83R4649 GCB-F
 
  By: Hughes H.B. No. 1608
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to warrants issued to obtain location information from
  wireless communications devices and to public access to law
  enforcement or prosecutor requests for certain related location or
  communication information.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 18.02, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 18.02.  GROUNDS FOR ISSUANCE. A search warrant may be
  issued to search for and seize:
               (1)  property acquired by theft or in any other manner
  which makes its acquisition a penal offense;
               (2)  property specially designed, made, or adapted for
  or commonly used in the commission of an offense;
               (3)  arms and munitions kept or prepared for the
  purposes of insurrection or riot;
               (4)  weapons prohibited by the Penal Code;
               (5)  gambling devices or equipment, altered gambling
  equipment, or gambling paraphernalia;
               (6)  obscene materials kept or prepared for commercial
  distribution or exhibition, subject to the additional rules set
  forth by law;
               (7)  a drug, controlled substance, immediate
  precursor, chemical precursor, or other controlled substance
  property, including an apparatus or paraphernalia kept, prepared,
  or manufactured in violation of the laws of this state;
               (8)  any property the possession of which is prohibited
  by law;
               (9)  implements or instruments used in the commission
  of a crime;
               (10)  property or items, except the personal writings
  by the accused, constituting evidence of an offense or constituting
  evidence tending to show that a particular person committed an
  offense;
               (11)  persons; [or]
               (12)  contraband subject to forfeiture under Chapter 59
  of this code; or
               (13)  location information as defined by Article 18.21.
         SECTION 2.  Section 1, Article 18.21, Code of Criminal
  Procedure, is amended by adding Subdivision (4-a) to read as
  follows:
               (4-a)  "Location information" means any information
  that:
                     (A)  concerns the location of a cellular telephone
  or other wireless communications device; and
                     (B)  is wholly or partly generated by or derived
  from the operation of the device.
         SECTION 3.  Section 2(g), Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         (g)  At the request of the prosecutor or an authorized peace
  officer, the [The] district court may [shall] seal an application
  and order granted under this article.  The application and order may
  be sealed only for an initial period not to exceed 180 days, except
  that for good cause shown the court may grant an additional 180-day
  period.  The court shall retain a record of any application made or
  order granted under this article and submit the record to the
  department in accordance with Section 17.
         SECTION 4.  Article 18.21, Code of Criminal Procedure, is
  amended by adding Section 14A to read as follows:
         Sec. 14A.  WARRANT FOR LOCATION INFORMATION FROM CELLULAR
  TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE. (a) A district
  judge may issue a warrant for location information provided by the
  preinstalled mobile tracking features of a cellular telephone or
  other wireless communications device.  A warrant under this section
  may be issued only 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 location information
  obtained from the wireless communications device.
         (b)  The warrant may authorize the acquisition of location
  information obtained from a wireless communications device that, at
  the time the location information is acquired, is located outside
  the judicial district but within the state if the applicant for the
  warrant reasonably believes the device to be located within the
  district at the time the warrant is issued.
         (c)  A district judge may issue the warrant only on the
  application of an authorized peace officer. An application must be
  written and signed and sworn to or affirmed before the judge.  The
  affidavit must:
               (1)  state the name, department, agency, and address of
  the applicant;
               (2)  identify the wireless communications device to be
  monitored;
               (3)  state the name of the owner or possessor of the
  device to be monitored;
               (4)  state the judicial district in which the device is
  reasonably expected to be located; and
               (5)  state the facts and circumstances that provide the
  applicant with probable cause to believe that:
                     (A)  criminal activity has been, is, or will be
  committed; and
                     (B)  acquisition of location information from the
  device is likely to produce evidence in a criminal investigation of
  the criminal activity described in Paragraph (A).
         (d)  A warrant issued under this section must be executed
  within the period provided by Article 18.07 by properly serving the
  warrant on a communication common carrier or an electronic
  communications service.  A warrant issued under this section
  expires not later than the 90th day after the date the warrant is
  issued, and location information may not be obtained after the
  expiration date without an extension of the warrant.  For good cause
  shown, the judge may grant an extension for an additional 90-day
  period.  The court shall retain a record of any application made or
  order granted under this section and submit the record to the
  department in accordance with Section 17.
         (e)  A wireless communications device may be monitored
  without a warrant by a private entity or authorized peace officer
  if:
               (1)  the device is reported stolen by the owner; or
               (2)  there exists an immediate life-threatening
  situation.
         (f)  An authorized peace officer must apply for a warrant for
  monitoring a wireless communications device under Subsection
  (e)(2) as soon as practicable. If the district judge finds that an
  immediate life-threatening situation did not occur and declines to
  issue the warrant, any evidence obtained is not admissible in a
  criminal action.
         SECTION 5.  Section 15(a), Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         (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
  communication [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, excluding any location
  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.
         SECTION 6.  Article 18.21, Code of Criminal Procedure, is
  amended by adding Section 15A to read as follows:
         Sec. 15A.  COMPELLING PRODUCTION OF BUSINESS RECORDS
  DISCLOSING LOCATION INFORMATION.  On application by 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, the district court may
  issue a warrant pursuant to Article 18.02 to a communication common
  carrier or an electronic communications service to compel the
  production of the carrier's or service's business records that
  disclose location information about the carrier's or service's
  customers or  users of the services offered by the carrier or
  service, if there is probable cause to believe the records
  disclosing location information will provide evidence in a criminal
  investigation.
         SECTION 7.  Article 18.21, Code of Criminal Procedure, is
  amended by adding Section 17 to read as follows:
         Sec. 17.  ANNUAL REPORT OF WARRANTS AND ORDERS. (a) Not
  later than January 15 of each year, a communication common carrier
  or electronic communications service doing business in this state
  shall report to the department the following information for the
  preceding calendar year, disaggregated by each law enforcement
  agency in this state making the applicable requests:
               (1)  the number of requests made for pen register or
  trap and trace information;
               (2)  the number of requests made for ESN reader
  information;
               (3)  the number of requests made for location
  information;
               (4)  the number of individuals whose location
  information was disclosed; and
               (5)  the amount that each law enforcement agency was
  billed by the communication common carrier or electronic
  communications service for each request made under Subdivision (1),
  (2), or (3).
         (b)  Not later than the 30th day after the date of expiration
  of a warrant or order issued under this article or an order
  extending the period of a warrant or order issued under this
  article, or not later than the 30th day after the date the court
  denies an application for a warrant or order under this article, the
  court shall submit to the department the following information, as
  applicable:
               (1)  the receipt of an application for a warrant or
  order under this article;
               (2)  the type of warrant or order for which the
  application was made;
               (3)  whether any application for an order of extension
  was granted, granted as modified by the court, or denied;
               (4)  the period of monitoring authorized by the warrant
  or order and the number and duration of any extensions of the
  warrant or order;
               (5)  the offense under investigation, as specified in
  the application for the warrant or order or an extension of the
  warrant or order; and
               (6)  the law enforcement agency or prosecutor that
  submitted an application for the warrant or order or an extension of
  the warrant or order.
         (c)  Not later than January 15 of each year, each prosecutor
  that submits an application for a warrant or order or an extension
  of a warrant or order under this article shall submit to the
  department the following information for the preceding calendar
  year:
               (1)  the information required to be submitted by a
  court under Subsection (b) with respect to each application
  submitted by the prosecutor for the warrant or order or an extension
  of the warrant or order;
               (2)  a general description of information collected
  under each warrant or order that was issued by the court, including
  the approximate number of individuals for whom location information
  was intercepted and the approximate duration of the monitoring of
  the location information of those individuals;
               (3)  the number of arrests made as a result of
  information obtained under a warrant or order issued under this
  article;
               (4)  the number of criminal trials commenced as a
  result of information obtained under a warrant or order issued
  under this article; and
               (5)  the number of convictions obtained as a result of
  information obtained under a warrant or order issued under this
  article.
         (d)  Information submitted to the department under this
  section is public information and subject to disclosure under
  Chapter 552, Government Code.
         (e)  Not later than March 1 of each year, the public safety
  director of the department shall submit a report to the governor,
  the lieutenant governor, the speaker of the house of
  representatives, and the chairs of the standing committees of the
  senate and house of representatives with primary jurisdiction over
  criminal justice.  The report must contain the following
  information for the preceding calendar year:
               (1)  an assessment of the extent of tracking or
  monitoring by law enforcement agencies of pen register, trap and
  trace, ESN reader, and location information;
               (2)  a comparison of the ratio of the number of
  applications for warrants or orders made under this article to the
  number of arrests and convictions resulting from information
  obtained under a warrant or order issued under this article;
               (3)  identification of the types of offenses
  investigated under a warrant or order issued under this article;
  and
               (4)  with respect to both state and local
  jurisdictions, an estimate of the total cost of conducting
  investigations under a warrant or order issued under this article.
         SECTION 8.  This Act takes effect September 1, 2013.