86R12560 JCG-F
	By: Sherman, Sr.	H.B. No. 3914

	A BILL TO BE ENTITLED
	AN ACT
	relating to warrants and orders issued for the use of tracking
	equipment and access to electronic communications to further a
	criminal investigation.
	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:
	(A)  the contents of and records and other
	information related to a wire communication or electronic
	communication held in electronic storage; and
	(B)  location information; or
	(14)  a cellular telephone or other wireless
	communications device, subject to Article 18.0215.
	SECTION 2.  Article 18.02(b)(2), Code of Criminal Procedure,
	is amended to read as follows:
	(2)  "Electronic customer data," [data" and]
	"electronic storage," and "location information" [storage"] have
	the meanings assigned by Article 18B.001.
	SECTION 3.  Article 18B.001, Code of Criminal Procedure, is
	amended by amending Subdivisions (1), (4), and (7) and adding
	Subdivision (9-a) to read as follows:
	(1)  "Authorized peace officer" means:
	(A)  a sheriff or deputy sheriff;
	(B)  a constable or deputy constable;
	(C)  a marshal or police officer of a
	municipality;
	(D)  a ranger or officer commissioned by the
	Public Safety Commission or the director of the department;
	(E)  an investigator of a prosecutor's office;
	(F)  a law enforcement agent of the Texas
	Alcoholic Beverage Commission;
	(G)  a law enforcement officer commissioned by the
	Parks and Wildlife Commission;
	(H)  an enforcement officer appointed by the
	inspector general of the Texas Department of Criminal Justice under
	Section 493.019, Government Code;
	(I)  an investigator commissioned by the attorney
	general under Section 402.009, Government Code; [or]
	(J)  a member of an arson investigating unit
	commissioned by a municipality, a county, or the state;
	(K)  a criminal investigator of the United States
	as described by Article 2.122(a); or
	(L)  a peace officer appointed by a federal agency
	listed in Article 2.122(a) as a criminal investigator of the
	agency.
	(4)  "Designated law enforcement office or agency"
	means:
	(A)  the sheriff's department of a county with a
	population of 3.3 million or more;
	(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;
	(D)  the office of a prosecutor; or
	(E)  a federal agency described by Article
	2.122(a) that has employed:
	(i)  a criminal investigator; or
	(ii)  a peace officer described by
	Subdivision (1)(L).
	(7)  Except as otherwise provided by this chapter,
	"electronic ["Electronic] customer data" means data or records
	that:
	(A)  are in the possession, care, custody, or
	control of a provider of an electronic communications service or
	provider of a remote computing service; and
	(B)  contain:
	(i)  information revealing the identity of
	customers of the applicable service;
	(ii)  information about a customer's use of
	the applicable service;
	(iii)  information that identifies the
	recipient or destination of a wire or electronic communication sent
	to or by a customer;
	(iv)  the content of a wire or electronic
	communication sent to or by a customer; [and]
	(v)  any data stored with the applicable
	service provider by or on behalf of a customer; and
	(vi)  location information.
	(9-a)  "Location information" means information that
	reveals the location of a wireless communications device obtained
	by any of the following methods:
	(A)  using GPS location-based measurements,
	including the querying of the target device's GPS service and the
	returned coordinates;
	(B)  comparing a record of the target device's IP
	address to a list of known IP addresses and approximate known
	locations;
	(C)  querying the target device's operating
	system for the identity of nearby cellular towers and uploading the
	information to a server where the cellular tower identification may
	be compared to a list of known cellular tower locations;
	(D)  querying the target device's operating
	system for the identifier (such as SSID or (B)SSID) associated with
	a nearby Wi-Fi access point and uploading that information to a
	server where the access point's identifier may be compared to a
	database or list of known identifiers of Wi-Fi access points in
	known locations;
	(E)  using records derived from the device's
	connections to radio antennas through which a provider of an
	electronic communications service or provider of a remote computing
	service provides wireless service to that device;
	(F)  using enhanced 9-1-1 location-based
	measurements; and
	(G)  any combination of methods described in this
	subdivision or another similar method used to determine the
	location of a wireless communications device.
	SECTION 4.  Articles 18B.051(a), (c), and (d), Code of
	Criminal Procedure, are amended to read as follows:
	(a)  A prosecutor with jurisdiction in a county within a
	judicial district described by Article 18B.052 may file with a
	district judge in the judicial district an application for the
	installation and use of a pen register, ESN reader, trap and trace
	device, or similar equipment or the use of similar equipment that
	does not require installation [that combines the function of a pen
	register and a trap and trace device].
	(c)  A prosecutor must make an application personally and may
	not make the application through an assistant or other person
	acting on the prosecutor's behalf if the prosecutor:
	(1)  files an application on the prosecutor's own
	motion; or
	(2)  files an application for the use or installation
	and use, as applicable, 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.
	(d)  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 use or installation and
	use, as applicable, 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
	peace officer is commissioned by the department.
	SECTION 5.  Article 18B.053, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 18B.053.  APPLICATION REQUIREMENTS. An application
	under this subchapter must:
	(1)  be made in writing under oath;
	(2)  include the name of the subscriber and the
	telephone number and location of the communication device on which
	the pen register, ESN reader, trap and trace device, or similar
	equipment will be used, to the extent that information is known or
	is reasonably ascertainable; [and]
	(3)  state that the use or installation and use, as
	applicable, of the device or equipment will likely produce
	information that is material to an ongoing criminal investigation;
	and
	(4)  state articulable facts sufficient to support a
	finding of probable cause to believe that the use or installation
	and use, as applicable, of the device or equipment will:
	(A)  produce evidence of an offense in the
	criminal investigation; or
	(B)  result in the apprehension of a fugitive from
	justice.
	SECTION 6.  Article 18B.101(a), Code of Criminal Procedure,
	is amended to read as follows:
	(a)  On presentation of an application under Subchapter B, a
	judge may order the use or installation and use, as applicable, of a
	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.
	SECTION 7.  Article 18B.104(a), Code of Criminal Procedure,
	is amended to read as follows:
	(a)  An order for the use or installation and use of a device
	or equipment under this subchapter is valid for a period not to
	exceed 60 days after the earlier of the date the device or equipment
	is installed or used or the 10th day after the date the order is
	entered, unless the prosecutor applies for and obtains an extension
	of the order from the court before the order expires.
	SECTION 8.  Article 18B.105, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 18B.105.  SEALING RECORDS OF APPLICATION AND ORDER. A
	district court shall seal an application and order granted under
	this chapter. The court may not unseal the application and order
	until after the order has expired.
	SECTION 9.  Article 18B.151(b), Code of Criminal Procedure,
	is amended to read as follows:
	(b)  An authorized peace officer employed by a designated law
	enforcement agency [A peace officer authorized to possess, install,
	operate, or monitor a device under Subchapter E, Chapter 18A,] may
	use or install and use, as applicable, a pen register, [or] trap and
	trace device, ESN reader, or other similar device if the peace
	officer has probable cause to believe [reasonably believes]:
	(1)  an immediate life-threatening situation exists
	that:
	(A)  is within the territorial jurisdiction of the
	peace officer or another authorized peace officer the peace officer
	is assisting; and
	(B)  requires the use or installation and use of a
	pen register, [or] trap and trace device, ESN reader, or other
	similar device before an order authorizing the installation and use
	can, with due diligence, be obtained under this chapter; and
	(2)  there are sufficient grounds under this chapter on
	which to obtain an order authorizing the use or installation and use
	of a pen register, [or] trap and trace device, ESN reader, or other
	similar device.
	SECTION 10.  Article 18B.152, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 18B.152.  ORDER AUTHORIZING EMERGENCY INSTALLATION OR
	[AND] USE. (a) A peace officer who installs or uses a pen register,
	[or] trap and trace device, ESN reader, or other similar device
	under Article 18B.151 shall:
	(1)  promptly report the installation or use of the
	device to the prosecutor or an assistant of the prosecutor in the
	county in which the device is installed or used; and
	(2)  within 48 hours after the installation of the
	device is complete or the use of the device begins, whichever occurs
	first, obtain an order under Subchapter C authorizing the use or
	installation and use of the device.
	(b)  A judge may issue an order authorizing the use or
	installation and use of a device under this subchapter during the
	48-hour period prescribed by Subsection (a)(2). If an order is
	denied or is not issued within the 48-hour period, the peace officer
	shall terminate use of, and if necessary remove, the [pen register
	or trap and trace] device promptly on the earlier of the denial or
	the expiration of 48 hours.
	SECTION 11.  Article 18B.153, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 18B.153.  ADMISSIBILITY OF EVIDENCE OBTAINED. The
	state may not use as evidence in a criminal proceeding any
	information gained through [the use of] a pen register, [or] trap
	and trace device, ESN reader, or other similar device installed or
	used under this subchapter if an authorized peace officer:
	(1)  does not apply for authorization for the [pen
	register or trap and trace] device; or
	(2)  applies for but does not obtain that
	authorization.
	SECTION 12.  Article 18B.202(c), Code of Criminal Procedure,
	is amended to read as follows:
	(c)  The affidavit must:
	(1)  state the name, department, agency, and address of
	the applicant;
	(2)  identify the vehicle, container, or item to which,
	in which, or on which the mobile tracking device is to be attached,
	placed, or otherwise installed;
	(3)  state the name of the owner or possessor of the
	vehicle, container, or item identified under Subdivision (2);
	(4)  state the judicial jurisdictional area in which
	the vehicle, container, or item identified under Subdivision (2) is
	expected to be found; and
	(5)  state the facts and circumstances that provide the
	applicant with probable cause [a reasonable suspicion] that:
	(A)  criminal activity has been, is, or will be
	committed; and
	(B)  the installation and use of a mobile tracking
	device is likely to produce information that is material to an
	ongoing criminal investigation of that criminal activity.
	SECTION 13.  Article 18B.253, Code of Criminal Procedure, is
	amended to read as follows:
	Art. 18B.253.  LIMITATION: PEN REGISTERS AND SIMILAR
	DEVICES. To prevent inclusion of the contents of a wire or
	electronic communication, a governmental agency authorized to use
	or install and use a pen register, trap and trace device, ESN
	reader, or similar device under this chapter or other law must, as
	applicable:
	(1)  use reasonably available technology to only record
	and decode electronic or other impulses used to identify the
	numbers dialed, routed, addressed, or otherwise processed or
	transmitted by the communication; or
	(2)  otherwise configure the device such that the
	device does not collect the content of a wire or electronic
	communication, and if necessary, immediately delete the content of
	a wire or electronic communication incidentally collected in using
	the device.
	SECTION 14.  Chapter 18B, Code of Criminal Procedure, is
	amended by adding Subchapter G-1 to read as follows:
	SUBCHAPTER G-1. CERTAIN ELECTRONIC CUSTOMER DATA
	Art. 18B.321.  DEFINITION. In this subchapter, "electronic
	customer data" means data or records, other than the content of a
	wire or electronic communication, that:
	(1)  are in the possession, care, custody, or control
	of a provider of an electronic communications service or provider
	of a remote computing service; and
	(2)  contain:
	(A)  information revealing the identity of
	customers of the applicable service;
	(B)  information about a customer's use of the
	applicable service;
	(C)  information that identifies the recipient or
	destination of a wire or electronic communication sent to or by a
	customer; and
	(D)  location information.
	Art. 18B.322.  PROSPECTIVE SURVEILLANCE; APPLICABILITY OF
	OTHER PROVISIONS. (a) With respect to location information, this
	subchapter applies only to a warrant described by Article 18B.323
	for the required disclosure of location information that is created
	after the issuance of the warrant.
	(b)  Article 18B.104 applies to the duration of a warrant
	issued under this subchapter in the same manner as that article
	applies to an order issued under Subchapter C.
	(c)  Articles 18B.355, 18B.356, and 18B.357 apply to a
	warrant required under this subchapter to obtain electronic
	customer data.
	Art. 18B.323.  REQUIREMENTS REGARDING REQUEST FOR AND FILING
	OF APPLICATION. (a) To require a provider of an electronic
	communications service or a provider of a remote computing service
	to disclose electronic customer data held in electronic storage,
	only a prosecutor with jurisdiction in a county within a judicial
	district described by Article 18B.052(3) or (4) may file with a
	district judge in the judicial district an application for a
	warrant under this subchapter.
	(b)  A prosecutor may file an application under this
	subchapter or under federal law on:
	(1)  the prosecutor's own motion; or
	(2)  the request of an authorized peace officer,
	regardless of whether the peace officer is commissioned by the
	department.
	(c)  A prosecutor must make an application under this
	subchapter personally and may not make the application through an
	assistant or other person acting on the prosecutor's behalf if the
	prosecutor:
	(1)  files an application on the prosecutor's own
	motion; or
	(2)  files an application 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.
	(d)  A prosecutor may make an application under this
	subchapter through an assistant or other person acting on the
	prosecutor's behalf if the prosecutor files the application on the
	request of:
	(1)  an authorized peace officer who is commissioned by
	the department; or
	(2)  an authorized peace officer of a designated law
	enforcement office or agency.
	Art. 18B.324.  APPLICATION AND ISSUANCE OF WARRANT. (a) On
	the filing of an application under this subchapter, a district
	judge may issue a search warrant under this article for electronic
	customer data held in electronic storage by a provider of an
	electronic communications service or a provider of a remote
	computing service described by Article 18B.355(b), regardless of
	whether the customer data is held at a location in this state or
	another state. An application made under this subsection must
	demonstrate probable cause for the issuance of the warrant and must
	be supported by the oath of the applicant.
	(b)  A search warrant may not be issued under this article
	unless the sworn affidavit required by Article 18.01(b) provides
	sufficient and substantial facts to establish probable cause that:
	(1)  the disclosure of the electronic customer data
	sought will:
	(A)  produce evidence of an offense under
	investigation; or
	(B)  result in the apprehension of a fugitive from
	justice; and
	(2)  the electronic customer data sought is held in
	electronic storage by the service provider on which the warrant is
	served under Article 18B.355(c).
	(c)  Only the electronic customer data described in the sworn
	affidavit required by Article 18.01(b) may be seized under the
	warrant.
	(d)  A warrant issued under this article shall run in the
	name of "The State of Texas."
	(e)  A district court shall seal an affidavit and warrant
	granted under this subchapter and may not unseal the affidavit and
	warrant until after the order expires.
	SECTION 15.  Article 18B.352(a), Code of Criminal Procedure,
	is amended to read as follows:
	(a)  A court shall issue an order authorizing disclosure of
	contents, records, or other information, other than location
	information, of a wire or electronic communication held in
	electronic storage if the court determines that there is a
	reasonable belief based on specific articulable facts that:
	(1)  the information sought is relevant to a legitimate
	law enforcement inquiry; and
	(2)  the information:
	(A)  reveals the identity of customers of the
	applicable service; or
	(B)  is about a customer's use of the applicable
	service.
	SECTION 16.  Articles 18B.355(b) and (c), Code of Criminal
	Procedure, are amended to read as follows:
	(b)  An order issued under Article 18B.352 or a [A] warrant
	issued under Article 18B.354 may be served only on a provider of an
	electronic communications service or a provider of a remote
	computing service that is a domestic entity or a company or entity
	otherwise doing business in this state under a contract or a terms
	of service agreement with a resident of this state, if any part of
	that contract or agreement is to be performed in this state.
	(c)  An order issued under Article 18B.352 or a [A] search
	warrant issued under Article 18B.354 is served when an authorized
	peace officer delivers the warrant by hand, by facsimile or other
	electronic transmission, or, in a manner allowing proof of
	delivery, by means of the United States mail or a private delivery
	service to:
	(1)  a person specified by Section 5.255, Business
	Organizations Code;
	(2)  the secretary of state in the case of a company or
	entity to which Section 5.251, Business Organizations Code,
	applies; or
	(3)  any other person or entity designated to receive
	the service of process.
	SECTION 17.  Article 18B.501(a), Code of Criminal Procedure,
	is amended to read as follows:
	(a)  An authorized peace officer seeking electronic customer
	data under Article 18B.351 or other customer information under this
	chapter may apply to the court for an order commanding the service
	provider to whom a warrant, subpoena, or court order is directed not
	to disclose to any person the existence of the warrant, subpoena, or
	court order. The order is effective for the period the court
	considers appropriate.
	SECTION 18.  The changes in law made by this Act by amending
	Article 18.02 and Chapter 18B, Code of Criminal Procedure, apply
	only to a warrant or other court order issued on or after the
	effective date of this Act. A warrant or order issued before the
	effective date of this Act is governed by the law in effect on the
	date the warrant or order was issued, and the former law is
	continued in effect for that purpose.
	SECTION 19.  This Act takes effect January 1, 2020.