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CODE OF CRIMINAL PROCEDURE CHAPTER 18. SEARCH WARRANTS (C) a communication from a tracking device. (16) "User" means a person who uses an electronic communications service and is authorized by the provider of the service to use the service. (17) "Electronic communications system" means a wire, radio, electromagnetic, photo-optical or photoelectronic facility for the transmission of wire or electronic communications, and any computer facility or related electronic equipment for the electronic storage of those communications. (18) "Electronic communications service" means a service that provides to users of the service the ability to send or receive wire or electronic communications. (19) "Readily accessible to the general public" means, with respect to a radio communication, a communication that is not: (A) scrambled or encrypted; (B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission; (D) transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication; (E) transmitted on frequencies allocated under Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio; or (F) an electronic communication. (20) "Electronic storage" means: (A) a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication; or (B) storage of a wire or electronic communication by an electronic communications service for purposes of backup protection of the communication. (21) "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception. (22) "Immediate life-threatening situation" means a hostage, barricade, or other emergency situation in which a person unlawfully and directly: (A) threatens another with death; or (B) exposes another to a substantial risk of serious bodily injury. (23) "Member of a law enforcement unit specially trained to respond to and deal with life-threatening situations" means a peace officer who, as evidenced by the submission of appropriate documentation to the Commission on Law Enforcement Officer Standards and Education: (A) receives a minimum of 40 hours a year of training in hostage and barricade suspect situations; or (B) has received a minimum of 24 hours of training on kidnapping investigations and is: (i) the sheriff of a county with a population of 3.3 million or more or the sheriff's designee; or (ii) the police chief of a police department in a municipality with a population of 500,000 or more or the police chief's designee. (24) "Access," "computer," "computer network," "computer system," and "effective consent" have the meanings assigned by Section 33.01, Penal Code. (25) "Computer trespasser" means a person who: (A) is accessing a protected computer without effective consent of the owner; and (B) has no reasonable expectation of privacy in any communication transmitted to, through, or from the protected computer. The term does not include a person who accesses the computer under an existing contractual relationship with the owner or operator of the protected computer. (26) "Protected computer" means a computer, computer network, or computer system that is: (A) owned by a financial institution or governmental entity; or (B) used by or for a financial institution or governmental entity and conduct constituting an offense affects that use. Prohibition of Use as Evidence of Intercepted Communications Sec. 2. (a) The contents of an intercepted communication and evidence derived from an intercepted communication may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States or of this state or a political subdivision of this state unless: (1) the communication was intercepted in violation of this article, Section 16.02, Penal Code, or federal law; or (2) the disclosure of the contents of the intercepted communication or evidence derived from the communication would be in violation of this article, Section 16.02, Penal Code, or federal law. (b) The contents of an intercepted communication and evidence derived from an intercepted communication may be received in a civil trial, hearing, or other proceeding only if the civil trial, hearing, or other proceeding arises out of a violation of a penal law. (c) This section does not prohibit the use or admissibility of the contents of a communication or evidence derived from the communication if the communication was intercepted in a jurisdiction outside this state in compliance with the law of that jurisdiction. Judges Authorized to Consider Interception Applications Sec. 3. (a) The presiding judge of the court of criminal appeals, by order filed with the clerk of that court, shall appoint one district judge from each of the administrative judicial districts of this state to serve at his pleasure as the judge of competent jurisdiction within that administrative judicial district. The presiding judge shall fill vacancies, as they occur, in the same manner. (b) Except as provided by Subsection (c), a judge appointed under Subsection (a) may act on an application for authorization to intercept wire, oral, or electronic communications if the judge is appointed as the judge of competent jurisdiction within the administrative judicial district in which the following is located: (1) the site of: (A) the proposed interception; or (B) the interception device to be installed or monitored; (2) the communication device to be intercepted; (3) the billing, residential, or business address of the subscriber to the electronic communications service to be intercepted; (4) the headquarters of the law enforcement agency that makes a request for or executes an order authorizing an interception; or (5) the headquarters of the service provider. (c) If the judge of competent jurisdiction for an administrative judicial district is absent or unable to serve or if exigent circumstances exist, the application may be made to the judge of competent jurisdiction in an adjacent administrative judicial district. Exigent circumstances does not include a denial of a previous application on the same facts and circumstances. To be valid, the application must fully explain the circumstances justifying application under this subsection. Sec. 4. OFFENSES FOR WHICH INTERCEPTIONS MAY BE AUTHORIZED. A judge of competent jurisdiction may issue an order authorizing interception of wire, oral, or electronic communications only if the prosecutor applying for the order shows probable cause to believe that the interception will provide evidence of the commission of: (1) a felony under Section 19.02, 19.03, or 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; (3) an offense under Section 20.03 or 20.04, Penal Code; (4) an offense under Chapter 20A, Penal Code; (5) an offense under Chapter 34, Penal Code, if the criminal activity giving rise to the proceeds involves the commission of an offense under Title 5, Penal Code, or an offense under federal law or the laws of another state containing elements that are substantially similar to the elements of an offense under Title 5; or (6) an attempt, conspiracy, or solicitation to commit an offense listed in this section. Control of Intercepting Devices Sec. 5. (a) Except as provided by Section 8A, only the Department of Public Safety is authorized by this article to own, possess, install, operate, or monitor an electronic, mechanical, or other device. The Department of Public Safety may be assisted by an investigative or law enforcement officer or other person in the operation and monitoring of an interception of wire, oral, or electronic communications, provided that the officer or other person: (1) is designated by the director for that purpose; and (2) acts in the presence and under the direction of a commissioned officer of the Department of Public Safety. (b) The director shall designate in writing the commissioned officers of the Department of Public Safety who are responsible for the possession, installation, operation, and monitoring of electronic, mechanical, or other devices for the department. Request for Application for Interception Sec. 6. (a) The director may, based on written affidavits, request in writing that a prosecutor apply for an order authorizing interception of wire, oral, or electronic communications. (b) The head of a local law enforcement agency or, if the head of the local law enforcement agency is absent or unable to serve, the acting head of the local law enforcement agency may, based on written affidavits, request in writing that a prosecutor apply for an order authorizing interception of wire, oral, or electronic communications. Prior to the requesting of an application under this subsection, the head of a local law enforcement agency must submit the request and supporting affidavits to the director, who shall make a finding in writing whether the request and supporting affidavits establish that other investigative procedures have been tried and failed or they reasonably appear unlikely to succeed or to be too dangerous if tried, is feasible, is justifiable, and whether the Department of Public Safety has the necessary resources available. The prosecutor may file the application only after a written positive finding on all the above requirements by the director. Authorization for Disclosure and Use of Intercepted Communications Sec. 7. (a) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may disclose the contents or evidence to another investigative or law enforcement officer, including a federal law enforcement officer or agent or a law enforcement officer or agent of another state, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure. (b) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may use the contents or evidence to the extent the use is appropriate to the proper performance of his official duties. (c) A person who receives, by any means authorized by this article, information concerning a wire, oral, or electronic communication or evidence derived from a communication intercepted in accordance with the provisions of this article may disclose the contents of that communication or the derivative evidence while giving testimony under oath in any proceeding held under the authority of the United States, of this state, or of a political subdivision of this state. (d) An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character and any evidence derived from such privileged communication against the party to the privileged communication shall be considered privileged |
