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A BILL TO BE ENTITLED
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AN ACT
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relating to warrants or orders issued to obtain location |
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information from wireless communications devices and to public |
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access to law enforcement or prosecutor requests for certain |
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related location or communication information. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 18.02, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 18.02. GROUNDS FOR ISSUANCE. (a) A search warrant may |
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be issued to search for and seize: |
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(1) property acquired by theft or in any other manner |
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which makes its acquisition a penal offense; |
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(2) property specially designed, made, or adapted for |
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or commonly used in the commission of an offense; |
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(3) arms and munitions kept or prepared for the |
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purposes of insurrection or riot; |
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(4) weapons prohibited by the Penal Code; |
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(5) gambling devices or equipment, altered gambling |
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equipment, or gambling paraphernalia; |
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(6) obscene materials kept or prepared for commercial |
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distribution or exhibition, subject to the additional rules set |
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forth by law; |
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(7) a drug, controlled substance, immediate |
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precursor, chemical precursor, or other controlled substance |
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property, including an apparatus or paraphernalia kept, prepared, |
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or manufactured in violation of the laws of this state; |
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(8) any property the possession of which is prohibited |
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by law; |
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(9) implements or instruments used in the commission |
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of a crime; |
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(10) property or items, except the personal writings |
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by the accused, constituting evidence of an offense or constituting |
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evidence tending to show that a particular person committed an |
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offense; |
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(11) persons; |
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(12) contraband subject to forfeiture under Chapter 59 |
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of this code; [or] |
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(13) electronic customer data held in electronic |
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storage, including the contents of and records and other |
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information related to a wire communication or electronic |
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communication held in electronic storage; or |
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(14) location information. |
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(b) For purposes of Subsections [Subsection] (a)(13) and |
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(14), "electronic communication," "electronic storage," and "wire |
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communication" have the meanings assigned by Article 18.20, and |
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"electronic customer data" and "location information" have [has] |
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the meanings [meaning] assigned by Article 18.21. |
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SECTION 2. Section 1, Article 18.21, Code of Criminal |
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Procedure, is amended by adding Subdivision (4-a) to read as |
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follows: |
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(4-a) "Location information" means any information |
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that: |
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(A) concerns the location of a cellular telephone |
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or other wireless communications device; and |
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(B) is wholly or partly generated by or derived |
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from the operation of the device. |
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SECTION 3. Section 2, Article 18.21, Code of Criminal |
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Procedure, is amended by amending Subsection (g) and adding |
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Subsection (g-1) to read as follows: |
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(g) At the request of the prosecutor or a peace officer, the |
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[The] district court may [shall] seal the [an] application and |
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order as provided by [granted under] this subsection. The |
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application and order may be sealed for an initial period not to |
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exceed 180 days. For good cause shown, the court may grant one or |
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more additional one-year periods. With respect to any application |
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that is or becomes subject to disclosure, on a judicial |
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determination that the disclosure of identifying information for a |
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person who is a victim, witness, peace officer, or informant would |
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cause an adverse result as defined by Section 8(b), the court shall |
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redact the identifying information from the application and from |
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the record of the application retained and submitted as described |
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by Subsection (g-1). On a showing of clear and convincing evidence |
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that disclosure of identifying personal information would cause an |
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adverse result, the court may permanently seal the application |
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[article]. |
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(g-1) The court shall retain a record of any application |
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made or order granted under this section and submit the record to |
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the department in accordance with Section 17. |
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SECTION 4. Article 18.21, Code of Criminal Procedure, is |
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amended by adding Section 14A to read as follows: |
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Sec. 14A. WARRANT FOR LOCATION INFORMATION FROM CELLULAR |
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TELEPHONE OR OTHER WIRELESS COMMUNICATIONS DEVICE. (a) A district |
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judge may issue a warrant for location information provided by the |
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mobile tracking features of a cellular telephone or other wireless |
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communications device. A warrant under this section may be issued |
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in the same judicial district as, or in a judicial district that is |
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contiguous to the same judicial district as, the site of: |
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(1) the investigation; or |
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(2) the person, vehicle, container, item, or object |
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the movement of which will be tracked by the location information |
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obtained from the wireless communications device. |
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(b) The warrant may authorize the acquisition of location |
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information obtained from a wireless communications device that, at |
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the time the location information is acquired, is located outside |
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the judicial district but within the state if the applicant for the |
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warrant reasonably believes the device to be located within the |
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district at the time the warrant is issued. |
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(c) A district judge may issue the warrant only on the |
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application of a peace officer. An application must be written and |
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signed and sworn to or affirmed before the judge. The affidavit |
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must: |
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(1) state the name, department, agency, and address of |
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the applicant; |
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(2) identify the wireless communications device to be |
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monitored; |
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(3) state the name of the owner or possessor of the |
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device to be monitored; |
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(4) state the judicial district in which the device is |
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reasonably expected to be located; and |
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(5) state the facts and circumstances that provide the |
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applicant with probable cause to believe that: |
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(A) criminal activity has been, is, or will be |
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committed; and |
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(B) acquisition of location information from the |
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device is likely to produce evidence in a criminal investigation of |
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the criminal activity described in Paragraph (A). |
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(d) A warrant issued under this section must be executed |
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within the period provided by Article 18.07 by properly serving the |
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warrant on a communication common carrier, an electronic |
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communications service, or a remote computing service. A warrant |
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issued under this section expires not later than the 90th day after |
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the date the warrant is issued, and location information may not be |
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obtained after the expiration date without an extension of the |
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warrant. For good cause shown, the judge may grant an extension for |
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an additional 90-day period. |
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(e) At the request of a peace officer, the district court |
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may seal the application and warrant as provided by this |
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subsection. The application and warrant may be sealed for an |
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initial period not to exceed 180 days. For good cause shown, the |
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court may grant one or more additional one-year periods. With |
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respect to any application that is or becomes subject to |
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disclosure, on a judicial determination that the disclosure of |
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identifying information for a person who is a victim, witness, |
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peace officer, or informant would cause an adverse result as |
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defined by Section 8(b), the court shall redact the identifying |
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information from the application and from the record of the |
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application retained and submitted as described by Subsection (f). |
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On a showing of clear and convincing evidence that disclosure of |
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identifying personal information would cause an adverse result, the |
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court may permanently seal the application. |
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(f) The court shall retain a record of any application made |
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or warrant issued under this section and submit the record to the |
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department in accordance with Section 17. |
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(g) Notwithstanding any other law, location information may |
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be obtained from a wireless communications device without a warrant |
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by: |
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(1) a private entity or a peace officer if the device |
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is reported stolen by the owner; or |
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(2) a peace officer if: |
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(A) there exists an immediate life-threatening |
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situation, as defined by Section 1(22), Article 18.20; or |
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(B) the officer reasonably believes the device is |
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in the possession of a fugitive from justice for whom an arrest |
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warrant has been issued for committing a felony offense. |
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(h) A peace officer may apply for, and a district court may |
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issue, an order authorizing the officer to obtain location |
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information from a wireless communications device on the officer's |
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showing that there are reasonable grounds to believe that the |
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device is in the possession of a fugitive from justice for whom an |
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arrest warrant has been issued for committing a felony offense. |
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(i) Regardless of whether an order has been issued with |
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respect to the matter under Subsection (h), a peace officer must |
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apply for a warrant to obtain location information from a wireless |
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communications device under Subsection (g)(2) as soon as |
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practicable. If the district judge finds that the applicable |
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situation under Subsection (g)(2) did not occur and declines to |
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issue the warrant, any evidence obtained is not admissible in a |
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criminal action. |
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SECTION 5. Section 15(a), Article 18.21, Code of Criminal |
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Procedure, is amended to read as follows: |
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(a) The director of the department or the director's |
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designee, the inspector general of the Texas Department of Criminal |
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Justice or the inspector general's designee, or the sheriff or |
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chief of a [designated] law enforcement agency or the sheriff's or |
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chief's designee may issue an administrative subpoena to a |
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communication [communications] common carrier, [or] an electronic |
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communications service, or a remote computing service to compel the |
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production of the carrier's or service's business records that: |
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(1) disclose information, excluding any location |
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information, about: |
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(A) the carrier's or service's customers; or |
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(B) users of the services offered by the carrier |
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or service; and |
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(2) are material to a criminal investigation. |
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SECTION 6. Article 18.21, Code of Criminal Procedure, is |
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amended by adding Section 15A to read as follows: |
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Sec. 15A. COMPELLING PRODUCTION OF BUSINESS RECORDS |
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DISCLOSING LOCATION INFORMATION. On application by the director of |
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the department or the director's designee, the inspector general of |
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the Texas Department of Criminal Justice or the inspector general's |
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designee, or the sheriff or chief of a law enforcement agency or the |
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sheriff's or chief's designee, the district court may issue a |
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warrant pursuant to Article 18.02 to a communication common |
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carrier, an electronic communications service, or a remote |
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computing service to compel the production of the carrier's or |
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service's business records that disclose location information |
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about the carrier's or service's customers or users of the |
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services offered by the carrier or service, if there is probable |
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cause to believe the records disclosing location information will |
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provide evidence in a criminal investigation. |
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SECTION 7. Article 18.21, Code of Criminal Procedure, is |
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amended by adding Section 17 to read as follows: |
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Sec. 17. ANNUAL REPORT OF WARRANTS AND ORDERS. (a) Not |
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later than the 60th day after the date of expiration of a warrant or |
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order issued under this article or an order extending the period of |
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a warrant or order issued under this article, or not later than the |
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60th day after the date the court denies an application for a |
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warrant or order under this article, the court shall submit to the |
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department the following information, as applicable: |
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(1) the receipt of an application for a warrant or |
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order under this article; |
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(2) the type of warrant or order for which the |
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application was made; |
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(3) whether any application for an order of extension |
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was granted, granted as modified by the court, or denied; |
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(4) the period of monitoring authorized by the warrant |
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or order and the number and duration of any extensions of the |
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warrant or order; |
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(5) the offense under investigation, as specified in |
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the application for the warrant or order or an extension of the |
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warrant or order; and |
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(6) the law enforcement agency or prosecutor that |
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submitted an application for the warrant or order or an extension of |
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the warrant or order. |
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(b) Not later than March 15 of each year, each prosecutor |
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that submits an application for a warrant or order or an extension |
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of a warrant or order under this article shall submit to the |
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department the following information for the preceding calendar |
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year: |
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(1) the information required to be submitted by a |
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court under Subsection (a) with respect to each application |
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submitted by the prosecutor for the warrant or order or an extension |
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of the warrant or order; |
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(2) a general description of information collected |
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under each warrant or order that was issued by the court, including |
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the approximate number of individuals for whom location information |
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was intercepted and the approximate duration of the monitoring of |
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the location information of those individuals; |
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(3) the number of arrests made as a result of |
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information obtained under a warrant or order issued under this |
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article; |
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(4) the number of criminal trials commenced as a |
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result of information obtained under a warrant or order issued |
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under this article; and |
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(5) the number of convictions obtained as a result of |
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information obtained under a warrant or order issued under this |
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article. |
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(c) Information submitted to the department under this |
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section is public information and subject to disclosure under |
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Chapter 552, Government Code. |
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(d) Not later than June 1 of each year, the public safety |
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director of the department shall submit a report to the governor, |
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the lieutenant governor, the speaker of the house of |
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representatives, and the chairs of the standing committees of the |
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senate and house of representatives with primary jurisdiction over |
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criminal justice. The report must contain the following |
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information for the preceding calendar year: |
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(1) an assessment of the extent of tracking or |
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monitoring by law enforcement agencies of pen register, trap and |
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trace, ESN reader, and location information; |
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(2) a comparison of the ratio of the number of |
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applications for warrants or orders made under this article to the |
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number of arrests and convictions resulting from information |
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obtained under a warrant or order issued under this article; and |
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(3) identification of the types of offenses |
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investigated under a warrant or order issued under this article. |
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SECTION 8. This Act takes effect September 1, 2015. |