By:  Hilderbran                                        H.B. No. 796
       73R2551 GWK-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the interception of certain communications and the use
    1-3  of those communications as evidence; creating a defense to
    1-4  prosecution for unlawful use of certain interception devices.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 1, Article 18.20, Code of Criminal
    1-7  Procedure, is amended by amending Subdivision (8) and adding
    1-8  Subdivision (22) to read as follows:
    1-9              (8)  "Prosecutor" means:
   1-10                    (A)  a district attorney, criminal district
   1-11  attorney, or county attorney performing the duties of a district
   1-12  attorney, with jurisdiction in the county in which the facility or
   1-13  place where the communication to be intercepted is located; or
   1-14                    (B)  an assistant prosecutor designated by a
   1-15  person described in Paragraph (A) of this subdivision.
   1-16              (22)  "Mobile interception" means the interception of a
   1-17  wire, oral, or electronic communication, made through the use of a
   1-18  facility capable of being transported from county to county.
   1-19        SECTION 2.  Section 2, Article 18.20, Code of Criminal
   1-20  Procedure, is amended to read as follows:
   1-21        Sec. 2.  PROHIBITION OF USE AS EVIDENCE OF INTERCEPTED
   1-22  COMMUNICATIONS.  Except for a prosecution involving an unlawful
   1-23  interception, use, or disclosure of wire, oral, or electronic
   1-24  communications in violation of Chapter 16, Penal Code, the <The>
    2-1  contents of an intercepted communication and evidence derived from
    2-2  an intercepted communication may not be received in evidence in any
    2-3  trial, hearing, or other proceeding in or before any court, grand
    2-4  jury, department, officer, agency, regulatory body, legislative
    2-5  committee, or other authority of the United States or of this state
    2-6  or a political subdivision of this state if the disclosure of that
    2-7  information would be in violation of this article.  The contents of
    2-8  an intercepted communication and evidence derived from an
    2-9  intercepted communication may be received in a civil trial,
   2-10  hearing, or other proceeding only if the civil trial, hearing, or
   2-11  other proceeding arises out of a violation of the Penal Code, Code
   2-12  of Criminal Procedure, Chapter 481, Health and Safety Code
   2-13  <Controlled Substances Act>, or Chapter 483, Health and Safety Code
   2-14  <Dangerous Drug Act>.
   2-15        SECTION 3.  Section 3, Article 18.20, Code of Criminal
   2-16  Procedure, is amended by amending Subsection (b) and adding
   2-17  Subsection (d) to read as follows:
   2-18        (b)  Except as provided by Subsections <Subsection> (c) and
   2-19  (d) of this section, only the judge of competent jurisdiction for
   2-20  the administrative judicial district in which the proposed
   2-21  interception will be made may act on an application for
   2-22  authorization to intercept wire, oral, or electronic
   2-23  communications.
   2-24        (d)  In the case of a mobile interception, the judge of
   2-25  competent jurisdiction for the administrative judicial district in
   2-26  which the interception is to be initiated may act on an application
   2-27  for authorization to intercept wire, oral, or electronic
    3-1  communications within the judge's judicial district or outside the
    3-2  district but within the state.
    3-3        SECTION 4.  Section 4, Article 18.20, Code of Criminal
    3-4  Procedure, is amended to read as follows:
    3-5        Sec. 4.  OFFENSES FOR WHICH INTERCEPTIONS MAY BE AUTHORIZED.
    3-6  A judge may issue an order authorizing interception of wire, oral,
    3-7  or electronic communications only if the prosecutor applying for
    3-8  the order shows probable cause to believe that the interception
    3-9  will provide evidence of the commission of a felony <(other than
   3-10  felony possession of marihuana)> under:
   3-11              (1)  Chapter 481, Health and Safety Code, other than
   3-12  felony possession of marihuana;
   3-13              (2)  <or> Section 485.033, Health and Safety Code;
   3-14              (3)  <or of a felony under> Chapter 483, Health and
   3-15  Safety Code;
   3-16              (4)  one of the following Penal Code sections or
   3-17  chapters:
   3-18                    (A)  Section 15.03 (Criminal Solicitation);
   3-19                    (B)  Section 19.02 (Murder); or
   3-20                    (C)  Section 19.03 (Capital Murder);
   3-21              (5)  Section 15.02, Penal Code (Criminal Conspiracy),
   3-22  if the object of the conspiracy is a felony listed in this section;
   3-23  or
   3-24              (6)  Chapter 71 (Organized Crime), if the offense is
   3-25  punishable as a felony of the first or second degree.
   3-26        SECTION 5.  Section 5(a), Article 18.20, Code of Criminal
   3-27  Procedure, is amended to read as follows:
    4-1        (a)  Only the Department of Public Safety is authorized by
    4-2  this article to own, possess, install, operate, or monitor an
    4-3  electronic, mechanical, or other device.  The Department of Public
    4-4  Safety may be assisted <by an investigative or law enforcement
    4-5  officer> in the operation and monitoring of an interception of
    4-6  wire, oral, or electronic communications by an investigative or law
    4-7  enforcement officer or an individual operating under contract with
    4-8  the department and acting under the supervision of an investigative
    4-9  or law enforcement officer, provided that a commissioned officer of
   4-10  the Department of Public Safety is present at all times.
   4-11        SECTION 6.  Sections 7(c) and (e), Article 18.20, Code of
   4-12  Criminal Procedure, are amended to read as follows:
   4-13        (c)  A person who receives, by any means authorized by this
   4-14  article, information concerning a wire, oral, or electronic
   4-15  communication or evidence derived from a communication intercepted
   4-16  in accordance with the provisions of this article may disclose the
   4-17  contents of that communication or the derivative evidence while
   4-18  giving testimony under oath in any proceeding held under the
   4-19  authority of the United States, or of any other state, of this
   4-20  state, or of a political subdivision of this state.
   4-21        (e)  When an investigative or law enforcement officer, while
   4-22  engaged in intercepting wire, oral, or electronic communications in
   4-23  a manner authorized by this article, intercepts wire, oral, or
   4-24  electronic communications relating to offenses other than those
   4-25  specified in the order of authorization, the contents of and
   4-26  evidence derived from the communication may be disclosed or used as
   4-27  provided by Subsections (a) and (b) of this section, even if the
    5-1  contents of and evidence derived from the communication relate to a
    5-2  criminal offense other than an offense listed in Section 4 of this
    5-3  article.  Such contents and any evidence derived therefrom may be
    5-4  used under Subsection (c) of this section when authorized by a
    5-5  judge of competent jurisdiction where the judge finds, on
    5-6  subsequent application, that the contents were otherwise
    5-7  intercepted in accordance with the provisions of this article.  The
    5-8  application shall be made as soon as practicable.
    5-9        SECTION 7.  Section 8, Article 18.20, Code of Criminal
   5-10  Procedure, is amended by amending Subsection  (a) and adding
   5-11  Subsections (c) and (d) to read as follows:
   5-12        (a)  To be valid, an application for an order authorizing the
   5-13  interception of a wire, oral, or electronic communication must be
   5-14  made in writing under oath to a judge of competent jurisdiction and
   5-15  must state the applicant's authority to make the application.  An
   5-16  applicant must include the following information in the
   5-17  application:
   5-18              (1)  the identity of the prosecutor making the
   5-19  application and of the officer requesting the application;
   5-20              (2)  a full and complete statement of the facts and
   5-21  circumstances relied on by the applicant to justify his belief that
   5-22  an order should be issued, including:
   5-23                    (A)  details about the particular offense that
   5-24  has been, is being, or is about to be committed;
   5-25                    (B)  a particular description of the nature and
   5-26  location of the facilities from which or the place where the
   5-27  communication is to be intercepted, except as provided by
    6-1  Subsection (c) of this section;
    6-2                    (C)  a particular description of the type of
    6-3  communication sought to be intercepted; and
    6-4                    (D)  the identity of the person, if known,
    6-5  committing the offense and whose communications are to be
    6-6  intercepted;
    6-7              (3)  a full and complete statement as to whether or not
    6-8  other investigative procedures have been tried and failed or why
    6-9  they reasonably appear to be unlikely to succeed or to be too
   6-10  dangerous if tried;
   6-11              (4)  a statement of the period of time for which the
   6-12  interception is required to be maintained and, if the nature of the
   6-13  investigation is such that the authorization for interception
   6-14  should not automatically terminate when the described type of
   6-15  communication is first obtained, a particular description of facts
   6-16  establishing probable cause to believe that additional
   6-17  communications of the same type will occur after the described type
   6-18  of communication is obtained;
   6-19              (5)  a statement whether a covert entry will be
   6-20  necessary to properly and safely install the wiretapping or
   6-21  electronic surveillance or eavesdropping equipment and, if a covert
   6-22  entry is requested, a statement as to why such an entry is
   6-23  necessary and proper under the facts of the particular
   6-24  investigation, including a full and complete statement as to
   6-25  whether other investigative techniques have been tried and have
   6-26  failed or why they reasonably appear to be unlikely to succeed or
   6-27  to be too dangerous if tried or are not feasible under the
    7-1  circumstances or exigencies of time;
    7-2              (6)  a full and complete statement of the facts
    7-3  concerning all applications known to the prosecutor making the
    7-4  application that have been previously made to a judge for
    7-5  authorization to intercept wire, oral, or electronic communications
    7-6  involving any of the persons, facilities, or places specified in
    7-7  the application and of the action taken by the judge on each
    7-8  application; and
    7-9              (7)  if the application is for the extension of an
   7-10  order, a statement setting forth the results already obtained from
   7-11  the interception or a reasonable explanation of the failure to
   7-12  obtain results.
   7-13        (c)  The requirements of Subsection (a)(2)(B) of this section
   7-14  do not apply:
   7-15              (1)  in the case of an application for the interception
   7-16  of an oral communication,  if:
   7-17                    (A)  the application contains a complete
   7-18  statement as to why a particular description is not practical and
   7-19  identifies the person believed to be committing the offense and
   7-20  whose communications are to be intercepted; and
   7-21                    (B)  the judge finds that a particular
   7-22  description is not practical; or
   7-23              (2)  in the case of an application for interception of
   7-24  a wire or electronic communication, if:
   7-25                    (A)  the application identifies the person
   7-26  believed to be committing the offense and whose communications are
   7-27  to be intercepted; and
    8-1                    (B)  the applicant makes an adequate showing to
    8-2  the judge of a purpose on the part of the person to defeat
    8-3  interception by changing facilities.
    8-4        (d)  If an interception of a communication is ordered under
    8-5  Subsection (c) of this section, the interception may not begin
    8-6  until the facilities from which or the place where the
    8-7  communication is to be intercepted is determined by the person
    8-8  implementing the interception order.  A provider of wire or
    8-9  electronic communication service that has received an order based
   8-10  on an application described by Subsection (c)(2) of this section
   8-11  may petition the court to modify or quash the order on the ground
   8-12  that the interception cannot be performed in a timely or reasonable
   8-13  fashion.  The court, on notice to the state, shall act
   8-14  expeditiously on the petition.
   8-15        SECTION 8.  Section 9, Article 18.20, Code of Criminal
   8-16  Procedure, is amended to read as follows:
   8-17        Sec. 9.  ACTION ON APPLICATION FOR INTERCEPTION ORDER.
   8-18  (a)  On receipt of an application, the judge may enter an ex parte
   8-19  order, as requested or as modified, authorizing interception of
   8-20  wire, oral, or electronic communications if the judge determines
   8-21  from the evidence submitted by the applicant that:
   8-22              (1)  there is probable cause to believe that a person
   8-23  is committing, has committed, or is about to commit a particular
   8-24  offense enumerated in Section 4 of this article;
   8-25              (2)  there is probable cause to believe that particular
   8-26  communications concerning that offense will be obtained through the
   8-27  interception;
    9-1              (3)  normal investigative procedures have been tried
    9-2  and have failed or reasonably appear to be unlikely to succeed or
    9-3  to be too dangerous if tried;
    9-4              (4)  except as provided by Section 8(c) of this
    9-5  article, there is probable cause to believe that the facilities
    9-6  from which or the place where the wire, oral, or electronic
    9-7  communications are to be intercepted are being used or are about to
    9-8  be used in connection with the commission of an offense or are
    9-9  leased to, listed in the name of, or commonly used by the person;
   9-10  and
   9-11              (5)  a covert entry is or is not necessary to properly
   9-12  and safely install the wiretapping or electronic surveillance or
   9-13  eavesdropping equipment.
   9-14        (b)  An order authorizing the interception of a wire, oral,
   9-15  or electronic communication must specify:
   9-16              (1)  the identity of the person, if known, whose
   9-17  communications are to be intercepted;
   9-18              (2)  except as provided by Section 8(c) of this
   9-19  article, the nature and location of the communications facilities
   9-20  as to which or the place where authority to intercept is granted;
   9-21              (3)  a particular description of the type of
   9-22  communication sought to be intercepted and a statement of the
   9-23  particular offense to which it relates;
   9-24              (4)  the identity of the officer making the request and
   9-25  the identity of the prosecutor;
   9-26              (5)  the time during which the interception is
   9-27  authorized, including a statement of whether or not the
   10-1  interception will automatically terminate when the described
   10-2  communication is first obtained; and
   10-3              (6)  whether or not a covert entry or surreptitious
   10-4  entry is necessary to properly and safely install wiretapping,
   10-5  electronic surveillance, or eavesdropping equipment.
   10-6        (c)  In an order authorizing the interception of a wire,
   10-7  oral, or electronic communication, the judge issuing it, on request
   10-8  of the applicant, shall direct that a provider of wire or
   10-9  electronic communications service, a communication common carrier,
  10-10  landlord, custodian, or other person furnish the applicant all
  10-11  information, facilities, and technical assistance necessary to
  10-12  accomplish the interception unobtrusively and with a minimum of
  10-13  interference with the services that the provider, carrier,
  10-14  landlord, custodian, or other person is providing the person whose
  10-15  communications are to be intercepted.  Any provider of wire or
  10-16  electronic communications service, communication common carrier,
  10-17  landlord, custodian, or other person furnishing facilities or
  10-18  technical assistance is entitled to compensation by the applicant
  10-19  for the facilities or assistance at the prevailing rates.
  10-20        (d)  An order entered pursuant to this section may not
  10-21  authorize the interception of a wire, oral, or electronic
  10-22  communication for longer than is necessary to achieve the objective
  10-23  of the authorization and in no event may it authorize interception
  10-24  for more than 30 days.  An authorization period begins on the day
  10-25  the investigative or law enforcement officer begins to conduct an
  10-26  interception under the order or 10 days after the date the order is
  10-27  entered, whichever is earlier. The issuing judge may grant
   11-1  extensions of an order, but only on application for an extension
   11-2  made in accordance with Section 8 of this article and the court
   11-3  making the findings required by Subsection (a) of this section.
   11-4  The period of extension may not be longer than the authorizing
   11-5  judge deems necessary to achieve the purposes for which it is
   11-6  granted and in no event may the extension be for more than 30 days.
   11-7  An extended authorization period begins on the day following the
   11-8  expiration date of the order that is being extended.  To be valid,
   11-9  each order and extension of an order must provide that the
  11-10  authorization to intercept be executed as soon as practicable, be
  11-11  conducted in a way that minimizes the interception of
  11-12  communications not otherwise subject to interception under this
  11-13  article, and terminate on obtaining the authorized objective or
  11-14  within 30 days, whichever occurs sooner.  If the intercepted
  11-15  communication is in a code or foreign language and an expert in
  11-16  that code or foreign language is not reasonably available at the
  11-17  time of interception, the requirement that interception of
  11-18  communications not otherwise covered by this article be minimized
  11-19  may be accomplished as soon as practicable.
  11-20        (e)  <An order entered pursuant to this section may not
  11-21  authorize a covert entry into a residence solely for the purpose of
  11-22  intercepting a wire or electronic communication.>
  11-23        <(f)  An order entered pursuant to this section may not
  11-24  authorize a covert entry into or onto a premises for the purpose of
  11-25  intercepting an oral communication unless:>
  11-26              <(1)  the judge, in addition to making the
  11-27  determinations required under Subsection (a) of this section,
   12-1  determines that:>
   12-2                    <(A)(i)  the premises into or onto which the
   12-3  covert entry is authorized or the person whose communications are
   12-4  to be obtained has been the subject of a pen register previously
   12-5  authorized in connection with the same investigation;>
   12-6                          <(ii)  the premises into or onto which the
   12-7  covert entry is authorized or the person whose communications are
   12-8  to be obtained has been the subject of an interception of wire or
   12-9  electronic communications previously authorized in connection with
  12-10  the same investigation; and>
  12-11                          <(iii)  that such procedures have failed;
  12-12  or>
  12-13                    <(B)  that the procedures enumerated in Paragraph
  12-14  (A) reasonably appear to be unlikely to succeed or to be too
  12-15  dangerous if tried or are not feasible under the circumstances or
  12-16  exigencies of time; and>
  12-17              <(2)  the order, in addition to the matters required to
  12-18  be specified under Subsection (b) of this section, specifies that
  12-19  the covert entry is for the purpose of intercepting oral
  12-20  communications of two or more persons and that there is probable
  12-21  cause to believe they are committing, have committed, or are about
  12-22  to commit a particular offense enumerated in Section 4 of this
  12-23  article.>
  12-24        <(g)>  Whenever an order authorizing interception is entered
  12-25  pursuant to this article, the order may require reports to the
  12-26  judge who issued the order showing what progress has been made
  12-27  toward achievement of the authorized objective and the need for
   13-1  continued interception.  Reports shall be made at any interval the
   13-2  judge requires.
   13-3        (f) <(h)>  A judge who issues an order authorizing the
   13-4  interception of a wire, oral, or electronic communication may not
   13-5  hear a criminal prosecution in which evidence derived from the
   13-6  interception may be used or in which the order may be an issue.
   13-7        SECTION 9.  Sections 2(a) and (c), Article 18.21, Code of
   13-8  Criminal Procedure, are amended to read as follows:
   13-9        (a)  An authorized peace officer commissioned by the
  13-10  department may request an attorney for the state, including an
  13-11  assistant prosecutor, to file an application with a judge of the
  13-12  judicial district in which the proposed installation will be made
  13-13  for the installation and use of a pen register to obtain
  13-14  information material to the investigation of a criminal offense.
  13-15  An authorized peace officer not commissioned by the department may
  13-16  request a district attorney or criminal district attorney, but not
  13-17  an assistant prosecutor, to file an application under this section.
  13-18  A district or criminal district attorney may on his own motion file
  13-19  an application under this section.  The district or criminal
  13-20  district attorney who is acting on his own motion or who has been
  13-21  requested to file an application by an authorized peace officer who
  13-22  is not commissioned by the department must make the application
  13-23  personally and may not do so through an assistant or some other
  13-24  person acting on his behalf.
  13-25        (c)  The application must be made in writing under oath and
  13-26  must include the name of the subscriber, the telephone number or
  13-27  numbers, and the location of the telephone instrument or
   14-1  instruments on which the pen register or trap and trace device will
   14-2  be utilized.  The application must state the offense for which the
   14-3  information is sought and must also state that the installation and
   14-4  utilization of the pen register or trap and trace device will be
   14-5  material to the investigation of the <a criminal> offense.
   14-6        SECTION 10.  Section 16.03, Penal Code, is amended by adding
   14-7  Subsections (g), (h), and (i) to read as follows:
   14-8        (g)  It is an exception to the application of Subsection (a)
   14-9  of this section that the installation or utilization of a pen
  14-10  register or trap and trace device by an authorized peace officer or
  14-11  a provider of wire or electronic communications service:
  14-12              (1)  was made with the consent of the called or calling
  14-13  party; or
  14-14              (2)  was made to record the fact that a wire or
  14-15  electronic communication was initiated or completed in order to
  14-16  protect from fraudulent, unlawful, or abusive use of service the
  14-17  provider, another provider furnishing service toward completion of
  14-18  the wire or electronic communication, or the called or calling
  14-19  party.
  14-20        (h)  It is an exception to the application of Subsection (a)
  14-21  of this section that the installation or utilization of a trap and
  14-22  trace device was made by or with the consent of the called party.
  14-23        (i)  It is an exception to the application of Subsection (a)
  14-24  of this section that a trap and trace device is used:
  14-25              (1)  by a federal, state, or local governmental agency
  14-26  or a person acting under contract with a governmental agency; and
  14-27              (2)  in conjunction with an emergency assistance
   15-1  telecommunication service or a 911 emergency service.
   15-2        SECTION 11.  Section 5, Chapter 275, Acts of the 67th
   15-3  Legislature, Regular Session, 1981, and Section 1, Chapter 587,
   15-4  Acts of the 69th Legislature, Regular Session, 1985, are repealed.
   15-5        SECTION 12.  (a)  Except as provided by Subsection (b), this
   15-6  Act takes effect September 1, 1993.
   15-7        (b)  Section 11 of this Act takes effect on the earliest
   15-8  possible date permitted by Article III, Section 39, of the Texas
   15-9  Constitution.
  15-10        SECTION 13.  The importance of this legislation and the
  15-11  crowded condition of the calendars in both houses create an
  15-12  emergency and an imperative public necessity that the
  15-13  constitutional rule requiring bills to be read on three several
  15-14  days in each house be suspended, and this rule is hereby suspended,
  15-15  and that this Act take effect and be in force according to its
  15-16  terms, and it is so enacted.