By: Wentworth S.B. No. 919
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the sealing of certain affidavits on which search
1-2 warrants are based.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (b), Article 18.01, Code of Criminal
1-5 Procedure, is amended to read as follows:
1-6 (b) No search warrant shall issue for any purpose in this
1-7 state unless sufficient facts are first presented to satisfy the
1-8 issuing magistrate that probable cause does in fact exist for its
1-9 issuance. A sworn affidavit setting forth substantial facts
1-10 establishing probable cause shall be filed in every instance in
1-11 which a search warrant is requested. The affidavit is public
1-12 information if executed, except as provided by Article 18.011 of
1-13 this code.
1-14 SECTION 2. Chapter 18, Code of Criminal Procedure, is
1-15 amended by adding Article 18.011 to read as follows:
1-16 Art. 18.011. SEALING OF SEARCH WARRANT AFFIDAVIT
1-17 Sec. 1. REQUEST TO SEAL AFFIDAVIT. An attorney representing
1-18 the state in the prosecution of felonies may request a district
1-19 judge to seal a search warrant affidavit presented under Article
1-20 18.01(b). A search warrant affidavit may be sealed only in
1-21 accordance with this article.
1-22 Sec. 2. STANDARD FOR SEALING. A search warrant affidavit
1-23 may be sealed only on a showing that:
1-24 (1) sealing is necessary for serious, specific, and
2-1 substantial reasons to:
2-2 (A) protect the safety of a confidential
2-3 informant, witness, or peace officer;
2-4 (B) prevent the destruction of evidence;
2-5 (C) prevent the disclosure of information
2-6 obtained from a court-ordered wiretap that has not expired at the
2-7 time the attorney representing the state requests the sealing of
2-8 the search warrant affidavit; or
2-9 (D) prevent flight from arrest or prosecution;
2-10 and
2-11 (2) no less restrictive means other than sealing the
2-12 affidavit would adequately and effectively protect the specific
2-13 interest asserted.
2-14 Sec. 3. TEMPORARY SEALING ORDER. (a) A temporary order
2-15 sealing a search warrant affidavit may issue on a written motion
2-16 showing compelling need from specific facts shown by affidavit
2-17 that:
2-18 (1) sealing is necessary to prevent immediate and
2-19 irreparable injury to a specific interest listed in Section 2(1);
2-20 and
2-21 (2) no less restrictive means other than sealing the
2-22 affidavit would adequately and effectively protect the specific
2-23 interest asserted.
2-24 (b) A temporary sealing order expires three days after
2-25 execution of the search warrant, unless extended as provided by
2-26 this article. The court may extend the temporary order once for an
3-1 additional period of not more than 10 days, but only if the state
3-2 posts notice in the manner provided by Section 4(b). The court may
3-3 modify or withdraw any temporary order on motion by any party or
3-4 intervenor at a hearing conducted as soon as practicable. Issuance
3-5 of a temporary order does not reduce the state's burden of proof
3-6 for an extended sealing order at the hearing required by Section
3-7 4(d).
3-8 (c) Not later than the third business day after execution of
3-9 the search warrant, the state shall post at the place where notices
3-10 for meetings of county governmental bodies are required to be
3-11 posted a copy of:
3-12 (1) the temporary sealing order;
3-13 (2) the motion for temporary sealing;
3-14 (3) any affidavit supporting the motion for temporary
3-15 sealing; and
3-16 (4) the search warrant.
3-17 Sec. 4. EXTENDED SEALING ORDER. (a) The court, after
3-18 motion, notice, and hearing as provided by this section, may enter
3-19 an order extending the sealing of the affidavit for an additional
3-20 period of not more than 60 days.
3-21 (b) The state may not move to extend a sealing order unless
3-22 before the fourth day after execution of the search warrant the
3-23 state posts a public notice at the place where notices for meetings
3-24 of county governmental bodies are required to be posted. The
3-25 notice must state:
3-26 (1) that a hearing on the state's motion for extended
4-1 sealing in the specific case will be held in open court;
4-2 (2) any person may intervene and be heard concerning
4-3 the motion for extended sealing;
4-4 (3) the specific time and place of the hearing; and
4-5 (4) the style and number of the case.
4-6 (c) Immediately after posting notice under Subsection (b),
4-7 the state shall file a verified copy of the posted notice with the
4-8 clerk of the court in which the case is pending and with the clerk
4-9 of the court of criminal appeals.
4-10 (d) A public hearing on a motion for extended sealing must
4-11 be held in court as soon as practicable, but not less than 10 days
4-12 after the date on which the motion is filed and notice is posted.
4-13 At the hearing, the state must prove by a preponderance of the
4-14 evidence the existence of facts described by Section 2. Any party
4-15 may participate in the hearing. A nonparty may intervene as a
4-16 matter of right for the limited purpose of participating in the
4-17 proceedings on payment of the fee required for filing a plea in
4-18 intervention. The court may inspect in camera as necessary the
4-19 search warrant affidavit, but not an affidavit supporting or
4-20 opposing sealing. The court may determine a motion relating to
4-21 sealing or unsealing of an affidavit in accordance with the
4-22 procedures prescribed by Rule 120a, Texas Rules of Civil Procedure,
4-23 except that any intervenor may file and serve affidavits three days
4-24 before the hearing on the motion for extended sealing.
4-25 Sec. 5. WRITTEN MOTION. A search warrant affidavit may be
4-26 sealed by temporary or extended order only on the state's written
5-1 motion. The state's motion is open to public inspection as
5-2 provided by this article.
5-3 Sec. 6. ORDERS. (a) A motion relating to temporary or
5-4 extended sealing or unsealing of a search warrant affidavit may be
5-5 decided only by written order. The order must be open to public
5-6 inspection and must state:
5-7 (1) the style and number of the case;
5-8 (2) the specific reasons for finding and concluding
5-9 whether the showing required by Section 2 has been made;
5-10 (3) the specific portions of the search warrant
5-11 affidavit that are to be sealed; and
5-12 (4) the period for which the sealed portions of the
5-13 affidavits are to be sealed.
5-14 (b) The order may not be included in any judgment or other
5-15 order and must be a separate document in the case. The failure of
5-16 the state or the court to comply with this section does not affect
5-17 any party's right to appeal.
5-18 (c) On the expiration of a sealing order the affidavit must
5-19 be unsealed, unless the order is extended as provided by this
5-20 article.
5-21 (d) An order issued under this article may not:
5-22 (1) seal or prohibit the disclosure of information
5-23 relating to the contents of a search warrant, the return of a
5-24 search warrant, or the inventory of property taken pursuant to a
5-25 search warrant; or
5-26 (2) affect the right of a defendant to discover the
6-1 contents of an affidavit.
6-2 Sec. 7. CONTINUING JURISDICTION. Any person may intervene
6-3 as a matter of right at any time before or after judgment to unseal
6-4 a search warrant affidavit. A court that issues a sealing order
6-5 retains continuing jurisdiction to enforce, alter, or vacate that
6-6 order. An order sealing or unsealing a search warrant affidavit
6-7 may not be reconsidered on motion of any party or intervenor who
6-8 had actual notice of the hearing preceding issuance of the order
6-9 unless there is a showing of changed circumstances materially
6-10 affecting the order. Such circumstances need not be related to the
6-11 case in which the order was issued.
6-12 Sec. 8. APPEAL. Any order or portion of an order or
6-13 judgment relating to the temporary or extended sealing or unsealing
6-14 of a search warrant affidavit is considered to be severed from the
6-15 case and a final judgment and may be appealed by any party or
6-16 intervenor who participated in the hearing preceding the issuance
6-17 of the order. An appeal is not moot if during its pendency a
6-18 sealing order expires by its terms. An appeal does not extend the
6-19 duration of a temporary or extended sealing order beyond the
6-20 periods provided by this article. The appellate court may abate
6-21 the appeal and order the trial court to direct that further public
6-22 notice be given, to hold further hearings, or to make additional
6-23 findings. Error in the sealing or unsealing of an affidavit does
6-24 not constitute reversible error affecting the final judgment of a
6-25 conviction. The only remedy an appellate court may enter to
6-26 correct an error in the sealing or unsealing of a search warrant
7-1 affidavit is to reverse, vacate, or modify the sealing or unsealing
7-2 order.
7-3 SECTION 3. This Act takes effect September 1, 1999, and
7-4 applies only to a search warrant the affidavit for which is filed
7-5 on or after that date.