By: Huffman S.B. No. 188
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to interception of wire, oral, or electronic
  communications for law enforcement purposes.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 1, Article 18.20, Code of Criminal
  Procedure, is amended by amending Subdivisions (8), (9), and (14)
  and adding Subdivision (27) to read as follows:
               (8)  "Prosecutor" means a district attorney, criminal
  district attorney, district attorney's or criminal district
  attorney's designee who is an assistant district attorney in the
  district attorney's or criminal district attorney's jurisdiction,
  or county attorney performing the duties of a district attorney,
  with jurisdiction in the county within an administrative judicial
  district described by Section 3(b).
               (9)  "Director" means the director of the Department of
  Public Safety or the director's designee who is an executive
  manager of[, if the director is absent or unable to serve, the
  assistant director of] the Department of Public Safety.
               (14)  "Pen register," "ESN reader," "trap and trace
  device," "designated law enforcement agency," and "mobile tracking
  device" have the meanings assigned by Article 18.21.
               (27)  "Chief law enforcement officer" means:
                     (A)  the head law enforcement officer of a
  designated law enforcement agency that is authorized to act under
  Section 5A, including the chief of police of a municipal police
  department and the sheriff of a county; or
                     (B)  the chief law enforcement officer's designee
  who is an executive manager of the designated law enforcement
  agency.
         SECTION 2.  Subsection (b), Section 3, Article 18.20, Code
  of Criminal Procedure, is amended to read as follows:
         (b)  Except as provided by Subsection (c), a judge appointed
  under Subsection (a) may act on an application for authorization to
  intercept wire, oral, or electronic communications if the judge is
  appointed as the judge of competent jurisdiction within the
  administrative judicial district in which the following is located:
               (1)  the site of:
                     (A)  the proposed interception; or
                     (B)  the interception device to be installed or
  monitored;
               (2)  the communication device to be intercepted;
               (3)  the billing, residential, or business address of
  the subscriber to the wire or electronic communications service to
  be intercepted;
               (4)  the headquarters of the law enforcement agency
  that makes a request for or executes an order authorizing an
  interception; or
               (5)  the headquarters of the service provider.
         SECTION 3.  Subsections (a) and (b), Section 5, Article
  18.20, Code of Criminal Procedure, are amended to read as follows:
         (a)  Except as otherwise provided by this section and
  Sections 8A and 8B, only the Department of Public Safety or, subject
  to Section 5A, a designated law enforcement agency is authorized by
  this article to own, possess, install, operate, or monitor an
  electronic, mechanical, or other device.  The Department of Public
  Safety or designated law enforcement agency may be assisted by an
  investigative or law enforcement officer or other person in the
  operation and monitoring of an interception of wire, oral, or
  electronic communications, provided that the officer or other
  person:
               (1)  is designated by the director or a chief law
  enforcement officer for that purpose; and
               (2)  acts in the presence and under the direction of:
                     (A)  a commissioned officer of the Department of
  Public Safety; or
                     (B)  a commissioned officer of the designated law
  enforcement agency who is trained for that purpose.
         (b)  The director or a chief law enforcement officer shall
  designate in writing the commissioned officers of the Department of
  Public Safety or designated law enforcement agency who are
  responsible for the possession, installation, operation, and
  monitoring of electronic, mechanical, or other devices for the
  department or designated law enforcement agency.
         SECTION 4.  Article 18.20, Code of Criminal Procedure, is
  amended by adding Section 5A to read as follows:
         Sec. 5A.  OVERSIGHT OF DESIGNATED LAW ENFORCEMENT AGENCIES
  BY THE DEPARTMENT.  (a)  To be eligible to intercept a wire, oral,
  or electronic communication under this article in a circumstance
  that is not an immediate life-threatening situation, a designated
  law enforcement agency must:
               (1)  adopt a written policy that addresses the
  application of this article to the agency and details the agency's
  protocol for intercepting wire, oral, or electronic
  communications; and
               (2)  submit the policy to the director for approval.
         (b)  The director shall approve or deny a policy submitted
  under Subsection (a). If the director approves a policy submitted
  under Subsection (a), the chief law enforcement officer of the
  designated law enforcement agency that submitted the policy shall
  submit to the director a written list of the commissioned peace
  officers of the agency who are authorized under Subsection (e) to
  possess, install, monitor, or operate wire, oral, or electronic
  communications interception equipment in a circumstance that is not
  an immediate life-threatening situation.
         (c)  A designated law enforcement agency is authorized to
  intercept wire, oral, or electronic communications under this
  article in a circumstance that is not an immediate life-threatening
  situation only if:
               (1)  the agency has complied with Subsections (a) and
  (b); and
               (2)  the director has approved the agency's policy.
         (d)  The Department of Public Safety may conduct an audit of
  a designated law enforcement agency to ensure compliance with a
  written policy adopted under Subsection (a) and with the other
  provisions of this article. If after conducting an audit the
  department determines that the designated law enforcement agency is
  not in compliance as described by this subsection, the department
  shall notify the agency in writing not later than the 30th day after
  the date of the determination.  If on the 90th day after the date the
  notice is received the department determines that the agency is not
  in compliance, the agency relinquishes the authority provided by
  this article until the agency is in compliance.
         (e)  To be authorized to operate or monitor the interception
  of a wire, oral, or electronic communication in a circumstance that
  is not an immediate life-threatening situation, a commissioned
  peace officer of a designated law enforcement agency must complete
  at least 16 hours of training regarding the interception of such
  communications.  The chief law enforcement officer of the officer's
  employing agency shall submit appropriate documentation of each
  authorized peace officer's completion of training to the Commission
  on Law Enforcement Officer Standards and Education.
         (f)  A designated law enforcement agency and the peace
  officers of that agency are not authorized to intercept a wire,
  oral, or electronic communication in an immediate life-threatening
  situation except as provided by Section 8A.
         SECTION 5.  Section 6, Article 18.20, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 6.  REQUEST FOR APPLICATION FOR INTERCEPTION.  (a)  The
  director or a chief law enforcement officer may, based on written
  affidavits, request in writing that a prosecutor apply for an order
  authorizing interception of wire, oral, or electronic
  communications.
         (b)  The head of a local law enforcement agency, other than a
  designated law enforcement agency authorized to act under Section
  5A, or, if the head of the local law enforcement agency is absent or
  unable to serve, the acting head of the local law enforcement agency
  may, based on written affidavits, request in writing that a
  prosecutor apply for an order authorizing interception of wire,
  oral, or electronic communications.  Prior to the requesting of an
  application under this subsection, the head of a local law
  enforcement agency must submit the request and supporting
  affidavits to the director or a chief law enforcement officer, who
  shall make a finding in writing whether the request and supporting
  affidavits establish that other investigative procedures have been
  tried and failed or they reasonably appear unlikely to succeed or to
  be too dangerous if tried, is feasible, is justifiable, and whether
  the Department of Public Safety or designated law enforcement
  agency, as applicable, has the necessary resources available. The
  prosecutor may file the application only after a written positive
  finding on all the above requirements by the director or a chief law
  enforcement officer.
         SECTION 6.  Subsection (d), Section 9, Article 18.20, Code
  of Criminal Procedure, is amended to read as follows:
         (d)  An order entered pursuant to this section may not
  authorize the interception of a wire, oral, or electronic
  communication for longer than is necessary to achieve the objective
  of the authorization and in no event may it authorize interception
  for more than 30 days. The initial period of interception begins on
  the earlier of the date the investigative or law enforcement
  officer begins to intercept communications or the 10th day after
  the date the interception order is entered.  The issuing judge may
  grant extensions of an order, but only on application for an
  extension made in accordance with Section 8 and the court making the
  findings required by Subsection (a).  The period of extension may
  not be longer than the authorizing judge deems necessary to achieve
  the purposes for which it is granted and in no event may the
  extension be for more than 30 days.  To be valid, each order and
  extension of an order must provide that the authorization to
  intercept be executed as soon as practicable, be conducted in a way
  that minimizes the interception of communications not otherwise
  subject to interception under this article, and terminate on
  obtaining the authorized objective or within 30 days, whichever
  occurs sooner. If the intercepted communication is in code or a
  foreign language and an expert in that code or language is not
  reasonably available during the period of interception,
  minimization may be accomplished as soon as practicable after the
  interception.
         SECTION 7.  Subsection (c), Section 15, Article 18.20, Code
  of Criminal Procedure, is amended to read as follows:
         (c)  Any judge or prosecutor required to file a report with
  the Administrative Office of the United States Courts shall forward
  a copy of the [such] report to the director of the Department of
  Public Safety. On or before March 1 of each year, the director
  shall submit to the governor; lieutenant governor; speaker of the
  house of representatives; chairman, senate jurisprudence
  committee; and chairman, house of representatives criminal
  jurisprudence committee a report of all intercepts as defined
  herein conducted pursuant to this article and terminated during the
  preceding calendar year. The [Such] report must [shall] include:
               (1)  the reports of judges and prosecuting attorneys
  forwarded to the director as required in this section;
               (2)  the number of Department of Public Safety
  personnel and designated law enforcement agency personnel
  authorized to possess, install, or operate electronic, mechanical,
  or other devices;
               (3)  the number of Department of Public Safety and
  other law enforcement personnel who participated or engaged in the
  seizure of intercepts pursuant to this article during the preceding
  calendar year; and
               (4)  the total cost to the Department of Public Safety
  and designated law enforcement agencies of all activities and
  procedures relating to the seizure of intercepts during the
  preceding calendar year, including costs of equipment, manpower,
  and expenses incurred as compensation for use of facilities or
  technical assistance provided to the department and designated law
  enforcement agencies.
         SECTION 8.  (a)  The changes in law made by this Act in
  amending Sections 1, 3, 5, and 6 and adding Section 5A, Article
  18.20, Code of Criminal Procedure, apply only to the interception
  of wire, oral, or electronic communications on or after the
  effective date of this Act.  The interception of wire, oral, or
  electronic communications before the effective date of this Act is
  governed by the law in effect when the interception occurred, and
  the former law is continued in effect for that purpose.
         (b)  The change in law made by this Act in amending Section 9,
  Article 18.20, Code of Criminal Procedure, applies only to a court
  order issued on or after the effective date of this Act. A court
  order issued before the effective date of this Act is governed by
  the law in effect on the date the court order was issued, and the
  former law is continued in effect for that purpose.
         SECTION 9.  This Act takes effect September 1, 2013.