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| CODE OF CRIMINAL PROCEDURE CHAPTER 18. SEARCH WARRANTS 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 |
