1-1     By:  Wentworth                                         S.B. No. 919
 1-2           (In the Senate - Filed March 5, 1999; March 8, 1999, read
 1-3     first time and referred to Committee on Criminal Justice;
 1-4     April 12, 1999, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 7, Nays 0; April 12, 1999,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 919                   By:  Duncan
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the sealing of certain affidavits on which search
1-11     warrants are based.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Subsection (b), Article 18.01, Code of Criminal
1-14     Procedure, is amended to read as follows:
1-15           (b)  No search warrant shall issue for any purpose in this
1-16     state unless sufficient facts are first presented to satisfy the
1-17     issuing magistrate that probable cause does in fact exist for its
1-18     issuance.  A sworn affidavit setting forth substantial facts
1-19     establishing probable cause shall be filed in every instance in
1-20     which a search warrant is requested.  The affidavit is public
1-21     information if executed, except as provided by Article 18.011 of
1-22     this code.
1-23           SECTION 2.  Chapter 18, Code of Criminal Procedure, is
1-24     amended by adding Article 18.011 to read as follows:
1-25           Art. 18.011.  SEALING OF SEARCH WARRANT AFFIDAVIT
1-26           Sec. 1.  REQUEST TO SEAL AFFIDAVIT.  An attorney representing
1-27     the state in the prosecution of felonies may request a district
1-28     judge to seal a search warrant affidavit presented under Article
1-29     18.01(b).  A search warrant affidavit may be sealed only in
1-30     accordance with this article.
1-31           Sec. 2.  STANDARD FOR SEALING.  A search warrant affidavit
1-32     may be sealed only on a showing that:
1-33                 (1)  sealing is necessary for serious, specific, and
1-34     substantial reasons to:
1-35                       (A)  protect the safety of a confidential
1-36     informant, witness, or peace officer;
1-37                       (B)  prevent the destruction of evidence;
1-38                       (C)  prevent the disclosure of information
1-39     obtained from a court-ordered wiretap that has not expired at the
1-40     time the attorney representing the state requests the sealing of
1-41     the search warrant affidavit; or
1-42                       (D)  prevent flight from arrest or prosecution;
1-43     and
1-44                 (2)  no less restrictive means other than sealing the
1-45     affidavit would adequately and effectively protect the specific
1-46     interest asserted.
1-47           Sec. 3.  TEMPORARY SEALING ORDER.  (a)  A temporary order
1-48     sealing a search warrant affidavit may issue on a written motion
1-49     showing compelling need from specific facts shown by affidavit
1-50     that:
1-51                 (1)  sealing is necessary  to prevent immediate and
1-52     irreparable injury to a specific interest listed in Section 2(1);
1-53     and
1-54                 (2)  no less restrictive means other than sealing the
1-55     affidavit would adequately and effectively protect the specific
1-56     interest asserted.
1-57           (b)  A temporary sealing order expires three days after
1-58     execution of the search warrant, unless extended as provided by
1-59     this article.  The court may extend the temporary order once for an
1-60     additional period of not more than 10 days, but only if the state
1-61     posts notice in the manner provided by Section 4(b).  The court may
1-62     modify or withdraw any temporary order on motion by any party or
1-63     intervenor at a hearing conducted as soon as practicable.  Issuance
1-64     of a temporary order does not reduce the state's burden of proof
 2-1     for an extended sealing order at the hearing required by Section
 2-2     4(d).
 2-3           (c)  Not later than the third business day after execution of
 2-4     the search warrant, the state shall post at the place where notices
 2-5     for meetings of county governmental bodies are required to be
 2-6     posted a copy of:
 2-7                 (1)  the temporary sealing order;
 2-8                 (2)  the motion for temporary sealing;
 2-9                 (3)  any affidavit supporting the motion for temporary
2-10     sealing; and
2-11                 (4)  the search warrant.
2-12           Sec. 4.  EXTENDED SEALING ORDER.  (a)  The court, after
2-13     motion, notice, and hearing as provided by this section, may enter
2-14     an order extending the sealing of the affidavit for an additional
2-15     period of not more than 60 days.
2-16           (b)  The state may not move to extend a sealing order unless
2-17     before the fourth day after execution of the search warrant the
2-18     state posts a public notice at the place where notices for meetings
2-19     of county governmental bodies are required to be posted.  The
2-20     notice must state:
2-21                 (1)  that a hearing on the state's motion for extended
2-22     sealing in the specific case will be held in open court;
2-23                 (2)  any person may intervene and be heard concerning
2-24     the motion for extended sealing;
2-25                 (3)  the specific time and place of the hearing; and
2-26                 (4)  the style and number of the case.
2-27           (c)  Immediately after posting notice under Subsection (b),
2-28     the state shall file a verified copy of the posted notice with the
2-29     clerk of the court in which the case is pending and with the clerk
2-30     of the court of criminal appeals.
2-31           (d)  A public hearing on a motion for extended sealing must
2-32     be held in court as soon as practicable, but not less than 10 days
2-33     after the date on which the motion is filed and notice is posted.
2-34     At the hearing, the state must prove by a preponderance of the
2-35     evidence the existence of facts described by Section 2.  Any party
2-36     may participate in the hearing.  A nonparty may intervene as a
2-37     matter of right for the limited purpose of participating in the
2-38     proceedings on payment of the fee required for filing a plea in
2-39     intervention.  The court may inspect in camera as necessary the
2-40     search warrant affidavit, but not an affidavit supporting or
2-41     opposing sealing.  The court may determine a motion relating to
2-42     sealing or unsealing of an affidavit in accordance with the
2-43     procedures prescribed by Rule 120a, Texas Rules of Civil Procedure,
2-44     except that any intervenor may file and serve affidavits three days
2-45     before the hearing on the motion for extended sealing.
2-46           Sec. 5.  WRITTEN MOTION.  A search warrant affidavit may be
2-47     sealed by temporary or extended order only on the state's written
2-48     motion.  The state's motion is open to public inspection as
2-49     provided by this article.
2-50           Sec. 6.  ORDERS.  (a)  A motion relating to temporary or
2-51     extended sealing or unsealing of a search warrant affidavit may be
2-52     decided only by written order.  The order must be open to public
2-53     inspection and must state:
2-54                 (1)  the style and number of the case;
2-55                 (2)  the specific reasons for finding and concluding
2-56     whether the showing required by Section 2 has been made;
2-57                 (3)  the specific portions of the search warrant
2-58     affidavit that are to be sealed; and
2-59                 (4)  the period for which the sealed portions of the
2-60     affidavits are to be sealed.
2-61           (b)  The order may not be included in any judgment or other
2-62     order and must be a separate document in the case.  The failure of
2-63     the state or the court to comply with this section does not affect
2-64     any party's right to appeal.
2-65           (c)  On the expiration of a sealing order the affidavit must
2-66     be unsealed, unless the order is extended as provided by this
2-67     article.
2-68           (d)  An order issued under this article may not:
2-69                 (1)  seal or prohibit the disclosure of information
 3-1     relating to the contents of a search warrant, the return of a
 3-2     search warrant, or the inventory of property taken pursuant to a
 3-3     search warrant; or
 3-4                 (2)  affect the right of a defendant to discover the
 3-5     contents of an affidavit.
 3-6           Sec. 7.  CONTINUING JURISDICTION.  Any person may intervene
 3-7     as a matter of right at any time before or after judgment to unseal
 3-8     a search warrant affidavit.  A court that issues a sealing order
 3-9     retains continuing jurisdiction to enforce, alter, or vacate that
3-10     order.  An order sealing or unsealing a search warrant affidavit
3-11     may not be reconsidered on motion of any party or intervenor who
3-12     had actual notice of the hearing preceding issuance of the order
3-13     unless there is a showing of changed circumstances materially
3-14     affecting the order.  Such circumstances need not be related to the
3-15     case in which the order was issued.
3-16           Sec. 8.  APPEAL.  Any order or portion of an order or
3-17     judgment relating to the temporary or extended sealing or unsealing
3-18     of a search warrant affidavit is considered to be severed from the
3-19     case and a final judgment and may be appealed by any party or
3-20     intervenor who participated in the hearing preceding the issuance
3-21     of the order. An appeal is not moot if during its pendency a
3-22     sealing order expires by its terms.  An appeal does not extend the
3-23     duration of a temporary or extended sealing order beyond the
3-24     periods provided by this article.  The appellate court may abate
3-25     the appeal and order the trial court to direct that further public
3-26     notice be given, to hold further hearings, or to make additional
3-27     findings. Error in the sealing or unsealing of an affidavit does
3-28     not constitute reversible error affecting the final judgment of a
3-29     conviction.  The only remedy an appellate court may enter to
3-30     correct an error in the sealing or unsealing of a search warrant
3-31     affidavit is to reverse, vacate, or modify the sealing or unsealing
3-32     order.
3-33           SECTION 3.  This Act takes effect September 1, 1999, and
3-34     applies only to a search warrant the affidavit for which is filed
3-35     on or after that date.
3-36                                  * * * * *