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.