Texas 2021 - 87th Regular

Texas Senate Bill SB1717 Compare Versions

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

Old	New	Differences
1	1	87R9560 JCG-F
2	2	By: Hughes S.B. No. 1717
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to subpoenas, orders, and warrants for the disclosure of
8	8	location information, electronic customer communications records,
9	9	and electronic customer data and for the use of pen registers, ESN
10	10	readers, cell site simulators, and mobile tracking devices;
11	11	creating a criminal offense.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Article 18.02, Code of Criminal Procedure, is
14	14	amended to read as follows:
15	15	Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant
16	16	may be issued to search for and seize:
17	17	(1) property acquired by theft or in any other manner
18	18	which makes its acquisition a penal offense;
19	19	(2) property specially designed, made, or adapted for
20	20	or commonly used in the commission of an offense;
21	21	(3) arms and munitions kept or prepared for the
22	22	purposes of insurrection or riot;
23	23	(4) weapons prohibited by the Penal Code;
24	24	(5) gambling devices or equipment, altered gambling
25	25	equipment, or gambling paraphernalia;
26	26	(6) obscene materials kept or prepared for commercial
27	27	distribution or exhibition, subject to the additional rules set
28	28	forth by law;
29	29	(7) a drug, controlled substance, immediate
30	30	precursor, chemical precursor, or other controlled substance
31	31	property, including an apparatus or paraphernalia kept, prepared,
32	32	or manufactured in violation of the laws of this state;
33	33	(8) any property the possession of which is prohibited
34	34	by law;
35	35	(9) implements or instruments used in the commission
36	36	of a crime;
37	37	(10) property or items, except the personal writings
38	38	by the accused, constituting evidence of an offense or constituting
39	39	evidence tending to show that a particular person committed an
40	40	offense;
41	41	(11) persons;
42	42	(12) contraband subject to forfeiture under Chapter 59
43	43	of this code;
44	44	(13) electronic customer communications records and
45	45	electronic customer data held in electronic storage[, including the
46	46	contents of and records and other information related to a wire
47	47	communication or electronic communication held in electronic
48	48	storage]; [or]
49	49	(14) a cellular telephone or other wireless
50	50	communications device, subject to Article 18.0215; or
51	51	(15) location information.
52	52	(b) For purposes of this article [Subsection (a)(13)]:
53	53	(1) "Electronic communication" and "wire
54	54	communication" have the meanings assigned by Article 18A.001.
55	55	(2) "Electronic customer communications records,"
56	56	"electronic customer data," [and] "electronic storage," and
57	57	"location information" [storage"] have the meanings assigned by
58	58	Article 18B.001.
59	59	SECTION 2. Article 18.06(a), Code of Criminal Procedure, is
60	60	amended to read as follows:
61	61	(a) A peace officer to whom a search warrant is delivered
62	62	shall execute the warrant without delay and shall immediately
63	63	[forthwith] return the warrant to the proper magistrate. [A search
64	64	warrant issued under Article 18B.354 must be executed in the manner
65	65	provided by Article 18B.355 not later than the 11th day after the
66	66	date of issuance. In all other cases, a search warrant must be
67	67	executed within three days from the time of its issuance. A warrant
68	68	issued under this chapter, Chapter 18A, or Chapter 18B shall be
69	69	executed within a shorter period if so directed in the warrant by
70	70	the magistrate.]
71	71	SECTION 3. Article 18.07(a), Code of Criminal Procedure, is
72	72	amended to read as follows:
73	73	(a) Unless the magistrate directs in the warrant a shorter
74	74	period for the execution of any search warrant issued under this
75	75	chapter, Chapter 18A, or Chapter 18B, the [The] period allowed for
76	76	the execution of the [a search] warrant, exclusive of the day of its
77	77	issuance and of the day of its execution, is:
78	78	(1) 15 whole days if the warrant is issued solely to
79	79	search for and seize specimens from a specific person for DNA
80	80	analysis and comparison, including blood and saliva samples;
81	81	(2) 30 [10] whole days if the warrant is issued under:
82	82	(A) Article 18B.222 or 18B.223, if requiring the
83	83	disclosure of location information as defined by Article 18B.001;
84	84	or
85	85	(B) Article 18B.354; or
86	86	(3) three whole days if the warrant is issued for a
87	87	purpose other than that described by Subdivision (1) or (2).
88	88	SECTION 4. Article 18B.001, Code of Criminal Procedure, is
89	89	amended by adding Subdivisions (1-a), (6-a), (9-a), and (9-b) and
90	90	amending Subdivisions (4), (7), and (8) to read as follows:
91	91	(1-a) "Cell site simulator" means a device that:
92	92	(A) locates or identifies a wireless
93	93	communications device in the immediate vicinity of the simulator by
94	94	simulating the functions of a wireless telecommunications network
95	95	transceiver; and
96	96	(B) is designed to collect location information
97	97	from the wireless communications device.
98	98	(4) "Designated law enforcement office or agency"
99	99	means:
100	100	(A) the sheriff's department of a county with a
101	101	population of 3.3 million or more;
102	102	(B) a police department in a municipality with a
103	103	population of 200,000 or more; [or]
104	104	(C) the office of inspector general of the Texas
105	105	Department of Criminal Justice;
106	106	(D) a special investigator under Article 2.122
107	107	when assisting a peace officer of this state in:
108	108	(i) apprehending a person charged with an
109	109	offense under Article 18B.222(b)(2); or
110	110	(ii) resolving an emergency situation
111	111	involving:
112	112	(a) an immediate life-threatening
113	113	situation;
114	114	(b) conspiratorial activities
115	115	characteristic of an imminent threat from violent organized crime;
116	116	(c) an ongoing attack on a protected
117	117	computer, as defined by 18 U.S.C. Section 1030, that constitutes an
118	118	offense under Section 33.02, Penal Code, or an equivalent offense
119	119	under federal law; or
120	120	(d) the report of the disappearance of
121	121	an individual, including the report of a runaway individual younger
122	122	than 18 years of age, or a report of a suicidal individual, where
123	123	the report indicates the individual may be in danger based on the
124	124	circumstances of the disappearance, including circumstances such
125	125	as the age and mental or physical condition of the individual; or
126	126	(E) a prosecutor, assistant prosecutor, or a
127	127	peace officer who is an investigator of a prosecutor's office in a
128	128	county with a population of more than 800,000.
129	129	(6-a) "Electronic customer communications records"
130	130	means data or records, other than location information, that:
131	131	(A) are in the possession, care, custody, or
132	132	control of a provider of an electronic communications service or a
133	133	provider of a remote computing service; and
134	134	(B) contain:
135	135	(i) the content of a wire or electronic
136	136	communication sent to or by the customer, including:
137	137	(a) information that identifies by
138	138	name the recipient or destination of a wire or electronic
139	139	communication;
140	140	(b) the draft form of a wire or
141	141	electronic communication, regardless of whether the communication
142	142	was sent; or
143	143	(c) a summary description of the
144	144	content of a wire or electronic communication, such as file name,
145	145	subject line, or uniform resource locator; or
146	146	(ii) the content of files or records owned
147	147	or possessed by a customer that are stored by the applicable service
148	148	provider by or on behalf of the customer.
149	149	(7) "Electronic customer data" means data or records,
150	150	other than location information or electronic customer
151	151	communication records, that:
152	152	(A) are in the possession, care, custody, or
153	153	control of a provider of an electronic communications service or
154	154	provider of a remote computing service; and
155	155	(B) contain:
156	156	(i) information revealing the identity of
157	157	customers of the applicable service;
158	158	(ii) information about a customer's use of
159	159	the applicable service; or
160	160	(iii) information that identifies the
161	161	recipient or destination of a wire or electronic communication sent
162	162	to or by a customer[;
163	163	[(iv) the content of a wire or electronic
164	164	communication sent to or by a customer; and
165	165	[(v) any data stored with the applicable
166	166	service provider by or on behalf of a customer].
167	167	(8) "Electronic storage" means storage of electronic
168	168	customer data, electronic customer communications records, or
169	169	location information in a computer, computer network, or computer
170	170	system, regardless of whether the data is subject to recall,
171	171	further manipulation, deletion, or transmission. The term includes
172	172	storage of a wire or electronic communication by an electronic
173	173	communications service or a remote computing service.
174	174	(9-a) "Immediate life-threatening situation" has the
175	175	meaning assigned by Article 18A.201.
176	176	(9-b) "Location information" means data or records,
177	177	other than information identifying the subscriber or customer or
178	178	the account with which a wireless communications device is
179	179	associated or information composed of network transactional access
180	180	records unrelated to the location of a wireless communications
181	181	device, that:
182	182	(A) suggest the physical location of a wireless
183	183	communications device by identifying the first, intermediate, or
184	184	last point through which a wire or electronic communication enters
185	185	or departs the physical infrastructure of an electronic
186	186	communications system, including data or records commonly known as
187	187	cell site location information;
188	188	(B) are created by or accessible to a provider of
189	189	an electronic communications system and designed to identify the
190	190	physical location of a wireless communications device, including
191	191	information commonly known as E911 or precision location
192	192	information derived through a global positioning system or
193	193	multi-lateration measurement; or
194	194	(C) are created by or accessed through the use of
195	195	a cell site simulator.
196	196	SECTION 5. Subchapter B, Chapter 18B, Code of Criminal
197	197	Procedure, is amended by adding Article 18B.0505 to read as
198	198	follows:
199	199	Art. 18B.0505. APPLICABILITY. This subchapter and
200	200	Subchapters C and D do not apply to the use of a cell site simulator.
201	201	SECTION 6. Article 18B.151, Code of Criminal Procedure, is
202	202	amended to read as follows:
203	203	Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN
204	204	REGISTER OR TRAP AND TRACE DEVICE. [(a) In this article,
205	205	"immediate life-threatening situation" has the meaning assigned by
206	206	Article 18A.201.
207	207	[(b)] A peace officer authorized to possess, install,
208	208	operate, or monitor a device under Subchapter E, Chapter 18A, may
209	209	install and use a pen register or trap and trace device if:
210	210	(1) another peace officer is designated to approve for
211	211	the authorized peace officer's agency the emergency required
212	212	disclosure of location information by:
213	213	(A) the head of the agency; and
214	214	(B) a district attorney or criminal district
215	215	attorney with jurisdiction over all or part of the other officer's
216	216	jurisdiction; and
217	217	(2) the peace officer described by Subdivision (1)
218	218	approves the installation and use of a pen register or trap and
219	219	trace device by reasonably determining that:
220	220	(A) an emergency situation exists in the
221	221	territorial jurisdiction of the authorized peace officer, or
222	222	another officer the authorized officer is assisting, involving:
223	223	(i) an immediate life-threatening
224	224	situation;
225	225	(ii) conspiratorial activities
226	226	characteristic of an imminent threat from violent organized crime;
227	227	(iii) if the authorized peace officer is
228	228	assisting an employee, officer, or agent of the federal government,
229	229	an immediate threat to a national security interest;
230	230	(iv) an ongoing attack on a protected
231	231	computer, as defined by 18 U.S.C. Section 1030, that constitutes an
232	232	offense under Section 33.02, Penal Code, or an equivalent offense
233	233	under federal law; or
234	234	(v) the report of the disappearance of an
235	235	individual, including the report of a runaway individual younger
236	236	than 18 years of age, or a report of a suicidal individual, where
237	237	the report indicates the individual may be in danger based on the
238	238	circumstances of the disappearance, including circumstances such
239	239	as the age and mental or physical condition of the individual;
240	240	(B) installing and using the pen register or trap
241	241	and trace device may resolve the emergency situation; and
242	242	(C) [the peace officer reasonably believes:
243	243	[(1) an immediate life-threatening situation exists
244	244	that:
245	245	[(A) is within the territorial jurisdiction of
246	246	the peace officer or another officer the peace officer is
247	247	assisting; and
248	248	[(B) requires the installation of a pen register
249	249	or trap and trace device before an order authorizing the
250	250	installation and use can, with due diligence, be obtained under
251	251	this chapter; and
252	252	[(2)] there are sufficient grounds under this chapter
253	253	on which to obtain an order authorizing the installation and use of
254	254	a pen register or trap and trace device.
255	255	SECTION 7. Article 18B.152, Code of Criminal Procedure, is
256	256	amended by adding Subsection (c) to read as follows:
257	257	(c) In the event that at the time of the installation and use
258	258	of a pen register or trap and trace device under this subchapter it
259	259	is not readily apparent that any offense has been committed, the
260	260	judge shall note the exact date and time at which the likelihood
261	261	that an offense was committed became apparent, if applicable. If,
262	262	before the conclusion of the emergency or issuance of an order
263	263	authorizing continued use of the device under Subchapter B it did
264	264	not become apparent that any offense was committed, the judge shall
265	265	annotate the order to reflect that: "No affirmative investigative
266	266	or prosecutive use may be made of any pen register or trap and trace
267	267	records obtained pursuant to the device's emergency installation or
268	268	use."
269	269	SECTION 8. Article 18B.202(c), Code of Criminal Procedure,
270	270	is amended to read as follows:
271	271	(c) The affidavit must:
272	272	(1) state the name, department, agency, and address of
273	273	the applicant;
274	274	(2) identify the vehicle, container, or item to which,
275	275	in which, or on which the mobile tracking device is to be attached,
276	276	placed, or otherwise installed;
277	277	(3) state the name of the owner or possessor of the
278	278	vehicle, container, or item identified under Subdivision (2);
279	279	(4) state the judicial jurisdictional area in which
280	280	the vehicle, container, or item identified under Subdivision (2) is
281	281	expected to be found; and
282	282	(5) state the facts and circumstances that provide the
283	283	applicant with probable cause to believe [a reasonable suspicion]
284	284	that:
285	285	(A) criminal activity has been, is, or will be
286	286	committed; and
287	287	(B) the installation and use of a mobile tracking
288	288	device will [is likely to] produce:
289	289	(i) evidence of the offense;
290	290	(ii) the location of contraband, fruits of
291	291	the offense, or other items illegally possessed;
292	292	(iii) the location of criminal instruments;
293	293	(iv) the identity or location of a person to
294	294	be arrested; or
295	295	(v) the identity or location of a person
296	296	being unlawfully restrained [information that is material to an
297	297	ongoing criminal investigation of that criminal activity].
298	298	SECTION 9. Article 18B.205, Code of Criminal Procedure, is
299	299	amended to read as follows:
300	300	Art. 18B.205. DURATION OF ORDER. (a) An order under this
301	301	subchapter expires not later than the 45th [90th] day after the date
302	302	that the mobile tracking device was activated in place on or within
303	303	the vehicle, container, or item.
304	304	(b) For good cause shown, the judge may grant an extension
305	305	for an additional 45-day [90-day] period.
306	306	SECTION 10. Chapter 18B, Code of Criminal Procedure, is
307	307	amended by adding Subchapter E-1 to read as follows:
308	308	SUBCHAPTER E-1. WARRANT FOR USE OF CELL SITE SIMULATOR OR REQUIRING
309	309	DISCLOSURE OF LOCATION INFORMATION
310	310	Art. 18B.221. APPLICABILITY. This subchapter does not
311	311	apply to a device used by the Texas Department of Criminal Justice,
312	312	or a person under contract with the department, to detect
313	313	contraband in a correctional facility.
314	314	Art. 18B.222. WARRANT FOR USE OF CELL SITE SIMULATOR OR
315	315	DISCLOSURE OF CERTAIN LOCATION INFORMATION. (a) A district judge
316	316	may issue a warrant:
317	317	(1) authorizing the use of a cell site simulator to
318	318	obtain location information from a cellular telephone or other
319	319	wireless communications device; or
320	320	(2) requiring the disclosure of location information
321	321	by a provider of an electronic communications service or a provider
322	322	of a remote computing service who has possession, care, custody, or
323	323	control of the information, regardless of whether the location
324	324	information is held at a location in this state or another state.
325	325	(b) A district judge may issue a warrant described by
326	326	Subsection (a) only:
327	327	(1) except as provided by Article 18B.231, on
328	328	application by:
329	329	(A) a prosecutor; or
330	330	(B) an assistant prosecutor, if applying on
331	331	request of:
332	332	(i) an authorized peace officer
333	333	commissioned by the department; or
334	334	(ii) an authorized peace officer of a
335	335	designated law enforcement office or agency; and
336	336	(2) for the investigation of:
337	337	(A) an offense under:
338	338	(i) Section 19.02, Penal Code;
339	339	(ii) Section 19.03, Penal Code;
340	340	(iii) Section 20.03, Penal Code;
341	341	(iv) Section 20.04, Penal Code;
342	342	(v) Chapter 20A, Penal Code;
343	343	(vi) Section 21.02, Penal Code;
344	344	(vii) Section 21.11, Penal Code;
345	345	(viii) Section 22.01, Penal Code, if the
346	346	offense is punishable as a felony;
347	347	(ix) Section 22.011, Penal Code;
348	348	(x) Section 22.02, Penal Code;
349	349	(xi) Section 22.021, Penal Code;
350	350	(xii) Section 22.04, Penal Code;
351	351	(xiii) Section 22.041, Penal Code;
352	352	(xiv) Section 28.02, Penal Code;
353	353	(xv) Section 29.02, Penal Code;
354	354	(xvi) Section 29.03, Penal Code;
355	355	(xvii) Section 30.02, Penal Code;
356	356	(xviii) Chapter 34, Penal Code;
357	357	(xix) Title 8, Penal Code;
358	358	(xx) Chapter 43, Penal Code;
359	359	(xxi) Chapter 481, Health and Safety Code,
360	360	other than an offense under:
361	361	(a) Section 481.121(b) of that code,
362	362	if the offense involves not more than one pound of marihuana;
363	363	(b) Section 481.1151(b)(1),
364	364	481.116(b), 481.1161(b)(1), (2), or (3), 481.117(b), 481.118(b),
365	365	or 481.125(d) of that code; or
366	366	(c) Section 481.115(b) of that code
367	367	that did not involve fentanyl, alpha-methylfentanyl, or
368	368	carfentanyl, or any derivative of those substances, including any
369	369	isomer, ester, ether, salt, or salt of an isomer, ester, or ether of
370	370	those substances;
371	371	(xxii) Chapter 483, Health and Safety Code;
372	372	or
373	373	(xxiii) Chapter 485, Health and Safety
374	374	Code;
375	375	(B) a felony under Chapter 71, Penal Code;
376	376	(C) any sex offense for which a person is subject
377	377	to registration under Chapter 62 and in which the victim was younger
378	378	than 18 years of age at the time the offense was committed;
379	379	(D) an offense of another jurisdiction in the
380	380	United States equivalent to an offense under Paragraph (A), (B), or
381	381	(C), regardless of whether the offense was committed in this state
382	382	or another jurisdiction; or
383	383	(E) an emergency situation described by Article
384	384	18B.231(a)(2)(A).
385	385	(c) An application under this article must:
386	386	(1) be made in writing under oath; and
387	387	(2) include:
388	388	(A) the name, department, agency, and address of
389	389	the applicant;
390	390	(B) the offense being investigated and for which
391	391	the application is being made;
392	392	(C) the case number or unique identifier assigned
393	393	by the law enforcement agency to the investigation of the offense
394	394	for which the application is being made;
395	395	(D) the name of:
396	396	(i) the customer or subscriber whose data
397	397	or device is the subject of the application, if the application
398	398	seeks location information related to a particular subscriber or
399	399	customer and the name of the customer or subscriber is known to the
400	400	applicant; and
401	401	(ii) the person who is the subject of the
402	402	application, if that person is not described by Subparagraph (i);
403	403	(E) the account number or unique identifier that
404	404	is the subject of the application; and
405	405	(F) if the application is requesting
406	406	authorization to use a cell site simulator, a description of the
407	407	manner and method of deploying the cell site simulator device,
408	408	including:
409	409	(i) whether the use of the device is likely
410	410	to result in the device collecting from a cellular telephone or
411	411	other wireless communications device data that is not the subject
412	412	of the application; and
413	413	(ii) procedures for mitigating the
414	414	collection of extraneous data as described by Subparagraph (i).
415	415	(d) The accompanying affidavit must contain a statement of
416	416	facts and circumstances demonstrating:
417	417	(1) probable cause that:
418	418	(A) an offense listed in Subsection (b)(2)(A),
419	419	(B), (C), or (D) has been, is being, or will be committed; and
420	420	(B) the location information being sought or the
421	421	use of a cell site simulator will reveal the location of:
422	422	(i) evidence of the offense;
423	423	(ii) contraband, fruits of the offense, or
424	424	other items illegally possessed;
425	425	(iii) criminal instruments;
426	426	(iv) a person to be arrested; or
427	427	(v) a person being unlawfully restrained;
428	428	or
429	429	(2) that the use of a cell site simulator or the
430	430	required disclosure of location information will resolve an
431	431	emergency situation described by Article 18B.231(a)(2)(A).
432	432	Art. 18B.223. WARRANT FOR CERTAIN LOCATION INFORMATION.
433	433	(a) The judge may issue a warrant requiring a provider of an
434	434	electronic communications service or a provider of a remote
435	435	computing service to disclose location information related to the
436	436	commission of an offense based on an application for a warrant
437	437	submitted without specifying any customer information required
438	438	under Articles 18B.222(c)(2)(D) and (E), provided that the
439	439	application:
440	440	(1) meets all other requirements of this subchapter;
441	441	and
442	442	(2) includes:
443	443	(A) the location where the offense is alleged to
444	444	have been committed; and
445	445	(B) each provider on whom the warrant will be
446	446	served.
447	447	(b) The location information disclosed pursuant to a
448	448	warrant issued under this article may not be used to further an
449	449	investigation unrelated to the investigation of the offense for
450	450	which the warrant application was made, unless an authorized peace
451	451	officer, prosecutor, or assistant prosecutor:
452	452	(1) makes a separate application to a district judge
453	453	to authorize the use of the location information to further an
454	454	unrelated investigation; and
455	455	(2) states in the application described by Subdivision
456	456	(1) specific and articulable facts showing good cause for that use.
457	457	(c) Unless authorized by a district judge, a law enforcement
458	458	agency holding location information disclosed pursuant to a warrant
459	459	issued under this article:
460	460	(1) may not commingle:
461	461	(A) the location information determined relevant
462	462	to the investigation of the offense for which the warrant
463	463	application was made; and
464	464	(B) the location information determined to be
465	465	irrelevant to that investigation; and
466	466	(2) must keep separated by the criminal episode or
467	467	location each set of location information described by Subdivision
468	468	(1)(B).
469	469	(d) A district judge may review similar applications for a
470	470	warrant under this article and instruct an agency holding
471	471	separately the location information under Subsection (c) to compare
472	472	the information to determine whether the information is relevant to
473	473	the cases or to other locations identified in similar applications.
474	474	Art. 18B.224. JURISDICTION. An application under this
475	475	subchapter must be filed in a judicial district in which is located:
476	476	(1) the headquarters of:
477	477	(A) the office of the prosecutor filing an
478	478	application under this subchapter;
479	479	(B) a law enforcement agency that requests the
480	480	prosecutor to file an application for a warrant under this
481	481	subchapter or that proposes to execute the warrant, if one is issued
482	482	under this subchapter; or
483	483	(C) a provider of an electronic communications
484	484	service or a provider of a remote computing service holding in
485	485	electronic storage location information for which the warrant is
486	486	sought;
487	487	(2) the site of the proposed use of a cell site
488	488	simulator; or
489	489	(3) the billing, residential, or business address of
490	490	the subscriber or customer of a provider of an electronic
491	491	communications service or a provider of a remote computing service
492	492	who is the subject of the application.
493	493	Art. 18B.225. DURATION OF WARRANT. (a) A warrant issued
494	494	under this subchapter authorizing the use of a cell site simulator
495	495	is valid for a period not to exceed 30 days.
496	496	(b) A warrant issued under this subchapter requiring the
497	497	ongoing disclosure of prospective location information by a
498	498	provider of an electronic communications service or a provider of a
499	499	remote computing service is valid for a period not to exceed 60
500	500	days.
501	501	Art. 18B.226. USE OF LOCATION INFORMATION IN UNRELATED
502	502	INVESTIGATION PROHIBITED. Except as provided by Article 18B.223(b)
503	503	or (d), location information obtained pursuant to a warrant issued
504	504	under this subchapter:
505	505	(1) may not be used to further an investigation
506	506	unrelated to the investigation of the offense for which the warrant
507	507	application was made; and
508	508	(2) may be used only to investigate or prosecute
509	509	offenses and defendants related to the offense for which the
510	510	warrant application was made.
511	511	Art. 18B.227. CERTAIN RESTRICTIONS ON USE OF CELL SITE
512	512	SIMULATOR. (a) Under a warrant issued under this subchapter
513	513	authorizing the use of a cell site simulator, if the cell site
514	514	simulator is used to locate a known person's wireless
515	515	communications device, location information that is derived from
516	516	the simulator's use and is irrelevant to locating the device must be
517	517	deleted on the date the information was collected.
518	518	(b) Unless granted an exception by a district judge to the
519	519	requirement described in this subsection, if the cell site
520	520	simulator is used to locate an unknown wireless communications
521	521	device under a warrant issued under this subchapter, location
522	522	information that is derived from the simulator's use and is
523	523	irrelevant to locating the device must be deleted not later than the
524	524	30th day after the date the simulator is first used.
525	525	(c) If the period of the initial warrant exceeds 30 days or
526	526	an extension is granted under Subsection (d), information described
527	527	by Subsection (b) that is collected after the initial 30-day period
528	528	described by that subsection must be deleted not later than the
529	529	earlier of the following:
530	530	(1) at the end of each 30-day period following the
531	531	initial 30-day period described by Subsection (b); or
532	532	(2) the expiration of the warrant.
533	533	(d) The district judge who issues a warrant under this
534	534	subchapter for the use of a cell site simulator may extend a period
535	535	described by Section 18B.225(a) if the applicant for the warrant
536	536	shows good cause for the extension. The judge may grant a
537	537	subsequent extension only if the applicant shows good cause for the
538	538	subsequent extension. An extension granted under this subsection
539	539	may not exceed 90 days, unless the judge makes a finding in the
540	540	record that the circumstances of the investigation justify an
541	541	extension longer than 90 days.
542	542	(e) A district judge may not issue a warrant to authorize
543	543	using or configuring a cell site simulator for the purpose of, and a
544	544	person acting under a warrant issued under this subchapter may not
545	545	use or configure a cell site simulator for the purpose of:
546	546	(1) intercepting, capturing, or collecting the
547	547	content of any electronic communication; or
548	548	(2) collecting information on the attendees of a
549	549	public gathering who are exercising any right under the First
550	550	Amendment to the United States Constitution, including as part of a
551	551	protest, demonstration, rally, political meeting, or religious
552	552	gathering.
553	553	Art. 18B.228. PRESERVATION OF CERTAIN LOCATION
554	554	INFORMATION. (a) Location information disclosed by a provider of
555	555	an electronic communications service or a provider of a remote
556	556	computing service pursuant to a warrant issued under this
557	557	subchapter must be preserved by the attorney representing the
558	558	state.
559	559	(b) As soon as practicable after receiving a timely request
560	560	from a defendant, the attorney representing the state shall produce
561	561	the location information described by Subsection (a) and permit
562	562	inspection and electronic and print duplication of that information
563	563	by or on behalf of the defendant.
564	564	Art. 18B.229. WARRANTS AND AFFIDAVITS SEALED.
565	565	(a) Notwithstanding any other law, other than Subsections (b) and
566	566	(c), a district judge issuing a warrant under this subchapter shall
567	567	seal the warrant and applicable affidavit.
568	568	(b) A judge shall authorize the disclosure of the warrant
569	569	and applicable affidavit to:
570	570	(1) a defendant, or the attorney representing the
571	571	defendant, in a criminal action, if the defendant or attorney makes
572	572	a timely request for disclosure; or
573	573	(2) the public, if a criminal action has been filed
574	574	based on evidence obtained as part of the investigation conducted
575	575	under the case number or unique identifier included in the warrant
576	576	application and each defendant in that criminal action has been
577	577	convicted or acquitted.
578	578	(c) A judge authorizing disclosure under Subsection (b)
579	579	shall redact all information revealing the identity of cooperating
580	580	witnesses, informants, or undercover peace officers.
581	581	(d) This article may not be construed to affect any other
582	582	right of access to public records or proceedings granted under any
583	583	other law.
584	584	Art. 18B.230. NOTICE TO SUBSCRIBER OR CUSTOMER. An
585	585	authorized peace officer may require a provider of an electronic
586	586	communications service or a provider of a remote computing service
587	587	to disclose location information without giving the subscriber or
588	588	customer notice if the officer obtains:
589	589	(1) a warrant under this subchapter and the court
590	590	issuing the warrant makes a finding that there is reason to believe
591	591	that giving notice under this section may result in:
592	592	(A) endangering the life or physical safety of an
593	593	individual;
594	594	(B) a suspect or defendant fleeing from
595	595	prosecution;
596	596	(C) the destruction of or tampering with
597	597	evidence;
598	598	(D) the intimidation of potential witnesses who
599	599	may assist an investigation of an offense or testify at a legal
600	600	proceeding; or
601	601	(E) otherwise jeopardizing an investigation or
602	602	unduly delaying a trial; or
603	603	(2) the consent of the subscriber or customer.
604	604	Art. 18B.231. EMERGENCY USE OF CELL SITE SIMULATOR OR
605	605	REQUIRED DISCLOSURE OF LOCATION INFORMATION. (a) Subject to
606	606	Subsections (c) and (d), an authorized peace officer may without a
607	607	warrant require a provider of an electronic communications service
608	608	or a provider of a remote computing service who has possession,
609	609	care, custody, or control of location information to disclose the
610	610	information, if:
611	611	(1) a peace officer in the authorized peace officer's
612	612	agency is designated to approve for the agency the emergency
613	613	required disclosure of location information by:
614	614	(A) the head of the agency; and
615	615	(B) a district attorney or criminal district
616	616	attorney with jurisdiction over all or part of the agency's
617	617	jurisdiction; and
618	618	(2) the peace officer described by Subdivision (1)
619	619	approves the authorized peace officer's requiring the disclosure of
620	620	the information by reasonably determining that:
621	621	(A) an emergency situation exists in the
622	622	territorial jurisdiction of the authorized peace officer, or
623	623	another officer the authorized peace officer is assisting,
624	624	involving:
625	625	(i) an immediate life-threatening
626	626	situation;
627	627	(ii) conspiratorial activities
628	628	characteristic of an imminent threat from violent organized crime;
629	629	(iii) if the authorized peace officer is
630	630	assisting an employee, officer, or agent of the federal government,
631	631	an immediate threat to a national security interest;
632	632	(iv) an ongoing attack on a protected
633	633	computer, as defined by 18 U.S.C. Section 1030, that constitutes an
634	634	offense under Section 33.02, Penal Code, or an equivalent offense
635	635	under federal law; or
636	636	(v) the report of the disappearance of an
637	637	individual, including the report of a runaway individual younger
638	638	than 18 years of age, or a report of a suicidal individual, where
639	639	the report indicates the individual may be in danger based on the
640	640	circumstances of the disappearance, including circumstances such
641	641	as the age and mental or physical condition of the individual; and
642	642	(B) requiring the information may resolve the
643	643	emergency situation.
644	644	(b) Subject to Subsections (c) and (d), an authorized peace
645	645	officer of the department or a designated law enforcement office or
646	646	agency may without a warrant use a cell site simulator if the head
647	647	of the authorized peace officer's agency or that person's designee
648	648	approves the authorized peace officer's use of the cell site
649	649	simulator by reasonably determining that:
650	650	(1) an emergency situation described by Subsection
651	651	(a)(2)(A) exists in the applicable judicial district under Article
652	652	18B.224; and
653	653	(2) use of the cell site simulator may resolve the
654	654	emergency situation.
655	655	(c) An authorized peace officer who requires disclosure of
656	656	location information or uses a cell site simulator under Subsection
657	657	(a) or (b) shall:
658	658	(1) promptly report the required disclosure of
659	659	location information or the use of the simulator to, as applicable:
660	660	(A) if using a cell site simulator, the
661	661	prosecutor in the county in which the simulator is used; or
662	662	(B) if requiring the disclosure of location
663	663	information, the prosecutor in the county where the peace officer's
664	664	agency is headquartered; and
665	665	(2) within 48 hours after providing notice of the
666	666	required disclosure or within 48 hours after the use of the
667	667	simulator begins, as applicable, obtain a warrant under this
668	668	subchapter authorizing the required disclosure or the use of the
669	669	simulator.
670	670	(d) If a warrant application is denied or is not issued
671	671	within the 48-hour period, the peace officer shall delete the
672	672	disclosed location information or terminate use of the cell site
673	673	simulator promptly on the earlier of the denial of the warrant
674	674	application or the expiration of the 48-hour period.
675	675	Art. 18B.232. EXECUTION OF WARRANT. Article 18B.355
676	676	applies to the execution of a warrant issued under this subchapter
677	677	for the required disclosure of location information in the same
678	678	manner as the article applies to the execution of a warrant for
679	679	electronic customer communications records.
680	680	Art. 18B.233. WARRANT ISSUED IN ANOTHER STATE. A provider
681	681	of an electronic communications service or a provider of a remote
682	682	computing service shall comply with a warrant issued in another
683	683	state and seeking location information described by Article
684	684	18B.222, if the warrant is served on the service provider in a
685	685	manner equivalent to the service of process requirements provided
686	686	by Article 18B.355(b).
687	687	Art. 18B.234. REPORTING REQUIRED. Not later than April 1 of
688	688	each year, each law enforcement office or agency employing a person
689	689	who applies for a warrant under this subchapter shall annually post
690	690	on the Internet website of the office or agency the following
691	691	information:
692	692	(1) the number of warrants of all persons of the office
693	693	or agency who applied for a warrant under this subchapter
694	694	requesting authorization for use of a cell site simulator and the
695	695	number of those warrants granted to those persons;
696	696	(2) the number of warrants of all persons of the office
697	697	or agency who applied for a warrant under this subchapter requiring
698	698	the disclosure of location information by a provider of an
699	699	electronic communications service or a provider of a remote
700	700	computing service and the number of those warrants granted to those
701	701	persons;
702	702	(3) the offense for which each warrant application
703	703	under Subdivision (1) or (2) was made; and
704	704	(4) the number of persons who were located as a result
705	705	of the location information obtained pursuant to a warrant issued
706	706	under this subchapter and were charged with a felony.
707	707	SECTION 11. Article 18B.351, Code of Criminal Procedure, is
708	708	amended to read as follows:
709	709	Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER
710	710	COMMUNICATIONS RECORDS AND ELECTRONIC CUSTOMER DATA. (a) An
711	711	authorized peace officer may require a provider of an electronic
712	712	communications service or a provider of a remote computing service
713	713	to disclose electronic customer communications records or
714	714	electronic customer data that is in electronic storage by obtaining
715	715	a warrant under Article 18B.354.
716	716	(b) An authorized peace officer may require a provider of an
717	717	electronic communications service or a provider of a remote
718	718	computing service to disclose [only] electronic customer data [that
719	719	is information revealing the identity of customers of the
720	720	applicable service or information about a customer's use of the
721	721	applicable service,] without giving the subscriber or customer
722	722	notice:
723	723	(1) by obtaining an administrative subpoena
724	724	authorized by statute;
725	725	(2) by obtaining a grand jury subpoena;
726	726	(3) by obtaining a court order under Article 18B.352;
727	727	(4) by obtaining a warrant under Article 18B.354;
728	728	(5) by obtaining the consent of the subscriber or
729	729	customer to the disclosure of the data; or
730	730	(6) as otherwise permitted by applicable federal law.
731	731	SECTION 12. Article 18B.352(a), Code of Criminal Procedure,
732	732	is amended to read as follows:
733	733	(a) A court shall issue an order authorizing disclosure of
734	734	electronic customer data related to [contents, records, or other
735	735	information of] a wire or electronic communication held in
736	736	electronic storage if the court determines that there is a
737	737	reasonable belief that the information sought is relevant and
738	738	material to an ongoing criminal investigation [to a legitimate law
739	739	enforcement inquiry].
740	740	SECTION 13. Article 18B.353, Code of Criminal Procedure, is
741	741	amended to read as follows:
742	742	Art. 18B.353. WARRANT ISSUED IN THIS STATE: APPLICABILITY.
743	743	Articles 18B.354-18B.357 apply to a warrant required under Article
744	744	18B.351 to obtain electronic customer communications records or
745	745	electronic customer data[, including the contents of a wire or
746	746	electronic communication].
747	747	SECTION 14. Articles 18B.354(a), (b), and (c), Code of
748	748	Criminal Procedure, are amended to read as follows:
749	749	(a) On the filing of an application by an authorized peace
750	750	officer, a district judge may issue a search warrant under this
751	751	article for electronic customer communications records or
752	752	electronic customer data held in electronic storage[, including the
753	753	contents of and records and other information related to a wire or
754	754	electronic communication held in electronic storage,] by a provider
755	755	of an electronic communications service or a provider of a remote
756	756	computing service described by Article 18B.355(b), regardless of
757	757	whether the electronic customer communications records or
758	758	electronic customer data is held at a location in this state or
759	759	another state. An application made under this subsection must
760	760	demonstrate probable cause for the issuance of the warrant and must
761	761	be supported by the oath of the authorized peace officer.
762	762	(b) A search warrant may not be issued under this article
763	763	unless the sworn affidavit required by Article 18.01(b) provides
764	764	sufficient and substantial facts to establish probable cause that:
765	765	(1) a specific offense has been committed; and
766	766	(2) the electronic customer communications records or
767	767	electronic customer data sought:
768	768	(A) constitutes evidence of that offense or
769	769	evidence that a particular person committed that offense, or
770	770	reveals the location of a person charged with a felony offense; and
771	771	(B) is held in electronic storage by the service
772	772	provider on which the warrant is served under Article 18B.355(c).
773	773	(c) Only the electronic customer communications records or
774	774	electronic customer data described in the sworn affidavit required
775	775	by Article 18.01(b) may be seized under the warrant.
776	776	SECTION 15. Article 18B.355(a), Code of Criminal Procedure,
777	777	is amended to read as follows:
778	778	(a) Not later than the 31st [11th] day after the date of
779	779	issuance, an authorized peace officer shall execute a warrant
780	780	issued under Article 18B.354, except that the peace officer shall
781	781	execute the warrant within a shorter period if the district judge
782	782	directs a shorter period in the warrant. For purposes of this
783	783	subsection, a warrant is executed when the warrant is served in the
784	784	manner described by Subsection (c).
785	785	SECTION 16. Article 18B.356(c), Code of Criminal Procedure,
786	786	is amended to read as follows:
787	787	(c) The service provider shall produce all electronic
788	788	customer communications records, electronic customer data,
789	789	[contents of communications,] and other information sought,
790	790	regardless of where the information is held and within the period
791	791	allowed for compliance with the warrant, as provided by Subsection
792	792	(a) or (b).
793	793	SECTION 17. Articles 18B.406(a) and (d), Code of Criminal
794	794	Procedure, are amended to read as follows:
795	795	(a) Not later than the 14th day after the date a subscriber
796	796	or customer receives notice under Article 18B.402, the subscriber
797	797	or customer may file a written motion to quash the subpoena or
798	798	vacate the court order in the court that issued the subpoena or
799	799	court order. The motion must contain an affidavit or other sworn
800	800	statement stating:
801	801	(1) that the applicant is a subscriber or customer of
802	802	the provider of an electronic communications service or the
803	803	provider of a remote computing service from which the electronic
804	804	customer data held in electronic storage for the subscriber or
805	805	customer has been sought; and
806	806	(2) the applicant's reasons for believing that the
807	807	electronic customer data sought is not relevant and material to an
808	808	ongoing criminal investigation [a legitimate law enforcement
809	809	inquiry] or that there has not been substantial compliance with the
810	810	provisions of this chapter in some other respect.
811	811	(d) The court shall rule on the motion as soon as
812	812	practicable after the filing of the peace officer's response. The
813	813	court shall deny the motion if the court finds that the applicant is
814	814	not the subscriber or customer whose data is the subject of the
815	815	subpoena or court order or that there is reason to believe that the
816	816	peace officer's inquiry is legitimate and that the data sought is
817	817	relevant to that inquiry. The court shall quash the subpoena or
818	818	vacate the court order if the court finds that the applicant is the
819	819	subscriber or customer whose data is the subject of the subpoena or
820	820	court order and that there is not a reason to believe that the data
821	821	is relevant and material to an ongoing criminal investigation [a
822	822	legitimate law enforcement inquiry] or that there has not been
823	823	substantial compliance with the provisions of this chapter.
824	824	SECTION 18. Article 18B.451, Code of Criminal Procedure, is
825	825	amended to read as follows:
826	826	Art. 18B.451. SUBPOENA AUTHORITY. (a) Except as provided
827	827	by Subsection (b), the [The] director of the department or the
828	828	director's designee, the inspector general of the Texas Department
829	829	of Criminal Justice or the inspector general's designee, or the
830	830	sheriff or chief of a designated law enforcement agency or the
831	831	sheriff's or chief's designee may issue an administrative subpoena
832	832	to a communication common carrier or a provider of an electronic
833	833	communications service to compel the production of any carrier's or
834	834	service provider's business records:
835	835	(1) that:
836	836	(A) [(1)] disclose information about:
837	837	(i) [(A)] the carrier's or service
838	838	provider's customers; or
839	839	(ii) [(B)] users of the services offered by
840	840	the carrier or service provider; or
841	841	(B) are electronic customer data described by
842	842	Article 18B.001(7)(B)(iii); and
843	843	(2) are material to a criminal investigation.
844	844	(b) A person described by Subsection (a) may not compel the
845	845	production of business records containing location information or
846	846	electronic customer communications records by issuing an
847	847	administrative subpoena under Subsection (a).
848	848	SECTION 19. Article 18B.501(a), Code of Criminal Procedure,
849	849	is amended to read as follows:
850	850	(a) An authorized peace officer seeking electronic customer
851	851	communications records or electronic customer data under Article
852	852	18B.351 may apply to the court for an order commanding the service
853	853	provider to whom a warrant, subpoena, or court order is directed not
854	854	to disclose to any person the existence of the warrant, subpoena, or
855	855	court order. The order is effective for the period the court
856	856	considers appropriate.
857	857	SECTION 20. Articles 18B.503(a) and (b), Code of Criminal
858	858	Procedure, are amended to read as follows:
859	859	(a) Except as provided by Subsection (c), an authorized
860	860	peace officer who obtains electronic customer communications
861	861	records or electronic customer data under Article 18B.351 or
862	862	18B.359 or other information under this chapter shall reimburse the
863	863	person assembling or providing the records, data, or information
864	864	for all costs that are reasonably necessary and that have been
865	865	directly incurred in searching for, assembling, reproducing, or
866	866	otherwise providing the records, data, or information, including
867	867	costs arising from necessary disruption of normal operations of a
868	868	provider of an electronic communications service or a provider of a
869	869	remote computing service in which the electronic customer
870	870	communications records or electronic customer data may be held in
871	871	electronic storage or in which the other information may be stored.
872	872	(b) The authorized peace officer and the person providing
873	873	the electronic customer communications records, electronic
874	874	customer data, or other information may agree on the amount of
875	875	reimbursement. If there is not an agreement, the court that issued
876	876	the order for production of the records, data, or information shall
877	877	determine the amount. If a court order was not issued for
878	878	production of the records, data, or information, the court before
879	879	which any criminal prosecution relating to the records, data, or
880	880	information would be brought shall determine the amount.
881	881	SECTION 21. Chapter 16, Penal Code, is amended by adding
882	882	Section 16.07 to read as follows:
883	883	Sec. 16.07. UNLAWFUL USE OF CELL SITE SIMULATOR. (a) In
884	884	this section:
885	885	(1) "Cell site simulator" has the meaning assigned by
886	886	Article 18B.001, Code of Criminal Procedure.
887	887	(2) "Communication common carrier" and "electronic
888	888	communication" have the meanings assigned by Article 18A.001, Code
889	889	of Criminal Procedure.
890	890	(b) A person commits an offense if the person knowingly uses
891	891	a cell site simulator to locate or identify a wireless
892	892	communications device or intercept the content of an electronic
893	893	communication.
894	894	(c) An offense under this section is a state jail felony.
895	895	(d) It is an affirmative defense to prosecution under this
896	896	section that the actor:
897	897	(1) is an officer, employee, or agent of a
898	898	communication common carrier and the actor uses a cell site
899	899	simulator in the regular course of business of the carrier for the
900	900	purpose of:
901	901	(A) protecting property or services provided by
902	902	the carrier; or
903	903	(B) assisting another whom the actor reasonably
904	904	believes to be a peace officer authorized to use a cell site
905	905	simulator under Article 18B.222, Code of Criminal Procedure;
906	906	(2) is a person authorized to use a cell site simulator
907	907	under Article 18B.222, Code of Criminal Procedure, and acted within
908	908	the scope of that authorization; or
909	909	(3) obtained the effective consent of the owner or
910	910	renter of the wireless communications device and the simulator was
911	911	not used to commit an offense or other prohibited act.
912	912	SECTION 22. Chapter 18B, Code of Criminal Procedure, as
913	913	amended by this Act, applies to the disclosure of certain
914	914	information by a provider of a wire or electronic communications
915	915	service or remote computing service or by a communication common
916	916	carrier under a warrant, order, or other legal process on or after
917	917	the effective date of this Act.
918	918	SECTION 23. This Act takes effect September 1, 2021.