82R19129 PEP-D

By: Madden H.B. No. 2354

A BILL TO BE ENTITLED

AN ACT

relating to the installation and use of a pen register, ESN reader, trap and trace device, mobile tracking device, or similar equipment in a correctional facility operated by or under contract with the Texas Department of Criminal Justice.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 1(2) and (3-a), Article 18.21, Code of Criminal Procedure, are amended to read as follows:

(2) "Authorized peace officer" means:

(A) a sheriff or a sheriff's deputy;

(B) a constable or deputy constable;

(C) a marshal or police officer of an incorporated city;

(D) a ranger or officer commissioned by the Public Safety Commission or the director of the Department of Public Safety;

(E) an investigator of a prosecutor's office;

(F) a law enforcement agent of the Alcoholic Beverage Commission;

(G) a law enforcement officer commissioned by the Parks and Wildlife Commission; or

(H) an enforcement officer appointed by the inspector general [executive director] of the Texas Department of Criminal Justice under Section 493.019, Government Code.

(3-a) "Designated law enforcement office or agency" means:

(A) the sheriff's department of a county with a population of 3.3 million or more; [or]

(B) a police department in a municipality with a population of 500,000 or more; or

(C) the office of inspector general of the Texas Department of Criminal Justice.

SECTION 2. Sections 2(b), (d), (e), (i), (j), (k), (l), and (m), Article 18.21, Code of Criminal Procedure, are amended 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 law enforcement office or 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 law enforcement office or 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 law enforcement office or 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 law enforcement office or 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 law enforcement office or agency.

(e) On presentation of the application, the judge may order the installation and use of the trap and trace device or similar equipment by the communication common carrier or other person on the appropriate line. The judge may direct the communication common carrier or other person, including any landlord or other custodian of equipment, to furnish all information, facilities, and technical assistance necessary to install or use the device or equipment unobtrusively and with a minimum of interference to the services provided by the communication common carrier, landlord, custodian, or other person. Unless otherwise ordered by the court, the results of the trap and trace device or similar equipment shall be furnished to the applicant, designated by the court, at reasonable intervals during regular business hours, for the duration of the order. The carrier is entitled to compensation at the prevailing rates for the facilities and assistance provided to the designated law enforcement office or agency.

(i) A peace officer of a designated law enforcement office or agency is authorized to possess, install, operate, or monitor a pen register, ESN reader, or similar equipment if the officer's name is on the list submitted to the director of the department under Subsection (k).

(j) Each designated law enforcement office or agency shall:

(1) adopt a written policy governing the application of this article to the office or agency; and

(2) submit the policy to the director of the department, or the director's designee, for approval.

(k) If the director of the department or the director's designee approves the policy submitted under Subsection (j), the inspector general of the Texas Department of Criminal Justice or the inspector general's designee, or the sheriff or chief of a designated law enforcement agency[, as applicable,] or the sheriff's or chief's designee, as applicable, shall submit to the director a written list of all officers in the designated law enforcement office or agency who are authorized to possess, install, monitor, or operate pen registers, ESN readers, or similar equipment.

(l) The department may conduct an audit of a designated law enforcement office or agency to ensure compliance with this article. If the department determines from the audit that the designated law enforcement office or agency is not in compliance with the policy adopted by the office or agency under Subsection (j), the department shall notify the office or agency in writing that it is not in compliance. If the department determines that the office or agency still is not in compliance with the policy 90 days after the date the office or agency receives written notice under this subsection, the office or agency loses the authority granted by this article until:

(1) the office or agency adopts a new written policy governing the application of this article to the office or agency; and

(2) the department approves the written policy.

(m) The inspector general of the Texas Department of Criminal Justice or the sheriff or chief of a designated law enforcement agency, as applicable, shall submit to the director of the department a written report of expenditures made by the designated law enforcement office or agency for the purchase and maintenance of a pen register, ESN reader, or similar equipment, authorized under this article [pursuant to Subsection (i)]. The director of the department shall report those [such] expenditures publicly on an annual basis via the department's website, or other comparable means.

SECTION 3. Section 6(e), Article 18.21, Code of Criminal Procedure, is amended to read as follows:

(e) The service provider may not destroy or permit the destruction of the copy until the information has been delivered to the designated law enforcement office or agency or until the resolution of any court proceedings, including appeals of any proceedings, relating to the subpoena or court order requesting the creation of the copy, whichever occurs last.

SECTION 4. Section 6(g)(2), Article 18.21, Code of Criminal Procedure, is amended to read as follows:

(2) The subscriber or customer shall give written notice to the service provider of the challenge to the subpoena or court order. The authorized peace officer or designated law enforcement office or agency requesting the subpoena or court order shall be served a copy of the papers filed by personal delivery or by registered or certified mail.

SECTION 5. Section 15, Article 18.21, Code of Criminal Procedure, is amended to read as follows:

Sec. 15. SUBPOENA AUTHORITY. (a) The director of the department or [,] the director's designee, the inspector general of the Texas Department of Criminal Justice or the inspector general's designee, or the sheriff or chief of a designated law enforcement agency[,] or the sheriff's or chief's designee[,] 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.

(b) Not later than the 30th day after the date on which the administrative subpoena is issued under Subsection (a), the inspector general of the Texas Department of Criminal Justice or the sheriff or chief of a designated law enforcement agency, as applicable, shall report the issuance of the subpoena to the department.

(c) If, based on reports received under Subsection (b), the department determines that a designated law enforcement office or agency is not in compliance with the policy adopted by the office or agency under Section 2(j), the department shall notify the office or agency in writing that it is not in compliance. If the department determines that the office or agency still is not in compliance with the policy 90 days after the date the office or agency receives written notice under this subsection, the office or agency loses the authority granted by this article until:

(1) the office or agency adopts a new written policy governing the application of this article to the office or agency; and

(2) the department approves the written policy.

SECTION 6. This Act takes effect September 1, 2011.