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A BILL TO BE ENTITLED
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AN ACT
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relating to certain offenses regarding the possession or use of a |
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cellular telephone by an inmate or defendant in a correctional or |
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detention facility and to the detection and monitoring of that |
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possession or use. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Sections 38.11(a) and (j), Penal Code, as |
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amended by Chapters 949 (H.B. 1575) and 1092 (H.B. 2077), Acts of |
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the 79th Legislature, Regular Session, 2005, are reenacted and |
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amended to read as follows: |
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(a) A person commits an offense if the person provides, or |
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possesses with the intent to provide: |
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(1) an alcoholic beverage, controlled substance, or |
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dangerous drug to an inmate of a correctional facility or to a |
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person in the custody of a secure correctional facility or secure |
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detention facility for juveniles, except on the prescription of a |
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physician or practitioner, as defined in Section 551.003, |
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Occupations Code; |
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(2) a deadly weapon to an inmate of a correctional |
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facility or to a person in the custody of a secure correctional |
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facility or secure detention facility for juveniles; |
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(3) a cellular telephone or other wireless |
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communications device or a component of one of those devices, |
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cigarette, tobacco product, or money to an inmate of a correctional |
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facility operated by or under contract with the Texas Department of |
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Criminal Justice or to a person in the custody of the Texas Youth |
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Commission or another [a] secure correctional facility for |
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juveniles or a secure detention facility for juveniles, except for |
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money that is provided for the benefit of the juvenile in accordance |
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with facility rules; |
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(4) a cellular telephone or money to a person confined |
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in a local jail regulated by the Commission on Jail Standards; or |
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(5) a cigarette or tobacco product to a person |
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confined in a local jail regulated by the Commission on Jail |
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Standards and in providing the cigarette or tobacco product the |
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person violates a rule or regulation adopted by the sheriff or jail |
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administrator that: |
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(A) prohibits the possession of a cigarette or |
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tobacco product by an inmate confined in the jail; or |
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(B) places restrictions on: |
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(i) the possession of a cigarette or |
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tobacco product by an inmate confined in the jail; or |
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(ii) the manner in which a cigarette or |
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tobacco product may be provided to an inmate confined in the jail. |
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(j) A person commits an offense if the person, while an |
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inmate of a correctional facility operated by or under contract |
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with the Texas Department of Criminal Justice or while in the |
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custody of the Texas Youth Commission or another [a] secure |
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correctional facility for juveniles or a secure detention facility |
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for juveniles, possesses a cellular telephone or other wireless |
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communications device or a component of one of those devices. |
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SECTION 2. Section 38.11(f), Penal Code, is amended by |
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adding Subdivision (6) to read as follows: |
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(6) "Component" means any item necessary for the |
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current, ongoing, or future operation of a cellular telephone or |
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other wireless communications device, including a subscriber |
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identity module card or functionally equivalent portable memory |
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chip, a battery or battery charger, and any number of minutes that |
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have been purchased or for which a contract has been entered into |
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and during which a cellular telephone or other wireless |
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communications device is capable of transmitting or receiving |
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communications. |
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SECTION 3. Section 38.11, Penal Code, is amended by adding |
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Subsection (k) to read as follows: |
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(k) A person commits an offense if, with the intent to |
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provide to or make a cellular telephone or other wireless |
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communications device or a component of one of those devices |
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available for use by an inmate of a correctional facility operated |
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by or under contract with the Texas Department of Criminal Justice |
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or by a person in the custody of the Texas Youth Commission or |
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another secure correctional facility for juveniles or a secure |
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detention facility for juveniles, the person: |
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(1) acquires a cellular telephone or other wireless |
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communications device or a component of one of those devices to be |
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delivered to the inmate or person in custody; |
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(2) provides a cellular telephone or other wireless |
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communications device or a component of one of those devices to |
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another person for delivery to the inmate or person in custody; or |
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(3) makes a payment to a communication common carrier, |
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as defined by Article 18.20, Code of Criminal Procedure, or to any |
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communication service that provides to its users the ability to |
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send or receive wire or electronic communications. |
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SECTION 4. The heading to Article 18.20, Code of Criminal |
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Procedure, is amended to read as follows: |
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Art. 18.20. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, |
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OR ELECTRONIC COMMUNICATIONS. |
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SECTION 5. Section 4, Article 18.20, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 4. OFFENSES FOR WHICH INTERCEPTIONS MAY BE |
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AUTHORIZED. A judge of competent jurisdiction may issue an order |
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authorizing interception of wire, oral, or electronic |
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communications only if the prosecutor applying for the order shows |
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probable cause to believe that the interception will provide |
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evidence of the commission of: |
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(1) a felony under Section 19.02, 19.03, or 43.26, |
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Penal Code; |
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(2) a felony under: |
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(A) Chapter 481, Health and Safety Code, other |
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than felony possession of marihuana; |
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(B) Section 485.032 [485.033], Health and Safety |
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Code; or |
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(C) Chapter 483, Health and Safety Code; |
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(3) an offense under Section 20.03 or 20.04, Penal |
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Code; |
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(4) an offense under Chapter 20A, Penal Code; |
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(5) an offense under Chapter 34, Penal Code, if the |
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criminal activity giving rise to the proceeds involves the |
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commission of an offense under Title 5, Penal Code, or an offense |
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under federal law or the laws of another state containing elements |
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that are substantially similar to the elements of an offense under |
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Title 5; [or] |
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(6) an offense under Section 38.11, Penal Code; or |
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(7) an attempt, conspiracy, or solicitation to commit |
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an offense listed in this section. |
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SECTION 6. Section 5, Article 18.20, Code of Criminal |
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Procedure, is amended by amending Subsection (a) and adding |
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Subsections (c) and (d) to read as follows: |
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(a) Except as otherwise provided by this section and |
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Sections [Section] 8A and 8B, only the Department of Public Safety |
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is authorized by this article to own, possess, install, operate, or |
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monitor an electronic, mechanical, or other device. The Department |
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of Public Safety may be assisted by an investigative or law |
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enforcement officer or other person in the operation and monitoring |
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of an interception of wire, oral, or electronic communications, |
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provided that the officer or other person: |
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(1) is designated by the director for that purpose; |
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and |
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(2) acts in the presence and under the direction of a |
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commissioned officer of the Department of Public Safety. |
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(c) The Texas Department of Criminal Justice may own |
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electronic, mechanical, or other devices for a use or purpose |
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authorized by Section 500.008, Government Code, and the inspector |
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general of the Texas Department of Criminal Justice, a commissioned |
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officer of that office, or another person acting in the presence and |
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under the direction of a commissioned officer of that office may |
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possess, install, operate, or monitor those devices as provided by |
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Section 500.008. |
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(d) The Texas Youth Commission may own electronic, |
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mechanical, or other devices for a use or purpose authorized by |
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Section 61.0455, Human Resources Code, and the inspector general of |
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the Texas Youth Commission, a commissioned officer of that office, |
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or another person acting in the presence and under the direction of |
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a commissioned officer of that office may possess, install, |
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operate, or monitor those devices as provided by Section 61.0455. |
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SECTION 7. Article 18.20, Code of Criminal Procedure, is |
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amended by adding Section 8B to read as follows: |
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Sec. 8B. DETECTION OF CELLULAR TELEPHONE OR OTHER WIRELESS |
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COMMUNICATIONS DEVICE IN CORRECTIONAL OR DETENTION FACILITY. (a) |
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In this section, "correctional facility" has the meaning assigned |
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by Section 39.04(e), Penal Code. |
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(b) Notwithstanding any other provision of this article or |
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Article 18.21, the office of the inspector general of the Texas |
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Department of Criminal Justice may: |
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(1) without a warrant, use electronic, mechanical, or |
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other devices to detect the presence or use of a cellular telephone |
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or other wireless communications device in a correctional facility; |
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(2) without a warrant, intercept, monitor, detect, or, |
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as authorized by applicable federal laws and regulations, prevent |
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the transmission of any communication transmitted through the use |
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of a cellular telephone or other wireless communications device in |
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a correctional facility; and |
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(3) use, to the extent authorized by law, any |
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information obtained under Subdivision (2), including the contents |
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of an intercepted communication, in any criminal or civil |
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proceeding before a court or other governmental agency or entity. |
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(c) Not later than the 30th day after the date on which the |
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office of the inspector general uses an electronic, mechanical, or |
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other device under Subsection (b), the inspector general shall |
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report the use of the device to: |
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(1) a prosecutor with jurisdiction in the county in |
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which the device was used; or |
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(2) the special prosecution unit established under |
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Subchapter E, Chapter 41, Government Code, if that unit has |
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jurisdiction in the county in which the device was used. |
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(d) When using an electronic, mechanical, or other device |
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under Subsection (b), the office of the inspector general shall |
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minimize the impact of the device on any communication that is not |
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reasonably related to the detection of the presence or use of a |
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cellular telephone or other wireless communications device in a |
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correctional facility. |
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(e) A person confined in a correctional facility does not |
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have an expectation of privacy with respect to the possession or use |
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of a cellular telephone or other wireless communications device |
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located on the premises of the facility. The person who is |
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confined, and any person with whom that person communicates through |
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the use of a cellular telephone or other wireless communications |
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device, does not have an expectation of privacy with respect to the |
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contents of any communication transmitted by the cellular telephone |
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or wireless communications device. |
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SECTION 8. Section 17, Article 18.20, Code of Criminal |
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Procedure, is amended to read as follows: |
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Sec. 17. NONAPPLICABILITY. This article does not apply to |
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conduct described as an affirmative defense under Section 16.02(c), |
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Penal Code, except as otherwise specifically provided by that |
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section. |
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SECTION 9. Chapter 500, Government Code, is amended by |
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adding Section 500.008 to read as follows: |
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Sec. 500.008. DETECTION AND MONITORING OF CELLULAR |
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TELEPHONES. (a) The department may own and the office of inspector |
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general may possess, install, operate, or monitor an electronic, |
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mechanical, or other device, as defined by Article 18.20, Code of |
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Criminal Procedure. |
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(b) The inspector general shall designate in writing the |
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commissioned officers of the office of inspector general who are |
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authorized to possess, install, operate, and monitor electronic, |
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mechanical, or other devices for the department. |
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(c) An investigative or law enforcement officer or other |
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person, on request of the office of inspector general, may assist |
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the office in the operation and monitoring of an interception of |
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wire, oral, or electronic communications if the investigative or |
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law enforcement officer or other person: |
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(1) is designated by the executive director for that |
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purpose; and |
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(2) acts in the presence and under the direction of a |
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commissioned officer of the inspector general. |
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SECTION 10. Subchapter C, Chapter 61, Human Resources Code, |
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is amended by adding Section 61.0455 to read as follows: |
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Sec. 61.0455. DETECTION AND MONITORING OF CELLULAR |
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TELEPHONES. (a) The commission may own and the office of the |
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inspector general may possess, install, operate, or monitor an |
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electronic, mechanical, or other device, as defined by Article |
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18.20, Code of Criminal Procedure. |
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(b) The inspector general shall designate in writing the |
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commissioned officers of the office of inspector general who are |
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authorized to possess, install, operate, and monitor electronic, |
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mechanical, or other devices for the commission. |
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(c) An investigative or law enforcement officer or other |
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person, on request of the office of inspector general, may assist |
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the office in the operation and monitoring of an interception of |
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wire, oral, or electronic communications if the investigative or |
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law enforcement officer or other person: |
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(1) is designated by the executive commissioner for |
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that purpose; and |
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(2) acts in the presence and under the direction of a |
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commissioned officer of the inspector general. |
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SECTION 11. Section 16.02, Penal Code, is amended by adding |
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Subsection (e-1) to read as follows: |
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(e-1) It is a defense to prosecution under Subsection (d)(1) |
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that the electronic, mechanical, or other device is possessed by a |
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person authorized to possess the device under Section 500.008, |
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Government Code, or Section 61.0455, Human Resources Code. |
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SECTION 12. The changes in law made by this Act with respect |
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to Sections 16.02 and 38.11, Penal Code, apply only to an offense |
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committed on or after the effective date of this Act. An offense |
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committed before the effective date of this Act is governed by the |
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law in effect when the offense was committed, and the former law is |
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continued in effect for that purpose. For purposes of this section, |
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an offense was committed before the effective date of this Act if |
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any element of the offense occurred before that date. |
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SECTION 13. This Act takes effect September 1, 2009. |