87R2864 JCG-D
By: Wilson H.B. No. 1654
A BILL TO BE ENTITLED
AN ACT
relating to certain evidence obtained in a criminal investigation,
including the issuance and execution of certain search warrants,
the required disclosure of certain information in emergency
situations, and the admissibility of certain evidence obtained with
or without warrants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 18.01(b), Code of Criminal Procedure, is
amended to read as follows:
(b) No search warrant shall issue for any purpose in this
state unless sufficient facts are first presented to satisfy the
issuing magistrate that probable cause does in fact exist for its
issuance. A sworn affidavit setting forth substantial facts
establishing probable cause shall be filed in every instance in
which a search warrant is requested. Except as otherwise provided
by this code [provided by Article 18.011], the affidavit becomes
public information when the search warrant for which the affidavit
was presented is executed, and the magistrate's clerk shall make a
copy of the affidavit available for public inspection in the
clerk's office during normal business hours.
SECTION 2. Article 18.02, Code of Criminal Procedure, is
amended to read as follows:
Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may
be issued to search for and seize:
(1) property acquired by theft or in any other manner
which makes its acquisition a penal offense;
(2) property specially designed, made, or adapted for
or commonly used in the commission of an offense;
(3) arms and munitions kept or prepared for the
purposes of insurrection or riot;
(4) weapons prohibited by the Penal Code;
(5) gambling devices or equipment, altered gambling
equipment, or gambling paraphernalia;
(6) obscene materials kept or prepared for commercial
distribution or exhibition, subject to the additional rules set
forth by law;
(7) a drug, controlled substance, immediate
precursor, chemical precursor, or other controlled substance
property, including an apparatus or paraphernalia kept, prepared,
or manufactured in violation of the laws of this state;
(8) any property the possession of which is prohibited
by law;
(9) implements or instruments used in the commission
of a crime;
(10) property or items, except the personal writings
by the accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;
(11) persons;
(12) contraband subject to forfeiture under Chapter 59
[of this code];
(13) electronic customer data held in electronic
storage, including the contents of and records and other
information related to a wire communication or electronic
communication held in electronic storage; [or]
(14) a cellular telephone or other wireless
communications device, subject to Article 18.0215; or
(15) location information held in electronic storage,
in accordance with Subchapter G-1, Chapter 18B.
(b) For purposes of this article [Subsection (a)(13)]:
(1) "Electronic communication" and "wire
communication" have the meanings assigned by Article 18A.001.
(2) "Electronic customer data," [data" and]
"electronic storage," and "location information" [storage"] have
the meanings assigned by Article 18B.001.
SECTION 3. Article 18.06(a), Code of Criminal Procedure, is
amended to read as follows:
(a) A peace officer to whom a search warrant is delivered
shall execute the warrant without delay and shall immediately
[forthwith] return the warrant to the proper magistrate. Except as
otherwise provided by this code [A search warrant issued under
Article 18B.354 must be executed in the manner provided by Article
18B.355 not later than the 11th day after the date of issuance. In
all other cases], a search warrant must be executed within three
days from the time of its issuance and in the manner provided by
this article. A warrant issued under this chapter, Chapter 18A, or
Chapter 18B shall be executed within a shorter period if so directed
in the warrant by the magistrate.
SECTION 4. Article 18B.001, Code of Criminal Procedure, is
amended by amending Subdivisions (7) and (8) and adding Subdivision
(9-a) to read as follows:
(7) "Electronic customer data" means data or records,
other than location information, that:
(A) are in the possession, care, custody, or
control of a provider of an electronic communications service or
provider of a remote computing service; and
(B) contain:
(i) information revealing the identity of
customers of the applicable service;
(ii) information about a customer's use of
the applicable service;
(iii) information that identifies the
recipient or destination of a wire or electronic communication sent
to or by a customer;
(iv) the content of a wire or electronic
communication sent to or by a customer; and
(v) any data stored with the applicable
service provider by or on behalf of a customer.
(8) "Electronic storage" means storage of electronic
customer data or location information in a computer, computer
network, or computer system, regardless of whether the data is
subject to recall, further manipulation, deletion, or
transmission. The term includes storage of a wire or electronic
communication by an electronic communications service or a remote
computing service.
(9-a) "Location information" means information, other
than electronic customer data, that reveals the location of a
wireless communications device obtained by any of the following
methods:
(A) using global positioning system (GPS)
location-based measurements, including the querying of the target
device's GPS service and the returned coordinates;
(B) comparing a record of the target device's
Internet Protocol (IP) address to a list of known IP addresses and
approximate known locations;
(C) querying the target device's operating
system for the identity of nearby cellular towers and uploading the
information to a server where the cellular tower identification may
be compared to a list of known cellular tower locations;
(D) querying the target device's operating
system for the identifier (such as SSID or BSSID) associated with a
nearby Wi-Fi access point and uploading that information to a
server where the access point's identifier may be compared to a
database or list of known identifiers of Wi-Fi access points in
known locations;
(E) using records derived from the device's
connections to radio antennas through which a provider of an
electronic communications service or provider of a remote computing
service provides wireless service to that device;
(F) using enhanced 9-1-1 location-based
measurements; or
(G) any combination of methods described in this
subdivision or another similar method used to determine the
location of a wireless communications device.
SECTION 5. Chapter 18B, Code of Criminal Procedure, is
amended by adding Subchapter G-1 to read as follows:
SUBCHAPTER G-1. LOCATION INFORMATION
Art. 18B.321. APPLICABILITY OF OTHER LAW. Articles
18B.355, 18B.356, and 18B.357 apply to a warrant issued under this
subchapter in the same manner as those articles apply to a warrant
issued under Article 18B.354.
Art. 18B.322. WARRANT REQUIRED FOR CERTAIN LOCATION
INFORMATION HELD IN ELECTRONIC STORAGE. (a) A warrant is required
to obtain the disclosure of location information that is held in
electronic storage in the possession, care, custody, or control of
a provider of an electronic communications service or a provider of
a remote computing service.
(b) Only a prosecutor or assistant prosecutor with
jurisdiction in a county within a judicial district described by
Article 18B.052(4) may file an application for a warrant under this
subchapter. The application must be supported by the sworn
affidavit required by Article 18.01(b).
(c) The application must be filed with a district judge in
the applicable judicial district on:
(1) the prosecutor's or assistant's own motion; or
(2) the request of an authorized peace officer in the
county.
Art. 18B.323. ISSUANCE OF WARRANT. (a) On the filing of an
application for a warrant under this subchapter, a district judge
may issue the warrant to obtain the disclosure of location
information by a provider described by Article 18B.355(b),
regardless of whether the location information is held at a
location in this state or another state.
(b) A warrant may not be issued under this article unless
the sworn affidavit required by Article 18.01(b) provides
sufficient and substantial facts to establish probable cause that:
(1) the disclosure of the location information sought
will produce evidence of an offense under investigation; and
(2) the location information sought is held in
electronic storage in the possession, care, custody, or control of
the service provider on which the warrant is served.
(c) Only the location information described in the sworn
affidavit required by Article 18.01(b) may be seized under the
warrant.
Art. 18B.324. DURATION; SEALING. (a) For a warrant issued
under this subchapter to obtain the disclosure of location
information created after the issuance of the warrant:
(1) the warrant is valid for a period not to exceed 60
days;
(2) the issuing court shall order the warrant and the
application for the warrant sealed while the warrant is valid and
shall unseal the documents after the warrant expires; and
(3) before the warrant expires, the prosecutor or
assistant prosecutor who filed the application for the warrant may
request, and the issuing court may grant, one or more 60-day
extensions of the period of the warrant, if the prosecutor or
assistant establishes a reasonable ground for each extension.
(b) For a warrant issued under this subchapter to obtain the
disclosure of location information created before the issuance of
the warrant:
(1) the prosecutor or assistant prosecutor who filed
the application for the warrant may request, and the issuing court
may order, that the warrant and application be sealed, if the
prosecutor or assistant establishes a reasonable ground for sealing
the documents;
(2) an order to seal a warrant and application under
this subsection expires on the 31st day after the date on which the
warrant is executed; and
(3) before the order sealing the documents expires,
the prosecutor or assistant may request, and the issuing court may
grant, one or more 30-day extensions of the period of the order, if
the prosecutor or assistant establishes a reasonable ground for
each extension.
Art. 18B.325. REQUIRED DISCLOSURE OF LOCATION INFORMATION
IN EMERGENCY SITUATION. (a) In this article, "immediate
life-threatening situation" has the meaning assigned by Article
18A.201.
(b) In each county, the prosecutor may designate in writing
one or more peace officers in the county, other than a commissioned
officer of the department, who are permitted under this article to
require without a warrant the prompt disclosure of location
information described by Article 18B.322(a) by a provider of an
electronic communications service or a provider of a remote
computing service.
(c) A prosecutor, assistant prosecutor, peace officer
designated under Subsection (b), or commissioned officer
designated under Article 18A.301(c) to use interception devices for
the department may require the prompt disclosure of location
information without a warrant as described by Subsection (b) if the
person seeking the disclosure reasonably believes:
(1) an immediate life-threatening situation exists
that:
(A) is within the territorial jurisdiction of the
person seeking the disclosure or of a peace officer that the person
is assisting; and
(B) necessitates the required disclosure of
location information before a warrant can, with due diligence, be
obtained under this subchapter; and
(2) there are sufficient and substantial facts to
establish probable cause for obtaining a warrant for the disclosure
of the information.
(d) After requiring the disclosure of location information
under Subsection (c), the prosecutor, assistant prosecutor, peace
officer, or commissioned officer of the department who required the
disclosure shall:
(1) not later than the 10th day after the date the
disclosure was required, make a report regarding the disclosure;
(2) file the report with the following office or
agency as appropriate:
(A) the office of the prosecutor or assistant
prosecutor who, as applicable:
(i) required the disclosure; or
(ii) designated the peace officer who
required the disclosure; or
(B) the department, if a commissioned officer of
the department required the disclosure; and
(3) on request of a court, make the report available to
the court.
(e) The report must include:
(1) a detailed description of the exigent
circumstances and the grounds described by Subsection (c) that
justified requiring the disclosure without first pursuing a warrant
under this subchapter, including the sufficient and substantial
facts that provided probable cause; and
(2) the names, titles, and office or agency of each
person involved in requiring the disclosure under this article.
Art. 18B.326. ADMISSIBILITY OF EVIDENCE OBTAINED. The
state may not use as evidence in a criminal proceeding any
information derived from the disclosure of location information as
described by this subchapter if the information was obtained in
violation of this subchapter.
SECTION 6. The change in law made by this Act applies only
to a warrant issued on or after the effective date of this Act. A
warrant issued before the effective date of this Act is governed by
the law in effect on the date the warrant was issued, and the former
law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2021.