SRC-BWC S.B. 120 77(R) BILL ANALYSIS
Senate Research Center S.B. 120
77R1275 GWK-FBy: Wentworth
Jurisprudence
1/22/2001
As Filed
DIGEST AND PURPOSE
Currently, a search warrant affidavit becomes public information once it
has been executed. As proposed, S.B. 120 allows the presiding judicial
officer to temporarily seal a search warrant affidavit when that judge
finds a compelling state interest to do so. The proposed bill specifically
lists the circumstances in which a judge may order an affidavit sealed.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to a
state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subsection (b), Article 18.01, Code of Criminal
Procedure, to provide that an affidavit that is presented to a magistrate
in order to obtain a search warrant is public information if executed,
except as provided by Article 18.011. Makes a nonsubstantive change.
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 only under Article 18.01(b).
Sec. 2. STANDARD FOR SEALING. Authorizes that a search warrant affidavit
be sealed only under certain circumstances.
Sec. 3. TEMPORARY SEALING ORDER. Authorizes a temporary order sealing a
search warrant affidavit by issuing a written motion showing compelling
need from specific facts shown by the affidavit, if certain conditions
exist. Provides that a temporary sealing order expires three days after
execution of the search warrant, unless extended as provided by this
article, and authorizes the court to extend the temporary order once for
not more than 10 days, provided that the state post notice in the manner
provided by Section 4(b), and authorizes the court to modify or withdraw
any temporary order on motion by any party or intervenor at a hearing
conducted as soon as practicable. Provides that issuance of a temporary
order does not reduce the state's burden of proof for an extended sealing
order at the hearing as required by Section 4(d). Requires the state, not
later than the third business day after execution of the search warrant, to
post where meetings of county governmental bodies are required to be
posted, copies of certain documents relating to the search warrant.
Sec. 4. EXTENDED SEALING ORDER. Authorizes the court, after motion,
notice, and hearing 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 the state posts public
notice, regarding certain information about the motion for extension before
the fourth day after the execution of the search warrant. Requires the
state to file a verified copy of the posted notice with the clerks of court
of criminal appeals and the court where the case is pending, immediately
after posting the notice as specified under Subsection (b). Requires a
public hearing on a motion for extended sealing to be held in court as soon
as practicable, but not less than 10 days after the date on which the
motion is filed and notice is posted. Requires the state, at the hearing,
to prove by a preponderance of the evidence the existence of facts
described by Section 2. Authorizes any party to participate in the
hearing, and authorizes a nonparty to intervene as a matter of right for
the limited purpose of participating in the proceedings on payment of the
fee required for filing a plea in intervention. Authorizes the court to
inspect a search warrant affidavit in camera, but not an affidavit
supporting or opposing sealing. Authorizes the court to determine a motion
relating to sealing or unsealing of a affidavit in accordance with the
procedures prescribed by Rule 120a, Texas Rules of Civil Procedure, except
that any intervenor may file and serve affidavits three days before the
hearing on the motion for extended sealing.
Sec. 5. WRITTEN MOTION. Authorizes a search warrant affidavit to be
sealed by temporary or extended order only on the state's written motion, a
motion open to public inspection.
Sec. 6. ORDERS. Authorizes a motion relating to temporary or extended
sealing or unsealing of a search warrant affidavit to be decided only by
written order, and includes certain information. Requires that the order be
open to public inspection. Prohibits the order from being included in any
judgment or other order, and requires it to be a separate document in the
case. Provides that the failure of the state or the court to comply with
this section does not affect any party's right to appeal. Requires the
affidavit to be unsealed after the expiration of a sealing order, unless
the order is extended. Prohibits the order issued under this article from
prohibiting or affecting the right of a defendant to discover the contents
of an affidavit.
Sec. 7. CONTINUING JURISDICTION. Authorizes any person to intervene at
any time before or after judgment to unseal a search warrant affidavit, and
provides that the court that issues a sealing order retains continuing
jurisdiction to enforce, alter, or vacate that order. Prohibits the
reconsideration on motion to seal or unseal a search warrant affidavit by a
party or intervenor who had actual notice of the hearing to reconsider,
unless there is a showing of changed circumstances materially affecting the
order, not necessarily related.
Sec. 8. APPEAL. Provides that any order or portion of an order or
judgment relating to the temporary or extended sealing or unsealing of a
search warrant affidavit is considered to be severed from the case and
final judgment, and authorizes an appeal by any party or intervenor who
participated in the hearing preceding the issuance of the order. Provides
that an appeal is not moot if it expires during court proceedings. Provides
that an appeal does not extend a seal order. Authorizes the appellate court
to abate the appeal and order the trial court to post public notice
regarding further hearing, or to make additional findings. Provides that a
conviction is not affected by an error of sealing or unsealing an
affidavit. Provides that the only remedy an appellate court may enter to
correct an error in the sealing or unsealing of a warrant affidavit is to
reverse, vacate, or modify the sealing or unsealing order.
SECTION 3. Effective date: September 1, 2001.
Makes application of the Act prospective.