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A BILL TO BE ENTITLED
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AN ACT
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relating to warrants issued to obtain cell site information through |
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the use of a cell site simulator device; public access to certain |
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information relating to investigatory equipment; creating criminal |
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offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 18.02(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) A search warrant may 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) cell site information as defined by Article |
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18.21. |
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SECTION 2. The heading to Article 18.21, Code of Criminal |
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Procedure, is amended to read as follows: |
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Art. 18.21. CELL SITE SIMULATOR DEVICES, PEN REGISTERS, ESN |
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READERS, AND TRAP AND TRACE DEVICES; ACCESS TO STORED |
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COMMUNICATIONS; MOBILE TRACKING DEVICES |
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SECTION 3. Section 1, Article 18.21, Code of Criminal |
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Procedure, is amended by adding Subdivisions (2-a) and (2-b) to |
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read as follows: |
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(2-a) "Cell site information" means any information, |
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including the content of a wire communication or electronic |
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communication, that is obtained from a cellular telephone or other |
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wireless communications device by operation of a cell site |
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simulator device and that concerns the location of the telephone or |
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device or reveals the identity of the subscriber or customer of a |
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communication common carrier, an electronic communications |
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service, or a remote computing service. |
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(2-b) "Cell site simulator device" means an |
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international mobile subscriber identity catcher or other device or |
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equipment that mimics a cellular telephone tower by transmitting to |
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cellular telephones or other wireless communications devices |
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within range of the device a signal that causes those cellular |
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telephones or other wireless communications devices to send cell |
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site information to the device. |
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SECTION 4. Article 18.21, Code of Criminal Procedure, is |
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amended by adding Sections 14A and 17 to read as follows: |
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Sec. 14A. WARRANT FOR CELL SITE INFORMATION. (a) A |
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district judge may issue a warrant for the use of a cell site |
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simulator device to obtain cell site information from a cellular |
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telephone or other wireless communications device. |
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(b) A warrant under this section may be issued in the same |
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judicial district as the site of: |
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(1) the investigation; |
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(2) the person who owns or possesses the cellular |
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telephone or other wireless communications device with respect to |
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which the warrant is sought; or |
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(3) the cellular telephone or other wireless |
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communications device with respect to which the warrant is sought. |
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(c) The warrant may authorize the acquisition of cell site |
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information obtained from a cellular telephone or other wireless |
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communications device that, at the time the cell site information |
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is acquired, is located outside the judicial district but within |
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the state if the applicant for the warrant reasonably believes the |
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telephone or device to be located within the district at the time |
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the warrant is issued. |
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(d) A district judge may issue the warrant only on the |
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application of an authorized peace officer. An application must be |
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written and signed and sworn to or affirmed before the judge. The |
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affidavit 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 cellular telephone or other wireless |
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communications device to be monitored; |
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(3) state the name of the owner or possessor of the |
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telephone or device to be monitored; |
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(4) state the judicial district in which the telephone |
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or device is 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 cell site information from the |
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telephone or device is likely to produce evidence in a criminal |
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investigation of the criminal activity described in Paragraph (A). |
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(e) A warrant issued under this section expires not later |
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than the 90th day after the date the warrant is issued, and cell |
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site information may not be obtained after the expiration date |
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without an extension of the warrant. For good cause shown, the |
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judge may grant an extension for an additional 90-day period. |
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(f) Notwithstanding any other law, a peace officer may |
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obtain cell site information from a cellular telephone or other |
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wireless communications device by operation of a cell site |
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simulator device and without a warrant if: |
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(1) the telephone or device is reported stolen by the |
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owner or possessor; or |
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(2) there exists an immediate life-threatening |
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situation, as defined by Section 1(22), Article 18.20, that: |
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(A) is in the territorial jurisdiction of the law |
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enforcement agency that employs: |
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(i) the officer operating the device; or |
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(ii) a peace officer the officer operating |
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the device is assisting; and |
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(B) to prevent death or serious bodily injury, |
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necessitates the use of the device before a warrant may be obtained |
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under this section. |
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(g) An authorized peace officer must apply as soon as |
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practicable for a warrant to obtain cell site information from a |
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cellular telephone or other wireless communications device under a |
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circumstance described by Subsection (f)(2). If the district judge |
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finds that an immediate life-threatening situation did not occur |
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and declines to issue the warrant, any evidence obtained is not |
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admissible in a criminal action. |
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(h) Not later than the seventh day after the date of the |
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expiration of a warrant under this section or after the date of the |
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expiration of any additional period under Subsection (e), as |
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applicable, the authorized peace officer who requested the warrant |
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shall deliver a copy of the warrant to the owner or possessor of the |
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cellular telephone or other wireless communications device |
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searched by the cell site simulator device. |
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(i) A peace officer commissioned by the state or by a |
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political subdivision of the state may not obtain or use cell site |
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information to assist with, participate in, provide material |
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support or resources for, or enable or facilitate an investigation |
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conducted by a law enforcement agency of the federal government or |
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of another state: |
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(1) without: |
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(A) the consent of the owner or possessor of the |
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cellular telephone or other wireless communications device; or |
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(B) a warrant obtained under this section; or |
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(2) unless Subsection (f) or another exception to the |
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warrant requirement provided under state or federal law applies. |
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Sec. 17. CONTROL OF CELL SITE SIMULATOR DEVICE. Except as |
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otherwise provided by this section, only the department or a county |
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or municipal law enforcement agency is authorized to own, possess, |
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install, operate, or monitor a cell site simulator device. |
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SECTION 5. Article 39.14(c), Code of Criminal Procedure, is |
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amended to read as follows: |
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(c) Except as otherwise provided by this subsection, if [If] |
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only a portion of the applicable document, item, or information is |
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subject to discovery under this article, the state is not required |
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to produce or permit the inspection of the remaining portion that is |
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not subject to discovery and may withhold or redact that portion. |
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The state shall inform the defendant that a portion of the document, |
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item, or information has been withheld or redacted. On request of |
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the defendant, the court shall conduct a hearing to determine |
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whether withholding or redaction is justified under this article or |
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other law. The state may not withhold on a claim of confidentiality |
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arising under a contract with any party, including under a |
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nondisclosure agreement, any portion of a document, an item, or |
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information that was obtained as a result of the execution of a |
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warrant under Section 14A, Article 18.21, and that is otherwise |
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discoverable under this article. |
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SECTION 6. Section 552.022(a), Government Code, is amended |
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to read as follows: |
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(a) Without limiting the amount or kind of information that |
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is public information under this chapter, the following categories |
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of information are public information and not excepted from |
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required disclosure unless made confidential under this chapter or |
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other law: |
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(1) a completed report, audit, evaluation, or |
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investigation made of, for, or by a governmental body, except as |
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provided by Section 552.108; |
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(2) the name, sex, ethnicity, salary, title, and dates |
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of employment of each employee and officer of a governmental body; |
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(3) information in an account, voucher, or contract |
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relating to the receipt or expenditure of public or other funds by a |
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governmental body; |
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(4) the name of each official and the final record of |
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voting on all proceedings in a governmental body; |
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(5) all working papers, research material, and |
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information used to estimate the need for or expenditure of public |
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funds or taxes by a governmental body, on completion of the |
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estimate; |
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(6) the name, place of business, and the name of the |
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municipality to which local sales and use taxes are credited, if |
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any, for the named person, of a person reporting or paying sales and |
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use taxes under Chapter 151, Tax Code; |
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(7) a description of an agency's central and field |
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organizations, including: |
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(A) the established places at which the public |
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may obtain information, submit information or requests, or obtain |
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decisions; |
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(B) the employees from whom the public may obtain |
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information, submit information or requests, or obtain decisions; |
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(C) in the case of a uniformed service, the |
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members from whom the public may obtain information, submit |
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information or requests, or obtain decisions; and |
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(D) the methods by which the public may obtain |
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information, submit information or requests, or obtain decisions; |
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(8) a statement of the general course and method by |
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which an agency's functions are channeled and determined, including |
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the nature and requirements of all formal and informal policies and |
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procedures; |
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(9) a rule of procedure, a description of forms |
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available or the places at which forms may be obtained, and |
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instructions relating to the scope and content of all papers, |
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reports, or examinations; |
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(10) a substantive rule of general applicability |
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adopted or issued by an agency as authorized by law, and a statement |
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of general policy or interpretation of general applicability |
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formulated and adopted by an agency; |
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(11) each amendment, revision, or repeal of |
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information described by Subdivisions (7)-(10); |
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(12) final opinions, including concurring and |
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dissenting opinions, and orders issued in the adjudication of |
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cases; |
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(13) a policy statement or interpretation that has |
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been adopted or issued by an agency; |
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(14) administrative staff manuals and instructions to |
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staff that affect a member of the public; |
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(15) information regarded as open to the public under |
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an agency's policies; |
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(16) information that is in a bill for attorney's fees |
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and that is not privileged under the attorney-client privilege; |
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(17) information that is also contained in a public |
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court record; [and] |
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(18) a settlement agreement to which a governmental |
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body is a party; and |
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(19) information regarding the purchase, sale, |
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receipt, possession, or use of investigatory equipment by a state |
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or local law enforcement agency or by a criminal justice agency of |
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the state or of a political subdivision of the state. |
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SECTION 7. Section 552.108, Government Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) This section does not except from the requirements of |
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Section 552.021 information regarding the purchase, sale, receipt, |
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possession, or use of investigatory equipment by a law enforcement |
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agency or by a criminal justice agency of the state or of a |
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political subdivision of the state. |
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SECTION 8. Subchapter C, Chapter 552, Government Code, is |
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amended by adding Section 552.1086 to read as follows: |
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Sec. 552.1086. INVESTIGATORY EQUIPMENT. (a) Information |
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described by Section 552.022(a)(19) remains subject to the |
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requirements of Section 552.021 regardless of whether that |
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information is included in a contract in which one of the parties is |
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the state, a state agency, a political subdivision of the state, or |
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an agency of a political subdivision of the state. |
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(b) A term included in a contract described by Subsection |
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(a) or in any nondisclosure agreement between the parties to that |
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contract is not effective to except from disclosure information |
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described by Section 552.022(a)(19). |
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SECTION 9. The heading to Section 16.03, Penal Code, is |
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amended to read as follows: |
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Sec. 16.03. UNLAWFUL USE OF CELL SITE SIMULATOR DEVICE, PEN |
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REGISTER, OR TRAP AND TRACE DEVICE. |
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SECTION 10. Section 16.03, Penal Code, is amended by |
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amending Subsections (a), (b), and (c) and adding Subsections |
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(a-1), (c-1), and (c-2) to read as follows: |
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(a) A person commits an offense if the person knowingly |
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installs or uses: |
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(1) a cell site simulator device to obtain cell site |
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information from a cellular telephone or other wireless |
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communications device; or |
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(2) a pen register or trap and trace device to record |
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or decode electronic or other impulses for the purpose of |
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identifying telephone numbers dialed or otherwise transmitted on a |
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telephone line. |
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(a-1) A person may not obtain or use cell site information |
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to assist with, participate in, provide material support or |
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resources for, or enable or facilitate an investigation conducted |
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by a law enforcement agency of the federal government or of another |
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state. |
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(b) In this section, "authorized peace officer," |
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"communications common carrier," "cell site information," "cell |
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site simulator device," "pen register," and "trap and trace device" |
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have the meanings assigned by Article 18.21, Code of Criminal |
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Procedure. |
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(c) It is an affirmative defense to prosecution under |
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Subsection (a) that the actor is: |
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(1) an officer, employee, or agent of a communications |
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common carrier or of the provider of an electronic communications |
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service or remote computing service and the actor installs or uses a |
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device or equipment to obtain information from a cellular telephone |
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or other wireless communications device or to record a number |
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dialed from or to a telephone [instrument] in the normal course of |
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business of the carrier or service provider for purposes of: |
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(A) protecting property or services provided by |
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the carrier or service provider; or |
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(B) assisting another who the actor reasonably |
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believes to be a peace officer authorized to install or use a cell |
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site simulator device, a pen register, or a trap and trace device |
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under Article 18.21, Code of Criminal Procedure; |
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(2) an officer, employee, or agent of a lawful |
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enterprise and the actor installs or uses a device or equipment |
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while engaged in an activity that: |
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(A) is a necessary incident to the rendition of |
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service or to the protection of property of or services provided by |
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the enterprise; and |
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(B) is not made for the purpose of gathering |
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information for a law enforcement agency or private investigative |
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agency, other than information related to the theft of |
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communication or information services provided by the enterprise; |
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or |
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(3) a person authorized to install or use a cell site |
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simulator device, a pen register, or a trap and trace device under |
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Article 18.21, Code of Criminal Procedure. |
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(c-1) It is an affirmative defense to prosecution under |
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Subsection (a) for the use of a cell site simulator device that the |
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owner or possessor of a cellular telephone or other wireless |
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communications device gave effective consent to the actor's |
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retrieval of cell site information from the telephone or device. |
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(c-2) It is an affirmative defense to prosecution under |
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Subsection (a-1) that the actor is a peace officer acting in |
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accordance with Section 14A(i), Article 18.21, Code of Criminal |
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Procedure. |
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SECTION 11. The changes in law made by this Act to Articles |
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18.02 and 18.21, Code of Criminal Procedure, apply only to a warrant |
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issued on or after the effective date of this Act. A warrant issued |
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before the effective date of this Act is governed by the law in |
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effect on the date the warrant was issued, and the former law is |
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continued in effect for that purpose. |
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SECTION 12. The change in law made by this Act to Article |
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39.14(c), Code of Criminal Procedure, applies only to the |
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prosecution of an offense committed on or after the effective date |
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of this Act. The prosecution of an offense committed before the |
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effective date of this Act is governed by the law in effect on the |
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date the offense was committed, and the former law is continued in |
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effect for that purpose. For purposes of this section, an offense |
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is committed before the effective date of this Act if any element of |
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the offense occurs before the effective date. |
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SECTION 13. The changes in law made by this Act to Chapter |
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552, Government Code, apply to information, records, and notations |
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collected, made, assembled, or maintained on, before, or after the |
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effective date of this Act. |
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SECTION 14. The change in law made by this Act to Section |
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16.03, Penal Code, applies only to an offense committed on or after |
|
the effective date of this Act. An offense committed before the |
|
effective date of this Act is governed by the law in effect on the |
|
date the offense was committed, and the former law is continued in |
|
effect for that purpose. For purposes of this section, an offense |
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was committed before the effective date of this Act if any element |
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of the offense occurred before that date. |
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SECTION 15. This Act takes effect September 1, 2015. |