79R5763 RMB-F

By:  Whitmire                                                     S.B. No. 905



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.