87R5882 JCG-D
By: Harless H.B. No. 3363
A BILL TO BE ENTITLED
AN ACT
relating to the issuance and execution of certain search warrants
in a criminal investigation and the admissibility of evidence
obtained through certain searches.
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. [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. 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 18.07(a), Code of Criminal Procedure, is
amended to read as follows:
(a) Unless the magistrate directs in the warrant a shorter
period for the execution of any search warrant issued under this
chapter, Chapter 18A, or Chapter 18B, the [The] period allowed for
the execution of the [a search] warrant, exclusive of the day of its
issuance and of the day of its execution, is:
(1) 15 whole days if the warrant is issued solely to
search for and seize specimens from a specific person for DNA
analysis and comparison, including blood and saliva samples;
(2) 10 whole days if the warrant is issued under
Article 18B.354 or Subchapter G-1, Chapter 18B; or
(3) three whole days if the warrant is issued for a
purpose other than that described by Subdivision (1) or (2).
SECTION 5. Article 18B.001, Code of Criminal Procedure, is
amended by amending Subdivisions (7) and (8) and adding
Subdivisions (9-a) and (9-b) 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) "Immediate life-threatening situation" has the
meaning assigned by Article 18A.201.
(9-b) "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 6. Chapter 18B, Code of Criminal Procedure, is
amended by adding Subchapter G-1 to read as follows:
SUBCHAPTER G-1. PROSPECTIVE LOCATION INFORMATION
Art. 18B.321. APPLICABILITY. (a) This subchapter applies
only to a warrant described by Article 18B.322 for the required
disclosure of location information that is:
(1) 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;
and
(2) created after the issuance of the warrant.
(b) 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 described by
Article 18B.321(a) by a provider of an electronic communications
service or a provider of a remote computing service.
(b) Only a prosecutor or a prosecutor's assistant 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 of a
designated law enforcement office or agency or an authorized peace
officer commissioned by the department.
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:
(A) produce evidence of an offense under
investigation; or
(B) result in the apprehension of a fugitive from
justice; 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) A warrant issued
under this subchapter is valid for a period not to exceed 60 days
after the date the warrant is issued, unless the prosecutor or
prosecutor's assistant applies for and obtains an extension of that
period from the court before the warrant expires.
(b) Each extension granted under Subsection (a) may not
exceed a period of 60 days.
(c) A district court that issues a warrant under this
subchapter shall order the warrant and the application for the
warrant sealed and may not unseal the warrant and application until
after the warrant expires.
Art. 18B.325. EMERGENCY DISCLOSURE. (a) An authorized
peace officer of a designated law enforcement office or agency or an
authorized peace officer commissioned by the department may,
without a warrant, require the disclosure of location information
described by Article 18B.321(a) if:
(1) the officer reasonably believes an immediate
life-threatening situation exists that:
(A) is within the officer's territorial
jurisdiction; and
(B) requires the disclosure of the location
information before a warrant can, with due diligence, be obtained
under this subchapter; and
(2) there are sufficient grounds under this subchapter
on which to obtain a warrant requiring the disclosure of the
location information.
(b) Not later than 48 hours after requiring disclosure of
location information without a warrant under Subsection (a), the
authorized peace officer shall obtain a warrant for that purpose in
accordance with this subchapter.
Art. 18B.326. CERTAIN EVIDENCE NOT ADMISSIBLE. The state
may not use as evidence in a criminal proceeding any information
obtained through the required disclosure of location information
described by Article 18B.321(a), unless:
(1) a warrant is obtained before requiring the
disclosure; or
(2) if the disclosure is required under Article
18B.325 before a warrant can be obtained, the authorized peace
officer who required the disclosure obtains a warrant as required
by Subsection (b) of that article.
SECTION 7. Article 18B.151(a), Code of Criminal Procedure,
is repealed.
SECTION 8. Chapter 18B, Code of Criminal Procedure, as
amended by this Act, applies to the disclosure of certain
information by a provider of an electronic communications service
or a provider of a remote computing service under a warrant, order,
or other legal process on or after the effective date of this Act.
SECTION 9. This Act takes effect September 1, 2021.