83R4649 GCB-F

By: Hinojosa S.B. No. 786

A BILL TO BE ENTITLED

AN ACT

relating to warrants issued to obtain location information from wireless communications devices and to public access to law enforcement or prosecutor requests for certain related location or communication information.

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

SECTION 1. Article 18.02, Code of Criminal Procedure, is amended to read as follows:

Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;

(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;

(3) arms and munitions kept or prepared for the purposes of insurrection or riot;

(4) weapons prohibited by the Penal Code;

(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;

(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;

(7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime;

(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;

(11) persons; [or]

(12) contraband subject to forfeiture under Chapter 59 of this code; or

(13) location information as defined by Article 18.21.

SECTION 2. Section 1, Article 18.21, Code of Criminal Procedure, is amended by adding Subdivision (4-a) to read as follows:

(4-a) "Location information" means any information that:

(A) concerns the location of a cellular telephone or other wireless communications device; and

(B) is wholly or partly generated by or derived from the operation of the device.

SECTION 3. Section 2(g), Article 18.21, Code of Criminal Procedure, is amended to read as follows:

(g) At the request of the prosecutor or an authorized peace officer, the [The] district court may [shall] seal an application and order granted under this article. The application and order may be sealed only for an initial period not to exceed 180 days, except that for good cause shown the court may grant an additional 180-day period. The court shall retain a record of any application made or order granted under this article and submit the record to the department in accordance with Section 17.

SECTION 4. Article 18.21, Code of Criminal Procedure, is amended by adding Section 14A to read as follows:

Sec. 14A. WARRANT FOR LOCATION INFORMATION FROM CELLULAR TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE. (a) A district judge may issue a warrant for location information provided by the preinstalled mobile tracking features of a cellular telephone or other wireless communications device. A warrant under this section may be issued only in the same judicial district as the site of:

(1) the investigation; or

(2) the person, vehicle, container, item, or object the movement of which will be tracked by the location information obtained from the wireless communications device.

(b) The warrant may authorize the acquisition of location information obtained from a wireless communications device that, at the time the location information is acquired, is located outside the judicial district but within the state if the applicant for the warrant reasonably believes the device to be located within the district at the time the warrant is issued.

(c) A district judge may issue the warrant only on the application of an authorized peace officer. An application must be written and signed and sworn to or affirmed before the judge. The affidavit must:

(1) state the name, department, agency, and address of the applicant;

(2) identify the wireless communications device to be monitored;

(3) state the name of the owner or possessor of the device to be monitored;

(4) state the judicial district in which the device is reasonably expected to be located; and

(5) state the facts and circumstances that provide the applicant with probable cause to believe that:

(A) criminal activity has been, is, or will be committed; and

(B) acquisition of location information from the device is likely to produce evidence in a criminal investigation of the criminal activity described in Paragraph (A).

(d) A warrant issued under this section must be executed within the period provided by Article 18.07 by properly serving the warrant on a communication common carrier or an electronic communications service. A warrant issued under this section expires not later than the 90th day after the date the warrant is issued, and location information may not be obtained after the expiration date without an extension of the warrant. For good cause shown, the judge may grant an extension for an additional 90-day period. The court shall retain a record of any application made or order granted under this section and submit the record to the department in accordance with Section 17.

(e) A wireless communications device may be monitored without a warrant by a private entity or authorized peace officer if:

(1) the device is reported stolen by the owner; or

(2) there exists an immediate life-threatening situation.

(f) An authorized peace officer must apply for a warrant for monitoring a wireless communications device under Subsection (e)(2) as soon as practicable. If the district judge finds that an immediate life-threatening situation did not occur and declines to issue the warrant, any evidence obtained is not admissible in a criminal action.

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

(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 communication [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, excluding any location 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. Article 18.21, Code of Criminal Procedure, is amended by adding Section 15A to read as follows:

Sec. 15A. COMPELLING PRODUCTION OF BUSINESS RECORDS DISCLOSING LOCATION INFORMATION. On application by 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, the district court may issue a warrant pursuant to Article 18.02 to a communication common carrier or an electronic communications service to compel the production of the carrier's or service's business records that disclose location information about the carrier's or service's customers or users of the services offered by the carrier or service, if there is probable cause to believe the records disclosing location information will provide evidence in a criminal investigation.

SECTION 7. Article 18.21, Code of Criminal Procedure, is amended by adding Section 17 to read as follows:

Sec. 17. ANNUAL REPORT OF WARRANTS AND ORDERS. (a) Not later than January 15 of each year, a communication common carrier or electronic communications service doing business in this state shall report to the department the following information for the preceding calendar year, disaggregated by each law enforcement agency in this state making the applicable requests:

(1) the number of requests made for pen register or trap and trace information;

(2) the number of requests made for ESN reader information;

(3) the number of requests made for location information;

(4) the number of individuals whose location information was disclosed; and

(5) the amount that each law enforcement agency was billed by the communication common carrier or electronic communications service for each request made under Subdivision (1), (2), or (3).

(b) Not later than the 30th day after the date of expiration of a warrant or order issued under this article or an order extending the period of a warrant or order issued under this article, or not later than the 30th day after the date the court denies an application for a warrant or order under this article, the court shall submit to the department the following information, as applicable:

(1) the receipt of an application for a warrant or order under this article;

(2) the type of warrant or order for which the application was made;

(3) whether any application for an order of extension was granted, granted as modified by the court, or denied;

(4) the period of monitoring authorized by the warrant or order and the number and duration of any extensions of the warrant or order;

(5) the offense under investigation, as specified in the application for the warrant or order or an extension of the warrant or order; and

(6) the law enforcement agency or prosecutor that submitted an application for the warrant or order or an extension of the warrant or order.

(c) Not later than January 15 of each year, each prosecutor that submits an application for a warrant or order or an extension of a warrant or order under this article shall submit to the department the following information for the preceding calendar year:

(1) the information required to be submitted by a court under Subsection (b) with respect to each application submitted by the prosecutor for the warrant or order or an extension of the warrant or order;

(2) a general description of information collected under each warrant or order that was issued by the court, including the approximate number of individuals for whom location information was intercepted and the approximate duration of the monitoring of the location information of those individuals;

(3) the number of arrests made as a result of information obtained under a warrant or order issued under this article;

(4) the number of criminal trials commenced as a result of information obtained under a warrant or order issued under this article; and

(5) the number of convictions obtained as a result of information obtained under a warrant or order issued under this article.

(d) Information submitted to the department under this section is public information and subject to disclosure under Chapter 552, Government Code.

(e) Not later than March 1 of each year, the public safety director of the department shall submit a report to the governor, the lieutenant governor, the speaker of the house of representatives, and the chairs of the standing committees of the senate and house of representatives with primary jurisdiction over criminal justice. The report must contain the following information for the preceding calendar year:

(1) an assessment of the extent of tracking or monitoring by law enforcement agencies of pen register, trap and trace, ESN reader, and location information;

(2) a comparison of the ratio of the number of applications for warrants or orders made under this article to the number of arrests and convictions resulting from information obtained under a warrant or order issued under this article;

(3) identification of the types of offenses investigated under a warrant or order issued under this article; and

(4) with respect to both state and local jurisdictions, an estimate of the total cost of conducting investigations under a warrant or order issued under this article.

SECTION 8. This Act takes effect September 1, 2013.