CODE OF CRIMINAL PROCEDURE CHAPTER 18.

SEARCH WARRANTS

Art. 18.01. [304] Search warrant

(a) A "search warrant" is a written order, issued by a magistrate
and directed to a peace officer, commanding him to search for any
property or thing and to seize the same and bring it before such
magistrate or commanding him to search for and photograph a child
and to deliver to the magistrate any of the film exposed pursuant to
the order.

(b) No search warrant shall issue for any purpose in this state
unless sufficient facts are first presented to satisfy the issuing
magistrate that probable cause does in fact exist for its issuance.
A sworn affidavit setting forth substantial facts establishing
probable cause shall be filed in every instance in which a search
warrant is requested. The affidavit is public information if
executed, and the magistrate's clerk shall make a copy of the
affidavit available for public inspection in the clerk's office
during normal business hours.

(c) A search warrant may not be issued pursuant to Subdivision (10)
of Article 18.02 of this code unless the sworn affidavit required by
Subsection (b) of this article sets forth sufficient facts to
establish probable cause: (1) that a specific offense has been
committed, (2) that the specifically described property or items
that are to be searched for or seized constitute evidence of that
offense or evidence that a particular person committed that
offense, and (3) that the property or items constituting evidence
to be searched for or seized are located at or on the particular
person, place, or thing to be searched. Except as provided by
Subsections (d) and (i) of this article, only a judge of a municipal
court of record or county court who is an attorney licensed by the
State of Texas, statutory county court, district court, the Court
of Criminal Appeals, or the Supreme Court may issue warrants
pursuant to Subdivision (10), Article 18.02 of this code.

(d) Only the specifically described property or items set forth in a
search warrant issued under Subdivision (10) of Article 18.02 of
this code or property, items or contraband enumerated in
Subdivisions (1) through (9) or in Subdivision (12) of Article
18.02 of this code may be seized. A subsequent search warrant may
be issued pursuant to Subdivision (10) of Article 18.02 of this code
to search the same person, place, or thing subjected to a prior
search under Subdivision (10) of Article 18.02 of this code only if
the subsequent search warrant is issued by a judge of a district
court, a court of appeals, the court of criminal appeals, or the
supreme court.

(e) A search warrant may not be issued under Subdivision (10) of
Article 18.02 of this code to search for and seize property or items
that are not described in Subdivisions (1) through (9) of that
article and that are located in an office of a newspaper, news
magazine, television station, or radio station, and in no event may
property or items not described in Subdivisions (1) through (9) of
that article be legally seized in any search pursuant to a search
warrant of an office of a newspaper, news magazine, television
station, or radio station.

(f) A search warrant may not be issued pursuant to Article 18.021 of
this code unless the sworn affidavit required by Subsection (b) of
this article sets forth sufficient facts to establish probable
cause:

(1) that a specific offense has been committed;

(2) that a specifically described person has been a victim of the
offense;

(3) that evidence of the offense or evidence that a particular
person committed the offense can be detected by photographic means;
and

(4) that the person to be searched for and photographed is located
at the particular place to be searched.

(g) A search warrant may not be issued under Subdivision (12),
Article 18.02, of this code unless the sworn affidavit required by
Subsection (b) of this article sets forth sufficient facts to
establish probable cause that a specific felony offense has been
committed and that the specifically described property or items
that are to be searched for or seized constitute contraband as
defined in Article 59.01 of this code and are located at or on the
particular person, place, or thing to be searched.

(h) Except as provided by Subsection (i) of this article, a warrant
under Subdivision (12), Article 18.02 of this code may only be
issued by:

(1) a judge of a municipal court of record who is an attorney
licensed by the state;

(2) a judge of a county court who is an attorney licensed by the
state; or

(3) a judge of a statutory county court, district court, the court
of criminal appeals, or the supreme court.

(i) In a county in which the only judge serving the county who is a
licensed attorney is a district judge whose district includes more
than one county or in which the only judges serving the county who
are licensed attorneys are two or more district judges each of whose
district includes more than one county, any magistrate may issue a
search warrant under Subdivision (10) or Subdivision (12) of
Article 18.02 of this code. This section is not applicable to a
subsequent search warrant under Subdivision (10) of Article 18.02
of this code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977,
65th Leg., p. 640, ch. 237, Sec. 1, eff. May 25, 1977.

Sec. (c) amended by Acts 1979, 66th Leg., p. 1124, ch. 536, Sec. 1,
eff. June 11, 1979; Sec. (e) added by Acts 1979, 66th Leg., p. 1076,
ch. 505, Sec. 1, eff. Sept. 1, 1979; Sec. (a) amended by Acts 1981,
67th Leg., p. 759, ch. 289, Sec. 3, eff. Sept. 1, 1981; Sec. (b)
amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 1, eff.
Sept. 1, 1981; Sec. (f) added by Acts 1981, 67th Leg., p. 759, ch.
289, Sec. 4, eff. Sept. 1, 1981; Sec. (c) amended by Acts 1987, 70th
Leg., ch. 686, Sec. 1, eff. Sept. 1, 1987; Secs. (g) and (h) added
by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 2, eff. Oct. 18,
1989; Secs. (c), (h) amended by and Sec. (i) added by Acts 1991,
72nd Leg., ch. 73, Sec. 1, eff. May 9, 1991; Secs. (c), (d), (i)
amended by Acts 1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1,
1995; Subsecs. (c), (h) amended by Acts 1997, 75th Leg., ch. 604,
Sec. 1, eff. Sept. 1, 1997; Subsec. (b) amended by Acts 1999, 76th
Leg., ch. 167, Sec. 1, eff. Aug. 30, 1999; Subsec. (d) amended by
Acts 1999, 76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Subsec.
(i) amended by Acts 2001, 77th Leg., ch. 1395, Sec. 1, eff. June 16,
2001.

Art. 18.02. Grounds for Issuance

A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes
its acquisition a penal offense;

(2) property specially designed, made, or adapted for or commonly
used in the commission of an offense;

(3) arms and munitions kept or prepared for the purposes of
insurrection or riot;

(4) weapons prohibited by the Penal Code;

(5) gambling devices or equipment, altered gambling equipment, or
gambling paraphernalia;

(6) obscene materials kept or prepared for commercial distribution
or exhibition, subject to the additional rules set forth by law;

(7) a drug, controlled substance, immediate precursor, chemical
precursor, or other controlled substance property, including an
apparatus or paraphernalia kept, prepared, or manufactured in
violation of the laws of this state;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime;

(10) property or items, except the personal writings by the
accused, constituting evidence of an offense or constituting
evidence tending to show that a particular person committed an
offense;

(11) persons; or

(12) contraband subject to forfeiture under Chapter 59 of this
code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977,
65th Leg., p. 640, ch. 237, Sec. 2, eff. May 25, 1977; Amended by
Acts 1981, 67th Leg., p. 2790, ch. 755, Sec. 5, eff. Sept. 1, 1981;
Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 3, eff. Oct. 18, 1989;
Acts 2003, 78th Leg., ch. 1099, Sec. 16, eff. Sept. 1, 2003.

Art. 18.021. Issuance of search warrant to photograph injured child

(a) A search warrant may be issued to search for and photograph a
child who is alleged to be the victim of the offenses of injury to a
child as defined by Section 22.04, Penal Code, as amended; sexual
assault of a child as defined by Section 22.011(a), Penal Code, as
amended; or aggravated sexual assault of a child as defined by
Section 22.021, Penal Code.

(b) The officer executing the warrant may be accompanied by a
photographer who is employed by a law enforcement agency and who
acts under the direction of the officer executing the warrant. The
photographer is entitled to access to the child in the same manner
as the officer executing the warrant.

(c) In addition to the requirements of Subdivisions (1) and (4) of
Article 18.04 of this code, a warrant issued under this article
shall identify, as near as may be, the child to be located and
photographed, shall name or describe, as near as may be, the place
or thing to be searched, and shall command any peace officer of the
proper county to search for and cause the child to be photographed.

(d) After having located and photographed the child, the peace
officer executing the warrant shall take possession of the exposed
film and deliver it forthwith to the magistrate. The child may not
be removed from the premises on which he or she is located except
under Subchapters A and B, Chapter 262, Family Code.

(e) A search warrant under this section shall be executed by a peace
officer of the same sex as the alleged victim or, if the officer is
not of the same sex as the alleged victim, the peace officer must be
assisted by a person of the same sex as the alleged victim. The
person assisting an officer under this subsection must be acting
under the direction of the officer and must be with the alleged
victim during the taking of the photographs.

Added by Acts 1981, 67th Leg., p. 758, ch. 289, Sec. 2, eff. Sept. 1,
1981. Subsec. (a) amended by Acts 1983, 68th Leg., p. 5319, ch.
977, Sec. 8, eff. Sept. 1, 1983; Subsec. (d) amended by Acts 1997,
75th Leg., ch. 165, Sec. 7.01, eff. Sept. 1, 1997.

Art. 18.03. [313, 314] [364, 365] [352, 353] Search warrant may
order arrest

If the facts presented to the magistrate under Article 18.02 of this
chapter also establish the existence of probable cause that a
person has committed some offense under the laws of this state, the
search warrant may, in addition, order the arrest of such person.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Art. 18.04. [315, 316] [366, 367] [354, 355] Contents of warrant

A search warrant issued under this chapter shall be sufficient if it
contains the following requisites:

(1) that it run in the name of "The State of Texas";

(2) that it identify, as near as may be, that which is to be seized
and name or describe, as near as may be, the person, place, or thing
to be searched;

(3) that it command any peace officer of the proper county to search
forthwith the person, place, or thing named; and

(4) that it be dated and signed by the magistrate.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

 

Art. 18.05. Warrants for fire, health, and code inspections

(a) Except as provided by Subsection (e) of this article, a search
warrant may be issued to the fire marshal, health officer, or code
enforcement official of the state or of any county, city, or other
political subdivision for the purpose of allowing the inspection of
any specified premises to determine the presence of a fire or health
hazard or unsafe building condition or a violation of any fire,
health, or building regulation, statute, or ordinance.

(b) A search warrant may not be issued under this article except
upon the presentation of evidence of probable cause to believe that
a fire or health hazard or violation or unsafe building condition is
present in the premises sought to be inspected.

(c) In determining probable cause, the magistrate is not limited to
evidence of specific knowledge, but may consider any of the
following:

(1) the age and general condition of the premises;

(2) previous violations or hazards found present in the premises;

(3) the type of premises;

(4) the purposes for which the premises are used; and

(5) the presence of hazards or violations in and the general
condition of premises near the premises sought to be inspected.

(d) Each city or county may designate one code enforcement official
for the purpose of being issued a search warrant as authorized by
Subsection (a) of this article. A political subdivision other than
a city or county may designate one code enforcement official for the
purpose of being issued a search warrant as authorized by
Subsection (a) of this article only if the political subdivision
routinely inspects premises to determine whether there is a fire or
health hazard or unsafe building condition or a violation of fire,
health, or building regulation, statute, or ordinance.

(e) A search warrant may not be issued under this article to a code
enforcement official of a county with a population of 2.4 million or
more for the purpose of allowing the inspection of specified
premises to determine the presence of an unsafe building condition
or a violation of a building regulation, statute, or ordinance.

Added as art. 18.011 by Acts 1969, 61st Leg., p. 1623, ch. 502, Sec.
1, eff. Sept. 1, 1969. Amended by Acts 1973, 63rd Leg., p. 983, ch.
399, Sec. 2(E), eff. Jan. 1, 1974.

Amended by Acts 1989, 71st Leg., ch. 382, Sec. 1, eff. Aug. 28,
1989.

Art. 18.06. [317, 319] [368, 370] [356, 358] Execution of warrants

(a) A peace officer to whom a search warrant is delivered shall
execute it without delay and forthwith return it to the proper
magistrate. It must be executed within three days from the time of
its issuance, and shall be executed within a shorter period if so
directed in the warrant by the magistrate.

(b) On searching the place ordered to be searched, the officer
executing the warrant shall present a copy of the warrant to the
owner of the place, if he is present. If the owner of the place is
not present but a person who is present is in possession of the
place, the officer shall present a copy of the warrant to the
person. Before the officer takes property from the place, he shall
prepare a written inventory of the property to be taken. He shall
legibly endorse his name on the inventory and present a copy of the
inventory to the owner or other person in possession of the
property. If neither the owner nor a person in possession of the
property is present when the officer executes the warrant, the
officer shall leave a copy of the warrant and the inventory at the
place.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 2,
eff. Sept. 1, 1981.

Art. 18.07. [318] [369] [357] Days allowed for warrant to run

The time allowed for the execution of a search warrant shall be
three whole days, exclusive of the day of its issuance and of the
day of its execution. The magistrate issuing a search warrant under
the provisions of this chapter shall endorse on such search warrant
the date and hour of the issuance of the same.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Art. 18.08. [320] [371] [359] Power of officer executing warrant

In the execution of a search warrant, the officer may call to his
aid any number of citizens in this county, who shall be bound to aid
in the execution of the same.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Art. 18.09. [322] [373] [361] Shall seize accused and property

When the property which the officer is directed to search for and
seize is found he shall take possession of the same and carry it
before the magistrate. He shall also arrest any person whom he is
directed to arrest by the warrant and immediately take such person
before the magistrate.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Art. 18.10. [324] [375] [363] How return made

Upon returning the search warrant, the officer shall state on the
back of the same, or on some paper attached to it, the manner in
which it has been executed and shall likewise deliver to the
magistrate a copy of the inventory of the property taken into his
possession under the warrant. The officer who seized the property
shall retain custody of it until the magistrate issues an order
directing the manner of safekeeping the property. The property may
not be removed from the county in which it was seized without an
order approving the removal, issued by a magistrate in the county in
which the warrant was issued; provided, however, nothing herein
shall prevent the officer, or his department, from forwarding any
item or items seized to a laboratory for scientific analysis.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 3, eff.
Sept. 1, 1981.

Art. 18.11. [327] [378] [366] Custody of property found

Property seized pursuant to a search warrant shall be kept as
provided by the order of a magistrate issued in accordance with
Article 18.10 of this code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 4, eff.
Sept. 1, 1981.

Art. 18.12. [328] [379] [367] Magistrate shall investigate

The magistrate, upon the return of a search warrant, shall proceed
to try the questions arising upon the same, and shall take testimony
as in other examinations before him.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Art. 18.13. [329] [380] [368] Shall discharge defendant

If the magistrate be not satisfied, upon investigation, that there
was good ground for the issuance of the warrant, he shall discharge
the defendant and order restitution of the property taken from him,
except for criminal instruments. In such case, the criminal
instruments shall be kept by the sheriff subject to the order of the
proper court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

 

Art. 18.14. [331] [382] [370] Examining trial

The magistrate shall proceed to deal with the accused as in other
cases before an examining court if he is satisfied there was good
ground for issuing the warrant.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

 

Art. 18.15. [332] [383] [371] Certify record to proper court

The magistrate shall keep a record of all the proceedings had before
him in cases of search warrants, and shall certify the same and
deliver them to the clerk of the court having jurisdiction of the
case, before the next term of said court, and accompany the same
with all the original papers relating thereto, including the
certified schedule of the property seized.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

 

Art. 18.16. [325] [376] [364] Preventing consequences of theft

Any person has a right to prevent the consequences of theft by
seizing any personal property that has been stolen and bringing it,
with the person suspected of committing the theft, if that person
can be taken, before a magistrate for examination, or delivering
the property and the person suspected of committing the theft to a
peace officer for that purpose. To justify a seizure under this
article, there must be reasonable ground to believe the property is
stolen, and the seizure must be openly made and the proceedings had
without delay.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Amended by Acts 2001, 77th Leg., ch. 109, Sec. 2, eff. Sept. 1,
2001.

 

Art. 18.17. [332a] Disposition of abandoned or unclaimed property

(a) All unclaimed or abandoned personal property of every kind,
other than contraband subject to forfeiture under Chapter 59 of
this code and whiskey, wine and beer, seized by any peace officer in
the State of Texas which is not held as evidence to be used in any
pending case and has not been ordered destroyed or returned to the
person entitled to possession of the same by a magistrate, which
shall remain unclaimed for a period of 30 days shall be delivered
for disposition to a person designated by the municipality or the
purchasing agent of the county in which the property was seized. If
a peace officer of a municipality seizes the property, the peace
officer shall deliver the property to a person designated by the
municipality. If any other peace officer seizes the property, the
peace officer shall deliver the property to the purchasing agent of
the county. If the county has no purchasing agent, then such
property shall be disposed of by the sheriff of the county.

(b) The county purchasing agent, the person designated by the
municipality, or the sheriff of the county, as the case may be,
shall mail a notice to the last known address of the owner of such
property by certified mail. Such notice shall describe the
property being held, give the name and address of the officer
holding such property, and shall state that if the owner does not
claim such property within 90 days from the date of the notice such
property will be disposed of and the proceeds, after deducting the
reasonable expense of keeping such property and the costs of the
disposition, placed in the treasury of the municipality or county
giving the notice.

(c) If the property has a fair market value of $500 or more and the
owner or the address of the owner is unknown, the person designated
by the municipality, the county purchasing agent, or the sheriff,
as the case may be, shall cause to be published once in a paper of
general circulation in the municipality or county a notice
containing a general description of the property held, the name of
the owner if known, the name and address of the officer holding such
property, and a statement that if the owner does not claim such
property within 90 days from the date of the publication such
property will be disposed of and the proceeds, after deducting the
reasonable expense of keeping such property and the costs of the
disposition, placed in the treasury of the municipality or county
disposing of the property. If the property has a fair market value
of less than $500 and the owner or the address of the owner is
unknown, the person designated by the municipality, the county
purchasing agent, or the sheriff may sell or donate the property.
The person designated by the municipality, the purchasing agent, or
the sheriff shall deposit the sale proceeds, after deducting the
reasonable expense of keeping the property and costs of the sale, in
the treasury of the municipality or county selling or donating the
property.

(d) The sale under this article of any property that has a fair
market value of $500 or more shall be preceded by a notice published
once at least 14 days prior to the date of such sale in a newspaper
of general circulation in the municipality or county where the sale
is to take place, stating the general description of the property,
the names of the owner if known, and the date and place that such
sale will occur. This article does not require disposition by sale.

(e) The real owner of any property disposed of shall have the right
to file a claim to the proceeds with the commissioners court of the
county or with the governing body of the municipality in which the
disposition took place. A claim by the real owner must be filed not
later than the 30th day after the date of disposition. If the claim
is allowed by the commissioners court or the governing body of the
municipality, the municipal or county treasurer shall pay the owner
such funds as were paid into the treasury of the municipality or
county as proceeds of the disposition. If the claim is denied by the
commissioners court or the governing body or if said court or body
fails to act upon such claim within 90 days, the claimant may sue
the municipal or county treasurer in a court of competent
jurisdiction in the county, and upon sufficient proof of ownership,
recover judgment against such municipality or county for the
recovery of the proceeds of the disposition.

(f) For the purposes of this article:

(1) "Person designated by a municipality" means an officer or
employee of a municipality who is designated by the municipality to
be primarily responsible for the disposition of property under this
article.

(2) "Property held as evidence" means property related to a charge
that has been filed or to a matter that is being investigated for
the filing of a charge.

(g) If the provisions of this section have been met and the property
is scheduled for disposition, the municipal or county law
enforcement agency that originally seized the property may request
and have the property converted to agency use. The agency at any
time may transfer the property to another municipal or county law
enforcement agency for the use of that agency. The agency last
using the property shall return the property to the person
designated by the municipality, county purchasing agent, or
sheriff, as the case may be, for disposition when the agency has
completed the intended use of the property.

(h) If the abandoned or unclaimed personal property is money, the
person designated by the municipality, the county purchasing agent,
or the sheriff of the county, as appropriate, may, after giving
notice under Subsection (b) or (c) of this article, deposit the
money in the treasury of the municipality or county giving notice
without conducting the sale as required by Subsection (d) of this
article.

(i) While offering the property for sale under this article, if a
person designated by a municipality, county purchasing agent, or
sheriff considers any bid as insufficient, the person, agent, or
sheriff may decline the bid and reoffer the property for sale.

(j) Chapters 72, 74, 75, and 76, Property Code, do not apply to
unclaimed or abandoned property to which this article applies.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967,
60th Leg., p. 1737, ch. 659, Sec. 15, eff. Aug. 27, 1967; Acts 1973,
63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Amended by Acts 1987, 70th Leg., ch. 1002, Sec. 1, eff. Sept. 1,
1987; Subsec. (a) amended by Acts 1989, 71st Leg., 1st C.S., ch.
12, Sec. 4, eff. Oct. 18, 1989; Subsec. (g) amended by Acts 1991,
72nd Leg., ch. 254, Sec. 1, eff. June 5, 1991. Amended by Acts 1993,
73rd Leg., ch. 157, Sec. 1, eff. Sept. 1, 1993; Subsecs. (c), (d)
amended by Acts 1993, 73rd Leg., ch. 321, Sec. 3, eff. May 28, 1993;
Subsec. (f) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 2, eff.
May 28, 1993; Subsec. (h) added by Acts 1993, 73rd Leg., ch. 321,
Sec. 1, eff. May 28, 1993; Subsec. (i) added by Acts 1993, 73rd
Leg., ch. 321, Sec. 4, eff. May 28, 1993; Subsec. (c) amended by
Acts 1995, 74th Leg., ch. 76, Sec. 3.01, eff. Sept. 1, 1995;
Subsec. (d) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.02, eff.
Sept. 1, 1995; Subsec. (f) amended by Acts 1995, 74th Leg., ch. 76,
Sec. 3.03, eff. Sept. 1, 1995; Subsec. (h) amended by Acts 1995,
74th Leg., ch. 76, Sec. 3.04, eff. Sept. 1, 1995; Subsec. (i)
amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.05, eff. Sept. 1,
1995; Subsec. (j) added by Acts 2001, 77th Leg., ch. 402, Sec. 18,
eff. Sept. 1, 2001.

 

Art. 18.18. Disposition of gambling paraphernalia, prohibited
weapon, criminal instrument, and other contraband

(a) Following the final conviction of a person for possession of a
gambling device or equipment, altered gambling equipment, or
gambling paraphernalia, for an offense involving a criminal
instrument, for an offense involving an obscene device or material,
or for an offense involving a scanning device or re-encoder, the
court entering the judgment of conviction shall order that the
machine, device, gambling equipment or gambling paraphernalia,
instrument, obscene device or material, or scanning device or
re-encoder be destroyed or forfeited to the state. Not later than
the 30th day after the final conviction of a person for an offense
involving a prohibited weapon, the court entering the judgment of
conviction on its own motion, on the motion of the prosecuting
attorney in the case, or on the motion of the law enforcement agency
initiating the complaint on notice to the prosecuting attorney in
the case if the prosecutor fails to move for the order shall order
that the prohibited weapon be destroyed or forfeited to the law
enforcement agency that initiated the complaint. If the court
fails to enter the order within the time required by this
subsection, any magistrate in the county in which the offense
occurred may enter the order. Following the final conviction of a
person for an offense involving dog fighting, the court entering
the judgment of conviction shall order that any dog-fighting
equipment be destroyed or forfeited to the state. Destruction of
dogs, if necessary, must be carried out by a veterinarian licensed
in this state or, if one is not available, by trained personnel of a
humane society or an animal shelter. If forfeited, the court shall
order the contraband delivered to the state, any political
subdivision of the state, or to any state institution or agency. If
gambling proceeds were seized, the court shall order them forfeited
to the state and shall transmit them to the grand jury of the county
in which they were seized for use in investigating alleged
violations of the Penal Code, or to the state, any political
subdivision of the state, or to any state institution or agency.

(b) If there is no prosecution or conviction following seizure, the
magistrate to whom the return was made shall notify in writing the
person found in possession of the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
scanning device or re-encoder, criminal instrument, or
dog-fighting equipment to show cause why the property seized should
not be destroyed or the proceeds forfeited. The magistrate, on the
motion of the law enforcement agency seizing a prohibited weapon,
shall order the weapon destroyed or forfeited to the law
enforcement agency seizing the weapon, unless a person shows cause
as to why the prohibited weapon should not be destroyed or
forfeited. A law enforcement agency shall make a motion under this
section in a timely manner after the time at which the agency is
informed in writing by the attorney representing the state that no
prosecution will arise from the seizure.

(c) The magistrate shall include in the notice a detailed
description of the property seized and the total amount of alleged
gambling proceeds; the name of the person found in possession; the
address where the property or proceeds were seized; and the date
and time of the seizure.

(d) The magistrate shall send the notice by registered or certified
mail, return receipt requested, to the person found in possession
at the address where the property or proceeds were seized. If no
one was found in possession, or the possessor's address is unknown,
the magistrate shall post the notice on the courthouse door.

(e) Any person interested in the alleged gambling device or
equipment, altered gambling equipment or gambling paraphernalia,
gambling proceeds, prohibited weapon, obscene device or material,
scanning device or re-encoder, criminal instrument, or
dog-fighting equipment seized must appear before the magistrate on
the 20th day following the date the notice was mailed or posted.
Failure to timely appear forfeits any interest the person may have
in the property or proceeds seized, and no person after failing to
timely appear may contest destruction or forfeiture.

(f) If a person timely appears to show cause why the property or
proceeds should not be destroyed or forfeited, the magistrate shall
conduct a hearing on the issue and determine the nature of property
or proceeds and the person's interest therein. Unless the person
proves by a preponderance of the evidence that the property or
proceeds is not gambling equipment, altered gambling equipment,
gambling paraphernalia, gambling device, gambling proceeds,
prohibited weapon, obscene device or material, criminal
instrument, scanning device or re-encoder, or dog-fighting
equipment and that he is entitled to possession, the magistrate
shall dispose of the property or proceeds in accordance with
Paragraph (a) of this article.

(g) For purposes of this article:

(1) "criminal instrument" has the meaning defined in the Penal
Code;

(2) "gambling device or equipment, altered gambling equipment or
gambling paraphernalia" has the meaning defined in the Penal Code;

(3) "prohibited weapon" has the meaning defined in the Penal Code;

(4) "dog-fighting equipment" means:

(A) equipment used for training or handling a fighting dog,
including a harness, treadmill, cage, decoy, pen, house for keeping
a fighting dog, feeding apparatus, or training pen;

(B) equipment used for transporting a fighting dog, including any
automobile, or other vehicle, and its appurtenances which are
intended to be used as a vehicle for transporting a fighting dog;

(C) equipment used to promote or advertise an exhibition of dog
fighting, including a printing press or similar equipment, paper,
ink, or photography equipment; or

(D) a dog trained, being trained, or intended to be used to fight
with another dog;

(5) "obscene device " and "obscene" have the meanings assigned by
Section 43.21, Penal Code.

(6) "re-encoder" has the meaning assigned by Section 35.58,
Business & Commerce Code; and

(7) "scanning device" has the meaning assigned by Section 35.58,
Business & Commerce Code.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 986, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Subsecs. (a), (b), (e), (f), (g) amended by Acts 1983, 68th Leg.,
pp. 1611, ch. 305, Sec. 2, 3, eff. Sept. 1, 1983. Amended by Acts
1983, 68th Leg., p. 1899, ch. 351, Sec. 1, eff. Sept. 1, 1983;
Subsec. (a) amended by Acts 1987, 70th Leg., ch. 980, Sec. 1, eff.
Sept. 1, 1987; Subsecs. (g)(4), (g)(6) amended by Acts 1987, 70th
Leg., ch. 167, Sec. 5.01(a)(6), eff. Sept. 1, 1987; Subsecs. (a),
(b) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 2, eff. Sept. 1,
1993; Subsecs. (f), (g) amended by Acts 2003, 78th Leg., ch. 441,
Sec. 1, eff. Sept. 1, 2003; Subsecs. (a), (b), (e), (f), (g)
amended by Acts 2003, 78th Leg., ch. 649, Sec. 2, eff. Sept. 1,
2003.

 

Art. 18.181. Disposition of explosive weapons and chemical
dispensing devices

(a) After seizure of an explosive weapon or chemical dispensing
device, as these terms are defined in Section 46.01, Penal Code, a
peace officer or a person acting at the direction of a peace officer
shall:

(1) photograph the weapon in the position where it is recovered
before touching or moving it;

(2) record the identification designations printed on a weapon if
the markings are intact;

(3) if the weapon can be moved, move it to an isolated area in order
to lessen the danger to the public;

(4) if possible, retain a portion of a wrapper or other packaging
materials connected to the weapon;

(5) retain a small portion of the explosive material and submit the
material to a laboratory for chemical analysis;

(6) separate and retain components associated with the weapon such
as fusing and triggering mechanisms if those mechanisms are not
hazardous in themselves;

(7) destroy the remainder of the weapon in a safe manner;

(8) at the time of destruction, photograph the destruction process
and make careful observations of the characteristics of the
destruction;

(9) after destruction, inspect the disposal site and photograph the
site to record the destructive characteristics of the weapon; and

(10) retain components of the weapon and records of the destruction
for use as evidence in court proceedings.

(b) Representative samples, photographs, and records made pursuant
to this article are admissible in civil or criminal proceedings in
the same manner and to the same extent as if the explosive weapon
were offered in evidence, regardless of whether or not the
remainder of the weapon has been destroyed. No inference or
presumption of spoliation applies to weapons destroyed pursuant to
this article.

Added by Acts 1983, 68th Leg., p. 4832, ch. 852, Sec. 5, eff. Sept.
1, 1983.

 

Art. 18.183. Deposit of money pending disposition

(a) If money is seized by a law enforcement agency in connection
with a violation of Chapter 47, Penal Code, the state or the
political subdivision of the state that employs the law enforcement
agency may deposit the money in an interest-bearing bank account in
the jurisdiction of the agency that made seizure or in the county in
which the money was seized until a final judgment is rendered
concerning the violation.

(b) If a final judgment is rendered concerning a violation of
Chapter 47, Penal Code, money seized in connection with the
violation that has been placed in an interest-bearing bank account
shall be distributed according to this chapter, with any interest
being distributed in the same manner and used for the same purpose
as the principal.

Added by Acts 1987, 70th Leg., ch. 167, Sec. 4.02(a), eff. Sept. 1,
1987. Renumbered from art. 18.182 by Acts 1989, 71st Leg., ch. 2,
Sec. 16.01(6), eff. Aug. 28, 1989.

 

Art. 18.19. Disposition of seized weapons

(a) Weapons seized in connection with an offense involving the use
of a weapon or an offense under Penal Code Chapter 46 shall be held
by the law enforcement agency making the seizure, subject to the
following provisions, unless:

(1) the weapon is a prohibited weapon identified in Penal Code
Chapter 46, in which event Article 18.18 of this code applies; or

(2) the weapon is alleged to be stolen property, in which event
Chapter 47 of this code applies.

(b) When a weapon described in Paragraph (a) of this article is
seized, and the seizure is not made pursuant to a search or arrest
warrant, the person seizing the same shall prepare and deliver to a
magistrate a written inventory of each weapon seized.

(c) If there is no prosecution or conviction for an offense
involving the weapon seized, the magistrate to whom the seizure was
reported shall, before the 61st day after the date the magistrate
determines that there will be no prosecution or conviction, notify
in writing the person found in possession that the person is
entitled to the weapon upon written request to the magistrate. The
magistrate shall order the weapon returned to the person found in
possession before the 61st day after the date the magistrate
receives a request from the person. If the weapon is not requested
before the 61st day after the date of notification, the magistrate
shall, before the 121st day after the date of notification, order
the weapon destroyed or forfeited to the state for use by the law
enforcement agency holding the weapon. If the magistrate does not
order the return, destruction, or forfeiture of the weapon within
the applicable period prescribed by this subsection, the law
enforcement agency holding the weapon may request an order of
destruction or forfeiture of the weapon from the magistrate.

(d) A person either convicted or receiving deferred adjudication
under Chapter 46, Penal Code, is entitled to the weapon seized upon
request to the court in which the person was convicted or placed on
deferred adjudication. However, the court entering the judgment
shall order the weapon destroyed or forfeited to the state for use
by the law enforcement agency holding the weapon if:

(1) the person does not request the weapon before the 61st day after
the date of the judgment of conviction or the order placing the
person on deferred adjudication;

(2) the person has been previously convicted under Chapter 46,
Penal Code;

(3) the weapon is one defined as a prohibited weapon under Chapter
46, Penal Code;

(4) the offense for which the person is convicted or receives
deferred adjudication was committed in or on the premises of a
playground, school, video arcade facility, or youth center, as
those terms are defined by Section 481.134, Health and Safety Code;
or

(5) the court determines based on the prior criminal history of the
defendant or based on the circumstances surrounding the commission
of the offense that possession of the seized weapon would pose a
threat to the community or one or more individuals.

(e) If the person found in possession of a weapon is convicted of an
offense involving the use of the weapon, before the 61st day after
the date of conviction the court entering judgment of conviction
shall order destruction of the weapon or forfeiture to the state for
use by the law enforcement agency holding the weapon. If the court
entering judgment of conviction does not order the destruction or
forfeiture of the weapon within the period prescribed by this
subsection, the law enforcement agency holding the weapon may
request an order of destruction or forfeiture of the weapon from a
magistrate.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 987, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.

Amended by Acts 1987, 70th Leg., ch. 980, Sec. 2, eff. Sept. 1,
1987. Subsec. (d) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 3,
eff. Sept. 1, 1993; amended by Acts 1995, 74th Leg., ch. 318, Sec.
46(a), eff. Sept. 1, 1995; Subsecs. (c) to (e) amended by Acts
2001, 77th Leg., ch. 1083, Sec. 1, eff. Sept. 1, 2001.

 

Art. 18.20. Interception and use of wire, oral, or electronic
communications

Text of article effective until September 1, 2005

 

Definitions

 

Sec. 1. In this article:

(1) "Wire communication" means an aural transfer made in whole or in
part through the use of facilities for the transmission of
communications by the aid of wire, cable, or other like connection
between the point of origin and the point of reception, including
the use of such a connection in a switching station, furnished or
operated by a person authorized to engage in providing or operating
the facilities for the transmission of communications as a
communications common carrier. The term includes the electronic
storage of a wire communication.

(2) "Oral communication" means an oral communication uttered by a
person exhibiting an expectation that the communication is not
subject to interception under circumstances justifying that
expectation. The term does not include an electronic
communication.

(3) "Intercept" means the aural or other acquisition of the
contents of a wire, oral, or electronic communication through the
use of an electronic, mechanical, or other device.

(4) "Electronic, mechanical, or other device" means a device that
may be used for the nonconsensual interception of wire, oral, or
electronic communications. The term does not include a telephone
or telegraph instrument, the equipment or a facility used for the
transmission of electronic communications, or a component of the
equipment or a facility used for the transmission of electronic
communications if the instrument, equipment, facility, or
component is:

(A) furnished to the subscriber or user by a provider of wire or
electronic communications service in the ordinary course of the
provider's business and being used by the subscriber or user in the
ordinary course of its business;

(B) furnished by a subscriber or user for connection to the
facilities of a wire or electronic communications service for use
in the ordinary course of the subscriber's or user's business;

(C) being used by a communications common carrier in the ordinary
course of its business; or

(D) being used by an investigative or law enforcement officer in the
ordinary course of the officer's duties.

(5) "Investigative or law enforcement officer" means an officer of
this state or of a political subdivision of this state who is
empowered by law to conduct investigations of or to make arrests for
offenses enumerated in Section 4 of this article or an attorney
authorized by law to prosecute or participate in the prosecution of
the enumerated offenses.

(6) "Contents," when used with respect to a wire, oral, or
electronic communication, includes any information concerning the
substance, purport, or meaning of that communication.

(7) "Judge of competent jurisdiction" means a judge from the panel
of nine active district judges with criminal jurisdiction appointed
by the presiding judge of the court of criminal appeals as provided
by Section 3 of this article.

(8) "Prosecutor" means a district attorney, criminal district
attorney, or county attorney performing the duties of a district
attorney, with jurisdiction in the county within an administrative
judicial district described by Section 3(b).

(9) "Director" means the director of the Department of Public
Safety or, if the director is absent or unable to serve, the
assistant director of the Department of Public Safety.

(10) "Communication common carrier" means a person engaged as a
common carrier for hire in the transmission of wire or electronic
communications.

(11) "Aggrieved person" means a person who was a party to an
intercepted wire, oral, or electronic communication or a person
against whom the interception was directed.

(12) "Covert entry" means any entry into or onto premises which if
made without a court order allowing such an entry under this Act,
would be a violation of the Penal Code.

(13) "Residence" means a structure or the portion of a structure
used as a person's home or fixed place of habitation to which the
person indicates an intent to return after any temporary absence.

(14) "Pen register," "ESN reader," "trap and trace device," and
"mobile tracking device" have the meanings assigned by Article
18.21.

(15) "Electronic communication" means a transfer of signs, signals,
writing, images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio, electromagnetic,
photoelectronic, or photo-optical system. The term does not
include:

(A) a wire or oral communication;

(B) a communication made through a tone-only paging device; or

(C) a communication from a tracking device.

(16) "User" means a person who uses an electronic communications
service and is authorized by the provider of the service to use the
service.

(17) "Electronic communications system" means a wire, radio,
electromagnetic, photo-optical or photoelectronic facility for the
transmission of wire or electronic communications, and any computer
facility or related electronic equipment for the electronic storage
of those communications.

(18) "Electronic communications service" means a service that
provides to users of the service the ability to send or receive wire
or electronic communications.

(19) "Readily accessible to the general public" means, with respect
to a radio communication, a communication that is not:

(A) scrambled or encrypted;

(B) transmitted using modulation techniques whose essential
parameters have been withheld from the public with the intention of
preserving the privacy of the communication;

(C) carried on a subcarrier or other signal subsidiary to a radio
transmission;

(D) transmitted over a communication system provided by a common
carrier, unless the communication is a tone-only paging system
communication;

(E) transmitted on frequencies allocated under Part 25, Subpart D,
E, or F of Part 74, or Part 94 of the rules of the Federal
Communications Commission, unless, in the case of a communication
transmitted on a frequency allocated under Part 74 that is not
exclusively allocated to broadcast auxiliary services, the
communication is a two-way voice communication by radio; or

(F) an electronic communication.

(20) "Electronic storage" means:

(A) a temporary, intermediate storage of a wire or electronic
communication that is incidental to the electronic transmission of
the communication; or

(B) storage of a wire or electronic communication by an electronic
communications service for purposes of backup protection of the
communication.

(21) "Aural transfer" means a transfer containing the human voice
at any point between and including the point of origin and the point
of reception.

(22) "Immediate life-threatening situation" means a hostage,
barricade, or other emergency situation in which a person
unlawfully and directly:

(A) threatens another with death; or

(B) exposes another to a substantial risk of serious bodily injury.

(23) "Member of a law enforcement unit specially trained to respond
to and deal with life-threatening situations" means a peace officer
who receives a minimum of 40 hours a year of training in hostage and
barricade suspect situations as evidenced by the submission of
appropriate documentation to the Commission on Law Enforcement
Officer Standards and Education.

(24) "Access," "computer," "computer network," "computer system,"
and "effective consent" have the meanings assigned by Section
33.01, Penal Code.

(25) "Computer trespasser" means a person who:

(A) is accessing a protected computer without effective consent of
the owner; and

(B) has no reasonable expectation of privacy in any communication
transmitted to, through, or from the protected computer. The term
does not include a person who accesses the computer under an
existing contractual relationship with the owner or operator of the
protected computer.

(26) "Protected computer" means a computer, computer network, or
computer system that is:

(A) owned by a financial institution or governmental entity; or

(B) used by or for a financial institution or governmental entity
and conduct constituting an offense affects that use.

Prohibition of Use as Evidence of Intercepted Communications

 

Sec. 2. (a) The contents of an intercepted communication and
evidence derived from an intercepted communication may be received
in evidence in any trial, hearing, or other proceeding in or before
any court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the United
States or of this state or a political subdivision of this state
unless:

(1) the communication was intercepted in violation of this article,
Section 16.02, Penal Code, or federal law; or

(2) the disclosure of the contents of the intercepted communication
or evidence derived from the communication would be in violation of
this article, Section 16.02, Penal Code, or federal law.

(b) The contents of an intercepted communication and evidence
derived from an intercepted communication may be received in a
civil trial, hearing, or other proceeding only if the civil trial,
hearing, or other proceeding arises out of a violation of a penal
law.

(c) This section does not prohibit the use or admissibility of the
contents of a communication or evidence derived from the
communication if the communication was intercepted in a
jurisdiction outside this state in compliance with the law of that
jurisdiction.

Judges Authorized to Consider Interception Applications

 

Sec. 3. (a) The presiding judge of the court of criminal appeals, by
order filed with the clerk of that court, shall appoint one district
judge from each of the administrative judicial districts of this
state to serve at his pleasure as the judge of competent
jurisdiction within that administrative judicial district. The
presiding judge shall fill vacancies, as they occur, in the same
manner.

(b) Except as provided by Subsection (c), a judge appointed under
Subsection (a) may act on an application for authorization to
intercept wire, oral, or electronic communications if the judge is
appointed as the judge of competent jurisdiction within the
administrative judicial district in which the following is located:

(1) the site of:

(A) the proposed interception; or

(B) the interception device to be installed or monitored;

(2) the communication device to be intercepted;

(3) the billing, residential, or business address of the subscriber
to the electronic communications service to be intercepted;

(4) the headquarters of the law enforcement agency that makes a
request for or executes an order authorizing an interception; or

(5) the headquarters of the service provider.

(c) If the judge of competent jurisdiction for an administrative
judicial district is absent or unable to serve or if exigent
circumstances exist, the application may be made to the judge of
competent jurisdiction in an adjacent administrative judicial
district. Exigent circumstances does not include a denial of a
previous application on the same facts and circumstances. To be
valid, the application must fully explain the circumstances
justifying application under this subsection.

Offenses for Which Interceptions May be Authorized

 

Sec. 4. A judge of competent jurisdiction may issue an order
authorizing interception of wire, oral, or electronic
communications only if the prosecutor applying for the order shows
probable cause to believe that the interception will provide
evidence of the commission of:

(1) a felony under Section 19.03(a)(3) or Section 43.26, Penal
Code;

(2) a felony under:

(A) Chapter 481, Health and Safety Code, other than felony
possession of marihuana;

(B) Section 485.033, Health and Safety Code; or

(C) Chapter 483, Health and Safety Code; or

(3) an attempt, conspiracy, or solicitation to commit an offense
listed in this section.

Control of Intercepting Devices

 

Sec. 5. (a) Except as provided by Section 8A, only the Department of
Public Safety is authorized by this article to own, possess,
install, operate, or monitor an electronic, mechanical, or other
device. The Department of Public Safety may be assisted by an
investigative or law enforcement officer or other person in the
operation and monitoring of an interception of wire, oral, or
electronic communications, provided that the officer or other
person:

(1) is designated by the director for that purpose; and

(2) acts in the presence and under the direction of a commissioned
officer of the Department of Public Safety.

(b) The director shall designate in writing the commissioned
officers of the Department of Public Safety who are responsible for
the possession, installation, operation, and monitoring of
electronic, mechanical, or other devices for the department.

Request for Application for Interception

 

Sec. 6. (a) The director may, based on written affidavits, request
in writing that a prosecutor apply for an order authorizing
interception of wire, oral, or electronic communications.

(b) The head of a local law enforcement agency or, if the head of the
local law enforcement agency is absent or unable to serve, the
acting head of the local law enforcement agency may, based on
written affidavits, request in writing that a prosecutor apply for
an order authorizing interception of wire, oral, or electronic
communications. Prior to the requesting of an application under
this subsection, the head of a local law enforcement agency must
submit the request and supporting affidavits to the director, who
shall make a finding in writing whether the request and supporting
affidavits establish that other investigative procedures have been
tried and failed or they reasonably appear unlikely to succeed or to
be too dangerous if tried, is feasible, is justifiable, and whether
the Department of Public Safety has the necessary resources
available. The prosecutor may file the application only after a
written positive finding on all the above requirements by the
director.

Authorization for Disclosure and Use of Intercepted Communications

 

Sec. 7. (a) An investigative or law enforcement officer who, by any
means authorized by this article, obtains knowledge of the contents
of a wire, oral, or electronic communication or evidence derived
from the communication may disclose the contents or evidence to
another investigative or law enforcement officer, including a
federal law enforcement officer or agent or a law enforcement
officer or agent of another state, to the extent that the disclosure
is appropriate to the proper performance of the official duties of
the officer making or receiving the disclosure.

(b) An investigative or law enforcement officer who, by any means
authorized by this article, obtains knowledge of the contents of a
wire, oral, or electronic communication or evidence derived from
the communication may use the contents or evidence to the extent the
use is appropriate to the proper performance of his official
duties.

(c) A person who receives, by any means authorized by this article,
information concerning a wire, oral, or electronic communication or
evidence derived from a communication intercepted in accordance
with the provisions of this article may disclose the contents of
that communication or the derivative evidence while giving
testimony under oath in any proceeding held under the authority of
the United States, of this state, or of a political subdivision of
this state.

(d) An otherwise privileged wire, oral, or electronic communication
intercepted in accordance with, or in violation of, the provisions
of this article does not lose its privileged character and any
evidence derived from such privileged communication against the
party to the privileged communication shall be considered
privileged also.

(e) When an investigative or law enforcement officer, while engaged
in intercepting wire, oral, or electronic communications in a
manner authorized by this article, intercepts wire, oral, or
electronic communications relating to offenses other than those
specified in the order of authorization, the contents of and
evidence derived from the communication may be disclosed or used as
provided by Subsections (a) and (b) of this section. Such contents
and any evidence derived therefrom may be used under Subsection (c)
of this section when authorized by a judge of competent
jurisdiction where the judge finds, on subsequent application, that
the contents were otherwise intercepted in accordance with the
provisions of this article. The application shall be made as soon
as practicable.

Application for Interception Authorization

 

Sec. 8. (a) To be valid, an application for an order authorizing the
interception of a wire, oral, or electronic communication must be
made in writing under oath to a judge of competent jurisdiction and
must state the applicant's authority to make the application. An
applicant must include the following information in the
application:

(1) the identity of the prosecutor making the application and of the
officer requesting the application;

(2) a full and complete statement of the facts and circumstances
relied on by the applicant to justify his belief that an order
should be issued, including:

(A) details about the particular offense that has been, is being, or
is about to be committed;

(B) a particular description of the nature and location of the
facilities from which or the place where the communication is to be
intercepted;

(C) a particular description of the type of communication sought to
be intercepted; and

(D) the identity of the person, if known, committing the offense and
whose communications are to be intercepted;

(3) a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed or to be too dangerous
if tried;

(4) a statement of the period of time for which the interception is
required to be maintained and, if the nature of the investigation is
such that the authorization for interception should not
automatically terminate when the described type of communication is
first obtained, a particular description of facts establishing
probable cause to believe that additional communications of the
same type will occur after the described type of communication is
obtained;

(5) a statement whether a covert entry will be necessary to properly
and safely install the wiretapping or electronic surveillance or
eavesdropping equipment and, if a covert entry is requested, a
statement as to why such an entry is necessary and proper under the
facts of the particular investigation, including a full and
complete statement as to whether other investigative techniques
have been tried and have failed or why they reasonably appear to be
unlikely to succeed or to be too dangerous if tried or are not
feasible under the circumstances or exigencies of time;

(6) a full and complete statement of the facts concerning all
applications known to the prosecutor making the application that
have been previously made to a judge for authorization to intercept
wire, oral, or electronic communications involving any of the
persons, facilities, or places specified in the application and of
the action taken by the judge on each application; and

(7) if the application is for the extension of an order, a statement
setting forth the results already obtained from the interception or
a reasonable explanation of the failure to obtain results.

(b) The judge may, in an ex parte hearing in chambers, require
additional testimony or documentary evidence in support of the
application, and such testimony or documentary evidence shall be
preserved as part of the application.

Emergency Installation and Use of Intercepting Device

 

Sec. 8A. (a) The prosecutor in a county in which an electronic,
mechanical, or other device is to be installed or used to intercept
wire, oral, or electronic communications shall designate in writing
each peace officer in the county, other than a commissioned officer
of the Department of Public Safety, who:

(1) is a member of a law enforcement unit specially trained to
respond to and deal with life-threatening situations; and

(2) is authorized to possess such a device and responsible for the
installation, operation, and monitoring of the device in an
immediate life-threatening situation.

(b) A peace officer designated under Subsection (a) or under
Section 5(b) may possess, install, operate, or monitor an
electronic, mechanical, or other device to intercept wire, oral, or
electronic communications if the officer:

(1) reasonably believes an immediate life-threatening situation
exists that:

(A) is within the territorial jurisdiction of the officer or
another officer the officer is assisting; and

(B) requires interception of communications before an order
authorizing the interception can, with due diligence, be obtained
under this section;

(2) reasonably believes there are sufficient grounds under this
section on which to obtain an order authorizing the interception;
and

(3) obtains oral or written consent to the interception before
beginning the interception from:

(A) a district judge for the county in which the device will be
installed or used; or

(B) a judge or justice of a court of appeals or of a higher court.

(c) An official described in Subsection (b)(3) may give oral or
written consent to the interception of communications under this
section to provide evidence of the commission of a felony, or of a
threat, attempt, or conspiracy to commit a felony, in an immediate
life-threatening situation. Oral or written consent given under
this section expires 48 hours after the grant of consent or at the
conclusion of the emergency justifying the interception, whichever
occurs first.

(d) If an officer installs or uses a device under Subsection (b),
the officer shall:

(1) promptly report the installation or use to the prosecutor in the
county in which the device is installed or used; and

(2) within 48 hours after the installation is complete or the
interception begins, whichever occurs first, obtain a written order
from a judge of competent jurisdiction authorizing the
interception.

(e) A judge of competent jurisdiction under Section 3 or under
Subsection (b) may issue a written order authorizing interception
of communications under this section during the 48-hour period
prescribed by Subsection (d)(2). A written order under this
section expires on the 30th day after execution of the order or at
the conclusion of the emergency that initially justified the
interception, whichever occurs first. If an order is denied or is
not issued within the 48-hour period, the officer shall terminate
use of and remove the device promptly on the earlier of:

(1) the denial;

(2) the end of the emergency that initially justified the
interception; or

(3) the expiration of 48 hours.

(f) The state may not use as evidence in a criminal proceeding any
information gained through the use of a device installed under this
section if authorization for the device is not sought or is sought
but not obtained.

(g) A peace officer may certify to a communications common carrier
that the officer is acting lawfully under this section.

Action on Application for Interception Order

 

Sec. 9. (a) On receipt of an application, the judge may enter an ex
parte order, as requested or as modified, authorizing interception
of wire, oral, or electronic communications if the judge determines
from the evidence submitted by the applicant that:

(1) there is probable cause to believe that a person is committing,
has committed, or is about to commit a particular offense
enumerated in Section 4 of this article;

(2) there is probable cause to believe that particular
communications concerning that offense will be obtained through the
interception;

(3) normal investigative procedures have been tried and have failed
or reasonably appear to be unlikely to succeed or to be too
dangerous if tried;

(4) there is probable cause to believe that the facilities from
which or the place where the wire, oral, or electronic
communications are to be intercepted are being used or are about to
be used in connection with the commission of an offense or are
leased to, listed in the name of, or commonly used by the person;
and

(5) a covert entry is or is not necessary to properly and safely
install the wiretapping or electronic surveillance or
eavesdropping equipment.

(b) An order authorizing the interception of a wire, oral, or
electronic communication must specify:

(1) the identity of the person, if known, whose communications are
to be intercepted;

(2) the nature and location of the communications facilities as to
which or the place where authority to intercept is granted;

(3) a particular description of the type of communication sought to
be intercepted and a statement of the particular offense to which it
relates;

(4) the identity of the officer making the request and the identity
of the prosecutor;

(5) the time during which the interception is authorized, including
a statement of whether or not the interception will automatically
terminate when the described communication is first obtained; and

(6) whether or not a covert entry or surreptitious entry is
necessary to properly and safely install wiretapping, electronic
surveillance, or eavesdropping equipment.

(c) On request of the applicant for an order authorizing the
interception of a wire, oral, or electronic communication, the
judge may issue a separate order directing that a provider of wire
or electronic communications service, a communication common
carrier, landlord, custodian, or other person furnish the applicant
all information, facilities, and technical assistance necessary to
accomplish the interception unobtrusively and with a minimum of
interference with the services that the provider, carrier,
landlord, custodian, or other person is providing the person whose
communications are to be intercepted. Any provider of wire or
electronic communications service, communication common carrier,
landlord, custodian, or other person furnishing facilities or
technical assistance is entitled to compensation by the applicant
for reasonable expenses incurred in providing the facilities or
assistance at the prevailing rates. The interception order may
include an order to:

(1) install or use a pen register, ESN reader, trap and trace
device, or mobile tracking device, or similar equipment that
combines the function of a pen register and trap and trace device;

(2) disclose a stored communication, information subject to an
administrative subpoena, or information subject to access under
Article 18.21, Code of Criminal Procedure.

(d) An order entered pursuant to this section may not authorize the
interception of a wire, oral, or electronic communication for
longer than is necessary to achieve the objective of the
authorization and in no event may it authorize interception for
more than 30 days. The issuing judge may grant extensions of an
order, but only on application for an extension made in accordance
with Section 8 and the court making the findings required by
Subsection (a). The period of extension may not be longer than the
authorizing judge deems necessary to achieve the purposes for which
it is granted and in no event may the extension be for more than 30
days. To be valid, each order and extension of an order must
provide that the authorization to intercept be executed as soon as
practicable, be conducted in a way that minimizes the interception
of communications not otherwise subject to interception under this
article, and terminate on obtaining the authorized objective or
within 30 days, whichever occurs sooner. If the intercepted
communication is in code or a foreign language and an expert in that
code or language is not reasonably available during the period of
interception, minimization may be accomplished as soon as
practicable after the interception.

(e) An order entered pursuant to this section may not authorize a
covert entry into a residence solely for the purpose of
intercepting a wire or electronic communication.

(f) An order entered pursuant to this section may not authorize a
covert entry into or onto a premises for the purpose of intercepting
an oral communication unless:

(1) the judge, in addition to making the determinations required
under Subsection (a) of this section, determines that:

(A)(i) the premises into or onto which the covert entry is
authorized or the person whose communications are to be obtained
has been the subject of a pen register previously authorized in
connection with the same investigation;

(ii) the premises into or onto which the covert entry is authorized
or the person whose communications are to be obtained has been the
subject of an interception of wire or electronic communications
previously authorized in connection with the same investigation;
and

(iii) that such procedures have failed; or

(B) that the procedures enumerated in Paragraph (A) reasonably
appear to be unlikely to succeed or to be too dangerous if tried or
are not feasible under the circumstances or exigencies of time; and

(2) the order, in addition to the matters required to be specified
under Subsection (b) of this section, specifies that the covert
entry is for the purpose of intercepting oral communications of two
or more persons and that there is probable cause to believe they are
committing, have committed, or are about to commit a particular
offense enumerated in Section 4 of this article.

(g) Whenever an order authorizing interception is entered pursuant
to this article, the order may require reports to the judge who
issued the order showing what progress has been made toward
achievement of the authorized objective and the need for continued
interception. Reports shall be made at any interval the judge
requires.

(h) A judge who issues an order authorizing the interception of a
wire, oral, or electronic communication may not hear a criminal
prosecution in which evidence derived from the interception may be
used or in which the order may be an issue.

Procedure for Preserving Intercepted Communications

 

Sec. 10. (a) The contents of a wire, oral, or electronic
communication intercepted by means authorized by this article shall
be recorded on tape, wire, or other comparable device. The
recording of the contents of a wire, oral, or electronic
communication under this subsection shall be done in a way that
protects the recording from editing or other alterations.

(b) Immediately on the expiration of the period of the order and all
extensions, if any, the recordings shall be made available to the
judge issuing the order and sealed under his directions. Custody of
the recordings shall be wherever the judge orders. The recordings
may not be destroyed until at least 10 years after the date of
expiration of the order and the last extension, if any. A recording
may be destroyed only by order of the judge of competent
jurisdiction for the administrative judicial district in which the
interception was authorized.

(c) Duplicate recordings may be made for use or disclosure pursuant
to Subsections (a) and (b), Section 7, of this article for
investigations.

(d) The presence of the seal required by Subsection (b) of this
section or a satisfactory explanation of its absence is a
prerequisite for the use or disclosure of the contents of a wire,
oral, or electronic communication or evidence derived from the
communication under Subsection (c), Section 7, of this article.

Sealing of Orders and Applications

 

Sec. 11. The judge shall seal each application made and order
granted under this article. Custody of the applications and orders
shall be wherever the judge directs. An application or order may be
disclosed only on a showing of good cause before a judge of
competent jurisdiction and may not be destroyed until at least 10
years after the date it is sealed. An application or order may be
destroyed only by order of the judge of competent jurisdiction for
the administrative judicial district in which it was made or
granted.

Contempt

 

Sec. 12. A violation of Section 10 or 11 of this article may be
punished as contempt of court.

Notice and Disclosure of Interception to a Party

 

Sec. 13. (a) Within a reasonable time but not later than 90 days
after the date an application for an order is denied or after the
date an order or the last extension, if any, expires, the judge who
granted or denied the application shall cause to be served on the
persons named in the order or the application and any other parties
to intercepted communications, if any, an inventory, which must
include notice:

(1) of the entry of the order or the application;

(2) of the date of the entry and the period of authorized
interception or the date of denial of the application; and

(3) that during the authorized period wire, oral, or electronic
communications were or were not intercepted.

(b) The judge, on motion, may in his discretion make available to a
person or his counsel for inspection any portion of an intercepted
communication, application, or order that the judge determines, in
the interest of justice, to disclose to that person.

(c) On an ex parte showing of good cause to the judge, the serving of
the inventory required by this section may be postponed, but in no
event may any evidence derived from an order under this article be
disclosed in any trial, until after such inventory has been served.

Preconditions to Use as Evidence

 

Sec. 14. (a) The contents of an intercepted wire, oral, or
electronic communication or evidence derived from the
communication may not be received in evidence or otherwise
disclosed in a trial, hearing, or other proceeding in a federal or
state court unless each party, not later than the 10th day before
the date of the trial, hearing, or other proceeding, has been
furnished with a copy of the court order and application under which
the interception was authorized or approved. This 10-day period
may be waived by the judge if he finds that it is not possible to
furnish the party with the information 10 days before the trial,
hearing, or proceeding and that the party will not be prejudiced by
the delay in receiving the information.

(b) An aggrieved person charged with an offense in a trial, hearing,
or proceeding in or before a court, department, officer, agency,
regulatory body, or other authority of the United States or of this
state or a political subdivision of this state may move to suppress
the contents of an intercepted wire, oral, or electronic
communication or evidence derived from the communication on the
ground that:

(1) the communication was unlawfully intercepted;

(2) the order authorizing the interception is insufficient on its
face; or

(3) the interception was not made in conformity with the order.

(c) A person identified by a party to an intercepted wire, oral, or
electronic communication during the course of that communication
may move to suppress the contents of the communication on the
grounds provided in Subsection (b) of this section or on the ground
that the harm to the person resulting from his identification in
court exceeds the value to the prosecution of the disclosure of the
contents.

(d) The motion to suppress must be made before the trial, hearing,
or proceeding unless there was no opportunity to make the motion or
the person was not aware of the grounds of the motion. The hearing
on the motion shall be held in camera upon the written request of
the aggrieved person. If the motion is granted, the contents of the
intercepted wire, oral, or electronic communication and evidence
derived from the communication shall be treated as having been
obtained in violation of this article. The judge, on the filing of
the motion by the aggrieved person, shall make available to the
aggrieved person or his counsel for inspection any portion of the
intercepted communication or evidence derived from the
communication that the judge determines, in the interest of
justice, to make available.

(e) Any judge of this state, upon hearing a pretrial motion
regarding conversations intercepted by wire pursuant to this
article, or who otherwise becomes informed that there exists on
such intercepted wire, oral, or electronic communication
identification of a specific individual who is not a party or
suspect to the subject of interception:

(1) shall give notice and an opportunity to be heard on the matter
of suppression of references to that person if identification is
sufficient so as to give notice; or

(2) shall suppress references to that person if identification is
sufficient to potentially cause embarrassment or harm which
outweighs the probative value, if any, of the mention of such
person, but insufficient to require the notice provided for in
Subdivision (1), above.

Reports concerning intercepted wire, oral, or electronic communications

 

Sec. 15. (a) Within 30 days after the date an order or the last
extension, if any, expires or after the denial of an order, the
issuing or denying judge shall report to the Administrative Office
of the United States Courts:

(1) the fact that an order or extension was applied for;

(2) the kind of order or extension applied for;

(3) the fact that the order or extension was granted as applied for,
was modified, or was denied;

(4) the period of interceptions authorized by the order and the
number and duration of any extensions of the order;

(5) the offense specified in the order or application or extension;

(6) the identity of the officer making the request and the
prosecutor; and

(7) the nature of the facilities from which or the place where
communications were to be intercepted.

(b) In January of each year each prosecutor shall report to the
Administrative Office of the United States Courts the following
information for the preceding calendar year:

(1) the information required by Subsection (a) of this section with
respect to each application for an order or extension made;

(2) a general description of the interceptions made under each
order or extension, including the approximate nature and frequency
of incriminating communications intercepted, the approximate
nature and frequency of other communications intercepted, the
approximate number of persons whose communications were
intercepted, and the approximate nature, amount, and cost of the
manpower and other resources used in the interceptions;

(3) the number of arrests resulting from interceptions made under
each order or extension and the offenses for which arrests were
made;

(4) the number of trials resulting from interceptions;

(5) the number of motions to suppress made with respect to
interceptions and the number granted or denied;

(6) the number of convictions resulting from interceptions, the
offenses for which the convictions were obtained, and a general
assessment of the importance of the interceptions; and

(7) the information required by Subdivisions (2) through (6) of
this subsection with respect to orders or extensions obtained.

(c) Any judge or prosecutor required to file a report with the
Administrative Office of the United States Courts shall forward a
copy of such report to the director of the Department of Public
Safety. On or before March 1 of each year, the director shall
submit to the governor; lieutenant governor; speaker of the house
of representatives; chairman, senate jurisprudence committee; and
chairman, house of representatives criminal jurisprudence
committee a report of all intercepts as defined herein conducted
pursuant to this article and terminated during the preceding
calendar year. Such report shall include:

(1) the reports of judges and prosecuting attorneys forwarded to
the director as required in this section;

(2) the number of Department of Public Safety personnel authorized
to possess, install, or operate electronic, mechanical, or other
devices;

(3) the number of Department of Public Safety and other law
enforcement personnel who participated or engaged in the seizure of
intercepts pursuant to this article during the preceding calendar
year; and

(4) the total cost to the Department of Public Safety of all
activities and procedures relating to the seizure of intercepts
during the preceding calendar year, including costs of equipment,
manpower, and expenses incurred as compensation for use of
facilities or technical assistance provided to the department.

Recovery of Civil Damages Authorized

 

Sec. 16. (a) A person whose wire, oral, or electronic communication
is intercepted, disclosed, or used in violation of this article, or
in violation of Chapter 16, Penal Code, has a civil cause of action
against any person who intercepts, discloses, or uses or solicits
another person to intercept, disclose, or use the communication and
is entitled to recover from the person:

(1) actual damages but not less than liquidated damages computed at
a rate of $100 a day for each day of violation or $1,000, whichever
is higher;

(2) punitive damages; and

(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.

(b) A good faith reliance on a court order or legislative
authorization constitutes a complete defense to an action brought
under this section.

(c) A person is subject to suit by the federal or state government
in a court of competent jurisdiction for appropriate injunctive
relief if the person engages in conduct that:

(1) constitutes an offense under Section 16.05, Penal Code, but is
not for a tortious or illegal purpose or for the purpose of direct
or indirect commercial advantage or private commercial gain; and

(2) involves a radio communication that is:

(A) transmitted on frequencies allocated under Subpart D of Part 74
of the rules of the Federal Communications Commission; and

(B) not scrambled or encrypted.

(d) A defendant is liable for a civil penalty of $500 if it is shown
at the trial of the civil suit brought under Subsection (c) that the
defendant:

(1) has been convicted of an offense under Section 16.05, Penal
Code; or

(2) is found liable in a civil action brought under Subsection (a).

(e) Each violation of an injunction ordered under Subsection (c) is
punishable by a fine of $500.

(f) The attorney general, or the county or district attorney of the
county in which the conduct, as described by Subsection (c), is
occurring, may file suit under Subsection (c) on behalf of the
state.

(g) A computer trespasser or a user, aggrieved person, subscriber,
or customer of a communications common carrier or electronic
communications service does not have a cause of action against the
carrier or service, its officers, employees, or agents, or other
specified persons for providing information, facilities, or
assistance as required by a good faith reliance on:

(1) legislative authority; or

(2) a court order, warrant, subpoena, or certification under this
article.

Nonapplicability

 

Sec. 17. This article does not apply to conduct described as an
affirmative defense under Section 16.02(c), Penal Code.

Sec. 18. This article expires September 1, 2005, and shall not be in
force on and after that date.

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.

 

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