Sec. 18. Repealed by Acts 2005, 79th Leg., Ch. 889, Sec. 2, eff. June 17, 2005.
Added by Acts 1981, 67th Leg., p. 729, ch. 275, Sec. 1, eff. Aug. 31, 1981. Sec. 17 amended by Acts 1983, 68th Leg., p. 4880, ch. 864, Sec. 4, eff. June 19, 1983; Sec. 1(13), (14) added by Acts 1985, 69th Leg., ch. 587, Sec. 2, eff. Aug. 26, 1985; Sec. 8(a) amended by Acts 1985, 69th Leg., ch. 587, Sec. 3, eff. Aug. 26, 1985; Sec. 9(e), (f) added by and Sec. 9(g), (h) amended by Acts 1985, 69th Leg., ch. 587, Sec. 4, eff. Aug. 26, 1985; Art. head amended by Acts 1989, 71st Leg., ch. 1166, Sec. 1, eff. Sept. 1, 1989; Sec. 1 (1) to (4), (6), (10), (11) amended by and Sec. 1(15) to (21) added by Acts 1989, 71st Leg., ch. 1166, Sec. 2, eff. Sept. 1, 1989; Sec. 3(b) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 3, eff. Sept. 1, 1989; Sec. 4 amended by Acts 1989, 71st Leg., ch. 1166, Sec. 4, eff. Sept. 1, 1989; Sec. 5(a) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 5, eff. Sept. 1, 1989; Sec. 6 amended by Acts 1989, 71st Leg., ch. 1166, Sec. 6, eff. Sept. 1, 1989; Sec. 7 amended by Acts 1989, 71st Leg., ch. 1166, Sec. 7, eff. Sept. 1, 1989; Sec. 8(a) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 8, eff. Sept. 1, 1989; Sec. 9(a) to (f), (h) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 9, eff. Sept. 1, 1989; Sec. 10(a), (d) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 10, eff. Sept. 1, 1989; Sec. 13(a) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 11, eff. Sept. 1, 1989; Sec. 14 amended by Acts 1989, 71st Leg., ch. 1166, Sec. 12, eff. Sept. 1, 1989; Sec. 15 amended by Acts 1989, 71st Leg., ch. 1166, Sec. 13, eff. Sept. 1, 1989; Sec. 16(a) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 14, eff. Sept. 1, 1989; Sec. 17(a) amended by Acts 1989, 71st Leg., ch. 1166, Sec. 15, eff. Sept. 1, 1989; Sec. 4 amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(38), (57), eff. Sept. 1, 1991; Sec. 18 added by Acts 1993, 73rd Leg., ch. 790, Sec. 15, eff. Sept. 1, 1993; added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.06, eff. Sept. 1, 1994; Sec. 1(1), (8), (14), (15), (19) amended by Acts 1997, 75th Leg., ch. 1051, Sec. 1, eff. Sept. 1, 1997; Sec. 3(b) amended by Acts 1997, 75th Leg., ch. 1051, Sec. 2, eff. Sept. 1, 1997; Sec. 16 amended by Acts 1997, 75th Leg., ch. 1051, Sec. 3, eff. Sept. 1, 1997; Sec. 17 amended by Acts 1997, 75th Leg., ch. 1051, Sec. 4, eff. Sept. 1, 1997; Sec. 1(22), (23) added by Acts 2001, 77th Leg., ch. 1270, Sec. 1, eff. Sept. 1, 2001; Sec. 2 amended by Acts 2001, 77th Leg., ch. 1270, Sec. 2, eff. Sept. 1, 2001; Sec. 4 amended by Acts 2001, 77th Leg., ch. 1270, Sec. 3, eff. Sept. 1, 2001; Sec. 5(a) amended by Acts 2001, 77th Leg., ch. 1270, Sec. 4, eff. Sept. 1, 2001; Sec. 8A added by Acts 2001, 77th Leg., ch. 1270, Sec. 5, eff. Sept. 1, 2001; Sec. 9(c), (d) amended by Acts 2001, 77th Leg., ch. 1270, Sec. 6, eff. Sept. 1, 2001; Sec. 1(14), (22) amended and Sec. 1(24), (25), (26) added by Acts 2003, 78th Leg., ch. 678, Sec. 2, eff. Sept. 1, 2003; Sec. 4 amended by Acts 2003, 78th Leg., ch. 678, Sec. 3, eff. Sept. 1, 2003; Sec. 7(a) amended by Acts 2003, 78th Leg., ch. 678, Sec. 4, eff. Sept. 1, 2003; Sec. 8A(b), (c), (e) amended and Sec. 8A(g) added by Acts 2003, 78th Leg., ch. 678, Sec. 5, eff. Sept. 1, 2003; Sec. 9(c) amended by Acts 2003, 78th Leg., ch. 678, Sec. 6, eff. Sept. 1, 2003; Sec. 16(g) added by Acts 2003, 78th Leg., ch. 678, Sec. 7, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 889 (S.B. 1551), Sec. 2, eff. June 17, 2005.
Acts 2007, 80th Leg., R.S., Ch. 186 (S.B. 823), Sec. 1, eff. May 23, 2007.
Acts 2007, 80th Leg., R.S., Ch. 258 (S.B. 11), Sec. 6.01, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1130 (H.B. 2086), Sec. 40, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1169 (H.B. 3228), Sec. 2, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1169 (H.B. 3228), Sec. 3, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1169 (H.B. 3228), Sec. 4, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1169 (H.B. 3228), Sec. 5, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1169 (H.B. 3228), Sec. 6, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1237 (S.B. 2047), Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1356 (S.B. 537), Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 85 (S.B. 653), Sec. 3.002, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.08, eff. May 18, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 4, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 216 (H.B. 511), Sec. 2, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 333 (H.B. 11), Sec. 2, eff. September 1, 2015.
Art. 18.21. PEN REGISTERS AND TRAP AND TRACE DEVICES; ACCESS TO STORED COMMUNICATIONS; MOBILE TRACKING DEVICES
Sec. 1. DEFINITIONS. 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;
(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.
(3) "Department" means the Department of Public Safety.
(3-a) "Designated law enforcement office or agency" means:
(A) the sheriff's department of a county with a population of 3.3 million or more;
(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.
(3-b) "Domestic entity" has the meaning assigned by Section 1.002, Business Organizations Code.
(3-c) "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 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 communication or electronic communication sent to or by the customer;
(iv) the content of a wire communication or electronic communication sent to or by the customer; and
(v) any data stored by or on behalf of the customer with the applicable service provider.
(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.
(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.
Sec. 2. APPLICATION AND ORDER. (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, other than an authorized peace officer employed by a designated law enforcement office or agency, must make the application personally and may not do so through an assistant or some other person acting on the prosecutor's behalf. A prosecutor may make an application through an assistant or other person acting on the prosecutor's behalf if the prosecutor files an application for the installation and use of:
(1) a pen register, ESN reader, or similar equipment on the request of:
(A) an authorized peace officer who is commissioned by the department; or
(B) an authorized peace officer of a designated law enforcement office or agency; or
(2) a trap and trace device or similar equipment on the request of an authorized peace officer, regardless of whether the officer is commissioned by the department.
(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 or an authorized peace officer of a designated law enforcement office or agency, and, on request of the applicant, the judge shall direct in the order that a communication common carrier or a provider of electronic communications service furnish all information, facilities, and technical assistance necessary to facilitate the installation and use of the device or equipment by the department or designated law enforcement office or agency unobtrusively and with a minimum of interference to the services provided by the carrier or service. The carrier or service is entitled to compensation at the prevailing rates for the facilities and assistance provided to the department or a designated law enforcement office or agency.
(e) On presentation of the application, the judge may order the installation and use of the trap and trace device or similar equipment by the communication common carrier or other person on the appropriate line. The judge may direct the communication common carrier or other person, including any landlord or other custodian of equipment, to furnish all information, facilities, and technical assistance necessary to install or use the device or equipment unobtrusively and with a minimum of interference to the services provided by the communication common carrier, landlord, custodian, or other person. Unless otherwise ordered by the court, the results of the trap and trace device or similar equipment shall be furnished to the applicant, designated by the court, at reasonable intervals during regular business hours, for the duration of the order. The carrier is entitled to compensation at the prevailing rates for the facilities and assistance provided to the designated law enforcement office or agency.
(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.
(i) A peace officer of a designated law enforcement office or agency is authorized to possess, install, operate, or monitor a pen register, ESN reader, or similar equipment if the officer's name is on the list submitted to the director of the department under Subsection (k).
(j) Each designated law enforcement office or agency shall:
(1) adopt a written policy governing the application of this article to the office or agency; and
(2) submit the policy to the director of the department, or the director's designee, for approval.
(k) If the director of the department or the director's designee approves the policy submitted under Subsection (j), the inspector general of the Texas Department of Criminal Justice or the inspector general's designee, or the sheriff or chief of a designated law enforcement agency or the sheriff's or chief's designee, as applicable, shall submit to the director a written list of all officers in the designated law enforcement office or agency who are authorized to possess, install, monitor, or operate pen registers, ESN readers, or similar equipment.
(l) The department may conduct an audit of a designated law enforcement office or agency to ensure compliance with this article. If the department determines from the audit that the designated law enforcement office or agency is not in compliance with the policy adopted by the office or agency under Subsection (j), the department shall notify the office or agency in writing that it is not in compliance. If the department determines that the office or agency still is not in compliance with the policy 90 days after the date the office or agency receives written notice under this subsection, the office or agency loses the authority granted by this article until:
(1) the office or agency adopts a new written policy governing the application of this article to the office or agency; and
(2) the department approves the written policy.
(m) The inspector general of the Texas Department of Criminal Justice or the sheriff or chief of a designated law enforcement agency, as applicable, shall submit to the director of the department a written report of expenditures made by the designated law enforcement office or agency for the purchase and maintenance of a pen register, ESN reader, or similar equipment, authorized under this article. The director of the department shall report those expenditures publicly on an annual basis via the department's website, or other comparable means.
Sec. 3. EMERGENCY INSTALLATION AND USE OF PEN REGISTER OR TRAP AND TRACE DEVICE. (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.
Sec. 4. REQUIREMENTS FOR GOVERNMENT ACCESS TO STORED COMMUNICATIONS. (a) An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose electronic customer data that is in electronic storage by obtaining a warrant under Section 5A.
(b) An authorized peace officer may require a provider of an electronic communications service or a provider of a remote computing service to disclose only electronic customer data that is information revealing the identity of customers of the applicable service or information about a customer's use of the applicable service, 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 under Section 5A;
(4) by obtaining the consent of the subscriber or customer to the disclosure of the data;
(5) by obtaining a court order under Section 5; or
(6) as otherwise permitted by applicable federal law.
(c) 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.
(d) 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.
Sec. 5. COURT ORDER TO OBTAIN ACCESS TO STORED COMMUNICATIONS. (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.
Sec. 5A. WARRANT ISSUED IN THIS STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS. (a) This section applies to a warrant required under Section 4 to obtain electronic customer data, including the contents of a wire communication or electronic communication.
(b) On the filing of an application by an authorized peace officer, a district judge may issue a search warrant under this section for electronic customer data held in electronic storage, including the contents of and records and other information related to a wire communication or electronic communication held in electronic storage, by a provider of an electronic communications service or a provider of a remote computing service described by Subsection (h), regardless of whether the customer data is held at a location in this state or at a location in 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 or affirmation of the authorized peace officer.
(c) A search warrant may not be issued under this section unless the sworn affidavit required by Article 18.01(b) sets forth sufficient and substantial facts to establish probable cause that:
(1) a specific offense has been committed; and
(2) the electronic customer data sought:
(A) constitutes evidence of that offense or evidence that a particular person committed that offense; and
(B) is held in electronic storage by the service provider on which the warrant is served under Subsection (i).
(d) Only the electronic customer data described in the sworn affidavit required by Article 18.01(b) may be seized under the warrant.
(e) A warrant issued under this section shall run in the name of "The State of Texas."
(f) Article 18.011 applies to an affidavit presented under Article 18.01(b) for the issuance of a warrant under this section, and the affidavit may be sealed in the manner provided by that article.
(g) The peace officer shall execute the warrant not later than the 11th day after the date of issuance, except that the officer shall execute the warrant within a shorter period if so directed in the warrant by the district judge. For purposes of this subsection, a warrant is executed when the warrant is served in the manner described by Subsection (i).
(h) A warrant under this section may be served only on a service provider 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. The service provider shall produce all electronic customer data, contents of communications, and other information sought, regardless of where the information is held and within the period allowed for compliance with the warrant, as provided by Subsection (j). A court may find any designated officer, designated director, or designated owner of a company or entity in contempt of court if the person by act or omission is responsible for the failure of the company or entity to comply with the warrant within the period allowed for compliance. The failure of a company or entity to timely deliver the information sought in the warrant does not affect the admissibility of that evidence in a criminal proceeding.
(i) A search warrant issued under this section is served when the authorized peace officer delivers the warrant by hand, by facsimile 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.
(j) The district judge shall indicate in the warrant that the deadline for compliance by the provider of an electronic communications service or the provider of a remote computing service is the 15th business day after the date the warrant is served if the warrant is to be served on a domestic entity or a company or entity otherwise doing business in this state, except that the deadline for compliance with a warrant served in accordance with Section 5.251, Business Organizations Code, may be extended to a date that is not later than the 30th day after the date the warrant is served. The judge may indicate in a warrant that the deadline for compliance is earlier than the 15th business day after the date the warrant is served if the officer makes a showing and the judge finds that failure to comply with the warrant by the earlier deadline would cause serious jeopardy to an investigation, cause undue delay of a trial, or create a material risk of:
(1) danger to the life or physical safety of any person;
(2) flight from prosecution;
(3) the tampering with or destruction of evidence; or
(4) intimidation of potential witnesses.
(k) If the authorized peace officer serving the warrant under this section also delivers an affidavit form to the provider of an electronic communications service or the provider of a remote computing service responding to the warrant, and the peace officer also notifies the provider in writing that an executed affidavit is required, then the provider shall verify the authenticity of the customer data, contents of communications, and other information produced in compliance with the warrant by including with the information the affidavit form completed and sworn to by a person who is a custodian of the information or a person otherwise qualified to attest to its authenticity that states that the information was stored in the course of regularly conducted business of the provider and specifies whether it is the regular practice of the provider to store that information.
(l) On a service provider's compliance with a warrant under this section, an authorized peace officer shall file a return of the warrant and a copy of the inventory of the seized property as required under Article 18.10.
(m) The district judge shall hear and decide any motion to quash the warrant not later than the fifth business day after the date the service provider files the motion. The judge may allow the service provider to appear at the hearing by teleconference.
(n) A provider of an electronic communications service or a provider of a remote computing service responding to a warrant issued under this section may request an extension of the period for compliance with the warrant if extenuating circumstances exist to justify the extension. The district judge shall grant a request for an extension based on those circumstances if:
(1) the authorized peace officer who applied for the warrant or another appropriate authorized peace officer agrees to the extension; or
(2) the district judge finds that the need for the extension outweighs the likelihood that the extension will cause an adverse circumstance described by Subsection (j).
Sec. 5B. WARRANT ISSUED IN ANOTHER STATE FOR STORED CUSTOMER DATA OR COMMUNICATIONS. Any domestic entity that provides electronic communications services or remote computing services to the public shall comply with a warrant issued in another state and seeking information described by Section 5A(b), if the warrant is served on the entity in a manner equivalent to the service of process requirements provided in Section 5A(h).
Sec. 6. BACKUP PRESERVATION. (a) A subpoena or court order for disclosure of certain electronic customer data held in electronic storage by a provider of an electronic communications service or a provider of a remote computing service under Section 4(b) may require that provider to create a copy of the customer data sought by the subpoena or court order for the purpose of preserving that data. The provider may not inform the subscriber or customer whose data is being sought that the subpoena or court order has been issued. The provider shall create the copy within a reasonable time as determined by the court issuing the subpoena or court order.
(b) The provider of an electronic communications service or the provider of a remote computing service shall immediately notify the authorized peace officer who presented the subpoena or court order requesting the copy when the copy has been created.
(c) The authorized peace officer shall notify the subscriber or customer whose electronic customer data is 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 applicable provider that the copy was created.
(d) The provider of an electronic communications service or the provider of a remote computing service 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 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 provider of an electronic communications service or the provider of a remote computing service may not destroy or permit the destruction of the copy until the electronic customer data has been delivered to the applicable 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 electronic customer data sought may request the creation of a copy of the data. The peace officer's belief is not subject to challenge by the subscriber or customer or by a provider of an electronic communications service or a provider of a remote computing service.
(g)(1) A subscriber or customer who receives notification as described in Subsection (c) 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:
(A) that the applicant is a subscriber or customer of the provider of an electronic communications service or the provider of a remote computing service from which the electronic customer data held in electronic storage for the subscriber or customer has been sought; and
(B) the applicant's reasons for believing that the customer data 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 provider of an electronic communications service or the provider of a remote computing service of the challenge to the subpoena or court order. The authorized peace officer requesting the subpoena or court order must 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). 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 electronic customer data held in electronic storage is 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 customer data sought is 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 data is the subject of the subpoena or court order and that there is not a reason to believe that the data is 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.
Sec. 7. Repealed by Acts 2013, 83rd Leg., R.S., Ch. 1289, Sec. 13, eff. June 14, 2013.
Sec. 8. PRECLUSION OF NOTIFICATION. (a) An authorized peace officer seeking electronic customer data under Section 4 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. 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.
(b) 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.
Sec. 9. REIMBURSEMENT OF COSTS. (a) Except as provided by Subsection (c) of this section, an authorized peace officer who obtains electronic customer data under Section 4 or other information under this article shall reimburse the person assembling or providing the data or information for all costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the data or information. These costs include costs arising from necessary disruption of normal operations of a provider of an electronic communications service or a provider of a remote computing service in which the electronic customer data may be held in electronic storage or in which the other information may be stored.
(b) The authorized peace officer and the person providing the electronic customer data or other information may agree on the amount of reimbursement. If there is no agreement, the court that issued the order for production of the data or information shall determine the amount. If no court order was issued for production of the data or information, the court before which the criminal prosecution relating to the data or 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.
Sec. 10. NO CAUSE OF ACTION. A subscriber or customer of a provider of an electronic communications service or a provider of a remote computing service does not have a cause of action against a provider or its officers, employees, or agents or against other specified persons for providing information, facilities, or assistance as required by a court order, warrant, subpoena, or certification under this article.
Sec. 11. DISCLOSURE OF STORED COMMUNICATIONS. (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.
Sec. 12. CAUSE OF ACTION. (a) Except as provided by Section 10 of this article, a provider of an electronic communications service or a provider of a remote computing service, or a subscriber or customer of that provider, that is 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.
Sec. 13. EXCLUSIVITY OF REMEDIES. 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.
Sec. 14. MOBILE TRACKING DEVICES. (a) A district judge may issue an order for the installation and use of a mobile tracking device in the same judicial district as the site of:
(1) the investigation; or
(2) the person, vehicle, container, item, or object the movement of which will be tracked by the 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.
Sec. 15. SUBPOENA AUTHORITY. (a) The director of the department or the director's designee, the inspector general of the Texas Department of Criminal Justice or the inspector general's designee, or the sheriff or chief of a designated law enforcement agency or the sheriff's or chief's designee may issue an administrative subpoena to a communications common carrier or an electronic communications service to compel the production of the carrier's or service's business records that:
(1) disclose information about:
(A) the carrier's or service's customers; or
(B) users of the services offered by the carrier or service; and
(2) are material to a criminal investigation.
(b) Not later than the 30th day after the date on which the administrative subpoena is issued under Subsection (a), the inspector general of the Texas Department of Criminal Justice or the sheriff or chief of a designated law enforcement agency, as applicable, shall report the issuance of the subpoena to the department.
(c) If, based on reports received under Subsection (b), the department determines that a designated law enforcement office or agency is not in compliance with the policy adopted by the office or agency under Section 2(j), the department shall notify the office or agency in writing that it is not in compliance. If the department determines that the office or agency still is not in compliance with the policy 90 days after the date the office or agency receives written notice under this subsection, the office or agency loses the authority granted by this article until:
(1) the office or agency adopts a new written policy governing the application of this article to the office or agency; and
(2) the department approves the written policy.
Sec. 16. LIMITATION. 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. Sec. 1(14) amended by Acts 1993, 73rd Leg., ch. 659, Sec. 2, eff. Sept. 1, 1993; amended by Acts 1995, 74th Leg., ch. 170, Sec. 1, eff. Aug. 28, 1995; Sec. 2(f) amended by Acts 1995, 74th Leg., ch. 318, Sec. 47, eff. Sept. 1, 1995; Sec. 1 amended by Acts 1997, 75th Leg., ch. 1051, Sec. 5, eff. Sept. 1, 1997; Sec. 1(2)(H) amended by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(40), eff. Sept. 1, 1997; Sec. 2(f) amended by Acts 1997, 75th Leg., ch. 1051, Sec. 6, eff. Sept. 1, 1997; Sec. 3 amended by Acts 1997, 75th Leg., ch. 1051, Sec. 7, eff. Sept. 1, 1997; Sec. 16 added by Acts 1997, 75th Leg., ch. 1051, Sec. 8, eff. Sept. 1, 1997; Sec. 1(7) amended by Acts 1999, 76th Leg., ch. 62, Sec. 18.20, eff. Sept. 1, 1999; Sec. 1(1) amended by and Sec. 1(8), (9) added by Acts 2001, 77th Leg., ch. 1270, Sec. 7, eff. Sept. 1, 2001; Sec. 2 amended by Acts 2001, 77th Leg., ch. 1270, Sec. 8, eff. Sept. 1, 2001; Sec. 3 amended by Acts 2001, 77th Leg., ch. 1270, Sec. 9, eff. Sept. 1, 2001; Sec. 14(g) added by Acts 2001, 77th Leg., ch. 1270, Sec. 10, eff. Sept. 1, 2001; Sec. 1 amended by Acts 2003, 78th Leg., ch. 678, Sec. 8, eff. Sept. 1, 2003; Sec. 2(b), (c) amended by Acts 2003, 78th Leg., ch. 678, Sec. 9, eff. Sept. 1, 2003; Sec. 14(a)-(f) amended by Acts 2003, 78th Leg., ch. 678, Sec. 10, eff. Sept. 1, 2003; Sec. 16 amended by Acts 2003, 78th Leg., ch. 678, Sec. 11, eff. Sept. 1, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 186 (S.B. 823), Sec. 2, eff. May 23, 2007.
Acts 2007, 80th Leg., R.S., Ch. 186 (S.B. 823), Sec. 3, eff. May 23, 2007.
Acts 2007, 80th Leg., R.S., Ch. 186 (S.B. 823), Sec. 4, eff. May 23, 2007.
Acts 2009, 81st Leg., R.S., Ch. 1237 (S.B. 2047), Sec. 2, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1237 (S.B. 2047), Sec. 3, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1237 (S.B. 2047), Sec. 4, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1237 (S.B. 2047), Sec. 5, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 316 (H.B. 2354), Sec. 1, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 316 (H.B. 2354), Sec. 2, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 316 (H.B. 2354), Sec. 3, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 316 (H.B. 2354), Sec. 4, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 316 (H.B. 2354), Sec. 5, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 620 (S.B. 688), Sec. 2, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 5, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 6, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 7, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 8, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 9, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 10, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 11, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 12, eff. June 14, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 1289 (H.B. 2268), Sec. 13, eff. June 14, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1120 (H.B. 3668), Sec. 1, eff. June 19, 2015.
Art. 18.22. TESTING CERTAIN DEFENDANTS OR CONFINED PERSONS FOR COMMUNICABLE DISEASES.
Text of subsection as amended by Acts 2015, 84th Leg., R.S., Ch. 736 (H.B. 1595), Sec. 2
(a) A person who is arrested for a misdemeanor or felony and who during the commission of that offense or the arrest, during a judicial proceeding or initial period of confinement following the arrest, or during the person's confinement after a conviction or adjudication resulting from the arrest causes the person's bodily fluids to come into contact with a peace officer, a magistrate, or an employee of a correctional facility where the person is confined shall, at the direction of the court having jurisdiction over the arrested person, undergo a medical procedure or test designed to show or help show whether the person has a communicable disease. The court may direct the person to undergo the procedure or test on its own motion or on the request of the peace officer, magistrate, or correctional facility employee. If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test. Notwithstanding any other law, the person performing the procedure or test shall make the test results available to the local health authority, and the local health authority shall notify the peace officer, magistrate, or correctional facility employee, as appropriate, of the test result. The state may not use the fact that a medical procedure or test was performed on a person under this article, or use the results of the procedure or test, in any criminal proceeding arising out of the alleged offense.
Text of subsection as amended by Acts 2015, 84th Leg., R.S., Ch. 1278 (S.B. 1574), Sec. 1
(a) A person who is arrested for a misdemeanor or felony and who during the commission of that offense or an arrest following the commission of that offense causes an emergency response employee or volunteer, as defined by Section 81.003, Health and Safety Code, to come into contact with the person's bodily fluids shall, at the direction of the court having jurisdiction over the arrested person, undergo a medical procedure or test designed to show or help show whether the person has a communicable disease. The court may direct the person to undergo the procedure or test on its own motion or on the request of the emergency response employee or volunteer. If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test. Notwithstanding any other law, the person performing the procedure or test shall make the test results available to the local health authority and the designated infection control officer of the entity that employs or uses the services of the affected emergency response employee or volunteer, and the local health authority or the designated infection control officer of the affected employee or volunteer shall notify the emergency response employee or volunteer of the test result. The state may not use the fact that a medical procedure or test was performed on a person under this article, or use the results of the procedure or test, in any criminal proceeding arising out of the alleged offense.
(b) Testing under this article shall be conducted in accordance with written infectious disease control protocols adopted by the Department of State Health Services that clearly establish procedural guidelines that provide criteria for testing and that respect the rights of the arrested person and the peace officer, magistrate, or correctional facility employee.
(c) Nothing in this article authorizes a court to release a test result to a person other than a person specifically authorized by this article, and Section 81.103(d), Health and Safety Code, does not authorize that disclosure.
(d) In this article, "correctional facility" means:
(1) any place described by Section 1.07(a)(14), Penal Code; or
(2) a "secure correctional facility" or "secure detention facility" as those terms are defined by Section 51.02, Family Code.
Added by Acts 2001, 77th Leg., ch. 1480, Sec. 2, eff. Sept. 1, 2001; Subsec. (a) amended by Acts 2003, 78th Leg., ch. 1250, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2015, 84th Leg., R.S., Ch. 736 (H.B. 1595), Sec. 1, eff. June 17, 2015.
Acts 2015, 84th Leg., R.S., Ch. 736 (H.B. 1595), Sec. 2, eff. June 17, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1278 (S.B. 1574), Sec. 1, eff. September 1, 2015.
Art. 18.23. EXPENSES FOR MOTOR VEHICLE TOWED AND STORED FOR CERTAIN PURPOSES. (a) A law enforcement agency that directs the towing and storage of a motor vehicle for an evidentiary or examination purpose shall pay the cost of the towing and storage.
(b) Subsection (a) applies whether the motor vehicle is taken to or stored on property that is:
(1) owned or operated by the law enforcement agency; or
(2) owned or operated by another person who provides storage services to the law enforcement agency, including:
(A) a governmental entity; and
(B) a vehicle storage facility, as defined by Section 2303.002, Occupations Code.
(c) Subsection (a) does not require a law enforcement agency to pay the cost of:
(1) towing or storing a motor vehicle for a purpose that is not an evidentiary or examination purpose, including towing or storing a vehicle that has been abandoned, illegally parked, in an accident, or recovered after being stolen; or
(2) storing a motor vehicle after the date the law enforcement agency authorizes the owner or operator of the property to which the vehicle was taken or on which the vehicle is stored to release the vehicle to the vehicle's owner.
(d) This subsection applies only to a motor vehicle taken to or stored on property described by Subsection (b)(2). After a law enforcement agency authorizes the release of a motor vehicle held for an evidentiary or examination purpose, the owner or operator of the storage property may not refuse to release the vehicle to the vehicle's owner because the law enforcement agency has not paid the cost of the towing and storage.
(e) Subchapter J, Chapter 2308, Occupations Code, does not apply to a motor vehicle directed by a law enforcement agency to be towed and stored for an evidentiary or examination purpose.
Added by Acts 2005, 79th Leg., Ch. 1197 (H.B. 480), Sec. 1, eff. September 1, 2005.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1046 (H.B. 2094), Sec. 3.01, eff. September 1, 2007.
Art. 18.24. BODY CAVITY SEARCH DURING TRAFFIC STOP. (a) In this article, "body cavity search" means an inspection that is conducted of a person's anal or vaginal cavity in any manner, but the term does not include a pat-down.
(b) Notwithstanding any other law, a peace officer may not conduct a body cavity search of a person during a traffic stop unless the officer first obtains a search warrant pursuant to this chapter authorizing the body cavity search.
Added by Acts 2015, 84th Leg., R.S., Ch. 997 (H.B. 324), Sec. 1, eff. September 1, 2015.
Article: Previous 18.01Last modified: September 28, 2016