By: Whitmire S.B. No. 152
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.