By: Wentworth S.B. No. 120
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the sealing of certain affidavits on which search
1-3 warrants are based.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsection (b), Article 18.01, Code of Criminal
1-6 Procedure, is amended to read as follows:
1-7 (b) No search warrant shall issue for any purpose in this
1-8 state unless sufficient facts are first presented to satisfy the
1-9 issuing magistrate that probable cause does in fact exist for its
1-10 issuance. A sworn affidavit setting forth substantial facts
1-11 establishing probable cause shall be filed in every instance in
1-12 which a search warrant is requested. Except as provided by Article
1-13 18.011, the [The] affidavit is public information if executed, and
1-14 the magistrate's clerk shall make a copy of the affidavit available
1-15 for public inspection in the clerk's office during normal business
1-16 hours.
1-17 SECTION 2. Chapter 18, Code of Criminal Procedure, is
1-18 amended by adding Article 18.011 to read as follows:
1-19 Art. 18.011. SEALING OF SEARCH WARRANT AFFIDAVIT
1-20 Sec. 1. REQUEST TO SEAL AFFIDAVIT. An attorney representing
1-21 the state in the prosecution of felonies may request a district
1-22 judge to seal a search warrant affidavit presented under Article
1-23 18.01(b). A search warrant affidavit may be sealed only in
1-24 accordance with this article.
1-25 Sec. 2. STANDARD FOR SEALING. A search warrant affidavit
2-1 may be sealed only on a factual showing that:
2-2 (1) sealing is necessary for serious, specific, and
2-3 substantial reasons to:
2-4 (A) protect the safety of a confidential
2-5 informant, witness, or peace officer;
2-6 (B) prevent the destruction of evidence;
2-7 (C) prevent the disclosure of information
2-8 obtained from a court-ordered wiretap that has not expired at the
2-9 time the attorney representing the state requests the sealing of
2-10 the search warrant affidavit; or
2-11 (D) prevent flight from arrest or prosecution;
2-12 and
2-13 (2) no less restrictive means other than sealing the
2-14 affidavit would adequately and effectively protect the specific
2-15 interest asserted.
2-16 Sec. 3. TEMPORARY SEALING ORDER. (a) A temporary order
2-17 sealing a search warrant affidavit may issue on a written motion
2-18 showing compelling need from specific facts shown by affidavit
2-19 that:
2-20 (1) sealing is necessary to prevent immediate and
2-21 irreparable injury to a specific interest listed in Section 2(1);
2-22 and
2-23 (2) no less restrictive means other than sealing the
2-24 affidavit would adequately and effectively protect the specific
2-25 interest asserted.
2-26 (b) A temporary sealing order expires three days after
3-1 execution of the search warrant, unless extended as provided by
3-2 this article. The court may extend the temporary order once for an
3-3 additional period of not more than 10 days, but only if the state
3-4 posts notice in the manner provided by Section 4(b). The court may
3-5 modify or withdraw any temporary order on motion by any party or
3-6 intervenor at a hearing conducted as soon as practicable. Issuance
3-7 of a temporary order does not reduce the state's burden of proof
3-8 for an extended sealing order at the hearing required by Section
3-9 4(d).
3-10 (c) Not later than the third business day after execution of
3-11 the search warrant, the state shall post at the place where notices
3-12 for meetings of county governmental bodies are required to be
3-13 posted a copy of:
3-14 (1) the temporary sealing order;
3-15 (2) the motion for temporary sealing;
3-16 (3) any affidavit supporting the motion for temporary
3-17 sealing; and
3-18 (4) the search warrant.
3-19 Sec. 4. EXTENDED SEALING ORDER. (a) The court, after
3-20 motion, notice, and hearing as provided by this section, may enter
3-21 an order extending the sealing of the affidavit for an additional
3-22 period of not more than 60 days.
3-23 (b) The state may not move to extend a sealing order unless
3-24 before the fourth day after execution of the search warrant the
3-25 state posts a public notice at the place where notices for meetings
3-26 of county governmental bodies are required to be posted. The
4-1 notice must state:
4-2 (1) that a hearing on the state's motion for extended
4-3 sealing in the specific case will be held in open court;
4-4 (2) that any person may intervene and be heard
4-5 concerning the motion for extended sealing;
4-6 (3) the specific time and place of the hearing; and
4-7 (4) the style and number of the case.
4-8 (c) Immediately after posting notice under Subsection (b),
4-9 the state shall file a verified copy of the posted notice with the
4-10 clerk of the court in which the case is pending and with the clerk
4-11 of the court of criminal appeals.
4-12 (d) A public hearing on a motion for extended sealing must
4-13 be held in court as soon as practicable, but not less than 10 days
4-14 after the date on which the motion is filed and notice is posted.
4-15 At the hearing, the state must prove by a preponderance of the
4-16 evidence the existence of facts described by Section 2. Any party
4-17 may participate in the hearing. A nonparty may intervene as a
4-18 matter of right for the limited purpose of participating in the
4-19 proceedings on payment of the fee required for filing a plea in
4-20 intervention. The court may inspect in camera as necessary the
4-21 search warrant affidavit, but not an affidavit supporting or
4-22 opposing sealing. The court may determine a motion relating to
4-23 sealing or unsealing of an affidavit in accordance with the
4-24 procedures prescribed by Rule 120a, Texas Rules of Civil Procedure,
4-25 except that any intervenor may file and serve affidavits three days
4-26 before the hearing on the motion for extended sealing.
5-1 Sec. 5. WRITTEN MOTION. A search warrant affidavit may be
5-2 sealed by temporary or extended order only on the state's written
5-3 motion. The state's motion is open to public inspection as
5-4 provided by this article.
5-5 Sec. 6. ORDERS. (a) A motion relating to temporary or
5-6 extended sealing or unsealing of a search warrant affidavit may be
5-7 decided only by written order. The order must be open to public
5-8 inspection and must state:
5-9 (1) the style and number of the case;
5-10 (2) the specific reasons for finding and concluding
5-11 whether the showing required by Section 2 has been made;
5-12 (3) the specific portions of the search warrant
5-13 affidavit that are to be sealed; and
5-14 (4) the period for which the sealed portions of the
5-15 affidavits are to be sealed.
5-16 (b) The order may not be included in any judgment or other
5-17 order and must be a separate document in the case. The failure of
5-18 the state or the court to comply with this section does not affect
5-19 any party's right to appeal.
5-20 (c) On the expiration of a sealing order the affidavit must
5-21 be unsealed, unless the order is extended as provided by this
5-22 article.
5-23 (d) An order issued under this article may not:
5-24 (1) seal or prohibit the disclosure of information
5-25 relating to the contents of a search warrant, the return of a
5-26 search warrant, or the inventory of property taken pursuant to a
6-1 search warrant; or
6-2 (2) affect the right of a defendant to obtain a copy
6-3 of the affidavit.
6-4 Sec. 7. CONTINUING JURISDICTION. Any person may intervene
6-5 as a matter of right at any time before or after judgment to unseal
6-6 a search warrant affidavit. A court that issues a sealing order
6-7 retains continuing jurisdiction to enforce, alter, or vacate that
6-8 order. An order sealing or unsealing a search warrant affidavit
6-9 may not be reconsidered on motion of any party or intervenor who
6-10 had actual notice of the hearing preceding issuance of the order
6-11 unless there is a showing of changed circumstances materially
6-12 affecting the order. Such circumstances need not be related to the
6-13 case in which the order was issued.
6-14 Sec. 8. APPEAL. Any order or portion of an order or
6-15 judgment relating to the temporary or extended sealing or unsealing
6-16 of a search warrant affidavit is considered to be severed from the
6-17 case and a final judgment and may be appealed by any party or
6-18 intervenor who participated in the hearing preceding the issuance
6-19 of the order. An appeal is not moot if during its pendency a
6-20 sealing order expires by its terms. An appeal does not extend the
6-21 duration of a temporary or extended sealing order beyond the
6-22 periods provided by this article. The appellate court may abate
6-23 the appeal and order the trial court to direct that further public
6-24 notice be given, to hold further hearings, or to make additional
6-25 findings. Error in the sealing or unsealing of an affidavit does
6-26 not constitute reversible error affecting the final judgment of a
7-1 conviction. The only remedy an appellate court may enter to
7-2 correct an error in the sealing or unsealing of a search warrant
7-3 affidavit is to reverse, vacate, or modify the sealing or unsealing
7-4 order.
7-5 SECTION 3. This Act takes effect September 1, 2001, and
7-6 applies only to a search warrant the affidavit for which is filed
7-7 on or after that date.