Bill Text: TX SB1856 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to the nonsubstantive revision of certain provisions of the Code of Criminal Procedure, including conforming amendments.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-03-23 - Referred to Criminal Justice [SB1856 Detail]
Download: Texas-2017-SB1856-Introduced.html
85R7065 JSC-D | ||
By: Whitmire | S.B. No. 1856 |
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relating to the nonsubstantive revision of certain provisions of | ||
the Code of Criminal Procedure, including conforming amendments. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
ARTICLE 1. NONSUBSTANTIVE REVISION OF CERTAIN PROVISIONS OF THE | ||
CODE OF CRIMINAL PROCEDURE | ||
SECTION 1.01. Title 1, Code of Criminal Procedure, is amended by adding Chapter 18A to read as follows: | ||
CHAPTER 18A. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, AND | ||
ELECTRONIC COMMUNICATIONS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 18A.001. DEFINITIONS | ||
Art. 18A.002. NONAPPLICABILITY | ||
SUBCHAPTER B. APPLICATION FOR INTERCEPTION ORDER | ||
Art. 18A.051. JUDGE OF COMPETENT JURISDICTION | ||
Art. 18A.052. REQUEST FOR FILING OF INTERCEPTION | ||
APPLICATION | ||
Art. 18A.053. JURISDICTION | ||
Art. 18A.054. ALTERNATE JURISDICTION | ||
Art. 18A.055. APPLICATION FOR INTERCEPTION ORDER | ||
SUBCHAPTER C. ISSUANCE OF INTERCEPTION ORDER AND RELATED ORDERS | ||
Art. 18A.101. OFFENSES FOR WHICH INTERCEPTION ORDER | ||
MAY BE ISSUED | ||
Art. 18A.102. JUDICIAL DETERMINATIONS REQUIRED FOR | ||
ISSUANCE OF INTERCEPTION ORDER | ||
Art. 18A.103. CONTENTS OF INTERCEPTION ORDER | ||
Art. 18A.104. LIMITATION ON COVERT ENTRY | ||
Art. 18A.105. AUTHORITY TO ISSUE CERTAIN ANCILLARY | ||
ORDERS | ||
Art. 18A.106. ORDER TO THIRD PARTY TO ASSIST WITH | ||
EXECUTION OF INTERCEPTION ORDER | ||
Art. 18A.107. DURATION OF INTERCEPTION ORDER | ||
Art. 18A.108. EXTENSION OF INTERCEPTION ORDER | ||
Art. 18A.109. REPORT ON NEED FOR CONTINUED | ||
INTERCEPTION | ||
Art. 18A.110. SUBSEQUENT CRIMINAL PROSECUTION RELATED | ||
TO INTERCEPTION ORDER | ||
SUBCHAPTER D. INTERCEPTION ORDER FOR COMMUNICATION BY | ||
SPECIFIED PERSON | ||
Art. 18A.151. REQUIREMENTS REGARDING INTERCEPTION | ||
ORDER FOR COMMUNICATION BY SPECIFIED | ||
PERSON | ||
Art. 18A.152. IMPLEMENTATION OF INTERCEPTION ORDER | ||
Art. 18A.153. MOTION TO MODIFY OR QUASH INTERCEPTION | ||
ORDER | ||
SUBCHAPTER E. EMERGENCY INSTALLATION AND USE OF INTERCEPTION | ||
DEVICE | ||
Art. 18A.201. DEFINITIONS | ||
Art. 18A.202. POSSESSION AND USE OF INTERCEPTION | ||
DEVICE IN EMERGENCY SITUATION | ||
Art. 18A.203. CONSENT FOR EMERGENCY INTERCEPTION | ||
Art. 18A.204. WRITTEN ORDER AUTHORIZING INTERCEPTION | ||
Art. 18A.205. CERTAIN EVIDENCE NOT ADMISSIBLE | ||
SUBCHAPTER F. DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS | ||
COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY | ||
Art. 18A.251. DEFINITION | ||
Art. 18A.252. USE OF INTERCEPTION DEVICE BY INSPECTOR | ||
GENERAL | ||
Art. 18A.253. REPORTING USE OF INTERCEPTION DEVICE | ||
Art. 18A.254. NO EXPECTATION OF PRIVACY | ||
SUBCHAPTER G. AGENCIES AND PERSONNEL AUTHORIZED TO POSSESS AND USE | ||
INTERCEPTION DEVICES | ||
Art. 18A.301. DEPARTMENT OF PUBLIC SAFETY AUTHORIZED | ||
TO POSSESS AND USE INTERCEPTION DEVICE | ||
Art. 18A.302. TEXAS DEPARTMENT OF CRIMINAL JUSTICE | ||
AUTHORIZED TO POSSESS AND USE | ||
INTERCEPTION DEVICE | ||
Art. 18A.303. TEXAS JUVENILE JUSTICE DEPARTMENT | ||
AUTHORIZED TO POSSESS AND USE | ||
INTERCEPTION DEVICE | ||
SUBCHAPTER H. DISCLOSURE AND USE OF INTERCEPTED COMMUNICATIONS | ||
Art. 18A.351. DISCLOSURE OR USE OF INTERCEPTED | ||
COMMUNICATIONS | ||
Art. 18A.352. DISCLOSURE UNDER OATH | ||
Art. 18A.353. PRIVILEGED COMMUNICATIONS | ||
Art. 18A.354. DISCLOSURE OR USE OF INCIDENTALLY | ||
INTERCEPTED COMMUNICATIONS | ||
Art. 18A.355. NOTICE AND DISCLOSURE OF INTERCEPTION | ||
APPLICATION, INTERCEPTION ORDER, AND | ||
INTERCEPTED COMMUNICATIONS | ||
Art. 18A.356. NOTICE OF INTERCEPTION REQUIRED | ||
Art. 18A.357. COMMUNICATIONS RECEIVED IN EVIDENCE | ||
Art. 18A.358. SUPPRESSION OF CONTENTS OF INTERCEPTED | ||
COMMUNICATIONS | ||
SUBCHAPTER I. USE AND DISPOSITION OF APPLICATIONS AND ORDERS | ||
Art. 18A.401. SEALING OF APPLICATION OR ORDER | ||
Art. 18A.402. CUSTODY OF APPLICATIONS AND ORDERS | ||
Art. 18A.403. DISCLOSURE OF APPLICATION OR ORDER | ||
Art. 18A.404. DESTRUCTION OF APPLICATION OR ORDER | ||
SUBCHAPTER J. CREATION, USE, AND DISPOSITION OF RECORDINGS | ||
Art. 18A.451. CREATION OF RECORDINGS | ||
Art. 18A.452. DUPLICATION OF RECORDINGS | ||
Art. 18A.453. SEALING AND CUSTODY OF RECORDINGS | ||
Art. 18A.454. DESTRUCTION OF RECORDINGS | ||
Art. 18A.455. PREREQUISITE FOR USE OR DISCLOSURE OF | ||
RECORDING IN CERTAIN PROCEEDINGS | ||
SUBCHAPTER K. VIOLATION; SANCTIONS | ||
Art. 18A.501. CONTEMPT | ||
Art. 18A.502. RECOVERY OF CIVIL DAMAGES BY AGGRIEVED | ||
PERSON | ||
Art. 18A.503. ACTION BROUGHT BY FEDERAL OR STATE | ||
GOVERNMENT; INJUNCTION; PENALTIES | ||
Art. 18A.504. GOOD FAITH DEFENSE AVAILABLE | ||
Art. 18A.505. NO CAUSE OF ACTION | ||
SUBCHAPTER L. REPORTS | ||
Art. 18A.551. REPORT OF INTERCEPTED COMMUNICATIONS BY | ||
JUDGE | ||
Art. 18A.552. REPORT OF INTERCEPTED COMMUNICATIONS BY | ||
PROSECUTOR | ||
Art. 18A.553. REPORT OF INTERCEPTED COMMUNICATIONS BY | ||
DEPARTMENT OF PUBLIC SAFETY | ||
CHAPTER 18A. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, AND | ||
ELECTRONIC COMMUNICATIONS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 18A.001. DEFINITIONS. In this chapter: | ||
(1) "Access," "computer," "computer network," | ||
"computer system," and "effective consent" have the meanings | ||
assigned by Section 33.01, Penal Code. | ||
(2) "Aggrieved person" means a person who was a party | ||
to an intercepted wire, oral, or electronic communication or a | ||
person against whom the interception was directed. | ||
(3) "Aural transfer" means a transfer containing the | ||
human voice at any point between and including the point of origin | ||
and the point of reception. | ||
(4) "Communication common carrier" means a person | ||
engaged as a common carrier for hire in the transmission of wire or | ||
electronic communications. | ||
(5) "Computer trespasser" means a person who accesses | ||
a protected computer without effective consent of the owner and has | ||
no reasonable expectation of privacy in a communication transmitted | ||
to, through, or from the protected computer. The term does not | ||
include a person who accesses the protected computer under an | ||
existing contractual relationship with the owner or operator of the | ||
computer. | ||
(6) "Contents," with respect to a wire, oral, or | ||
electronic communication, includes any information concerning the | ||
substance, purport, or meaning of that communication. | ||
(7) "Covert entry" means an entry that is made into or | ||
onto premises and that, if not authorized by a court order under | ||
this chapter, would violate the Penal Code. | ||
(8) "Department" means the Department of Public Safety | ||
of the State of Texas. | ||
(9) "Director" means: | ||
(A) the public safety director of the department; | ||
or | ||
(B) if the public safety director is absent or | ||
unable to serve, the assistant director of the department. | ||
(10) "Electronic communication" means a transfer of | ||
any signs, signals, writing, images, sounds, data, or intelligence | ||
transmitted wholly or partly by a wire, radio, electromagnetic, | ||
photoelectronic, or photo-optical system. The term does not | ||
include: | ||
(A) a wire or oral communication; | ||
(B) a communication made through a tone-only | ||
paging device; or | ||
(C) a communication from a tracking device. | ||
(11) "Electronic communications service" means a | ||
service that provides to users of the service the ability to send or | ||
receive wire or electronic communications. | ||
(12) "ESN reader," "pen register," and "trap and trace | ||
device" have the meanings assigned by Article 18B.001. | ||
(13) "Intercept" means the aural or other acquisition | ||
of the contents of a wire, oral, or electronic communication | ||
through the use of an interception device. | ||
(14) "Interception device" means an electronic, | ||
mechanical, or other device that may be used for the nonconsensual | ||
interception of wire, oral, or electronic communications. The term | ||
does not include a telephone or telegraph instrument, the equipment | ||
or a facility used for the transmission of electronic | ||
communications, or a component of the equipment or a facility used | ||
for the transmission of electronic communications if the | ||
instrument, equipment, facility, or component is: | ||
(A) provided to a subscriber or user by a | ||
provider of a wire or electronic communications service in the | ||
ordinary course of the service provider's business and used by the | ||
subscriber or user in the ordinary course of the subscriber's or | ||
user's business; | ||
(B) provided by a subscriber or user for | ||
connection to the facilities of a wire or electronic communications | ||
service for use in the ordinary course of the subscriber's or user's | ||
business; | ||
(C) used by a communication common carrier in the | ||
ordinary course of the carrier's business; or | ||
(D) used by an investigative or law enforcement | ||
officer in the ordinary course of the officer's duties. | ||
(15) "Interception order" means an order authorizing | ||
the interception of a wire, oral, or electronic communication. | ||
(16) "Investigative or law enforcement officer" | ||
means: | ||
(A) an officer of this state or a political | ||
subdivision of this state who is authorized by law to investigate or | ||
make arrests for offenses described by Article 18A.101; or | ||
(B) an attorney authorized by law to prosecute or | ||
participate in the prosecution of those offenses. | ||
(17) "Judge of competent jurisdiction" means a judge | ||
described by Article 18A.051. | ||
(18) "Mobile tracking device" has the meaning assigned | ||
by Article 18B.201. | ||
(19) "Oral communication" means a communication | ||
uttered by a person exhibiting an expectation that the | ||
communication is not subject to interception under circumstances | ||
justifying that expectation. The term does not include an | ||
electronic communication. | ||
(20) "Prosecutor" means a district attorney, criminal | ||
district attorney, or county attorney performing the duties of a | ||
district attorney, with jurisdiction in the county within an | ||
administrative judicial region described by Article 18A.053. | ||
(21) "Protected computer" means a computer, computer | ||
network, or computer system that is: | ||
(A) owned by a financial institution or | ||
governmental entity; or | ||
(B) used by or for a financial institution or | ||
governmental entity, if conduct constituting an offense affects | ||
that use. | ||
(22) "Residence" means a structure or the portion of a | ||
structure used as a person's home or fixed place of habitation to | ||
which the person indicates an intent to return after a temporary | ||
absence. | ||
(23) "User" means a person who uses an electronic | ||
communications service and is authorized by the service provider to | ||
use the service. | ||
(24) "Wire communication" means an aural transfer made | ||
wholly or partly through the use of facilities for the transmission | ||
of communications by the aid of wire, cable, or other similar | ||
connection between the point of origin and the point of reception, | ||
including the use of the connection in a switching station, if those | ||
facilities are provided or operated by a person authorized to | ||
provide or operate the facilities for the transmission of | ||
communications as a communication common carrier. (Code Crim. | ||
Proc., Art. 18.20, Secs. 1(1), (2), (3), (4), (5), (6), (7) (part), | ||
(8), (9), (10), (11), (12), (13), (14), (15), (16), (18), (21), | ||
(24), (25), (26); New.) | ||
Art. 18A.002. NONAPPLICABILITY. This chapter does not | ||
apply to conduct described as an affirmative defense under Section | ||
16.02(c), Penal Code, except as otherwise specifically provided by | ||
that section. (Code Crim. Proc., Art. 18.20, Sec. 17.) | ||
SUBCHAPTER B. APPLICATION FOR INTERCEPTION ORDER | ||
Art. 18A.051. JUDGE OF COMPETENT JURISDICTION. (a) For | ||
purposes of this chapter, a judge of competent jurisdiction is a | ||
judge from the panel of nine active district judges with criminal | ||
jurisdiction who is appointed by the presiding judge of the court of | ||
criminal appeals under this article. | ||
(b) The presiding judge of the court of criminal appeals, by | ||
order filed with the clerk of that court, shall appoint one district | ||
judge from each of the administrative judicial regions of this | ||
state to serve at the presiding judge's pleasure as the judge of | ||
competent jurisdiction in that administrative judicial region. | ||
(c) The presiding judge shall fill vacancies as those | ||
vacancies occur in the same manner. (Code Crim. Proc., Art. 18.20, | ||
Secs. 1(7), 3(a).) | ||
Art. 18A.052. REQUEST FOR FILING OF INTERCEPTION | ||
APPLICATION. (a) The director may, based on written affidavits, | ||
request in writing that a prosecutor apply for an interception | ||
order. | ||
(b) The head of a local law enforcement agency or, if the | ||
head of the agency is absent or unable to serve, the acting head of | ||
the local law enforcement agency may, based on written affidavits, | ||
request in writing that a prosecutor apply for an interception | ||
order. | ||
(c) Before making a request under Subsection (b), the head | ||
of a local law enforcement agency must submit the request and | ||
supporting affidavits to the director. The director shall make a | ||
written finding as to whether the request and supporting affidavits | ||
establish that other investigative procedures have been attempted | ||
and have failed or those procedures reasonably appear unlikely to | ||
succeed or to be too dangerous if attempted, is feasible, is | ||
justifiable, and whether the department has the necessary resources | ||
available. | ||
(d) A prosecutor may file the application requested under | ||
Subsection (b) only after a written positive finding by the | ||
director on all of the requirements provided by Subsection (c). | ||
(Code Crim. Proc., Art. 18.20, Sec. 6.) | ||
Art. 18A.053. JURISDICTION. Except as provided by Article | ||
18A.054, a judge of competent jurisdiction may act on an | ||
application for an interception order if any of the following is | ||
located in the administrative judicial region with respect to which | ||
the judge is appointed: | ||
(1) the site of: | ||
(A) the proposed interception; or | ||
(B) the interception device to be installed or | ||
monitored; | ||
(2) the communication device to be intercepted; | ||
(3) the billing, residential, or business address of | ||
the subscriber to the electronic communications service to be | ||
intercepted; | ||
(4) the headquarters of the law enforcement agency | ||
that makes the request for or will execute the interception order; | ||
or | ||
(5) the headquarters of the service provider. (Code | ||
Crim. Proc., Art. 18.20, Sec. 3(b).) | ||
Art. 18A.054. ALTERNATE JURISDICTION. (a) An application | ||
for an interception order may be made to the judge of competent | ||
jurisdiction in an administrative judicial region adjacent to a | ||
region described by Article 18A.053 if: | ||
(1) the judge of competent jurisdiction for the | ||
administrative judicial region described by Article 18A.053 is | ||
absent or unable to serve; or | ||
(2) exigent circumstances exist. | ||
(b) Exigent circumstances under Subsection (a)(2) do not | ||
include a denial of a previous application on the same facts and | ||
circumstances. (Code Crim. Proc., Art. 18.20, Secs. 3(b) (part), | ||
(c) (part).) | ||
Art. 18A.055. APPLICATION FOR INTERCEPTION ORDER. (a) A | ||
prosecutor applying for an interception order must make the | ||
application in writing under oath to a judge of competent | ||
jurisdiction. | ||
(b) An application must: | ||
(1) identify the prosecutor making the application and | ||
state the prosecutor's authority to make the application; | ||
(2) identify the officer requesting the application; | ||
(3) include a complete statement of the facts and | ||
circumstances relied on by the prosecutor to justify the | ||
prosecutor's belief that an order should be issued, including: | ||
(A) details about the particular offense that has | ||
been, is being, or is about to be committed; | ||
(B) except as otherwise provided by this chapter, | ||
a particular description of the nature and location of the | ||
facilities from which or the place where the communication is to be | ||
intercepted; | ||
(C) a particular description of the type of | ||
communication sought to be intercepted; and | ||
(D) the identity of the person, if known, | ||
committing the offense and whose communications are to be | ||
intercepted; | ||
(4) include a complete statement as to whether other | ||
investigative procedures have been attempted and have failed or why | ||
those procedures reasonably appear to be unlikely to succeed or to | ||
be too dangerous if attempted; | ||
(5) include a statement of the period for which the | ||
interception is required to be maintained and, if the nature of the | ||
investigation indicates that the interception order should not | ||
automatically terminate when the described type of communication is | ||
first obtained, a particular description of facts establishing | ||
probable cause to believe that additional communications of the | ||
same type will occur after the described type of communication is | ||
obtained; | ||
(6) include a statement whether a covert entry will be | ||
necessary to properly and safely install wiretapping, electronic | ||
surveillance, or eavesdropping equipment and, if a covert entry is | ||
requested, a statement as to why a covert entry is necessary and | ||
proper under the facts of the particular investigation, including a | ||
complete statement as to whether other investigative techniques | ||
have been attempted and have failed or why those techniques | ||
reasonably appear to be unlikely to succeed or to be too dangerous | ||
if attempted or are not feasible under the circumstances or | ||
exigencies of time; | ||
(7) include a complete statement of the facts | ||
concerning all applications known to the prosecutor that have been | ||
previously made to a judge for an interception order involving any | ||
persons, facilities, or places specified in the application and of | ||
the action taken by the judge on each application; | ||
(8) if the application is for the extension of an | ||
order, include a statement providing the results already obtained | ||
from the interception or a reasonable explanation of the failure to | ||
obtain results; and | ||
(9) if the application is made under Article 18A.054, | ||
fully explain the circumstances justifying application under that | ||
article. | ||
(c) In an ex parte hearing in chambers, the judge may | ||
require additional testimony or documentary evidence to support the | ||
application. The testimony or documentary evidence must be | ||
preserved as part of the application. (Code Crim. Proc., Art. | ||
18.20, Secs. 3(c) (part), 8.) | ||
SUBCHAPTER C. ISSUANCE OF INTERCEPTION ORDER AND RELATED ORDERS | ||
Art. 18A.101. OFFENSES FOR WHICH INTERCEPTION ORDER MAY BE | ||
ISSUED. A judge of competent jurisdiction may issue an | ||
interception order only if the prosecutor applying for the order | ||
shows probable cause to believe that the interception will provide | ||
evidence of the commission of: | ||
(1) a felony under any of the following provisions of | ||
the Health and Safety Code: | ||
(A) Chapter 481, other than felony possession of | ||
marihuana; | ||
(B) Chapter 483; or | ||
(C) Section 485.032; | ||
(2) an offense under any of the following provisions | ||
of the Penal Code: | ||
(A) Section 19.02; | ||
(B) Section 19.03; | ||
(C) Section 20.03; | ||
(D) Section 20.04; | ||
(E) Chapter 20A; | ||
(F) Chapter 34, if the criminal activity giving | ||
rise to the proceeds involves the commission of an offense under | ||
Title 5, Penal Code, or an offense under federal law or the laws of | ||
another state containing elements that are substantially similar to | ||
the elements of an offense under Title 5; | ||
(G) Section 38.11; | ||
(H) Section 43.04; | ||
(I) Section 43.05; or | ||
(J) Section 43.26; or | ||
(3) an attempt, conspiracy, or solicitation to commit | ||
an offense listed in Subdivision (1) or (2). (Code Crim. Proc., Art. | ||
18.20, Sec. 4.) | ||
Art. 18A.102. JUDICIAL DETERMINATIONS REQUIRED FOR | ||
ISSUANCE OF INTERCEPTION ORDER. On receipt of an application under | ||
Subchapter B, the judge may issue an ex parte interception order, as | ||
requested or as modified, if the judge determines from the evidence | ||
submitted by the prosecutor that: | ||
(1) there is probable cause to believe that a person is | ||
committing, has committed, or is about to commit a particular | ||
offense described by Article 18A.101; | ||
(2) there is probable cause to believe that particular | ||
communications concerning that offense will be obtained through the | ||
interception; | ||
(3) normal investigative procedures have been | ||
attempted and have failed or reasonably appear to be unlikely to | ||
succeed or to be too dangerous if attempted; | ||
(4) there is probable cause to believe that the | ||
facilities from which or the place where the wire, oral, or | ||
electronic communications are to be intercepted is being used or is | ||
about to be used in connection with the commission of an offense or | ||
is leased to, listed in the name of, or commonly used by the person; | ||
and | ||
(5) a covert entry is or is not necessary to properly | ||
and safely install the wiretapping, electronic surveillance, or | ||
eavesdropping equipment. (Code Crim. Proc., Art. 18.20, Sec. 9(a).) | ||
Art. 18A.103. CONTENTS OF INTERCEPTION ORDER. (a) An | ||
interception order must specify: | ||
(1) the identity of the person, if known, whose | ||
communications are to be intercepted; | ||
(2) except as otherwise provided by this chapter, the | ||
nature and location of the communications facilities as to which or | ||
the place where authority to intercept is granted; | ||
(3) a particular description of the type of | ||
communication sought to be intercepted and a statement of the | ||
particular offense to which the communication relates; | ||
(4) the identity of the officer making the request and | ||
the identity of the prosecutor; | ||
(5) the period during which the interception is | ||
authorized, including a statement of whether the interception will | ||
automatically terminate when the described communication is first | ||
obtained; and | ||
(6) whether a covert entry or surreptitious entry is | ||
necessary to properly and safely install wiretapping, electronic | ||
surveillance, or eavesdropping equipment. | ||
(b) Each interception order and extension of that order must | ||
provide that the authorization to intercept be executed as soon as | ||
practicable, be conducted in a way that minimizes the interception | ||
of communications not otherwise subject to interception under this | ||
chapter, and terminate on obtaining the authorized objective or | ||
within 30 days, whichever occurs sooner. | ||
(c) For purposes of Subsection (b), if the intercepted | ||
communication is in code or a foreign language and an expert in that | ||
code or language is not reasonably available during the period of | ||
interception, minimization may be accomplished as soon as | ||
practicable after the interception. (Code Crim. Proc., Art. 18.20, | ||
Secs. 9(b), (d) (part).) | ||
Art. 18A.104. LIMITATION ON COVERT ENTRY. (a) An | ||
interception order may not authorize a covert entry for the purpose | ||
of intercepting an oral communication unless: | ||
(1) the judge, in addition to making the | ||
determinations required under Article 18A.102, determines: | ||
(A) that: | ||
(i) the premises into or onto which the | ||
covert entry is authorized or the person whose communications are | ||
to be obtained has been the subject of a pen register previously | ||
authorized in connection with the same investigation; | ||
(ii) the premises into or onto which the | ||
covert entry is authorized or the person whose communications are | ||
to be obtained has been the subject of an interception of wire or | ||
electronic communications previously authorized in connection with | ||
the same investigation; and | ||
(iii) the procedures under Subparagraphs | ||
(i) and (ii) have failed; or | ||
(B) that the procedures under Paragraph (A) | ||
reasonably appear to be unlikely to succeed or to be too dangerous | ||
if attempted or are not feasible under the circumstances or | ||
exigencies of time; and | ||
(2) the interception order, in addition to the matters | ||
required to be specified under Article 18A.103(a), specifies that: | ||
(A) the covert entry is for the purpose of | ||
intercepting oral communications of two or more persons; and | ||
(B) there is probable cause to believe that the | ||
persons described by Paragraph (A) are committing, have committed, | ||
or are about to commit a particular offense described by Article | ||
18A.101. | ||
(b) An interception order may not authorize a covert entry | ||
into a residence solely for the purpose of intercepting a wire or | ||
electronic communication. (Code Crim. Proc., Art. 18.20, Secs. | ||
9(e), (f).) | ||
Art. 18A.105. AUTHORITY TO ISSUE CERTAIN ANCILLARY ORDERS. | ||
An interception order may include an order to: | ||
(1) install or use a pen register, ESN reader, trap and | ||
trace device, or mobile tracking device or similar equipment that | ||
combines the function of a pen register and trap and trace device; | ||
or | ||
(2) disclose a stored communication, information | ||
subject to an administrative subpoena, or information subject to | ||
access under Chapter 18B. (Code Crim. Proc., Art. 18.20, Sec. 9(c) | ||
(part).) | ||
Art. 18A.106. ORDER TO THIRD PARTY TO ASSIST WITH EXECUTION | ||
OF INTERCEPTION ORDER. (a) On request of the prosecutor applying | ||
for an interception order, the judge may issue a separate order | ||
directing a provider of a wire or electronic communications | ||
service, communication common carrier, landlord, custodian, or | ||
other person to provide to the prosecutor all information, | ||
facilities, and technical assistance necessary to accomplish the | ||
interception unobtrusively and with a minimum of interference with | ||
the services that the service provider, carrier, landlord, | ||
custodian, or other person is providing the person whose | ||
communications are to be intercepted. | ||
(b) A provider of a wire or electronic communications | ||
service, communication common carrier, landlord, custodian, or | ||
other person that provides facilities or technical assistance under | ||
an order described by Subsection (a) is entitled to compensation, | ||
at the prevailing rates, by the prosecutor for reasonable expenses | ||
incurred in providing the facilities or assistance. (Code Crim. | ||
Proc., Art. 18.20, Sec. 9(c) (part).) | ||
Art. 18A.107. DURATION OF INTERCEPTION ORDER. An | ||
interception order may not authorize the interception of a | ||
communication for a period that: | ||
(1) is longer than is necessary to achieve the | ||
objective of the authorization; or | ||
(2) exceeds 30 days. (Code Crim. Proc., Art. 18.20, | ||
Sec. 9(d) (part).) | ||
Art. 18A.108. EXTENSION OF INTERCEPTION ORDER. (a) A judge | ||
who issues an interception order may grant extensions of the order. | ||
(b) An extension of an interception order may be granted | ||
only if: | ||
(1) an application for an extension is made in | ||
accordance with Article 18A.055; and | ||
(2) the judge makes the findings required by Article | ||
18A.102. | ||
(c) The period of extension may not: | ||
(1) be longer than the judge considers necessary to | ||
achieve the purposes for which the extension is granted; or | ||
(2) exceed 30 days. (Code Crim. Proc., Art. 18.20, | ||
Sec. 9(d) (part).) | ||
Art. 18A.109. REPORT ON NEED FOR CONTINUED INTERCEPTION. | ||
(a) An interception order may require reports to the judge who | ||
issued the order that show any progress toward achieving the | ||
authorized objective and the need for continued interception. | ||
(b) Reports under this article must be made at any interval | ||
the judge requires. (Code Crim. Proc., Art. 18.20, Sec. 9(g).) | ||
Art. 18A.110. SUBSEQUENT CRIMINAL PROSECUTION RELATED TO | ||
INTERCEPTION ORDER. A judge who issues an interception order may | ||
not hear a criminal prosecution in which: | ||
(1) evidence derived from the interception may be | ||
used; or | ||
(2) the order may be an issue. (Code Crim. Proc., Art. | ||
18.20, Sec. 9(h).) | ||
SUBCHAPTER D. INTERCEPTION ORDER FOR COMMUNICATION BY | ||
SPECIFIED PERSON | ||
Art. 18A.151. REQUIREMENTS REGARDING INTERCEPTION ORDER | ||
FOR COMMUNICATION BY SPECIFIED PERSON. The requirements of | ||
Articles 18A.055(b)(3)(B) and 18A.103(a)(2) relating to the | ||
specification of the facilities from which or the place where a | ||
communication is to be intercepted do not apply if: | ||
(1) in the case of an application for an interception | ||
order that authorizes the interception of an oral communication: | ||
(A) the application contains a complete | ||
statement as to why the specification is not practical and | ||
identifies the person committing or believed to be committing the | ||
offense and whose communications are to be intercepted; and | ||
(B) a judge of competent jurisdiction finds that | ||
the specification is not practical; or | ||
(2) in the case of an application for an interception | ||
order that authorizes the interception of a wire or electronic | ||
communication: | ||
(A) the application identifies the person | ||
committing or believed to be committing the offense and whose | ||
communications are to be intercepted; | ||
(B) a judge of competent jurisdiction finds that | ||
the prosecutor has made an adequate showing of probable cause to | ||
believe that the actions of the person identified in the | ||
application could have the effect of preventing interception from a | ||
specified facility; and | ||
(C) the authority to intercept a wire or | ||
electronic communication under the interception order is limited to | ||
a period in which it is reasonable to presume that the person | ||
identified in the application will be reasonably proximate to the | ||
interception device. (Code Crim. Proc., Art. 18.20, Sec. 9A(a).) | ||
Art. 18A.152. IMPLEMENTATION OF INTERCEPTION ORDER. A | ||
person implementing an interception order that authorizes the | ||
interception of an oral communication and that, as permitted by | ||
this subchapter, does not specify the facility from which or the | ||
place where a communication is to be intercepted may begin | ||
interception only after the person ascertains the place where the | ||
communication is to be intercepted. (Code Crim. Proc., Art. 18.20, | ||
Sec. 9A(b).) | ||
Art. 18A.153. MOTION TO MODIFY OR QUASH INTERCEPTION ORDER. | ||
(a) A provider of a wire or electronic communications service that | ||
receives an interception order that authorizes the interception of | ||
a wire or electronic communication and that, as permitted by this | ||
subchapter, does not specify the facility from which or the place | ||
where a communication is to be intercepted may move the court to | ||
modify or quash the order on the ground that the service provider's | ||
assistance with respect to the interception cannot be performed in | ||
a timely or reasonable manner. | ||
(b) On notice to the state, the court shall decide the | ||
motion expeditiously. (Code Crim. Proc., Art. 18.20, Sec. 9A(c).) | ||
SUBCHAPTER E. EMERGENCY INSTALLATION AND USE OF INTERCEPTION | ||
DEVICE | ||
Art. 18A.201. DEFINITIONS. In this subchapter: | ||
(1) "Immediate life-threatening situation" means a | ||
hostage, barricade, or other emergency situation in which a person | ||
unlawfully and directly: | ||
(A) threatens another with death; or | ||
(B) exposes another to a substantial risk of | ||
serious bodily injury. | ||
(2) "Member of a law enforcement unit specially | ||
trained to respond to and deal with life-threatening situations" | ||
means a peace officer who, as evidenced by the submission of | ||
appropriate documentation to the Texas Commission on Law | ||
Enforcement: | ||
(A) receives each year a minimum of 40 hours of | ||
training in hostage and barricade suspect situations; or | ||
(B) has received a minimum of 24 hours of | ||
training on kidnapping investigations and is: | ||
(i) the sheriff of a county with a | ||
population of 3.3 million or more or the sheriff's designee; or | ||
(ii) the police chief of a police | ||
department in a municipality with a population of 500,000 or more or | ||
the chief's designee. (Code Crim. Proc., Art. 18.20, Secs. 1(22), | ||
(23).) | ||
Art. 18A.202. POSSESSION AND USE OF INTERCEPTION DEVICE IN | ||
EMERGENCY SITUATION. (a) The prosecutor in a county in which an | ||
interception device is to be installed or used shall designate in | ||
writing each peace officer in the county, other than a commissioned | ||
officer of the department, who is: | ||
(1) a member of a law enforcement unit specially | ||
trained to respond to and deal with life-threatening situations; | ||
and | ||
(2) authorized to possess an interception device and | ||
responsible for the installation, operation, and monitoring of the | ||
device in an immediate life-threatening situation. | ||
(b) A peace officer designated under Subsection (a) or | ||
Article 18A.301(c) may possess, install, operate, or monitor an | ||
interception device if the officer: | ||
(1) reasonably believes an immediate life-threatening | ||
situation exists that: | ||
(A) is within the territorial jurisdiction of the | ||
officer or another officer the officer is assisting; and | ||
(B) requires interception of communications | ||
before an interception order can, with due diligence, be obtained | ||
under this subchapter; | ||
(2) reasonably believes there are sufficient grounds | ||
under this subchapter on which to obtain an interception order; and | ||
(3) before beginning the interception, obtains oral or | ||
written consent to the interception from: | ||
(A) a judge of competent jurisdiction; | ||
(B) a district judge for the county in which the | ||
device will be installed or used; or | ||
(C) a judge or justice of a court of appeals or of | ||
a higher court. | ||
(c) If a peace officer installs or uses an interception | ||
device under Subsection (b), the officer shall: | ||
(1) promptly report the installation or use to the | ||
prosecutor in the county in which the device is installed or used; | ||
and | ||
(2) within 48 hours after the installation is complete | ||
or the interception begins, whichever occurs first, obtain a | ||
written interception order from a judge of competent jurisdiction. | ||
(d) A peace officer may certify to a communication common | ||
carrier that the officer is acting lawfully under this subchapter. | ||
(Code Crim. Proc., Art. 18.20, Secs. 8A(a), (b), (d), (g).) | ||
Art. 18A.203. CONSENT FOR EMERGENCY INTERCEPTION. (a) An | ||
official described by Article 18A.202(b)(3) may give oral or | ||
written consent to the interception of communications under this | ||
subchapter to provide evidence of the commission of a felony, or of | ||
a threat, attempt, or conspiracy to commit a felony, in an immediate | ||
life-threatening situation. | ||
(b) Oral or written consent given under this subchapter | ||
expires on the earlier of: | ||
(1) 48 hours after the grant of consent; or | ||
(2) the conclusion of the emergency justifying the | ||
interception. (Code Crim. Proc., Art. 18.20, Sec. 8A(c).) | ||
Art. 18A.204. WRITTEN ORDER AUTHORIZING INTERCEPTION. (a) | ||
A judge of competent jurisdiction under Article 18A.051 or under | ||
Article 18A.202(b) may issue a written interception order under | ||
this subchapter during the 48-hour period prescribed by Article | ||
18A.202(c)(2). | ||
(b) A written interception order under this subchapter | ||
expires on the earlier of: | ||
(1) the 30th day after the date of execution of the | ||
order; or | ||
(2) the conclusion of the emergency that initially | ||
justified the interception. | ||
(c) If an interception order is denied or is not issued | ||
within the 48-hour period, the officer shall terminate use of and | ||
remove the interception device promptly on the earlier of: | ||
(1) the denial; | ||
(2) the end of the emergency that initially justified | ||
the interception; or | ||
(3) the expiration of 48 hours. (Code Crim. Proc., | ||
Art. 18.20, Sec. 8A(e).) | ||
Art. 18A.205. CERTAIN EVIDENCE NOT ADMISSIBLE. The state | ||
may not use as evidence in a criminal proceeding information gained | ||
through the use of an interception device installed under this | ||
subchapter if authorization for the device is not sought or is | ||
sought but not obtained. (Code Crim. Proc., Art. 18.20, | ||
Secs. 8A(b) (part), (f).) | ||
SUBCHAPTER F. DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS | ||
COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY | ||
Art. 18A.251. DEFINITION. In this subchapter, | ||
"correctional facility" means: | ||
(1) a place described by Section 1.07(a)(14), Penal | ||
Code; or | ||
(2) a "secure correctional facility" or "secure | ||
detention facility" as defined by Section 51.02, Family Code. (Code | ||
Crim. Proc., Art. 18.20, Sec. 8B(a).) | ||
Art. 18A.252. USE OF INTERCEPTION DEVICE BY INSPECTOR | ||
GENERAL. (a) Notwithstanding any other provision of this chapter | ||
or Chapter 18B, the office of inspector general of the Texas | ||
Department of Criminal Justice may: | ||
(1) without a warrant, use an interception device to | ||
detect the presence or use of a cellular telephone or other wireless | ||
communications device in a correctional facility; | ||
(2) without a warrant, intercept, monitor, detect, or, | ||
as authorized by applicable federal laws and regulations, prevent | ||
the transmission of a communication through a cellular telephone or | ||
other wireless communications device in a correctional facility; | ||
and | ||
(3) use, to the extent authorized by law, any | ||
information obtained under Subdivision (2), including the contents | ||
of an intercepted communication, in a criminal or civil proceeding | ||
before a court or other governmental agency or entity. | ||
(b) When using an interception device under Subsection (a), | ||
the office of inspector general shall minimize the impact of the | ||
device on a communication that is not reasonably related to the | ||
detection of the presence or use of a cellular telephone or other | ||
wireless communications device in a correctional facility. (Code | ||
Crim. Proc., Art. 18.20, Secs. 8B(b), (d).) | ||
Art. 18A.253. REPORTING USE OF INTERCEPTION DEVICE. Not | ||
later than the 30th day after the date on which the office of | ||
inspector general uses an interception device under Article | ||
18A.252(a), the inspector general shall report the use of the | ||
device to: | ||
(1) a prosecutor with jurisdiction in the county in | ||
which the device was used; or | ||
(2) the special prosecution unit established under | ||
Subchapter E, Chapter 41, Government Code, if that unit has | ||
jurisdiction in the county in which the device was used. (Code | ||
Crim. Proc., Art. 18.20, Sec. 8B(c).) | ||
Art. 18A.254. NO EXPECTATION OF PRIVACY. (a) A person | ||
confined in a correctional facility does not have an expectation of | ||
privacy with respect to the possession or use of a cellular | ||
telephone or other wireless communications device located on the | ||
premises of the facility. | ||
(b) A person confined in a correctional facility, and any | ||
person with whom the confined person communicates through the use | ||
of a cellular telephone or other wireless communications device, | ||
does not have an expectation of privacy with respect to the contents | ||
of a communication transmitted by the telephone or device. (Code | ||
Crim. Proc., Art. 18.20, Sec. 8B(e).) | ||
SUBCHAPTER G. AGENCIES AND PERSONNEL AUTHORIZED TO POSSESS AND USE | ||
INTERCEPTION DEVICES | ||
Art. 18A.301. DEPARTMENT OF PUBLIC SAFETY AUTHORIZED TO | ||
POSSESS AND USE INTERCEPTION DEVICE. (a) Except as otherwise | ||
provided by this subchapter and Subchapters E and F, only the | ||
department is authorized by this chapter to own, possess, install, | ||
operate, or monitor an interception device. | ||
(b) An investigative or law enforcement officer or other | ||
person may assist the department in the operation and monitoring of | ||
an interception of wire, oral, or electronic communications if the | ||
officer or other person: | ||
(1) is designated by the director for that purpose; | ||
and | ||
(2) acts in the presence and under the direction of a | ||
commissioned officer of the department. | ||
(c) The director shall designate in writing the | ||
commissioned officers of the department who are responsible for the | ||
possession, installation, operation, and monitoring of | ||
interception devices for the department. (Code Crim. Proc., | ||
Art. 18.20, Secs. 5(a), (b).) | ||
Art. 18A.302. TEXAS DEPARTMENT OF CRIMINAL JUSTICE | ||
AUTHORIZED TO POSSESS AND USE INTERCEPTION DEVICE. (a) The Texas | ||
Department of Criminal Justice may own an interception device for a | ||
use or purpose authorized by Section 500.008, Government Code. | ||
(b) The inspector general of the Texas Department of | ||
Criminal Justice, a commissioned officer of that office, or a | ||
person acting in the presence and under the direction of the | ||
commissioned officer may possess, install, operate, or monitor the | ||
interception device as provided by Section 500.008, Government | ||
Code. (Code Crim. Proc., Art. 18.20, Sec. 5(c).) | ||
Art. 18A.303. TEXAS JUVENILE JUSTICE DEPARTMENT AUTHORIZED | ||
TO POSSESS AND USE INTERCEPTION DEVICE. (a) The Texas Juvenile | ||
Justice Department may own an interception device for a use or | ||
purpose authorized by Section 242.103, Human Resources Code. | ||
(b) The inspector general of the Texas Juvenile Justice | ||
Department, a commissioned officer of that office, or a person | ||
acting in the presence and under the direction of the commissioned | ||
officer may possess, install, operate, or monitor the interception | ||
device as provided by Section 242.103, Human Resources Code. (Code | ||
Crim. Proc., Art. 18.20, Sec. 5(d).) | ||
SUBCHAPTER H. DISCLOSURE AND USE OF INTERCEPTED COMMUNICATIONS | ||
Art. 18A.351. DISCLOSURE OR USE OF INTERCEPTED | ||
COMMUNICATIONS. An investigative or law enforcement officer who, | ||
by means authorized by this chapter, obtains knowledge of the | ||
contents of a wire, oral, or electronic communication or evidence | ||
derived from the communication may: | ||
(1) use the contents or evidence to the extent the use | ||
is appropriate to the proper performance of the officer's official | ||
duties; or | ||
(2) disclose the contents or evidence to another | ||
investigative or law enforcement officer, including a law | ||
enforcement officer or agent of the United States or of another | ||
state, to the extent that the disclosure is appropriate to the | ||
proper performance of the official duties of the officer making or | ||
receiving the disclosure. (Code Crim. Proc., Art. 18.20, | ||
Secs. 7(a), (b).) | ||
Art. 18A.352. DISCLOSURE UNDER OATH. A person who | ||
receives, by means authorized by this chapter, information | ||
concerning a wire, oral, or electronic communication or evidence | ||
derived from a communication intercepted in accordance with this | ||
chapter may disclose the contents of that communication or evidence | ||
while giving testimony under oath in any proceeding held under the | ||
authority of the United States, this state, or a political | ||
subdivision of this state. (Code Crim. Proc., Art. 18.20, | ||
Sec. 7(c).) | ||
Art. 18A.353. PRIVILEGED COMMUNICATIONS. (a) An otherwise | ||
privileged wire, oral, or electronic communication intercepted in | ||
accordance with, or in violation of, this chapter does not lose its | ||
privileged character. | ||
(b) Evidence derived from a privileged communication | ||
described by Subsection (a) against a party to that communication | ||
is privileged. (Code Crim. Proc., Art. 18.20, Sec. 7(d).) | ||
Art. 18A.354. DISCLOSURE OR USE OF INCIDENTALLY INTERCEPTED | ||
COMMUNICATIONS. (a) This article applies only to the contents of | ||
and evidence derived from wire, oral, or electronic communications | ||
that: | ||
(1) are intercepted by an investigative or law | ||
enforcement officer while engaged in intercepting wire, oral, or | ||
electronic communications in a manner authorized by this chapter; | ||
and | ||
(2) relate to offenses other than those specified by | ||
the interception order. | ||
(b) The contents of and evidence derived from a | ||
communication described by Subsection (a) may be disclosed or used | ||
as provided by Article 18A.351. | ||
(c) The contents of and evidence derived from a | ||
communication described by Subsection (a) may be used under Article | ||
18A.352 when authorized by a judge of competent jurisdiction if the | ||
judge finds, on subsequent application, that the contents were | ||
otherwise intercepted in accordance with this chapter. | ||
(d) An application under Subsection (c) must be made as soon | ||
as practicable. (Code Crim. Proc., Art. 18.20, Sec. 7(e).) | ||
Art. 18A.355. NOTICE AND DISCLOSURE OF INTERCEPTION | ||
APPLICATION, INTERCEPTION ORDER, AND INTERCEPTED COMMUNICATIONS. | ||
(a) Within a reasonable period but not later than the 90th day | ||
after the date an application for an interception order is denied or | ||
after the date an interception order or the last extension, if any, | ||
expires, the judge who granted or denied the application shall | ||
cause to be served on each person named in the order or application | ||
and any other party to an intercepted communication, if any, an | ||
inventory that must include notice of: | ||
(1) the application or the issuance of the order; | ||
(2) the date of denial of the application, or the date | ||
of the issuance of the order and the authorized interception | ||
period; and | ||
(3) whether during any authorized interception period | ||
wire, oral, or electronic communications were intercepted. | ||
(b) The judge may, on motion, make available for inspection | ||
to a person or the person's counsel any portion of an intercepted | ||
communication, application, or order that the judge determines to | ||
disclose to that person in the interest of justice. | ||
(c) On an ex parte showing of good cause to the judge, the | ||
serving of the inventory required under Subsection (a) may be | ||
postponed. | ||
(d) Evidence derived from an order under this chapter may | ||
not be disclosed in a trial until after the inventory has been | ||
served. (Code Crim. Proc., Art. 18.20, Sec. 13.) | ||
Art. 18A.356. NOTICE OF INTERCEPTION REQUIRED. (a) The | ||
contents of an intercepted wire, oral, or electronic communication | ||
or evidence derived from the communication may not be received in | ||
evidence or otherwise disclosed in a trial, hearing, or other | ||
proceeding in a federal or state court unless each party, not later | ||
than the 10th day before the date of the trial, hearing, or other | ||
proceeding, has been provided with a copy of the interception order | ||
and application under which the interception was authorized. | ||
(b) The judge may waive the 10-day period described by | ||
Subsection (a) on a finding that: | ||
(1) it is not possible to provide the party with the | ||
information 10 days before the trial, hearing, or proceeding; and | ||
(2) the party will not be prejudiced by the delay in | ||
receiving the information. (Code Crim. Proc., Art. 18.20, Sec. | ||
14(a).) | ||
Art. 18A.357. COMMUNICATIONS RECEIVED IN EVIDENCE. (a) | ||
The contents of an intercepted communication and evidence derived | ||
from the communication may be received in evidence in any trial, | ||
hearing, or other proceeding in or before any court, grand jury, | ||
department, officer, agency, regulatory body, legislative | ||
committee, or other authority of the United States, this state, or a | ||
political subdivision of this state unless: | ||
(1) the communication was intercepted in violation of | ||
this chapter, Section 16.02, Penal Code, or federal law; or | ||
(2) the disclosure of the contents of the | ||
communication or evidence derived from the communication would | ||
violate a law described by Subdivision (1). | ||
(b) The contents of an intercepted communication and | ||
evidence derived from the communication may be received in a civil | ||
trial, hearing, or other proceeding only if the civil trial, | ||
hearing, or other proceeding arises out of a violation of a penal | ||
law. | ||
(c) This article does not prohibit the use or admissibility | ||
of the contents of an intercepted communication or evidence derived | ||
from the communication if the communication was intercepted in a | ||
jurisdiction outside this state in compliance with the law of that | ||
jurisdiction. (Code Crim. Proc., Art. 18.20, Sec. 2.) | ||
Art. 18A.358. SUPPRESSION OF CONTENTS OF INTERCEPTED | ||
COMMUNICATIONS. (a) An aggrieved person charged with an offense in | ||
a trial, hearing, or proceeding in or before a court, department, | ||
officer, agency, regulatory body, or other authority of the United | ||
States, this state, or a political subdivision of this state may | ||
move to suppress the contents of an intercepted wire, oral, or | ||
electronic communication or evidence derived from the | ||
communication on the ground that: | ||
(1) the communication was unlawfully intercepted; | ||
(2) the interception order is insufficient on its | ||
face; or | ||
(3) the interception was not made in conformity with | ||
the interception order. | ||
(b) A person identified by a party to an intercepted wire, | ||
oral, or electronic communication during the course of that | ||
communication may move to suppress the contents of the | ||
communication on: | ||
(1) a ground provided under Subsection (a); or | ||
(2) the ground that the harm to the person resulting | ||
from the person's identification in court exceeds the value to the | ||
prosecution of the disclosure of the contents. | ||
(c) The motion to suppress must be made before the trial, | ||
hearing, or proceeding unless: | ||
(1) there was not an opportunity to make the motion; or | ||
(2) the aggrieved person was not aware of the grounds | ||
of the motion. | ||
(d) The hearing on the motion to suppress shall be held in | ||
camera on the written request of the aggrieved person. | ||
(e) If the motion to suppress is granted, the contents of | ||
the intercepted wire, oral, or electronic communication and | ||
evidence derived from the communication shall be treated as having | ||
been obtained in violation of this chapter. | ||
(f) The judge, on the filing of the motion to suppress by the | ||
aggrieved person, shall make available to the aggrieved person or | ||
the person's counsel for inspection any portion of the intercepted | ||
communication or evidence derived from the communication that the | ||
judge determines to make available in the interest of justice. | ||
(g) A judge of this state, on hearing a pretrial motion | ||
regarding conversations intercepted by wire in accordance with this | ||
chapter, or who otherwise becomes informed that there exists on | ||
such an intercepted wire, oral, or electronic communication | ||
identification of a specific individual who is not a suspect or a | ||
party to the subject of interception shall: | ||
(1) give notice and an opportunity to be heard on the | ||
matter of suppression of references to that individual if | ||
identification is sufficient to give notice; or | ||
(2) suppress references to that individual if | ||
identification is: | ||
(A) sufficient to potentially cause | ||
embarrassment or harm that outweighs the probative value, if any, | ||
of the mention of that individual; and | ||
(B) insufficient to require the notice under | ||
Subdivision (1). (Code Crim. Proc., Art. 18.20, Secs. 14(b), (c), | ||
(d), (e).) | ||
SUBCHAPTER I. USE AND DISPOSITION OF APPLICATIONS AND ORDERS | ||
Art. 18A.401. SEALING OF APPLICATION OR ORDER. The judge | ||
shall seal each application made and order issued under this | ||
chapter. (Code Crim. Proc., Art. 18.20, Sec. 11 (part).) | ||
Art. 18A.402. CUSTODY OF APPLICATIONS AND ORDERS. Custody | ||
of applications and orders issued under this chapter shall be | ||
wherever the judge directs. (Code Crim. Proc., Art. 18.20, Sec. 11 | ||
(part).) | ||
Art. 18A.403. DISCLOSURE OF APPLICATION OR ORDER. An | ||
application made or order issued under this chapter may be | ||
disclosed only on a showing of good cause before a judge of | ||
competent jurisdiction. (Code Crim. Proc., Art. 18.20, Sec. 11 | ||
(part).) | ||
Art. 18A.404. DESTRUCTION OF APPLICATION OR ORDER. An | ||
application made or order issued under this chapter may be | ||
destroyed only on or after the 10th anniversary of the date the | ||
application or order was sealed and only if the judge of competent | ||
jurisdiction for the administrative judicial region in which the | ||
application was made or the order was issued orders the | ||
destruction. (Code Crim. Proc., Art. 18.20, Sec. 11 (part).) | ||
SUBCHAPTER J. CREATION, USE, AND DISPOSITION OF RECORDINGS | ||
Art. 18A.451. CREATION OF RECORDINGS. The contents of a | ||
wire, oral, or electronic communication intercepted by means | ||
authorized by this chapter shall be recorded on tape, wire, or other | ||
comparable device in a way that protects the recording from editing | ||
or other alterations. (Code Crim. Proc., Art. 18.20, Sec. 10(a).) | ||
Art. 18A.452. DUPLICATION OF RECORDINGS. Recordings under | ||
Article 18A.451 may be duplicated for use or disclosure under | ||
Article 18A.351 for investigations. (Code Crim. Proc., Art. 18.20, | ||
Sec. 10(c).) | ||
Art. 18A.453. SEALING AND CUSTODY OF RECORDINGS. (a) | ||
Immediately on the expiration of the period of an interception | ||
order and all extensions, if any, the recordings under Article | ||
18A.451 shall be: | ||
(1) made available to the judge issuing the order; and | ||
(2) sealed under the judge's directions. | ||
(b) Custody of the recordings shall be wherever the judge | ||
orders. (Code Crim. Proc., Art. 18.20, Sec. 10(b) (part).) | ||
Art. 18A.454. DESTRUCTION OF RECORDINGS. A recording under | ||
Article 18A.451 may be destroyed only on or after the 10th | ||
anniversary of the date of expiration of the interception order and | ||
the last extension, if any, and only if the judge of competent | ||
jurisdiction for the administrative judicial region in which the | ||
interception was authorized orders the destruction. (Code Crim. | ||
Proc., Art. 18.20, Sec. 10(b) (part).) | ||
Art. 18A.455. PREREQUISITE FOR USE OR DISCLOSURE OF | ||
RECORDING IN CERTAIN PROCEEDINGS. The presence of the seal | ||
required by Article 18A.453(a) or a satisfactory explanation of the | ||
seal's absence is a prerequisite for the use or disclosure of the | ||
contents of a wire, oral, or electronic communication or evidence | ||
derived from the communication under Article 18A.352. (Code Crim. | ||
Proc., Art. 18.20, Sec. 10(d).) | ||
SUBCHAPTER K. VIOLATION; SANCTIONS | ||
Art. 18A.501. CONTEMPT. A violation of Subchapter I or J | ||
may be punished as contempt of court. (Code Crim. Proc., Art. | ||
18.20, Sec. 12.) | ||
Art. 18A.502. RECOVERY OF CIVIL DAMAGES BY AGGRIEVED | ||
PERSON. A person whose wire, oral, or electronic communication is | ||
intercepted, disclosed, or used in violation of this chapter or | ||
Chapter 16, Penal Code: | ||
(1) has a civil cause of action against any person who | ||
intercepts, discloses, or uses or solicits another person to | ||
intercept, disclose, or use the communication; and | ||
(2) is entitled to recover from the person: | ||
(A) actual damages but not less than liquidated | ||
damages computed at a rate of $100 for each day the violation occurs | ||
or $1,000, whichever is higher; | ||
(B) punitive damages; and | ||
(C) reasonable attorney's fees and other | ||
litigation costs reasonably incurred. (Code Crim. Proc., Art. | ||
18.20, Sec. 16(a).) | ||
Art. 18A.503. ACTION BROUGHT BY FEDERAL OR STATE | ||
GOVERNMENT; INJUNCTION; PENALTIES. (a) A person is subject to suit | ||
by the federal or state government in a court of competent | ||
jurisdiction for appropriate injunctive relief if the person | ||
engages in conduct that: | ||
(1) constitutes an offense under Section 16.05, Penal | ||
Code, but is not for a tortious or illegal purpose or for the | ||
purpose of direct or indirect commercial advantage or private | ||
commercial gain; and | ||
(2) involves a radio communication that is: | ||
(A) transmitted on frequencies allocated under | ||
Subpart D of Part 74 of the rules of the Federal Communications | ||
Commission; and | ||
(B) not scrambled or encrypted. | ||
(b) The attorney general or the county or district attorney | ||
of the county in which the conduct described by Subsection (a) is | ||
occurring may file suit under that subsection on behalf of the | ||
state. | ||
(c) A defendant is liable for a civil penalty of $500 if it | ||
is shown at the trial of the civil suit brought under Subsection (a) | ||
that the defendant has been: | ||
(1) convicted of an offense under Section 16.05, Penal | ||
Code; or | ||
(2) found liable in a civil action brought under | ||
Article 18A.502. | ||
(d) Each violation of an injunction ordered under | ||
Subsection (a) is punishable by a fine of $500. (Code Crim. Proc., | ||
Art. 18.20, Secs. 16(c), (d), (e), (f).) | ||
Art. 18A.504. GOOD FAITH DEFENSE AVAILABLE. A good faith | ||
reliance on a court order or legislative authorization constitutes | ||
a complete defense to an action brought under Article 18A.502 or | ||
18A.503. (Code Crim. Proc., Art. 18.20, Sec. 16(b).) | ||
Art. 18A.505. NO CAUSE OF ACTION. A computer trespasser or | ||
a user, aggrieved person, subscriber, or customer of a | ||
communication common carrier or provider of an electronic | ||
communications service does not have a cause of action against the | ||
carrier or service provider, the officers, employees, or agents of | ||
the carrier or service provider, or other specified persons for | ||
providing information, facilities, or assistance as required by a | ||
good faith reliance on: | ||
(1) legislative authority; or | ||
(2) a court order, warrant, subpoena, or certification | ||
under this chapter. (Code Crim. Proc., Art. 18.20, Sec. 16(g).) | ||
SUBCHAPTER L. REPORTS | ||
Art. 18A.551. REPORT OF INTERCEPTED COMMUNICATIONS BY | ||
JUDGE. (a) Within 30 days after the date an interception order or | ||
the last extension, if any, expires or after the denial of an | ||
interception order, the issuing or denying judge shall report to | ||
the Administrative Office of the United States Courts: | ||
(1) the fact that an order or extension was applied | ||
for; | ||
(2) the kind of order or extension applied for; | ||
(3) the fact that the order or extension was granted as | ||
applied for, was modified, or was denied; | ||
(4) the period of interceptions authorized by the | ||
order and the number and duration of any extensions of the order; | ||
(5) the offense specified in the order or application | ||
or extension; | ||
(6) the identity of the requesting officer and the | ||
prosecutor; and | ||
(7) the nature of the facilities from which or the | ||
place where communications were to be intercepted. | ||
(b) A judge required to file a report under this article | ||
shall forward a copy of the report to the director. (Code Crim. | ||
Proc., Art. 18.20, Secs. 15(a), (c) (part).) | ||
Art. 18A.552. REPORT OF INTERCEPTED COMMUNICATIONS BY | ||
PROSECUTOR. (a) In January of each year each prosecutor shall | ||
report to the Administrative Office of the United States Courts the | ||
following information for the preceding calendar year: | ||
(1) the information required by Article 18A.551(a) | ||
with respect to each application for an interception order or | ||
extension made; | ||
(2) a general description of the interceptions made | ||
under each order or extension, including: | ||
(A) the approximate nature and frequency of | ||
incriminating communications intercepted; | ||
(B) the approximate nature and frequency of other | ||
communications intercepted; | ||
(C) the approximate number of persons whose | ||
communications were intercepted; and | ||
(D) the approximate nature, amount, and cost of | ||
the personnel and other resources used in the interceptions; | ||
(3) the number of arrests resulting from interceptions | ||
made under each order or extension and the offenses for which the | ||
arrests were made; | ||
(4) the number of trials resulting from interceptions; | ||
(5) the number of motions to suppress made with | ||
respect to interceptions and the number granted or denied; | ||
(6) the number of convictions resulting from | ||
interceptions, the offenses for which the convictions were | ||
obtained, and a general assessment of the importance of the | ||
interceptions; and | ||
(7) the information required by Subdivisions (2) | ||
through (6) with respect to orders or extensions obtained. | ||
(b) A prosecutor required to file a report under this | ||
article shall forward a copy of the report to the director. (Code | ||
Crim. Proc., Art. 18.20, Secs. 15(b), (c) (part).) | ||
Art. 18A.553. REPORT OF INTERCEPTED COMMUNICATIONS BY | ||
DEPARTMENT OF PUBLIC SAFETY. (a) On or before March 1 of each year, | ||
the director shall submit a report of all intercepts conducted | ||
under this chapter and terminated during the preceding calendar | ||
year to: | ||
(1) the governor; | ||
(2) the lieutenant governor; | ||
(3) the speaker of the house of representatives; | ||
(4) the chair of the senate jurisprudence committee; | ||
and | ||
(5) the chair of the house of representatives criminal | ||
jurisprudence committee. | ||
(b) The report must include: | ||
(1) the reports of judges and prosecuting attorneys | ||
forwarded to the director as required by Articles 18A.551(b) and | ||
18A.552(b); | ||
(2) the number of department personnel authorized to | ||
possess, install, or operate an interception device; | ||
(3) the number of department and other law enforcement | ||
personnel who participated or engaged in the seizure of intercepts | ||
under this chapter during the preceding calendar year; and | ||
(4) the total cost to the department of all activities | ||
and procedures relating to the seizure of intercepts during the | ||
preceding calendar year, including costs of equipment, personnel, | ||
and expenses incurred as compensation for use of facilities or | ||
technical assistance provided to the department. (Code Crim. | ||
Proc., Art. 18.20, Sec. 15(c) (part).) | ||
SECTION 1.02. Title 1, Code of Criminal Procedure, is amended by adding Chapter 18B to read as follows: | ||
CHAPTER 18B. INSTALLATION AND USE OF TRACKING EQUIPMENT; ACCESS TO | ||
COMMUNICATIONS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 18B.001. DEFINITIONS | ||
SUBCHAPTER B. APPLICATION FOR ORDER AUTHORIZING INSTALLATION AND | ||
USE OF EQUIPMENT | ||
Art. 18B.051. REQUIREMENTS REGARDING REQUEST FOR AND | ||
FILING OF APPLICATION | ||
Art. 18B.052. JURISDICTION | ||
Art. 18B.053. APPLICATION REQUIREMENTS | ||
SUBCHAPTER C. ORDER AUTHORIZING INSTALLATION AND USE OF EQUIPMENT | ||
Art. 18B.101. ORDER AUTHORIZING INSTALLATION AND USE | ||
OF PEN REGISTER, ESN READER, OR | ||
SIMILAR EQUIPMENT | ||
Art. 18B.102. ORDER AUTHORIZING INSTALLATION AND USE | ||
OF TRAP AND TRACE DEVICE OR SIMILAR | ||
EQUIPMENT | ||
Art. 18B.103. COMPENSATION FOR CARRIER OR SERVICE | ||
PROVIDER | ||
Art. 18B.104. DURATION OF ORDER | ||
Art. 18B.105. SEALING RECORDS OF APPLICATION AND ORDER | ||
SUBCHAPTER D. EMERGENCY INSTALLATION AND USE OF CERTAIN EQUIPMENT | ||
Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN | ||
REGISTER OR TRAP AND TRACE DEVICE | ||
Art. 18B.152. ORDER AUTHORIZING EMERGENCY INSTALLATION | ||
AND USE | ||
Art. 18B.153. ADMISSIBILITY OF EVIDENCE OBTAINED | ||
SUBCHAPTER E. MOBILE TRACKING DEVICES | ||
Art. 18B.201. DEFINITION | ||
Art. 18B.202. ORDER AUTHORIZING INSTALLATION AND USE | ||
OF MOBILE TRACKING DEVICE | ||
Art. 18B.203. JURISDICTION | ||
Art. 18B.204. NOTIFICATION OF JUDGE FOLLOWING | ||
ACTIVATION OF MOBILE TRACKING DEVICE | ||
Art. 18B.205. DURATION OF ORDER | ||
Art. 18B.206. REMOVAL OF DEVICE | ||
Art. 18B.207. NONAPPLICABILITY | ||
SUBCHAPTER F. LAW ENFORCEMENT POWERS AND DUTIES | ||
Art. 18B.251. POLICY REQUIRED | ||
Art. 18B.252. PEACE OFFICERS AUTHORIZED TO POSSESS, | ||
INSTALL, OPERATE, OR MONITOR EQUIPMENT | ||
Art. 18B.253. LIMITATION: PEN REGISTERS | ||
Art. 18B.254. APPLICATION OR ORDER NOT REQUIRED FOR | ||
CERTAIN SEARCHES | ||
SUBCHAPTER G. OVERSIGHT | ||
Art. 18B.301. COMPLIANCE AUDIT | ||
Art. 18B.302. REPORT OF EXPENDITURES | ||
SUBCHAPTER H. ACCESS TO STORED COMMUNICATIONS AND OTHER STORED | ||
CUSTOMER DATA | ||
Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER | ||
DATA | ||
Art. 18B.352. COURT ORDER FOR GOVERNMENT ACCESS TO | ||
STORED CUSTOMER DATA | ||
Art. 18B.353. WARRANT ISSUED IN THIS STATE: | ||
APPLICABILITY | ||
Art. 18B.354. WARRANT ISSUED IN THIS STATE: | ||
APPLICATION AND ISSUANCE OF WARRANT | ||
Art. 18B.355. WARRANT ISSUED IN THIS STATE: EXECUTION | ||
OF WARRANT | ||
Art. 18B.356. WARRANT ISSUED IN THIS STATE: | ||
COMPLIANCE WITH WARRANT | ||
Art. 18B.357. WARRANT ISSUED IN THIS STATE: | ||
AUTHENTICATION OF RECORDS BY SERVICE | ||
PROVIDER | ||
Art. 18B.358. WARRANT ISSUED IN ANOTHER STATE | ||
Art. 18B.359. GOVERNMENT ACCESS TO CERTAIN STORED | ||
CUSTOMER DATA WITHOUT LEGAL PROCESS | ||
SUBCHAPTER I. BACKUP PRESERVATION OF ELECTRONIC CUSTOMER DATA | ||
Art. 18B.401. BACKUP PRESERVATION OF ELECTRONIC | ||
CUSTOMER DATA | ||
Art. 18B.402. NOTICE TO SUBSCRIBER OR CUSTOMER | ||
Art. 18B.403. RELEASE OF COPY OF ELECTRONIC CUSTOMER | ||
DATA | ||
Art. 18B.404. DESTRUCTION OF COPY OF ELECTRONIC | ||
CUSTOMER DATA | ||
Art. 18B.405. REQUEST FOR COPY OF ELECTRONIC CUSTOMER | ||
DATA BY AUTHORIZED PEACE OFFICER | ||
Art. 18B.406. PROCEEDINGS TO QUASH SUBPOENA OR VACATE | ||
COURT ORDER | ||
SUBCHAPTER J. PRODUCTION OF CERTAIN BUSINESS RECORDS | ||
Art. 18B.451. SUBPOENA AUTHORITY | ||
Art. 18B.452. REPORT OF ISSUANCE OF SUBPOENA | ||
Art. 18B.453. COMPLIANCE WITH POLICY FOR INSTALLATION | ||
AND USE OF EQUIPMENT | ||
SUBCHAPTER K. SERVICE PROVIDER POWERS AND DUTIES | ||
Art. 18B.501. PRECLUSION OF NOTIFICATION | ||
Art. 18B.502. DISCLOSURE BY SERVICE PROVIDER | ||
PROHIBITED | ||
Art. 18B.503. REIMBURSEMENT OF COSTS | ||
SUBCHAPTER L. REMEDIES | ||
Art. 18B.551. CAUSE OF ACTION | ||
Art. 18B.552. NO CAUSE OF ACTION | ||
Art. 18B.553. EXCLUSIVITY OF REMEDIES | ||
CHAPTER 18B. INSTALLATION AND USE OF TRACKING EQUIPMENT; ACCESS TO | ||
COMMUNICATIONS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 18B.001. DEFINITIONS. In this chapter: | ||
(1) "Authorized peace officer" means: | ||
(A) a sheriff or deputy sheriff; | ||
(B) a constable or deputy constable; | ||
(C) a marshal or police officer of a | ||
municipality; | ||
(D) a ranger or officer commissioned by the | ||
Public Safety Commission or the director of the department; | ||
(E) an investigator of a prosecutor's office; | ||
(F) a law enforcement agent of the Texas | ||
Alcoholic Beverage Commission; | ||
(G) a law enforcement officer commissioned by the | ||
Parks and Wildlife Commission; | ||
(H) an enforcement officer appointed by the | ||
inspector general of the Texas Department of Criminal Justice under | ||
Section 493.019, Government Code; | ||
(I) an investigator commissioned by the attorney | ||
general under Section 402.009, Government Code; or | ||
(J) a member of an arson investigating unit | ||
commissioned by a municipality, a county, or the state. | ||
(2) "Communication common carrier," "electronic | ||
communication," "electronic communications service," "user," and | ||
"wire communication" have the meanings assigned by Article 18A.001. | ||
(3) "Department" means the Department of Public Safety | ||
of the State of Texas. | ||
(4) "Designated law enforcement office or agency" | ||
means: | ||
(A) the sheriff's department of a county with a | ||
population of 3.3 million or more; | ||
(B) a police department in a municipality with a | ||
population of 500,000 or more; or | ||
(C) the office of inspector general of the Texas | ||
Department of Criminal Justice. | ||
(5) "Domestic entity" has the meaning assigned by | ||
Section 1.002, Business Organizations Code. | ||
(6) "Electronic communications system" means: | ||
(A) a wire, radio, electromagnetic, | ||
photo-optical, or photoelectronic facility for the transmission of | ||
wire or electronic communications; and | ||
(B) any computer facility or related electronic | ||
equipment for the electronic storage of wire or electronic | ||
communications. | ||
(7) "Electronic customer data" means data or records | ||
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 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) "ESN reader" means a device that, without | ||
intercepting the contents of a communication, records the | ||
electronic serial number from the data track of a wireless | ||
telephone, cellular telephone, or similar communication device | ||
that transmits its operational status to a base site. | ||
(10) "Pen register" means a device or process that | ||
records or decodes dialing, routing, addressing, or signaling | ||
information transmitted by an instrument or facility from which a | ||
wire or electronic communication is transmitted, if the information | ||
does not include the contents of the communication. The term does | ||
not include a device used by a provider or customer of a wire or | ||
electronic communications service in the ordinary course of the | ||
service provider's or customer's business for purposes of: | ||
(A) billing or recording incident to billing for | ||
communications services; or | ||
(B) cost accounting, security control, or other | ||
ordinary business purposes. | ||
(11) "Prosecutor" means a district attorney, criminal | ||
district attorney, or county attorney performing the duties of a | ||
district attorney. | ||
(12) "Remote computing service" means the provision of | ||
computer storage or processing services to the public by means of an | ||
electronic communications system. | ||
(13) "Trap and trace device" means a device or process | ||
that records an incoming electronic or other impulse that | ||
identifies the originating number or other dialing, routing, | ||
addressing, or signaling information reasonably likely to identify | ||
the source of a wire or electronic communication, if the | ||
information does not include the contents of the communication. | ||
The term does not include a device or telecommunications network | ||
used in providing: | ||
(A) a caller identification service authorized | ||
by the Public Utility Commission of Texas under Subchapter E, | ||
Chapter 55, Utilities Code; | ||
(B) the services referenced by Section | ||
55.102(b), Utilities Code; or | ||
(C) a caller identification service provided by a | ||
commercial mobile radio service provider licensed by the Federal | ||
Communications Commission. (Code Crim. Proc., Art. 18.20, Secs. | ||
1(17), (20); Art. 18.21, Secs. 1(1) (part), (2), (3), (3-a), (3-b), | ||
(3-c), (4), (6), (7), (8), (10).) | ||
SUBCHAPTER B. APPLICATION FOR ORDER AUTHORIZING INSTALLATION AND | ||
USE OF EQUIPMENT | ||
Art. 18B.051. REQUIREMENTS REGARDING REQUEST FOR AND FILING | ||
OF APPLICATION. (a) A prosecutor with jurisdiction in a county | ||
within a judicial district described by Article 18B.052 may file | ||
with a district judge in the judicial district an application for | ||
the installation and use of a pen register, ESN reader, trap and | ||
trace device, or similar equipment that combines the function of a | ||
pen register and a trap and trace device. | ||
(b) A prosecutor may file an application under this | ||
subchapter or under federal law on: | ||
(1) the prosecutor's own motion; or | ||
(2) the request of an authorized peace officer, | ||
regardless of whether the peace officer is commissioned by the | ||
department. | ||
(c) A prosecutor must make an application personally and may | ||
not make the application through an assistant or other person | ||
acting on the prosecutor's behalf if the prosecutor: | ||
(1) files an application on the prosecutor's own | ||
motion; or | ||
(2) files an application for the installation and use | ||
of a pen register, ESN reader, or similar equipment on the request | ||
of an authorized peace officer not commissioned by the department, | ||
other than an authorized peace officer employed by a designated law | ||
enforcement office or agency. | ||
(d) A prosecutor may make an application through an | ||
assistant or other person acting on the prosecutor's behalf if the | ||
prosecutor files an application for the installation and use of: | ||
(1) a pen register, ESN reader, or similar equipment | ||
on the request of: | ||
(A) an authorized peace officer who is | ||
commissioned by the department; or | ||
(B) an authorized peace officer of a designated | ||
law enforcement office or agency; or | ||
(2) a trap and trace device or similar equipment on the | ||
request of an authorized peace officer, regardless of whether the | ||
peace officer is commissioned by the department. (Code Crim. | ||
Proc., Art. 18.21, Secs. 2(a) (part), (b).) | ||
Art. 18B.052. JURISDICTION. An application under this | ||
subchapter must be filed in a judicial district in which is located: | ||
(1) the site of the proposed installation or use of the | ||
device or equipment; | ||
(2) the site of the communication device on which the | ||
device or equipment is proposed to be installed or used; | ||
(3) the billing, residential, or business address of | ||
the subscriber to the electronic communications service on which | ||
the device or equipment is proposed to be installed or used; | ||
(4) the headquarters of: | ||
(A) the office of the prosecutor filing an | ||
application under this subchapter; or | ||
(B) a law enforcement agency that requests the | ||
prosecutor to file an application under this subchapter or that | ||
proposes to execute an order authorizing installation and use of | ||
the device or equipment; or | ||
(5) the headquarters of a service provider ordered to | ||
install the device or equipment. (Code Crim. Proc., Art. 18.21, | ||
Sec. 2(a) (part).) | ||
Art. 18B.053. APPLICATION REQUIREMENTS. An application | ||
under this subchapter must: | ||
(1) be made in writing under oath; | ||
(2) include the name of the subscriber and the | ||
telephone number and location of the communication device on which | ||
the pen register, ESN reader, trap and trace device, or similar | ||
equipment will be used, to the extent that information is known or | ||
is reasonably ascertainable; and | ||
(3) state that the installation and use of the device | ||
or equipment will likely produce information that is material to an | ||
ongoing criminal investigation. (Code Crim. Proc., Art. 18.21, | ||
Sec. 2(c).) | ||
SUBCHAPTER C. ORDER AUTHORIZING INSTALLATION AND USE OF EQUIPMENT | ||
Art. 18B.101. ORDER AUTHORIZING INSTALLATION AND USE OF PEN | ||
REGISTER, ESN READER, OR SIMILAR EQUIPMENT. (a) On presentation of | ||
an application under Subchapter B, a judge may order the | ||
installation and use of a pen register, ESN reader, or similar | ||
equipment by an authorized peace officer commissioned by the | ||
department or an authorized peace officer of a designated law | ||
enforcement office or agency. | ||
(b) On request of the applicant, the judge shall direct in | ||
the order that a communication common carrier or a provider of an | ||
electronic communications service provide all information, | ||
facilities, and technical assistance necessary to facilitate the | ||
installation and use of the device or equipment by the department or | ||
designated law enforcement office or agency unobtrusively and with | ||
a minimum of interference to the services provided by the carrier or | ||
service provider. (Code Crim. Proc., Art. 18.21, Sec. 2(d) | ||
(part).) | ||
Art. 18B.102. ORDER AUTHORIZING INSTALLATION AND USE OF | ||
TRAP AND TRACE DEVICE OR SIMILAR EQUIPMENT. (a) On presentation of | ||
an application under Subchapter B, a judge may order the | ||
installation and use of a trap and trace device or similar equipment | ||
on the appropriate line by a communication common carrier or other | ||
person. | ||
(b) The judge may direct the communication common carrier or | ||
other person, including any landlord or other custodian of | ||
equipment, to provide all information, facilities, and technical | ||
assistance necessary to install or use the device or equipment | ||
unobtrusively and with a minimum of interference to the services | ||
provided by the communication common carrier, landlord, custodian, | ||
or other person. | ||
(c) Unless otherwise ordered by the court, the results of | ||
the device or equipment shall be provided to the applicant, as | ||
designated by the court, at reasonable intervals during regular | ||
business hours, for the duration of the order. (Code Crim. Proc., | ||
Art. 18.21, Sec. 2(e) (part).) | ||
Art. 18B.103. COMPENSATION FOR CARRIER OR SERVICE PROVIDER. | ||
(a) A communication common carrier or a provider of an electronic | ||
communications service that provides facilities and assistance to | ||
the department or a designated law enforcement office or agency | ||
under Article 18B.101(b) is entitled to compensation at the | ||
prevailing rates for the facilities and assistance. | ||
(b) A communication common carrier that provides facilities | ||
and assistance to a designated law enforcement office or agency | ||
under Article 18B.102(b) is entitled to compensation at the | ||
prevailing rates for the facilities and assistance. (Code Crim. | ||
Proc., Art. 18.21, Secs. 2(d) (part), (e) (part).) | ||
Art. 18B.104. DURATION OF ORDER. (a) An order for the | ||
installation and use of a device or equipment under this subchapter | ||
is valid for a period not to exceed 60 days after the earlier of the | ||
date the device or equipment is installed or the 10th day after the | ||
date the order is entered, unless the prosecutor applies for and | ||
obtains an extension of the order from the court before the order | ||
expires. | ||
(b) Each extension granted under Subsection (a) may not | ||
exceed a period of 60 days, except that the court may extend an | ||
order for a period not to exceed one year with the consent of the | ||
subscriber or customer of the service on which the device or | ||
equipment is used. (Code Crim. Proc., Art. 18.21, Sec. 2(f).) | ||
Art. 18B.105. SEALING RECORDS OF APPLICATION AND ORDER. A | ||
district court shall seal an application and order granted under | ||
this chapter. (Code Crim. Proc., Art. 18.21, Sec. 2(g).) | ||
SUBCHAPTER D. EMERGENCY INSTALLATION AND USE OF CERTAIN EQUIPMENT | ||
Art. 18B.151. EMERGENCY INSTALLATION AND USE OF PEN | ||
REGISTER OR TRAP AND TRACE DEVICE. (a) In this article, "immediate | ||
life-threatening situation" has the meaning assigned by Article | ||
18A.201. | ||
(b) A peace officer authorized to possess, install, | ||
operate, or monitor a device under Subchapter E, Chapter 18A, may | ||
install and use a pen register or trap and trace device if the peace | ||
officer reasonably believes: | ||
(1) an immediate life-threatening situation exists | ||
that: | ||
(A) is within the territorial jurisdiction of the | ||
peace officer or another officer the peace officer is assisting; | ||
and | ||
(B) requires the installation of a pen register | ||
or trap and trace device before an order authorizing the | ||
installation and use can, with due diligence, be obtained under | ||
this chapter; and | ||
(2) there are sufficient grounds under this chapter on | ||
which to obtain an order authorizing the installation and use of a | ||
pen register or trap and trace device. (Code Crim. Proc., Art. | ||
18.21, Secs. 1(1) (part), 3(a).) | ||
Art. 18B.152. ORDER AUTHORIZING EMERGENCY INSTALLATION AND | ||
USE. (a) A peace officer who installs or uses a pen register or | ||
trap and trace device under Article 18B.151 shall: | ||
(1) promptly report the installation or use of the | ||
device to the prosecutor in the county in which the device is | ||
installed or used; and | ||
(2) within 48 hours after the installation of the | ||
device is complete or the use of the device begins, whichever occurs | ||
first, obtain an order under Subchapter C authorizing the | ||
installation and use of the device. | ||
(b) A judge may issue an order authorizing the installation | ||
and use of a device under this subchapter during the 48-hour period | ||
prescribed by Subsection (a)(2). If an order is denied or is not | ||
issued within the 48-hour period, the peace officer shall terminate | ||
use of and remove the pen register or trap and trace device promptly | ||
on the earlier of the denial or the expiration of 48 hours. (Code | ||
Crim. Proc., Art. 18.21, Secs. 3(a) (part), (b), (c).) | ||
Art. 18B.153. ADMISSIBILITY OF EVIDENCE OBTAINED. The | ||
state may not use as evidence in a criminal proceeding any | ||
information gained through the use of a pen register or trap and | ||
trace device installed under this subchapter if an authorized peace | ||
officer: | ||
(1) does not apply for authorization for the pen | ||
register or trap and trace device; or | ||
(2) applies for but does not obtain that | ||
authorization. (Code Crim. Proc., Art. 18.21, Sec. 3(d).) | ||
SUBCHAPTER E. MOBILE TRACKING DEVICES | ||
Art. 18B.201. DEFINITION. In this subchapter, "mobile | ||
tracking device" means an electronic or mechanical device that | ||
permits tracking the movement of a person, vehicle, container, | ||
item, or object. (Code Crim. Proc., Art. 18.21, Sec. 1(5).) | ||
Art. 18B.202. ORDER AUTHORIZING INSTALLATION AND USE OF | ||
MOBILE TRACKING DEVICE. (a) A district judge may issue an order | ||
for the installation and use of a mobile tracking device only on the | ||
application of an authorized peace officer. | ||
(b) An application must be written, signed, and sworn to | ||
before the judge. | ||
(c) The affidavit must: | ||
(1) state the name, department, agency, and address of | ||
the applicant; | ||
(2) identify the vehicle, container, or item to which, | ||
in which, or on which the mobile tracking device is to be attached, | ||
placed, or otherwise installed; | ||
(3) state the name of the owner or possessor of the | ||
vehicle, container, or item identified under Subdivision (2); | ||
(4) state the judicial jurisdictional area in which | ||
the vehicle, container, or item identified under Subdivision (2) is | ||
expected to be found; and | ||
(5) state the facts and circumstances that provide the | ||
applicant with a reasonable suspicion that: | ||
(A) criminal activity has been, is, or will be | ||
committed; and | ||
(B) the installation and use of a mobile tracking | ||
device is likely to produce information that is material to an | ||
ongoing criminal investigation of that criminal activity. (Code | ||
Crim. Proc., Art. 18.21, Secs. 14(a) (part), (c).) | ||
Art. 18B.203. JURISDICTION. (a) A district judge may issue | ||
an order for the installation and use of a mobile tracking device in | ||
the same judicial district as the site of: | ||
(1) the investigation; or | ||
(2) the person, vehicle, container, item, or object | ||
the movement of which will be tracked by the device. | ||
(b) The order may authorize the use of a mobile tracking | ||
device outside the judicial district but within the state, if the | ||
device is installed within the district. (Code Crim. Proc., Art. | ||
18.21, Secs. 14(a), (b).) | ||
Art. 18B.204. NOTIFICATION OF JUDGE FOLLOWING ACTIVATION OF | ||
MOBILE TRACKING DEVICE. Within 72 hours after the time a mobile | ||
tracking device is activated in place on or within a vehicle, | ||
container, or item, the applicant for whom an order was issued under | ||
this subchapter shall notify in writing the judge who issued the | ||
order. (Code Crim. Proc., Art. 18.21, Sec. 14(d).) | ||
Art. 18B.205. DURATION OF ORDER. (a) An order under this | ||
subchapter expires not later than the 90th day after the date that | ||
the mobile tracking device was activated in place on or within the | ||
vehicle, container, or item. | ||
(b) For good cause shown, the judge may grant an extension | ||
for an additional 90-day period. (Code Crim. Proc., Art. 18.21, | ||
Sec. 14(e).) | ||
Art. 18B.206. REMOVAL OF DEVICE. (a) The applicant shall | ||
remove or cause to be removed the mobile tracking device as soon as | ||
is practicable after the authorization period expires. | ||
(b) If removal is not practicable, the device may not be | ||
monitored after the expiration of the order. (Code Crim. Proc., | ||
Art. 18.21, Sec. 14(f).) | ||
Art. 18B.207. NONAPPLICABILITY. (a) This subchapter does | ||
not apply to a global positioning or similar device installed in or | ||
on an item of property by the owner or with the consent of the owner | ||
of the property. | ||
(b) In an emergency, a private entity may monitor a device | ||
described by Subsection (a). (Code Crim. Proc., Art. 18.21, Sec. | ||
14(g).) | ||
SUBCHAPTER F. LAW ENFORCEMENT POWERS AND DUTIES | ||
Art. 18B.251. POLICY REQUIRED. Each designated law | ||
enforcement office or agency shall: | ||
(1) adopt a written policy governing the application | ||
of this chapter to the office or agency; and | ||
(2) submit the policy to the director of the | ||
department, or the director's designee, for approval. (Code Crim. | ||
Proc., Art. 18.21, Sec. 2(j).) | ||
Art. 18B.252. PEACE OFFICERS AUTHORIZED TO POSSESS, | ||
INSTALL, OPERATE, OR MONITOR EQUIPMENT. (a) A peace officer of a | ||
designated law enforcement office or agency is authorized to | ||
possess, install, operate, or monitor a pen register, ESN reader, | ||
or similar equipment if the peace officer's name is on the list | ||
submitted to the director of the department under Subsection (b). | ||
(b) If the director of the department or the director's | ||
designee approves the policy submitted under Article 18B.251, the | ||
inspector general of the Texas Department of Criminal Justice or | ||
the inspector general's designee, or the sheriff or chief of a | ||
designated law enforcement agency or the sheriff's or chief's | ||
designee, as applicable, shall submit to the director a written | ||
list of all peace officers in the designated law enforcement office | ||
or agency who are authorized to possess, install, operate, or | ||
monitor pen registers, ESN readers, or similar equipment. (Code | ||
Crim. Proc., Art. 18.21, Secs. 2(i), (k).) | ||
Art. 18B.253. LIMITATION: PEN REGISTERS. To prevent | ||
inclusion of the contents of a wire or electronic communication, a | ||
governmental agency authorized to install and use a pen register | ||
under this chapter or other law must use reasonably available | ||
technology to only record and decode electronic or other impulses | ||
used to identify the numbers dialed, routed, addressed, or | ||
otherwise processed or transmitted by the communication. (Code | ||
Crim. Proc., Art. 18.21, Sec. 16.) | ||
Art. 18B.254. APPLICATION OR ORDER NOT REQUIRED FOR CERTAIN | ||
SEARCHES. A peace officer is not required to file an application | ||
under Subchapter B or obtain an order under Subchapter C before the | ||
peace officer makes an otherwise lawful search, with or without a | ||
warrant, to determine the contents of a caller identification | ||
message, pager message, or voice message that is contained within | ||
the memory of an end-user's identification, paging, or answering | ||
device. (Code Crim. Proc., Art. 18.21, Sec. 2(h).) | ||
SUBCHAPTER G. OVERSIGHT | ||
Art. 18B.301. COMPLIANCE AUDIT. (a) The department may | ||
conduct an audit of a designated law enforcement office or agency to | ||
ensure compliance with this chapter. | ||
(b) If the department determines from the audit that the | ||
designated law enforcement office or agency is not in compliance | ||
with the policy adopted by the office or agency under Article | ||
18B.251, the department shall notify the office or agency in | ||
writing that the office or agency, as applicable, is not in | ||
compliance. | ||
(c) If the department determines that the office or agency | ||
still is not in compliance with the policy on the 90th day after the | ||
date the office or agency receives written notice under Subsection | ||
(b), the office or agency loses the authority granted by this | ||
chapter until: | ||
(1) the office or agency adopts a new written policy | ||
governing the application of this chapter to the office or agency; | ||
and | ||
(2) the department approves that policy. (Code Crim. | ||
Proc., Art. 18.21, Sec. 2(l).) | ||
Art. 18B.302. REPORT OF EXPENDITURES. (a) The inspector | ||
general of the Texas Department of Criminal Justice or the sheriff | ||
or chief of a designated law enforcement agency, as applicable, | ||
shall submit to the director of the department a written report of | ||
expenditures made by the designated law enforcement office or | ||
agency to purchase and maintain a pen register, ESN reader, or | ||
similar equipment authorized under this chapter. | ||
(b) The director of the department shall report the | ||
expenditures publicly on an annual basis on the department's | ||
Internet website or by other comparable means. (Code Crim. Proc., | ||
Art. 18.21, Sec. 2(m).) | ||
SUBCHAPTER H. ACCESS TO STORED COMMUNICATIONS AND OTHER STORED | ||
CUSTOMER DATA | ||
Art. 18B.351. GOVERNMENT ACCESS TO ELECTRONIC CUSTOMER | ||
DATA. (a) An authorized peace officer may require a provider of an | ||
electronic communications service or a provider of a remote | ||
computing service to disclose electronic customer data that is in | ||
electronic storage by obtaining a warrant under Article 18B.354. | ||
(b) An authorized peace officer may require a provider of an | ||
electronic communications service or a provider of a remote | ||
computing service to disclose only electronic customer data that is | ||
information revealing the identity of customers of the applicable | ||
service or information about a customer's use of the applicable | ||
service, without giving the subscriber or customer notice: | ||
(1) by obtaining an administrative subpoena | ||
authorized by statute; | ||
(2) by obtaining a grand jury subpoena; | ||
(3) by obtaining a court order under Article 18B.352; | ||
(4) by obtaining a warrant under Article 18B.354; | ||
(5) by obtaining the consent of the subscriber or | ||
customer to the disclosure of the data; or | ||
(6) as otherwise permitted by applicable federal law. | ||
(Code Crim. Proc., Art. 18.21, Secs. 4(a), (b).) | ||
Art. 18B.352. COURT ORDER FOR GOVERNMENT ACCESS TO STORED | ||
CUSTOMER DATA. (a) A court shall issue an order authorizing | ||
disclosure of contents, records, or other information of a wire or | ||
electronic communication held in electronic storage if the court | ||
determines that there is a reasonable belief that the information | ||
sought is relevant to a legitimate law enforcement inquiry. | ||
(b) A court may grant a motion by the service provider to | ||
quash or modify the order issued under Subsection (a) if the court | ||
determines that: | ||
(1) the information or records requested are unusually | ||
voluminous; or | ||
(2) compliance with the order would cause an undue | ||
burden on the provider. (Code Crim. Proc., Art. 18.21, Sec. 5.) | ||
Art. 18B.353. WARRANT ISSUED IN THIS STATE: APPLICABILITY. | ||
Articles 18B.354-18B.357 apply to a warrant required under Article | ||
18B.351 to obtain electronic customer data, including the contents | ||
of a wire or electronic communication. (Code Crim. Proc., | ||
Art. 18.21, Sec. 5A(a).) | ||
Art. 18B.354. WARRANT ISSUED IN THIS STATE: APPLICATION AND | ||
ISSUANCE OF WARRANT. (a) On the filing of an application by an | ||
authorized peace officer, a district judge may issue a search | ||
warrant under this article for electronic customer data held in | ||
electronic storage, including the contents of and records and other | ||
information related to a wire or electronic communication held in | ||
electronic storage, by a provider of an electronic communications | ||
service or a provider of a remote computing service described by | ||
Article 18B.355(b), regardless of whether the customer data is held | ||
at a location in this state or another state. An application made | ||
under this subsection must demonstrate probable cause for the | ||
issuance of the warrant and must be supported by the oath of the | ||
authorized peace officer. | ||
(b) A search 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) a specific offense has been committed; and | ||
(2) the electronic customer data sought: | ||
(A) constitutes evidence of that offense or | ||
evidence that a particular person committed that offense; and | ||
(B) is held in electronic storage by the service | ||
provider on which the warrant is served under Article 18B.355(c). | ||
(c) Only the electronic customer data described in the sworn | ||
affidavit required by Article 18.01(b) may be seized under the | ||
warrant. | ||
(d) A warrant issued under this article shall run in the | ||
name of "The State of Texas." | ||
(e) Article 18.011 applies to an affidavit presented under | ||
Article 18.01(b) for the issuance of a warrant under this article, | ||
and the affidavit may be sealed in the manner provided by that | ||
article. (Code Crim. Proc., Art. 18.21, Secs. 5A(b), (c), (d), | ||
(e), (f).) | ||
Art. 18B.355. WARRANT ISSUED IN THIS STATE: EXECUTION OF | ||
WARRANT. (a) Not later than the 11th day after the date of | ||
issuance, an authorized peace officer shall execute a warrant | ||
issued under Article 18B.354, except that the peace officer shall | ||
execute the warrant within a shorter period if the district judge | ||
directs a shorter period in the warrant. For purposes of this | ||
subsection, a warrant is executed when the warrant is served in the | ||
manner described by Subsection (c). | ||
(b) A warrant issued under Article 18B.354 may be served | ||
only on a provider of an electronic communications service or a | ||
provider of a remote computing service that is a domestic entity or | ||
a company or entity otherwise doing business in this state under a | ||
contract or a terms of service agreement with a resident of this | ||
state, if any part of that contract or agreement is to be performed | ||
in this state. | ||
(c) A search warrant issued under Article 18B.354 is served | ||
when an authorized peace officer delivers the warrant by hand, by | ||
facsimile transmission, or, in a manner allowing proof of delivery, | ||
by means of the United States mail or a private delivery service to: | ||
(1) a person specified by Section 5.255, Business | ||
Organizations Code; | ||
(2) the secretary of state in the case of a company or | ||
entity to which Section 5.251, Business Organizations Code, | ||
applies; or | ||
(3) any other person or entity designated to receive | ||
the service of process. | ||
(d) The district judge shall hear and decide any motion to | ||
quash the warrant not later than the fifth business day after the | ||
date the service provider files the motion. The judge may allow the | ||
service provider to appear at the hearing by teleconference. (Code | ||
Crim. Proc., Art. 18.21, Secs. 5A(b) (part), (g), (h) (part), (i), | ||
(m).) | ||
Art. 18B.356. WARRANT ISSUED IN THIS STATE: COMPLIANCE | ||
WITH WARRANT. (a) A district judge shall indicate in a warrant | ||
issued under Article 18A.354 that the deadline for compliance by | ||
the provider of an electronic communications service or the | ||
provider of a remote computing service is the 15th business day | ||
after the date the warrant is served if the warrant is to be served | ||
on a domestic entity or a company or entity otherwise doing business | ||
in this state, except that the deadline for compliance with a | ||
warrant served in accordance with Section 5.251, Business | ||
Organizations Code, may be extended to a date that is not later than | ||
the 30th day after the date the warrant is served. | ||
(b) The judge may indicate in the warrant that the deadline | ||
for compliance is earlier than the 15th business day after the date | ||
the warrant is served if the authorized peace officer who applies | ||
for the warrant makes a showing and the judge finds that failure to | ||
comply with the warrant by the earlier deadline would cause serious | ||
jeopardy to an investigation, cause undue delay of a trial, or | ||
create a material risk of: | ||
(1) danger to the life or physical safety of any | ||
person; | ||
(2) flight from prosecution; | ||
(3) the tampering with or destruction of evidence; or | ||
(4) intimidation of potential witnesses. | ||
(c) The service provider shall produce all electronic | ||
customer data, contents of communications, and other information | ||
sought, regardless of where the information is held and within the | ||
period allowed for compliance with the warrant, as provided by | ||
Subsection (a) or (b). | ||
(d) A court may find any designated officer, designated | ||
director, or designated owner of a company or entity in contempt of | ||
court if the person by act or omission is responsible for the | ||
failure of the company or entity to comply with the warrant within | ||
the period allowed for compliance. | ||
(e) The failure of a company or entity to timely deliver the | ||
information sought in the warrant does not affect the admissibility | ||
of that evidence in a criminal proceeding. | ||
(f) On a service provider's compliance with a warrant issued | ||
under Article 18B.354, an authorized peace officer shall file a | ||
return of the warrant and a copy of the inventory of the seized | ||
property as required under Article 18.10. | ||
(g) A provider of an electronic communications service or a | ||
provider of a remote computing service responding to a warrant | ||
issued under Article 18B.354 may request an extension of the period | ||
for compliance with the warrant if extenuating circumstances exist | ||
to justify the extension. The district judge shall grant a request | ||
for an extension based on those circumstances if: | ||
(1) the authorized peace officer who applied for the | ||
warrant or another appropriate authorized peace officer agrees to | ||
the extension; or | ||
(2) the district judge finds that the need for the | ||
extension outweighs the likelihood that the extension will cause an | ||
adverse circumstance described by Subsection (b). (Code Crim. | ||
Proc., Art. 18.21, Secs. 5A(b) (part), (h) (part), (j), (l), (n).) | ||
Art. 18B.357. WARRANT ISSUED IN THIS STATE: AUTHENTICATION | ||
OF RECORDS BY SERVICE PROVIDER. If an authorized peace officer | ||
serving a warrant under Article 18B.355 also delivers an affidavit | ||
form to the provider of an electronic communications service or the | ||
provider of a remote computing service responding to the warrant, | ||
and the peace officer also notifies the service provider in writing | ||
that an executed affidavit is required, the service provider shall | ||
verify the authenticity of the customer data, contents of | ||
communications, and other information produced in compliance with | ||
the warrant by including with the information an affidavit form | ||
that: | ||
(1) is completed and sworn to by a person who is a | ||
custodian of the information or a person otherwise qualified to | ||
attest to the authenticity of the information; and | ||
(2) states that the information was stored in the | ||
course of regularly conducted business of the service provider and | ||
specifies whether the regular practice of the service provider is | ||
to store that information. (Code Crim. Proc., Art. 18.21, Sec. | ||
5A(k).) | ||
Art. 18B.358. WARRANT ISSUED IN ANOTHER STATE. Any | ||
domestic entity that provides electronic communications services | ||
or remote computing services to the public shall comply with a | ||
warrant issued in another state and seeking information described | ||
by Article 18B.354(a), if the warrant is served on the entity in a | ||
manner equivalent to the service of process requirements provided | ||
by Article 18B.355(b). (Code Crim. Proc., Art. 18.21, Sec. 5B.) | ||
Art. 18B.359. GOVERNMENT ACCESS TO CERTAIN STORED CUSTOMER | ||
DATA WITHOUT LEGAL PROCESS. (a) A provider of a telephonic | ||
communications service shall disclose to an authorized peace | ||
officer, without legal process, subscriber listing information, | ||
including name, address, and telephone number or similar access | ||
code: | ||
(1) that the service provider provides to others in | ||
the course of providing publicly available directory or similar | ||
assistance; or | ||
(2) that is solely for use in the dispatch of emergency | ||
vehicles and personnel responding to a distress call directed to an | ||
emergency dispatch system or when the information is reasonably | ||
necessary to aid in the dispatching of emergency vehicles and | ||
personnel for the immediate prevention of death, personal injury, | ||
or destruction of property. | ||
(b) A provider of a telephonic communications service shall | ||
provide to an authorized peace officer the name of the subscriber of | ||
record whose published telephone number is provided to the service | ||
provider by an authorized peace officer. (Code Crim. Proc., Art. | ||
18.21, Secs. 4(c), (d).) | ||
SUBCHAPTER I. BACKUP PRESERVATION OF ELECTRONIC CUSTOMER DATA | ||
Art. 18B.401. BACKUP PRESERVATION OF ELECTRONIC CUSTOMER | ||
DATA. (a) A subpoena or court order under Article 18B.351(b) for | ||
disclosure of certain electronic customer data held in electronic | ||
storage by a provider of an electronic communications service or a | ||
provider of a remote computing service may, for the purpose of | ||
preserving the customer data sought by the subpoena or court order, | ||
require that service provider to create a copy of that data. | ||
(b) The service provider shall create the copy within a | ||
reasonable period as determined by the court issuing the subpoena | ||
or court order. | ||
(c) On creating a copy under this article, the service | ||
provider shall immediately notify the authorized peace officer who | ||
presented the subpoena or court order requesting the copy. | ||
(d) The service provider may not inform the subscriber or | ||
customer whose data is being sought that the subpoena or court order | ||
has been issued. (Code Crim. Proc., Art. 18.21, Secs. 6(a), (b).) | ||
Art. 18B.402. NOTICE TO SUBSCRIBER OR CUSTOMER. Not later | ||
than the third day after the date of the receipt of the notice under | ||
Article 18B.401(c) from the applicable service provider, the | ||
authorized peace officer who presented the subpoena or court order | ||
requesting the copy shall provide notice of the creation of the copy | ||
to the subscriber or customer whose electronic customer data is the | ||
subject of the subpoena or court order. (Code Crim. Proc., Art. | ||
18.21, Secs. 6(b) (part), (c).) | ||
Art. 18B.403. RELEASE OF COPY OF ELECTRONIC CUSTOMER DATA. | ||
The provider of an electronic communications service or the | ||
provider of a remote computing service shall release a copy created | ||
under this subchapter to the requesting authorized peace officer | ||
not earlier than the 14th day after the date of the peace officer's | ||
notice to the subscriber or customer if the service provider has | ||
not: | ||
(1) initiated proceedings to challenge the request of | ||
the peace officer for the copy; or | ||
(2) received notice from the subscriber or customer | ||
that the subscriber or customer has initiated proceedings to | ||
challenge the request. (Code Crim. Proc., Art. 18.21, Sec. 6(d).) | ||
Art. 18B.404. DESTRUCTION OF COPY OF ELECTRONIC CUSTOMER | ||
DATA. The provider of an electronic communications service or the | ||
provider of a remote computing service may not destroy or permit the | ||
destruction of a copy created under this subchapter until the later | ||
of: | ||
(1) the delivery of electronic customer data to the | ||
applicable law enforcement agency; or | ||
(2) the resolution of any court proceedings, including | ||
appeals of any proceedings, relating to the subpoena or court order | ||
requesting the creation of the copy. (Code Crim. Proc., Art. 18.21, | ||
Sec. 6(e).) | ||
Art. 18B.405. REQUEST FOR COPY OF ELECTRONIC CUSTOMER DATA | ||
BY AUTHORIZED PEACE OFFICER. (a) An authorized peace officer who | ||
reasonably believes that notice to a subscriber or customer | ||
regarding a subpoena or court order would result in the destruction | ||
of or tampering with the electronic customer data sought may | ||
request the creation of a copy of the data. | ||
(b) The peace officer's belief is not subject to challenge | ||
by the subscriber or customer or by a provider of an electronic | ||
communications service or a provider of a remote computing service. | ||
(Code Crim. Proc., Art. 18.21, Sec. 6(f).) | ||
Art. 18B.406. PROCEEDINGS TO QUASH SUBPOENA OR VACATE COURT | ||
ORDER. (a) Not later than the 14th day after the date a subscriber | ||
or customer receives notice under Article 18B.402, the subscriber | ||
or customer may file a written motion to quash the subpoena or | ||
vacate the court order in the court that issued the subpoena or | ||
court order. The motion must contain an affidavit or other sworn | ||
statement stating: | ||
(1) that the applicant is a subscriber or customer of | ||
the provider of an electronic communications service or the | ||
provider of a remote computing service from which the electronic | ||
customer data held in electronic storage for the subscriber or | ||
customer has been sought; and | ||
(2) the applicant's reasons for believing that the | ||
customer data sought is not relevant to a legitimate law | ||
enforcement inquiry or that there has not been substantial | ||
compliance with the provisions of this chapter in some other | ||
respect. | ||
(b) The subscriber or customer shall give written notice to | ||
the applicable service provider of the challenge to the subpoena or | ||
court order. The authorized peace officer requesting the subpoena | ||
or court order must be served a copy of the filed papers by personal | ||
delivery or by registered or certified mail. | ||
(c) The court shall order the authorized peace officer to | ||
file a sworn response to the motion filed by the subscriber or | ||
customer if the court determines that the subscriber or customer | ||
has complied with the requirements of Subsections (a) and (b). On | ||
request of the peace officer, the court may permit the response to | ||
be filed in camera. The court may conduct any additional | ||
proceedings the court considers appropriate if the court is unable | ||
to make a determination on the motion on the basis of the parties' | ||
initial allegations and response. | ||
(d) The court shall rule on the motion as soon as | ||
practicable after the filing of the peace officer's response. The | ||
court shall deny the motion if the court finds that the applicant is | ||
not the subscriber or customer whose data is the subject of the | ||
subpoena or court order or that there is reason to believe that the | ||
peace officer's inquiry is legitimate and that the data sought is | ||
relevant to that inquiry. The court shall quash the subpoena or | ||
vacate the court order if the court finds that the applicant is the | ||
subscriber or customer whose data is the subject of the subpoena or | ||
court order and that there is not a reason to believe that the data | ||
is relevant to a legitimate law enforcement inquiry or that there | ||
has not been substantial compliance with the provisions of this | ||
chapter. | ||
(e) A court order denying a motion or application under this | ||
article is not a final order, and an interlocutory appeal may not be | ||
taken from the denial. (Code Crim. Proc., Art. 18.21, Secs. 6(g), | ||
(h).) | ||
SUBCHAPTER J. PRODUCTION OF CERTAIN BUSINESS RECORDS | ||
Art. 18B.451. SUBPOENA AUTHORITY. The director of the | ||
department or the director's designee, the inspector general of the | ||
Texas Department of Criminal Justice or the inspector general's | ||
designee, or the sheriff or chief of a designated law enforcement | ||
agency or the sheriff's or chief's designee may issue an | ||
administrative subpoena to a communication common carrier or a | ||
provider of an electronic communications service to compel the | ||
production of any carrier's or service provider's business records | ||
that: | ||
(1) disclose information about: | ||
(A) the carrier's or service provider's | ||
customers; or | ||
(B) users of the services offered by the carrier | ||
or service provider; and | ||
(2) are material to a criminal investigation. (Code | ||
Crim. Proc., Art. 18.21, Sec. 15(a).) | ||
Art. 18B.452. REPORT OF ISSUANCE OF SUBPOENA. Not later | ||
than the 30th day after the date on which an administrative subpoena | ||
is issued under Article 18B.451, the inspector general of the Texas | ||
Department of Criminal Justice or the sheriff or chief of a | ||
designated law enforcement agency, as applicable, shall report to | ||
the department the issuance of the subpoena. (Code Crim. Proc., | ||
Art. 18.21, Sec. 15(b).) | ||
Art. 18B.453. COMPLIANCE WITH POLICY FOR INSTALLATION AND | ||
USE OF EQUIPMENT. (a) If, based on a report received under Article | ||
18B.452, the department determines that a designated law | ||
enforcement office or agency is not in compliance with the policy | ||
adopted by the office or agency under Article 18B.251, the | ||
department shall notify the office or agency in writing that the | ||
office or agency, as applicable, is not in compliance. | ||
(b) If the department determines that the office or agency | ||
still is not in compliance with the policy on the 90th day after the | ||
date the office or agency receives written notice under this | ||
article, the office or agency loses the authority granted by this | ||
chapter until: | ||
(1) the office or agency adopts a new written policy | ||
governing the application of this chapter to the office or agency; | ||
and | ||
(2) the department approves that policy. (Code Crim. | ||
Proc., Art. 18.21, Sec. 15(c).) | ||
SUBCHAPTER K. SERVICE PROVIDER POWERS AND DUTIES | ||
Art. 18B.501. PRECLUSION OF NOTIFICATION. (a) An | ||
authorized peace officer seeking electronic customer data under | ||
Article 18B.351 may apply to the court for an order commanding the | ||
service provider to whom a warrant, subpoena, or court order is | ||
directed not to disclose to any person the existence of the warrant, | ||
subpoena, or court order. The order is effective for the period the | ||
court considers appropriate. | ||
(b) The court shall enter the order if the court determines | ||
that there is reason to believe that notification of the existence | ||
of the warrant, subpoena, or court order will have an adverse | ||
result. | ||
(c) In this article, an "adverse result" means: | ||
(1) endangering the life or physical safety of an | ||
individual; | ||
(2) flight from prosecution; | ||
(3) destruction of or tampering with evidence; | ||
(4) intimidation of a potential witness; or | ||
(5) otherwise seriously jeopardizing an investigation | ||
or unduly delaying a trial. (Code Crim. Proc., Art. 18.21, Sec. 8.) | ||
Art. 18B.502. DISCLOSURE BY SERVICE PROVIDER PROHIBITED. | ||
(a) Except as provided by Subsection (c), a provider of an | ||
electronic communications service may not knowingly divulge the | ||
contents of a communication that is in electronic storage. | ||
(b) Except as provided by Subsection (c), a provider of a | ||
remote computing service may not knowingly divulge the contents of | ||
a communication that: | ||
(1) is in electronic storage on behalf of a subscriber | ||
or customer of the service provider; | ||
(2) is received by means of electronic transmission | ||
from the subscriber or customer or created by means of computer | ||
processing of communications received by means of electronic | ||
transmission from the subscriber or customer; and | ||
(3) is solely for the purpose of providing storage or | ||
computer processing services to the subscriber or customer, if the | ||
service provider is not authorized to obtain access to the contents | ||
of that communication for purposes of providing any service other | ||
than storage or computer processing. | ||
(c) A provider of an electronic communications service or a | ||
provider of a remote computing service may disclose the contents of | ||
an electronically stored communication: | ||
(1) to an intended recipient of the communication or | ||
the intended recipient's agent; | ||
(2) to the addressee or the addressee's agent; | ||
(3) with the consent of the originator, to the | ||
addressee or the intended recipient of the communication, or the | ||
subscriber of a remote computing service; | ||
(4) to a person whose facilities are used to transmit | ||
the communication to its destination or the person's employee or | ||
authorized representative; | ||
(5) as may be necessary to provide the service or to | ||
protect the property or rights of the service provider; | ||
(6) to a law enforcement agency if the contents were | ||
obtained inadvertently by the service provider and the contents | ||
appear to pertain to the commission of an offense; or | ||
(7) as authorized under federal or other state law. | ||
(Code Crim. Proc., Art. 18.21, Sec. 11.) | ||
Art. 18B.503. REIMBURSEMENT OF COSTS. (a) Except as | ||
provided by Subsection (c), an authorized peace officer who obtains | ||
electronic customer data under Article 18B.351 or 18B.359 or other | ||
information under this chapter shall reimburse the person | ||
assembling or providing the data or information for all costs that | ||
are reasonably necessary and that have been directly incurred in | ||
searching for, assembling, reproducing, or otherwise providing the | ||
data or information, including costs arising from necessary | ||
disruption of normal operations of a provider of an electronic | ||
communications service or a provider of a remote computing service | ||
in which the electronic customer data may be held in electronic | ||
storage or in which the other information may be stored. | ||
(b) The authorized peace officer and the person providing | ||
the electronic customer data or other information may agree on the | ||
amount of reimbursement. If there is not an agreement, the court | ||
that issued the order for production of the data or information | ||
shall determine the amount. If a court order was not issued for | ||
production of the data or information, the court before which any | ||
criminal prosecution relating to the data or information would be | ||
brought shall determine the amount. | ||
(c) Subsection (a) does not apply to records or other | ||
information that is maintained by a communication common carrier | ||
and that relates to telephone toll records or telephone listings | ||
obtained under Article 18B.359(a), unless the court determines | ||
that: | ||
(1) the amount of information required was unusually | ||
voluminous; or | ||
(2) an undue burden was imposed on the service | ||
provider. (Code Crim. Proc., Art. 18.21, Sec. 9.) | ||
SUBCHAPTER L. REMEDIES | ||
Art. 18B.551. CAUSE OF ACTION. (a) Except as provided by | ||
Article 18B.552, a provider of an electronic communications service | ||
or a provider of a remote computing service, or a subscriber or | ||
customer of that service provider, that is aggrieved by a violation | ||
of this chapter has a civil cause of action if the conduct | ||
constituting the violation was committed knowingly or | ||
intentionally and is entitled to: | ||
(1) injunctive relief; | ||
(2) reasonable attorney's fees and other litigation | ||
costs reasonably incurred; and | ||
(3) the amount of the actual damages suffered and any | ||
profits made by the violator as a result of the violation or $1,000, | ||
whichever is more. | ||
(b) The reliance in good faith on a court order, warrant, | ||
subpoena, or legislative authorization is a complete defense to any | ||
civil action brought under this chapter. | ||
(c) A civil action under this article may be presented not | ||
later than the second anniversary of the date the claimant first | ||
discovered or had reasonable opportunity to discover the violation. | ||
(Code Crim. Proc., Art. 18.21, Sec. 12.) | ||
Art. 18B.552. NO CAUSE OF ACTION. A subscriber or customer | ||
of a provider of an electronic communications service or a provider | ||
of a remote computing service does not have a cause of action | ||
against a service provider or the service provider's officers, | ||
employees, or agents or against other specified persons for | ||
providing information, facilities, or assistance as required by a | ||
court order, warrant, subpoena, or certification under this | ||
chapter. (Code Crim. Proc., Art. 18.21, Sec. 10.) | ||
Art. 18B.553. EXCLUSIVITY OF REMEDIES. The remedies and | ||
sanctions under this chapter are the exclusive judicial remedies | ||
and sanctions for a violation of this chapter, other than a | ||
violation that infringes on a right of a party that is guaranteed by | ||
a state or federal constitution. (Code Crim. Proc., Art. 18.21, | ||
Sec. 13.) | ||
SECTION 1.03. Title 1, Code of Criminal Procedure, is amended by adding Chapter 66 to read as follows: | ||
CHAPTER 66. CRIMINAL HISTORY RECORD SYSTEM | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 66.001. DEFINITIONS | ||
SUBCHAPTER B. CRIMINAL JUSTICE INFORMATION SYSTEM | ||
Art. 66.051. PURPOSE AND FUNCTIONS | ||
Art. 66.052. IMPLEMENTATION AND OPERATION OF CRIMINAL | ||
JUSTICE INFORMATION SYSTEM | ||
Art. 66.053. INFORMATION COLLECTED | ||
Art. 66.054. FINGERPRINT AND ARREST INFORMATION IN | ||
CRIMINAL JUSTICE INFORMATION SYSTEM | ||
SUBCHAPTER C. COMPUTERIZED CRIMINAL HISTORY SYSTEM | ||
Art. 66.101. COMPUTERIZED CRIMINAL HISTORY SYSTEM | ||
DATABASE | ||
Art. 66.102. INFORMATION CONTAINED IN COMPUTERIZED | ||
CRIMINAL HISTORY SYSTEM | ||
Art. 66.103. DUTIES OF TEXAS DEPARTMENT OF CRIMINAL | ||
JUSTICE REGARDING CRIMINAL JUSTICE | ||
INFORMATION SYSTEM | ||
Art. 66.104. DUTIES OF LICENSING AGENCIES TO PROVIDE | ||
INFORMATION REGARDING LICENSE HOLDERS | ||
Art. 66.105. INFORMATION RELATED TO MISUSED IDENTITY | ||
Art. 66.106. INFORMATION RELATED TO NON-FINGERPRINT | ||
SUPPORTED ACTIONS | ||
SUBCHAPTER D. CORRECTIONS TRACKING SYSTEM | ||
Art. 66.151. CORRECTIONS TRACKING SYSTEM DATABASE | ||
Art. 66.152. INFORMATION CONTAINED IN CORRECTIONS | ||
TRACKING SYSTEM | ||
SUBCHAPTER E. ACCESS TO INFORMATION IN CRIMINAL JUSTICE | ||
INFORMATION SYSTEM | ||
Art. 66.201. ACCESS TO DATABASES BY CRIMINAL JUSTICE | ||
AGENCIES AND OTHER ENTITIES | ||
Art. 66.202. REQUEST FOR DATA FILE FROM DATABASES | ||
Art. 66.203. PUBLIC DISCLOSURE OF DATA PROHIBITED | ||
SUBCHAPTER F. DATA COLLECTION AND SUBMISSION | ||
Art. 66.251. UNIFORM INCIDENT FINGERPRINT CARD | ||
Art. 66.252. REPORTING OF INFORMATION BY LOCAL | ||
ENTITIES | ||
Art. 66.253. COMPATIBILITY OF DATA | ||
Art. 66.254. ELECTRONIC REPORTING OF INFORMATION | ||
Art. 66.255. INFORMATION ON SUBSEQUENT ARRESTS | ||
SUBCHAPTER G. DUTIES OF CRIMINAL JUSTICE AGENCIES AND CERTAIN | ||
COURT CLERKS | ||
Art. 66.301. DUTIES OF CRIMINAL JUSTICE AGENCIES | ||
Art. 66.302. PUBLIC DISCLOSURE NOT AUTHORIZED | ||
Art. 66.303. PROHIBITED ACTS | ||
Art. 66.304. APPLICABILITY TO DISTRICT COURT AND | ||
COUNTY COURT CLERKS | ||
SUBCHAPTER H. OVERSIGHT AND REPORTING | ||
Art. 66.351. BIENNIAL PLANS | ||
Art. 66.352. EXAMINATION OF RECORDS AND OPERATIONS | ||
Art. 66.353. MONITORING AND REPORTING DUTIES OF | ||
DEPARTMENT OF PUBLIC SAFETY | ||
Art. 66.354. LOCAL DATA ADVISORY BOARDS | ||
SUBCHAPTER I. GRANTS | ||
Art. 66.401. GRANTS FOR CRIMINAL JUSTICE PROGRAMS | ||
Art. 66.402. CERTIFICATION REQUIRED | ||
CHAPTER 66. CRIMINAL HISTORY RECORD SYSTEM | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 66.001. DEFINITIONS. In this chapter: | ||
(1) "Administration of criminal justice" means the | ||
detection, apprehension, detention, pretrial release, post-trial | ||
release, prosecution, adjudication, correctional supervision, or | ||
rehabilitation of an offender. The term includes criminal | ||
identification activities and the collection, storage, and | ||
dissemination of criminal history record information. | ||
(2) "Computerized criminal history system" means the | ||
database containing arrest, disposition, and other criminal | ||
history maintained by the Department of Public Safety. | ||
(3) "Corrections tracking system" means the database | ||
maintained by the Texas Department of Criminal Justice on all | ||
offenders under the department's supervision. | ||
(4) "Council" means the Criminal Justice Policy | ||
Council. | ||
(5) "Criminal justice agency" means a federal or state | ||
agency that is engaged in the administration of criminal justice | ||
under a statute or executive order and allocates a substantial part | ||
of the agency's annual budget to the administration of criminal | ||
justice. | ||
(6) "Criminal justice information system" means the | ||
computerized criminal history system and the corrections tracking | ||
system. | ||
(7) "Disposition" means an action that results in the | ||
termination, transfer to another jurisdiction, or indeterminate | ||
suspension of the prosecution of a criminal charge. | ||
(8) "Electronic means" means the transmission of data | ||
between word processors, data processors, or similar automated | ||
information equipment over dedicated cables, commercial lines, or | ||
other similar methods of transmission. | ||
(9) "Incident number" means the unique number assigned | ||
to a specific person during a specific arrest. | ||
(10) "Offender" means any person who is assigned an | ||
incident number. | ||
(11) "Offense code" means the numeric code for each | ||
offense category. | ||
(12) "Release" means the termination of jurisdiction | ||
over an individual by the criminal justice system. | ||
(13) "State identification number" means the unique | ||
number assigned by the Department of Public Safety to each person | ||
whose name appears in the criminal justice information system. | ||
(Code Crim. Proc., Arts. 60.01(1), (3), (4), (5), (6), (7), (8), | ||
(9), (10), (11), (13), (14), (16).) | ||
SUBCHAPTER B. CRIMINAL JUSTICE INFORMATION SYSTEM | ||
Art. 66.051. PURPOSE AND FUNCTIONS. The criminal justice | ||
information system shall be maintained to supply the state with a | ||
system: | ||
(1) that provides an accurate criminal history record | ||
depository to: | ||
(A) law enforcement officers; and | ||
(B) criminal justice agencies for operational | ||
decision making; | ||
(2) from which accurate criminal justice system | ||
modeling can be conducted; and | ||
(3) that improves: | ||
(A) the quality of data used to conduct impact | ||
analyses of proposed legislative changes in the criminal justice | ||
system; and | ||
(B) the ability of interested parties to analyze | ||
the functioning of the criminal justice system. (Code Crim. Proc., | ||
Art. 60.02(c).) | ||
Art. 66.052. IMPLEMENTATION AND OPERATION OF CRIMINAL | ||
JUSTICE INFORMATION SYSTEM. (a) The Department of Public Safety | ||
shall designate offense codes and has the sole responsibility for | ||
designating the state identification number for each person whose | ||
name appears in the criminal justice information system. | ||
(b) The Department of Public Safety and the Texas Department | ||
of Criminal Justice shall implement a system to link the | ||
computerized criminal history system and the corrections tracking | ||
system. (Code Crim. Proc., Arts. 60.02(e), (f) (part).) | ||
Art. 66.053. INFORMATION COLLECTED. For each arrest for a | ||
felony or misdemeanor other than a misdemeanor punishable by fine | ||
only, the criminal justice information system must include | ||
information relating to: | ||
(1) offenders; | ||
(2) arrests; | ||
(3) prosecutions; | ||
(4) the disposition of cases by courts; | ||
(5) sentencing; and | ||
(6) the handling of offenders received by a | ||
correctional agency, facility, or other institution. (Code Crim. | ||
Proc., Art. 60.05.) | ||
Art. 66.054. FINGERPRINT AND ARREST INFORMATION IN CRIMINAL | ||
JUSTICE INFORMATION SYSTEM. (a) When a jurisdiction transmits | ||
fingerprints and arrest information by a remote terminal accessing | ||
the statewide automated fingerprint identification system, the | ||
Department of Public Safety shall use that transmission to create: | ||
(1) a permanent record in the criminal justice | ||
information system; or | ||
(2) a temporary arrest record in the criminal justice | ||
information system to be maintained by the department until the | ||
department receives and processes the physical copy of the arrest | ||
information. | ||
(b) The Department of Public Safety shall make available to | ||
a criminal justice agency making a background criminal inquiry any | ||
information contained in a temporary arrest record maintained by | ||
the department, including a statement that a physical copy of the | ||
arrest information was not available at the time the information | ||
was entered in the criminal justice information system. (Code | ||
Crim. Proc., Art. 60.12.) | ||
SUBCHAPTER C. COMPUTERIZED CRIMINAL HISTORY SYSTEM | ||
Art. 66.101. COMPUTERIZED CRIMINAL HISTORY SYSTEM | ||
DATABASE. (a) The Department of Public Safety shall record data | ||
and maintain the computerized criminal history system that serves | ||
as the record creation point for criminal history information | ||
maintained by the state. | ||
(b) The computerized criminal history system must contain | ||
the information required by this chapter. | ||
(c) The Department of Public Safety shall operate the | ||
computerized criminal history system and develop the necessary | ||
interfaces in the system to accommodate inquiries from the | ||
statewide automated fingerprint identification system implemented | ||
by the department. (Code Crim. Proc., Arts. 60.02(b), (d), (g).) | ||
Art. 66.102. INFORMATION CONTAINED IN COMPUTERIZED | ||
CRIMINAL HISTORY SYSTEM. (a) In this article: | ||
(1) "Appeal" means the review of a decision of a lower | ||
court by a superior court other than by collateral attack. | ||
(2) "Rejected case" means: | ||
(A) a charge that, after the arrest of the | ||
offender, the prosecutor declines to include in an information or | ||
present to a grand jury; or | ||
(B) an information or indictment that, after the | ||
arrest of the offender, the prosecutor refuses to prosecute. | ||
(b) Information in the computerized criminal history system | ||
relating to an offender must include the offender's: | ||
(1) name, including other names by which the offender | ||
is known; | ||
(2) date of birth; | ||
(3) physical description, including sex, weight, | ||
height, race, ethnicity, eye color, hair color, scars, marks, and | ||
tattoos; and | ||
(4) state identification number. | ||
(c) Information in the computerized criminal history system | ||
relating to an arrest must include: | ||
(1) the offender's name; | ||
(2) the offender's state identification number; | ||
(3) the arresting law enforcement agency; | ||
(4) the arrest charge, by offense code and incident | ||
number; | ||
(5) whether the arrest charge is a misdemeanor or | ||
felony; | ||
(6) the date of the arrest; | ||
(7) the exact disposition of the case by a law | ||
enforcement agency following the arrest; and | ||
(8) the date of disposition of the case by the law | ||
enforcement agency. | ||
(d) Information in the computerized criminal history system | ||
relating to a prosecution must include: | ||
(1) each charged offense, by offense code and incident | ||
number; | ||
(2) the level of the offense charged or the degree of | ||
the offense charged for each offense in Subdivision (1); and | ||
(3) for a rejected case: | ||
(A) the date of rejection; | ||
(B) the offense code; | ||
(C) the incident number; and | ||
(D) whether the rejection is a result of a | ||
successful pretrial diversion program. | ||
(e) Information in the computerized criminal history system | ||
relating to the disposition of a case other than a rejected case | ||
must include: | ||
(1) the final pleading to each charged offense and the | ||
level of the offense; | ||
(2) a listing of each charged offense disposed of by | ||
the court and: | ||
(A) the date of disposition; | ||
(B) the offense code for the disposed charge and | ||
incident number; and | ||
(C) the type of disposition; and | ||
(3) for a conviction that is appealed, the final court | ||
decision and the final disposition of the offender's case on | ||
appeal. | ||
(f) Information in the computerized criminal history system | ||
relating to sentencing must include for each sentence: | ||
(1) the sentencing date; | ||
(2) the sentence for each offense, by offense code and | ||
incident number; | ||
(3) if the offender was sentenced to confinement: | ||
(A) the agency that receives custody of the | ||
offender; | ||
(B) the length of the sentence for each offense; | ||
and | ||
(C) if multiple sentences were ordered, whether | ||
the sentences were ordered to be served consecutively or | ||
concurrently; | ||
(4) if the offender was sentenced to pay a fine, the | ||
amount of the fine; | ||
(5) if a sentence to pay a fine or to confinement was | ||
ordered but was deferred, probated, suspended, or otherwise not | ||
imposed: | ||
(A) the length of the sentence or the amount of | ||
the fine that was deferred, probated, suspended, or otherwise not | ||
imposed; and | ||
(B) the offender's name, offense code, and | ||
incident number; and | ||
(6) if a sentence other than a fine or confinement was | ||
ordered, a description of the sentence ordered. | ||
(g) The Department of Public Safety shall maintain in the | ||
computerized criminal history system any information the | ||
department maintains in the central database under Article 62.005. | ||
(h) In addition to the information described by this | ||
article, information in the computerized criminal history system | ||
must include the age of the victim of the offense if the offender | ||
was arrested for or charged with an offense under the following | ||
provisions of the Penal Code: | ||
(1) Section 20.04(a)(4) (Aggravated Kidnapping), if | ||
the offender committed the offense with the intent to violate or | ||
abuse the victim sexually; | ||
(2) Section 20A.02 (Trafficking of Persons), if the | ||
offender: | ||
(A) trafficked a person with the intent or | ||
knowledge that the person would engage in sexual conduct, as | ||
defined by Section 43.25, Penal Code; or | ||
(B) benefited from participating in a venture | ||
that involved a trafficked person engaging in sexual conduct, as | ||
defined by Section 43.25, Penal Code; | ||
(3) Section 21.02 (Continuous Sexual Abuse of Young | ||
Child or Children); | ||
(4) Section 21.11 (Indecency with a Child); | ||
(5) Section 22.011 (Sexual Assault) or 22.021 | ||
(Aggravated Sexual Assault); | ||
(6) Section 30.02 (Burglary), if the offense is | ||
punishable under Subsection (d) of that section and the offender | ||
committed the offense with the intent to commit an offense | ||
described by Subdivision (1), (4), or (5); | ||
(7) Section 43.05(a)(2) (Compelling Prostitution); or | ||
(8) Section 43.25 (Sexual Performance by a Child). | ||
(Code Crim. Proc., Arts. 60.01(2), (12), 60.051.) | ||
Art. 66.103. DUTIES OF TEXAS DEPARTMENT OF CRIMINAL JUSTICE | ||
REGARDING CRIMINAL JUSTICE INFORMATION SYSTEM. Data received by | ||
the Texas Department of Criminal Justice that is required by the | ||
Department of Public Safety for the preparation of a criminal | ||
history record shall be made available to the computerized criminal | ||
history system not later than the seventh day after the date on | ||
which the Texas Department of Criminal Justice receives the request | ||
for the data from the Department of Public Safety. (Code Crim. | ||
Proc., Art. 60.02(f) (part).) | ||
Art. 66.104. DUTIES OF LICENSING AGENCIES TO PROVIDE | ||
INFORMATION REGARDING LICENSE HOLDERS. (a) The Texas Medical | ||
Board, the Texas State Board of Podiatric Medical Examiners, the | ||
State Board of Dental Examiners, the Texas State Board of Pharmacy, | ||
the Texas State Board of Examiners of Psychologists, and the State | ||
Board of Veterinary Medical Examiners shall provide to the | ||
Department of Public Safety through electronic means, magnetic | ||
tape, or disk, as specified by the department, a list of each person | ||
licensed by the respective agency, including the person's name and | ||
date of birth and any other personal descriptive information | ||
required by the department. Each agency shall update the | ||
information and submit the updated information quarterly to the | ||
department. | ||
(b) The Department of Public Safety shall: | ||
(1) perform at least quarterly a computer match of the | ||
licensing list against the convictions maintained in the | ||
computerized criminal history system; and | ||
(2) report to the appropriate licensing agency for | ||
verification and administrative action, as considered appropriate | ||
by the licensing agency, the name of any person found to have a | ||
record of conviction, other than a defendant whose prosecution is | ||
deferred during a period of community supervision without an | ||
adjudication of guilt or a plea of guilty. | ||
(c) The Department of Public Safety may charge a licensing | ||
agency a fee not to exceed the actual direct cost incurred by the | ||
department in performing a computer match and reporting to the | ||
agency under Subsection (b). | ||
(d) The transmission of information by electronic means | ||
under Subsection (a) does not affect whether the information is | ||
subject to disclosure under Chapter 552, Government Code. (Code | ||
Crim. Proc., Art. 60.061.) | ||
Art. 66.105. INFORMATION RELATED TO MISUSED IDENTITY. (a) | ||
On receipt of information from a local law enforcement agency under | ||
Article 2.28, the Department of Public Safety shall: | ||
(1) provide the notice described by Article 2.28(1) to | ||
the person whose identity was misused, if the local law enforcement | ||
agency was unable to notify the person under that subdivision; | ||
(2) take action to ensure that the information | ||
maintained in the computerized criminal history system reflects the | ||
use of the person's identity as a stolen alias; and | ||
(3) notify the Texas Department of Criminal Justice | ||
that the person's identifying information may have been falsely | ||
used by an inmate in the custody of the Texas Department of Criminal | ||
Justice. | ||
(b) On receipt of a declaration under Section 411.0421, | ||
Government Code, or on receipt of information similar to that | ||
contained in a declaration filed under that section, the Department | ||
of Public Safety shall separate information maintained in the | ||
computerized criminal history system regarding an individual whose | ||
identity has been misused from information maintained in that | ||
system regarding the person who misused the identity. (Code Crim. | ||
Proc., Art. 60.19.) | ||
Art. 66.106. INFORMATION RELATED TO NON-FINGERPRINT | ||
SUPPORTED ACTIONS. (a) On receipt of a report of prosecution or | ||
court disposition information from a jurisdiction for which | ||
corresponding arrest data does not exist in the computerized | ||
criminal history system, the Department of Public Safety shall | ||
enter the report into a non-fingerprint supported file that is | ||
separate from the computerized criminal history system. | ||
(b) The Department of Public Safety shall grant access to | ||
records in a non-fingerprint supported file created under | ||
Subsection (a) that include the subject's name or other identifier | ||
in the same manner as the department is required to grant access to | ||
criminal history record information under Subchapter F, Chapter | ||
411, Government Code. | ||
(c) On receipt of a report of arrest information that | ||
corresponds to a record in a non-fingerprint supported file created | ||
under Subsection (a), the Department of Public Safety shall | ||
transfer the record from the non-fingerprint supported file to the | ||
computerized criminal history system. (Code Crim. Proc., Art. | ||
60.20.) | ||
SUBCHAPTER D. CORRECTIONS TRACKING SYSTEM | ||
Art. 66.151. CORRECTIONS TRACKING SYSTEM DATABASE. (a) | ||
The Texas Department of Criminal Justice shall record data and | ||
establish and maintain the corrections tracking system. | ||
(b) The corrections tracking system must contain the | ||
information required by this chapter. (Code Crim. Proc., Arts. | ||
60.02(a), (d).) | ||
Art. 66.152. INFORMATION CONTAINED IN CORRECTIONS TRACKING | ||
SYSTEM. (a) Information in the corrections tracking system | ||
relating to a sentence to be served under the jurisdiction of the | ||
Texas Department of Criminal Justice must include: | ||
(1) the offender's name; | ||
(2) the offender's state identification number; | ||
(3) the sentencing date; | ||
(4) the sentence for each offense, by offense code and | ||
incident number; | ||
(5) if the offender was sentenced to imprisonment: | ||
(A) the unit of imprisonment; | ||
(B) the length of the sentence for each offense; | ||
and | ||
(C) if multiple sentences were ordered, whether | ||
the sentences were ordered to be served consecutively or | ||
concurrently; and | ||
(6) if a sentence other than a fine or imprisonment was | ||
ordered, a description of the sentence ordered. | ||
(b) Sentencing information in the corrections tracking | ||
system must also include the following information about each | ||
community supervision, including deferred adjudication community | ||
supervision, or other alternative to imprisonment ordered: | ||
(1) each conviction for which a sentence was ordered | ||
but was deferred, probated, suspended, or otherwise not imposed, by | ||
offense code and incident number; and | ||
(2) if a sentence or portion of a sentence of | ||
imprisonment was deferred, probated, suspended, or otherwise not | ||
imposed: | ||
(A) the offense, the sentence, and the amount of | ||
the sentence deferred, probated, suspended, or otherwise not | ||
imposed; | ||
(B) a statement of whether any return to | ||
imprisonment or confinement was a condition of community | ||
supervision or an alternative sentence; | ||
(C) the community supervision and corrections | ||
department exercising jurisdiction over the offender; | ||
(D) the date the offender was received by a | ||
community supervision and corrections department; | ||
(E) any program in which the offender is placed | ||
or has previously been placed and the level of supervision on which | ||
the offender is placed while under the jurisdiction of a community | ||
supervision and corrections department; | ||
(F) the date a program described by Paragraph (E) | ||
begins, the date the program ends, and whether the program was | ||
completed successfully; | ||
(G) the date a level of supervision described by | ||
Paragraph (E) begins and the date the level of supervision ends; | ||
(H) if the offender's community supervision is | ||
revoked: | ||
(i) the reason for the revocation and the | ||
date of revocation, by offense code and incident number; and | ||
(ii) other current sentences of community | ||
supervision or other alternatives to confinement that have not been | ||
revoked, by offense code and incident number; and | ||
(I) the date of the offender's release from the | ||
community supervision and corrections department. | ||
(c) Information in the corrections tracking system relating | ||
to the handling of offenders must include the following information | ||
about each imprisonment, confinement, or execution of an offender: | ||
(1) the date of the imprisonment or confinement; | ||
(2) if the offender was sentenced to death: | ||
(A) the date of execution; and | ||
(B) if the death sentence was commuted, the | ||
sentence to which the sentence of death was commuted and the date of | ||
commutation; | ||
(3) the date the offender was released from | ||
imprisonment or confinement and whether the release was a discharge | ||
or a release on parole or to mandatory supervision; | ||
(4) if the offender is released on parole or to | ||
mandatory supervision: | ||
(A) the offense for which the offender was | ||
convicted, by offense code and incident number; | ||
(B) the date the offender was received by an | ||
office of the parole division of the Texas Department of Criminal | ||
Justice; | ||
(C) the county in which the offender resides | ||
while under supervision; | ||
(D) any program in which the offender is placed | ||
or has previously been placed and the level of supervision on which | ||
the offender is placed while under the jurisdiction of the parole | ||
division; | ||
(E) the date a program described by Paragraph (D) | ||
begins, the date the program ends, and whether the program was | ||
completed successfully; | ||
(F) the date a level of supervision described by | ||
Paragraph (D) begins and the date the level of supervision ends; | ||
(G) if the offender's release status is revoked, | ||
the reason for the revocation and the date of revocation; | ||
(H) the expiration date of the sentence; and | ||
(I) the date on which the offender is: | ||
(i) released from the parole division; or | ||
(ii) granted clemency; and | ||
(5) if the offender is released under Article | ||
42A.202(b), the date of the offender's release. (Code Crim. Proc., | ||
Art. 60.052.) | ||
SUBCHAPTER E. ACCESS TO INFORMATION IN CRIMINAL JUSTICE | ||
INFORMATION SYSTEM | ||
Art. 66.201. ACCESS TO DATABASES BY CRIMINAL JUSTICE | ||
AGENCIES AND OTHER ENTITIES. (a) Criminal justice agencies, the | ||
Legislative Budget Board, and the council are entitled to access | ||
the databases of the Department of Public Safety, the Texas | ||
Juvenile Justice Department, and the Texas Department of Criminal | ||
Justice in accordance with applicable state or federal law or | ||
regulations. | ||
(b) The access granted by this article does not entitle a | ||
criminal justice agency, the Legislative Budget Board, or the | ||
council to add, delete, or alter data maintained by another agency. | ||
(Code Crim. Proc., Art. 60.03(a).) | ||
Art. 66.202. REQUEST FOR DATA FILE FROM DATABASES. | ||
(a) The council or the Legislative Budget Board may submit to the | ||
Department of Public Safety, the Texas Juvenile Justice Department, | ||
and the Texas Department of Criminal Justice an annual request for a | ||
data file containing data elements from the departments' systems. | ||
(b) The Department of Public Safety, the Texas Juvenile | ||
Justice Department, and the Texas Department of Criminal Justice | ||
shall provide the council and the Legislative Budget Board with the | ||
data file for the period requested, in accordance with state and | ||
federal law and regulations. | ||
(c) If the council submits a data file request other than | ||
the annual data file request, the director of the agency | ||
maintaining the requested records must approve the request. | ||
(d) The Legislative Budget Board may submit a data file | ||
request other than the annual data file request without the | ||
approval of the director of the agency maintaining the requested | ||
records. (Code Crim. Proc., Art. 60.03(b).) | ||
Art. 66.203. PUBLIC DISCLOSURE OF DATA PROHIBITED. A | ||
criminal justice agency, the council, and the Legislative Budget | ||
Board may not disclose to the public information in an individual's | ||
criminal history record if the record is protected by state or | ||
federal law or regulation. (Code Crim. Proc., Art. 60.03(c).) | ||
SUBCHAPTER F. DATA COLLECTION AND SUBMISSION | ||
Art. 66.251. UNIFORM INCIDENT FINGERPRINT CARD. (a) The | ||
Department of Public Safety, in consultation with the council, | ||
shall design, print, and distribute a uniform incident fingerprint | ||
card to each law enforcement agency in this state. | ||
(b) The uniform incident fingerprint card must be: | ||
(1) serially numbered with an incident number in such | ||
a manner that the individual incident of arrest may be readily | ||
ascertained; and | ||
(2) a multiple-part form that: | ||
(A) has space for information relating to each | ||
charge for which a person is arrested, the person's fingerprints, | ||
and other information relevant to the arrest; | ||
(B) can be transmitted with the offender through | ||
the criminal justice process; and | ||
(C) allows each law enforcement agency to report | ||
required data to the Department of Public Safety or the Texas | ||
Department of Criminal Justice. | ||
(c) Subject to available telecommunications capacity, the | ||
Department of Public Safety shall develop the capability to receive | ||
the information on the uniform incident fingerprint card by | ||
electronic means from a law enforcement agency. The information | ||
must be in a form that is compatible with the form required for data | ||
supplied to the criminal justice information system. (Code Crim. | ||
Proc., Arts. 60.01(15), 60.07.) | ||
Art. 66.252. REPORTING OF INFORMATION BY LOCAL ENTITIES. | ||
(a) The Department of Public Safety and the Texas Department of | ||
Criminal Justice by rule shall develop reporting procedures that: | ||
(1) ensure that the offender processing data is | ||
reported from the time an offender is arrested until the time an | ||
offender is released; and | ||
(2) provide measures and policies designed to identify | ||
and eliminate redundant reporting of information to the criminal | ||
justice information system. | ||
(b) The arresting law enforcement agency shall prepare a | ||
uniform incident fingerprint card described by Article 66.251 and | ||
initiate the reporting process for each offender charged with a | ||
felony or a misdemeanor other than a misdemeanor punishable by fine | ||
only. | ||
(c) The clerk of the court exercising jurisdiction over a | ||
case shall report the disposition of the case to the Department of | ||
Public Safety. | ||
(d) Except as provided by Subsection (e) or as otherwise | ||
required by applicable state law or rule, information or data | ||
required by this chapter to be reported to the Department of Public | ||
Safety or the Texas Department of Criminal Justice shall be | ||
reported promptly but not later than the 30th day after the date on | ||
which the information or data is received by the agency responsible | ||
for reporting it. | ||
(e) An offender's arrest shall be reported to the Department | ||
of Public Safety not later than the seventh day after the date of | ||
the arrest. | ||
(f) A court that orders the release of an offender under | ||
Article 42A.202(b) when the offender is under a bench warrant and | ||
not physically imprisoned in the Texas Department of Criminal | ||
Justice shall report the release to the department not later than | ||
the seventh day after the date of the release. (Code Crim. Proc., | ||
Art. 60.08.) | ||
Art. 66.253. COMPATIBILITY OF DATA. (a) Data supplied to | ||
the criminal justice information system must: | ||
(1) be compatible with the system; and | ||
(2) contain both incident numbers and state | ||
identification numbers. | ||
(b) A discrete submission of information under this chapter | ||
must contain, in conjunction with the required information, the | ||
person's name and state identification number. (Code Crim. Proc., | ||
Art. 60.04.) | ||
Art. 66.254. ELECTRONIC REPORTING OF INFORMATION. Whenever | ||
possible, information relating to dispositions and subsequent | ||
offender processing data shall be reported electronically. (Code | ||
Crim. Proc., Art. 60.02(h).) | ||
Art. 66.255. INFORMATION ON SUBSEQUENT ARRESTS. The | ||
Department of Public Safety and the Texas Department of Criminal | ||
Justice shall develop the capability to send by electronic means | ||
information about the subsequent arrest of a person under | ||
supervision to: | ||
(1) the community supervision and corrections | ||
department serving the court of original jurisdiction; or | ||
(2) the district parole office supervising the person. | ||
(Code Crim. Proc., Art. 60.18.) | ||
SUBCHAPTER G. DUTIES OF CRIMINAL JUSTICE AGENCIES AND CERTAIN | ||
COURT CLERKS | ||
Art. 66.301. DUTIES OF CRIMINAL JUSTICE AGENCIES. (a) Each | ||
criminal justice agency shall: | ||
(1) compile and maintain records needed for reporting | ||
data required by the Department of Public Safety and the Texas | ||
Department of Criminal Justice; | ||
(2) transmit to the Department of Public Safety and | ||
the Texas Department of Criminal Justice, when and in the manner | ||
each department directs, all data required by the appropriate | ||
department; | ||
(3) give the Department of Public Safety and the Texas | ||
Department of Criminal Justice, or the departments' accredited | ||
agents, access to the agency for the purpose of inspection to | ||
determine the completeness and accuracy of data reported; | ||
(4) cooperate with the Department of Public Safety and | ||
the Texas Department of Criminal Justice so that each department | ||
may properly and efficiently perform the department's duties under | ||
this chapter; and | ||
(5) cooperate with the Department of Public Safety | ||
and the Texas Department of Criminal Justice to identify and | ||
eliminate redundant reporting of information to the criminal | ||
justice information system. | ||
(b) An optical disk or other technology may be used instead | ||
of microfilm as a medium to store information if allowed by the | ||
applicable state laws or rules relating to the archiving of state | ||
agency information. (Code Crim. Proc., Arts. 60.06(a), (d).) | ||
Art. 66.302. PUBLIC DISCLOSURE NOT AUTHORIZED. (a) An | ||
individual's identifiable description or a notation of an | ||
individual's arrest, detention, indictment, information, or other | ||
formal criminal charge and of any disposition of the charge, | ||
including sentencing, correctional supervision, and release, that | ||
is collected and compiled by the Department of Public Safety or the | ||
Texas Department of Criminal Justice from criminal justice agencies | ||
and maintained in a central location is not subject to public | ||
disclosure except as authorized by federal or state law or | ||
regulation. | ||
(b) Subsection (a) does not apply to a document maintained | ||
by a criminal justice agency that is the source of information | ||
collected by the Department of Public Safety or the Texas | ||
Department of Criminal Justice. Each criminal justice agency shall | ||
retain the documents described by this subsection. (Code Crim. | ||
Proc., Arts. 60.06(b), (c).) | ||
Art. 66.303. PROHIBITED ACTS. An agency official may not | ||
intentionally conceal or destroy any record with the intent to | ||
violate this subchapter. (Code Crim. Proc., Art. 60.06(e).) | ||
Art. 66.304. APPLICABILITY TO DISTRICT COURT AND COUNTY | ||
COURT CLERKS. The duties imposed on a criminal justice agency under | ||
this subchapter are also imposed on district court and county court | ||
clerks. (Code Crim. Proc., Art. 60.06(f).) | ||
SUBCHAPTER H. OVERSIGHT AND REPORTING | ||
Art. 66.351. BIENNIAL PLANS. The Department of Public | ||
Safety and the Texas Department of Criminal Justice, with advice | ||
from the council and the Department of Information Resources, shall | ||
develop biennial plans to: | ||
(1) improve the reporting and accuracy of the criminal | ||
justice information system; and | ||
(2) develop and maintain monitoring systems capable of | ||
identifying missing information. (Code Crim. Proc., Art. | ||
60.02(i).) | ||
Art. 66.352. EXAMINATION OF RECORDS AND OPERATIONS. (a) At | ||
least once during each five-year period, the council shall | ||
coordinate an examination of the records and operations of the | ||
criminal justice information system to ensure: | ||
(1) the accuracy and completeness of information in | ||
the system; and | ||
(2) the promptness of information reporting. | ||
(b) The state auditor or other appropriate entity selected | ||
by the council shall conduct the examination under Subsection (a) | ||
with the cooperation of the council, the Department of Public | ||
Safety, and the Texas Department of Criminal Justice. | ||
(c) The council, the Department of Public Safety, and the | ||
Texas Department of Criminal Justice may examine the records of the | ||
agencies required to report information to the Department of Public | ||
Safety or the Texas Department of Criminal Justice. | ||
(d) The examining entity under Subsection (b) shall submit | ||
to the legislature and the council a report that summarizes the | ||
findings of each examination and contains recommendations for | ||
improving the criminal justice information system. | ||
(e) Not later than the first anniversary of the date the | ||
examining entity under Subsection (b) submits a report under | ||
Subsection (d), the Department of Public Safety shall report to the | ||
Legislative Budget Board, the governor, and the council the | ||
department's progress in implementing the examining entity's | ||
recommendations, including the reason for not implementing any | ||
recommendation. | ||
(f) Each year following the submission of the report | ||
described by Subsection (e), the Department of Public Safety shall | ||
submit a similar report until each of the examining entity's | ||
recommendations is implemented. | ||
(g) Notwithstanding any other provision of this article, | ||
work performed under this article by the state auditor is subject to | ||
approval by the legislative audit committee for inclusion in the | ||
audit plan under Section 321.013(c), Government Code. (Code Crim. | ||
Proc., Arts. 60.02(j), (m).) | ||
Art. 66.353. MONITORING AND REPORTING DUTIES OF DEPARTMENT | ||
OF PUBLIC SAFETY. (a) The Department of Public Safety shall: | ||
(1) monitor the submission of arrest and disposition | ||
information by local jurisdictions; | ||
(2) annually submit to the Legislative Budget Board, | ||
the governor, the lieutenant governor, the state auditor, and the | ||
standing committees in the senate and house of representatives with | ||
primary jurisdiction over criminal justice and the department a | ||
report regarding the level of reporting by local jurisdictions; | ||
(3) identify local jurisdictions that do not report | ||
arrest or disposition information or that partially report | ||
information; and | ||
(4) for use in determining the status of outstanding | ||
dispositions, publish monthly on the department's Internet website | ||
or in another electronic publication a report listing by local | ||
jurisdiction each arrest for which there is no corresponding final | ||
court disposition. | ||
(b) The report described by Subsection (a)(2) must contain a | ||
disposition completeness percentage for each county in this state. | ||
For purposes of this subsection, "disposition completeness | ||
percentage" means the percentage of arrest charges a county reports | ||
to the Department of Public Safety, to be entered in the | ||
computerized criminal history system under this chapter, that were | ||
brought against a person in the county and for which a disposition | ||
has been subsequently reported and entered in the computerized | ||
criminal history system. (Code Crim. Proc., Arts. 60.21(b), (c).) | ||
Art. 66.354. LOCAL DATA ADVISORY BOARDS. (a) The | ||
commissioners court of each county may create a local data advisory | ||
board to: | ||
(1) analyze the structure of local automated and | ||
manual data systems to identify redundant data entry and data | ||
storage; | ||
(2) develop recommendations for the commissioners to | ||
improve the local data systems; | ||
(3) develop recommendations, when appropriate, for | ||
the effective electronic transfer of required data from local | ||
agencies to state agencies; and | ||
(4) perform any related duties to be determined by the | ||
commissioners court. | ||
(b) Local officials responsible for collecting, storing, | ||
reporting, and using data may be appointed to a local data advisory | ||
board. | ||
(c) The council and the Department of Public Safety shall, | ||
to the extent that resources allow, provide technical assistance | ||
and advice on the request of a local data advisory board. (Code | ||
Crim. Proc., Art. 60.09.) | ||
SUBCHAPTER I. GRANTS | ||
Art. 66.401. GRANTS FOR CRIMINAL JUSTICE PROGRAMS. The | ||
council, the Department of Public Safety, the criminal justice | ||
division of the governor's office, and the Department of | ||
Information Resources cooperatively shall develop and adopt a grant | ||
program, to be implemented by the criminal justice division at a | ||
time and in a manner determined by the division, to aid local law | ||
enforcement agencies, prosecutors, and court personnel in | ||
obtaining equipment and training necessary to operate a | ||
telecommunications network capable of: | ||
(1) making inquiries to and receiving responses from | ||
the statewide automated fingerprint identification system and from | ||
the computerized criminal history system; and | ||
(2) transmitting information to those systems. (Code | ||
Crim. Proc., Art. 60.02(k).) | ||
Art. 66.402. CERTIFICATION REQUIRED. Before allocating | ||
money to a county from any federal or state grant program for the | ||
enhancement of criminal justice programs, an agency of the state | ||
must certify that, using all or part of the allocated money, the | ||
county has taken or will take all action necessary to provide the | ||
Department of Public Safety and the Texas Department of Criminal | ||
Justice any criminal history records maintained by the county in | ||
the manner specified for purposes of those departments. (Code | ||
Crim. Proc., Art. 60.14.) | ||
SECTION 1.04. Title 1, Code of Criminal Procedure, is amended by adding Chapter 67 to read as follows: | ||
CHAPTER 67. COMPILATION OF INFORMATION PERTAINING TO COMBINATIONS | ||
AND CRIMINAL STREET GANGS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 67.001. DEFINITIONS | ||
SUBCHAPTER B. INTELLIGENCE DATABASES | ||
Art. 67.051. INTELLIGENCE DATABASES REQUIRED | ||
Art. 67.052. DEPARTMENT INTELLIGENCE DATABASE | ||
Art. 67.053. INTELLIGENCE DATABASE USER TRAINING; | ||
RULES | ||
Art. 67.054. SUBMISSION CRITERIA | ||
SUBCHAPTER C. RELEASE AND USE OF INFORMATION | ||
Art. 67.101. RELEASE AND USE OF INFORMATION | ||
Art. 67.102. CRIMINAL INFORMATION RELATING TO CHILD | ||
Art. 67.103. UNAUTHORIZED RELEASE OR USE OF CRIMINAL | ||
INFORMATION; PENALTY | ||
SUBCHAPTER D. REMOVAL OF INFORMATION | ||
Art. 67.151. REMOVAL OF INFORMATION RELATING TO | ||
INDIVIDUAL OTHER THAN CHILD | ||
Art. 67.152. REMOVAL OF INFORMATION RELATING TO CHILD | ||
SUBCHAPTER E. RIGHTS OF SUBJECT OF CRIMINAL INFORMATION | ||
Art. 67.201. RIGHT TO REQUEST EXISTENCE OF CRIMINAL | ||
INFORMATION | ||
Art. 67.202. RIGHT TO REQUEST REVIEW OF CRIMINAL | ||
INFORMATION | ||
Art. 67.203. JUDICIAL REVIEW | ||
SUBCHAPTER F. GANG RESOURCE SYSTEM | ||
Art. 67.251. ESTABLISHMENT OF GANG RESOURCE SYSTEM | ||
Art. 67.252. INFORMATION INCLUDED IN GANG RESOURCE | ||
SYSTEM | ||
Art. 67.253. INCLUSION OF CERTAIN INFORMATION PROHIBITED | ||
Art. 67.254. COLLECTION OF INFORMATION | ||
Art. 67.255. USE OF INFORMATION | ||
Art. 67.256. ACCESS TO INFORMATION | ||
SUBCHAPTER G. TEXAS VIOLENT GANG TASK FORCE | ||
Art. 67.301. DEFINITION | ||
Art. 67.302. PURPOSE | ||
Art. 67.303. TASK FORCE MEMBERS | ||
Art. 67.304. DUTIES OF TASK FORCE | ||
Art. 67.305. DUTIES OF DEPARTMENT REGARDING TASK FORCE | ||
CHAPTER 67. COMPILATION OF INFORMATION PERTAINING TO COMBINATIONS | ||
AND CRIMINAL STREET GANGS | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Art. 67.001. DEFINITIONS. In this chapter: | ||
(1) "Administration of criminal justice" has the | ||
meaning assigned by Article 66.001. | ||
(2) "Child" has the meaning assigned by Section 51.02, | ||
Family Code. | ||
(3) "Combination" has the meaning assigned by Section | ||
71.01, Penal Code. | ||
(4) "Criminal activity" means conduct that is subject | ||
to prosecution. | ||
(5) "Criminal information" means facts, material, | ||
photographs, or data reasonably related to the investigation or | ||
prosecution of criminal activity. | ||
(6) "Criminal justice agency" means: | ||
(A) an entity defined as a criminal justice | ||
agency under Article 66.001; or | ||
(B) a municipal or county agency, or school | ||
district law enforcement agency, that is engaged in the | ||
administration of criminal justice under a statute or executive | ||
order. | ||
(7) "Criminal street gang" has the meaning assigned by | ||
Section 71.01, Penal Code. | ||
(8) "Department" means the Department of Public Safety | ||
of the State of Texas. | ||
(9) "Intelligence database" means a collection or | ||
compilation of data organized for search and retrieval to evaluate, | ||
analyze, disseminate, or use intelligence information relating to a | ||
combination or criminal street gang for the purpose of | ||
investigating or prosecuting a criminal offense. | ||
(10) "Juvenile justice agency" has the meaning | ||
assigned by Section 58.101, Family Code. | ||
(11) "Law enforcement agency" does not include the | ||
Texas Department of Criminal Justice, the Texas Juvenile Justice | ||
Department, or a local juvenile probation department. (Code Crim. | ||
Proc., Art. 61.01.) | ||
SUBCHAPTER B. INTELLIGENCE DATABASES | ||
Art. 67.051. INTELLIGENCE DATABASES REQUIRED. (a) Subject | ||
to Subsection (b), a criminal justice agency or juvenile justice | ||
agency shall compile criminal information into an intelligence | ||
database for the purpose of investigating or prosecuting the | ||
criminal activities of combinations or criminal street gangs. | ||
(b) A law enforcement agency in a municipality with a | ||
population of 50,000 or more or in a county with a population of | ||
100,000 or more shall compile and maintain in a local or regional | ||
intelligence database criminal information relating to a criminal | ||
street gang as provided by Subsection (a). The agency must compile | ||
and maintain the information in accordance with the criminal | ||
intelligence systems operating policies established under 28 | ||
C.F.R. Section 23.1 et seq. and the submission criteria established | ||
under Article 67.054(b). | ||
(c) Information described by this article may be compiled on | ||
paper, by computer, or in any other useful manner by a criminal | ||
justice agency, juvenile justice agency, or law enforcement agency. | ||
(d) A local law enforcement agency described by Subsection | ||
(b) shall send to the department information the agency compiles | ||
and maintains under this chapter. (Code Crim. Proc., Arts. | ||
61.02(a), (b), (b-1), 61.03(c).) | ||
Art. 67.052. DEPARTMENT INTELLIGENCE DATABASE. (a) The | ||
department shall establish an intelligence database and shall | ||
maintain information received from an agency under Article | ||
67.051(d) in the database in accordance with the criminal | ||
intelligence systems operating policies established under 28 | ||
C.F.R. Section 23.1 et seq. and the submission criteria under | ||
Article 67.054(b). | ||
(b) The department shall designate a code to distinguish | ||
criminal information relating to a child and contained in the | ||
department's intelligence database from criminal information | ||
relating to an adult offender and contained in the database. (Code | ||
Crim. Proc., Arts. 61.02(b) (part), 61.03(d), (e).) | ||
Art. 67.053. INTELLIGENCE DATABASE USER TRAINING; RULES. | ||
(a) The department shall enter into a memorandum of understanding | ||
with the United States Department of Justice or other appropriate | ||
federal department or agency to provide any person in this state who | ||
enters information into or retrieves information from an | ||
intelligence database described by this chapter with training | ||
regarding the operating principles described by 28 C.F.R. Part 23, | ||
as those principles relate to an intelligence database established | ||
or maintained under this chapter. | ||
(b) A person in this state who enters information into or | ||
retrieves information from an intelligence database described by | ||
this chapter shall complete continuing education training on the | ||
material described by Subsection (a) at least once for each | ||
continuous two-year period the person has primary responsibility | ||
for performing a function described by this subsection. | ||
(c) The department shall adopt rules necessary to implement | ||
this article. (Code Crim. Proc., Art. 61.12.) | ||
Art. 67.054. SUBMISSION CRITERIA. (a) In this article: | ||
(1) "Family member" means a person related to another | ||
person within the third degree by consanguinity or affinity, as | ||
described by Subchapter B, Chapter 573, Government Code, except | ||
that the term does not include a person who is considered to be | ||
related to another person by affinity only as described by Section | ||
573.024(b), Government Code. | ||
(2) "Penal institution" means: | ||
(A) a confinement facility operated by or under | ||
contract with any division of the Texas Department of Criminal | ||
Justice; | ||
(B) a confinement facility operated by or under | ||
contract with the Texas Juvenile Justice Department; | ||
(C) a juvenile secure pre-adjudication or | ||
post-adjudication facility operated by or under a local juvenile | ||
probation department; or | ||
(D) a county jail. | ||
(b) Criminal information collected under this chapter | ||
relating to a criminal street gang must: | ||
(1) be relevant to the identification of an | ||
organization that is reasonably suspected of involvement in | ||
criminal activity; and | ||
(2) consist of: | ||
(A) a judgment under any law that includes, as a | ||
finding or as an element of a criminal offense, participation in a | ||
criminal street gang; | ||
(B) a self-admission by an individual of criminal | ||
street gang membership that is made during a judicial proceeding; | ||
or | ||
(C) except as provided by Subsection (c), any two | ||
of the following: | ||
(i) a self-admission by the individual of | ||
criminal street gang membership that is not made during a judicial | ||
proceeding, including the use of the Internet or other electronic | ||
format or medium to post photographs or other documentation | ||
identifying the individual as a member of a criminal street gang; | ||
(ii) an identification of the individual as | ||
a criminal street gang member by a reliable informant or other | ||
individual; | ||
(iii) a corroborated identification of the | ||
individual as a criminal street gang member by an informant or other | ||
individual of unknown reliability; | ||
(iv) evidence that the individual frequents | ||
a documented area of a criminal street gang and associates with | ||
known criminal street gang members; | ||
(v) evidence that the individual uses, in | ||
more than an incidental manner, criminal street gang dress, hand | ||
signals, tattoos, or symbols, including expressions of letters, | ||
numbers, words, or marks, regardless of how or the means by which | ||
the symbols are displayed, that are associated with a criminal | ||
street gang that operates in an area frequented by the individual | ||
and described by Subparagraph (iv); | ||
(vi) evidence that the individual has been | ||
arrested or taken into custody with known criminal street gang | ||
members for an offense or conduct consistent with criminal street | ||
gang activity; | ||
(vii) evidence that the individual has | ||
visited a known criminal street gang member, other than a family | ||
member of the individual, while the gang member is confined in or | ||
committed to a penal institution; or | ||
(viii) evidence of the individual's use of | ||
technology, including the Internet, to recruit new criminal street | ||
gang members. | ||
(c) Evidence described by Subsections (b)(2)(C)(iv) and | ||
(vii) is not sufficient to create the eligibility of a person's | ||
information to be included in an intelligence database described by | ||
this chapter unless the evidence is combined with information | ||
described by another subparagraph of Subsection (b)(2)(C). (Code | ||
Crim. Proc., Arts. 61.02(c), (d), (e).) | ||
SUBCHAPTER C. RELEASE AND USE OF INFORMATION | ||
Art. 67.101. RELEASE AND USE OF INFORMATION. (a) On | ||
request, a criminal justice agency may release information | ||
maintained under this chapter to: | ||
(1) another criminal justice agency; | ||
(2) a court; or | ||
(3) a defendant in a criminal proceeding who is | ||
entitled to the discovery of the information under Chapter 39. | ||
(b) A criminal justice agency or court may use information | ||
received under this article or Article 67.051(d) or 67.052 only for | ||
the administration of criminal justice. | ||
(c) A defendant may use information received under this | ||
article or Article 67.051(d) or 67.052 only for a defense in a | ||
criminal proceeding. (Code Crim. Proc., Arts. 61.03(a), (b).) | ||
Art. 67.102. CRIMINAL INFORMATION RELATING TO CHILD. (a) | ||
Notwithstanding Chapter 58, Family Code, criminal information | ||
relating to a child associated with a combination or criminal | ||
street gang may be compiled and released under this chapter | ||
regardless of the age of the child. | ||
(b) A criminal justice agency or juvenile justice agency may | ||
release information maintained under this chapter to an attorney | ||
representing a child who is a party to a proceeding under Title 3, | ||
Family Code, if the juvenile court determines the information: | ||
(1) is material to the proceeding; and | ||
(2) is not privileged under law. | ||
(c) An attorney may use information received under this | ||
article only for a child's defense in a proceeding under Title 3, | ||
Family Code. | ||
(d) The governing body of a county or municipality served by | ||
a law enforcement agency described by Article 67.051(b) may adopt a | ||
policy to notify the parent or guardian of a child of the agency's | ||
observations relating to the child's association with a criminal | ||
street gang. (Code Crim. Proc., Art. 61.04.) | ||
Art. 67.103. UNAUTHORIZED RELEASE OR USE OF CRIMINAL | ||
INFORMATION; PENALTY. (a) A person commits an offense if the | ||
person knowingly: | ||
(1) uses criminal information obtained under this | ||
chapter for an unauthorized purpose; or | ||
(2) releases the information to a person who is not | ||
entitled to the information. | ||
(b) An offense under this article is a Class A misdemeanor. | ||
(Code Crim. Proc., Art. 61.05.) | ||
SUBCHAPTER D. REMOVAL OF INFORMATION | ||
Art. 67.151. REMOVAL OF INFORMATION RELATING TO INDIVIDUAL | ||
OTHER THAN CHILD. (a) This article does not apply to information | ||
collected under this chapter by the Texas Department of Criminal | ||
Justice or the Texas Juvenile Justice Department. | ||
(b) Subject to Subsection (c), information collected under | ||
this chapter relating to a criminal street gang must be removed | ||
after five years from an intelligence database established under | ||
Article 67.051 and the intelligence database maintained by the | ||
department under Article 67.052 if: | ||
(1) the information relates to the investigation or | ||
prosecution of criminal activity engaged in by an individual other | ||
than a child; and | ||
(2) the individual who is the subject of the | ||
information has not been arrested for criminal activity reported to | ||
the department under Chapter 66. | ||
(c) The five-year period described by Subsection (b) does | ||
not include any period during which the individual who is the | ||
subject of the information is: | ||
(1) confined in a correctional facility operated by or | ||
under contract with the Texas Department of Criminal Justice; | ||
(2) committed to a secure correctional facility, as | ||
defined by Section 51.02, Family Code, operated by or under | ||
contract with the Texas Juvenile Justice Department; or | ||
(3) confined in a county jail or confined in or | ||
committed to a facility operated by a juvenile board in lieu of | ||
being confined in a correctional facility described by Subdivision | ||
(1) or committed to a secure correctional facility described by | ||
Subdivision (2). (Code Crim. Proc., Art. 61.06.) | ||
Art. 67.152. REMOVAL OF INFORMATION RELATING TO CHILD. (a) | ||
This article does not apply to information collected under this | ||
chapter by the Texas Department of Criminal Justice or the Texas | ||
Juvenile Justice Department. | ||
(b) Subject to Subsection (c), information collected under | ||
this chapter relating to a criminal street gang must be removed | ||
after two years from an intelligence database established under | ||
Article 67.051 and the intelligence database maintained by the | ||
department under Article 67.052 if: | ||
(1) the information relates to the investigation or | ||
prosecution of criminal activity engaged in by a child; and | ||
(2) the child who is the subject of the information has | ||
not been: | ||
(A) arrested for criminal activity reported to | ||
the department under Chapter 66; or | ||
(B) taken into custody for delinquent conduct | ||
reported to the department under Chapter 58, Family Code. | ||
(c) The two-year period described by Subsection (b) does not | ||
include any period during which the child who is the subject of the | ||
information is: | ||
(1) committed to the Texas Juvenile Justice Department | ||
for conduct that violates a penal law of the grade of felony; or | ||
(2) confined in the Texas Department of Criminal | ||
Justice. (Code Crim. Proc., Art. 61.07.) | ||
SUBCHAPTER E. RIGHTS OF SUBJECT OF CRIMINAL INFORMATION | ||
Art. 67.201. RIGHT TO REQUEST EXISTENCE OF CRIMINAL | ||
INFORMATION. (a) A person or the parent or guardian of a child may | ||
request that a law enforcement agency determine whether the agency | ||
has collected or is maintaining, under submission criteria | ||
established under Article 67.054(b), criminal information relating | ||
solely to the person or child. The law enforcement agency shall | ||
respond to the request not later than the 10th business day after | ||
the date the agency receives the request. | ||
(b) Before responding to a request under Subsection (a), a | ||
law enforcement agency may require reasonable written verification | ||
of the identity of the person making the request and the | ||
relationship between the parent or guardian and the child, if | ||
applicable, including written verification of an address, date of | ||
birth, driver's license number, state identification card number, | ||
or social security number. (Code Crim. Proc., Art. 61.075.) | ||
Art. 67.202. RIGHT TO REQUEST REVIEW OF CRIMINAL | ||
INFORMATION. (a) On receipt of a written request of a person or the | ||
parent or guardian of a child that includes a showing by the person | ||
or the parent or guardian that a law enforcement agency may have | ||
collected criminal information under this chapter relating to the | ||
person or child that is inaccurate or does not comply with the | ||
submission criteria under Article 67.054(b), the head of the agency | ||
or the designee of the agency head shall review criminal | ||
information collected by the agency under this chapter relating to | ||
the person or child to determine if: | ||
(1) reasonable suspicion exists to believe that the | ||
information is accurate; and | ||
(2) the information complies with the submission | ||
criteria established under Article 67.054(b). | ||
(b) If, after conducting a review of criminal information | ||
under Subsection (a), the agency head or designee determines that | ||
reasonable suspicion does not exist to believe that the information | ||
is accurate, or determines that the information does not comply | ||
with the submission criteria, the agency shall: | ||
(1) destroy all records containing the information; | ||
and | ||
(2) notify the department and the person who requested | ||
the review of the agency's determination and the destruction of the | ||
records. | ||
(c) If, after conducting a review of criminal information | ||
under Subsection (a), the agency head or designee determines that | ||
reasonable suspicion exists to believe that the information is | ||
accurate, and determines that the information complies with the | ||
submission criteria, the agency shall notify the person who | ||
requested the review: | ||
(1) of the agency's determination; and | ||
(2) that the person is entitled to seek judicial | ||
review of the agency's determination under Article 67.203. | ||
(d) On receipt of notice under Subsection (b)(2), the | ||
department immediately shall destroy all records containing the | ||
information that is the subject of the notice in the intelligence | ||
database maintained by the department under Article 67.052. | ||
(e) A person who is committed to the Texas Juvenile Justice | ||
Department or confined in the Texas Department of Criminal Justice | ||
does not, while committed or confined, have the right to request | ||
review of criminal information under this article. (Code Crim. | ||
Proc., Art. 61.08.) | ||
Art. 67.203. JUDICIAL REVIEW. (a) A person who is entitled | ||
to seek judicial review of a determination made under Article | ||
67.202(c) may file a petition for review in district court in the | ||
county in which the person resides. | ||
(b) On the filing of a petition for review under Subsection | ||
(a), the district court shall conduct an in camera review of the | ||
criminal information that is the subject of the determination to | ||
determine if: | ||
(1) reasonable suspicion exists to believe that the | ||
information is accurate; and | ||
(2) the information complies with the submission | ||
criteria under Article 67.054(b). | ||
(c) If, after conducting an in camera review of criminal | ||
information under Subsection (b), the court finds that reasonable | ||
suspicion does not exist to believe that the information is | ||
accurate, or finds that the information does not comply with the | ||
submission criteria, the court shall: | ||
(1) order the law enforcement agency that collected | ||
the information to destroy all records containing the information; | ||
and | ||
(2) notify the department of the court's determination | ||
and the destruction of the records. | ||
(d) A petitioner may appeal a final judgment of a district | ||
court conducting an in camera review under this article. | ||
(e) Information that is the subject of an in camera review | ||
under this article is confidential and may not be disclosed. (Code | ||
Crim. Proc., Art. 61.09.) | ||
SUBCHAPTER F. GANG RESOURCE SYSTEM | ||
Art. 67.251. ESTABLISHMENT OF GANG RESOURCE SYSTEM. The | ||
office of the attorney general shall establish an electronic gang | ||
resource system to provide criminal justice agencies and juvenile | ||
justice agencies with information about criminal street gangs in | ||
this state. (Code Crim. Proc., Art. 61.11(a) (part).) | ||
Art. 67.252. INFORMATION INCLUDED IN GANG RESOURCE SYSTEM. | ||
(a) The gang resource system established under Article 67.251 may | ||
include the following information with regard to any gang: | ||
(1) gang name; | ||
(2) gang identifiers, such as colors used, tattoos, | ||
and clothing preferences; | ||
(3) criminal activities; | ||
(4) migration trends; | ||
(5) recruitment activities; and | ||
(6) a local law enforcement contact. | ||
(b) Information in the gang resource system shall be | ||
accessible according to: | ||
(1) municipality or county; and | ||
(2) gang name. | ||
(c) The office of the attorney general may coordinate with | ||
the Texas Department of Criminal Justice to include information in | ||
the gang resource system regarding groups that have been identified | ||
by the Security Threat Group Management Office of the Texas | ||
Department of Criminal Justice. (Code Crim. Proc., Arts. 61.11(a) | ||
(part), (g), (h).) | ||
Art. 67.253. INCLUSION OF CERTAIN INFORMATION PROHIBITED. | ||
Information relating to the identity of a specific offender or | ||
alleged offender may not be maintained in the gang resource system. | ||
(Code Crim. Proc., Art. 61.11(d).) | ||
Art. 67.254. COLLECTION OF INFORMATION. (a) On request by | ||
the office of the attorney general, a criminal justice agency or | ||
juvenile justice agency shall make a reasonable attempt to provide | ||
gang information to the office of the attorney general for the | ||
purpose of maintaining an updated, comprehensive gang resource | ||
system. | ||
(b) The office of the attorney general shall cooperate with | ||
criminal justice agencies and juvenile justice agencies in | ||
collecting and maintaining the accuracy of the information included | ||
in the gang resource system. (Code Crim. Proc., Arts. 61.11(b), | ||
(c).) | ||
Art. 67.255. USE OF INFORMATION. Information in the gang | ||
resource system may be used in investigating gang-related crimes. | ||
Information from the system may be included in an affidavit or | ||
subpoena or used in connection with any other legal or judicial | ||
proceeding only if the information is corroborated by information | ||
not provided by or maintained in the system. (Code Crim. Proc., | ||
Art. 61.11(e).) | ||
Art. 67.256. ACCESS TO INFORMATION. Access to the gang | ||
resource system shall be limited to criminal justice agency | ||
personnel and juvenile justice agency personnel. (Code Crim. | ||
Proc., Art. 61.11(f).) | ||
SUBCHAPTER G. TEXAS VIOLENT GANG TASK FORCE | ||
Art. 67.301. DEFINITION. In this subchapter, "task force" | ||
means the Texas Violent Gang Task Force. (Code Crim. Proc., Art. | ||
61.10(a).) | ||
Art. 67.302. PURPOSE. The purpose of the task force is to | ||
form a strategic partnership among local, state, and federal | ||
criminal justice, juvenile justice, and correctional agencies to | ||
better enable those agencies to take a proactive stance toward | ||
tracking gang activity and the growth and spread of gangs | ||
statewide. (Code Crim. Proc., Art. 61.10(b).) | ||
Art. 67.303. TASK FORCE MEMBERS. The task force shall | ||
consist of: | ||
(1) a representative of the department designated by | ||
the director of the department; | ||
(2) two representatives of the Texas Department of | ||
Criminal Justice, including a representative of the parole | ||
division, designated by the executive director of that agency; | ||
(3) a representative of the office of the inspector | ||
general of the Texas Department of Criminal Justice designated by | ||
the inspector general; | ||
(4) two representatives of the Texas Juvenile Justice | ||
Department designated by the executive director of that agency; | ||
(5) a representative of the office of the attorney | ||
general designated by the attorney general; | ||
(6) six representatives who are local law enforcement | ||
officers or local community supervision personnel, including | ||
juvenile probation personnel, designated by the governor; | ||
(7) two representatives who are local prosecutors | ||
designated by the governor; and | ||
(8) a representative of the Texas Alcoholic Beverage | ||
Commission designated by the executive director of that agency. | ||
(Code Crim. Proc., Art. 61.10(f).) | ||
Art. 67.304. DUTIES OF TASK FORCE. (a) The task force | ||
shall focus its efforts on: | ||
(1) developing, through regional task force meetings, | ||
a statewide networking system that will provide timely access to | ||
gang information; | ||
(2) establishing communication between different | ||
criminal justice, juvenile justice, and correctional agencies, | ||
combining independent agency resources, and joining agencies | ||
together in a cooperative effort to focus on gang membership, gang | ||
activity, and gang migration trends; and | ||
(3) forming a working group of criminal justice, | ||
juvenile justice, and correctional representatives from throughout | ||
this state to discuss specific cases and investigations involving | ||
gangs and other related gang activities. | ||
(b) The task force may take any other actions necessary to | ||
accomplish the purposes of this subchapter. | ||
(c) If practicable, the task force shall consult with | ||
representatives from one or more United States attorneys' offices | ||
in this state and with representatives from the following federal | ||
agencies who are available and assigned to a duty station in this | ||
state: | ||
(1) the Federal Bureau of Investigation; | ||
(2) the Federal Bureau of Prisons; | ||
(3) the United States Drug Enforcement | ||
Administration; | ||
(4) United States Immigration and Customs | ||
Enforcement; | ||
(5) United States Customs and Border Protection; | ||
(6) the Bureau of Alcohol, Tobacco, Firearms and | ||
Explosives; | ||
(7) the United States Marshals Service; and | ||
(8) the United States Probation and Pretrial Services | ||
System. (Code Crim. Proc., Arts. 61.10(c), (d), (g).) | ||
Art. 67.305. DUTIES OF DEPARTMENT REGARDING TASK FORCE. | ||
The department shall support the task force to assist in | ||
coordinating statewide antigang initiatives. (Code Crim. Proc., | ||
Art. 61.10(e).) | ||
ARTICLE 2. CONFORMING AMENDMENTS FOR ARTICLES 18.20 AND 18.21, | ||
CODE OF CRIMINAL PROCEDURE: CHAPTER 16, PENAL CODE | ||
SECTION 2.01. Sections 16.02(a), (b), (c), (d), (e), and | ||
(e-1), Penal Code, are amended to read as follows: | ||
(a) In this section: | ||
(1) "Communication [ |
||
|
||
"contents," "covert entry," "electronic communication," | ||
[ |
||
|
||
"investigative or law enforcement officer," [ |
||
|
||
|
||
computer," [ |
||
communication" have the meanings assigned by [ |
||
Article 18A.001 [ |
||
(2) "Immediate life-threatening situation" and | ||
"member of a law enforcement unit specially trained to respond to | ||
and deal with life-threatening situations" have the meanings | ||
assigned by Article 18A.201, Code of Criminal Procedure. | ||
(3) "Readily accessible to the general public" means, | ||
with respect to a radio communication, a communication that is not: | ||
(A) scrambled or encrypted; | ||
(B) transmitted using modulation techniques | ||
whose essential parameters have been withheld from the public with | ||
the intention of preserving the privacy of the communication; | ||
(C) carried on a subcarrier or other signal | ||
subsidiary to a radio transmission; | ||
(D) transmitted over a communication system | ||
provided by a common carrier, unless the communication is a | ||
tone-only paging system communication; | ||
(E) transmitted on frequencies allocated under | ||
Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of the | ||
Federal Communications Commission, unless, in the case of a | ||
communication transmitted on a frequency allocated under Part 74 | ||
that is not exclusively allocated to broadcast auxiliary services, | ||
the communication is a two-way voice communication by radio; or | ||
(F) an electronic communication. | ||
(b) A person commits an offense if the person: | ||
(1) intentionally intercepts, endeavors to intercept, | ||
or procures another person to intercept or endeavor to intercept a | ||
wire, oral, or electronic communication; | ||
(2) intentionally discloses or endeavors to disclose | ||
to another person the contents of a wire, oral, or electronic | ||
communication if the person knows or has reason to know the | ||
information was obtained through the interception of a wire, oral, | ||
or electronic communication in violation of this subsection; | ||
(3) intentionally uses or endeavors to use the | ||
contents of a wire, oral, or electronic communication if the person | ||
knows or is reckless about whether the information was obtained | ||
through the interception of a wire, oral, or electronic | ||
communication in violation of this subsection; | ||
(4) knowingly or intentionally effects a covert entry | ||
for the purpose of intercepting wire, oral, or electronic | ||
communications without court order or authorization; or | ||
(5) intentionally uses, endeavors to use, or procures | ||
any other person to use or endeavor to use any interception | ||
[ |
||
communication when the device: | ||
(A) is affixed to, or otherwise transmits a | ||
signal through a wire, cable, or other connection used in wire | ||
communications; or | ||
(B) transmits communications by radio or | ||
interferes with the transmission of communications by radio. | ||
(c) It is an affirmative defense to prosecution under | ||
Subsection (b) that: | ||
(1) an operator of a switchboard or an officer, | ||
employee, or agent of a communication common carrier whose | ||
facilities are used in the transmission of a wire or electronic | ||
communication intercepts a communication or discloses or uses an | ||
intercepted communication in the normal course of employment while | ||
engaged in an activity that is a necessary incident to the rendition | ||
of service or to the protection of the rights or property of the | ||
carrier of the communication, unless the interception results from | ||
the communication common carrier's use of service observing or | ||
random monitoring for purposes other than mechanical or service | ||
quality control checks; | ||
(2) an officer, employee, or agent of a communication | ||
common carrier provides information, facilities, or technical | ||
assistance to an investigative or law enforcement officer who is | ||
authorized as provided by this section to intercept a wire, oral, or | ||
electronic communication; | ||
(3) a person acting under color of law intercepts: | ||
(A) a wire, oral, or electronic communication, if | ||
the person is a party to the communication or if one of the parties | ||
to the communication has given prior consent to the interception; | ||
(B) a wire, oral, or electronic communication, if | ||
the person is acting under the authority of Chapter 18A [ |
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|
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(C) a wire or electronic communication made by a | ||
computer trespasser and transmitted to, through, or from a | ||
protected computer, if: | ||
(i) the interception did not acquire a | ||
communication other than one transmitted to or from the computer | ||
trespasser; | ||
(ii) the owner of the protected computer | ||
consented to the interception of the computer trespasser's | ||
communications on the protected computer; and | ||
(iii) the actor was lawfully engaged in an | ||
ongoing criminal investigation and the actor had reasonable | ||
suspicion to believe that the contents of the computer trespasser's | ||
communications likely to be obtained would be material to the | ||
investigation; | ||
(4) a person not acting under color of law intercepts a | ||
wire, oral, or electronic communication, if: | ||
(A) the person is a party to the communication; | ||
or | ||
(B) one of the parties to the communication has | ||
given prior consent to the interception, unless the communication | ||
is intercepted for the purpose of committing an unlawful act; | ||
(5) a person acting under color of law intercepts a | ||
wire, oral, or electronic communication if: | ||
(A) oral or written consent for the interception | ||
is given by a magistrate before the interception; | ||
(B) an immediate life-threatening situation | ||
exists; | ||
(C) the person is a member of a law enforcement | ||
unit specially trained to: | ||
(i) respond to and deal with | ||
life-threatening situations; or | ||
(ii) install interception [ |
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|
||
(D) the interception ceases immediately on | ||
termination of the life-threatening situation; | ||
(6) an officer, employee, or agent of the Federal | ||
Communications Commission intercepts a communication transmitted | ||
by radio or discloses or uses an intercepted communication in the | ||
normal course of employment and in the discharge of the monitoring | ||
responsibilities exercised by the Federal Communications | ||
Commission in the enforcement of Chapter 5, Title 47, United States | ||
Code; | ||
(7) a person intercepts or obtains access to an | ||
electronic communication that was made through an electronic | ||
communication system that is configured to permit the communication | ||
to be readily accessible to the general public; | ||
(8) a person intercepts radio communication, other | ||
than a cordless telephone communication that is transmitted between | ||
a cordless telephone handset and a base unit, that is transmitted: | ||
(A) by a station for the use of the general | ||
public; | ||
(B) to ships, aircraft, vehicles, or persons in | ||
distress; | ||
(C) by a governmental, law enforcement, civil | ||
defense, private land mobile, or public safety communications | ||
system that is readily accessible to the general public, unless the | ||
radio communication is transmitted by a law enforcement | ||
representative to or from a mobile data terminal; | ||
(D) by a station operating on an authorized | ||
frequency within the bands allocated to the amateur, citizens band, | ||
or general mobile radio services; or | ||
(E) by a marine or aeronautical communications | ||
system; | ||
(9) a person intercepts a wire or electronic | ||
communication the transmission of which causes harmful | ||
interference to a lawfully operating station or consumer electronic | ||
equipment, to the extent necessary to identify the source of the | ||
interference; | ||
(10) a user of the same frequency intercepts a radio | ||
communication made through a system that uses frequencies monitored | ||
by individuals engaged in the provision or the use of the system, if | ||
the communication is not scrambled or encrypted; or | ||
(11) a provider of an electronic communications | ||
service records the fact that a wire or electronic communication | ||
was initiated or completed in order to protect the provider, | ||
another provider furnishing service towards the completion of the | ||
communication, or a user of that service from fraudulent, unlawful, | ||
or abusive use of the service. | ||
(d) A person commits an offense if the person: | ||
(1) intentionally manufactures, assembles, possesses, | ||
or sells an interception [ |
||
knowing or having reason to know that the device is designed | ||
primarily for nonconsensual interception of wire, electronic, or | ||
oral communications and that the device or a component of the device | ||
has been or will be used for an unlawful purpose; or | ||
(2) places in a newspaper, magazine, handbill, or | ||
other publication an advertisement of an interception [ |
||
|
||
(A) knowing or having reason to know that the | ||
device is designed primarily for nonconsensual interception of | ||
wire, electronic, or oral communications; | ||
(B) promoting the use of the device for the | ||
purpose of nonconsensual interception of wire, electronic, or oral | ||
communications; or | ||
(C) knowing or having reason to know that the | ||
advertisement will promote the use of the device for the purpose of | ||
nonconsensual interception of wire, electronic, or oral | ||
communications. | ||
(e) It is an affirmative defense to prosecution under | ||
Subsection (d) that the manufacture, assembly, possession, or sale | ||
of an interception [ |
||
is designed primarily for the purpose of nonconsensual interception | ||
of wire, electronic, or oral communication is by: | ||
(1) a communication common carrier or a provider of | ||
wire or electronic communications service or an officer, agent, or | ||
employee of or a person under contract with a communication common | ||
carrier or service provider acting in the normal course of the | ||
provider's or [ |
||
(2) an officer, agent, or employee of a person under | ||
contract with, bidding on contracts with, or doing business with | ||
the United States or this state acting in the normal course of the | ||
activities of the United States or this state; | ||
(3) a member of the Department of Public Safety who is | ||
specifically trained to install wire, oral, or electronic | ||
communications intercept equipment; or | ||
(4) a member of a local law enforcement agency that has | ||
an established unit specifically designated to respond to and deal | ||
with life-threatening situations. | ||
(e-1) It is a defense to prosecution under Subsection (d)(1) | ||
that the interception [ |
||
possessed by a person authorized to possess the device under | ||
Section 500.008, Government Code, or Section 242.103, Human | ||
Resources Code. | ||
SECTION 2.02. Sections 16.03(b) and (c), Penal Code, are | ||
amended to read as follows: | ||
(b) In this section: | ||
(1) "Authorized"[ |
||
[ |
||
trace device" have the meanings assigned by Article 18B.001 | ||
[ |
||
(2) "Communication common carrier" has the meaning | ||
assigned by Article 18A.001, Code of Criminal Procedure. | ||
(c) It is an affirmative defense to prosecution under | ||
Subsection (a) that the actor is: | ||
(1) an officer, employee, or agent of a communication | ||
[ |
||
device or equipment to record a number dialed from or to a telephone | ||
instrument in the normal course of business of the carrier for | ||
purposes of: | ||
(A) protecting property or services provided by | ||
the carrier; or | ||
(B) assisting another who the actor reasonably | ||
believes to be a peace officer authorized to install or use a pen | ||
register or trap and trace device under Chapter 18B [ |
||
|
||
(2) an officer, employee, or agent of a lawful | ||
enterprise and the actor installs or uses a device or equipment | ||
while engaged in an activity that: | ||
(A) is a necessary incident to the rendition of | ||
service or to the protection of property of or services provided by | ||
the enterprise; and | ||
(B) is not made for the purpose of gathering | ||
information for a law enforcement agency or private investigative | ||
agency, other than information related to the theft of | ||
communication or information services provided by the enterprise; | ||
or | ||
(3) a person authorized to install or use a pen | ||
register or trap and trace device under Chapter 18B [ |
||
|
||
SECTION 2.03. Sections 16.04(a) and (e), Penal Code, are | ||
amended to read as follows: | ||
(a) In this section: | ||
(1) "Electronic[ |
||
[ |
||
meanings assigned by [ |
||
Code of Criminal Procedure. | ||
(2) "Electronic storage" has the meaning assigned by | ||
Article 18B.001, Code of Criminal Procedure. | ||
(e) It is an affirmative defense to prosecution under | ||
Subsection (b) that the conduct was authorized by: | ||
(1) the provider of the wire or electronic | ||
communications service; | ||
(2) the user of the wire or electronic communications | ||
service; | ||
(3) the addressee or intended recipient of the wire or | ||
electronic communication; or | ||
(4) Chapter 18B [ |
||
Procedure. | ||
SECTION 2.04. Section 16.05(a), Penal Code, is amended to | ||
read as follows: | ||
(a) In this section, "electronic [ |
||
|
||
|
||
[ |
||
Criminal Procedure. | ||
ARTICLE 3. OTHER CONFORMING AMENDMENTS FOR ARTICLES 18.20 AND | ||
18.21, CODE OF CRIMINAL PROCEDURE | ||
SECTION 3.01. Section 71.0083(b), Agriculture Code, is | ||
amended to read as follows: | ||
(b) An agriculture warrant may be issued only by a | ||
magistrate authorized to issue a search warrant under Chapter 18, | ||
18A, or 18B, Code of Criminal Procedure, only after the department | ||
has exercised reasonable efforts to obtain consent to conduct a | ||
search, and on application by the department accompanied by a | ||
supporting affidavit that establishes probable cause for the | ||
issuance of the warrant. The warrant must describe: | ||
(1) the street address and municipality or the parcel | ||
number and county of each place or premises subject to the warrant; | ||
and | ||
(2) each type of plant pest or disease that is the | ||
subject of the warrant. | ||
SECTION 3.02. Section 123.001(2), Civil Practice and | ||
Remedies Code, is amended to read as follows: | ||
(2) "Interception" means the aural acquisition of the | ||
contents of a communication through the use of an interception | ||
[ |
||
consent of a party to the communication, but does not include the | ||
ordinary use of: | ||
(A) a telephone or telegraph instrument or | ||
facility or telephone and telegraph equipment; | ||
(B) a hearing aid designed to correct subnormal | ||
hearing to not better than normal; | ||
(C) a radio, television, or other wireless | ||
receiver; or | ||
(D) a cable system that relays a public wireless | ||
broadcast from a common antenna to a receiver. | ||
SECTION 3.03. Article 18.02(b), Code of Criminal Procedure, | ||
is amended to read as follows: | ||
(b) For purposes of Subsection (a)(13): | ||
(1) "Electronic communication" [ |
||
|
||
have the meanings assigned by Article 18A.001. | ||
(2) "Electronic [ |
||
data" and "electronic storage" have [ |
||
assigned by Article 18B.001 [ |
||
SECTION 3.04. Article 18.0215(d), Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(d) Notwithstanding any other law, a peace officer may | ||
search a cellular telephone or other wireless communications device | ||
without a warrant if: | ||
(1) the owner or possessor of the telephone or device | ||
consents to the search; | ||
(2) the telephone or device is reported stolen by the | ||
owner or possessor; or | ||
(3) the officer reasonably believes that: | ||
(A) the telephone or device is in the possession | ||
of a fugitive from justice for whom an arrest warrant has been | ||
issued for committing a felony offense; or | ||
(B) there exists an immediate life-threatening | ||
situation, as defined by [ |
||
SECTION 3.05. Article 18.04, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 18.04. CONTENTS OF WARRANT. A search warrant issued | ||
under this chapter, Chapter 18A, or Chapter 18B shall be sufficient | ||
if it contains the following requisites: | ||
(1) that it run in the name of "The State of Texas"; | ||
(2) that it identify, as near as may be, that which is | ||
to be seized and name or describe, as near as may be, the person, | ||
place, or thing to be searched; | ||
(3) that it command any peace officer of the proper | ||
county to search forthwith the person, place, or thing named; | ||
(4) that it be dated and signed by the magistrate; and | ||
(5) that the magistrate's name appear in clearly | ||
legible handwriting or in typewritten form with the magistrate's | ||
signature. | ||
SECTION 3.06. 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 forthwith return the | ||
warrant to the proper magistrate. A search warrant issued under | ||
[ |
||
manner provided by Article 18B.355 [ |
||
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 3.07. Articles 18.07(a) and (b), Code of Criminal | ||
Procedure, are amended to read as follows: | ||
(a) The period allowed for the execution of 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 | ||
[ |
||
(3) three whole days if the warrant is issued for a | ||
purpose other than that described by Subdivision (1) or (2). | ||
(b) The magistrate issuing a search warrant under this | ||
chapter, Chapter 18A, or Chapter 18B shall endorse on the search | ||
warrant the date and hour of its issuance. | ||
SECTION 3.08. Section 54.978(e), Government Code, is | ||
amended to read as follows: | ||
(e) In this subsection, [ |
||
"pen register," and "trap and trace device" [ |
||
|
||
[ |
||
device" has the meaning assigned by Article 18B.201, Code of | ||
Criminal Procedure. A magistrate may: | ||
(1) notwithstanding [ |
||
or 18B.052 [ |
||
under Subchapter C, Chapter 18B [ |
||
Criminal Procedure, for the installation and use of: | ||
(A) a pen register; | ||
(B) an ESN reader; | ||
(C) a trap and trace device; or | ||
(D) equipment that combines the function of a pen | ||
register and a trap and trace device; | ||
(2) issue an order to obtain access to stored | ||
communications under [ |
||
Criminal Procedure; and | ||
(3) notwithstanding [ |
||
18B.203(a) [ |
||
the installation and use of a mobile tracking device under | ||
Subchapter E, Chapter 18B [ |
||
Criminal Procedure. | ||
SECTION 3.09. Section 421.004, Government Code, is amended | ||
to read as follows: | ||
Sec. 421.004. PROVISIONS GOVERNING MOBILE TRACKING | ||
DEVICES. In the event of a conflict between Subchapter E, Chapter | ||
18B [ |
||
this chapter or a rule adopted under this chapter, Subchapter E, | ||
Chapter 18B [ |
||
Procedure, controls. | ||
SECTION 3.10. Section 493.0191, Government Code, is amended | ||
to read as follows: | ||
Sec. 493.0191. ADMINISTRATIVE SUBPOENAS. (a) The | ||
inspector general may issue an administrative subpoena to a | ||
communication [ |
||
communications service provider to compel the production of the | ||
carrier's or service provider's business records that: | ||
(1) disclose information about: | ||
(A) the carrier's or service provider's | ||
customers; or | ||
(B) users of the services offered by the carrier | ||
or service provider; and | ||
(2) are material to a criminal investigation of an | ||
escape or a potential escape or a violation of Section 38.11, Penal | ||
Code. | ||
(b) In this section: | ||
(1) "Communication [ |
||
means a person that: | ||
(A) for a fee, provides directly to the public or | ||
to certain members of the public the ability to transmit between or | ||
among points specified by the person who uses that ability, | ||
regardless of the technology used, information of the person's | ||
choosing without change in the form or content of the information | ||
transmitted; or | ||
(B) is a provider that bills customers for | ||
services described by Paragraph (A). | ||
(2) "Electronic communications service provider" | ||
means a service provider that provides to users of the service the | ||
ability to send or receive wire or electronic communications, as | ||
those terms are defined by Article 18A.001 [ |
||
Criminal Procedure. | ||
SECTION 3.11. Sections 500.008(a) and (b), Government Code, | ||
are amended to read as follows: | ||
(a) The department may own and the office of inspector | ||
general may possess, install, operate, or monitor an interception | ||
[ |
||
18A.001 [ |
||
(b) The inspector general shall designate in writing the | ||
commissioned officers of the office of inspector general who are | ||
authorized to possess, install, operate, and monitor interception | ||
[ |
||
SECTION 3.12. Section 242.841(2), Health and Safety Code, | ||
is amended to read as follows: | ||
(2) "Electronic monitoring device": | ||
(A) includes: | ||
(i) video surveillance cameras installed in | ||
the room of a resident; and | ||
(ii) audio devices installed in the room of | ||
a resident designed to acquire communications or other sounds | ||
occurring in the room; and | ||
(B) does not include an interception | ||
[ |
||
for the nonconsensual interception of wire or electronic | ||
communications. | ||
SECTION 3.13. Section 242.842(c), Health and Safety Code, | ||
is amended to read as follows: | ||
(c) A communication or other sound acquired by an audio | ||
electronic monitoring device installed under the provisions of this | ||
subchapter concerning authorized electronic monitoring is not | ||
considered to be: | ||
(1) an oral communication as defined by [ |
||
Article 18A.001 [ |
||
(2) a communication as defined by Section 123.001, | ||
Civil Practice and Remedies Code. | ||
SECTION 3.14. Section 555.151(2), Health and Safety Code, | ||
is amended to read as follows: | ||
(2) "Electronic monitoring device": | ||
(A) includes: | ||
(i) video surveillance cameras installed in | ||
a resident's room; and | ||
(ii) audio devices installed in a | ||
resident's room designed to acquire communications or other sounds | ||
occurring in the room; and | ||
(B) does not include an interception | ||
[ |
||
for the nonconsensual interception of wire or electronic | ||
communications. | ||
SECTION 3.15. Section 555.152(c), Health and Safety Code, | ||
is amended to read as follows: | ||
(c) A communication or other sound acquired by an audio | ||
electronic monitoring device installed under the provisions of this | ||
subchapter concerning authorized electronic monitoring is not | ||
considered to be: | ||
(1) an oral communication as defined by [ |
||
Article 18A.001 [ |
||
(2) a communication as defined by Section 123.001, | ||
Civil Practice and Remedies Code. | ||
SECTION 3.16. Sections 242.103(a) and (b), Human Resources | ||
Code, are amended to read as follows: | ||
(a) The department may own and the office of the inspector | ||
general may possess, install, operate, or monitor an interception | ||
[ |
||
18A.001 [ |
||
(b) The inspector general shall designate in writing the | ||
commissioned officers of the office of inspector general who are | ||
authorized to possess, install, operate, and monitor interception | ||
[ |
||
SECTION 3.17. Section 33.01(3), Penal Code, is amended to | ||
read as follows: | ||
(3) "Communication [ |
||
means a person who owns or operates a telephone system in this state | ||
that includes equipment or facilities for the conveyance, | ||
transmission, or reception of communications and who receives | ||
compensation from persons who use that system. | ||
SECTION 3.18. Section 33.03, Penal Code, is amended to read | ||
as follows: | ||
Sec. 33.03. DEFENSES. It is an affirmative defense to | ||
prosecution under Section 33.02 that the actor was an officer, | ||
employee, or agent of a communication [ |
||
carrier or electric utility and committed the proscribed act or | ||
acts in the course of employment while engaged in an activity that | ||
is a necessary incident to the rendition of service or to the | ||
protection of the rights or property of the communication | ||
[ |
||
SECTION 3.19. Section 38.11(k), Penal Code, is amended to | ||
read as follows: | ||
(k) A person commits an offense if, with the intent to | ||
provide to or make a cellular telephone or other wireless | ||
communications device or a component of one of those devices | ||
available for use by a person in the custody of a correctional | ||
facility, the person: | ||
(1) acquires a cellular telephone or other wireless | ||
communications device or a component of one of those devices to be | ||
delivered to the person in custody; | ||
(2) provides a cellular telephone or other wireless | ||
communications device or a component of one of those devices to | ||
another person for delivery to the person in custody; or | ||
(3) makes a payment to a communication common carrier, | ||
as defined by Article 18A.001 [ |
||
or to any communication service that provides to its users the | ||
ability to send or receive wire or electronic communications. | ||
ARTICLE 4. CONFORMING AMENDMENTS FOR CHAPTERS 60 AND 61, CODE OF | ||
CRIMINAL PROCEDURE | ||
SECTION 4.01. Article 2.021, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 2.021. DUTIES OF ATTORNEY GENERAL. The attorney | ||
general may offer to a county or district attorney the assistance of | ||
the attorney general's office in the prosecution of an offense | ||
described by Article 66.102(h) [ |
||
younger than 17 years of age at the time the offense is committed. | ||
On request of a county or district attorney, the attorney general | ||
shall assist in the prosecution of an offense described by Article | ||
66.102(h) [ |
||
of age at the time the offense is committed. For purposes of this | ||
article, assistance includes investigative, technical, and | ||
litigation assistance of the attorney general's office. | ||
SECTION 4.02. Section 1, Article 42.01, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
Sec. 1. A judgment is the written declaration of the court | ||
signed by the trial judge and entered of record showing the | ||
conviction or acquittal of the defendant. The sentence served | ||
shall be based on the information contained in the judgment. The | ||
judgment shall reflect: | ||
1. The title and number of the case; | ||
2. That the case was called and the parties appeared, | ||
naming the attorney for the state, the defendant, and the attorney | ||
for the defendant, or, where a defendant is not represented by | ||
counsel, that the defendant knowingly, intelligently, and | ||
voluntarily waived the right to representation by counsel; | ||
3. The plea or pleas of the defendant to the offense | ||
charged; | ||
4. Whether the case was tried before a jury or a jury | ||
was waived; | ||
5. The submission of the evidence, if any; | ||
6. In cases tried before a jury that the jury was | ||
charged by the court; | ||
7. The verdict or verdicts of the jury or the finding | ||
or findings of the court; | ||
8. In the event of a conviction that the defendant is | ||
adjudged guilty of the offense as found by the verdict of the jury | ||
or the finding of the court, and that the defendant be punished in | ||
accordance with the jury's verdict or the court's finding as to the | ||
proper punishment; | ||
9. In the event of conviction where death or any | ||
punishment is assessed that the defendant be sentenced to death, a | ||
term of confinement or community supervision, or to pay a fine, as | ||
the case may be; | ||
10. In the event of conviction where the imposition of | ||
sentence is suspended and the defendant is placed on community | ||
supervision, setting forth the punishment assessed, the length of | ||
community supervision, and the conditions of community | ||
supervision; | ||
11. In the event of acquittal that the defendant be | ||
discharged; | ||
12. The county and court in which the case was tried | ||
and, if there was a change of venue in the case, the name of the | ||
county in which the prosecution was originated; | ||
13. The offense or offenses for which the defendant | ||
was convicted; | ||
14. The date of the offense or offenses and degree of | ||
offense for which the defendant was convicted; | ||
15. The term of sentence; | ||
16. The date judgment is entered; | ||
17. The date sentence is imposed; | ||
18. The date sentence is to commence and any credit for | ||
time served; | ||
19. The terms of any order entered pursuant to Article | ||
42.08 that the defendant's sentence is to run cumulatively or | ||
concurrently with another sentence or sentences; | ||
20. The terms of any plea bargain; | ||
21. Affirmative findings entered pursuant to Article | ||
42A.054(c) or (d); | ||
22. The terms of any fee payment ordered under Article | ||
42.151; | ||
23. The defendant's thumbprint taken in accordance | ||
with Article 38.33; | ||
24. In the event that the judge orders the defendant to | ||
repay a reward or part of a reward under Articles 37.073 and 42.152, | ||
a statement of the amount of the payment or payments required to be | ||
made; | ||
25. In the event that the court orders restitution to | ||
be paid to the victim, a statement of the amount of restitution | ||
ordered and: | ||
(A) the name and address of a person or agency | ||
that will accept and forward restitution payments to the victim; or | ||
(B) if the court specifically elects to have | ||
payments made directly to the crime victim, the name and permanent | ||
address of the victim at the time of judgment; | ||
26. In the event that a presentence investigation is | ||
required by Subchapter F, Chapter 42A, a statement that the | ||
presentence investigation was done according to the applicable | ||
provision; | ||
27. In the event of conviction of an offense for which | ||
registration as a sex offender is required under Chapter 62, a | ||
statement that the registration requirement of that chapter applies | ||
to the defendant and a statement of the age of the victim of the | ||
offense; | ||
28. The defendant's state identification number | ||
required by Article 66.152(a)(2) [ |
||
number has been assigned at the time of the judgment; and | ||
29. The incident number required by Article | ||
66.152(a)(4) [ |
||
assigned at the time of the judgment. | ||
SECTION 4.03. Article 42A.507(a), Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(a) This article applies only to a defendant who: | ||
(1) is identified as a member of a criminal street gang | ||
in an intelligence database established under Chapter 67 [ |
||
(2) has two or more times been previously convicted | ||
of, or received a grant of deferred adjudication community | ||
supervision or another functionally equivalent form of community | ||
supervision or probation for, a felony offense under the laws of | ||
this state, another state, or the United States. | ||
SECTION 4.04. Section 3(b), Article 55.02, Code of Criminal | ||
Procedure, is amended to read as follows: | ||
(b) The order of expunction entered by the court shall have | ||
attached and incorporate by reference a copy of the judgment of | ||
acquittal and shall include: | ||
(1) the following information on the person who is the | ||
subject of the expunction order: | ||
(A) full name; | ||
(B) sex; | ||
(C) race; | ||
(D) date of birth; | ||
(E) driver's license number; and | ||
(F) social security number; | ||
(2) the offense charged against the person who is the | ||
subject of the expunction order; | ||
(3) the date the person who is the subject of the | ||
expunction order was arrested; | ||
(4) the case number and court of offense; and | ||
(5) the tracking incident number (TRN) assigned to the | ||
individual incident of arrest under Article 66.251(b)(1) | ||
[ |
||
SECTION 4.05. Section 58.111, Family Code, is amended to | ||
read as follows: | ||
Sec. 58.111. LOCAL DATA ADVISORY BOARDS. The commissioners | ||
court of each county may create a local data advisory board to | ||
perform the same duties relating to the juvenile justice | ||
information system as the duties performed by a local data advisory | ||
board in relation to the criminal history record system under | ||
Article 66.354 [ |
||
SECTION 4.06. Section 58.202, Family Code, is amended to | ||
read as follows: | ||
Sec. 58.202. EXEMPTED RECORDS. The following records are | ||
exempt from this subchapter: | ||
(1) sex offender registration records maintained by | ||
the department or a local law enforcement agency under Chapter 62, | ||
Code of Criminal Procedure; and | ||
(2) records relating to a criminal combination or | ||
criminal street gang maintained by the department or a local law | ||
enforcement agency under Chapter 67 [ |
||
Procedure. | ||
SECTION 4.07. Section 411.048(a)(1), Government Code, is | ||
amended to read as follows: | ||
(1) "Criminal justice agency" has the meaning assigned | ||
by Article 66.001 [ |
||
SECTION 4.08. Section 411.048(g), Government Code, is | ||
amended to read as follows: | ||
(g) An individual who is the subject of information | ||
collected under this section may request that the director, the | ||
director's designee, or a court review the information to determine | ||
whether the information complies with rules adopted by the | ||
director. The review shall be conducted using the same procedure | ||
for reviewing criminal information collected under Chapter 67 [ |
||
Code of Criminal Procedure. | ||
SECTION 4.09. Section 411.0601, Government Code, is amended | ||
to read as follows: | ||
Sec. 411.0601. DEFINITION. In this subchapter, "criminal | ||
justice agency" has the meaning assigned by Article 66.001 [ |
||
Code of Criminal Procedure. | ||
SECTION 4.10. Section 411.082(1), Government Code, is | ||
amended to read as follows: | ||
(1) "Administration of criminal justice" has the | ||
meaning assigned by Article 66.001 [ |
||
Procedure. | ||
SECTION 4.11. Section 493.0155, Government Code, is amended | ||
to read as follows: | ||
Sec. 493.0155. PROPER IDENTIFICATION OF INMATES USING | ||
ALIAS. On receipt of information from the Department of Public | ||
Safety under Article 66.105 [ |
||
that a person's identifying information may have been falsely used | ||
by an inmate as the inmate's identifying information, regardless of | ||
whether the inmate is in the custody of the department, is serving a | ||
period of supervised release, or has been discharged, the | ||
department shall: | ||
(1) make a reasonable effort to identify the inmate's | ||
actual identity; and | ||
(2) take action to ensure that any information | ||
maintained in the department's records and files regarding the | ||
inmate reflects the inmate's use of the person's identity as a | ||
stolen alias and refers to available information concerning the | ||
inmate's actual identity. | ||
SECTION 4.12. Section 508.227(a), Government Code, is | ||
amended to read as follows: | ||
(a) This section applies only to a releasee who: | ||
(1) is identified as a member of a criminal street gang | ||
in an intelligence database established under Chapter 67 [ |
||
of Criminal Procedure; and | ||
(2) has three or more times been convicted of, or | ||
received a grant of deferred adjudication community supervision or | ||
another functionally equivalent form of community supervision or | ||
probation for, a felony offense under the laws of this state, | ||
another state, or the United States. | ||
SECTION 4.13. Section 509.004(b), Government Code, is | ||
amended to read as follows: | ||
(b) The division shall develop an automated tracking system | ||
that: | ||
(1) is capable of receiving tracking data from | ||
community supervision and corrections departments' caseload | ||
management and accounting systems; | ||
(2) is capable of tracking the defendant and the | ||
sentencing event at which the defendant was placed on community | ||
supervision by name, arrest charge code, and incident number; | ||
(3) provides the division with the statistical data it | ||
needs to support budget requests and satisfy requests for | ||
information; and | ||
(4) is compatible with the requirements of Chapter 66 | ||
[ |
||
by the institutional division and the pardons and paroles division | ||
of the Texas Department of Criminal Justice. | ||
SECTION 4.14. Section 244.003(b), Human Resources Code, is | ||
amended to read as follows: | ||
(b) Except as provided by Section 243.051(c), these records | ||
and all other information concerning a child, including personally | ||
identifiable information, are not public and are available only | ||
according to the provisions of Section 58.005, Family Code, Section | ||
244.051 of this code, and Chapter 67 [ |
||
Procedure. | ||
SECTION 4.15. Section 109.001(1), Occupations Code, is | ||
amended to read as follows: | ||
(1) "Administration of criminal justice" and | ||
"criminal justice agency" have the meanings assigned by Article | ||
66.001 [ |
||
SECTION 4.16. Section 160.101(b), Occupations Code, is | ||
amended to read as follows: | ||
(b) Not later than the 30th day after the date a person | ||
described by Subsection (a) is convicted of an offense listed in | ||
that subsection or is placed on deferred adjudication for an | ||
offense listed in that subsection, the clerk of the court in which | ||
the person is convicted or placed on deferred adjudication shall | ||
prepare and forward to the Department of Public Safety the | ||
information required by Chapter 66 [ |
||
Procedure. | ||
SECTION 4.17. Section 521.061(e), Transportation Code, is | ||
amended to read as follows: | ||
(e) In this section, "criminal justice agency" has the | ||
meaning assigned by Article 66.001 [ |
||
Procedure. | ||
ARTICLE 5. REPEALER | ||
SECTION 5.01. The following provisions of the Code of | ||
Criminal Procedure are repealed: | ||
(1) Article 18.20; | ||
(2) Article 18.21; | ||
(3) Chapter 60; and | ||
(4) Chapter 61. | ||
ARTICLE 6. GENERAL MATTERS | ||
SECTION 6.01. This Act is enacted under Section 43, Article | ||
III, Texas Constitution. This Act is intended as a codification | ||
only, and no substantive change in the law is intended by this Act. | ||
SECTION 6.02. This Act takes effect April 1, 2019. |