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CODE OF CRIMINAL PROCEDURE CHAPTER 18. SEARCH WARRANTS Acts 1987, 70th Leg., ch. 980, Sec. 1, eff. Sept. 1, 1987; Subsecs. (g)(4), (g)(6) amended by Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(6), eff. Sept. 1, 1987; Subsecs. (a), (b) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 2, eff. Sept. 1, 1993; Subsecs. (f), (g) amended by Acts 2003, 78th Leg., ch. 441, Sec. 1, eff. Sept. 1, 2003; Subsecs. (a), (b), (e), (f), (g) amended by Acts 2003, 78th Leg., ch. 649, Sec. 2, eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 522, Sec. 1, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 522, Sec. 2, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 885, Sec. 2.13, eff. April 1, 2009. Acts 2007, 80th Leg., R.S., Ch. 921, Sec. 17.002(1), eff. September 1, 2007. Art. 18.181. DISPOSITION OF EXPLOSIVE WEAPONS AND CHEMICAL DISPENSING DEVICES. (a) After seizure of an explosive weapon or chemical dispensing device, as these terms are defined in Section 46.01, Penal Code, a peace officer or a person acting at the direction of a peace officer shall: (1) photograph the weapon in the position where it is recovered before touching or moving it; (2) record the identification designations printed on a weapon if the markings are intact; (3) if the weapon can be moved, move it to an isolated area in order to lessen the danger to the public; (4) if possible, retain a portion of a wrapper or other packaging materials connected to the weapon; (5) retain a small portion of the explosive material and submit the material to a laboratory for chemical analysis; (6) separate and retain components associated with the weapon such as fusing and triggering mechanisms if those mechanisms are not hazardous in themselves; (7) destroy the remainder of the weapon in a safe manner; (8) at the time of destruction, photograph the destruction process and make careful observations of the characteristics of the destruction; (9) after destruction, inspect the disposal site and photograph the site to record the destructive characteristics of the weapon; and (10) retain components of the weapon and records of the destruction for use as evidence in court proceedings. (b) Representative samples, photographs, and records made pursuant to this article are admissible in civil or criminal proceedings in the same manner and to the same extent as if the explosive weapon were offered in evidence, regardless of whether or not the remainder of the weapon has been destroyed. No inference or presumption of spoliation applies to weapons destroyed pursuant to this article. Added by Acts 1983, 68th Leg., p. 4832, ch. 852, Sec. 5, eff. Sept. 1, 1983. Art. 18.183. DEPOSIT OF MONEY PENDING DISPOSITION. (a) If money is seized by a law enforcement agency in connection with a violation of Chapter 47, Penal Code, the state or the political subdivision of the state that employs the law enforcement agency may deposit the money in an interest-bearing bank account in the jurisdiction of the agency that made seizure or in the county in which the money was seized until a final judgment is rendered concerning the violation. (b) If a final judgment is rendered concerning a violation of Chapter 47, Penal Code, money seized in connection with the violation that has been placed in an interest-bearing bank account shall be distributed according to this chapter, with any interest being distributed in the same manner and used for the same purpose as the principal. Added by Acts 1987, 70th Leg., ch. 167, Sec. 4.02(a), eff. Sept. 1, 1987. Renumbered from art. 18.182 by Acts 1989, 71st Leg., ch. 2, Sec. 16.01(6), eff. Aug. 28, 1989. Art. 18.19. DISPOSITION OF SEIZED WEAPONS. (a) Weapons seized in connection with an offense involving the use of a weapon or an offense under Penal Code Chapter 46 shall be held by the law enforcement agency making the seizure, subject to the following provisions, unless: (1) the weapon is a prohibited weapon identified in Penal Code Chapter 46, in which event Article 18.18 of this code applies; or (2) the weapon is alleged to be stolen property, in which event Chapter 47 of this code applies. (b) When a weapon described in Paragraph (a) of this article is seized, and the seizure is not made pursuant to a search or arrest warrant, the person seizing the same shall prepare and deliver to a magistrate a written inventory of each weapon seized. (c) If there is no prosecution or conviction for an offense involving the weapon seized, the magistrate to whom the seizure was reported shall, before the 61st day after the date the magistrate determines that there will be no prosecution or conviction, notify in writing the person found in possession of the weapon 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 or by a county forensic laboratory designated by the magistrate. 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 or by a county forensic laboratory designated by the court 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 or by a county forensic laboratory designated by the court. If the court entering judgment of conviction does not order the destruction or forfeiture of the weapon within the period prescribed by this subsection, the law enforcement agency holding the weapon may request an order of destruction or forfeiture of the weapon from a magistrate. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 987, ch. 399, Sec. 2(E), eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 980, Sec. 2, eff. Sept. 1, 1987. Subsec. (d) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 3, eff. Sept. 1, 1993; amended by Acts 1995, 74th Leg., ch. 318, Sec. 46(a), eff. Sept. 1, 1995; Subsecs. (c) to (e) amended by Acts 2001, 77th Leg., ch. 1083, Sec. 1, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 509, Sec. 1, eff. September 1, 2005. Art. 18.20. INTERCEPTION AND USE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS. Definitions Sec. 1. In this article: (1) "Wire communication" means an aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a person authorized to engage in providing or operating the facilities for the transmission of communications as a communications common carrier. The term includes the electronic storage of a wire communication. (2) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication. (3) "Intercept" means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device. (4) "Electronic, mechanical, or other device" means a device that may be used for the nonconsensual interception of wire, oral, or electronic communications. The term does not include a telephone or telegraph instrument, the equipment or a facility used for the transmission of electronic communications, or a component of the equipment or a facility used for the transmission of electronic communications if the instrument, equipment, facility, or component is: (A) furnished to the subscriber or user by a provider of wire or electronic communications service in the ordinary course of the provider's business and being used by the subscriber or user in the ordinary course of its business; (B) furnished by a subscriber or user for connection to the facilities of a wire or electronic communications service for use in the ordinary course of the subscriber's or user's business; (C) being used by a communications common carrier in the ordinary course of its business; or (D) being used by an investigative or law enforcement officer in the ordinary course of the officer's duties. (5) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in Section 4 of this article or an attorney authorized by law to prosecute or participate in the prosecution of the enumerated offenses. (6) "Contents," when used with respect to a wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication. (7) "Judge of competent jurisdiction" means a judge from the panel of nine active district judges with criminal jurisdiction appointed by the presiding judge of the court of criminal appeals as provided by Section 3 of this article. (8) "Prosecutor" means a district attorney, criminal district attorney, or county attorney performing the duties of a district attorney, with jurisdiction in the county within an administrative judicial district described by Section 3(b). (9) "Director" means the director of the Department of Public Safety or, if the director is absent or unable to serve, the assistant director of the Department of Public Safety. (10) "Communication common carrier" means a person engaged as a common carrier for hire in the transmission of wire or electronic communications. (11) "Aggrieved person" means a person who was a party to an intercepted wire, oral, or electronic communication or a person against whom the interception was directed. (12) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this Act, would be a violation of the Penal Code. (13) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence. (14) "Pen register," "ESN reader," "trap and trace device," and "mobile tracking device" have the meanings assigned by Article 18.21. (15) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term does not include: (A) a wire or oral communication; (B) a communication made through a tone-only paging device; or |
