Texas Code of Criminal Procedure - Article 18.20. Interception And Use Of Wire, Oral, Or Electronic Communications
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Art. 18.20. INTERCEPTION AND USE OF WIRE, ORAL, OR ELECTRONIC
COMMUNICATIONS.
Definitions
Sec. 1. In this article:
(1) "Wire communication" means an aural transfer made in
whole or in part through the use of facilities for the transmission
of communications by the aid of wire, cable, or other like
connection between the point of origin and the point of reception,
including the use of such a connection in a switching station,
furnished or operated by a person authorized to engage in providing
or operating the facilities for the transmission of communications
as a communications common carrier. The term includes the
electronic storage of a wire communication.
(2) "Oral communication" means an oral communication
uttered by a person exhibiting an expectation that the
communication is not subject to interception under circumstances
justifying that expectation. The term does not include an
electronic communication.
(3) "Intercept" means the aural or other acquisition of the
contents of a wire, oral, or electronic communication through the
use of an electronic, mechanical, or other device.
(4) "Electronic, mechanical, or other device" means a
device that may be used for the nonconsensual interception of wire,
oral, or electronic communications. The term does not include a
telephone or telegraph instrument, the equipment or a facility used
for the transmission of electronic communications, or a component
of the equipment or a facility used for the transmission of
electronic communications if the instrument, equipment, facility,
or component is:
(A) furnished to the subscriber or user by a provider of
wire or electronic communications service in the ordinary course of
the provider's business and being used by the subscriber or user in
the ordinary course of its business;
(B) furnished by a subscriber or user for connection to the
facilities of a wire or electronic communications service for use
in the ordinary course of the subscriber's or user's business;
(C) being used by a communications common carrier in the
ordinary course of its business; or
(D) being used by an investigative or law enforcement
officer in the ordinary course of the officer's duties.
(5) "Investigative or law enforcement officer" means an
officer of this state or of a political subdivision of this state
who is empowered by law to conduct investigations of or to make
arrests for offenses enumerated in Section 4 of this article or an
attorney authorized by law to prosecute or participate in the
prosecution of the enumerated offenses.
(6) "Contents," when used with respect to a wire, oral, or
electronic communication, includes any information concerning the
substance, purport, or meaning of that communication.
(7) "Judge of competent jurisdiction" means a judge from the
panel of nine active district judges with criminal jurisdiction
appointed by the presiding judge of the court of criminal appeals as
provided by Section 3 of this article.
(8) "Prosecutor" means a district attorney, criminal
district attorney, or county attorney performing the duties of a
district attorney, with jurisdiction in the county within an
administrative judicial district described by Section 3(b).
(9) "Director" means the director of the Department of
Public Safety or, if the director is absent or unable to serve, the
assistant director of the Department of Public Safety.
(10) "Communication common carrier" means a person engaged
as a common carrier for hire in the transmission of wire or
electronic communications.
(11) "Aggrieved person" means a person who was a party to an
intercepted wire, oral, or electronic communication or a person
against whom the interception was directed.
(12) "Covert entry" means any entry into or onto premises
which if made without a court order allowing such an entry under
this Act, would be a violation of the Penal Code.
(13) "Residence" means a structure or the portion of a
structure used as a person's home or fixed place of habitation to
which the person indicates an intent to return after any temporary
absence.
(14) "Pen register," "ESN reader," "trap and trace device,"
and "mobile tracking device" have the meanings assigned by Article
18.21.
(15) "Electronic communication" means a transfer of signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic, or photo-optical system. The
term does not include:
(A) a wire or oral communication;
(B) a communication made through a tone-only paging device;
or
(C) a communication from a tracking device.
(16) "User" means a person who uses an electronic
communications service and is authorized by the provider of the
service to use the service.
(17) "Electronic communications system" means a wire,
radio, electromagnetic, photo-optical or photoelectronic facility
for the transmission of wire or electronic communications, and any
computer facility or related electronic equipment for the
electronic storage of those communications.
(18) "Electronic communications service" means a service
that provides to users of the service the ability to send or receive
wire or electronic communications.
(19) "Readily accessible to the general public" means, with
respect to a radio communication, a communication that is not:
(A) scrambled or encrypted;
(B) transmitted using modulation techniques whose essential
parameters have been withheld from the public with the intention of
preserving the privacy of the communication;
(C) carried on a subcarrier or other signal subsidiary to a
radio transmission;
(D) transmitted over a communication system provided by a
common carrier, unless the communication is a tone-only paging
system communication;
(E) transmitted on frequencies allocated under Part 25,
Subpart D, E, or F of Part 74, or Part 94 of the rules of the Federal
Communications Commission, unless, in the case of a communication
transmitted on a frequency allocated under Part 74 that is not
exclusively allocated to broadcast auxiliary services, the
communication is a two-way voice communication by radio; or
(F) an electronic communication.
(20) "Electronic storage" means:
(A) a temporary, intermediate storage of a wire or
electronic communication that is incidental to the electronic
transmission of the communication; or
(B) storage of a wire or electronic communication by an
electronic communications service for purposes of backup
protection of the communication.
(21) "Aural transfer" means a transfer containing the human
voice at any point between and including the point of origin and the
point of reception.
(22) "Immediate life-threatening situation" means a
hostage, barricade, or other emergency situation in which a person
unlawfully and directly:
(A) threatens another with death; or
(B) exposes another to a substantial risk of serious bodily
injury.
(23) "Member of a law enforcement unit specially trained to
respond to and deal with life-threatening situations" means a peace
officer who receives a minimum of 40 hours a year of training in
hostage and barricade suspect situations as evidenced by the
submission of appropriate documentation to the Commission on Law
Enforcement Officer Standards and Education.
(24) "Access," "computer," "computer network," "computer
system," and "effective consent" have the meanings assigned by
Section 33.01, Penal Code.
(25) "Computer trespasser" means a person who:
(A) is accessing a protected computer without effective
consent of the owner; and
(B) has no reasonable expectation of privacy in any
communication transmitted to, through, or from the protected
computer. The term does not include a person who accesses the
computer under an existing contractual relationship with the owner
or operator of the protected computer.
(26) "Protected computer" means a computer, computer
network, or computer system that is:
(A) owned by a financial institution or governmental
entity; or
(B) used by or for a financial institution or governmental
entity and conduct constituting an offense affects that use.
Prohibition of Use as Evidence of Intercepted Communications
Sec. 2. (a) The contents of an intercepted communication and
evidence derived from an intercepted communication may be received
in evidence in any trial, hearing, or other proceeding in or before
any court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the United
States or of this state or a political subdivision of this state
unless:
(1) the communication was intercepted in violation of this
article, Section 16.02, Penal Code, or federal law; or
(2) the disclosure of the contents of the intercepted
communication or evidence derived from the communication would be
in violation of this article, Section 16.02, Penal Code, or federal
law.
(b) The contents of an intercepted communication and
evidence derived from an intercepted communication may be received
in a civil trial, hearing, or other proceeding only if the civil
trial, hearing, or other proceeding arises out of a violation of a
penal law.
(c) This section does not prohibit the use or admissibility
of the contents of a communication or evidence derived from the
communication if the communication was intercepted in a
jurisdiction outside this state in compliance with the law of that
jurisdiction.
Judges Authorized to Consider Interception Applications
Sec. 3. (a) The presiding judge of the court of criminal
appeals, by order filed with the clerk of that court, shall appoint
one district judge from each of the administrative judicial
districts of this state to serve at his pleasure as the judge of
competent jurisdiction within that administrative judicial
district. The presiding judge shall fill vacancies, as they occur,
in the same manner.
(b) Except as provided by Subsection (c), a judge appointed
under Subsection (a) may act on an application for authorization to
intercept wire, oral, or electronic communications if the judge is
appointed as the judge of competent jurisdiction within the
administrative judicial district in which the following is located:
(1) the site of:
(A) the proposed interception; or
(B) the interception device to be installed or monitored;
(2) the communication device to be intercepted;
(3) the billing, residential, or business address of the
subscriber to the electronic communications service to be
intercepted;
(4) the headquarters of the law enforcement agency that
makes a request for or executes an order authorizing an
interception; or
(5) the headquarters of the service provider.
(c) If the judge of competent jurisdiction for an
administrative judicial district is absent or unable to serve or if
exigent circumstances exist, the application may be made to the
judge of competent jurisdiction in an adjacent administrative
judicial district. Exigent circumstances does not include a denial
of a previous application on the same facts and circumstances. To
be valid, the application must fully explain the circumstances
justifying application under this subsection.
Offenses for Which Interceptions May be Authorized
Sec. 4. A judge of competent jurisdiction may issue an order
authorizing interception of wire, oral, or electronic
communications only if the prosecutor applying for the order shows
probable cause to believe that the interception will provide
evidence of the commission of:
(1) a felony under Section 19.02, 19.03, or 43.26, Penal
Code;
(2) a felony under:
(A) Chapter 481, Health and Safety Code, other than felony
possession of marihuana;
(B) Section 485.033, Health and Safety Code; or
(C) Chapter 483, Health and Safety Code; or
(3) an attempt, conspiracy, or solicitation to commit an
offense listed in this section.
Control of Intercepting Devices
Sec. 5. (a) Except as provided by Section 8A, only the
Department of Public Safety is authorized by this article to own,
possess, install, operate, or monitor an electronic, mechanical, or
other device. The Department of Public Safety may be assisted by an
investigative or law enforcement officer or other person in the
operation and monitoring of an interception of wire, oral, or
electronic communications, provided that the officer or other
person:
(1) is designated by the director for that purpose; and
(2) acts in the presence and under the direction of a
commissioned officer of the Department of Public Safety.
(b) The director shall designate in writing the
commissioned officers of the Department of Public Safety who are
responsible for the possession, installation, operation, and
monitoring of electronic, mechanical, or other devices for the
department.
Request for Application for Interception
Sec. 6. (a) The director may, based on written affidavits,
request in writing that a prosecutor apply for an order authorizing
interception of wire, oral, or electronic communications.
(b) The head of a local law enforcement agency or, if the
head of the local law enforcement agency is absent or unable to
serve, the acting head of the local law enforcement agency may,
based on written affidavits, request in writing that a prosecutor
apply for an order authorizing interception of wire, oral, or
electronic communications. Prior to the requesting of an
application under this subsection, the head of a local law
enforcement agency must submit the request and supporting
affidavits to the director, who shall make a finding in writing
whether the request and supporting affidavits establish that other
investigative procedures have been tried and failed or they
reasonably appear unlikely to succeed or to be too dangerous if
tried, is feasible, is justifiable, and whether the Department of
Public Safety has the necessary resources available. The
prosecutor may file the application only after a written positive
finding on all the above requirements by the director.
Authorization for Disclosure and Use of Intercepted Communications
Sec. 7. (a) An investigative or law enforcement officer who,
by any means authorized by this article, obtains knowledge of the
contents of a wire, oral, or electronic communication or evidence
derived from the communication may disclose the contents or
evidence to another investigative or law enforcement officer,
including a federal law enforcement officer or agent or a law
enforcement officer or agent of another state, to the extent that
the disclosure is appropriate to the proper performance of the
official duties of the officer making or receiving the disclosure.
(b) An investigative or law enforcement officer who, by any
means authorized by this article, obtains knowledge of the contents
of a wire, oral, or electronic communication or evidence derived
from the communication may use the contents or evidence to the
extent the use is appropriate to the proper performance of his
official duties.
(c) A person who receives, by any means authorized by this
article, information concerning a wire, oral, or electronic
communication or evidence derived from a communication intercepted
in accordance with the provisions of this article may disclose the
contents of that communication or the derivative evidence while
giving testimony under oath in any proceeding held under the
authority of the United States, of this state, or of a political
subdivision of this state.
(d) An otherwise privileged wire, oral, or electronic
communication intercepted in accordance with, or in violation of,
the provisions of this article does not lose its privileged
character and any evidence derived from such privileged
communication against the party to the privileged communication
shall be considered privileged also.
(e) When an investigative or law enforcement officer, while
engaged in intercepting wire, oral, or electronic communications in
a manner authorized by this article, intercepts wire, oral, or
electronic communications relating to offenses other than those
specified in the order of authorization, the contents of and
evidence derived from the communication may be disclosed or used as
provided by Subsections (a) and (b) of this section. Such contents
and any evidence derived therefrom may be used under Subsection (c)
of this section when authorized by a judge of competent
jurisdiction where the judge finds, on subsequent application, that
the contents were otherwise intercepted in accordance with the
provisions of this article. The application shall be made as soon
as practicable.
Application for Interception Authorization
Sec. 8. (a) To be valid, an application for an order
authorizing the interception of a wire, oral, or electronic
communication must be made in writing under oath to a judge of
competent jurisdiction and must state the applicant's authority to
make the application. An applicant must include the following
information in the application:
(1) the identity of the prosecutor making the application
and of the officer requesting the application;
(2) a full and complete statement of the facts and
circumstances relied on by the applicant to justify his belief that
an order should be issued, including:
(A) details about the particular offense that has been, is
being, or is about to be committed;
(B) a particular description of the nature and location of
the facilities from which or the place where the communication is to
be intercepted;
(C) a particular description of the type of communication
sought to be intercepted; and
(D) the identity of the person, if known, committing the
offense and whose communications are to be intercepted;
(3) a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed or to be too dangerous
if tried;
(4) a statement of the period of time for which the
interception is required to be maintained and, if the nature of the
investigation is such that the authorization for interception
should not automatically terminate when the described type of
communication is first obtained, a particular description of facts
establishing probable cause to believe that additional
communications of the same type will occur after the described type
of communication is obtained;
(5) a statement whether a covert entry will be necessary to
properly and safely install the wiretapping or electronic
surveillance or eavesdropping equipment and, if a covert entry is
requested, a statement as to why such an entry is necessary and
proper under the facts of the particular investigation, including a
full and complete statement as to whether other investigative
techniques have been tried and have failed or why they reasonably
appear to be unlikely to succeed or to be too dangerous if tried or
are not feasible under the circumstances or exigencies of time;
(6) a full and complete statement of the facts concerning
all applications known to the prosecutor making the application
that have been previously made to a judge for authorization to
intercept wire, oral, or electronic communications involving any of
the persons, facilities, or places specified in the application and
of the action taken by the judge on each application; and
(7) if the application is for the extension of an order, a
statement setting forth the results already obtained from the
interception or a reasonable explanation of the failure to obtain
results.
(b) The judge may, in an ex parte hearing in chambers,
require additional testimony or documentary evidence in support of
the application, and such testimony or documentary evidence shall
be preserved as part of the application.
Emergency Installation and Use of Intercepting Device
Sec. 8A. (a) The prosecutor in a county in which an
electronic, mechanical, or other device is to be installed or used
to intercept wire, oral, or electronic communications shall
designate in writing each peace officer in the county, other than a
commissioned officer of the Department of Public Safety, who:
(1) is a member of a law enforcement unit specially trained
to respond to and deal with life-threatening situations; and
(2) is authorized to possess such a device and responsible
for the installation, operation, and monitoring of the device in an
immediate life-threatening situation.
(b) A peace officer designated under Subsection (a) or under
Section 5(b) may possess, install, operate, or monitor an
electronic, mechanical, or other device to intercept wire, oral, or
electronic communications if the officer:
(1) reasonably believes an immediate life-threatening
situation exists that:
(A) is within the territorial jurisdiction of the officer or
another officer the officer is assisting; and
(B) requires interception of communications before an order
authorizing the interception can, with due diligence, be obtained
under this section;
(2) reasonably believes there are sufficient grounds under
this section on which to obtain an order authorizing the
interception; and
(3) obtains oral or written consent to the interception
before beginning the interception from:
(A) a district judge for the county in which the device will
be installed or used; or
(B) a judge or justice of a court of appeals or of a higher
court.
(c) An official described in Subsection (b)(3) may give oral
or written consent to the interception of communications under this
section to provide evidence of the commission of a felony, or of a
threat, attempt, or conspiracy to commit a felony, in an immediate
life-threatening situation. Oral or written consent given under
this section expires 48 hours after the grant of consent or at the
conclusion of the emergency justifying the interception, whichever
occurs first.
(d) If an officer installs or uses a device under Subsection
(b), the officer shall:
(1) promptly report the installation or use to the
prosecutor in the county in which the device is installed or used;
and
(2) within 48 hours after the installation is complete or
the interception begins, whichever occurs first, obtain a written
order from a judge of competent jurisdiction authorizing the
interception.
(e) A judge of competent jurisdiction under Section 3 or
under Subsection (b) may issue a written order authorizing
interception of communications under this section during the
48-hour period prescribed by Subsection (d)(2). A written order
under this section expires on the 30th day after execution of the
order or at the conclusion of the emergency that initially
justified the interception, whichever occurs first. If an order is
denied or is not issued within the 48-hour period, the officer shall
terminate use of and remove the device promptly on the earlier of:
(1) the denial;
(2) the end of the emergency that initially justified the
interception; or
(3) the expiration of 48 hours.
(f) The state may not use as evidence in a criminal
proceeding any information gained through the use of a device
installed under this section if authorization for the device is not
sought or is sought but not obtained.
(g) A peace officer may certify to a communications common
carrier that the officer is acting lawfully under this section.
Action on Application for Interception Order
Sec. 9. (a) On receipt of an application, the judge may enter
an ex parte order, as requested or as modified, authorizing
interception of wire, oral, or electronic communications if the
judge determines from the evidence submitted by the applicant that:
(1) there is probable cause to believe that a person is
committing, has committed, or is about to commit a particular
offense enumerated in Section 4 of this article;
(2) there is probable cause to believe that particular
communications concerning that offense will be obtained through the
interception;
(3) normal investigative procedures have been tried and
have failed or reasonably appear to be unlikely to succeed or to be
too dangerous if tried;
(4) there is probable cause to believe that the facilities
from which or the place where the wire, oral, or electronic
communications are to be intercepted are being used or are about to
be used in connection with the commission of an offense or are
leased to, listed in the name of, or commonly used by the person;
and
(5) a covert entry is or is not necessary to properly and
safely install the wiretapping or electronic surveillance or
eavesdropping equipment.
(b) An order authorizing the interception of a wire, oral,
or electronic communication must specify:
(1) the identity of the person, if known, whose
communications are to be intercepted;
(2) the nature and location of the communications
facilities as to which or the place where authority to intercept is
granted;
(3) a particular description of the type of communication
sought to be intercepted and a statement of the particular offense
to which it relates;
(4) the identity of the officer making the request and the
identity of the prosecutor;
(5) the time during which the interception is authorized,
including a statement of whether or not the interception will
automatically terminate when the described communication is first
obtained; and
(6) whether or not a covert entry or surreptitious entry is
necessary to properly and safely install wiretapping, electronic
surveillance, or eavesdropping equipment.
(c) On request of the applicant for an order authorizing the
interception of a wire, oral, or electronic communication, the
judge may issue a separate order directing that a provider of wire
or electronic communications service, a communication common
carrier, landlord, custodian, or other person furnish the applicant
all information, facilities, and technical assistance necessary to
accomplish the interception unobtrusively and with a minimum of
interference with the services that the provider, carrier,
landlord, custodian, or other person is providing the person whose
communications are to be intercepted. Any provider of wire or
electronic communications service, communication common carrier,
landlord, custodian, or other person furnishing facilities or
technical assistance is entitled to compensation by the applicant
for reasonable expenses incurred in providing the facilities or
assistance at the prevailing rates. The interception order may
include an order to:
(1) install or use a pen register, ESN reader, trap and
trace device, or mobile tracking device, or similar equipment that
combines the function of a pen register and trap and trace device;
(2) disclose a stored communication, information subject to
an administrative subpoena, or information subject to access under
Article 18.21, Code of Criminal Procedure.
(d) An order entered pursuant to this section may not
authorize the interception of a wire, oral, or electronic
communication for longer than is necessary to achieve the objective
of the authorization and in no event may it authorize interception
for more than 30 days. The issuing judge may grant extensions of an
order, but only on application for an extension made in accordance
with Section 8 and the court making the findings required by
Subsection (a). The period of extension may not be longer than the
authorizing judge deems necessary to achieve the purposes for which
it is granted and in no event may the extension be for more than 30
days. To be valid, each order and extension of an order must
provide that the authorization to intercept be executed as soon as
practicable, be conducted in a way that minimizes the interception
of communications not otherwise subject to interception under this
article, and terminate on obtaining the authorized objective or
within 30 days, whichever occurs sooner. If the intercepted
communication is in code or a foreign language and an expert in that
code or language is not reasonably available during the period of
interception, minimization may be accomplished as soon as
practicable after the interception.
(e) An order entered pursuant to this section may not
authorize a covert entry into a residence solely for the purpose of
intercepting a wire or electronic communication.
(f) An order entered pursuant to this section may not
authorize a covert entry into or onto a premises for the purpose of
intercepting an oral communication unless:
(1) the judge, in addition to making the determinations
required under Subsection (a) of this section, determines that:
(A)(i) the premises into or onto which the covert entry is
authorized or the person whose communications are to be obtained
has been the subject of a pen register previously authorized in
connection with the same investigation;
(ii) the premises into or onto which the covert entry is
authorized or the person whose communications are to be obtained
has been the subject of an interception of wire or electronic
communications previously authorized in connection with the same
investigation; and
(iii) that such procedures have failed; or
(B) that the procedures enumerated in Paragraph (A)
reasonably appear to be unlikely to succeed or to be too dangerous
if tried or are not feasible under the circumstances or exigencies
of time; and
(2) the order, in addition to the matters required to be
specified under Subsection (b) of this section, specifies that the
covert entry is for the purpose of intercepting oral communications
of two or more persons and that there is probable cause to believe
they are committing, have committed, or are about to commit a
particular offense enumerated in Section 4 of this article.
(g) Whenever an order authorizing interception is entered
pursuant to this article, the order may require reports to the judge
who issued the order showing what progress has been made toward
achievement of the authorized objective and the need for continued
interception. Reports shall be made at any interval the judge
requires.
(h) A judge who issues an order authorizing the interception
of a wire, oral, or electronic communication may not hear a criminal
prosecution in which evidence derived from the interception may be
used or in which the order may be an issue.
Procedure for Preserving Intercepted Communications
Sec. 10. (a) The contents of a wire, oral, or electronic
communication intercepted by means authorized by this article shall
be recorded on tape, wire, or other comparable device. The
recording of the contents of a wire, oral, or electronic
communication under this subsection shall be done in a way that
protects the recording from editing or other alterations.
(b) Immediately on the expiration of the period of the order
and all extensions, if any, the recordings shall be made available
to the judge issuing the order and sealed under his directions.
Custody of the recordings shall be wherever the judge orders. The
recordings may not be destroyed until at least 10 years after the
date of expiration of the order and the last extension, if any. A
recording may be destroyed only by order of the judge of competent
jurisdiction for the administrative judicial district in which the
interception was authorized.
(c) Duplicate recordings may be made for use or disclosure
pursuant to Subsections (a) and (b), Section 7, of this article for
investigations.
(d) The presence of the seal required by Subsection (b) of
this section or a satisfactory explanation of its absence is a
prerequisite for the use or disclosure of the contents of a wire,
oral, or electronic communication or evidence derived from the
communication under Subsection (c), Section 7, of this article.
Sealing of Orders and Applications
Sec. 11. The judge shall seal each application made and order
granted under this article. Custody of the applications and orders
shall be wherever the judge directs. An application or order may be
disclosed only on a showing of good cause before a judge of
competent jurisdiction and may not be destroyed until at least 10
years after the date it is sealed. An application or order may be
destroyed only by order of the judge of competent jurisdiction for
the administrative judicial district in which it was made or
granted.
Contempt
Sec. 12. A violation of Section 10 or 11 of this article may
be punished as contempt of court.
Notice and Disclosure of Interception to a Party
Sec. 13. (a) Within a reasonable time but not later than 90
days after the date an application for an order is denied or after
the date an order or the last extension, if any, expires, the judge
who granted or denied the application shall cause to be served on
the persons named in the order or the application and any other
parties to intercepted communications, if any, an inventory, which
must include notice:
(1) of the entry of the order or the application;
(2) of the date of the entry and the period of authorized
interception or the date of denial of the application; and
(3) that during the authorized period wire, oral, or
electronic communications were or were not intercepted.
(b) The judge, on motion, may in his discretion make
available to a person or his counsel for inspection any portion of
an intercepted communication, application, or order that the judge
determines, in the interest of justice, to disclose to that person.
(c) On an ex parte showing of good cause to the judge, the
serving of the inventory required by this section may be postponed,
but in no event may any evidence derived from an order under this
article be disclosed in any trial, until after such inventory has
been served.
Preconditions to Use as Evidence
Sec. 14. (a) The contents of an intercepted wire, oral, or
electronic communication or evidence derived from the
communication may not be received in evidence or otherwise
disclosed in a trial, hearing, or other proceeding in a federal or
state court unless each party, not later than the 10th day before
the date of the trial, hearing, or other proceeding, has been
furnished with a copy of the court order and application under which
the interception was authorized or approved. This 10-day period
may be waived by the judge if he finds that it is not possible to
furnish the party with the information 10 days before the trial,
hearing, or proceeding and that the party will not be prejudiced by
the delay in receiving the information.
(b) An aggrieved person charged with an offense in a trial,
hearing, or proceeding in or before a court, department, officer,
agency, regulatory body, or other authority of the United States or
of this state or a political subdivision of this state may move to
suppress the contents of an intercepted wire, oral, or electronic
communication or evidence derived from the communication on the
ground that:
(1) the communication was unlawfully intercepted;
(2) the order authorizing the interception is insufficient
on its face; or
(3) the interception was not made in conformity with the
order.
(c) A person identified by a party to an intercepted wire,
oral, or electronic communication during the course of that
communication may move to suppress the contents of the
communication on the grounds provided in Subsection (b) of this
section or on the ground that the harm to the person resulting from
his identification in court exceeds the value to the prosecution of
the disclosure of the contents.
(d) The motion to suppress must be made before the trial,
hearing, or proceeding unless there was no opportunity to make the
motion or the person was not aware of the grounds of the motion. The
hearing on the motion shall be held in camera upon the written
request of the aggrieved person. If the motion is granted, the
contents of the intercepted wire, oral, or electronic communication
and evidence derived from the communication shall be treated as
having been obtained in violation of this article. The judge, on
the filing of the motion by the aggrieved person, shall make
available to the aggrieved person or his counsel for inspection any
portion of the intercepted communication or evidence derived from
the communication that the judge determines, in the interest of
justice, to make available.
(e) Any judge of this state, upon hearing a pretrial motion
regarding conversations intercepted by wire pursuant to this
article, or who otherwise becomes informed that there exists on
such intercepted wire, oral, or electronic communication
identification of a specific individual who is not a party or
suspect to the subject of interception:
(1) shall give notice and an opportunity to be heard on the
matter of suppression of references to that person if
identification is sufficient so as to give notice; or
(2) shall suppress references to that person if
identification is sufficient to potentially cause embarrassment or
harm which outweighs the probative value, if any, of the mention of
such person, but insufficient to require the notice provided for in
Subdivision (1), above.
Reports concerning intercepted wire, oral, or electronic
communications
Sec. 15. (a) Within 30 days after the date an order or the
last extension, if any, expires or after the denial of an order, the
issuing or denying judge shall report to the Administrative Office
of the United States Courts:
(1) the fact that an order or extension was applied for;
(2) the kind of order or extension applied for;
(3) the fact that the order or extension was granted as
applied for, was modified, or was denied;
(4) the period of interceptions authorized by the order and
the number and duration of any extensions of the order;
(5) the offense specified in the order or application or
extension;
(6) the identity of the officer making the request and the
prosecutor; and
(7) the nature of the facilities from which or the place
where communications were to be intercepted.
(b) In January of each year each prosecutor shall report to
the Administrative Office of the United States Courts the following
information for the preceding calendar year:
(1) the information required by Subsection (a) of this
section with respect to each application for an order or extension
made;
(2) a general description of the interceptions made under
each order or extension, including the approximate nature and
frequency of incriminating communications intercepted, the
approximate nature and frequency of other communications
intercepted, the approximate number of persons whose
communications were intercepted, and the approximate nature,
amount, and cost of the manpower and other resources used in the
interceptions;
(3) the number of arrests resulting from interceptions made
under each order or extension and the offenses for which arrests
were made;
(4) the number of trials resulting from interceptions;
(5) the number of motions to suppress made with respect to
interceptions and the number granted or denied;
(6) the number of convictions resulting from interceptions,
the offenses for which the convictions were obtained, and a general
assessment of the importance of the interceptions; and
(7) the information required by Subdivisions (2) through
(6) of this subsection with respect to orders or extensions
obtained.
(c) Any judge or prosecutor required to file a report with
the Administrative Office of the United States Courts shall forward
a copy of such report to the director of the Department of Public
Safety. On or before March 1 of each year, the director shall
submit to the governor; lieutenant governor; speaker of the house
of representatives; chairman, senate jurisprudence committee; and
chairman, house of representatives criminal jurisprudence
committee a report of all intercepts as defined herein conducted
pursuant to this article and terminated during the preceding
calendar year. Such report shall include:
(1) the reports of judges and prosecuting attorneys
forwarded to the director as required in this section;
(2) the number of Department of Public Safety personnel
authorized to possess, install, or operate electronic, mechanical,
or other devices;
(3) the number of Department of Public Safety and other law
enforcement personnel who participated or engaged in the seizure of
intercepts pursuant to this article during the preceding calendar
year; and
(4) the total cost to the Department of Public Safety of all
activities and procedures relating to the seizure of intercepts
during the preceding calendar year, including costs of equipment,
manpower, and expenses incurred as compensation for use of
facilities or technical assistance provided to the department.
Recovery of Civil Damages Authorized
Sec. 16. (a) A person whose wire, oral, or electronic
communication is intercepted, disclosed, or used in violation of
this article, or in violation of Chapter 16, Penal Code, has a civil
cause of action against any person who intercepts, discloses, or
uses or solicits another person to intercept, disclose, or use the
communication and is entitled to recover from the person:
(1) actual damages but not less than liquidated damages
computed at a rate of $100 a day for each day of violation or $1,000,
whichever is higher;
(2) punitive damages; and
(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.
(b) A good faith reliance on a court order or legislative
authorization constitutes a complete defense to an action brought
under this section.
(c) A person is subject to suit by the federal or state
government in a court of competent jurisdiction for appropriate
injunctive relief if the person engages in conduct that:
(1) constitutes an offense under Section 16.05, Penal Code,
but is not for a tortious or illegal purpose or for the purpose of
direct or indirect commercial advantage or private commercial gain;
and
(2) involves a radio communication that is:
(A) transmitted on frequencies allocated under Subpart D of
Part 74 of the rules of the Federal Communications Commission; and
(B) not scrambled or encrypted.
(d) A defendant is liable for a civil penalty of $500 if it
is shown at the trial of the civil suit brought under Subsection (c)
that the defendant:
(1) has been convicted of an offense under Section 16.05,
Penal Code; or
(2) is found liable in a civil action brought under
Subsection (a).
(e) Each violation of an injunction ordered under
Subsection (c) is punishable by a fine of $500.
(f) The attorney general, or the county or district attorney
of the county in which the conduct, as described by Subsection (c),
is occurring, may file suit under Subsection (c) on behalf of the
state.
(g) A computer trespasser or a user, aggrieved person,
subscriber, or customer of a communications common carrier or
electronic communications service does not have a cause of action
against the carrier or service, its officers, employees, or agents,
or other specified persons for providing information, facilities,
or assistance as required by a good faith reliance on:
(1) legislative authority; or
(2) a court order, warrant, subpoena, or certification
under this article.
Nonapplicability
Sec. 17. This article does not apply to conduct described as
an affirmative defense under Section 16.02(c), Penal Code.
Sec. 18. Repealed by Acts 2005, 79th Leg., ch. 889, Sec. 2.
Added by Acts 1981, 67th Leg., p. 729, ch. 275, Sec. 1, eff. Aug. 31,
1981. Amended by Acts 1983, 68th Leg., p. 4880, ch. 864, Sec. 4,
eff. June 19, 1983; Acts 1985, 69th Leg., ch. 587, Sec. 2 to 4, eff.
Aug. 26, 1985; Acts 1989, 71st Leg., ch. 1166, Sec. 1 to 15, eff.
Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(38), (57),
eff. Sept. 1, 1991; 1993, 73rd Leg., ch. 790, Sec. 15, eff. Sept. 1,
1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.06, eff. Sept. 1, 1994;
Acts 1997, 75th Leg., ch. 1051, Sec. 1 to 4, eff. Sept. 1, 1997;
Acts 2001, 77th Leg., ch. 1270, Sec. 1 to 6, eff. Sept. 1, 2001;
Acts 2003, 78th Leg., ch. 678, Sec. 2 to 7, eff. Sept. 1, 2003.
Sec. 4 amended by Acts 2005, 79th Leg., ch. 390, Sec. 1, eff. Sept.
1, 2005; Sec. 18 repealed by Acts 2005, 79th Leg., ch. 889, Sec. 2,
eff. June 17, 2005.
Article: 18.15 18.16 18.17 18.18 18.181 18.183 18.19 18.20 18.21 18.22 18.23 19.01 19.02 19.03 19.04
Last modified: August 10, 2007
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