H.B. No. 2354
 
 
 
 
AN ACT
  relating to the installation and use of a pen register, ESN reader,
  trap and trace device, mobile tracking device, or similar equipment
  in a correctional facility operated by or under contract with the
  Texas Department of Criminal Justice.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Sections 1(2) and (3-a), Article 18.21, Code of
  Criminal Procedure, are amended to read as follows:
               (2)  "Authorized peace officer" means:
                     (A)  a sheriff or a sheriff's deputy;
                     (B)  a constable or deputy constable;
                     (C)  a marshal or police officer of an
  incorporated city;
                     (D)  a ranger or officer commissioned by the
  Public Safety Commission or the director of the Department of
  Public Safety;
                     (E)  an investigator of a prosecutor's office;
                     (F)  a law enforcement agent of the Alcoholic
  Beverage Commission;
                     (G)  a law enforcement officer commissioned by the
  Parks and Wildlife Commission; or
                     (H)  an enforcement officer appointed by the
  inspector general [executive director] of the Texas Department of
  Criminal Justice under Section 493.019, Government Code.
               (3-a)  "Designated law enforcement office or agency"
  means:
                     (A)  the sheriff's department of a county with a
  population of 3.3 million or more; [or]
                     (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.
         SECTION 2.  Sections 2(b), (d), (e), (i), (j), (k), (l), and
  (m), Article 18.21, Code of Criminal Procedure, are amended to read
  as follows:
         (b)  A prosecutor may file an application under this section
  or under federal law on the prosecutor's own motion or on the
  request of an authorized peace officer, regardless of whether the
  officer is commissioned by the department. A prosecutor who files
  an application on the prosecutor's own motion or who 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, must make the application personally and may not
  do so through an assistant or some other person acting on the
  prosecutor's behalf. 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
  officer is commissioned by the department.
         (d)  On presentation of the application, the judge may order
  the installation and use of the 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, and, on request of the applicant, the
  judge shall direct in the order that a communication common carrier
  or a provider of electronic communications service furnish 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. The carrier or service is
  entitled to compensation at the prevailing rates for the facilities
  and assistance provided to the department or a designated law
  enforcement office or agency.
         (e)  On presentation of the application, the judge may order
  the installation and use of the trap and trace device or similar
  equipment by the communication common carrier or other person on
  the appropriate line. The judge may direct the communication
  common carrier or other person, including any landlord or other
  custodian of equipment, to furnish 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. Unless otherwise ordered by the court,
  the results of the trap and trace device or similar equipment shall
  be furnished to the applicant, designated by the court, at
  reasonable intervals during regular business hours, for the
  duration of the order. The carrier is entitled to compensation at
  the prevailing rates for the facilities and assistance provided to
  the designated law enforcement office or agency.
         (i)  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 officer's
  name is on the list submitted to the director of the department
  under Subsection (k).
         (j)  Each designated law enforcement office or agency shall:
               (1)  adopt a written policy governing the application
  of this article to the office or agency; and
               (2)  submit the policy to the director of the
  department, or the director's designee, for approval.
         (k)  If the director of the department or the director's
  designee approves the policy submitted under Subsection (j), 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[, as applicable,] or the
  sheriff's or chief's designee, as applicable, shall submit to the
  director a written list of all officers in the designated law
  enforcement office or agency who are authorized to possess,
  install, monitor, or operate pen registers, ESN readers, or similar
  equipment.
         (l)  The department may conduct an audit of a designated law
  enforcement office or agency to ensure compliance with this
  article. 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 Subsection
  (j), the department shall notify the office or agency in writing
  that it is not in compliance. If the department determines that the
  office or agency still is not in compliance with the policy 90 days
  after the date the office or agency receives written notice under
  this subsection, the office or agency loses the authority granted
  by this article until:
               (1)  the office or agency adopts a new written policy
  governing the application of this article to the office or agency;
  and
               (2)  the department approves the written policy.
         (m)  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 for the purchase and
  maintenance of a pen register, ESN reader, or similar equipment,
  authorized under this article [pursuant to Subsection (i)]. The
  director of the department shall report those [such] expenditures
  publicly on an annual basis via the department's website, or other
  comparable means.
         SECTION 3.  Section 6(e), Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         (e)  The service provider may not destroy or permit the
  destruction of the copy until the information has been delivered to
  the designated law enforcement office or agency or until the
  resolution of any court proceedings, including appeals of any
  proceedings, relating to the subpoena or court order requesting the
  creation of the copy, whichever occurs last.
         SECTION 4.  Section 6(g)(2), Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
               (2)  The subscriber or customer shall give written
  notice to the service provider of the challenge to the subpoena or
  court order. The authorized peace officer or designated law
  enforcement office or agency requesting the subpoena or court order
  shall be served a copy of the papers filed by personal delivery or
  by registered or certified mail.
         SECTION 5.  Section 15, Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 15.  SUBPOENA AUTHORITY. (a) 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 communications common carrier or an
  electronic communications service to compel the production of the
  carrier's or service's business records that:
               (1)  disclose information about:
                     (A)  the carrier's or service's customers; or
                     (B)  users of the services offered by the carrier
  or service; and
               (2)  are material to a criminal investigation.
         (b)  Not later than the 30th day after the date on which the
  administrative subpoena is issued under Subsection (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 report the issuance of the subpoena to the
  department.
         (c)  If, based on reports received under Subsection (b), 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 Section 2(j), the department shall notify the office
  or agency in writing that it is not in compliance. If the department
  determines that the office or agency still is not in compliance with
  the policy 90 days after the date the office or agency receives
  written notice under this subsection, the office or agency loses
  the authority granted by this article until:
               (1)  the office or agency adopts a new written policy
  governing the application of this article to the office or agency;
  and
               (2)  the department approves the written policy.
         SECTION 6.  This Act takes effect September 1, 2011.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 2354 was passed by the House on April
  21, 2011, by the following vote:  Yeas 145, Nays 3, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 2354 was passed by the Senate on May
  19, 2011, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor