By Wentworth                                           S.B. No. 120
         77R1275 GWK-F                           
                                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.
 2-1           Sec. 2.  STANDARD FOR SEALING.  A search warrant affidavit
 2-2     may be sealed only on a showing that:
 2-3                 (1)  sealing is necessary for serious, specific, and
 2-4     substantial reasons to:
 2-5                       (A)  protect the safety of a confidential
 2-6     informant, witness, or peace officer;
 2-7                       (B)  prevent the destruction of evidence;
 2-8                       (C)  prevent the disclosure of information
 2-9     obtained from a court-ordered wiretap that has not expired at the
2-10     time the attorney representing the state requests the sealing of
2-11     the search warrant affidavit; or
2-12                       (D)  prevent flight from arrest or prosecution;
2-13     and
2-14                 (2)  no less restrictive means other than sealing the
2-15     affidavit would adequately and effectively protect the specific
2-16     interest asserted.
2-17           Sec. 3.  TEMPORARY SEALING ORDER.  (a)  A temporary order
2-18     sealing a search warrant affidavit may issue on a written motion
2-19     showing compelling need from specific facts shown by affidavit
2-20     that:
2-21                 (1)  sealing is necessary  to prevent immediate and
2-22     irreparable injury to a specific interest listed in Section 2(1);
2-23     and
2-24                 (2)  no less restrictive means other than sealing the
2-25     affidavit would adequately and effectively protect the specific
2-26     interest asserted.
2-27           (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
3-27     notice must state:
 4-1                 (1)  that a hearing on the state's motion for extended
 4-2     sealing in the specific case will be held in open court;
 4-3                 (2)  that any person may intervene and be heard
 4-4     concerning the motion for extended sealing;
 4-5                 (3)  the specific time and place of the hearing; and
 4-6                 (4)  the style and number of the case.
 4-7           (c)  Immediately after posting notice under Subsection (b),
 4-8     the state shall file a verified copy of the posted notice with the
 4-9     clerk of the court in which the case is pending and with the clerk
4-10     of the court of criminal appeals.
4-11           (d)  A public hearing on a motion for extended sealing must
4-12     be held in court as soon as practicable, but not less than 10 days
4-13     after the date on which the motion is filed and notice is posted.
4-14     At the hearing, the state must prove by a preponderance of the
4-15     evidence the existence of facts described by Section 2.  Any party
4-16     may participate in the hearing.  A nonparty may intervene as a
4-17     matter of right for the limited purpose of participating in the
4-18     proceedings on payment of the fee required for filing a plea in
4-19     intervention.  The court may inspect in camera as necessary the
4-20     search warrant affidavit, but not an affidavit supporting or
4-21     opposing sealing.  The court may determine a motion relating to
4-22     sealing or unsealing of an affidavit in accordance with the
4-23     procedures prescribed by Rule 120a, Texas Rules of Civil Procedure,
4-24     except that any intervenor may file and serve affidavits three days
4-25     before the hearing on the motion for extended sealing.
4-26           Sec. 5.  WRITTEN MOTION.  A search warrant affidavit may be
4-27     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
5-27     contents of an affidavit.
 6-1           Sec. 7.  CONTINUING JURISDICTION.  Any person may intervene
 6-2     as a matter of right at any time before or after judgment to unseal
 6-3     a search warrant affidavit.  A court that issues a sealing order
 6-4     retains continuing jurisdiction to enforce, alter, or vacate that
 6-5     order.  An order sealing or unsealing a search warrant affidavit
 6-6     may not be reconsidered on motion of any party or intervenor who
 6-7     had actual notice of the hearing preceding issuance of the order
 6-8     unless there is a showing of changed circumstances materially
 6-9     affecting the order.  Such circumstances need not be related to the
6-10     case in which the order was issued.
6-11           Sec. 8.  APPEAL.  Any order or portion of an order or
6-12     judgment relating to the temporary or extended sealing or unsealing
6-13     of a search warrant affidavit is considered to be severed from the
6-14     case and a final judgment and may be appealed by any party or
6-15     intervenor who participated in the hearing preceding the issuance
6-16     of the order. An appeal is not moot if during its pendency a
6-17     sealing order expires by its terms.  An appeal does not extend the
6-18     duration of a temporary or extended sealing order beyond the
6-19     periods provided by this article.  The appellate court may abate
6-20     the appeal and order the trial court to direct that further public
6-21     notice be given, to hold further hearings, or to make additional
6-22     findings. Error in the sealing or unsealing of an affidavit does
6-23     not constitute reversible error affecting the final judgment of a
6-24     conviction.  The only remedy an appellate court may enter to
6-25     correct an error in the sealing or unsealing of a search warrant
6-26     affidavit is to reverse, vacate, or modify the sealing or unsealing
6-27     order.
 7-1           SECTION 3.  This Act takes effect September 1, 2001, and
 7-2     applies only to a search warrant the affidavit for which is filed
 7-3     on or after that date.