Bill of the Week: If It Ain't Broke, Don't Fix It

Companion bills aims to give more local control of wire taps

Bill of the Week: If It Ain't Broke, Don't Fix It

In the waning days of the 83rd legislature, a companion pair of bills is passing through committee with little opposition. The bills – HB 530 by Allen Fletcher, R-Tomball, and SB 188 by Joan Huffman, R-Houston – would broaden the authority to conduct wiretaps to Texas' six largest police departments and the Harris County Sheriff.

Currently, the Texas Department of Public Safety is the only non-federal entity allowed to conduct such surveillance. Advocates for the bill say the expanded authority would allow local agencies to act more quickly in drug cartel investigations by avoiding hurdles with DPS. The efficacy and length of wire intercepts are sometimes lessened, they argue, due to the unavailability of DPS resources.

But according to Scott Henson of criminal justice blog Grits for Breakfast, there is no evidence to suggest that the DPS is routinely turning down surveillance requests nor that such requests overwhelm the department. From 1997-2011, Henson found that wiretap orders issued through the DPS were scant, peaking with five orders in 1998. Henson notes that during a House Criminal Jurisprudence Committee meeting, Houston police detective Jimmy Taylor admitted that the HPD had not requested a single wiretap during 2012. Such requests were jettisoned because of the assumed busyness of DPS.

In his written testimony to the Criminal Jurisprudence Committtee, Henson goes on to question if wiretapping authority should be expanded when new technology, such as IMSI catchers, are not regulated by Texas law. IMSI catchers act as false cellular towers, allowing users to intercept data from both the wiretap subject and passersby. Texas law does not address how the data gathered can be used, raising privacy and abuse concerns.

Instead of focusing who is authorized to wiretap, Henson argues that lawmakers should focus on fixing Article 18.21 of the Texas Code of Criminal Procedure because it fails to address investigative tools now commonly available. Henson says the article "is arguably the most confusing, poorly written statute (he's) ever run across."

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