By: Whitmire  S.B. No. 823
         (In the Senate - Filed February 22, 2007; March 7, 2007,
  read first time and referred to Committee on Criminal Justice;
  April 2, 2007, reported favorably by the following vote:  Yeas 5,
  Nays 0; April 2, 2007, sent to printer.)
 
 
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.  Subdivision (23), Section 1, Article 18.20, Code
  of Criminal Procedure, is amended to read as follows:
               (23)  "Member of a law enforcement unit specially
  trained to respond to and deal with life-threatening situations" 
  means a peace officer who, as evidenced by the submission of
  appropriate documentation to the Commission on Law Enforcement
  Officer Standards and Education:
                     (A)  receives a minimum of 40 hours a year of
  training in hostage and barricade suspect situations; or
                     (B)  is the police chief of a police department in
  a municipality with a population of 500,000 or more, or the police
  chief's designee, and has received a minimum of 24 hours of training
  on kidnapping investigations [as evidenced by the submission of
  appropriate documentation to the Commission on Law Enforcement
  Officer Standards and Education].
         SECTION 2.  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 3.  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 police 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
  of Public Safety 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 of Public Safety 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 4.  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 5.  Section 15, Article 18.21, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 15.  SUBPOENA AUTHORITY.  The director of the
  department, [or] the director's designee, or a designated police
  agency may issue an administrative subpoena to a communications
  common carrier or an electronic communications service to compel
  the production of the carrier's or service's business records that:
               (1)  disclose information about:
                     (A)  the carrier's or service's customers; or
                     (B)  users of the services offered by the carrier
  or service; and
               (2)  are material to a criminal investigation.
         SECTION 6.  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 7.  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, 2007.
 
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