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Texas Code of Criminal Procedure - Article 18.21. Pen Registers And Trap And Trace Devices; Access To Stored Communications; Mobile Tracking Devices

Legal Research Home > Texas Laws > Code of Criminal Procedure > Texas Code of Criminal Procedure - Article 18.21. Pen Registers And Trap And Trace Devices; Access To Stored Communications; Mobile Tracking Devices

Art. 18.21. PEN REGISTERS AND TRAP AND TRACE DEVICES; ACCESS TO STORED COMMUNICATIONS; MOBILE TRACKING DEVICES. Definitions Sec. 1. In this article: (1) "Aural transfer," "communication common carrier," "computer trespasser," "electronic communication," "electronic communications service," "electronic communications system," "electronic storage," "immediate life-threatening situation," "member of a law enforcement unit specially trained to respond to and deal with life-threatening situations," " readily accessible to the general public," " user," and "wire communication" have the meanings assigned by Article 18.20. (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 executive director of the Texas Department of Criminal Justice under Section 493.019, Government Code. (3) "Department" means the Department of Public Safety. (4) "ESN reader" means a device that records the electronic serial number from the data track of a wireless telephone, cellular telephone, or similar communication device that transmits its operational status to a base site, if the device does not intercept the contents of a communication. (5) "Mobile tracking device" means an electronic or mechanical device that permits tracking the movement of a person, vehicle, container, item, or object. The term does not include a device designed, made, adapted, or capable of: (A) intercepting the content of a communication; or (B) functioning as a pen register, ESN reader, trap and trace device, or similar equipment. (6) "Pen register" means a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, if the information does not include the contents of the communication. The term does not include a device used by a provider or customer of a wire or electronic communication service in the ordinary course of the provider's or customer's business for purposes of: (A) billing or recording as an incident to billing for communications services; or (B) cost accounting, security control, or other ordinary business purposes. (7) "Prosecutor" means a district attorney, criminal district attorney, or county attorney performing the duties of a district attorney. (8) "Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system. (9) "Supervisory official" means: (A) an investigative agent or an assistant investigative agent who is in charge of an investigation; (B) an equivalent person at an investigating agency's headquarters or regional office; and (C) the principal prosecuting attorney of the state or of a political subdivision of the state or the first assistant or chief assistant prosecuting attorney in the office of either. (10) "Trap and trace device" means a device or process that records an incoming electronic or other impulse that identifies the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, if the information does not include the contents of the communication. The term does not include a device or telecommunications network used in providing: (A) a caller identification service authorized by the Public Utility Commission of Texas under Subchapter E, Chapter 55, Utilities Code; (B) the services referenced in Section 55.102(b), Utilities Code; or (C) a caller identification service provided by a commercial mobile radio service provider licensed by the Federal Communications Commission. Application and Order Sec. 2. (a) A prosecutor with jurisdiction in a county within a judicial district described by this subsection may file an application for the installation and use of a pen register, ESN reader, trap and trace device, or similar equipment that combines the function of a pen register and a trap and trace device with a district judge in the judicial district. The judicial district must be a district in which is located: (1) the site of the proposed installation or use of the device or equipment; (2) the site of the communication device on which the device or equipment is proposed to be installed or used; (3) the billing, residential, or business address of the subscriber to the electronic communications service on which the device or equipment is proposed to be installed or used; (4) the headquarters of: (A) the office of the prosecutor filing an application under this section; or (B) a law enforcement agency that requests the prosecutor to file an application under this section or that proposes to execute an order authorizing installation and use of the device or equipment; or (5) the headquarters of a service provider ordered to install the device or equipment. (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 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 an authorized peace officer who is commissioned by the department; 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. (c) The application 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 installation and use of the device or equipment will likely produce information that is material to an ongoing criminal investigation. (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, 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 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. (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 law enforcement agency. (f) Except as otherwise provided by this subsection, an order for the installation and use of a device or equipment under this section is valid for not more than 60 days after the earlier of the date the device or equipment is installed or the 10th day after the date the order is entered, unless the prosecutor applies for and obtains from the court an extension of the order before the order expires. The period of extension may not exceed 60 days for each extension granted, except that with the consent of the subscriber or customer of the service on which the device or equipment is used, the court may extend an order for a period not to exceed one year. (g) The district court shall seal an application and order granted under this article. (h) A peace officer is not required to file an application or obtain an order under this section before the officer makes an otherwise lawful search, with or without a warrant, to determine the contents of a caller identification message, pager message, or voice message that is contained within the memory of an end-user's identification, paging, or answering device. Emergency Installation and Use Of Pen Register Or Trap and Trace Device Sec. 3. (a) A peace officer authorized to possess, install, operate, or monitor a device under Section 8A, Article 18.20, may install and use a pen register or trap and trace device 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 the installation of a pen register or trap and trace device before an order authorizing the installation and use can, with due diligence, be obtained under this article; and (2) reasonably believes there are sufficient grounds under this article on which to obtain an order authorizing the installation and use of a pen register or trap and trace device. (b) If an officer installs or uses a pen register or trap and trace device under Subsection (a), 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 use of the device begins, whichever occurs first, obtain an order under Section 2 authorizing the installation and use. (c) A judge may issue an order authorizing the installation and use of a device under this section during the 48-hour period prescribed by Subsection (b)(2). If an order is denied or is not issued within the 48-hour period, the officer shall terminate use of and remove the pen register or the trap and trace device promptly on the earlier of the denial or the expiration of 48 hours. (d) 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 installed under this section if an authorized peace officer does not apply for or applies for but does not obtain authorization for the pen register or trap and trace device. Requirements for government access to stored communications Sec. 4. (a) An authorized peace officer may require a provider of electronic communications service to disclose the contents of an electronic communication that has been in electronic storage for not longer than 180 days by obtaining a warrant. (b) An authorized peace officer may require a provider of electronic communications service to disclose the contents of an electronic communication that has been in electronic storage for longer than 180 days: (1) if notice is not being given to the subscriber or customer, by obtaining a warrant; (2) if notice is being given to the subscriber or customer, by obtaining: (A) an administrative subpoena authorized by statute; (B) a grand jury subpoena; or (C) a court order issued under Section 5 of this article; or (3) as otherwise permitted by applicable federal law. (c)(1) An authorized peace officer may require a provider of a remote computing service to disclose the contents of an electronic communication as described in Subdivision (2) of this subsection: (A) if notice is not being given to the subscriber or customer, by obtaining a warrant issued under this code; (B) if notice is being given to the subscriber or customer, by: (i) an administrative subpoena authorized by statute; (ii) a grand jury subpoena; or (iii) a court order issued under Section 5 of this article; or (C) as otherwise permitted by applicable federal law. (2) Subdivision (1) of this subsection applies only to an electronic communication that is in electronic storage: (A) on behalf of a subscriber or customer of the service and is received by means of electronic transmission from or created by means of computer processing of communications received by means of electronic transmission from the subscriber or customer; and (B) solely for the purpose of providing storage or computer processing services to the subscriber or customer if the provider of the service is not authorized to obtain access to the contents of those communications for purposes of providing any service other than storage or computer processing. (d) An authorized peace officer may require a provider of remote computing service to disclose records or other information pertaining to a subscriber or customer of the service, other than communications described in Subsection (c) of this section, without giving the subscriber or customer notice: (1) by obtaining an administrative subpoena authorized by statute; (2) by obtaining a grand jury subpoena; (3) by obtaining a warrant; (4) by obtaining the consent of the subscriber or customer to the disclosure of the records or information; (5) by obtaining a court order under Section 5 of this article; or (6) as otherwise permitted by applicable federal law. (e) A provider of telephonic communications service shall disclose to an authorized peace officer, without any form of legal process, subscriber listing information, including name, address, and telephone number or similar access code that: (1) the service provides to others in the course of providing publicly available directory or similar assistance; or (2) is solely for use in the dispatch of emergency vehicles and personnel responding to a distress call directed to an emergency dispatch system or when the information is reasonably necessary to aid in the dispatching of emergency vehicles and personnel for the immediate prevention of death, personal injury, or destruction of property. (f) A provider of telephonic communications service shall provide an authorized peace officer with the name of the subscriber of record whose published telephone number is provided to the service by an authorized peace officer. Court order to obtain access to stored communications Sec. 5. (a) A court shall issue an order authorizing disclosure of contents, records, or other information of a wire or electronic communication held in electronic storage if the court determines that there is reasonable belief that the information sought is relevant to a legitimate law enforcement inquiry. (b) A court may grant a motion by the service provider to quash or modify the order issued under Subsection (a) of this section if the court determines that the information or records requested are unusually voluminous in nature or that compliance with the order would cause an undue burden on the provider. Backup preservation Sec. 6. (a) A subpoena or court order for disclosure of the contents of an electronic communication in a remote computing service under Section 4(c) of this article may require that the service provider to whom the request is directed create a copy of the contents of the electronic communications sought by the subpoena or court order for the purpose of preserving those contents. The service provider may not inform the subscriber or customer whose communications are being sought that the subpoena or court order has been issued. The service provider shall create the copy not later than two business days after the date of the receipt by the service provider of the subpoena or court order. (b) The service provider shall immediately notify the authorized peace officer who presented the subpoena or court order requesting the copy when the copy has been created. (c) Except as provided by Section 7 of this article, the authorized peace officer shall notify the subscriber or customer whose communications are the subject of the subpoena or court order of the creation of the copy not later than three days after the date of the receipt of the notification from the service provider that the copy was created. (d) The service provider shall release the copy to the requesting authorized peace officer not earlier than the 14th day after the date of the peace officer's notice to the subscriber or customer if the service provider has not: (1) initiated proceedings to challenge the request of the peace officer for the copy; or (2) received notice from the subscriber or customer that the subscriber or customer has initiated proceedings to challenge the request. (e) The service provider may not destroy or permit the destruction of the copy until the information has been delivered to the law enforcement 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. (f) An authorized peace officer who reasonably believes that notification to the subscriber or customer of the subpoena or court order would result in the destruction of or tampering with information sought may request the creation of a copy of the information. The peace officer's belief is not subject to challenge by the subscriber or customer or service provider. (g)(1) A subscriber or customer who receives notification as described in Subsection (c) of this section may file a written motion to quash the subpoena or vacate the court order in the court that issued the subpoena or court order not later than the 14th day after the date of the receipt of the notice. The motion must contain an affidavit or sworn statement stating that: (A) the applicant is a subscriber or customer of the service from which the contents of electronic communications stored for the subscriber or customer have been sought; and (B) the applicant's reasons for believing that the information sought is not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article in some other respect. (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 law enforcement 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. (h)(1) The court shall order the authorized peace officer to file a sworn response to the motion filed by the subscriber or customer if the court determines that the subscriber or customer has complied with the requirements of Subsection (g) of this section. On request of the peace officer, the court may permit the response to be filed in camera. The court may conduct any additional proceedings the court considers appropriate if the court is unable to make a determination on the motion on the basis of the parties' initial allegations and response. (2) The court shall rule on the motion as soon after the filing of the officer's response as practicable. The court shall deny the motion if the court finds that the applicant is not the subscriber or customer whose stored communications are the subject of the subpoena or court order or that there is reason to believe that the peace officer's inquiry is legitimate and that the communications sought are relevant to that inquiry. The court shall quash the subpoena or vacate the order if the court finds that the applicant is the subscriber or customer whose stored communications are the subject of the subpoena or court order and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article. (3) A court order denying a motion or application under this section is not a final order and no interlocutory appeal may be taken from the denial. Delay of notification Sec. 7. (a) An authorized peace officer seeking a court order to obtain information under Section 4(c) of this article may include a request for an order delaying the notification required under Section 4(c) of this article for a period not to exceed 90 days. The court shall grant the request if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result, as described in Subsection (c) of this section. (b) An authorized peace officer who has obtained a subpoena authorized by statute or a grand jury subpoena to seek information under Section 4(c) of this article may delay the notification required under that section for a period not to exceed 90 days on the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result as described in Subsection (c) of this section. The peace officer shall maintain a true copy of the certification. (c) In this section an "adverse result" means: (1) endangering the life or physical safety of an individual; (2) flight from prosecution; (3) destruction of or tampering with evidence; (4) intimidation of a potential witness; or (5) otherwise seriously jeopardizing an investigation or unduly delaying a trial. (d) A court may grant one or more extensions of the delay of notification provided by this section of up to 90 days on request or by certification by a supervisory official if the original requirements under Subsection (a) or (b) of this section are met for each extension. (e) When the delay of notification under this section expires, the authorized peace officer shall serve, by personal delivery or registered or certified mail, the subscriber or customer a copy of the process or request together with notice that: (1) states with reasonable specificity the nature of the law enforcement inquiry; and (2) informs the subscriber or customer: (A) that information stored for the subscriber or customer by the service provider named in the process or request was supplied to or requested by the peace officer and the date on which the information was supplied or requested; (B) that notification to the subscriber or customer was delayed; (C) of the name of the supervisory official who made the certification or the court that granted the request for the delay of notification; and (D) of which provision of this article permitted the delay of notification. Preclusion of notification Sec. 8. When an authorized peace officer seeking information under Section 4 of this article is not required to give notice to the subscriber or customer or is delaying notification under Section 7 of this article, the peace officer 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 other person the existence of the warrant, subpoena, or court order. The order is effective for the period the court considers appropriate. The court shall enter the order if the court determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will have an adverse result as described in Section 7(c) of this article. Reimbursement of costs Sec. 9. (a) Except as provided by Subsection (c) of this section, an authorized peace officer who obtains information under this article shall reimburse the person assembling or providing the information for all costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. These costs include costs arising from necessary disruption of normal operations of an electronic communications service or remote computing service in which the information may be stored. (b) The authorized peace officer and the person providing the information may agree on the amount of reimbursement. If there is no agreement, the court that issued the order for production of the information shall determine the amount. If no court order was issued for production of the information, the court before which the criminal prosecution relating to the information would be brought shall determine the amount. (c) Subsection (a) of this section does not apply to records or other information maintained by a communications common carrier that relate to telephone toll records or telephone listings obtained under Section 4(e) of this article unless the court determines that the amount of information required was unusually voluminous or that an undue burden was imposed on the provider. No cause of action Sec. 10. A subscriber or customer of a wire or electronic communications or remote computing service does not have a cause of action against a wire or electronic communications or remote computing service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance as required by a court order, warrant, subpoena, or certification under this article. Disclosure of stored communications Sec. 11. (a) Except as provided by Subsection (c) of this section, a provider of an electronic communications service may not knowingly divulge the contents of a communication that is in electronic storage. (b) Except as provided by Subsection (c) of this section, a provider of remote computing service may not knowingly divulge the contents of any communication that is: (1) in electronic storage; (2) stored on behalf of a subscriber or customer of the service and is received by means of electronic transmission from or created by means of computer processing of communications received by means of electronic transmission from the subscriber or customer; and (3) solely for the purpose of providing storage or computer processing services to the subscriber or customer if the provider of the service is not authorized to obtain access to the contents of those communications for purposes of providing any service other than storage or computer processing. (c) A provider of an electronic communications or remote computing service may divulge the contents of an electronically stored communication: (1) to an intended recipient of the communication or that person's agent; (2) to the addressee or that person's agent; (3) with the consent of the originator, to the addressee or the intended recipient of the communication, or the subscriber of a remote computing service; (4) to a person whose facilities are used to transmit the communication to its destination or the person's employee or authorized representative; (5) as may be necessary to provide the service or to protect the property or rights of the provider of the service; (6) to a law enforcement agency if the contents were obtained inadvertently by the service provider and the contents appear to pertain to the commission of a crime; or (7) as authorized under federal or other state law. Cause of action Sec. 12. (a) Except as provided by Section 10 of this article, a provider of electronic communications service or subscriber or customer of an electronic communications service aggrieved by a violation of this article has a civil cause of action if the conduct constituting the violation was committed knowingly or intentionally and is entitled to: (1) injunctive relief; (2) a reasonable attorney's fee and other litigation costs reasonably incurred; and (3) the sum of the actual damages suffered and any profits made by the violator as a result of the violation or $1,000, whichever is more. (b) The reliance in good faith on a court order, warrant, subpoena, or legislative authorization is a complete defense to any civil action brought under this article. (c) A civil action under this section may be presented within two years after the date the claimant first discovered or had reasonable opportunity to discover the violation, and not afterward. Exclusivity of remedies Sec. 13. The remedies and sanctions described in this article are the exclusive judicial remedies and sanctions for a violation of this article other than a violation that infringes on a right of a party guaranteed by a state or federal constitution. Mobile tracking devices Sec. 14. (a) A district judge may issue an order for the installation and use within the judge's judicial district of a mobile tracking device. (b) The order may authorize the use of a mobile tracking device outside the judicial district but within the state, if the device is installed within the district. (c) A district judge may issue the order 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 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 described in Subdivision (2); (4) state the judicial jurisdictional area in which the vehicle, container, or item described in Subdivision (2) is expected to be found; and (5) state the facts and circumstances that provide the applicant with 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 the criminal activity described in Paragraph (A). (d) Within 72 hours after the time the mobile tracking device was activated in place on or within the vehicle, container, or item, the applicant shall notify in writing the judge who issued an order under this section. (e) An order under this section expires not later than the 90th day after the date that the device has been activated in place on or within the vehicle, container, or item. For good cause shown, the judge may grant an extension for an additional 90-day period. (f) The applicant shall remove or cause to be removed a mobile tracking device as soon as is practicable after the authorization period expires. If removal is not practicable, monitoring of the device shall cease on expiration of the authorization order. (g) This section does not apply to a global positioning or similar device installed in or on an item of property by the owner or with the consent of the owner of the property. A device described by this subsection may be monitored by a private entity in an emergency. Subpoena authority Sec. 15. The director of the department or the director'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. Limitation Sec. 16. A governmental agency authorized to install and use a pen register under this article or other law must 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 a wire or electronic communication so as to not include the contents of the communication. Added by Acts 1985, 69th Leg., ch. 587, Sec. 5, eff. Aug. 26, 1985. Amended by Acts 1989, 71st Leg., ch. 958, Sec. 1, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 659, Sec. 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 170, Sec. 1, eff. Aug. 28, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 47, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 165, Sec. 31.01(40), eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1051, Sec. 5 to 8, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 18.20, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1270, Sec. 7 to 10, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 678, Sec. 8 to 11, eff. Sept. 1, 2003.

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