Texas 2021 - 87th Regular

Texas House Bill HB1654 Compare Versions

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

Old	New	Differences
1	1	87R2864 JCG-D
2	2	By: Wilson H.B. No. 1654
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain evidence obtained in a criminal investigation,
8	8	including the issuance and execution of certain search warrants,
9	9	the required disclosure of certain information in emergency
10	10	situations, and the admissibility of certain evidence obtained with
11	11	or without warrants.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Article 18.01(b), Code of Criminal Procedure, is
14	14	amended to read as follows:
15	15	(b) No search warrant shall issue for any purpose in this
16	16	state unless sufficient facts are first presented to satisfy the
17	17	issuing magistrate that probable cause does in fact exist for its
18	18	issuance. A sworn affidavit setting forth substantial facts
19	19	establishing probable cause shall be filed in every instance in
20	20	which a search warrant is requested. Except as otherwise provided
21	21	by this code [provided by Article 18.011], the affidavit becomes
22	22	public information when the search warrant for which the affidavit
23	23	was presented is executed, and the magistrate's clerk shall make a
24	24	copy of the affidavit available for public inspection in the
25	25	clerk's office during normal business hours.
26	26	SECTION 2. Article 18.02, Code of Criminal Procedure, is
27	27	amended to read as follows:
28	28	Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may
29	29	be issued to search for and seize:
30	30	(1) property acquired by theft or in any other manner
31	31	which makes its acquisition a penal offense;
32	32	(2) property specially designed, made, or adapted for
33	33	or commonly used in the commission of an offense;
34	34	(3) arms and munitions kept or prepared for the
35	35	purposes of insurrection or riot;
36	36	(4) weapons prohibited by the Penal Code;
37	37	(5) gambling devices or equipment, altered gambling
38	38	equipment, or gambling paraphernalia;
39	39	(6) obscene materials kept or prepared for commercial
40	40	distribution or exhibition, subject to the additional rules set
41	41	forth by law;
42	42	(7) a drug, controlled substance, immediate
43	43	precursor, chemical precursor, or other controlled substance
44	44	property, including an apparatus or paraphernalia kept, prepared,
45	45	or manufactured in violation of the laws of this state;
46	46	(8) any property the possession of which is prohibited
47	47	by law;
48	48	(9) implements or instruments used in the commission
49	49	of a crime;
50	50	(10) property or items, except the personal writings
51	51	by the accused, constituting evidence of an offense or constituting
52	52	evidence tending to show that a particular person committed an
53	53	offense;
54	54	(11) persons;
55	55	(12) contraband subject to forfeiture under Chapter 59
56	56	[of this code];
57	57	(13) electronic customer data held in electronic
58	58	storage, including the contents of and records and other
59	59	information related to a wire communication or electronic
60	60	communication held in electronic storage; [or]
61	61	(14) a cellular telephone or other wireless
62	62	communications device, subject to Article 18.0215; or
63	63	(15) location information held in electronic storage,
64	64	in accordance with Subchapter G-1, Chapter 18B.
65	65	(b) For purposes of this article [Subsection (a)(13)]:
66	66	(1) "Electronic communication" and "wire
67	67	communication" have the meanings assigned by Article 18A.001.
68	68	(2) "Electronic customer data," [data" and]
69	69	"electronic storage," and "location information" [storage"] have
70	70	the meanings assigned by Article 18B.001.
71	71	SECTION 3. Article 18.06(a), Code of Criminal Procedure, is
72	72	amended to read as follows:
73	73	(a) A peace officer to whom a search warrant is delivered
74	74	shall execute the warrant without delay and shall immediately
75	75	[forthwith] return the warrant to the proper magistrate. Except as
76	76	otherwise provided by this code [A search warrant issued under
77	77	Article 18B.354 must be executed in the manner provided by Article
78	78	18B.355 not later than the 11th day after the date of issuance. In
79	79	all other cases], a search warrant must be executed within three
80	80	days from the time of its issuance and in the manner provided by
81	81	this article. A warrant issued under this chapter, Chapter 18A, or
82	82	Chapter 18B shall be executed within a shorter period if so directed
83	83	in the warrant by the magistrate.
84	84	SECTION 4. Article 18B.001, Code of Criminal Procedure, is
85	85	amended by amending Subdivisions (7) and (8) and adding Subdivision
86	86	(9-a) to read as follows:
87	87	(7) "Electronic customer data" means data or records,
88	88	other than location information, that:
89	89	(A) are in the possession, care, custody, or
90	90	control of a provider of an electronic communications service or
91	91	provider of a remote computing service; and
92	92	(B) contain:
93	93	(i) information revealing the identity of
94	94	customers of the applicable service;
95	95	(ii) information about a customer's use of
96	96	the applicable service;
97	97	(iii) information that identifies the
98	98	recipient or destination of a wire or electronic communication sent
99	99	to or by a customer;
100	100	(iv) the content of a wire or electronic
101	101	communication sent to or by a customer; and
102	102	(v) any data stored with the applicable
103	103	service provider by or on behalf of a customer.
104	104	(8) "Electronic storage" means storage of electronic
105	105	customer data or location information in a computer, computer
106	106	network, or computer system, regardless of whether the data is
107	107	subject to recall, further manipulation, deletion, or
108	108	transmission. The term includes storage of a wire or electronic
109	109	communication by an electronic communications service or a remote
110	110	computing service.
111	111	(9-a) "Location information" means information, other
112	112	than electronic customer data, that reveals the location of a
113	113	wireless communications device obtained by any of the following
114	114	methods:
115	115	(A) using global positioning system (GPS)
116	116	location-based measurements, including the querying of the target
117	117	device's GPS service and the returned coordinates;
118	118	(B) comparing a record of the target device's
119	119	Internet Protocol (IP) address to a list of known IP addresses and
120	120	approximate known locations;
121	121	(C) querying the target device's operating
122	122	system for the identity of nearby cellular towers and uploading the
123	123	information to a server where the cellular tower identification may
124	124	be compared to a list of known cellular tower locations;
125	125	(D) querying the target device's operating
126	126	system for the identifier (such as SSID or BSSID) associated with a
127	127	nearby Wi-Fi access point and uploading that information to a
128	128	server where the access point's identifier may be compared to a
129	129	database or list of known identifiers of Wi-Fi access points in
130	130	known locations;
131	131	(E) using records derived from the device's
132	132	connections to radio antennas through which a provider of an
133	133	electronic communications service or provider of a remote computing
134	134	service provides wireless service to that device;
135	135	(F) using enhanced 9-1-1 location-based
136	136	measurements; or
137	137	(G) any combination of methods described in this
138	138	subdivision or another similar method used to determine the
139	139	location of a wireless communications device.
140	140	SECTION 5. Chapter 18B, Code of Criminal Procedure, is
141	141	amended by adding Subchapter G-1 to read as follows:
142	142	SUBCHAPTER G-1. LOCATION INFORMATION
143	143	Art. 18B.321. APPLICABILITY OF OTHER LAW. Articles
144	144	18B.355, 18B.356, and 18B.357 apply to a warrant issued under this
145	145	subchapter in the same manner as those articles apply to a warrant
146	146	issued under Article 18B.354.
147	147	Art. 18B.322. WARRANT REQUIRED FOR CERTAIN LOCATION
148	148	INFORMATION HELD IN ELECTRONIC STORAGE. (a) A warrant is required
149	149	to obtain the disclosure of location information that is held in
150	150	electronic storage in the possession, care, custody, or control of
151	151	a provider of an electronic communications service or a provider of
152	152	a remote computing service.
153	153	(b) Only a prosecutor or assistant prosecutor with
154	154	jurisdiction in a county within a judicial district described by
155	155	Article 18B.052(4) may file an application for a warrant under this
156	156	subchapter. The application must be supported by the sworn
157	157	affidavit required by Article 18.01(b).
158	158	(c) The application must be filed with a district judge in
159	159	the applicable judicial district on:
160	160	(1) the prosecutor's or assistant's own motion; or
161	161	(2) the request of an authorized peace officer in the
162	162	county.
163	163	Art. 18B.323. ISSUANCE OF WARRANT. (a) On the filing of an
164	164	application for a warrant under this subchapter, a district judge
165	165	may issue the warrant to obtain the disclosure of location
166	166	information by a provider described by Article 18B.355(b),
167	167	regardless of whether the location information is held at a
168	168	location in this state or another state.
169	169	(b) A warrant may not be issued under this article unless
170	170	the sworn affidavit required by Article 18.01(b) provides
171	171	sufficient and substantial facts to establish probable cause that:
172	172	(1) the disclosure of the location information sought
173	173	will produce evidence of an offense under investigation; and
174	174	(2) the location information sought is held in
175	175	electronic storage in the possession, care, custody, or control of
176	176	the service provider on which the warrant is served.
177	177	(c) Only the location information described in the sworn
178	178	affidavit required by Article 18.01(b) may be seized under the
179	179	warrant.
180	180	Art. 18B.324. DURATION; SEALING. (a) For a warrant issued
181	181	under this subchapter to obtain the disclosure of location
182	182	information created after the issuance of the warrant:
183	183	(1) the warrant is valid for a period not to exceed 60
184	184	days;
185	185	(2) the issuing court shall order the warrant and the
186	186	application for the warrant sealed while the warrant is valid and
187	187	shall unseal the documents after the warrant expires; and
188	188	(3) before the warrant expires, the prosecutor or
189	189	assistant prosecutor who filed the application for the warrant may
190	190	request, and the issuing court may grant, one or more 60-day
191	191	extensions of the period of the warrant, if the prosecutor or
192	192	assistant establishes a reasonable ground for each extension.
193	193	(b) For a warrant issued under this subchapter to obtain the
194	194	disclosure of location information created before the issuance of
195	195	the warrant:
196	196	(1) the prosecutor or assistant prosecutor who filed
197	197	the application for the warrant may request, and the issuing court
198	198	may order, that the warrant and application be sealed, if the
199	199	prosecutor or assistant establishes a reasonable ground for sealing
200	200	the documents;
201	201	(2) an order to seal a warrant and application under
202	202	this subsection expires on the 31st day after the date on which the
203	203	warrant is executed; and
204	204	(3) before the order sealing the documents expires,
205	205	the prosecutor or assistant may request, and the issuing court may
206	206	grant, one or more 30-day extensions of the period of the order, if
207	207	the prosecutor or assistant establishes a reasonable ground for
208	208	each extension.
209	209	Art. 18B.325. REQUIRED DISCLOSURE OF LOCATION INFORMATION
210	210	IN EMERGENCY SITUATION. (a) In this article, "immediate
211	211	life-threatening situation" has the meaning assigned by Article
212	212	18A.201.
213	213	(b) In each county, the prosecutor may designate in writing
214	214	one or more peace officers in the county, other than a commissioned
215	215	officer of the department, who are permitted under this article to
216	216	require without a warrant the prompt disclosure of location
217	217	information described by Article 18B.322(a) by a provider of an
218	218	electronic communications service or a provider of a remote
219	219	computing service.
220	220	(c) A prosecutor, assistant prosecutor, peace officer
221	221	designated under Subsection (b), or commissioned officer
222	222	designated under Article 18A.301(c) to use interception devices for
223	223	the department may require the prompt disclosure of location
224	224	information without a warrant as described by Subsection (b) if the
225	225	person seeking the disclosure reasonably believes:
226	226	(1) an immediate life-threatening situation exists
227	227	that:
228	228	(A) is within the territorial jurisdiction of the
229	229	person seeking the disclosure or of a peace officer that the person
230	230	is assisting; and
231	231	(B) necessitates the required disclosure of
232	232	location information before a warrant can, with due diligence, be
233	233	obtained under this subchapter; and
234	234	(2) there are sufficient and substantial facts to
235	235	establish probable cause for obtaining a warrant for the disclosure
236	236	of the information.
237	237	(d) After requiring the disclosure of location information
238	238	under Subsection (c), the prosecutor, assistant prosecutor, peace
239	239	officer, or commissioned officer of the department who required the
240	240	disclosure shall:
241	241	(1) not later than the 10th day after the date the
242	242	disclosure was required, make a report regarding the disclosure;
243	243	(2) file the report with the following office or
244	244	agency as appropriate:
245	245	(A) the office of the prosecutor or assistant
246	246	prosecutor who, as applicable:
247	247	(i) required the disclosure; or
248	248	(ii) designated the peace officer who
249	249	required the disclosure; or
250	250	(B) the department, if a commissioned officer of
251	251	the department required the disclosure; and
252	252	(3) on request of a court, make the report available to
253	253	the court.
254	254	(e) The report must include:
255	255	(1) a detailed description of the exigent
256	256	circumstances and the grounds described by Subsection (c) that
257	257	justified requiring the disclosure without first pursuing a warrant
258	258	under this subchapter, including the sufficient and substantial
259	259	facts that provided probable cause; and
260	260	(2) the names, titles, and office or agency of each
261	261	person involved in requiring the disclosure under this article.
262	262	Art. 18B.326. ADMISSIBILITY OF EVIDENCE OBTAINED. The
263	263	state may not use as evidence in a criminal proceeding any
264	264	information derived from the disclosure of location information as
265	265	described by this subchapter if the information was obtained in
266	266	violation of this subchapter.
267	267	SECTION 6. The change in law made by this Act applies only
268	268	to a warrant issued on or after the effective date of this Act. A
269	269	warrant issued before the effective date of this Act is governed by
270	270	the law in effect on the date the warrant was issued, and the former
271	271	law is continued in effect for that purpose.
272	272	SECTION 7. This Act takes effect September 1, 2021.