HBA-KDB S.B. 1345 77(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1345
By: Armbrister
Criminal Jurisprudence
4/30/2001
Engrossed



BACKGROUND AND PURPOSE 

During the 75th Legislature, the provisions of the Code of Criminal
Procedure pertaining to the interception and use of wire, oral, and
electronic communications were amended to correct problems with proper
venue caused by significant changes in technology and by deregulation of
the telecommunications industry. Currently, provisions relating to pen
registers and trap and trace devices, access to stored communications, and
mobile tracking devices do not address those venue problems.  In addition,
certain articles within the Code of Criminal Procedure are inconsistent
with federal law.  Also, articles within the Penal Code and the Code of
Criminal Procedure governing the possession and use of intercepting devices
and their respective use under emergency circumstances are in conflict with
one another.  Senate Bill 1345 modifies provisions within the Code of
Criminal Procedure to make these laws consistent regarding the possession
and use of interception and pen register equipment and to specify
circumstances under which an emergency interception can be conducted and
the procedural rules for implementing such an interception.  The bill also
allows the Department of Public Safety to utilize federal agents and
contract monitors to assist in monitoring a wire, oral, or electronic
communication interception. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

ANALYSIS

Senate Bill 1345 amends the Code of Criminal Procedure to authorize the
contents of an intercepted communication and evidence derived from an
intercepted communication to 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 the communication was intercepted or the disclosure of the
contents of the intercepted communication or evidence derived from the
communication would be in violation of provisions relating to the
interception and use of wire, oral, or electronic communications, the
unlawful interception, use, or disclosure of wire, oral, or electronic
communications, or federal law.  These provisions do 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 (Sec. 2, Art. 18.20). 

The bill authorizes a judge to issue an order authorizing an interception
of wire, oral, or electronic communications (interception) only if the
prosecutor applying for the order shows probable cause to believe that the
interception will provide evidence of the commission of capital murder for
remuneration or the promise of remuneration, felony possession or promotion
of child pornography, or a felony that violates the Texas Controlled
Substances Act, other than felony possession of marihuana.  An attempt,
conspiracy, or solicitation to commit any of these offenses, in addition to
a felony of delivering aerosol paint and abusable glue to a minor or a
felony under provisions relating to dangerous drugs, is also grounds for a
judge to issue an order authorizing an interception (Sec. 4, Art. 18.20). 

 The bill authorizes a person, in addition to an investigative or law
enforcement officer, to assist the Department of Public Safety (DPS) in the
operation and monitoring of an interception, provided that the officer or
person is designated by the director of DPS for that purpose and acts in
the presence and under the direction of a commissioned officer of DPS (Sec.
5, Art. 18.20).  The bill sets forth provisions relating to the emergency
installation and use of an intercepting device (Sec. 8A, Art. 18.20). 

On request of the applicant for an order authorizing an interception, the
bill authorizes a judge to issue a separate order directing that certain
individuals furnish the applicant all information, facilities, and
technical assistance necessary to accomplish the interception
unobtrusively.    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 (Sec. 9, Art. 18.20). 

The bill authorizes a prosecutor with jurisdiction in a county within a
judicial district to 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 bill deletes the provision
that provided that an authorized peace officer commissioned by DPS may
request an attorney for the state to file an application.  The bill sets
forth requirements for the location of a judicial district.  The bill
authorizes a prosecutor to file an application on the prosecutor's own
motion or on the request of an authorized peace officer, regardless of
whether the officer is commissioner by DPS, and sets forth application
requirements for the prosecutor.  The bill authorizes a prosecutor to 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: a pen register, ESN reader, or similar equipment
on the request of an authorized peace officer who is commissioned by DPS;
or a trap and trace device or similar equipment on the request of an
authorized peace officer, regardless of whether the officer is commissioned
by DPS.  The bill provides that a peace officer is not required to file an
application or obtain an order 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 (Sec. 2, Art. 18.21). 

The bill authorizes a peace officer authorized to possess, install,
operate, or monitor an intercepting device to install and use a pen
register or trap and trace device if the peace officer reasonably believes
an immediate life-threatening situation exists that is within the
territorial jurisdiction of the officer or another officer the officer is
assisting, and reasonably believes there are sufficient grounds on which to
obtain an order authorizing the installation and use of a pen register or
trap and trace device.  The bill requires such an officer to promptly
report the installation or use to the prosecutor in the county  in which
the device is installed or used and, within 48 hours after the installation
is complete or the use of the device begins, whichever occurs first, to
obtain an order authorizing the installation and use.  The bill authorizes
a judge to issue an order authorizing the installation and use of a device
during the prescribed 48-hour period (Sec. 3, Art. 18.21).  Provisions
relating to mobile tracking devices do not apply to 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. The bill authorizes such a device
to be monitored by a private entity in an emergency (Sec. 14, Art. 18.21). 

S.B. 1345 amends the Penal Code to provide that it is an affirmative
defense to prosecution that the manufacture, assembly, possession, or sale
of an electronic, mechanical, or other device that is designed primarily
for the purpose of nonconsensual interception is by a member of DPS who is
specifically trained to install wire, oral, or electronic communications
intercept equipment (Sec. 16.02). 

EFFECTIVE DATE

September 1, 2001.