86R102 JCG-D
 
  By: Blanco H.B. No. 352
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to warrants issued to obtain cell site information through
  the use of a cell site simulator device and to public access to
  certain information relating to investigatory equipment; creating
  a criminal offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 18.02(a), Code of Criminal Procedure, is
  amended to read as follows:
         (a)  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;
               (12)  contraband subject to forfeiture under Chapter 59
  [of this code];
               (13)  electronic customer data held in electronic
  storage, including the contents of and records and other
  information related to a wire communication or electronic
  communication held in electronic storage; [or]
               (14)  a cellular telephone or other wireless
  communications device, subject to Article 18.0215; or
               (15)  cell site information as defined by Article
  18B.221.
         SECTION 2.  Chapter 18B, Code of Criminal Procedure, is
  amended by adding Subchapter E-1 to read as follows:
  SUBCHAPTER E-1. CELL SITE SIMULATOR DEVICES
         Art. 18B.221.  DEFINITIONS. In this subchapter:
               (1)  "Cell site information" means any information,
  including the content of a wire communication or electronic
  communication, that is obtained from a cellular telephone or other
  wireless communications device by operation of a cell site
  simulator device and that concerns the location of the telephone or
  device or reveals the identity of the subscriber or customer of a
  communication common carrier, an electronic communications
  service, or a remote computing service.
               (2)  "Cell site simulator device" means an
  international mobile subscriber identity catcher or other device or
  equipment that mimics a cellular telephone tower by transmitting to
  cellular telephones or other wireless communications devices
  within range of the device a signal that causes those cellular
  telephones or other wireless communications devices to send cell
  site information to the device.
         Art. 18B.222.  WARRANT FOR CELL SITE INFORMATION. (a) A
  district judge may issue a warrant for the use of a cell site
  simulator device to obtain cell site information from a cellular
  telephone or other wireless communications device.
         (b)  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 cellular telephone or other wireless
  communications device to be monitored;
               (3)  state the name of the owner or possessor of the
  cellular telephone or other wireless communications device to be
  monitored;
               (4)  state the judicial district in which the cellular
  telephone or other wireless communications 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 being, or will
  be committed; and
                     (B)  acquisition of cell site information from the
  cellular telephone or other wireless communications device is
  likely to produce evidence in a criminal investigation of the
  criminal activity described in Paragraph (A).
         Art. 18B.223.  JURISDICTION. (a) A warrant under this
  subchapter may be issued in the same judicial district as the site
  of:
               (1)  the investigation;
               (2)  the person who owns or possesses the cellular
  telephone or other wireless communications device with respect to
  which the warrant is sought; or
               (3)  the cellular telephone or other wireless
  communications device with respect to which the warrant is sought.
         (b)  The warrant may authorize the acquisition of cell site
  information obtained from a cellular telephone or other wireless
  communications device that, at the time the cell site information
  is acquired, is located outside the judicial district but within
  the state if the applicant for the warrant reasonably believes the
  telephone or device to be located within the district at the time
  the warrant is issued.
         Art. 18B.224.  DURATION OF WARRANT. (a) A warrant issued
  under this subchapter expires not later than the 90th day after the
  date the warrant is issued, and cell site information may not be
  obtained after the expiration date without an extension of the
  warrant.
         (b)  For good cause shown, the judge may grant an extension
  for an additional 90-day period.
         Art. 18B.225.  NOTIFICATION OF OWNER OR POSSESSOR. Not
  later than the seventh day after the date of the expiration of a
  warrant or the date of the expiration of any additional period, as
  applicable, the authorized peace officer who requested the warrant
  shall deliver a copy of the warrant to the owner or possessor of the
  cellular telephone or other wireless communications device
  searched by the cell site simulator device.
         Art. 18B.226.  ACCESS TO CELL SITE INFORMATION WITHOUT
  WARRANT. (a) Notwithstanding any other law, an authorized peace
  officer may obtain cell site information from a cellular telephone
  or other wireless communications device by operation of a cell site
  simulator device and without a warrant if:
               (1)  the telephone or device is reported stolen by the
  owner or possessor; or
               (2)  there exists an immediate life-threatening
  situation, as defined by Article 18A.201, that:
                     (A)  is in the territorial jurisdiction of the law
  enforcement agency that employs:
                           (i)  the authorized peace officer operating
  the device; or
                           (ii)  a peace officer the authorized peace
  officer operating the device is assisting; and
                     (B)  to prevent death or serious bodily injury,
  necessitates the use of the device before a warrant may be obtained
  under this subchapter.
         (b)  An authorized peace officer must apply as soon as
  practicable for a warrant to obtain cell site information from a
  cellular telephone or other wireless communications device under a
  circumstance described by Subsection (a)(2). If the district judge
  finds that an immediate life-threatening situation, as defined by
  Article 18A.201, did not occur and declines to issue the warrant,
  any evidence obtained is not admissible in a criminal action.
         Art. 18B.227.  PROHIBITED ACTS BY PEACE OFFICER. A peace
  officer may not obtain or use cell site information to assist with,
  participate in, provide material support or resources for, or
  enable or facilitate an investigation conducted by a law
  enforcement agency of the federal government or of another state:
               (1)  without:
                     (A)  the effective consent of the owner or
  possessor of the cellular telephone or other wireless
  communications device; or
                     (B)  a warrant obtained under this subchapter; or
               (2)  unless Article 18B.226 or another exception to the
  warrant requirement under state or federal law applies.
         Art. 18B.228.  CONTROL OF CELL SITE SIMULATOR DEVICE.
  Except as otherwise provided by this subchapter, only the
  department or a county or municipal law enforcement agency is
  authorized to own, possess, install, operate, or monitor a cell
  site simulator device.
         Art. 18B.229.  POLICY FOR DELETING EXTRANEOUS CELL SITE
  INFORMATION REQUIRED. A state or local law enforcement agency that
  obtains or uses a cell site simulator device shall adopt a written
  policy for promptly deleting any cell site information collected by
  the device that:
               (1)  is not relevant to a warrant issued under this
  subchapter authorizing the use of the device; or
               (2)  does not provide the agency with a reasonable
  suspicion that other criminal activity has been, is being, or will
  be committed.
         SECTION 3.  Article 39.14(c), Code of Criminal Procedure, is
  amended to read as follows:
         (c)  Except as otherwise provided by this subsection, if [If]
  only a portion of the applicable document, item, or information is
  subject to discovery under this article, the state is not required
  to produce or permit the inspection of the remaining portion that is
  not subject to discovery and may withhold or redact that portion.  
  The state shall inform the defendant that a portion of the document,
  item, or information has been withheld or redacted.  On request of
  the defendant, the court shall conduct a hearing to determine
  whether withholding or redaction is justified under this article or
  other law. The state may not withhold on a claim of confidentiality
  arising under a contract with any party, including under a
  nondisclosure agreement, any portion of a document, an item, or
  information that was obtained as a result of the execution of a
  warrant under Subchapter E-1, Chapter 18B, and that is otherwise
  discoverable under this article.
         SECTION 4.  Section 552.022(a), Government Code, is amended
  to read as follows:
         (a)  Without limiting the amount or kind of information that
  is public information under this chapter, the following categories
  of information are public information and not excepted from
  required disclosure unless made confidential under this chapter or
  other law:
               (1)  a completed report, audit, evaluation, or
  investigation made of, for, or by a governmental body, except as
  provided by Section 552.108;
               (2)  the name, sex, ethnicity, salary, title, and dates
  of employment of each employee and officer of a governmental body;
               (3)  information in an account, voucher, or contract
  relating to the receipt or expenditure of public or other funds by a
  governmental body;
               (4)  the name of each official and the final record of
  voting on all proceedings in a governmental body;
               (5)  all working papers, research material, and
  information used to estimate the need for or expenditure of public
  funds or taxes by a governmental body, on completion of the
  estimate;
               (6)  the name, place of business, and the name of the
  municipality to which local sales and use taxes are credited, if
  any, for the named person, of a person reporting or paying sales and
  use taxes under Chapter 151, Tax Code;
               (7)  a description of an agency's central and field
  organizations, including:
                     (A)  the established places at which the public
  may obtain information, submit information or requests, or obtain
  decisions;
                     (B)  the employees from whom the public may obtain
  information, submit information or requests, or obtain decisions;
                     (C)  in the case of a uniformed service, the
  members from whom the public may obtain information, submit
  information or requests, or obtain decisions; and
                     (D)  the methods by which the public may obtain
  information, submit information or requests, or obtain decisions;
               (8)  a statement of the general course and method by
  which an agency's functions are channeled and determined, including
  the nature and requirements of all formal and informal policies and
  procedures;
               (9)  a rule of procedure, a description of forms
  available or the places at which forms may be obtained, and
  instructions relating to the scope and content of all papers,
  reports, or examinations;
               (10)  a substantive rule of general applicability
  adopted or issued by an agency as authorized by law, and a statement
  of general policy or interpretation of general applicability
  formulated and adopted by an agency;
               (11)  each amendment, revision, or repeal of
  information described by Subdivisions (7)-(10);
               (12)  final opinions, including concurring and
  dissenting opinions, and orders issued in the adjudication of
  cases;
               (13)  a policy statement or interpretation that has
  been adopted or issued by an agency;
               (14)  administrative staff manuals and instructions to
  staff that affect a member of the public;
               (15)  information regarded as open to the public under
  an agency's policies;
               (16)  information that is in a bill for attorney's fees
  and that is not privileged under the attorney-client privilege;
               (17)  information that is also contained in a public
  court record; [and]
               (18)  a settlement agreement to which a governmental
  body is a party; and
               (19)  information regarding the purchase, sale,
  receipt, possession, or use of investigatory equipment by a state
  or local law enforcement agency or by a criminal justice agency of
  the state or of a political subdivision of the state.
         SECTION 5.  Section 552.108, Government Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  This section does not except from the requirements of
  Section 552.021 information regarding the purchase, sale, receipt,
  possession, or use of investigatory equipment by a state or local
  law enforcement agency or by a criminal justice agency of the state
  or of a political subdivision of the state.
         SECTION 6.  Subchapter C, Chapter 552, Government Code, is
  amended by adding Section 552.1086 to read as follows:
         Sec. 552.1086.  INVESTIGATORY EQUIPMENT.  (a)  Information
  described by Section 552.022(a)(19) remains subject to the
  requirements of Section 552.021 regardless of whether that
  information is included in a contract in which one of the parties is
  the state, a state agency, a political subdivision of the state, or
  an agency of a political subdivision of the state.
         (b)  A term included in a contract described by Subsection
  (a) or in any nondisclosure agreement between the parties to that
  contract is not effective to except from disclosure information
  described by Section 552.022(a)(19).
         SECTION 7.  The heading to Section 16.03, Penal Code, is
  amended to read as follows:
         Sec. 16.03.  UNLAWFUL USE OF CELL SITE SIMULATOR DEVICE, PEN
  REGISTER, OR TRAP AND TRACE DEVICE.
         SECTION 8.  Section 16.03, Penal Code, is amended by
  amending Subsections (a), (b), as effective January 1, 2019, and
  (c), as effective January 1, 2019, and adding Subsections (a-1),
  (c-1), and (c-2) to read as follows:
         (a)  A person commits an offense if the person knowingly
  installs or uses:
               (1)  a cell site simulator device to obtain cell site
  information from a cellular telephone or other wireless
  communications device; or
               (2)  a pen register or trap and trace device to record
  or decode electronic or other impulses for the purpose of
  identifying telephone numbers dialed or otherwise transmitted on a
  telephone line.
         (a-1)  A person commits an offense if the person knowingly
  obtains or uses cell site information to assist with, participate
  in, provide material support or resources for, or enable or
  facilitate an investigation conducted by a law enforcement agency
  of the federal government or of another state.
         (b)  In this section:
               (1)  "Authorized peace officer," "pen register,"
  "remote computing service," and "trap and trace device" have the
  meanings assigned by Article 18B.001, Code of Criminal Procedure.
               (2)  "Cell site information" and "cell site simulator
  device" have the meanings assigned by Article 18B.221, Code of
  Criminal Procedure.
               (3)  "Communication common carrier" and "electronic
  communications service" have [has] the meanings [meaning] assigned
  by Article 18A.001, Code of Criminal Procedure.
         (c)  It is an affirmative defense to prosecution under
  Subsection (a) that the actor is:
               (1)  an officer, employee, or agent of a communication
  common carrier or of the provider of an electronic communications
  service or remote computing service and the actor installs or uses a
  device or equipment to obtain information from a cellular telephone
  or other wireless communications device or to record a number
  dialed from or to a telephone [instrument] in the normal course of
  business of the carrier or service provider for purposes of:
                     (A)  protecting property or services provided by
  the carrier or service provider; or
                     (B)  assisting another who the actor reasonably
  believes to be a peace officer authorized to install or use a cell
  site simulator device, pen register, or trap and trace device under
  Chapter 18B, Code of Criminal Procedure;
               (2)  an officer, employee, or agent of a lawful
  enterprise and the actor installs or uses a device or equipment
  while engaged in an activity that:
                     (A)  is a necessary incident to the rendition of
  service or to the protection of property of or services provided by
  the enterprise; and
                     (B)  is not made for the purpose of gathering
  information for a law enforcement agency or private investigative
  agency, other than information related to the theft of
  communication or information services provided by the enterprise;
  or
               (3)  a person authorized to install or use a cell site
  simulator device, pen register, or trap and trace device under
  Chapter 18B, Code of Criminal Procedure.
         (c-1)  It is an affirmative defense to prosecution under
  Subsection (a) for the use of a cell site simulator device that the
  owner or possessor of a cellular telephone or other wireless
  communications device gave effective consent to the actor's
  retrieval of cell site information from the telephone or device.
         (c-2)  It is an affirmative defense to prosecution under
  Subsection (a-1) that the actor is an authorized peace officer and:
               (1)  the actor obtained the effective consent of the
  owner or possessor of the cellular telephone or other wireless
  communications device;
               (2)  a warrant authorizing the conduct has been
  obtained under Subchapter E-1, Chapter 18B, Code of Criminal
  Procedure; or
               (3)  Article 18B.226, Code of Criminal Procedure, or
  another exception to the warrant requirement under state or federal
  law applies.
         SECTION 9.  The changes in law made by this Act to Article
  18.02 and Chapter 18B, Code of Criminal Procedure, apply only to a
  warrant issued on or after the effective date of this Act. A
  warrant issued before the effective date of this Act is governed by
  the law in effect on the date the warrant was issued, and the former
  law is continued in effect for that purpose.
         SECTION 10.  The change in law made by this Act to Article
  39.14(c), Code of Criminal Procedure, applies only to the
  prosecution of an offense committed on or after the effective date
  of this Act. The prosecution of 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
  is committed before the effective date of this Act if any element of
  the offense occurs before the effective date.
         SECTION 11.  The changes in law made by this Act to Chapter
  552, Government Code, apply to information, records, and notations
  collected, made, assembled, or maintained on, before, or after the
  effective date of this Act.
         SECTION 12.  The change in law made by this Act to Section
  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
  was committed before the effective date of this Act if any element
  of the offense occurred before that date.
         SECTION 13.  This Act takes effect September 1, 2019.