SEARCH WARRANTS

CHAPTER EIGHTEEN—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, § 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, § 1, eff. May 25, 1977.

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

Art. 18.02. [305] [356] [344] 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) drugs 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, § 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, § 2, eff. May 25, 1977.

Amended by Acts 1981, 67th Leg., p. 2790, ch. 755, § 5, eff. Sept. 1, 1981; Acts 1989, 71st Leg., 1st C.S., ch. 12, § 3, eff. Oct. 18, 1989.

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, § 2, eff. Sept. 1, 1981. Subsec. (a) amended by Acts 1983, 68th Leg., p. 5319, ch. 977, § 8, eff. Sept. 1, 1983; Subsec. (d) amended by Acts 1997, 75th Leg., ch. 165, § 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, § 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, § 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, § 1, eff. Sept. 1, 1969. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, § 2(E), eff. Jan. 1, 1974.

Amended by Acts 1989, 71st Leg., ch. 382, § 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, § 2(E), eff. Jan. 1, 1974.

Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, § 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, § 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, § 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, § 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, § 2(E), eff. Jan. 1, 1974.

Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, § 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, § 2(E), eff. Jan. 1, 1974.

Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, § 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, § 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, § 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, § 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, § 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, § 2(E), eff. Jan. 1, 1974.

Amended by Acts 2001, 77th Leg., ch. 109, § 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, § 15, eff. Aug. 27, 1967; Acts 1973, 63rd Leg., p. 985, ch. 399, § 2(E), eff. Jan. 1, 1974.

Amended by Acts 1987, 70th Leg., ch. 1002, § 1, eff. Sept. 1, 1987; Subsec. (a) amended by Acts 1989, 71st Leg., 1st C.S., ch. 12, § 4, eff. Oct. 18, 1989; Subsec. (g) amended by Acts 1991, 72nd Leg., ch. 254, § 1, eff. June 5, 1991. Amended by Acts 1993, 73rd Leg., ch. 157, § 1, eff. Sept. 1, 1993; Subsecs. (c), (d) amended by Acts 1993, 73rd Leg., ch. 321, § 3, eff. May 28, 1993; Subsec. (f) amended by Acts 1993, 73rd Leg., ch. 321, § 2, eff. May 28, 1993; Subsec. (h) added by Acts 1993, 73rd Leg., ch. 321, § 1, eff. May 28, 1993; Subsec. (i) added by Acts 1993, 73rd Leg., ch. 321, § 4, eff. May 28, 1993; Subsec. (c) amended by Acts 1995, 74th Leg., ch. 76, § 3.01, eff. Sept. 1, 1995; Subsec. (d) amended by Acts 1995, 74th Leg., ch. 76, § 3.02, eff. Sept. 1, 1995; Subsec. (f) amended by Acts 1995, 74th Leg., ch. 76, § 3.03, eff. Sept. 1, 1995; Subsec. (h) amended by Acts 1995, 74th Leg., ch. 76, § 3.04, eff. Sept. 1, 1995; Subsec. (i) amended by Acts 1995, 74th Leg., ch. 76, § 3.05, eff. Sept. 1, 1995; Subsec. (j) added by Acts 2001, 77th Leg., ch. 402, § 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, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material 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, 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, 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, criminal instrument, 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; and

(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) [Blank].

(6) "obscene device or material" means a device or material introduced into evidence and thereafter found obscene by virtue of a final judgment after all appellate remedies have been exhausted.

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

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

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, § 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, § 4.02(a), eff. Sept. 1, 1987. Renumbered from art. 18.182 by Acts 1989, 71st Leg., ch. 2, § 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, § 2(E), eff. Jan. 1, 1974.

Amended by Acts 1987, 70th Leg., ch. 980, § 2, eff. Sept. 1, 1987. Subsec. (d) amended by Acts 1993, 73rd Leg., ch. 157, § 3, eff. Sept. 1, 1993; amended by Acts 1995, 74th Leg., ch. 318, § 46(a), eff. Sept. 1, 1995; Subsecs. (c) to (e) amended by Acts 2001, 77th Leg., ch. 1083, § 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" means a device that attaches to a telephone line and records or decodes electronic or other impulses to identify numbers dialed or otherwise transmitted on the telephone line. The term does not include a device used by a provider or customer of:

(A) a wire or electronic communication service for purposes of charging a fee for the service; or

(B) a wire communication service during the ordinary course of the provider's or customer's business, including cost accounting and security control.

(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 similar emergency situation in which human life is directly threatened.

(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.

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 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 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 from a magistrate oral or written consent to the interception before beginning the interception.

(c) A magistrate may give oral or written consent to the interception of communications under this section.

(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 may issue an order authorizing interception of communications under this section during the 48-hour period prescribed by Subsection (d)(2). 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 the denial or 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.

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 the facilities or assistance at the prevailing rates.

(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.

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, § 1, eff. Aug. 31, 1981. Sec. 17 amended by Acts 1983, 68th Leg., p. 4880, ch. 864, § 4, eff. June 19, 1983; Sec. 1(13), (14) added by Acts 1985, 69th Leg., ch. 587, § 2, eff. Aug. 26, 1985; Sec. 8(a) amended by Acts 1985, 69th Leg., ch. 587, § 3, eff. Aug. 26, 1985; Sec. 9(e), (f) added by and Sec. 9(g), (h) amended by Acts 1985, 69th Leg., ch. 587, § 4, eff. Aug. 26, 1985; Art. head amended by Acts 1989, 71st Leg., ch. 1166, § 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, § 2, eff. Sept. 1, 1989; Sec. 3(b) amended by Acts 1989, 71st Leg., ch. 1166, § 3, eff. Sept. 1, 1989; Sec. 4 amended by Acts 1989, 71st Leg., ch. 1166, § 4, eff. Sept. 1, 1989; Sec. 5(a) amended by Acts 1989, 71st Leg., ch. 1166, § 5, eff. Sept. 1, 1989; Sec. 6 amended by Acts 1989, 71st Leg., ch. 1166, § 6, eff. Sept. 1, 1989; Sec. 7 amended by Acts 1989, 71st Leg., ch. 1166, § 7, eff. Sept. 1, 1989; Sec. 8(a) amended by Acts 1989, 71st Leg., ch. 1166, § 8, eff. Sept. 1, 1989; Sec. 9(a) to (f), (h) amended by Acts 1989, 71st Leg., ch. 1166, § 9, eff. Sept. 1, 1989; Sec. 10(a), (d) amended by Acts 1989, 71st Leg., ch. 1166, § 10, eff. Sept. 1, 1989; Sec. 13(a) amended by Acts 1989, 71st Leg., ch. 1166, § 11, eff. Sept. 1, 1989; Sec. 14 amended by Acts 1989, 71st Leg., ch. 1166, § 12, eff. Sept. 1, 1989; Sec. 15 amended by Acts 1989, 71st Leg., ch. 1166, § 13, eff. Sept. 1, 1989; Sec. 16(a) amended by Acts 1989, 71st Leg., ch. 1166, § 14, eff. Sept. 1, 1989; Sec. 17(a) amended by Acts 1989, 71st Leg., ch. 1166, § 15, eff. Sept. 1, 1989; Sec. 4 amended by Acts 1991, 72nd Leg., ch. 14, § 284(38), (57), eff. Sept. 1, 1991; Sec. 18 added by Acts 1993, 73rd Leg., ch. 790, § 15, eff. Sept. 1, 1993; added by Acts 1993, 73rd Leg., ch. 900, § 1.06, eff. Sept. 1, 1994; Sec. 1(1), (8), (14), (15), (19) amended by Acts 1997, 75th Leg., ch. 1051, § 1, eff. Sept. 1, 1997; Sec. 3(b) amended by Acts 1997, 75th Leg., ch. 1051, § 2, eff. Sept. 1, 1997; Sec. 16 amended by Acts 1997, 75th Leg., ch. 1051, § 3, eff. Sept. 1, 1997; Sec. 17 amended by Acts 1997, 75th Leg., ch. 1051, § 4, eff. Sept. 1, 1997; Sec. 1(22), (23) added by Acts 2001, 77th Leg., ch. 1270, § 1, eff. Sept. 1, 2001; Sec. 2 amended by Acts 2001, 77th Leg., ch. 1270, § 2, eff. Sept. 1, 2001; Sec. 4 amended by Acts 2001, 77th Leg., ch. 1270, § 3, eff. Sept. 1, 2001; Sec. 5(a) amended by Acts 2001, 77th Leg., ch. 1270, § 4, eff. Sept. 1, 2001; Sec. 8A added by Acts 2001, 77th Leg., ch. 1270, § 5, eff. Sept. 1, 2001; Sec. 9(c), (d) amended by Acts 2001, 77th Leg., ch. 1270, § 6, eff. Sept. 1, 2001.

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," "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," "pen register," "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, town, or village;

(D) a ranger or officer commissioned by the Public Safety Commission or the director of the Department of Public Safety;

(E) an investigator of the district attorney's, criminal district attorney's, or county attorney'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 employed by the Texas Department of Criminal Justice pursuant to Section 493.019, Government Code.

(3) "Department" means the Department of Public Safety.

(4) "Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system.

(5) "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.

(6) "Tracking device" means an electronic or mechanical device that permits only tracking the movement of a person or object.

(7) "Trap and trace device" means a device that records an incoming electronic or other impulse that identifies the originating number of an instrument or device from which a wire or electronic communication was transmitted. 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.

(8) "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.

(9) "Prosecutor" means a district attorney, criminal district attorney, or county attorney performing the duties of a district attorney.

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 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 be material to the investigation of a criminal offense.

(d) On presentation of the application, the judge may order the installation and use of the pen register, ESN reader, or similar equipment by an authorized peace officer commissioned by the department, and, on request of the applicant, the judge shall direct in the order that a communication common carrier or a provider of electronic communications service furnish all information, facilities, and technical assistance necessary to facilitate the installation and use of the device or equipment by the department unobtrusively and with a minimum of interference to the services provided by the carrier or service. The carrier or service is entitled to compensation at the prevailing rates for the facilities and assistance provided to the department.

(e) On presentation of the application, the judge may order the installation and use of the trap and trace device or similar equipment by the communication common carrier or other person on the appropriate line. The judge may direct the communication common carrier or other person, including any landlord or other custodian of equipment, to furnish all information, facilities, and technical assistance necessary to install or use the device or equipment unobtrusively and with a minimum of interference to the services provided by the communication common carrier, landlord, custodian, or other person. Unless otherwise ordered by the court, the results of the trap and trace device or similar equipment shall be furnished to the applicant, designated by the court, at reasonable intervals during regular business hours, for the duration of the order. The carrier is entitled to compensation at the prevailing rates for the facilities and assistance provided to the law enforcement agency.

(f) Except as otherwise provided by this subsection, an order for the installation and use of a device or equipment under this section is valid for not more than 60 days after the earlier of the date the device or equipment is installed or the 10th day after the date the order is entered, unless the prosecutor applies for and obtains from the court an extension of the order before the order expires. The period of extension may not exceed 60 days for each extension granted, except that with the consent of the subscriber or customer of the service on which the device or equipment is used, the court may extend an order for a period not to exceed one year.

(g) The district court shall seal an application and order granted under this article.

(h) A peace officer is not required to file an application or obtain an order under this section before the officer makes an otherwise lawful search, with or without a warrant, to determine the contents of a caller identification message, pager message, or voice message that is contained within the memory of an end-user's identification, paging, or answering device.

Emergency Installation and Use Of Pen Register Or Trap and Trace Device

Sec. 3. (a) A peace officer authorized to possess, install, operate, or monitor a device under Section 8A, Article 18.20, may install and use a pen register or trap and trace device if the officer:

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

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

(B) requires the installation of a pen register or trap and trace device before an order authorizing the installation and use can, with due diligence, be obtained under this article; and

(2) reasonably believes there are sufficient grounds under this article on which to obtain an order authorizing the installation and use of a pen register or trap and trace device.

(b) If an officer installs or uses a pen register or trap and trace device under Subsection (a), the officer shall:

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

(2) within 48 hours after the installation is complete or the use of the device begins, whichever occurs first, obtain an order under Section 2 authorizing the installation and use.

(c) A judge may issue an order authorizing the installation and use of a device under this section during the 48-hour period prescribed by Subsection (b)(2). If an order is denied or is not issued within the 48-hour period, the officer shall terminate use of and remove the pen register or the trap and trace device promptly on the earlier of the denial or the expiration of 48 hours.

(d) The state may not use as evidence in a criminal proceeding any information gained through the use of a pen register or trap and trace device installed under this section if an authorized peace officer does not apply for or applies for but does not obtain authorization for the pen register or trap and trace device.

Requirements for government access to stored communications

Sec. 4. (a) An authorized peace officer may require a provider of electronic communications service to disclose the contents of an electronic communication that has been in electronic storage for not longer than 180 days by obtaining a warrant.

(b) An authorized peace officer may require a provider of electronic communications service to disclose the contents of an electronic communication that has been in electronic storage for longer than 180 days:

(1) if notice is not being given to the subscriber or customer, by obtaining a warrant;

(2) if notice is being given to the subscriber or customer, by obtaining:

(A) an administrative subpoena authorized by statute;

(B) a grand jury subpoena; or

(C) a court order issued under Section 5 of this article; or

(3) as otherwise permitted by applicable federal law.

(c)(1) An authorized peace officer may require a provider of a remote computing service to disclose the contents of an electronic communication as described in Subdivision (2) of this subsection:

(A) if notice is not being given to the subscriber or customer, by obtaining a warrant issued under this code;

(B) if notice is being given to the subscriber or customer, by:

(i) an administrative subpoena authorized by statute;

(ii) a grand jury subpoena; or

(iii) a court order issued under Section 5 of this article; or

(C) as otherwise permitted by applicable federal law.

(2) Subdivision (1) of this subsection applies only to an electronic communication that is in electronic storage:

(A) on behalf of a subscriber or customer of the service and is received by means of electronic transmission from or created by means of computer processing of communications received by means of electronic transmission from the subscriber or customer; and

(B) solely for the purpose of providing storage or computer processing services to the subscriber or customer if the provider of the service is not authorized to obtain access to the contents of those communications for purposes of providing any service other than storage or computer processing.

(d) An authorized peace officer may require a provider of remote computing service to disclose records or other information pertaining to a subscriber or customer of the service, other than communications described in Subsection (c) of this section, without giving the subscriber or customer notice:

(1) by obtaining an administrative subpoena authorized by statute;

(2) by obtaining a grand jury subpoena;

(3) by obtaining a warrant;

(4) by obtaining the consent of the subscriber or customer to the disclosure of the records or information;

(5) by obtaining a court order under Section 5 of this article; or

(6) as otherwise permitted by applicable federal law.

(e) A provider of telephonic communications service shall disclose to an authorized peace officer, without any form of legal process, subscriber listing information, including name, address, and telephone number or similar access code that:

(1) the service provides to others in the course of providing publicly available directory or similar assistance; or

(2) is solely for use in the dispatch of emergency vehicles and personnel responding to a distress call directed to an emergency dispatch system or when the information is reasonably necessary to aid in the dispatching of emergency vehicles and personnel for the immediate prevention of death, personal injury, or destruction of property.

(f) A provider of telephonic communications service shall provide an authorized peace officer with the name of the subscriber of record whose published telephone number is provided to the service by an authorized peace officer.

Court order to obtain access to stored communications

Sec. 5. (a) A court shall issue an order authorizing disclosure of contents, records, or other information of a wire or electronic communication held in electronic storage if the court determines that there is reasonable belief that the information sought is relevant to a legitimate law enforcement inquiry.

(b) A court may grant a motion by the service provider to quash or modify the order issued under Subsection (a) of this section if the court determines that the information or records requested are unusually voluminous in nature or that compliance with the order would cause an undue burden on the provider.

Backup preservation

Sec. 6. (a) A subpoena or court order for disclosure of the contents of an electronic communication in a remote computing service under Section 4(c) of this article may require that the service provider to whom the request is directed create a copy of the contents of the electronic communications sought by the subpoena or court order for the purpose of preserving those contents. The service provider may not inform the subscriber or customer whose communications are being sought that the subpoena or court order has been issued. The service provider shall create the copy not later than two business days after the date of the receipt by the service provider of the subpoena or court order.

(b) The service provider shall immediately notify the authorized peace officer who presented the subpoena or court order requesting the copy when the copy has been created.

(c) Except as provided by Section 7 of this article, the authorized peace officer shall notify the subscriber or customer whose communications are the subject of the subpoena or court order of the creation of the copy not later than three days after the date of the receipt of the notification from the service provider that the copy was created.

(d) The service provider shall release the copy to the requesting authorized peace officer not earlier than the 14th day after the date of the peace officer's notice to the subscriber or customer if the service provider has not:

(1) initiated proceedings to challenge the request of the peace officer for the copy; or

(2) received notice from the subscriber or customer that the subscriber or customer has initiated proceedings to challenge the request.

(e) The service provider may not destroy or permit the destruction of the copy until the information has been delivered to the law enforcement agency or until the resolution of any court proceedings, including appeals of any proceedings, relating to the subpoena or court order requesting the creation of the copy, whichever occurs last.

(f) An authorized peace officer who reasonably believes that notification to the subscriber or customer of the subpoena or court order would result in the destruction of or tampering with information sought may request the creation of a copy of the information. The peace officer's belief is not subject to challenge by the subscriber or customer or service provider.

(g)(1) A subscriber or customer who receives notification as described in Subsection (c) of this section may file a written motion to quash the subpoena or vacate the court order in the court that issued the subpoena or court order not later than the 14th day after the date of the receipt of the notice. The motion must contain an affidavit or sworn statement stating that:

(A) the applicant is a subscriber or customer of the service from which the contents of electronic communications stored for the subscriber or customer have been sought; and

(B) the applicant's reasons for believing that the information sought is not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article in some other respect.

(2) The subscriber or customer shall give written notice to the service provider of the challenge to the subpoena or court order. The authorized peace officer or law enforcement agency requesting the subpoena or court order shall be served a copy of the papers filed by personal delivery or by registered or certified mail.

(h)(1) The court shall order the authorized peace officer to file a sworn response to the motion filed by the subscriber or customer if the court determines that the subscriber or customer has complied with the requirements of Subsection (g) of this section. On request of the peace officer, the court may permit the response to be filed in camera. The court may conduct any additional proceedings the court considers appropriate if the court is unable to make a determination on the motion on the basis of the parties' initial allegations and response.

(2) The court shall rule on the motion as soon after the filing of the officer's response as practicable. The court shall deny the motion if the court finds that the applicant is not the subscriber or customer whose stored communications are the subject of the subpoena or court order or that there is reason to believe that the peace officer's inquiry is legitimate and that the communications sought are relevant to that inquiry. The court shall quash the subpoena or vacate the order if the court finds that the applicant is the subscriber or customer whose stored communications are the subject of the subpoena or court order and that there is not a reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of this article.

(3) A court order denying a motion or application under this section is not a final order and no interlocutory appeal may be taken from the denial.

Delay of notification

Sec. 7. (a) An authorized peace officer seeking a court order to obtain information under Section 4(c) of this article may include a request for an order delaying the notification required under Section 4(c) of this article for a period not to exceed 90 days. The court shall grant the request if the court determines that there is reason to believe that notification of the existence of the court order may have an adverse result, as described in Subsection (c) of this section.

(b) An authorized peace officer who has obtained a subpoena authorized by statute or a grand jury subpoena to seek information under Section 4(c) of this article may delay the notification required under that section for a period not to exceed 90 days on the execution of a written certification of a supervisory official that there is reason to believe that notification of the existence of the subpoena may have an adverse result as described in Subsection (c) of this section. The peace officer shall maintain a true copy of the certification.

(c) In this section an "adverse result" means:

(1) endangering the life or physical safety of an individual;

(2) flight from prosecution;

(3) destruction of or tampering with evidence;

(4) intimidation of a potential witness; or

(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.

(d) A court may grant one or more extensions of the delay of notification provided by this section of up to 90 days on request or by certification by a supervisory official if the original requirements under Subsection (a) or (b) of this section are met for each extension.

(e) When the delay of notification under this section expires, the authorized peace officer shall serve, by personal delivery or registered or certified mail, the subscriber or customer a copy of the process or request together with notice that:

(1) states with reasonable specificity the nature of the law enforcement inquiry; and

(2) informs the subscriber or customer:

(A) that information stored for the subscriber or customer by the service provider named in the process or request was supplied to or requested by the peace officer and the date on which the information was supplied or requested;

(B) that notification to the subscriber or customer was delayed;

(C) of the name of the supervisory official who made the certification or the court that granted the request for the delay of notification; and

(D) of which provision of this article permitted the delay of notification.

Preclusion of notification

Sec. 8. When an authorized peace officer seeking information under Section 4 of this article is not required to give notice to the subscriber or customer or is delaying notification under Section 7 of this article, the peace officer may apply to the court for an order commanding the service provider to whom a warrant, subpoena, or court order is directed not to disclose to any other person the existence of the warrant, subpoena, or court order. The order is effective for the period the court considers appropriate. The court shall enter the order if the court determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will have an adverse result as described in Section 7(c) of this article.

Reimbursement of costs

Sec. 9. (a) Except as provided by Subsection (c) of this section, an authorized peace officer who obtains information under this article shall reimburse the person assembling or providing the information for all costs that are reasonably necessary and that have been directly incurred in searching for, assembling, reproducing, or otherwise providing the information. These costs include costs arising from necessary disruption of normal operations of an electronic communications service or remote computing service in which the information may be stored.

(b) The authorized peace officer and the person providing the information may agree on the amount of reimbursement. If there is no agreement, the court that issued the order for production of the information shall determine the amount. If no court order was issued for production of the information, the court before which the criminal prosecution relating to the information would be brought shall determine the amount.

(c) Subsection (a) of this section does not apply to records or other information maintained by a communications common carrier that relate to telephone toll records or telephone listings obtained under Section 4(e) of this article unless the court determines that the amount of information required was unusually voluminous or that an undue burden was imposed on the provider.

No cause of action

Sec. 10. A subscriber or customer of a wire or electronic communications or remote computing service does not have a cause of action against a wire or electronic communications or remote computing service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance as required by a court order, warrant, subpoena, or certification under this article.

Disclosure of stored communications

Sec. 11. (a) Except as provided by Subsection (c) of this section, a provider of an electronic communications service may not knowingly divulge the contents of a communication that is in electronic storage.

(b) Except as provided by Subsection (c) of this section, a provider of remote computing service may not knowingly divulge the contents of any communication that is:

(1) in electronic storage;

(2) stored on behalf of a subscriber or customer of the service and is received by means of electronic transmission from or created by means of computer processing of communications received by means of electronic transmission from the subscriber or customer; and

(3) solely for the purpose of providing storage or computer processing services to the subscriber or customer if the provider of the service is not authorized to obtain access to the contents of those communications for purposes of providing any service other than storage or computer processing.

(c) A provider of an electronic communications or remote computing service may divulge the contents of an electronically stored communication:

(1) to an intended recipient of the communication or that person's agent;

(2) to the addressee or that person's agent;

(3) with the consent of the originator, to the addressee or the intended recipient of the communication, or the subscriber of a remote computing service;

(4) to a person whose facilities are used to transmit the communication to its destination or the person's employee or authorized representative;

(5) as may be necessary to provide the service or to protect the property or rights of the provider of the service;

(6) to a law enforcement agency if the contents were obtained inadvertently by the service provider and the contents appear to pertain to the commission of a crime; or

(7) as authorized under federal or other state law.

Cause of action

Sec. 12. (a) Except as provided by Section 10 of this article, a provider of electronic communications service or subscriber or customer of an electronic communications service aggrieved by a violation of this article has a civil cause of action if the conduct constituting the violation was committed knowingly or intentionally and is entitled to:

(1) injunctive relief;

(2) a reasonable attorney's fee and other litigation costs reasonably incurred; and

(3) the sum of the actual damages suffered and any profits made by the violator as a result of the violation or $1,000, whichever is more.

(b) The reliance in good faith on a court order, warrant, subpoena, or legislative authorization is a complete defense to any civil action brought under this article.

(c) A civil action under this section may be presented within two years after the date the claimant first discovered or had reasonable opportunity to discover the violation, and not afterward.

Exclusivity of remedies

Sec. 13. The remedies and sanctions described in this article are the exclusive judicial remedies and sanctions for a violation of this article other than a violation that infringes on a right of a party guaranteed by a state or federal constitution.

Mobile tracking devices

Sec. 14. (a) A district judge may issue an order for the installation within the judge's judicial district of one or more mobile tracking devices and for their use.

(b) The order may authorize the use of mobile tracking devices outside the judicial district but within the state if the device is installed within the district.

(c) A district judge may issue the order only on the application of an authorized peace officer. An application must be written and signed and sworn to or affirmed before the judge. The affidavit must:

(1) state the name, department, agency, and address of the applicant;

(2) identify the vehicle, container, or item to which, in which, or on which the mobile tracking device is to be attached or placed and state the name of the owner or possessor of that vehicle, container, or item;

(3) state the jurisdictional area in which the vehicle, container, or item is expected to be found; and

(4) state the facts and circumstances that provide the applicant with a reasonable suspicion that criminal activity has been, is, or will be in progress and that the use of a mobile tracking device is reasonably likely to yield information relevant to the investigation of that criminal activity.

(d) The judge that issued an order shall be notified in writing within 72 hours after the time the mobile tracking device has been activated in place on or within the vehicle, container, or item.

(e) An order authorizing the use of a mobile tracking device expires not later than the 90th day after the date that the device has been activated in place on or within the vehicle, container, or item. For good cause shown, the judge may grant an extension for an additional 90-day period.

(f) A mobile tracking device shall be removed as soon as is practicable after the authorization period expires. If removal is not practicable, monitoring of the device shall cease on expiration of the authorization order.

(g) This section does not apply to a global positioning or similar device installed in or on an item of property by the owner or with the consent of the owner of the property. A device described by this subsection may be monitored by a private entity in an emergency.

Subpoena authority

Sec. 15. The director of the department or the director's designee may issue an administrative subpoena to a communications common carrier or an electronic communications service to compel the production of the carrier's or service's business records that:

(1) disclose information about:

(A) the carrier's or service's customers; or

(B) users of the services offered by the carrier or service; and

(2) are material to a criminal investigation.

Limitation

Sec. 16. A governmental agency authorized to install and use a pen register under this article or other law must use reasonably available technology to only record and decode electronic or other impulses used to identify the numbers dialed or otherwise transmitted.

Added by Acts 1985, 69th Leg., ch. 587, § 5, eff. Aug. 26, 1985. Amended by Acts 1989, 71st Leg., ch. 958, § 1, eff. Sept. 1, 1989. Sec. 1(14) amended by Acts 1993, 73rd Leg., ch. 659, § 2, eff. Sept. 1, 1993; amended by Acts 1995, 74th Leg., ch. 170, § 1, eff. Aug. 28, 1995; Sec. 2(f) amended by Acts 1995, 74th Leg., ch. 318, § 47, eff. Sept. 1, 1995; Sec. 1 amended by Acts 1997, 75th Leg., ch. 1051, § 5, eff. Sept. 1, 1997; Sec. 1(2)(H) amended by Acts 1997, 75th Leg., ch. 165, § 31.01(40), eff. Sept. 1, 1997; Sec. 2(f) amended by Acts 1997, 75th Leg., ch. 1051, § 6, eff. Sept. 1, 1997; Sec. 3 amended by Acts 1997, 75th Leg., ch. 1051, § 7, eff. Sept. 1, 1997; Sec. 16 added by Acts 1997, 75th Leg., ch. 1051, § 8, eff. Sept. 1, 1997; Sec. 1(7) amended by Acts 1999, 76th Leg., ch. 62, § 18.20, eff. Sept. 1, 1999; Sec. 1(1) amended by and Sec. 1(8), (9) added by Acts 2001, 77th Leg., ch. 1270, § 7, eff. Sept. 1, 2001; Sec. 2 amended by Acts 2001, 77th Leg., ch. 1270, § 8, eff. Sept. 1, 2001; Sec. 3 amended by Acts 2001, 77th Leg., ch. 1270, § 9, eff. Sept. 1, 2001; Sec. 14(g) added by Acts 2001, 77th Leg., ch. 1270, § 10, eff. Sept. 1, 2001.

Art. 18.22. Testing for Communicable Diseases Following Certain Arrests

(a) A person who is arrested for an offense under Section 38.04, Penal Code, and who during the commission of that offense committed an assault on a peace officer by biting the officer or otherwise causing the officer to come into contact with the person's bodily fluids shall, at the direction of the court having jurisdiction over the arrested person, undergo a medical procedure or test designed to show or help show whether the person has a communicable disease. The court may direct the person to undergo the procedure or test on its own motion or on the request of the peace officer. If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test. Notwithstanding any other law, the person performing the procedure or test shall make the test results available to the local health authority, and the local health authority shall notify the peace officer of the test result. The state may not use the fact that a medical procedure or test was performed on a person under this article, or use the results of the procedure or test, in any criminal proceeding arising out of the alleged offense.

(b) Testing under this article shall be conducted in accordance with written infectious disease control protocols adopted by the Texas Board of Health that clearly establish procedural guidelines that provide criteria for testing and that respect the rights of the arrested person and the peace officer.

(c) Nothing in this article authorizes a court to release a test result to a person other than a person specifically authorized by this article, and Section 81.103(d), Health and Safety Code, does not authorize that disclosure.