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 * * * * *