		content of a wire or electronic communication, such as file name,
129	135		subject line, or uniform resource locator; or
130	136		(ii) the content of files or records owned
131	137		or possessed by a customer that are stored by the applicable service
132	138		provider by or on behalf of the customer.
133	139		(7) "Electronic customer data" means data or records,
134	140		other than location information or electronic customer
135	141		communication records, that:
136	142		(A) are in the possession, care, custody, or
137	143		control of a provider of an electronic communications service or
138	144		provider of a remote computing service; and
139	145		(B) contain:
140	146		(i) information revealing the identity of
141	147		customers of the applicable service;
142	148		(ii) information about a customer's use of
143	149		the applicable service; or
144	150		(iii) information that identifies the
145	151		recipient or destination of a wire or electronic communication sent
146	152		to or by a customer[;
147	153		[(iv) the content of a wire or electronic
148	154		communication sent to or by a customer; and
149	155		[(v) any data stored with the applicable
150	156		service provider by or on behalf of a customer].
151	157		(8) "Electronic storage" means storage of electronic
152	158		customer data, electronic customer communications records, or
153	159		location information in a computer, computer network, or computer
154	160		system, regardless of whether the data is subject to recall,
155	161		further manipulation, deletion, or transmission. The term includes
156	162		storage of a wire or electronic communication by an electronic
157	163		communications service or a remote computing service.
158	164		(9-a) "Immediate life-threatening situation" has the
159	165		meaning assigned by Article 18A.201.
160	166		(9-b) "Location information" means data or records,
161	167		other than information identifying the subscriber or customer or
162	168		the account with which a wireless communications device is
163	169		associated or information composed of network transactional access
164	170		records unrelated to the location of a wireless communications
165	171		device, that:
166	172		(A) suggest the physical location of a wireless
167	173		communications device by identifying the first, intermediate, or
168	174		last point through which a wire or electronic communication enters
169	175		or departs the physical infrastructure of an electronic
170	176		communications system, including data or records commonly known as
171	177		cell site location information;
172	178		(B) are created by or accessible to a provider of
173	179		an electronic communications system and designed to identify the
174	180		physical location of a wireless communications device, including
175	181		information commonly known as E911 or precision location
176	182		information derived through a global positioning system or
177	183		multi-lateration measurement; or
178	184		(C) are created by or accessed through the use of
179	185		a cell site simulator.
180	186		SECTION 4. Subchapter B, Chapter 18B, Code of Criminal
181	187		Procedure, is amended by adding Article 18B.0505 to read as
182	188		follows:
183	189		Art. 18B.0505. APPLICABILITY. This subchapter and
184	190		Subchapters C and D do not apply to the use of a cell site simulator.
185	191		SECTION 5. Article 18B.151, Code of Criminal Procedure, is
186	192		amended to read as follows:
187	193		Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN
188	194		REGISTER OR TRAP AND TRACE DEVICE. [(a) In this article,
189	195		"immediate life-threatening situation" has the meaning assigned by
190	196		Article 18A.201.
191	197		[(b)] A peace officer authorized to possess, install,
192	198		operate, or monitor a device under Subchapter E, Chapter 18A, may
193	199		install and use a pen register or trap and trace device if:
194	200		(1) another peace officer is designated to approve for
195	201		the authorized peace officer's agency the emergency required
196	202		disclosure of location information by:
197	203		(A) the head of the agency; and
198	204		(B) a district attorney or criminal district
199	205		attorney with jurisdiction over all or part of the other officer's
200	206		jurisdiction; and
201	207		(2) the peace officer described by Subdivision (1)
202	208		approves the installation and use of a pen register or trap and
203	209		trace device by reasonably determining that:
204	210		(A) an emergency situation exists in the
205	211		territorial jurisdiction of the authorized peace officer, or
206	212		another officer the authorized officer is assisting, involving:
207	213		(i) an immediate life-threatening
208	214		situation;
209	215		(ii) conspiratorial activities
210	216		characteristic of an imminent threat from violent organized crime;
211	217		(iii) if the authorized peace officer is
212	218		assisting an employee, officer, or agent of the federal government,
213	219		an immediate threat to a national security interest;
214	220		(iv) an ongoing attack on a protected
215	221		computer, as defined by 18 U.S.C. Section 1030, that constitutes an
216	222		offense under Section 33.02, Penal Code, or an equivalent offense
217	223		under federal law; or
218	224		(v) the report of the disappearance of an
219	225		individual, including the report of a runaway individual younger
220	226		than 18 years of age, or a report of a suicidal individual, where
221	227		the report indicates the individual may be in danger based on the
222	228		circumstances of the disappearance, including circumstances such
223	229		as the age and mental or physical condition of the individual;
224	230		(B) installing and using the pen register or trap
225	231		and trace device may resolve the emergency situation; and
226	232		(C) [the peace officer reasonably believes:
227	233		[(1) an immediate life-threatening situation exists
228	234		that:
229	235		[(A) is within the territorial jurisdiction of
230	236		the peace officer or another officer the peace officer is
231	237		assisting; and
232	238		[(B) requires the installation of a pen register
233	239		or trap and trace device before an order authorizing the
234	240		installation and use can, with due diligence, be obtained under
235	241		this chapter; and
236	242		[(2)] there are sufficient grounds under this chapter
237	243		on which to obtain an order authorizing the installation and use of
238	244		a pen register or trap and trace device.
239	245		SECTION 6. Article 18B.152, Code of Criminal Procedure, is
240	246		amended by adding Subsection (c) to read as follows:
241	247		(c) In the event that at the time of the installation and use
242	248		of a pen register or trap and trace device under this subchapter it
243	249		is not readily apparent that any offense has been committed, the
244	250		judge shall note the exact date and time at which the likelihood
245	251		that an offense was committed became apparent, if applicable. If,
246	252		before the conclusion of the emergency or issuance of an order
247	253		authorizing continued use of the device under Subchapter B it did
248	254		not become apparent that any offense was committed, the judge shall
249	255		annotate the order to reflect that: "No affirmative investigative
250	256		or prosecutive use may be made of any pen register or trap and trace
251	257		records obtained pursuant to the device's emergency installation or
252	258		use."
253	259		SECTION 7. Article 18B.202(c), Code of Criminal Procedure,
254	260		is amended to read as follows:
255	261		(c) The affidavit must:
256	262		(1) state the name, department, agency, and address of
257	263		the applicant;
258	264		(2) identify the vehicle, container, or item to which,
259	265		in which, or on which the mobile tracking device is to be attached,
260	266		placed, or otherwise installed;
261	267		(3) state the name of the owner or possessor of the
262	268		vehicle, container, or item identified under Subdivision (2);
263	269		(4) state the judicial jurisdictional area in which
264	270		the vehicle, container, or item identified under Subdivision (2) is
265	271		expected to be found; and
266	272		(5) state the facts and circumstances that provide the
267	273		applicant with probable cause to believe [a reasonable suspicion]
268	274		that:
269	275		(A) criminal activity has been, is, or will be
270	276		committed; and
271	277		(B) the installation and use of a mobile tracking
272	278		device will [is likely to] produce:
273	279		(i) evidence of the offense;
274	280		(ii) the location of contraband, fruits of
275	281		the offense, or other items illegally possessed;
276	282		(iii) the location of criminal instruments;
277	283		(iv) the identity or location of a person to
278	284		be arrested; or
279	285		(v) the identity or location of a person
280	286		being unlawfully restrained [information that is material to an
281	287		ongoing criminal investigation of that criminal activity].
282	288		SECTION 8. Article 18B.205, Code of Criminal Procedure, is
283	289		amended to read as follows:
284	290		Art. 18B.205. DURATION OF ORDER. (a) An order under this
285	291		subchapter expires not later than the 45th [90th] day after the date
286	292		that the mobile tracking device was activated in place on or within
287	293		the vehicle, container, or item.
288	294		(b) For good cause shown, the judge may grant an extension
289	295		for an additional 45-day [90-day] period.
290	296		SECTION 9. Chapter 18B, Code of Criminal Procedure, is
291	297		amended by adding Subchapter E-1 to read as follows:
292	298		SUBCHAPTER E-1. WARRANT FOR USE OF CELL SITE SIMULATOR OR REQUIRING
293	299		DISCLOSURE OF LOCATION INFORMATION
294	300		Art. 18B.221. APPLICABILITY. This subchapter does not
295	301		apply to a device used by the Texas Department of Criminal Justice,
296	302		or a person under contract with the department, to detect
297	303		contraband in a correctional facility.
298	304		Art. 18B.222. WARRANT FOR USE OF CELL SITE SIMULATOR OR
299	305		DISCLOSURE OF CERTAIN LOCATION INFORMATION. (a) A district judge
300	306		may issue a warrant:
301	307		(1) authorizing the use of a cell site simulator to
302	308		obtain location information from a cellular telephone or other
303	309		wireless communications device; or
304	310		(2) requiring the disclosure of location information
305	311		by a provider of an electronic communications service or a provider
306	312		of a remote computing service who has possession, care, custody, or
307	313		control of the information, regardless of whether the location
308	314		information is held at a location in this state or another state.
309	315		(b) A district judge may issue a warrant described by
310	316		Subsection (a) only:
311	317		(1) except as provided by Article 18B.231, on
312	318		application by:
313	319		(A) a prosecutor; or
314	320		(B) an assistant prosecutor, if applying on
315	321		request of:
316	322		(i) an authorized peace officer
317	323		commissioned by the department; or
318	324		(ii) an authorized peace officer of a
319	325		designated law enforcement office or agency; and
320	326		(2) for the investigation of:
321	327		(A) an offense under:
322	328		(i) Section 19.02, Penal Code;
323	329		(ii) Section 19.03, Penal Code;
324	330		(iii) Section 20.03, Penal Code;
325	331		(iv) Section 20.04, Penal Code;
326	332		(v) Chapter 20A, Penal Code;
327	333		(vi) Section 21.02, Penal Code;
328	334		(vii) Section 21.11, Penal Code;
329	335		(viii) Section 22.01, Penal Code, if the
330	336		offense is punishable as a felony;
331	337		(ix) Section 22.011, Penal Code;
332	338		(x) Section 22.02, Penal Code;
333	339		(xi) Section 22.021, Penal Code;
334	340		(xii) Section 22.04, Penal Code;
335	341		(xiii) Section 22.041, Penal Code;
336	342		(xiv) Section 28.02, Penal Code;
337	343		(xv) Section 29.02, Penal Code;
338	344		(xvi) Section 29.03, Penal Code;
339	345		(xvii) Section 30.02, Penal Code;
340	346		(xviii) Chapter 34, Penal Code;
341	347		(xix) Title 8, Penal Code;
342	348		(xx) Chapter 43, Penal Code;
343	349		(xxi) Chapter 481, Health and Safety Code,
344	350		other than an offense under:
345	351		(a) Section 481.115(b),
346	352		481.1151(b)(1), 481.116(b), 481.1161(b)(1), (2), or (3),
347	353		481.117(b), 481.118(b), or 481.125(d) of that code; or
348	354		(b) Section 481.121(b) of that code,
349	355		if the offense involves not more than one pound of marihuana;
350	356		(xxii) notwithstanding Subparagraph (xxi),
351	357		any offense under Chapter 481, Health and Safety Code, involving
352	358		fentanyl, alpha-methylfentanyl, or carfentanyl, or any derivative
353	359		of those substances, including any isomer, ester, ether, salt, or
354	360		salt of an isomer, ester, or ether of those substances;
355	361		(xxiii) Chapter 483, Health and Safety
356	362		Code; or
357	363		(xxiv) Chapter 485, Health and Safety Code;
358	364		(B) a felony under Chapter 71, Penal Code;
359	365		(C) any sex offense for which a person is subject
360	366		to registration under Chapter 62 and in which the victim was younger
361	367		than 18 years of age at the time the offense was committed;
362	368		(D) an offense of another jurisdiction in the
363	369		United States equivalent to an offense under Paragraph (A), (B), or
364	370		(C), regardless of whether the offense was committed in this state
365	371		or another jurisdiction; or
366	372		(E) an emergency situation described by Article
367	373		18B.231(a)(2)(A).
368	374		(c) An application under this article must:
369	375		(1) be made in writing under oath; and
370	376		(2) include:
371	377		(A) the name, department, agency, and address of
372	378		the applicant;
373	379		(B) the offense being investigated and for which
374	380		the application is being made;
375	381		(C) the case number or unique identifier assigned
376	382		by the law enforcement agency to the investigation of the offense
377	383		for which the application is being made;
378	384		(D) the name of:
379	385		(i) the customer or subscriber whose data
380	386		or device is the subject of the application, if the application
381	387		seeks location information related to a particular subscriber or
382	388		customer and the name of the customer or subscriber is known to the
383	389		applicant; and
384	390		(ii) the person who is the subject of the
385	391		application, if that person is not described by Subparagraph (i);
386	392		(E) the account number or unique identifier that
387	393		is the subject of the application; and
388	394		(F) if the application is requesting
389	395		authorization to use a cell site simulator, a description of the
390	396		manner and method of deploying the cell site simulator device,
391	397		including:
392	398		(i) whether the use of the device is likely
393	399		to result in the device collecting from a cellular telephone or
394	400		other wireless communications device data that is not the subject
395	401		of the application; and
396	402		(ii) procedures for mitigating the
397	403		collection of extraneous data as described by Subparagraph (i).
398	404		(d) The accompanying affidavit must contain a statement of
399	405		facts and circumstances demonstrating:
400	406		(1) probable cause that:
401	407		(A) an offense listed in Subsection (b)(2)(A),
402	408		(B), (C), or (D) has been, is being, or will be committed; and
403	409		(B) the location information being sought or the
404	410		use of a cell site simulator will reveal the location of:
405	411		(i) evidence of the offense;
406	412		(ii) contraband, fruits of the offense, or
407	413		other items illegally possessed;
408	414		(iii) criminal instruments;
409	415		(iv) a person to be arrested; or
410	416		(v) a person being unlawfully restrained;
411	417		or
412	418		(2) that the use of a cell site simulator or the
413	419		required disclosure of location information will resolve an
414	420		emergency situation described by Article 18B.231(a)(2)(A).
415	421		Art. 18B.223. WARRANT FOR CERTAIN LOCATION INFORMATION.
416	422		(a) The judge may issue a warrant requiring a provider of an
417	423		electronic communications service or a provider of a remote
418	424		computing service to disclose location information related to the
419	425		commission of an offense based on an application for a warrant
420	426		submitted without specifying any customer information required
421	427		under Articles 18B.222(c)(2)(D) and (E), provided that the
422	428		application:
423	429		(1) meets all other requirements of this subchapter;
424	430		and
425	431		(2) includes:
426	432		(A) the location where the offense is alleged to
427	433		have been committed; and
428	434		(B) each provider on whom the warrant will be
429	435		served.
430	436		(b) The location information disclosed pursuant to a
431	437		warrant issued under this article may not be used to further an
432	438		investigation unrelated to the investigation of the offense for
433	439		which the warrant application was made, unless an authorized peace
434	440		officer, prosecutor, or assistant prosecutor:
435	441		(1) makes a separate application to a district judge
436	442		to authorize the use of the location information to further an
437	443		unrelated investigation; and
438	444		(2) states in the application described by Subdivision
439	445		(1) specific and articulable facts showing good cause for that use.
440	446		(c) Unless authorized by a district judge, a law enforcement
441	447		agency holding location information disclosed pursuant to a warrant
442	448		issued under this article:
443	449		(1) may not commingle:
444	450		(A) the location information determined relevant
445	451		to the investigation of the offense for which the warrant
446	452		application was made; and
447	453		(B) the location information determined to be
448	454		irrelevant to that investigation; and
449	455		(2) must keep separated by the criminal episode or
450	456		location each set of location information described by Subdivision
451	457		(1)(B).
452	458		(d) A district judge may review similar applications for a
453	459		warrant under this article and instruct an agency holding
454	460		separately the location information under Subsection (c) to compare
455	461		the information to determine whether the information is relevant to
456	462		the cases or to other locations identified in similar applications.
457	463		Art. 18B.224. JURISDICTION. An application under this
458	464		subchapter must be filed in a judicial district in which is located:
459	465		(1) the headquarters of:
460	466		(A) the office of the prosecutor filing an
461	467		application under this subchapter;
462	468		(B) a law enforcement agency that requests the
463	469		prosecutor to file an application for a warrant under this
464	470		subchapter or that proposes to execute the warrant, if one is issued
465	471		under this subchapter; or
466	472		(C) a provider of an electronic communications
467	473		service or a provider of a remote computing service holding in
468	474		electronic storage location information for which the warrant is
469	475		sought;
470	476		(2) the site of the proposed use of a cell site
471	477		simulator; or
472	478		(3) the billing, residential, or business address of
473	479		the subscriber or customer of a provider of an electronic
474	480		communications service or a provider of a remote computing service
475	481		who is the subject of the application.
476	482		Art. 18B.225. DURATION OF WARRANT. (a) A warrant issued
477	483		under this subchapter authorizing the use of a cell site simulator
478	484		is valid for a period not to exceed 30 days.
479	485		(b) A warrant issued under this subchapter requiring the
480	486		ongoing disclosure of prospective location information by a
481	487		provider of an electronic communications service or a provider of a
482	488		remote computing service is valid for a period not to exceed 60
483	489		days.
484	490		Art. 18B.226. USE OF LOCATION INFORMATION IN UNRELATED
485	491		INVESTIGATION PROHIBITED. Except as provided by Article 18B.223(b)
486	492		or (d), location information obtained pursuant to a warrant issued
487	493		under this subchapter:
488	494		(1) may not be used to further an investigation
489	495		unrelated to the investigation of the offense for which the warrant
490	496		application was made; and
491	497		(2) may be used to investigate or prosecute offenses
492	498		and defendants related to the offense for which the warrant
493	499		application was made.
494	500		Art. 18B.227. CERTAIN RESTRICTIONS ON USE OF CELL SITE
495	501		SIMULATOR. (a) Under a warrant issued under this subchapter
496	502		authorizing the use of a cell site simulator:
497	503		(1) if the cell site simulator is used to locate a
498	504		known person's wireless communications device, location
499	505		information that is derived from the simulator's use and is
500	506		irrelevant to locating the device must be deleted on the date the
501	507		information was collected; and
502	508		(2) unless granted an exception by a district judge to
503	509		the requirement described in this subdivision, if the cell site
504	510		simulator is used to locate an unknown wireless communications
505	511		device, location information that is derived from the simulator's
506	512		use and is irrelevant to locating the device must be deleted not
507	513		later than the 30th day after the date the simulator is first used,
508	514		and not later than the earlier of the following:
509	515		(A) at the end of each 30-day period following
510	516		the initial 30-day period described by this subdivision; or
511	517		(B) the expiration of the warrant.
512	518		(b) The district judge who issues a warrant under this
513	519		subchapter for the use of a cell site simulator may extend a period
514	520		described by Subsection (a) if the applicant for the warrant shows
515	521		good cause for the extension. The judge may grant a subsequent
516	522		extension only if the applicant shows good cause for the subsequent
517	523		extension. An extension granted under this subsection may not
518	524		exceed 90 days, unless the judge makes a finding in the record that
519	525		the circumstances of the investigation justify an extension longer
520	526		than 90 days.
521	527		(c) A district judge may not issue a warrant to authorize
522	528		using or configuring a cell site simulator for the purpose of, and a
523	529		person acting under a warrant issued under this subchapter may not
524	530		use or configure a cell site simulator for the purpose of:
525	531		(1) intercepting, capturing, or collecting the
526	532		content of any electronic communication; or
527	533		(2) collecting information on the attendees of a
528	534		public gathering who are exercising any right under the First
529	535		Amendment to the United States Constitution, including as part of a
530	536		protest, demonstration, rally, political meeting, or religious
531	537		gathering.
532	538		Art. 18B.228. PRESERVATION OF CERTAIN LOCATION
533	539		INFORMATION. (a) Location information disclosed by a provider of
534	540		an electronic communications service or a provider of a remote
535	541		computing service pursuant to a warrant issued under this
536	542		subchapter must be preserved by the attorney representing the
537	543		state.
538	544		(b) As soon as practicable after receiving a timely request
539	545		from a defendant, the attorney representing the state shall produce
540	546		the location information described by Subsection (a) and permit
541	547		inspection and electronic and print duplication of that information
542	548		by or on behalf of the defendant.
543	549		Art. 18B.229. WARRANTS AND AFFIDAVITS SEALED.
544	550		(a) Notwithstanding any other law, other than Subsections (b) and
545	551		(c), a district judge issuing a warrant under this subchapter shall
546	552		seal the warrant and applicable affidavit.
547	553		(b) A judge shall authorize the disclosure of the warrant
548	554		and applicable affidavit to:
549	555		(1) a defendant, or the attorney representing the
550	556		defendant, in a criminal action, if the defendant or attorney makes
551	557		a timely request for disclosure; or
552	558		(2) the public, if a criminal action has been filed
553	559		based on evidence obtained as part of the investigation conducted
554	560		under the case number or unique identifier included in the warrant
555	561		application and each defendant in that criminal action has been
556	562		convicted or acquitted.
557	563		(c) A judge authorizing disclosure under Subsection (b)
558	564		shall redact all information revealing the identity of cooperating
559	565		witnesses, informants, or undercover peace officers.
560	566		(d) This article may not be construed to affect any other
561	567		right of access to public records or proceedings granted under any
562	568		other law.
563	569		Art. 18B.230. NOTICE TO SUBSCRIBER OR CUSTOMER. An
564	570		authorized peace officer may require a provider of an electronic
565	571		communications service or a provider of a remote computing service
566	572		to disclose location information without giving the subscriber or
567	573		customer notice if the officer obtains:
568	574		(1) a warrant under this subchapter and the court
569	575		issuing the warrant makes a finding that there is reason to believe
570	576		that giving notice under this section may result in:
571	577		(A) endangering the life or physical safety of an
572	578		individual;
573	579		(B) a suspect or defendant fleeing from
574	580		prosecution;
575	581		(C) the destruction of or tampering with
576	582		evidence;
577	583		(D) the intimidation of potential witnesses who
578	584		may assist an investigation of an offense or testify at a legal
579	585		proceeding; or
580	586		(E) otherwise jeopardizing an investigation or
581	587		unduly delaying a trial; or
582	588		(2) the consent of the subscriber or customer.
583	589		Art. 18B.231. EMERGENCY USE OF CELL SITE SIMULATOR OR
584	590		REQUIRED DISCLOSURE OF LOCATION INFORMATION. (a) Subject to
585	591		Subsections (c) and (d), an authorized peace officer may without a
586	592		warrant require a provider of an electronic communications service
587	593		or a provider of a remote computing service who has possession,
588	594		care, custody, or control of location information to disclose the
589	595		information, if:
590	596		(1) a peace officer in the authorized peace officer's
591	597		agency is designated to approve for the agency the emergency
592	598		required disclosure of location information by:
593	599		(A) the head of the agency; and
594	600		(B) a district attorney or criminal district
595	601		attorney with jurisdiction over all or part of the agency's
596	602		jurisdiction; and
597	603		(2) the peace officer described by Subdivision (1)
598	604		approves the authorized peace officer's requiring the disclosure of
599	605		the information by reasonably determining that:
600	606		(A) an emergency situation exists in the
601	607		territorial jurisdiction of the authorized peace officer, or
602	608		another officer the authorized peace officer is assisting,
603	609		involving:
604	610		(i) an immediate life-threatening
605	611		situation;
606	612		(ii) conspiratorial activities
607	613		characteristic of an imminent threat from violent organized crime;
608	614		(iii) if the authorized peace officer is
609	615		assisting an employee, officer, or agent of the federal government,
610	616		an immediate threat to a national security interest;
611	617		(iv) an ongoing attack on a protected
612	618		computer, as defined by 18 U.S.C. Section 1030, that constitutes an
613	619		offense under Section 33.02, Penal Code, or an equivalent offense
614	620		under federal law; or
615	621		(v) the report of the disappearance of an
616	622		individual, including the report of a runaway individual younger
617	623		than 18 years of age, or a report of a suicidal individual, where
618	624		the report indicates the individual may be in danger based on the
619	625		circumstances of the disappearance, including circumstances such
620	626		as the age and mental or physical condition of the individual; and
621	627		(B) requiring the information may resolve the
622	628		emergency situation.
623	629		(b) Subject to Subsections (c) and (d), an authorized peace
624	630		officer of the department or a designated law enforcement office or
625	631		agency may without a warrant use a cell site simulator if the head
626	632		of the authorized peace officer's agency or that person's designee
627	633		approves the authorized peace officer's use of the cell site
628	634		simulator by reasonably determining that:
629	635		(1) an emergency situation described by Subsection
630	636		(a)(2)(A) exists in the applicable judicial district under Article
631	637		18B.224; and
632	638		(2) use of the cell site simulator may resolve the
633	639		emergency situation.
634	640		(c) An authorized peace officer who requires disclosure of
635	641		location information or uses a cell site simulator under Subsection
636	642		(a) or (b) shall:
637	643		(1) promptly report the required disclosure of
638	644		location information or the use of the simulator to, as applicable:
639	645		(A) if using a cell site simulator, the
640	646		prosecutor in the county in which the simulator is used; or
641	647		(B) if requiring the disclosure of location
642	648		information, the prosecutor in the county where the peace officer's
643	649		agency is headquartered; and
644	650		(2) within 48 hours after providing notice of the
645	651		required disclosure or within 48 hours after the use of the
646	652		simulator begins, as applicable, obtain a warrant under this
647	653		subchapter authorizing the required disclosure or the use of the
648	654		simulator.
649	655		(d) If a warrant application is denied or is not issued
650	656		within the 48-hour period, the peace officer shall delete the
651	657		disclosed location information or terminate use of the cell site
652	658		simulator promptly on the earlier of the denial of the warrant
653	659		application or the expiration of the 48-hour period.
654	660		Art. 18B.232. EXECUTION OF WARRANT. Article 18B.355
655	661		applies to the execution of a warrant issued under this subchapter
656	662		in the same manner as the article applies to the execution of a
657	663		warrant for electronic customer communications records.
658	664		Art. 18B.233. WARRANT ISSUED IN ANOTHER STATE. A provider
659	665		of an electronic communications service or a provider of a remote
660	666		computing service shall comply with a warrant issued in another
661	667		state and seeking location information described by Article
662	668		18B.222, if the warrant is served on the service provider in a
663	669		manner equivalent to the service of process requirements provided
664	670		by Article 18B.355(b).
665	671		Art. 18B.234. REPORTING REQUIRED. Not later than April 1 of
666	672		each year, each law enforcement office or agency employing a person
667	673		who applies for a warrant under this subchapter shall annually post
668	674		on the Internet website of the office or agency the following
669	675		information:
670	676		(1) the number of warrants of all persons of the office
671	677		or agency who applied for a warrant under this subchapter
672	678		requesting authorization for use of a cell site simulator and the
673	679		number of those warrants granted to those persons;
674	680		(2) the number of warrants of all persons of the office
675	681		or agency who applied for a warrant under this subchapter requiring
676	682		the disclosure of location information by a provider of an
677	683		electronic communications service or a provider of a remote
678	684		computing service and the number of those warrants granted to those
679	685		persons;
680	686		(3) the offense for which each warrant application
681	687		under Subdivision (1) or (2) was made; and
682	688		(4) the number of persons who were located as a result
683	689		of the location information obtained pursuant to a warrant issued
684	690		under this subchapter and were charged with a felony.
685	691		SECTION 10. Article 18B.351, Code of Criminal Procedure, is
686	692		amended to read as follows:
687	693		Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER
688	694		COMMUNICATIONS RECORDS AND ELECTRONIC CUSTOMER DATA. (a) An
689	695		authorized peace officer may require a provider of an electronic
690	696		communications service or a provider of a remote computing service
691	697		to disclose electronic customer communications records or
692	698		electronic customer data that is in electronic storage by obtaining
693	699		a warrant under Article 18B.354.
694	700		(b) An authorized peace officer may require a provider of an
695	701		electronic communications service or a provider of a remote
696	702		computing service to disclose [only] electronic customer data [that
697	703		is information revealing the identity of customers of the
698	704		applicable service or information about a customer's use of the
699	705		applicable service,] without giving the subscriber or customer
700	706		notice:
701	707		(1) by obtaining an administrative subpoena
702	708		authorized by statute;
703	709		(2) by obtaining a grand jury subpoena;
704	710		(3) by obtaining a court order under Article 18B.352;
705	711		(4) by obtaining a warrant under Article 18B.354;
706	712		(5) by obtaining the consent of the subscriber or
707	713		customer to the disclosure of the data; or
708	714		(6) as otherwise permitted by applicable federal law.
709	715		SECTION 11. Article 18B.352(a), Code of Criminal Procedure,
710	716		is amended to read as follows:
711	717		(a) A court shall issue an order authorizing disclosure of
712	718		electronic customer data related to [contents, records, or other
713	719		information of] a wire or electronic communication held in
714	720		electronic storage if the court determines that there is a
715	721		reasonable belief that the information sought is relevant and
716	722		material to an ongoing criminal investigation [to a legitimate law
717	723		enforcement inquiry].
718	724		SECTION 12. Article 18B.353, Code of Criminal Procedure, is
719	725		amended to read as follows:
720	726		Art. 18B.353. WARRANT ISSUED IN THIS STATE: APPLICABILITY.
721	727		Articles 18B.354-18B.357 apply to a warrant required under Article
722	728		18B.351 to obtain electronic customer communications records or
723	729		electronic customer data[, including the contents of a wire or
724	730		electronic communication].
725	731		SECTION 13. Articles 18B.354(a), (b), and (c), Code of
726	732		Criminal Procedure, are amended to read as follows:
727	733		(a) On the filing of an application by an authorized peace
728	734		officer, a district judge may issue a search warrant under this
729	735		article for electronic customer communications records or
730	736		electronic customer data held in electronic storage[, including the
731	737		contents of and records and other information related to a wire or
732	738		electronic communication held in electronic storage,] by a provider
733	739		of an electronic communications service or a provider of a remote
734	740		computing service described by Article 18B.355(b), regardless of
735	741		whether the electronic customer communications records or
736	742		electronic customer data is held at a location in this state or
737	743		another state. An application made under this subsection must
738	744		demonstrate probable cause for the issuance of the warrant and must
739	745		be supported by the oath of the authorized peace officer.
740	746		(b) A search warrant may not be issued under this article
741	747		unless the sworn affidavit required by Article 18.01(b) provides
742	748		sufficient and substantial facts to establish probable cause that:
743	749		(1) a specific offense has been committed; and
744	750		(2) the electronic customer communications records or
745	751		electronic customer data sought:
746	752		(A) constitutes evidence of that offense or
747	753		evidence that a particular person committed that offense, or
748	754		reveals the location of a person charged with a felony offense; and
749	755		(B) is held in electronic storage by the service
750	756		provider on which the warrant is served under Article 18B.355(c).
751	757		(c) Only the electronic customer communications records or
752	758		electronic customer data described in the sworn affidavit required
753	759		by Article 18.01(b) may be seized under the warrant.
754	760		SECTION 14. Article 18B.356(c), Code of Criminal Procedure,
755	761		is amended to read as follows:
756	762		(c) The service provider shall produce all electronic
757	763		customer communications records, electronic customer data,
758	764		[contents of communications,] and other information sought,
759	765		regardless of where the information is held and within the period
760	766		allowed for compliance with the warrant, as provided by Subsection
761	767		(a) or (b).
762	768		SECTION 15. Articles 18B.406(a) and (d), Code of Criminal
763	769		Procedure, are amended to read as follows:
764	770		(a) Not later than the 14th day after the date a subscriber
765	771		or customer receives notice under Article 18B.402, the subscriber
766	772		or customer may file a written motion to quash the subpoena or
767	773		vacate the court order in the court that issued the subpoena or
768	774		court order. The motion must contain an affidavit or other sworn
769	775		statement stating:
770	776		(1) that the applicant is a subscriber or customer of
771	777		the provider of an electronic communications service or the
772	778		provider of a remote computing service from which the electronic
773	779		customer data held in electronic storage for the subscriber or
774	780		customer has been sought; and
775	781		(2) the applicant's reasons for believing that the
776	782		electronic customer data sought is not relevant and material to an
777	783		ongoing criminal investigation [a legitimate law enforcement
778	784		inquiry] or that there has not been substantial compliance with the
779	785		provisions of this chapter in some other respect.
780	786		(d) The court shall rule on the motion as soon as
781	787		practicable after the filing of the peace officer's response. The
782	788		court shall deny the motion if the court finds that the applicant is
783	789		not the subscriber or customer whose data is the subject of the
784	790		subpoena or court order or that there is reason to believe that the
785	791		peace officer's inquiry is legitimate and that the data sought is
786	792		relevant to that inquiry. The court shall quash the subpoena or
787	793		vacate the court order if the court finds that the applicant is the
788	794		subscriber or customer whose data is the subject of the subpoena or
789	795		court order and that there is not a reason to believe that the data
790	796		is relevant and material to an ongoing criminal investigation [a
791	797		legitimate law enforcement inquiry] or that there has not been
792	798		substantial compliance with the provisions of this chapter.
793	799		SECTION 16. Article 18B.451, Code of Criminal Procedure, is
794	800		amended to read as follows:
795	801		Art. 18B.451. SUBPOENA AUTHORITY. (a) Except as provided
796	802		by Subsection (b), the [The] director of the department or the
797	803		director's designee, the inspector general of the Texas Department
798	804		of Criminal Justice or the inspector general's designee, or the
799	805		sheriff or chief of a designated law enforcement agency or the
800	806		sheriff's or chief's designee may issue an administrative subpoena
801	807		to a communication common carrier or a provider of an electronic
802	808		communications service to compel the production of any carrier's or
803	809		service provider's business records:
804	810		(1) that:
805	811		(A) [(1)] disclose information about:
806	812		(i) [(A)] the carrier's or service
807	813		provider's customers; or
808	814		(ii) [(B)] users of the services offered by
809	815		the carrier or service provider; or
810	816		(B) are electronic customer data described by
811	817		Article 18B.001(7)(B)(iii); and
812	818		(2) are material to a criminal investigation.
813	819		(b) A person described by Subsection (a) may not compel the
814	820		production of business records containing location information or
815	821		electronic customer communications records by issuing an
816	822		administrative subpoena under Subsection (a).
817	823		SECTION 17. Article 18B.501(a), Code of Criminal Procedure,
818	824		is amended to read as follows:
819	825		(a) An authorized peace officer seeking electronic customer
820	826		communications records or electronic customer data under Article
821	827		18B.351 may apply to the court for an order commanding the service
822	828		provider to whom a warrant, subpoena, or court order is directed not
823	829		to disclose to any person the existence of the warrant, subpoena, or
824	830		court order. The order is effective for the period the court
825	831		considers appropriate.
826	832		SECTION 18. Articles 18B.503(a) and (b), Code of Criminal
827	833		Procedure, are amended to read as follows:
828	834		(a) Except as provided by Subsection (c), an authorized
829	835		peace officer who obtains electronic customer communications
830	836		records or electronic customer data under Article 18B.351 or
831	837		18B.359 or other information under this chapter shall reimburse the
832	838		person assembling or providing the records, data, or information
833	839		for all costs that are reasonably necessary and that have been
834	840		directly incurred in searching for, assembling, reproducing, or
835	841		otherwise providing the records, data, or information, including
836	842		costs arising from necessary disruption of normal operations of a
837	843		provider of an electronic communications service or a provider of a
838	844		remote computing service in which the electronic customer
839	845		communications records or electronic customer data may be held in
840	846		electronic storage or in which the other information may be stored.
841	847		(b) The authorized peace officer and the person providing
842	848		the electronic customer communications records, electronic
843	849		customer data, or other information may agree on the amount of
844	850		reimbursement. If there is not an agreement, the court that issued
845	851		the order for production of the records, data, or information shall
846	852		determine the amount. If a court order was not issued for
847	853		production of the records, data, or information, the court before
848	854		which any criminal prosecution relating to the records, data, or
849	855		information would be brought shall determine the amount.
850	856		SECTION 19. Chapter 16, Penal Code, is amended by adding
851	857		Section 16.07 to read as follows:
852	858		Sec. 16.07. UNLAWFUL USE OF CELL SITE SIMULATOR. (a) In
853	859		this section:
854	860		(1) "Cell site simulator" has the meaning assigned by
855	861		Article 18B.001, Code of Criminal Procedure.
856	862		(2) "Communication common carrier" and "electronic
857	863		communication" have the meanings assigned by Article 18A.001, Code
858	864		of Criminal Procedure.
859	865		(b) A person commits an offense if the person knowingly uses
860	866		a cell site simulator to locate or identify a wireless
861	867		communications device or intercept the content of an electronic
862	868		communication.
863	869		(c) An offense under this section is a state jail felony.
864	870		(d) It is an affirmative defense to prosecution under this
865	871		section that the actor:
866	872		(1) is an officer, employee, or agent of a
867	873		communication common carrier and the actor uses a cell site
868	874		simulator in the regular course of business of the carrier for the
869	875		purpose of:
870	876		(A) protecting property or services provided by
871	877		the carrier; or
872	878		(B) assisting another whom the actor reasonably
873	879		believes to be a peace officer authorized to use a cell site
874	880		simulator under Article 18B.222, Code of Criminal Procedure;
875	881		(2) is a person authorized to use a cell site simulator
876	882		under Article 18B.222, Code of Criminal Procedure, and acted within
877	883		the scope of that authorization; or
878	884		(3) obtained the effective consent of the owner or
879	885		renter of the wireless communications device and the simulator was
880	886		not used to commit an offense or other prohibited act.
881	887		SECTION 20. Chapter 18B, Code of Criminal Procedure, as
882	888		amended by this Act, applies to the disclosure of certain
883	889		information by a provider of a wire or electronic communications
884	890		service or remote computing service or by a communication common
885	891		carrier under a warrant, order, or other legal process on or after
886	892		the effective date of this Act.
887	893		SECTION 21. This Act takes effect September 1, 2019.
	894	+	* * * * *