82R19129 PEP-D
	By: Madden	H.B. No. 2354
	Substitute the following for H.B. No. 2354:
	By:  Madden	C.S.H.B. No. 2354

	A BILL TO BE ENTITLED
	AN ACT
	relating to the installation and use of a pen register, ESN reader,
	trap and trace device, mobile tracking device, or similar equipment
	in a correctional facility operated by or under contract with the
	Texas Department of Criminal Justice.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Sections 1(2) and (3-a), Article 18.21, Code of
	Criminal Procedure, are amended to read as follows:
	(2)  "Authorized peace officer" means:
	(A)  a sheriff or a sheriff's deputy;
	(B)  a constable or deputy constable;
	(C)  a marshal or police officer of an
	incorporated city;
	(D)  a ranger or officer commissioned by the
	Public Safety Commission or the director of the Department of
	Public Safety;
	(E)  an investigator of a prosecutor's office;
	(F)  a law enforcement agent of the Alcoholic
	Beverage Commission;
	(G)  a law enforcement officer commissioned by the
	Parks and Wildlife Commission; or
	(H)  an enforcement officer appointed by the
	inspector general [executive director] of the Texas Department of
	Criminal Justice under Section 493.019, Government Code.
	(3-a)  "Designated law enforcement office or agency"
	means:
	(A)  the sheriff's department of a county with a
	population of 3.3 million or more; [or]
	(B)  a police department in a municipality with a
	population of 500,000 or more; or
	(C)  the office of inspector general of the Texas
	Department of Criminal Justice.
	SECTION 2.  Sections 2(b), (d), (e), (i), (j), (k), (l), and
	(m), Article 18.21, Code of Criminal Procedure, are amended to read
	as follows:
	(b)  A prosecutor may file an application under this section
	or under federal law on the prosecutor's own motion or on the
	request of an authorized peace officer, regardless of whether the
	officer is commissioned by the department. A prosecutor who files
	an application on the prosecutor's own motion or who files an
	application for the installation and use of a pen register, ESN
	reader, or similar equipment on the request of an authorized peace
	officer not commissioned by the department, other than an
	authorized peace officer employed by a designated law enforcement
	office or agency, must make the application personally and may not
	do so through an assistant or some other person acting on the
	prosecutor's behalf. A prosecutor may make an application through
	an assistant or other person acting on the prosecutor's behalf if
	the prosecutor files an application for the installation and use
	of:
	(1)  a pen register, ESN reader, or similar equipment
	on the request of:
	(A)  an authorized peace officer who is
	commissioned by the department; or
	(B)  an authorized peace officer of a designated
	law enforcement office or agency; or
	(2)  a trap and trace device or similar equipment on the
	request of an authorized peace officer, regardless of whether the
	officer is commissioned by the department.
	(d)  On presentation of the application, the judge may order
	the installation and use of the pen register, ESN reader, or similar
	equipment by an authorized peace officer commissioned by the
	department or an authorized peace officer of a designated law
	enforcement office or agency, and, on request of the applicant, the
	judge shall direct in the order that a communication common carrier
	or a provider of electronic communications service furnish all
	information, facilities, and technical assistance necessary to
	facilitate the installation and use of the device or equipment by
	the department or designated law enforcement office or agency
	unobtrusively and with a minimum of interference to the services
	provided by the carrier or service. The carrier or service is
	entitled to compensation at the prevailing rates for the facilities
	and assistance provided to the department or a designated law
	enforcement office or agency.
	(e)  On presentation of the application, the judge may order
	the installation and use of the trap and trace device or similar
	equipment by the communication common carrier or other person on
	the appropriate line. The judge may direct the communication
	common carrier or other person, including any landlord or other
	custodian of equipment, to furnish all information, facilities, and
	technical assistance necessary to install or use the device or
	equipment unobtrusively and with a minimum of interference to the
	services provided by the communication common carrier, landlord,
	custodian, or other person. Unless otherwise ordered by the court,
	the results of the trap and trace device or similar equipment shall
	be furnished to the applicant, designated by the court, at
	reasonable intervals during regular business hours, for the
	duration of the order. The carrier is entitled to compensation at
	the prevailing rates for the facilities and assistance provided to
	the designated law enforcement office or agency.
	(i)  A peace officer of a designated law enforcement office
	or agency is authorized to possess, install, operate, or monitor a
	pen register, ESN reader, or similar equipment if the officer's
	name is on the list submitted to the director of the department
	under Subsection (k).
	(j)  Each designated law enforcement office or agency shall:
	(1)  adopt a written policy governing the application
	of this article to the office or agency; and
	(2)  submit the policy to the director of the
	department, or the director's designee, for approval.
	(k)  If the director of the department or the director's
	designee approves the policy submitted under Subsection (j), 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[, as applicable,] or the
	sheriff's or chief's designee, as applicable, shall submit to the
	director a written list of all officers in the designated law
	enforcement office or agency who are authorized to possess,
	install, monitor, or operate pen registers, ESN readers, or similar
	equipment.
	(l)  The department may conduct an audit of a designated law
	enforcement office or agency to ensure compliance with this
	article. If the department determines from the audit that the
	designated law enforcement office or agency is not in compliance
	with the policy adopted by the office or agency under Subsection
	(j), the department shall notify the office or agency in writing
	that it is not in compliance. If the department determines that the
	office or agency still is not in compliance with the policy 90 days
	after the date the office or agency receives written notice under
	this subsection, the office or agency loses the authority granted
	by this article until:
	(1)  the office or agency adopts a new written policy
	governing the application of this article to the office or agency;
	and
	(2)  the department approves the written policy.
	(m)  The inspector general of the Texas Department of
	Criminal Justice or the sheriff or chief of a designated law
	enforcement agency, as applicable, shall submit to the director of
	the department a written report of expenditures made by the
	designated law enforcement office or agency for the purchase and
	maintenance of a pen register, ESN reader, or similar equipment,
	authorized under this article [pursuant to Subsection (i)]. The
	director of the department shall report those [such] expenditures
	publicly on an annual basis via the department's website, or other
	comparable means.
	SECTION 3.  Section 6(e), Article 18.21, Code of Criminal
	Procedure, is amended to read as follows:
	(e)  The service provider may not destroy or permit the
	destruction of the copy until the information has been delivered to
	the designated law enforcement office or agency or until the
	resolution of any court proceedings, including appeals of any
	proceedings, relating to the subpoena or court order requesting the
	creation of the copy, whichever occurs last.
	SECTION 4.  Section 6(g)(2), Article 18.21, Code of Criminal
	Procedure, is amended to read as follows:
	(2)  The subscriber or customer shall give written
	notice to the service provider of the challenge to the subpoena or
	court order. The authorized peace officer or designated law
	enforcement office or agency requesting the subpoena or court order
	shall be served a copy of the papers filed by personal delivery or
	by registered or certified mail.
	SECTION 5.  Section 15, Article 18.21, Code of Criminal
	Procedure, is amended to read as follows:
	Sec. 15.  SUBPOENA AUTHORITY. (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 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 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.
	(b)  Not later than the 30th day after the date on which the
	administrative subpoena is issued under Subsection (a), the
	inspector general of the Texas Department of Criminal Justice or
	the sheriff or chief of a designated law enforcement agency, as
	applicable, shall report the issuance of the subpoena to the
	department.
	(c)  If, based on reports received under Subsection (b), the
	department determines that a designated law enforcement office or
	agency is not in compliance with the policy adopted by the office or
	agency under Section 2(j), the department shall notify the office
	or agency in writing that it is not in compliance. If the department
	determines that the office or agency still is not in compliance with
	the policy 90 days after the date the office or agency receives
	written notice under this subsection, the office or agency loses
	the authority granted by this article until:
	(1)  the office or agency adopts a new written policy
	governing the application of this article to the office or agency;
	and
	(2)  the department approves the written policy.
	SECTION 6.  This Act takes effect September 1, 2011.