HBA-NMO S.B. 919 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 919 By: Wentworth Criminal Jurisprudence 5/13/1999 Engrossed BACKGROUND AND PURPOSE Current law considers executed search warrant affidavits public information, open to public inspection. Sealing affidavits may protects the integrity of ongoing investigations. S.B. 919 authorizes a district or appellate court, when compelling need is demonstrated, to seal an certain affidavits on which search warrants are based. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Article 18.01(b), Code of Criminal Procedure, to provide an exception to search warrant affidavits being public information if executed. SECTION 2. Amends Chapter 18, Code of Criminal Procedure, by adding Article 18.011, as follows: Article 18.011. SEALING OF SEARCH WARRANT AFFIDAVIT Sec. 1. REQUEST TO SEAL AFFIDAVIT. Authorizes an attorney representing the state in the prosecution of felonies to request a district judge to seal a search warrant affidavit presented under Article 18.01(b). Authorizes that a search warrant affidavit be sealed only in accordance with this article. Sec. 2. STANDARD FOR SEALING. Sets forth conditions that must be met before authority is granted to seal a search warrant affidavit. Sec. 3. TEMPORARY SEALING ORDER. Authorizes the issuance of a temporary order sealing a search warrant affidavit on a written motion showing certain compelling need for sealing. Sets forth time constraints and conditions for a temporary sealing order. Authorizes the court to modify or withdraw any temporary order by party motion or intervenor at a hearing. Provides that issuance of a temporary order does not reduce the state's burden of proof for an extended sealing order at the hearing. Requires the state to post certain notices regarding the temporarily sealed order. Sec. 4. EXTENDED SEALING ORDER. Authorizes the court, after motion, notice, and hearing as provided by this section, to enter an order extending the sealing of the affidavit for an additional period of not more than 60 days. Prohibits the state from moving to extend a sealing order unless before the fourth day after execution of the search warrant the state posts a public notice at the appropriate location. Sets forth information required in the notice, and requires the state to file a verified copy of the notice with the clerk of the court in which the case is pending and with the clerk of the court of criminal appeals. Provides that a public hearing be held in court not less than 10 days after the date on which the motion is filed and notice is posted. Provides that the state, at the hearing, must prove the existence of the facts described by Section 2. Authorizes any party to participate in the hearing and a nonparty to intervene to participate in the proceedings on payment of the fee required for filing a plea in intervention. Authorizes the court to inspect the search warrant affidavit, but not an affidavit supporting or opposing sealing. Authorizes the court to determine a motion relating to sealing or unsealing an affidavit in accordance with certain rules, except that any intervenor may file and serve affidavits within three days before the hearing. Sec. 5. WRITTEN MOTION. Authorizes that a temporary search warrant affidavit or an extended order be sealed only by the state's written motion which is open to public inspection. Sec. 6. ORDERS. Authorizes that a motion related to temporary or extended sealing or unsealing of a search warrant affidavit be decided only by written order. Provides that the order be open to public inspection and must state certain information regarding the case and affidavit. Prohibits the order from being included in any judgment or other order, and provides that it must be a separate document in the case. Provides that failure of the state or court to comply with this section does not affect any party's right to appeal. Provides that the affidavit, on the expiration of a sealing order, must be unsealed, unless the order is extended. Prohibits an order issued under this article from certain actions. Sec. 7. CONTINUING JURISDICTION. Authorizes any person to intervene as a matter of right at any time before or after judgment to unseal a search warrant affidavit. Provides that the issuing court retains continuing jurisdiction to enforce, alter, or vacate the order. Prohibits an order from being reconsidered on any motion, unless a material circumstance has changed that affects the order. Provides that the circumstances do not have to be related to the case. Sec. 8. APPEAL. Provides that any of the preceding orders are considered to be severed from the case and a final judgment and authorizes any party or intervenor who participated in the hearing preceding the issuance of the order to appeal an order. Provides that an appeal is not moot if during its pendency a sealing order expires by its terms. Provides that an appeal does not extend the duration of a temporary or extending sealing order beyond the period provided in this article. Authorizes the appellate court to abate the appeal and order the trial to direct that further public notice be given, to hold further hearings, or to make additional findings. Provides that error in sealing or unsealing of an affidavit does not constitute reversible error affecting the final judgment of a conviction. Authorizes an appellate court, as the only remedy to correct an error in the sealing or unsealing of a search warrant affidavit, to reverse, vacate, or modify the sealing or unsealing order. SECTION 3.Effective date: September 1, 1999. Makes application of this Act prospective.