CODE OF CRIMINAL PROCEDURETITLE 1. CODE OF CRIMINAL PROCEDURECHAPTER 18. SEARCH WARRANTSArt. 18.01. 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. Except as provided by Article 18.011, 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 under Article 18.02(10) unless the sworn affidavit required by Subsection (b) 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), (i), and (j), only a judge of a municipal court of record or a county court who is an attorney licensed by the State of Texas, a statutory county court judge, a district court judge, a judge of the Court of Criminal Appeals, including the presiding judge, or a justice of the Supreme Court of Texas, including the chief justice, may issue warrants under Article 18.02(10).(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 that does not have a judge of a municipal court of record who is an attorney licensed by the state, a county court judge who is an attorney licensed by the state, or a statutory county court judge, any magistrate may issue a search warrant under Subdivision (10) or Subdivision (12) of Article 18.02 of this code. This subsection is not applicable to a subsequent search warrant under Subdivision (10) of Article 18.02 of this code.(j) Any magistrate who is an attorney licensed by this state may issue a search warrant under Article 18.02(10) to collect a blood specimen from a person who:(1) is arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and(2) refuses to submit to a breath or blood alcohol test.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 1, eff. May 25, 1977.
Sec. (c) amended by Acts 1979, 66th Leg., p. 1124, ch. 536, Sec. 1, eff. June 11, 1979; Sec. (e) added by Acts 1979, 66th Leg., p. 1076, ch. 505, Sec. 1, eff. Sept. 1, 1979; Sec. (a) amended by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 3, eff. Sept. 1, 1981; Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 1, eff. Sept. 1, 1981; Sec. (f) added by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 4, eff. Sept. 1, 1981; Sec. (c) amended by Acts 1987, 70th Leg., ch. 686, Sec. 1, eff. Sept. 1, 1987; Secs. (g) and (h) added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 2, eff. Oct. 18, 1989; Secs. (c), (h) amended by and Sec. (i) added by Acts 1991, 72nd Leg., ch. 73, Sec. 1, eff. May 9, 1991; Secs. (c), (d), (i) amended by Acts 1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1, 1995; Subsecs. (c), (h) amended by Acts 1997, 75th Leg., ch. 604, Sec. 1, eff. Sept. 1, 1997; Subsec. (b) amended by Acts 1999, 76th Leg., ch. 167, Sec. 1, eff. Aug. 30, 1999; Subsec. (d) amended by Acts 1999, 76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Subsec. (i) amended by Acts 2001, 77th Leg., ch. 1395, Sec. 1, eff. June 16, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 355, Sec. 1, eff. September 1, 2007.Acts 2007, 80th Leg., R.S., Ch. 748, Sec. 1, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 1348, Sec. 5, eff. September 1, 2009.
Art. 18.011. SEALING OF AFFIDAVIT. (a) An attorney representing the state in the prosecution of felonies may request a district judge or the judge of an appellate court to seal an affidavit presented under Article 18.01(b). The judge may order the affidavit sealed if the attorney establishes a compelling state interest in that:(1) public disclosure of the affidavit would jeopardize the safety of a victim, witness, or confidential informant or cause the destruction of evidence; or(2) the affidavit contains information obtained from a court-ordered wiretap that has not expired at the time the attorney representing the state requests the sealing of the affidavit.(b) An order sealing an affidavit under this section expires on the 31st day after the date on which the search warrant for which the affidavit was presented is executed. After an original order sealing an affidavit is issued under this article, an attorney representing the state in the prosecution of felonies may request, and a judge may grant, before the 31st day after the date on which the search warrant for which the affidavit was presented is executed, on a new finding of compelling state interest, one 30-day extension of the original order.(c) On the expiration of an order issued under Subsection (b) and any extension, the affidavit must be unsealed.(d) An order issued under this section may not:(1) prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant; or(2) affect the right of a defendant to discover the contents of an affidavit.
Added by Acts 2007, 80th Leg., R.S., Ch. 355, Sec. 2, eff. September 1, 2007.
Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for and seize:(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;(3) arms and munitions kept or prepared for the purposes of insurrection or riot;(4) weapons prohibited by the Penal Code;(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;(7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state;(8) any property the possession of which is prohibited by law;(9) implements or instruments used in the commission of a crime;(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;(11) persons; or(12) contraband subject to forfeiture under Chapter 59 of this code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 2, eff. May 25, 1977; Amended by Acts 1981, 67th Leg., p. 2790, ch. 755, Sec. 5, eff. Sept. 1, 1981; Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 3, eff. Oct. 18, 1989; Acts 2003, 78th Leg., ch. 1099, Sec. 16, eff. Sept. 1, 2003.
Art. 18.021. ISSUANCE OF SEARCH WARRANT TO PHOTOGRAPH INJURED CHILD. (a) A search warrant may be issued to search for and photograph a child who is alleged to be the victim of the offenses of injury to a child as prohibited by Section 22.04, Penal Code; sexual assault of a child as prohibited by Section 22.011(a), Penal Code; aggravated sexual assault of a child as prohibited by Section 22.021, Penal Code; or continuous sexual abuse of young child or children as prohibited by Section 21.02, Penal Code.(b) The officer executing the warrant may be accompanied by a photographer who is employed by a law enforcement agency and who acts under the direction of the officer executing the warrant. The photographer is entitled to access to the child in the same manner as the officer executing the warrant.(c) In addition to the requirements of Subdivisions (1) and (4) of Article 18.04 of this code, a warrant issued under this article shall identify, as near as may be, the child to be located and photographed, shall name or describe, as near as may be, the place or thing to be searched, and shall command any peace officer of the proper county to search for and cause the child to be photographed.(d) After having located and photographed the child, the peace officer executing the warrant shall take possession of the exposed film and deliver it forthwith to the magistrate. The child may not be removed from the premises on which he or she is located except under Subchapters A and B, Chapter 262, Family Code.(e) A search warrant under this section shall be executed by a peace officer of the same sex as the alleged victim or, if the officer is not of the same sex as the alleged victim, the peace officer must be assisted by a person of the same sex as the alleged victim. The person assisting an officer under this subsection must be acting under the direction of the officer and must be with the alleged victim during the taking of the photographs.
Added by Acts 1981, 67th Leg., p. 758, ch. 289, Sec. 2, eff. Sept. 1, 1981. Subsec. (a) amended by Acts 1983, 68th Leg., p. 5319, ch. 977, Sec. 8, eff. Sept. 1, 1983; Subsec. (d) amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.01, eff. Sept. 1, 1997.Amended by: Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.11, eff. September 1, 2007.
Art. 18.03. SEARCH WARRANT MAY ORDER ARREST. If the facts presented to the magistrate under Article 18.02 of this chapter also establish the existence of probable cause that a person has committed some offense under the laws of this state, the search warrant may, in addition, order the arrest of such person.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.04. CONTENTS OF WARRANT. A search warrant issued under this chapter shall be sufficient if it contains the following requisites:(1) that it run in the name of "The State of Texas";(2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched;(3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; and(4) that it be dated and signed by the magistrate.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.05. WARRANTS FOR FIRE, HEALTH, AND CODE INSPECTIONS. (a) Except as provided by Subsection (e) of this article, a search warrant may be issued to a 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 or more code enforcement officials 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 not more than one code enforcement official for the purpose of being issued a search warrant as authorized by Subsection (a) of this article only if the political subdivision routinely inspects premises to determine whether there is a fire or health hazard or unsafe building condition or a violation of fire, health, or building regulation, statute, or ordinance.(e) A search warrant may not be issued under this article to a code enforcement official of a county with a population of 2.4 million or more for the purpose of allowing the inspection of specified premises to determine the presence of an unsafe building condition or a violation of a building regulation, statute, or ordinance.
Added as art. 18.011 by Acts 1969, 61st Leg., p. 1623, ch. 502, Sec. 1, eff. Sept. 1, 1969. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1989, 71st Leg., ch. 382, Sec. 1, eff. Aug. 28, 1989.Amended by: Acts 2007, 80th Leg., R.S., Ch. 769, Sec. 1, eff. September 1, 2007.
Art. 18.06. EXECUTION OF WARRANTS. (a) A peace officer to whom a search warrant is delivered shall execute it without delay and forthwith return it to the proper magistrate. It must be executed within three days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the magistrate.(b) On searching the place ordered to be searched, the officer executing the warrant shall present a copy of the warrant to the owner of the place, if he is present. If the owner of the place is not present but a person who is present is in possession of the place, the officer shall present a copy of the warrant to the person. Before the officer takes property from the place, he shall prepare a written inventory of the property to be taken. He shall legibly endorse his name on the inventory and present a copy of the inventory to the owner or other person in possession of the property. If neither the owner nor a person in possession of the property is present when the officer executes the warrant, the officer shall leave a copy of the warrant and the inventory at the place.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 2, eff. Sept. 1, 1981.
Art. 18.07. DAYS ALLOWED FOR WARRANT TO RUN. (a) The time allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is:(1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples; or(2) three whole days if the warrant is issued for a purpose other than that described by Subdivision (1).(b) The magistrate issuing a search warrant under this chapter shall endorse on the search warrant the date and hour of its issuance.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.Amended by: Acts 2009, 81st Leg., R.S., Ch. 761, Sec. 1, eff. September 1, 2009.
Art. 18.08. POWER OF OFFICER EXECUTING WARRANT. In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.09. 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. For purposes of this chapter, "seizure," in the context of property, means the restraint of property, whether by physical force or by a display of an officer's authority, and includes the collection of property or the act of taking possession of property.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.Amended by: Acts 2005, 79th Leg., Ch. 1026, Sec. 2, eff. September 1, 2005.
Art. 18.095. SEIZURE OF CIRCUIT BOARD OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA. For purposes of this chapter, an officer directed under a search warrant to search for and seize a gambling device or equipment, altered gambling equipment, or gambling paraphernalia in the discretion of the officer may:(1) seize only the programmable main circuit board of the device, equipment, or paraphernalia if that circuit board is designed as a subassembly or essential part of the device, equipment, or paraphernalia to provide the information necessary for the device, equipment, or paraphernalia to operate as a gambling device or equipment, altered gambling equipment, or gambling paraphernalia;(2) carry the circuit board before the magistrate; and(3) retain custody of the circuit board as the property seized pursuant to the warrant as required under this chapter.
Added by Acts 2009, 81st Leg., R.S., Ch. 898, Sec. 1, eff. September 1, 2009.
Art. 18.10. HOW RETURN MADE. Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 3, eff. Sept. 1, 1981.
Art. 18.11. CUSTODY OF PROPERTY FOUND. Property seized pursuant to a search warrant shall be kept as provided by the order of a magistrate issued in accordance with Article 18.10 of this code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 4, eff. Sept. 1, 1981.
Art. 18.12. MAGISTRATE SHALL INVESTIGATE. The magistrate, upon the return of a search warrant, shall proceed to try the questions arising upon the same, and shall take testimony as in other examinations before him.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.13. SHALL DISCHARGE DEFENDANT. If the magistrate be not satisfied, upon investigation, that there was good ground for the issuance of the warrant, he shall discharge the defendant and order restitution of the property taken from him, except for criminal instruments. In such case, the criminal instruments shall be kept by the sheriff subject to the order of the proper court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.14. EXAMINING TRIAL. The magistrate shall proceed to deal with the accused as in other cases before an examining court if he is satisfied there was good ground for issuing the warrant.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.15. CERTIFY RECORD TO PROPER COURT. The magistrate shall keep a record of all the proceedings had before him in cases of search warrants, and shall certify the same and deliver them to the clerk of the court having jurisdiction of the case, before the next term of said court, and accompany the same with all the original papers relating thereto, including the certified schedule of the property seized.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.16. PREVENTING CONSEQUENCES OF THEFT. Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 2001, 77th Leg., ch. 109, Sec. 2, eff. Sept. 1, 2001.
Art. 18.17. DISPOSITION OF ABANDONED OR UNCLAIMED PROPERTY. (a) All unclaimed or abandoned personal property of every kind, other than contraband subject to forfeiture under Chapter 59 of this code and whiskey, wine and beer, seized by any peace officer in the State of Texas which is not held as evidence to be used in any pending case and has not been ordered destroyed or returned to the person entitled to possession of the same by a magistrate, which shall remain unclaimed for a period of 30 days shall be delivered for disposition to a person designated by the municipality or the purchasing agent of the county in which the property was seized. If a peace officer of a municipality seizes the property, the peace officer shall deliver the property to a person designated by the municipality. If any other peace officer seizes the property, the peace officer shall deliver the property to the purchasing agent of the county. If the county has no purchasing agent, then such property shall be disposed of by the sheriff of the county.(b) The county purchasing agent, the person designated by the municipality, or the sheriff of the county, as the case may be, shall mail a notice to the last known address of the owner of such property by certified mail. Such notice shall describe the property being held, give the name and address of the officer holding such property, and shall state that if the owner does not claim such property within 90 days from the date of the notice such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of the disposition, placed in the treasury of the municipality or county giving the notice.(c) If the property has a fair market value of $500 or more and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff, as the case may be, shall cause to be published once in a paper of general circulation in the municipality or county a notice containing a general description of the property held, the name of the owner if known, the name and address of the officer holding such property, and a statement that if the owner does not claim such property within 90 days from the date of the publication such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of the disposition, placed in the treasury of the municipality or county disposing of the property. If the property has a fair market value of less than $500 and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff may sell or donate the property. The person designated by the municipality, the purchasing agent, or the sheriff shall deposit the sale proceeds, after deducting the reasonable expense of keeping the property and costs of the sale, in the treasury of the municipality or county selling or donating the property.(d) The sale under this article of any property that has a fair market value of $500 or more shall be preceded by a notice published once at least 14 days prior to the date of such sale in a newspaper of general circulation in the municipality or county where the sale is to take place, stating the general description of the property, the names of the owner if known, and the date and place that such sale will occur. This article does not require disposition by sale.(e) The real owner of any property disposed of shall have the right to file a claim to the proceeds with the commissioners court of the county or with the governing body of the municipality in which the disposition took place. A claim by the real owner must be filed not later than the 30th day after the date of disposition. If the claim is allowed by the commissioners court or the governing body of the municipality, the municipal or county treasurer shall pay the owner such funds as were paid into the treasury of the municipality or county as proceeds of the disposition. If the claim is denied by the commissioners court or the governing body or if said court or body fails to act upon such claim within 90 days, the claimant may sue the municipal or county treasurer in a court of competent jurisdiction in the county, and upon sufficient proof of ownership, recover judgment against such municipality or county for the recovery of the proceeds of the disposition.(f) For the purposes of this article:(1) "Person designated by a municipality" means an officer or employee of a municipality who is designated by the municipality to be primarily responsible for the disposition of property under this article.(2) "Property held as evidence" means property related to a charge that has been filed or to a matter that is being investigated for the filing of a charge.(g) If the provisions of this section have been met and the property is scheduled for disposition, the municipal or county law enforcement agency that originally seized the property may request and have the property converted to agency use. The agency at any time may transfer the property to another municipal or county law enforcement agency for the use of that agency. The agency last using the property shall return the property to the person designated by the municipality, county purchasing agent, or sheriff, as the case may be, for disposition when the agency has completed the intended use of the property.(h) If the abandoned or unclaimed personal property is money, the person designated by the municipality, the county purchasing agent, or the sheriff of the county, as appropriate, may, after giving notice under Subsection (b) or (c) of this article, deposit the money in the treasury of the municipality or county giving notice without conducting the sale as required by Subsection (d) of this article.(i) While offering the property for sale under this article, if a person designated by a municipality, county purchasing agent, or sheriff considers any bid as insufficient, the person, agent, or sheriff may decline the bid and reoffer the property for sale.(j) Chapters 72, 74, 75, and 76, Property Code, do not apply to unclaimed or abandoned property to which this article applies.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1737, ch. 659, Sec. 15, eff. Aug. 27, 1967; Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1987, 70th Leg., ch. 1002, Sec. 1, eff. Sept. 1, 1987; Subsec. (a) amended by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 4, eff. Oct. 18, 1989; Subsec. (g) amended by Acts 1991, 72nd Leg., ch. 254, Sec. 1, eff. June 5, 1991. Amended by Acts 1993, 73rd Leg., ch. 157, Sec. 1, eff. Sept. 1, 1993; Subsecs. (c), (d) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 3, eff. May 28, 1993; Subsec. (f) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 2, eff. May 28, 1993; Subsec. (h) added by Acts 1993, 73rd Leg., ch. 321, Sec. 1, eff. May 28, 1993; Subsec. (i) added by Acts 1993, 73rd Leg., ch. 321, Sec. 4, eff. May 28, 1993; Subsec. (c) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.01, eff. Sept. 1, 1995; Subsec. (d) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.02, eff. Sept. 1, 1995; Subsec. (f) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.03, eff. Sept. 1, 1995; Subsec. (h) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.04, eff. Sept. 1, 1995; Subsec. (i) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.05, eff. Sept. 1, 1995; Subsec. (j) added by Acts 2001, 77th Leg., ch. 402, Sec. 18, eff. Sept. 1, 2001.
Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRABAND. (a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, for an offense involving an obscene device or material, for an offense involving child pornography, or for an offense involving a scanning device or re-encoder, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material, child pornography, or scanning device or re-encoder be destroyed or forfeited to the state. Not later than the 30th day after the final conviction of a person for an offense involving a prohibited weapon, the court entering the judgment of conviction on its own motion, on the motion of the prosecuting attorney in the case, or on the motion of the law enforcement agency initiating the complaint on notice to the prosecuting attorney in the case if the prosecutor fails to move for the order shall order that the prohibited weapon be destroyed or forfeited to the law enforcement agency that initiated the complaint. If the court fails to enter the order within the time required by this subsection, any magistrate in the county in which the offense occurred may enter the order. Following the final conviction of a person for an offense involving dog fighting, the court entering the judgment of conviction shall order that any dog-fighting equipment be destroyed or forfeited to the state. Destruction of dogs, if necessary, must be carried out by a veterinarian licensed in this state or, if one is not available, by trained personnel of a humane society or an animal shelter. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency.(b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re-encoder, criminal instrument, or dog-fighting equipment to show cause why the property seized should not be destroyed or the proceeds forfeited. The magistrate, on the motion of the law enforcement agency seizing a prohibited weapon, shall order the weapon destroyed or forfeited to the law enforcement agency seizing the weapon, unless a person shows cause as to why the prohibited weapon should not be destroyed or forfeited. A law enforcement agency shall make a motion under this section in a timely manner after the time at which the agency is informed in writing by the attorney representing the state that no prosecution will arise from the seizure.(c) The magistrate shall include in the notice a detailed description of the property seized and the total amount of alleged gambling proceeds; the name of the person found in possession; the address where the property or proceeds were seized; and the date and time of the seizure.(d) The magistrate shall send the notice by registered or certified mail, return receipt requested, to the person found in possession at the address where the property or proceeds were seized. If no one was found in possession, or the possessor's address is unknown, the magistrate shall post the notice on the courthouse door.(e) Any person interested in the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re-encoder, criminal instrument, or dog-fighting equipment seized must appear before the magistrate on the 20th day following the date the notice was mailed or posted. Failure to timely appear forfeits any interest the person may have in the property or proceeds seized, and no person after failing to timely appear may contest destruction or forfeiture.(f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, obscene device or material, child pornography, criminal instrument, scanning device or re-encoder, or dog-fighting equipment and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.(g) For purposes of this article:(1) "criminal instrument" has the meaning defined in the Penal Code;(2) "gambling device or equipment, altered gambling equipment or gambling paraphernalia" has the meaning defined in the Penal Code;(3) "prohibited weapon" has the meaning defined in the Penal Code;(4) "dog-fighting equipment" means:(A) equipment used for training or handling a fighting dog, including a harness, treadmill, cage, decoy, pen, house for keeping a fighting dog, feeding apparatus, or training pen;(B) equipment used for transporting a fighting dog, including any automobile, or other vehicle, and its appurtenances which are intended to be used as a vehicle for transporting a fighting dog;(C) equipment used to promote or advertise an exhibition of dog fighting, including a printing press or similar equipment, paper, ink, or photography equipment; or(D) a dog trained, being trained, or intended to be used to fight with another dog;(5) "obscene device" and "obscene" have the meanings assigned by Section 43.21, Penal Code;(6) "re-encoder" has the meaning assigned by Section 522.001, Business & Commerce Code;(7) "scanning device" has the meaning assigned by Section 522.001, Business & Commerce Code; and(8) "obscene material" and "child pornography" include digital images and the media and equipment on which those images are stored.(h) No provider of an electronic communication service or of a remote computing service to the public shall be held liable for an offense involving obscene material or child pornography under this section on account of any action taken in good faith in providing that service.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 986, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Subsecs. (a), (b), (e), (f), (g) amended by Acts 1983, 68th Leg., pp. 1611, ch. 305, Sec. 2, 3, eff. Sept. 1, 1983. Amended by Acts 1983, 68th Leg., p. 1899, ch. 351, Sec. 1, eff. Sept. 1, 1983; Subsec. (a) amended by Acts 1987, 70th Leg., ch. 980, Sec. 1, eff. Sept. 1, 1987; Subsecs. (g)(4), (g)(6) amended by Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(6), eff. Sept. 1, 1987; Subsecs. (a), (b) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 2, eff. Sept. 1, 1993; Subsecs. (f), (g) amended by Acts 2003, 78th Leg., ch. 441, Sec. 1, eff. Sept. 1, 2003; Subsecs. (a), (b), (e), (f), (g) amended by Acts 2003, 78th Leg., ch. 649, Sec. 2, eff. Sept. 1, 2003.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. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.DefinitionsSec. 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. (2) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.(3) "Intercept" means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device.(4) "Electronic, mechanical, or other device" means a device that may be used for the nonconsensual interception of wire, oral, or electronic communications. The term does not include a telephone or telegraph instrument, the equipment or a facility used for the transmission of electronic communications, or a component of the equipment or a facility used for the transmission of electronic communications if the instrument, equipment, facility, or component is:(A) furnished to the subscriber or user by a provider of wire or electronic communications service in the ordinary course of the provider's business and being used by the subscriber or user in the ordinary course of its business;(B) furnished by a subscriber or user for connection to the facilities of a wire or electronic communications service for use in the ordinary course of the subscriber's or user's business;(C) being used by a communications common carrier in the ordinary course of its business; or(D) being used by an investigative or law enforcement officer in the ordinary course of the officer's duties.(5) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in Section 4 of this article or an attorney authorized by law to prosecute or participate in the prosecution of the enumerated offenses.(6) "Contents," when used with respect to a wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.(7) "Judge of competent jurisdiction" means a judge from the panel of nine active district judges with criminal jurisdiction appointed by the presiding judge of the court of criminal appeals as provided by Section 3 of this article.(8) "Prosecutor" means a district attorney, criminal district attorney, or county attorney performing the duties of a district attorney, with jurisdiction in the county within an administrative judicial district described by Section 3(b).(9) "Director" means the director of the Department of Public Safety or, if the director is absent or unable to serve, the assistant director of the Department of Public Safety.(10) "Communication common carrier" means a person engaged as a common carrier for hire in the transmission of wire or electronic communications.(11) "Aggrieved person" means a person who was a party to an intercepted wire, oral, or electronic communication or a person against whom the interception was directed.(12) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this Act, would be a violation of the Penal Code.(13) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence.(14) "Pen register," "ESN reader," "trap and trace device," and "mobile tracking device" have the meanings assigned by Article 18.21.(15) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term does not include:(A) a wire or oral communication;(B) a communication made through a tone-only paging device; or(C) a communication from a tracking device.(16) "User" means a person who uses an electronic communications service and is authorized by the provider of the service to use the service.(17) "Electronic communications system" means a wire, radio, electromagnetic, photo-optical or photoelectronic facility for the transmission of wire or electronic communications, and any computer facility or related electronic equipment for the electronic storage of those communications.(18) "Electronic communications service" means a service that provides to users of the service the ability to send or receive wire or electronic communications.(19) "Readily accessible to the general public" means, with respect to a radio communication, a communication that is not:(A) scrambled or encrypted;(B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission;(D) transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication;(E) transmitted on frequencies allocated under Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio; or(F) an electronic communication.(20) "Electronic storage" means:(A) a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication; or(B) storage of a wire or electronic communication by an electronic communications service for purposes of backup protection of the communication.(21) "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception.(22) "Immediate life-threatening situation" means a hostage, barricade, or other emergency situation in which a person unlawfully and directly:(A) threatens another with death; or(B) exposes another to a substantial risk of serious bodily injury.(23) "Member of a law enforcement unit specially trained to respond to and deal with life-threatening situations" means a peace officer who, 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 CommunicationsSec. 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 ApplicationsSec. 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 485.032, 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;(6) an offense under Section 38.11, Penal Code; or(7) an attempt, conspiracy, or solicitation to commit an offense listed in this section.Control of Intercepting DevicesSec. 5. (a) Except as otherwise provided by this section and Sections 8A and 8B, 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.(c) The Texas Department of Criminal Justice may own electronic, mechanical, or other devices for a use or purpose authorized by Section 500.008, Government Code, and the inspector general of the Texas Department of Criminal Justice, a commissioned officer of that office, or another person acting in the presence and under the direction of a commissioned officer of that office may possess, install, operate, or monitor those devices as provided by Section 500.008.(d) The Texas Youth Commission may own electronic, mechanical, or other devices for a use or purpose authorized by Section 61.0455, Human Resources Code, and the inspector general of the Texas Youth Commission, a commissioned officer of that office, or another person acting in the presence and under the direction of a commissioned officer of that office may possess, install, operate, or monitor those devices as provided by Section 61.0455.Request for Application for InterceptionSec. 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 CommunicationsSec. 7. (a) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may disclose the contents or evidence to another investigative or law enforcement officer, including a federal law enforcement officer or agent or a law enforcement officer or agent of another state, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.(b) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may use the contents or evidence to the extent the use is appropriate to the proper performance of his official duties.(c) A person who receives, by any means authorized by this article, information concerning a wire, oral, or electronic communication or evidence derived from a communication intercepted in accordance with the provisions of this article may disclose the contents of that communication or the derivative evidence while giving testimony under oath in any proceeding held under the authority of the United States, of this state, or of a political subdivision of this state.(d) An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character and any evidence derived from such privileged communication against the party to the privileged communication shall be considered privileged also.(e) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in a manner authorized by this article, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization, the contents of and evidence derived from the communication may be disclosed or used as provided by Subsections (a) and (b) of this section. Such contents and any evidence derived therefrom may be used under Subse
CODE OF CRIMINAL PROCEDURETITLE 1. CODE OF CRIMINAL PROCEDURECHAPTER 18. SEARCH WARRANTSArt. 18.01. 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. Except as provided by Article 18.011, 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 under Article 18.02(10) unless the sworn affidavit required by Subsection (b) 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), (i), and (j), only a judge of a municipal court of record or a county court who is an attorney licensed by the State of Texas, a statutory county court judge, a district court judge, a judge of the Court of Criminal Appeals, including the presiding judge, or a justice of the Supreme Court of Texas, including the chief justice, may issue warrants under Article 18.02(10).(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 that does not have a judge of a municipal court of record who is an attorney licensed by the state, a county court judge who is an attorney licensed by the state, or a statutory county court judge, any magistrate may issue a search warrant under Subdivision (10) or Subdivision (12) of Article 18.02 of this code. This subsection is not applicable to a subsequent search warrant under Subdivision (10) of Article 18.02 of this code.(j) Any magistrate who is an attorney licensed by this state may issue a search warrant under Article 18.02(10) to collect a blood specimen from a person who:(1) is arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and(2) refuses to submit to a breath or blood alcohol test.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 1, eff. May 25, 1977.
Sec. (c) amended by Acts 1979, 66th Leg., p. 1124, ch. 536, Sec. 1, eff. June 11, 1979; Sec. (e) added by Acts 1979, 66th Leg., p. 1076, ch. 505, Sec. 1, eff. Sept. 1, 1979; Sec. (a) amended by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 3, eff. Sept. 1, 1981; Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 1, eff. Sept. 1, 1981; Sec. (f) added by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 4, eff. Sept. 1, 1981; Sec. (c) amended by Acts 1987, 70th Leg., ch. 686, Sec. 1, eff. Sept. 1, 1987; Secs. (g) and (h) added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 2, eff. Oct. 18, 1989; Secs. (c), (h) amended by and Sec. (i) added by Acts 1991, 72nd Leg., ch. 73, Sec. 1, eff. May 9, 1991; Secs. (c), (d), (i) amended by Acts 1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1, 1995; Subsecs. (c), (h) amended by Acts 1997, 75th Leg., ch. 604, Sec. 1, eff. Sept. 1, 1997; Subsec. (b) amended by Acts 1999, 76th Leg., ch. 167, Sec. 1, eff. Aug. 30, 1999; Subsec. (d) amended by Acts 1999, 76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Subsec. (i) amended by Acts 2001, 77th Leg., ch. 1395, Sec. 1, eff. June 16, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 355, Sec. 1, eff. September 1, 2007.Acts 2007, 80th Leg., R.S., Ch. 748, Sec. 1, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 1348, Sec. 5, eff. September 1, 2009.
Art. 18.011. SEALING OF AFFIDAVIT. (a) An attorney representing the state in the prosecution of felonies may request a district judge or the judge of an appellate court to seal an affidavit presented under Article 18.01(b). The judge may order the affidavit sealed if the attorney establishes a compelling state interest in that:(1) public disclosure of the affidavit would jeopardize the safety of a victim, witness, or confidential informant or cause the destruction of evidence; or(2) the affidavit contains information obtained from a court-ordered wiretap that has not expired at the time the attorney representing the state requests the sealing of the affidavit.(b) An order sealing an affidavit under this section expires on the 31st day after the date on which the search warrant for which the affidavit was presented is executed. After an original order sealing an affidavit is issued under this article, an attorney representing the state in the prosecution of felonies may request, and a judge may grant, before the 31st day after the date on which the search warrant for which the affidavit was presented is executed, on a new finding of compelling state interest, one 30-day extension of the original order.(c) On the expiration of an order issued under Subsection (b) and any extension, the affidavit must be unsealed.(d) An order issued under this section may not:(1) prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant; or(2) affect the right of a defendant to discover the contents of an affidavit.
Added by Acts 2007, 80th Leg., R.S., Ch. 355, Sec. 2, eff. September 1, 2007.
Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for and seize:(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;(3) arms and munitions kept or prepared for the purposes of insurrection or riot;(4) weapons prohibited by the Penal Code;(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;(7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state;(8) any property the possession of which is prohibited by law;(9) implements or instruments used in the commission of a crime;(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;(11) persons; or(12) contraband subject to forfeiture under Chapter 59 of this code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 2, eff. May 25, 1977; Amended by Acts 1981, 67th Leg., p. 2790, ch. 755, Sec. 5, eff. Sept. 1, 1981; Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 3, eff. Oct. 18, 1989; Acts 2003, 78th Leg., ch. 1099, Sec. 16, eff. Sept. 1, 2003.
Art. 18.021. ISSUANCE OF SEARCH WARRANT TO PHOTOGRAPH INJURED CHILD. (a) A search warrant may be issued to search for and photograph a child who is alleged to be the victim of the offenses of injury to a child as prohibited by Section 22.04, Penal Code; sexual assault of a child as prohibited by Section 22.011(a), Penal Code; aggravated sexual assault of a child as prohibited by Section 22.021, Penal Code; or continuous sexual abuse of young child or children as prohibited by Section 21.02, Penal Code.(b) The officer executing the warrant may be accompanied by a photographer who is employed by a law enforcement agency and who acts under the direction of the officer executing the warrant. The photographer is entitled to access to the child in the same manner as the officer executing the warrant.(c) In addition to the requirements of Subdivisions (1) and (4) of Article 18.04 of this code, a warrant issued under this article shall identify, as near as may be, the child to be located and photographed, shall name or describe, as near as may be, the place or thing to be searched, and shall command any peace officer of the proper county to search for and cause the child to be photographed.(d) After having located and photographed the child, the peace officer executing the warrant shall take possession of the exposed film and deliver it forthwith to the magistrate. The child may not be removed from the premises on which he or she is located except under Subchapters A and B, Chapter 262, Family Code.(e) A search warrant under this section shall be executed by a peace officer of the same sex as the alleged victim or, if the officer is not of the same sex as the alleged victim, the peace officer must be assisted by a person of the same sex as the alleged victim. The person assisting an officer under this subsection must be acting under the direction of the officer and must be with the alleged victim during the taking of the photographs.
Added by Acts 1981, 67th Leg., p. 758, ch. 289, Sec. 2, eff. Sept. 1, 1981. Subsec. (a) amended by Acts 1983, 68th Leg., p. 5319, ch. 977, Sec. 8, eff. Sept. 1, 1983; Subsec. (d) amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.01, eff. Sept. 1, 1997.Amended by: Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.11, eff. September 1, 2007.
Art. 18.03. SEARCH WARRANT MAY ORDER ARREST. If the facts presented to the magistrate under Article 18.02 of this chapter also establish the existence of probable cause that a person has committed some offense under the laws of this state, the search warrant may, in addition, order the arrest of such person.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.04. CONTENTS OF WARRANT. A search warrant issued under this chapter shall be sufficient if it contains the following requisites:(1) that it run in the name of "The State of Texas";(2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched;(3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; and(4) that it be dated and signed by the magistrate.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.05. WARRANTS FOR FIRE, HEALTH, AND CODE INSPECTIONS. (a) Except as provided by Subsection (e) of this article, a search warrant may be issued to a 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 or more code enforcement officials 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 not more than one code enforcement official for the purpose of being issued a search warrant as authorized by Subsection (a) of this article only if the political subdivision routinely inspects premises to determine whether there is a fire or health hazard or unsafe building condition or a violation of fire, health, or building regulation, statute, or ordinance.(e) A search warrant may not be issued under this article to a code enforcement official of a county with a population of 2.4 million or more for the purpose of allowing the inspection of specified premises to determine the presence of an unsafe building condition or a violation of a building regulation, statute, or ordinance.
Added as art. 18.011 by Acts 1969, 61st Leg., p. 1623, ch. 502, Sec. 1, eff. Sept. 1, 1969. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1989, 71st Leg., ch. 382, Sec. 1, eff. Aug. 28, 1989.Amended by: Acts 2007, 80th Leg., R.S., Ch. 769, Sec. 1, eff. September 1, 2007.
Art. 18.06. EXECUTION OF WARRANTS. (a) A peace officer to whom a search warrant is delivered shall execute it without delay and forthwith return it to the proper magistrate. It must be executed within three days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the magistrate.(b) On searching the place ordered to be searched, the officer executing the warrant shall present a copy of the warrant to the owner of the place, if he is present. If the owner of the place is not present but a person who is present is in possession of the place, the officer shall present a copy of the warrant to the person. Before the officer takes property from the place, he shall prepare a written inventory of the property to be taken. He shall legibly endorse his name on the inventory and present a copy of the inventory to the owner or other person in possession of the property. If neither the owner nor a person in possession of the property is present when the officer executes the warrant, the officer shall leave a copy of the warrant and the inventory at the place.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 2, eff. Sept. 1, 1981.
Art. 18.07. DAYS ALLOWED FOR WARRANT TO RUN. (a) The time allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is:(1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples; or(2) three whole days if the warrant is issued for a purpose other than that described by Subdivision (1).(b) The magistrate issuing a search warrant under this chapter shall endorse on the search warrant the date and hour of its issuance.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.Amended by: Acts 2009, 81st Leg., R.S., Ch. 761, Sec. 1, eff. September 1, 2009.
Art. 18.08. POWER OF OFFICER EXECUTING WARRANT. In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.09. 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. For purposes of this chapter, "seizure," in the context of property, means the restraint of property, whether by physical force or by a display of an officer's authority, and includes the collection of property or the act of taking possession of property.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.Amended by: Acts 2005, 79th Leg., Ch. 1026, Sec. 2, eff. September 1, 2005.
Art. 18.095. SEIZURE OF CIRCUIT BOARD OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA. For purposes of this chapter, an officer directed under a search warrant to search for and seize a gambling device or equipment, altered gambling equipment, or gambling paraphernalia in the discretion of the officer may:(1) seize only the programmable main circuit board of the device, equipment, or paraphernalia if that circuit board is designed as a subassembly or essential part of the device, equipment, or paraphernalia to provide the information necessary for the device, equipment, or paraphernalia to operate as a gambling device or equipment, altered gambling equipment, or gambling paraphernalia;(2) carry the circuit board before the magistrate; and(3) retain custody of the circuit board as the property seized pursuant to the warrant as required under this chapter.
Added by Acts 2009, 81st Leg., R.S., Ch. 898, Sec. 1, eff. September 1, 2009.
Art. 18.10. HOW RETURN MADE. Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 3, eff. Sept. 1, 1981.
Art. 18.11. CUSTODY OF PROPERTY FOUND. Property seized pursuant to a search warrant shall be kept as provided by the order of a magistrate issued in accordance with Article 18.10 of this code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 4, eff. Sept. 1, 1981.
Art. 18.12. MAGISTRATE SHALL INVESTIGATE. The magistrate, upon the return of a search warrant, shall proceed to try the questions arising upon the same, and shall take testimony as in other examinations before him.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.13. SHALL DISCHARGE DEFENDANT. If the magistrate be not satisfied, upon investigation, that there was good ground for the issuance of the warrant, he shall discharge the defendant and order restitution of the property taken from him, except for criminal instruments. In such case, the criminal instruments shall be kept by the sheriff subject to the order of the proper court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.14. EXAMINING TRIAL. The magistrate shall proceed to deal with the accused as in other cases before an examining court if he is satisfied there was good ground for issuing the warrant.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.15. CERTIFY RECORD TO PROPER COURT. The magistrate shall keep a record of all the proceedings had before him in cases of search warrants, and shall certify the same and deliver them to the clerk of the court having jurisdiction of the case, before the next term of said court, and accompany the same with all the original papers relating thereto, including the certified schedule of the property seized.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.16. PREVENTING CONSEQUENCES OF THEFT. Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 2001, 77th Leg., ch. 109, Sec. 2, eff. Sept. 1, 2001.
Art. 18.17. DISPOSITION OF ABANDONED OR UNCLAIMED PROPERTY. (a) All unclaimed or abandoned personal property of every kind, other than contraband subject to forfeiture under Chapter 59 of this code and whiskey, wine and beer, seized by any peace officer in the State of Texas which is not held as evidence to be used in any pending case and has not been ordered destroyed or returned to the person entitled to possession of the same by a magistrate, which shall remain unclaimed for a period of 30 days shall be delivered for disposition to a person designated by the municipality or the purchasing agent of the county in which the property was seized. If a peace officer of a municipality seizes the property, the peace officer shall deliver the property to a person designated by the municipality. If any other peace officer seizes the property, the peace officer shall deliver the property to the purchasing agent of the county. If the county has no purchasing agent, then such property shall be disposed of by the sheriff of the county.(b) The county purchasing agent, the person designated by the municipality, or the sheriff of the county, as the case may be, shall mail a notice to the last known address of the owner of such property by certified mail. Such notice shall describe the property being held, give the name and address of the officer holding such property, and shall state that if the owner does not claim such property within 90 days from the date of the notice such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of the disposition, placed in the treasury of the municipality or county giving the notice.(c) If the property has a fair market value of $500 or more and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff, as the case may be, shall cause to be published once in a paper of general circulation in the municipality or county a notice containing a general description of the property held, the name of the owner if known, the name and address of the officer holding such property, and a statement that if the owner does not claim such property within 90 days from the date of the publication such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of the disposition, placed in the treasury of the municipality or county disposing of the property. If the property has a fair market value of less than $500 and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff may sell or donate the property. The person designated by the municipality, the purchasing agent, or the sheriff shall deposit the sale proceeds, after deducting the reasonable expense of keeping the property and costs of the sale, in the treasury of the municipality or county selling or donating the property.(d) The sale under this article of any property that has a fair market value of $500 or more shall be preceded by a notice published once at least 14 days prior to the date of such sale in a newspaper of general circulation in the municipality or county where the sale is to take place, stating the general description of the property, the names of the owner if known, and the date and place that such sale will occur. This article does not require disposition by sale.(e) The real owner of any property disposed of shall have the right to file a claim to the proceeds with the commissioners court of the county or with the governing body of the municipality in which the disposition took place. A claim by the real owner must be filed not later than the 30th day after the date of disposition. If the claim is allowed by the commissioners court or the governing body of the municipality, the municipal or county treasurer shall pay the owner such funds as were paid into the treasury of the municipality or county as proceeds of the disposition. If the claim is denied by the commissioners court or the governing body or if said court or body fails to act upon such claim within 90 days, the claimant may sue the municipal or county treasurer in a court of competent jurisdiction in the county, and upon sufficient proof of ownership, recover judgment against such municipality or county for the recovery of the proceeds of the disposition.(f) For the purposes of this article:(1) "Person designated by a municipality" means an officer or employee of a municipality who is designated by the municipality to be primarily responsible for the disposition of property under this article.(2) "Property held as evidence" means property related to a charge that has been filed or to a matter that is being investigated for the filing of a charge.(g) If the provisions of this section have been met and the property is scheduled for disposition, the municipal or county law enforcement agency that originally seized the property may request and have the property converted to agency use. The agency at any time may transfer the property to another municipal or county law enforcement agency for the use of that agency. The agency last using the property shall return the property to the person designated by the municipality, county purchasing agent, or sheriff, as the case may be, for disposition when the agency has completed the intended use of the property.(h) If the abandoned or unclaimed personal property is money, the person designated by the municipality, the county purchasing agent, or the sheriff of the county, as appropriate, may, after giving notice under Subsection (b) or (c) of this article, deposit the money in the treasury of the municipality or county giving notice without conducting the sale as required by Subsection (d) of this article.(i) While offering the property for sale under this article, if a person designated by a municipality, county purchasing agent, or sheriff considers any bid as insufficient, the person, agent, or sheriff may decline the bid and reoffer the property for sale.(j) Chapters 72, 74, 75, and 76, Property Code, do not apply to unclaimed or abandoned property to which this article applies.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1737, ch. 659, Sec. 15, eff. Aug. 27, 1967; Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1987, 70th Leg., ch. 1002, Sec. 1, eff. Sept. 1, 1987; Subsec. (a) amended by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 4, eff. Oct. 18, 1989; Subsec. (g) amended by Acts 1991, 72nd Leg., ch. 254, Sec. 1, eff. June 5, 1991. Amended by Acts 1993, 73rd Leg., ch. 157, Sec. 1, eff. Sept. 1, 1993; Subsecs. (c), (d) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 3, eff. May 28, 1993; Subsec. (f) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 2, eff. May 28, 1993; Subsec. (h) added by Acts 1993, 73rd Leg., ch. 321, Sec. 1, eff. May 28, 1993; Subsec. (i) added by Acts 1993, 73rd Leg., ch. 321, Sec. 4, eff. May 28, 1993; Subsec. (c) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.01, eff. Sept. 1, 1995; Subsec. (d) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.02, eff. Sept. 1, 1995; Subsec. (f) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.03, eff. Sept. 1, 1995; Subsec. (h) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.04, eff. Sept. 1, 1995; Subsec. (i) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.05, eff. Sept. 1, 1995; Subsec. (j) added by Acts 2001, 77th Leg., ch. 402, Sec. 18, eff. Sept. 1, 2001.
Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRABAND. (a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, for an offense involving an obscene device or material, for an offense involving child pornography, or for an offense involving a scanning device or re-encoder, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material, child pornography, or scanning device or re-encoder be destroyed or forfeited to the state. Not later than the 30th day after the final conviction of a person for an offense involving a prohibited weapon, the court entering the judgment of conviction on its own motion, on the motion of the prosecuting attorney in the case, or on the motion of the law enforcement agency initiating the complaint on notice to the prosecuting attorney in the case if the prosecutor fails to move for the order shall order that the prohibited weapon be destroyed or forfeited to the law enforcement agency that initiated the complaint. If the court fails to enter the order within the time required by this subsection, any magistrate in the county in which the offense occurred may enter the order. Following the final conviction of a person for an offense involving dog fighting, the court entering the judgment of conviction shall order that any dog-fighting equipment be destroyed or forfeited to the state. Destruction of dogs, if necessary, must be carried out by a veterinarian licensed in this state or, if one is not available, by trained personnel of a humane society or an animal shelter. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency.(b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re-encoder, criminal instrument, or dog-fighting equipment to show cause why the property seized should not be destroyed or the proceeds forfeited. The magistrate, on the motion of the law enforcement agency seizing a prohibited weapon, shall order the weapon destroyed or forfeited to the law enforcement agency seizing the weapon, unless a person shows cause as to why the prohibited weapon should not be destroyed or forfeited. A law enforcement agency shall make a motion under this section in a timely manner after the time at which the agency is informed in writing by the attorney representing the state that no prosecution will arise from the seizure.(c) The magistrate shall include in the notice a detailed description of the property seized and the total amount of alleged gambling proceeds; the name of the person found in possession; the address where the property or proceeds were seized; and the date and time of the seizure.(d) The magistrate shall send the notice by registered or certified mail, return receipt requested, to the person found in possession at the address where the property or proceeds were seized. If no one was found in possession, or the possessor's address is unknown, the magistrate shall post the notice on the courthouse door.(e) Any person interested in the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re-encoder, criminal instrument, or dog-fighting equipment seized must appear before the magistrate on the 20th day following the date the notice was mailed or posted. Failure to timely appear forfeits any interest the person may have in the property or proceeds seized, and no person after failing to timely appear may contest destruction or forfeiture.(f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, obscene device or material, child pornography, criminal instrument, scanning device or re-encoder, or dog-fighting equipment and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.(g) For purposes of this article:(1) "criminal instrument" has the meaning defined in the Penal Code;(2) "gambling device or equipment, altered gambling equipment or gambling paraphernalia" has the meaning defined in the Penal Code;(3) "prohibited weapon" has the meaning defined in the Penal Code;(4) "dog-fighting equipment" means:(A) equipment used for training or handling a fighting dog, including a harness, treadmill, cage, decoy, pen, house for keeping a fighting dog, feeding apparatus, or training pen;(B) equipment used for transporting a fighting dog, including any automobile, or other vehicle, and its appurtenances which are intended to be used as a vehicle for transporting a fighting dog;(C) equipment used to promote or advertise an exhibition of dog fighting, including a printing press or similar equipment, paper, ink, or photography equipment; or(D) a dog trained, being trained, or intended to be used to fight with another dog;(5) "obscene device" and "obscene" have the meanings assigned by Section 43.21, Penal Code;(6) "re-encoder" has the meaning assigned by Section 522.001, Business & Commerce Code;(7) "scanning device" has the meaning assigned by Section 522.001, Business & Commerce Code; and(8) "obscene material" and "child pornography" include digital images and the media and equipment on which those images are stored.(h) No provider of an electronic communication service or of a remote computing service to the public shall be held liable for an offense involving obscene material or child pornography under this section on account of any action taken in good faith in providing that service.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 986, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Subsecs. (a), (b), (e), (f), (g) amended by Acts 1983, 68th Leg., pp. 1611, ch. 305, Sec. 2, 3, eff. Sept. 1, 1983. Amended by Acts 1983, 68th Leg., p. 1899, ch. 351, Sec. 1, eff. Sept. 1, 1983; Subsec. (a) amended by Acts 1987, 70th Leg., ch. 980, Sec. 1, eff. Sept. 1, 1987; Subsecs. (g)(4), (g)(6) amended by Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(6), eff. Sept. 1, 1987; Subsecs. (a), (b) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 2, eff. Sept. 1, 1993; Subsecs. (f), (g) amended by Acts 2003, 78th Leg., ch. 441, Sec. 1, eff. Sept. 1, 2003; Subsecs. (a), (b), (e), (f), (g) amended by Acts 2003, 78th Leg., ch. 649, Sec. 2, eff. Sept. 1, 2003.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. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.DefinitionsSec. 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. (2) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.(3) "Intercept" means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device.(4) "Electronic, mechanical, or other device" means a device that may be used for the nonconsensual interception of wire, oral, or electronic communications. The term does not include a telephone or telegraph instrument, the equipment or a facility used for the transmission of electronic communications, or a component of the equipment or a facility used for the transmission of electronic communications if the instrument, equipment, facility, or component is:(A) furnished to the subscriber or user by a provider of wire or electronic communications service in the ordinary course of the provider's business and being used by the subscriber or user in the ordinary course of its business;(B) furnished by a subscriber or user for connection to the facilities of a wire or electronic communications service for use in the ordinary course of the subscriber's or user's business;(C) being used by a communications common carrier in the ordinary course of its business; or(D) being used by an investigative or law enforcement officer in the ordinary course of the officer's duties.(5) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in Section 4 of this article or an attorney authorized by law to prosecute or participate in the prosecution of the enumerated offenses.(6) "Contents," when used with respect to a wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.(7) "Judge of competent jurisdiction" means a judge from the panel of nine active district judges with criminal jurisdiction appointed by the presiding judge of the court of criminal appeals as provided by Section 3 of this article.(8) "Prosecutor" means a district attorney, criminal district attorney, or county attorney performing the duties of a district attorney, with jurisdiction in the county within an administrative judicial district described by Section 3(b).(9) "Director" means the director of the Department of Public Safety or, if the director is absent or unable to serve, the assistant director of the Department of Public Safety.(10) "Communication common carrier" means a person engaged as a common carrier for hire in the transmission of wire or electronic communications.(11) "Aggrieved person" means a person who was a party to an intercepted wire, oral, or electronic communication or a person against whom the interception was directed.(12) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this Act, would be a violation of the Penal Code.(13) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence.(14) "Pen register," "ESN reader," "trap and trace device," and "mobile tracking device" have the meanings assigned by Article 18.21.(15) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term does not include:(A) a wire or oral communication;(B) a communication made through a tone-only paging device; or(C) a communication from a tracking device.(16) "User" means a person who uses an electronic communications service and is authorized by the provider of the service to use the service.(17) "Electronic communications system" means a wire, radio, electromagnetic, photo-optical or photoelectronic facility for the transmission of wire or electronic communications, and any computer facility or related electronic equipment for the electronic storage of those communications.(18) "Electronic communications service" means a service that provides to users of the service the ability to send or receive wire or electronic communications.(19) "Readily accessible to the general public" means, with respect to a radio communication, a communication that is not:(A) scrambled or encrypted;(B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission;(D) transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication;(E) transmitted on frequencies allocated under Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio; or(F) an electronic communication.(20) "Electronic storage" means:(A) a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication; or(B) storage of a wire or electronic communication by an electronic communications service for purposes of backup protection of the communication.(21) "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception.(22) "Immediate life-threatening situation" means a hostage, barricade, or other emergency situation in which a person unlawfully and directly:(A) threatens another with death; or(B) exposes another to a substantial risk of serious bodily injury.(23) "Member of a law enforcement unit specially trained to respond to and deal with life-threatening situations" means a peace officer who, 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 CommunicationsSec. 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 ApplicationsSec. 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 485.032, 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;(6) an offense under Section 38.11, Penal Code; or(7) an attempt, conspiracy, or solicitation to commit an offense listed in this section.Control of Intercepting DevicesSec. 5. (a) Except as otherwise provided by this section and Sections 8A and 8B, 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.(c) The Texas Department of Criminal Justice may own electronic, mechanical, or other devices for a use or purpose authorized by Section 500.008, Government Code, and the inspector general of the Texas Department of Criminal Justice, a commissioned officer of that office, or another person acting in the presence and under the direction of a commissioned officer of that office may possess, install, operate, or monitor those devices as provided by Section 500.008.(d) The Texas Youth Commission may own electronic, mechanical, or other devices for a use or purpose authorized by Section 61.0455, Human Resources Code, and the inspector general of the Texas Youth Commission, a commissioned officer of that office, or another person acting in the presence and under the direction of a commissioned officer of that office may possess, install, operate, or monitor those devices as provided by Section 61.0455.Request for Application for InterceptionSec. 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 CommunicationsSec. 7. (a) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may disclose the contents or evidence to another investigative or law enforcement officer, including a federal law enforcement officer or agent or a law enforcement officer or agent of another state, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.(b) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may use the contents or evidence to the extent the use is appropriate to the proper performance of his official duties.(c) A person who receives, by any means authorized by this article, information concerning a wire, oral, or electronic communication or evidence derived from a communication intercepted in accordance with the provisions of this article may disclose the contents of that communication or the derivative evidence while giving testimony under oath in any proceeding held under the authority of the United States, of this state, or of a political subdivision of this state.(d) An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character and any evidence derived from such privileged communication against the party to the privileged communication shall be considered privileged also.(e) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in a manner authorized by this article, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization, the contents of and evidence derived from the communication may be disclosed or used as provided by Subsections (a) and (b) of this section. Such contents and any evidence derived therefrom may be used under Subse
CODE OF CRIMINAL PROCEDURETITLE 1. CODE OF CRIMINAL PROCEDURECHAPTER 18. SEARCH WARRANTSArt. 18.01. 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. Except as provided by Article 18.011, 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 under Article 18.02(10) unless the sworn affidavit required by Subsection (b) 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), (i), and (j), only a judge of a municipal court of record or a county court who is an attorney licensed by the State of Texas, a statutory county court judge, a district court judge, a judge of the Court of Criminal Appeals, including the presiding judge, or a justice of the Supreme Court of Texas, including the chief justice, may issue warrants under Article 18.02(10).(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 that does not have a judge of a municipal court of record who is an attorney licensed by the state, a county court judge who is an attorney licensed by the state, or a statutory county court judge, any magistrate may issue a search warrant under Subdivision (10) or Subdivision (12) of Article 18.02 of this code. This subsection is not applicable to a subsequent search warrant under Subdivision (10) of Article 18.02 of this code.(j) Any magistrate who is an attorney licensed by this state may issue a search warrant under Article 18.02(10) to collect a blood specimen from a person who:(1) is arrested for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, Penal Code; and(2) refuses to submit to a breath or blood alcohol test.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 1, eff. May 25, 1977.
Sec. (c) amended by Acts 1979, 66th Leg., p. 1124, ch. 536, Sec. 1, eff. June 11, 1979; Sec. (e) added by Acts 1979, 66th Leg., p. 1076, ch. 505, Sec. 1, eff. Sept. 1, 1979; Sec. (a) amended by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 3, eff. Sept. 1, 1981; Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 1, eff. Sept. 1, 1981; Sec. (f) added by Acts 1981, 67th Leg., p. 759, ch. 289, Sec. 4, eff. Sept. 1, 1981; Sec. (c) amended by Acts 1987, 70th Leg., ch. 686, Sec. 1, eff. Sept. 1, 1987; Secs. (g) and (h) added by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 2, eff. Oct. 18, 1989; Secs. (c), (h) amended by and Sec. (i) added by Acts 1991, 72nd Leg., ch. 73, Sec. 1, eff. May 9, 1991; Secs. (c), (d), (i) amended by Acts 1995, 74th Leg., ch. 670, Sec. 1, eff. Sept. 1, 1995; Subsecs. (c), (h) amended by Acts 1997, 75th Leg., ch. 604, Sec. 1, eff. Sept. 1, 1997; Subsec. (b) amended by Acts 1999, 76th Leg., ch. 167, Sec. 1, eff. Aug. 30, 1999; Subsec. (d) amended by Acts 1999, 76th Leg., ch. 1469, Sec. 1, eff. June 19, 1999; Subsec. (i) amended by Acts 2001, 77th Leg., ch. 1395, Sec. 1, eff. June 16, 2001.Amended by: Acts 2007, 80th Leg., R.S., Ch. 355, Sec. 1, eff. September 1, 2007.Acts 2007, 80th Leg., R.S., Ch. 748, Sec. 1, eff. September 1, 2007.Acts 2009, 81st Leg., R.S., Ch. 1348, Sec. 5, eff. September 1, 2009.
Art. 18.011. SEALING OF AFFIDAVIT. (a) An attorney representing the state in the prosecution of felonies may request a district judge or the judge of an appellate court to seal an affidavit presented under Article 18.01(b). The judge may order the affidavit sealed if the attorney establishes a compelling state interest in that:(1) public disclosure of the affidavit would jeopardize the safety of a victim, witness, or confidential informant or cause the destruction of evidence; or(2) the affidavit contains information obtained from a court-ordered wiretap that has not expired at the time the attorney representing the state requests the sealing of the affidavit.(b) An order sealing an affidavit under this section expires on the 31st day after the date on which the search warrant for which the affidavit was presented is executed. After an original order sealing an affidavit is issued under this article, an attorney representing the state in the prosecution of felonies may request, and a judge may grant, before the 31st day after the date on which the search warrant for which the affidavit was presented is executed, on a new finding of compelling state interest, one 30-day extension of the original order.(c) On the expiration of an order issued under Subsection (b) and any extension, the affidavit must be unsealed.(d) An order issued under this section may not:(1) prohibit the disclosure of information relating to the contents of a search warrant, the return of a search warrant, or the inventory of property taken pursuant to a search warrant; or(2) affect the right of a defendant to discover the contents of an affidavit.
Added by Acts 2007, 80th Leg., R.S., Ch. 355, Sec. 2, eff. September 1, 2007.
Art. 18.02. GROUNDS FOR ISSUANCE. A search warrant may be issued to search for and seize:(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;(3) arms and munitions kept or prepared for the purposes of insurrection or riot;(4) weapons prohibited by the Penal Code;(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;(7) a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state;(8) any property the possession of which is prohibited by law;(9) implements or instruments used in the commission of a crime;(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense;(11) persons; or(12) contraband subject to forfeiture under Chapter 59 of this code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 982, ch. 399, Sec. 2(E), eff. Jan. 1, 1974; Acts 1977, 65th Leg., p. 640, ch. 237, Sec. 2, eff. May 25, 1977; Amended by Acts 1981, 67th Leg., p. 2790, ch. 755, Sec. 5, eff. Sept. 1, 1981; Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 3, eff. Oct. 18, 1989; Acts 2003, 78th Leg., ch. 1099, Sec. 16, eff. Sept. 1, 2003.
Art. 18.021. ISSUANCE OF SEARCH WARRANT TO PHOTOGRAPH INJURED CHILD. (a) A search warrant may be issued to search for and photograph a child who is alleged to be the victim of the offenses of injury to a child as prohibited by Section 22.04, Penal Code; sexual assault of a child as prohibited by Section 22.011(a), Penal Code; aggravated sexual assault of a child as prohibited by Section 22.021, Penal Code; or continuous sexual abuse of young child or children as prohibited by Section 21.02, Penal Code.(b) The officer executing the warrant may be accompanied by a photographer who is employed by a law enforcement agency and who acts under the direction of the officer executing the warrant. The photographer is entitled to access to the child in the same manner as the officer executing the warrant.(c) In addition to the requirements of Subdivisions (1) and (4) of Article 18.04 of this code, a warrant issued under this article shall identify, as near as may be, the child to be located and photographed, shall name or describe, as near as may be, the place or thing to be searched, and shall command any peace officer of the proper county to search for and cause the child to be photographed.(d) After having located and photographed the child, the peace officer executing the warrant shall take possession of the exposed film and deliver it forthwith to the magistrate. The child may not be removed from the premises on which he or she is located except under Subchapters A and B, Chapter 262, Family Code.(e) A search warrant under this section shall be executed by a peace officer of the same sex as the alleged victim or, if the officer is not of the same sex as the alleged victim, the peace officer must be assisted by a person of the same sex as the alleged victim. The person assisting an officer under this subsection must be acting under the direction of the officer and must be with the alleged victim during the taking of the photographs.
Added by Acts 1981, 67th Leg., p. 758, ch. 289, Sec. 2, eff. Sept. 1, 1981. Subsec. (a) amended by Acts 1983, 68th Leg., p. 5319, ch. 977, Sec. 8, eff. Sept. 1, 1983; Subsec. (d) amended by Acts 1997, 75th Leg., ch. 165, Sec. 7.01, eff. Sept. 1, 1997.Amended by: Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.11, eff. September 1, 2007.
Art. 18.03. SEARCH WARRANT MAY ORDER ARREST. If the facts presented to the magistrate under Article 18.02 of this chapter also establish the existence of probable cause that a person has committed some offense under the laws of this state, the search warrant may, in addition, order the arrest of such person.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.04. CONTENTS OF WARRANT. A search warrant issued under this chapter shall be sufficient if it contains the following requisites:(1) that it run in the name of "The State of Texas";(2) that it identify, as near as may be, that which is to be seized and name or describe, as near as may be, the person, place, or thing to be searched;(3) that it command any peace officer of the proper county to search forthwith the person, place, or thing named; and(4) that it be dated and signed by the magistrate.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.05. WARRANTS FOR FIRE, HEALTH, AND CODE INSPECTIONS. (a) Except as provided by Subsection (e) of this article, a search warrant may be issued to a 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 or more code enforcement officials 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 not more than one code enforcement official for the purpose of being issued a search warrant as authorized by Subsection (a) of this article only if the political subdivision routinely inspects premises to determine whether there is a fire or health hazard or unsafe building condition or a violation of fire, health, or building regulation, statute, or ordinance.(e) A search warrant may not be issued under this article to a code enforcement official of a county with a population of 2.4 million or more for the purpose of allowing the inspection of specified premises to determine the presence of an unsafe building condition or a violation of a building regulation, statute, or ordinance.
Added as art. 18.011 by Acts 1969, 61st Leg., p. 1623, ch. 502, Sec. 1, eff. Sept. 1, 1969. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1989, 71st Leg., ch. 382, Sec. 1, eff. Aug. 28, 1989.Amended by: Acts 2007, 80th Leg., R.S., Ch. 769, Sec. 1, eff. September 1, 2007.
Art. 18.06. EXECUTION OF WARRANTS. (a) A peace officer to whom a search warrant is delivered shall execute it without delay and forthwith return it to the proper magistrate. It must be executed within three days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the magistrate.(b) On searching the place ordered to be searched, the officer executing the warrant shall present a copy of the warrant to the owner of the place, if he is present. If the owner of the place is not present but a person who is present is in possession of the place, the officer shall present a copy of the warrant to the person. Before the officer takes property from the place, he shall prepare a written inventory of the property to be taken. He shall legibly endorse his name on the inventory and present a copy of the inventory to the owner or other person in possession of the property. If neither the owner nor a person in possession of the property is present when the officer executes the warrant, the officer shall leave a copy of the warrant and the inventory at the place.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 983, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Sec. (b) amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 2, eff. Sept. 1, 1981.
Art. 18.07. DAYS ALLOWED FOR WARRANT TO RUN. (a) The time allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution, is:(1) 15 whole days if the warrant is issued solely to search for and seize specimens from a specific person for DNA analysis and comparison, including blood and saliva samples; or(2) three whole days if the warrant is issued for a purpose other than that described by Subdivision (1).(b) The magistrate issuing a search warrant under this chapter shall endorse on the search warrant the date and hour of its issuance.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.Amended by: Acts 2009, 81st Leg., R.S., Ch. 761, Sec. 1, eff. September 1, 2009.
Art. 18.08. POWER OF OFFICER EXECUTING WARRANT. In the execution of a search warrant, the officer may call to his aid any number of citizens in this county, who shall be bound to aid in the execution of the same.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.09. 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. For purposes of this chapter, "seizure," in the context of property, means the restraint of property, whether by physical force or by a display of an officer's authority, and includes the collection of property or the act of taking possession of property.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.Amended by: Acts 2005, 79th Leg., Ch. 1026, Sec. 2, eff. September 1, 2005.
Art. 18.095. SEIZURE OF CIRCUIT BOARD OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA. For purposes of this chapter, an officer directed under a search warrant to search for and seize a gambling device or equipment, altered gambling equipment, or gambling paraphernalia in the discretion of the officer may:(1) seize only the programmable main circuit board of the device, equipment, or paraphernalia if that circuit board is designed as a subassembly or essential part of the device, equipment, or paraphernalia to provide the information necessary for the device, equipment, or paraphernalia to operate as a gambling device or equipment, altered gambling equipment, or gambling paraphernalia;(2) carry the circuit board before the magistrate; and(3) retain custody of the circuit board as the property seized pursuant to the warrant as required under this chapter.
Added by Acts 2009, 81st Leg., R.S., Ch. 898, Sec. 1, eff. September 1, 2009.
Art. 18.10. HOW RETURN MADE. Upon returning the search warrant, the officer shall state on the back of the same, or on some paper attached to it, the manner in which it has been executed and shall likewise deliver to the magistrate a copy of the inventory of the property taken into his possession under the warrant. The officer who seized the property shall retain custody of it until the magistrate issues an order directing the manner of safekeeping the property. The property may not be removed from the county in which it was seized without an order approving the removal, issued by a magistrate in the county in which the warrant was issued; provided, however, nothing herein shall prevent the officer, or his department, from forwarding any item or items seized to a laboratory for scientific analysis.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 3, eff. Sept. 1, 1981.
Art. 18.11. CUSTODY OF PROPERTY FOUND. Property seized pursuant to a search warrant shall be kept as provided by the order of a magistrate issued in accordance with Article 18.10 of this code.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1981, 67th Leg., p. 2789, ch. 755, Sec. 4, eff. Sept. 1, 1981.
Art. 18.12. MAGISTRATE SHALL INVESTIGATE. The magistrate, upon the return of a search warrant, shall proceed to try the questions arising upon the same, and shall take testimony as in other examinations before him.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.13. SHALL DISCHARGE DEFENDANT. If the magistrate be not satisfied, upon investigation, that there was good ground for the issuance of the warrant, he shall discharge the defendant and order restitution of the property taken from him, except for criminal instruments. In such case, the criminal instruments shall be kept by the sheriff subject to the order of the proper court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.14. EXAMINING TRIAL. The magistrate shall proceed to deal with the accused as in other cases before an examining court if he is satisfied there was good ground for issuing the warrant.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 984, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.15. CERTIFY RECORD TO PROPER COURT. The magistrate shall keep a record of all the proceedings had before him in cases of search warrants, and shall certify the same and deliver them to the clerk of the court having jurisdiction of the case, before the next term of said court, and accompany the same with all the original papers relating thereto, including the certified schedule of the property seized.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Art. 18.16. PREVENTING CONSEQUENCES OF THEFT. Any person has a right to prevent the consequences of theft by seizing any personal property that has been stolen and bringing it, with the person suspected of committing the theft, if that person can be taken, before a magistrate for examination, or delivering the property and the person suspected of committing the theft to a peace officer for that purpose. To justify a seizure under this article, there must be reasonable ground to believe the property is stolen, and the seizure must be openly made and the proceedings had without delay.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 2001, 77th Leg., ch. 109, Sec. 2, eff. Sept. 1, 2001.
Art. 18.17. DISPOSITION OF ABANDONED OR UNCLAIMED PROPERTY. (a) All unclaimed or abandoned personal property of every kind, other than contraband subject to forfeiture under Chapter 59 of this code and whiskey, wine and beer, seized by any peace officer in the State of Texas which is not held as evidence to be used in any pending case and has not been ordered destroyed or returned to the person entitled to possession of the same by a magistrate, which shall remain unclaimed for a period of 30 days shall be delivered for disposition to a person designated by the municipality or the purchasing agent of the county in which the property was seized. If a peace officer of a municipality seizes the property, the peace officer shall deliver the property to a person designated by the municipality. If any other peace officer seizes the property, the peace officer shall deliver the property to the purchasing agent of the county. If the county has no purchasing agent, then such property shall be disposed of by the sheriff of the county.(b) The county purchasing agent, the person designated by the municipality, or the sheriff of the county, as the case may be, shall mail a notice to the last known address of the owner of such property by certified mail. Such notice shall describe the property being held, give the name and address of the officer holding such property, and shall state that if the owner does not claim such property within 90 days from the date of the notice such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of the disposition, placed in the treasury of the municipality or county giving the notice.(c) If the property has a fair market value of $500 or more and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff, as the case may be, shall cause to be published once in a paper of general circulation in the municipality or county a notice containing a general description of the property held, the name of the owner if known, the name and address of the officer holding such property, and a statement that if the owner does not claim such property within 90 days from the date of the publication such property will be disposed of and the proceeds, after deducting the reasonable expense of keeping such property and the costs of the disposition, placed in the treasury of the municipality or county disposing of the property. If the property has a fair market value of less than $500 and the owner or the address of the owner is unknown, the person designated by the municipality, the county purchasing agent, or the sheriff may sell or donate the property. The person designated by the municipality, the purchasing agent, or the sheriff shall deposit the sale proceeds, after deducting the reasonable expense of keeping the property and costs of the sale, in the treasury of the municipality or county selling or donating the property.(d) The sale under this article of any property that has a fair market value of $500 or more shall be preceded by a notice published once at least 14 days prior to the date of such sale in a newspaper of general circulation in the municipality or county where the sale is to take place, stating the general description of the property, the names of the owner if known, and the date and place that such sale will occur. This article does not require disposition by sale.(e) The real owner of any property disposed of shall have the right to file a claim to the proceeds with the commissioners court of the county or with the governing body of the municipality in which the disposition took place. A claim by the real owner must be filed not later than the 30th day after the date of disposition. If the claim is allowed by the commissioners court or the governing body of the municipality, the municipal or county treasurer shall pay the owner such funds as were paid into the treasury of the municipality or county as proceeds of the disposition. If the claim is denied by the commissioners court or the governing body or if said court or body fails to act upon such claim within 90 days, the claimant may sue the municipal or county treasurer in a court of competent jurisdiction in the county, and upon sufficient proof of ownership, recover judgment against such municipality or county for the recovery of the proceeds of the disposition.(f) For the purposes of this article:(1) "Person designated by a municipality" means an officer or employee of a municipality who is designated by the municipality to be primarily responsible for the disposition of property under this article.(2) "Property held as evidence" means property related to a charge that has been filed or to a matter that is being investigated for the filing of a charge.(g) If the provisions of this section have been met and the property is scheduled for disposition, the municipal or county law enforcement agency that originally seized the property may request and have the property converted to agency use. The agency at any time may transfer the property to another municipal or county law enforcement agency for the use of that agency. The agency last using the property shall return the property to the person designated by the municipality, county purchasing agent, or sheriff, as the case may be, for disposition when the agency has completed the intended use of the property.(h) If the abandoned or unclaimed personal property is money, the person designated by the municipality, the county purchasing agent, or the sheriff of the county, as appropriate, may, after giving notice under Subsection (b) or (c) of this article, deposit the money in the treasury of the municipality or county giving notice without conducting the sale as required by Subsection (d) of this article.(i) While offering the property for sale under this article, if a person designated by a municipality, county purchasing agent, or sheriff considers any bid as insufficient, the person, agent, or sheriff may decline the bid and reoffer the property for sale.(j) Chapters 72, 74, 75, and 76, Property Code, do not apply to unclaimed or abandoned property to which this article applies.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967, 60th Leg., p. 1737, ch. 659, Sec. 15, eff. Aug. 27, 1967; Acts 1973, 63rd Leg., p. 985, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Amended by Acts 1987, 70th Leg., ch. 1002, Sec. 1, eff. Sept. 1, 1987; Subsec. (a) amended by Acts 1989, 71st Leg., 1st C.S., ch. 12, Sec. 4, eff. Oct. 18, 1989; Subsec. (g) amended by Acts 1991, 72nd Leg., ch. 254, Sec. 1, eff. June 5, 1991. Amended by Acts 1993, 73rd Leg., ch. 157, Sec. 1, eff. Sept. 1, 1993; Subsecs. (c), (d) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 3, eff. May 28, 1993; Subsec. (f) amended by Acts 1993, 73rd Leg., ch. 321, Sec. 2, eff. May 28, 1993; Subsec. (h) added by Acts 1993, 73rd Leg., ch. 321, Sec. 1, eff. May 28, 1993; Subsec. (i) added by Acts 1993, 73rd Leg., ch. 321, Sec. 4, eff. May 28, 1993; Subsec. (c) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.01, eff. Sept. 1, 1995; Subsec. (d) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.02, eff. Sept. 1, 1995; Subsec. (f) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.03, eff. Sept. 1, 1995; Subsec. (h) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.04, eff. Sept. 1, 1995; Subsec. (i) amended by Acts 1995, 74th Leg., ch. 76, Sec. 3.05, eff. Sept. 1, 1995; Subsec. (j) added by Acts 2001, 77th Leg., ch. 402, Sec. 18, eff. Sept. 1, 2001.
Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA, PROHIBITED WEAPON, CRIMINAL INSTRUMENT, AND OTHER CONTRABAND. (a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, for an offense involving an obscene device or material, for an offense involving child pornography, or for an offense involving a scanning device or re-encoder, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, obscene device or material, child pornography, or scanning device or re-encoder be destroyed or forfeited to the state. Not later than the 30th day after the final conviction of a person for an offense involving a prohibited weapon, the court entering the judgment of conviction on its own motion, on the motion of the prosecuting attorney in the case, or on the motion of the law enforcement agency initiating the complaint on notice to the prosecuting attorney in the case if the prosecutor fails to move for the order shall order that the prohibited weapon be destroyed or forfeited to the law enforcement agency that initiated the complaint. If the court fails to enter the order within the time required by this subsection, any magistrate in the county in which the offense occurred may enter the order. Following the final conviction of a person for an offense involving dog fighting, the court entering the judgment of conviction shall order that any dog-fighting equipment be destroyed or forfeited to the state. Destruction of dogs, if necessary, must be carried out by a veterinarian licensed in this state or, if one is not available, by trained personnel of a humane society or an animal shelter. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency.(b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re-encoder, criminal instrument, or dog-fighting equipment to show cause why the property seized should not be destroyed or the proceeds forfeited. The magistrate, on the motion of the law enforcement agency seizing a prohibited weapon, shall order the weapon destroyed or forfeited to the law enforcement agency seizing the weapon, unless a person shows cause as to why the prohibited weapon should not be destroyed or forfeited. A law enforcement agency shall make a motion under this section in a timely manner after the time at which the agency is informed in writing by the attorney representing the state that no prosecution will arise from the seizure.(c) The magistrate shall include in the notice a detailed description of the property seized and the total amount of alleged gambling proceeds; the name of the person found in possession; the address where the property or proceeds were seized; and the date and time of the seizure.(d) The magistrate shall send the notice by registered or certified mail, return receipt requested, to the person found in possession at the address where the property or proceeds were seized. If no one was found in possession, or the possessor's address is unknown, the magistrate shall post the notice on the courthouse door.(e) Any person interested in the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, obscene device or material, child pornography, scanning device or re-encoder, criminal instrument, or dog-fighting equipment seized must appear before the magistrate on the 20th day following the date the notice was mailed or posted. Failure to timely appear forfeits any interest the person may have in the property or proceeds seized, and no person after failing to timely appear may contest destruction or forfeiture.(f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, obscene device or material, child pornography, criminal instrument, scanning device or re-encoder, or dog-fighting equipment and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.(g) For purposes of this article:(1) "criminal instrument" has the meaning defined in the Penal Code;(2) "gambling device or equipment, altered gambling equipment or gambling paraphernalia" has the meaning defined in the Penal Code;(3) "prohibited weapon" has the meaning defined in the Penal Code;(4) "dog-fighting equipment" means:(A) equipment used for training or handling a fighting dog, including a harness, treadmill, cage, decoy, pen, house for keeping a fighting dog, feeding apparatus, or training pen;(B) equipment used for transporting a fighting dog, including any automobile, or other vehicle, and its appurtenances which are intended to be used as a vehicle for transporting a fighting dog;(C) equipment used to promote or advertise an exhibition of dog fighting, including a printing press or similar equipment, paper, ink, or photography equipment; or(D) a dog trained, being trained, or intended to be used to fight with another dog;(5) "obscene device" and "obscene" have the meanings assigned by Section 43.21, Penal Code;(6) "re-encoder" has the meaning assigned by Section 522.001, Business & Commerce Code;(7) "scanning device" has the meaning assigned by Section 522.001, Business & Commerce Code; and(8) "obscene material" and "child pornography" include digital images and the media and equipment on which those images are stored.(h) No provider of an electronic communication service or of a remote computing service to the public shall be held liable for an offense involving obscene material or child pornography under this section on account of any action taken in good faith in providing that service.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973, 63rd Leg., p. 986, ch. 399, Sec. 2(E), eff. Jan. 1, 1974.
Subsecs. (a), (b), (e), (f), (g) amended by Acts 1983, 68th Leg., pp. 1611, ch. 305, Sec. 2, 3, eff. Sept. 1, 1983. Amended by Acts 1983, 68th Leg., p. 1899, ch. 351, Sec. 1, eff. Sept. 1, 1983; Subsec. (a) amended by Acts 1987, 70th Leg., ch. 980, Sec. 1, eff. Sept. 1, 1987; Subsecs. (g)(4), (g)(6) amended by Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(6), eff. Sept. 1, 1987; Subsecs. (a), (b) amended by Acts 1993, 73rd Leg., ch. 157, Sec. 2, eff. Sept. 1, 1993; Subsecs. (f), (g) amended by Acts 2003, 78th Leg., ch. 441, Sec. 1, eff. Sept. 1, 2003; Subsecs. (a), (b), (e), (f), (g) amended by Acts 2003, 78th Leg., ch. 649, Sec. 2, eff. Sept. 1, 2003.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. DETECTION, INTERCEPTION, AND USE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.DefinitionsSec. 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. (2) "Oral communication" means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.(3) "Intercept" means the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device.(4) "Electronic, mechanical, or other device" means a device that may be used for the nonconsensual interception of wire, oral, or electronic communications. The term does not include a telephone or telegraph instrument, the equipment or a facility used for the transmission of electronic communications, or a component of the equipment or a facility used for the transmission of electronic communications if the instrument, equipment, facility, or component is:(A) furnished to the subscriber or user by a provider of wire or electronic communications service in the ordinary course of the provider's business and being used by the subscriber or user in the ordinary course of its business;(B) furnished by a subscriber or user for connection to the facilities of a wire or electronic communications service for use in the ordinary course of the subscriber's or user's business;(C) being used by a communications common carrier in the ordinary course of its business; or(D) being used by an investigative or law enforcement officer in the ordinary course of the officer's duties.(5) "Investigative or law enforcement officer" means an officer of this state or of a political subdivision of this state who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in Section 4 of this article or an attorney authorized by law to prosecute or participate in the prosecution of the enumerated offenses.(6) "Contents," when used with respect to a wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.(7) "Judge of competent jurisdiction" means a judge from the panel of nine active district judges with criminal jurisdiction appointed by the presiding judge of the court of criminal appeals as provided by Section 3 of this article.(8) "Prosecutor" means a district attorney, criminal district attorney, or county attorney performing the duties of a district attorney, with jurisdiction in the county within an administrative judicial district described by Section 3(b).(9) "Director" means the director of the Department of Public Safety or, if the director is absent or unable to serve, the assistant director of the Department of Public Safety.(10) "Communication common carrier" means a person engaged as a common carrier for hire in the transmission of wire or electronic communications.(11) "Aggrieved person" means a person who was a party to an intercepted wire, oral, or electronic communication or a person against whom the interception was directed.(12) "Covert entry" means any entry into or onto premises which if made without a court order allowing such an entry under this Act, would be a violation of the Penal Code.(13) "Residence" means a structure or the portion of a structure used as a person's home or fixed place of habitation to which the person indicates an intent to return after any temporary absence.(14) "Pen register," "ESN reader," "trap and trace device," and "mobile tracking device" have the meanings assigned by Article 18.21.(15) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term does not include:(A) a wire or oral communication;(B) a communication made through a tone-only paging device; or(C) a communication from a tracking device.(16) "User" means a person who uses an electronic communications service and is authorized by the provider of the service to use the service.(17) "Electronic communications system" means a wire, radio, electromagnetic, photo-optical or photoelectronic facility for the transmission of wire or electronic communications, and any computer facility or related electronic equipment for the electronic storage of those communications.(18) "Electronic communications service" means a service that provides to users of the service the ability to send or receive wire or electronic communications.(19) "Readily accessible to the general public" means, with respect to a radio communication, a communication that is not:(A) scrambled or encrypted;(B) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of the communication; (C) carried on a subcarrier or other signal subsidiary to a radio transmission;(D) transmitted over a communication system provided by a common carrier, unless the communication is a tone-only paging system communication;(E) transmitted on frequencies allocated under Part 25, Subpart D, E, or F of Part 74, or Part 94 of the rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio; or(F) an electronic communication.(20) "Electronic storage" means:(A) a temporary, intermediate storage of a wire or electronic communication that is incidental to the electronic transmission of the communication; or(B) storage of a wire or electronic communication by an electronic communications service for purposes of backup protection of the communication.(21) "Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception.(22) "Immediate life-threatening situation" means a hostage, barricade, or other emergency situation in which a person unlawfully and directly:(A) threatens another with death; or(B) exposes another to a substantial risk of serious bodily injury.(23) "Member of a law enforcement unit specially trained to respond to and deal with life-threatening situations" means a peace officer who, 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 CommunicationsSec. 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 ApplicationsSec. 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 485.032, 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;(6) an offense under Section 38.11, Penal Code; or(7) an attempt, conspiracy, or solicitation to commit an offense listed in this section.Control of Intercepting DevicesSec. 5. (a) Except as otherwise provided by this section and Sections 8A and 8B, 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.(c) The Texas Department of Criminal Justice may own electronic, mechanical, or other devices for a use or purpose authorized by Section 500.008, Government Code, and the inspector general of the Texas Department of Criminal Justice, a commissioned officer of that office, or another person acting in the presence and under the direction of a commissioned officer of that office may possess, install, operate, or monitor those devices as provided by Section 500.008.(d) The Texas Youth Commission may own electronic, mechanical, or other devices for a use or purpose authorized by Section 61.0455, Human Resources Code, and the inspector general of the Texas Youth Commission, a commissioned officer of that office, or another person acting in the presence and under the direction of a commissioned officer of that office may possess, install, operate, or monitor those devices as provided by Section 61.0455.Request for Application for InterceptionSec. 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 CommunicationsSec. 7. (a) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may disclose the contents or evidence to another investigative or law enforcement officer, including a federal law enforcement officer or agent or a law enforcement officer or agent of another state, to the extent that the disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.(b) An investigative or law enforcement officer who, by any means authorized by this article, obtains knowledge of the contents of a wire, oral, or electronic communication or evidence derived from the communication may use the contents or evidence to the extent the use is appropriate to the proper performance of his official duties.(c) A person who receives, by any means authorized by this article, information concerning a wire, oral, or electronic communication or evidence derived from a communication intercepted in accordance with the provisions of this article may disclose the contents of that communication or the derivative evidence while giving testimony under oath in any proceeding held under the authority of the United States, of this state, or of a political subdivision of this state.(d) An otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character and any evidence derived from such privileged communication against the party to the privileged communication shall be considered privileged also.(e) When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in a manner authorized by this article, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization, the contents of and evidence derived from the communication may be disclosed or used as provided by Subsections (a) and (b) of this section. Such contents and any evidence derived therefrom may be used under Subse
