79R5763 RMB-F
By: Riddle H.B. No. 3044
A BILL TO BE ENTITLED
AN ACT
relating to the interception of or the collection of other
information from certain communications in an investigation of
criminal conduct.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2, Article 18.21, Code of Criminal
Procedure, is amended by amending Subsections (b) and (d) and
adding Subsection (i) 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 described by Subsection (i), 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 an authorized peace officer who is commissioned by
the department or the request of an authorized peace officer
described by Subsection (i); 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 by other law enforcement personnel, as applicable,
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
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.
(i) A peace officer other than a commissioned officer of the
Department of Public Safety may own, possess, install, operate, or
monitor a pen register if the officer is trained in the use of a pen
register by that department.
SECTION 2. Section 3(a), Article 18.21, Code of Criminal
Procedure, is amended to read as follows:
(a) A peace officer authorized to possess, install,
operate, or monitor a device under Section 8A, Article 18.20 or
Section 2(i), may install and use a pen register or trap and trace
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 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 article; and
(2) reasonably believes there are sufficient grounds
under this article on which to obtain an order authorizing the
installation and use of a pen register or trap and trace device.
SECTION 3. Section 18, Article 18.20, Code of Criminal
Procedure, is repealed.
SECTION 4. The changes in law made by this Act in amending
Sections 2(b) and (d), Article 18.21, Code of Criminal Procedure,
apply only to an application for the installation and use of a pen
register filed on or after the effective date of this Act. An
application for the installation and use of a pen register filed
before the effective date of this Act is governed by the law in
effect on the date the application is filed, and the former law is
continued in effect for that purpose.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2005.