SRC-JBJ C.S.S.B. 919 76(R)BILL ANALYSIS


Senate Research CenterC.S.S.B. 919
By: Wentworth
Criminal Justice
4/9/1999
Committee Report (Substituted)


DIGEST 

Currently, every executed search warrant affidavit is immediately
accessible to the public.  An affidavit sets forth facts to establish
probable cause and must be filed to request a search warrant.  Laying out
all evidence uncovered during the course of an investigation, the
information is available to the public, possibly, before the offender is
identified or apprehended.  Texas is the only state that makes the
affidavits public information. 

Sealing affidavits protects the integrity of ongoing investigations.  To
continue to make government documents available, a search warrant affidavit
remains accessible to the public, unless a party can show a compelling
state interest to temporarily seal the affidavit.  C.S.S.B. 919 would
authorize a district or appellate court to seal an affidavit when there is
a compelling state interest.  

PURPOSE

As proposed, C.S.S.B. 919 authorizes a court to temporarily seal a search
warrant affidavit. 

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 18.01(b), Code of Criminal Procedure, to provide
that an affidavit is public information if executed, except as provided by
Article 18.011. 

SECTION 2.  Amends Chapter 18, Code of Criminal Procedure, by adding
Article 18.011, as follows: 

Art. 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 the affidavit to be sealed only in accordance with this article. 

Sec. 2.  STANDARD FOR SEALING.  Sets forth conditions that will allow for
the affidavit to be sealed. 

Sec. 3.  TEMPORARY SEALING ORDER.  Authorizes a temporary order sealing a
search warrant affidavit to issue on a written motion showing certain
compelling needs 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 temporary sealed order.   

Sec. 4.  EXTENDED SEALING ORDER.  Authorizes a court to enter an order
extending the sealing of the affidavit for an additional period.  Prohibits
the state from extending a sealing order unless the state posts notice in
which extending the search warrant by a certain date.  Sets forth
information required in the notice, and requires the state to file the
notice with the clerk of the court in which the case is pending and with
the clerk of the court of criminal appeals.  Requires a public hearing to
be held in court as soon as practicable and requires the state to prove
that the facts in Section 2 do exist.  Authorizes any party to participate
in the hearing and any nonparty to intervene to participate in the
proceedings on payment of the fee required for filing.  Authorizes the
court to inspect the search warrant, 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 a certain number
of days before the hearing.  

Sec. 5.  WRITTEN MOTION.  Authorizes a temporary search warrant affidavit
or an extended order to be sealed only by the state's written motion which
is open to public inspection.   

Sec. 6.  ORDERS.  Authorizes a motion related to temporary or extended
sealing or unsealing of the affidavit to be decided only by written order.
Requires the order to be open to public inspection and to state certain
information regarding the case and affidavit.  Prohibits the order from
being included in any judgment or other order, but to be a separate
document.  Provides that failure of the state or court to comply with this
section does not affect any party's right to appeal.  Requires the
affidavit to be unsealed on the expiration of a sealed order, unless the
order is extended.  Prohibits the order 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 the 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.  Provides that an appeal is not moot if during
its pendency a sealing order expires before 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.
Establishes that error in sealing or unsealing the affidavit does not
constitute reversible error affecting the final judgment of a conviction.
Provides that an appellate court may enter into a remedy regarding the
affidavit only to reverse, vacate, or modify the sealing or unsealing
order. 

SECTION 3.Effective date: September 1, 1999.
  Makes application of this Act prospective.


SUMMARY OF COMMITTEE CHANGES

SECTION 2.
 
Amends Article 18.011, Code of Criminal Procedure, by adding Sections 1-8
regarding conditions and procedures for sealing or unsealing a search
warrant affidavit or temporary affidavit, and appealing the affidavit.
Adds text that requires a search warrant affidavit to be sealed only in
accordance with article. Delete a proposed provision authorizing an
attorney to request sealed orders.  Deletes proposed conditions for sealing
the order.