By: Whitmire S.B. No. 905
(In the Senate - Filed March 3, 2005; March 14, 2005, read
first time and referred to Committee on Criminal Justice;
April 22, 2005, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 6, Nays 0; April 22, 2005,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 905 By: Whitmire
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 1, Article 18.21, Code of Criminal
Procedure, is amended by adding Subdivision (3-a) to read as
follows:
(3-a) "Designated police agency" means a police
department in a municipality with a population of 500,000 or more.
SECTION 2. Section 2, Article 18.21, Code of Criminal
Procedure, is amended by amending Subsections (b) and (d) and
adding Subsections (i), (j), and (k) 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 employed by a designated police agency,
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:
(A) an authorized peace officer who is
commissioned by the department; or
(B) an authorized peace officer of a designated
police agency; 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 an authorized peace officer of a designated police
agency, 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 or
designated police agency 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 or a designated policy agency.
(i) A designated police agency may own and possess a pen
register, ESN reader, or similar equipment.
(j) A peace officer of a designated police agency is
authorized to possess, install, operate, or monitor a pen register,
ESN reader, or similar equipment if the officer is certified in
writing by the chief of the agency to the director of the department
as being trained in the installation and use of a pen register, ESN
reader, or similar equipment.
(k) The chief of a designated police agency shall submit to
the director of the department a written list of all officers in the
agency who are authorized by the chief to possess, install,
monitor, or operate pen registers, ESN readers, or similar
equipment.
SECTION 3. Subsection (a), Section 3, 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(j), 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 4. Section 18, Article 18.20, Code of Criminal
Procedure, is repealed.
SECTION 5. The changes in law made by this Act in amending
Subsections (b) and (d), Section 2, Article 18.21, Code of Criminal
Procedure, apply only to an application for the installation and
use of a pen register, ESN reader, or similar equipment filed on or
after the effective date of this Act. An application for the
installation and use of a pen register, ESN reader, or similar
equipment 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 6. 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.
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