1-1 By: Wentworth S.B. No. 120
1-2 (In the Senate - Filed November 16, 2000; January 11, 2001,
1-3 read first time and referred to Committee on Jurisprudence;
1-4 February 21, 2001, reported favorably, as amended, by the following
1-5 vote: Yeas 6, Nays 0; February 21, 2001, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Wentworth
1-7 Amend S.B. No. 120 as follows:
1-8 (1) On page 3, lines 13-14, strike Subdivision (2) and
1-9 substitute the following:
1-10 (2) affect the right of a defendant to obtain a copy
1-11 of the affidavit.
1-12 (2) On page 1, line 40, insert "factual" between "a" and
1-13 "showing".
1-14 A BILL TO BE ENTITLED
1-15 AN ACT
1-16 relating to the sealing of certain affidavits on which search
1-17 warrants are based.
1-18 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-19 SECTION 1. Subsection (b), Article 18.01, Code of Criminal
1-20 Procedure, is amended to read as follows:
1-21 (b) No search warrant shall issue for any purpose in this
1-22 state unless sufficient facts are first presented to satisfy the
1-23 issuing magistrate that probable cause does in fact exist for its
1-24 issuance. A sworn affidavit setting forth substantial facts
1-25 establishing probable cause shall be filed in every instance in
1-26 which a search warrant is requested. Except as provided by Article
1-27 18.011, the [The] affidavit is public information if executed, and
1-28 the magistrate's clerk shall make a copy of the affidavit available
1-29 for public inspection in the clerk's office during normal business
1-30 hours.
1-31 SECTION 2. Chapter 18, Code of Criminal Procedure, is
1-32 amended by adding Article 18.011 to read as follows:
1-33 Art. 18.011. SEALING OF SEARCH WARRANT AFFIDAVIT
1-34 Sec. 1. REQUEST TO SEAL AFFIDAVIT. An attorney representing
1-35 the state in the prosecution of felonies may request a district
1-36 judge to seal a search warrant affidavit presented under Article
1-37 18.01(b). A search warrant affidavit may be sealed only in
1-38 accordance with this article.
1-39 Sec. 2. STANDARD FOR SEALING. A search warrant affidavit
1-40 may be sealed only on a showing that:
1-41 (1) sealing is necessary for serious, specific, and
1-42 substantial reasons to:
1-43 (A) protect the safety of a confidential
1-44 informant, witness, or peace officer;
1-45 (B) prevent the destruction of evidence;
1-46 (C) prevent the disclosure of information
1-47 obtained from a court-ordered wiretap that has not expired at the
1-48 time the attorney representing the state requests the sealing of
1-49 the search warrant affidavit; or
1-50 (D) prevent flight from arrest or prosecution;
1-51 and
1-52 (2) no less restrictive means other than sealing the
1-53 affidavit would adequately and effectively protect the specific
1-54 interest asserted.
1-55 Sec. 3. TEMPORARY SEALING ORDER. (a) A temporary order
1-56 sealing a search warrant affidavit may issue on a written motion
1-57 showing compelling need from specific facts shown by affidavit
1-58 that:
1-59 (1) sealing is necessary to prevent immediate and
1-60 irreparable injury to a specific interest listed in Section 2(1);
1-61 and
1-62 (2) no less restrictive means other than sealing the
1-63 affidavit would adequately and effectively protect the specific
2-1 interest asserted.
2-2 (b) A temporary sealing order expires three days after
2-3 execution of the search warrant, unless extended as provided by
2-4 this article. The court may extend the temporary order once for an
2-5 additional period of not more than 10 days, but only if the state
2-6 posts notice in the manner provided by Section 4(b). The court may
2-7 modify or withdraw any temporary order on motion by any party or
2-8 intervenor at a hearing conducted as soon as practicable. Issuance
2-9 of a temporary order does not reduce the state's burden of proof
2-10 for an extended sealing order at the hearing required by Section
2-11 4(d).
2-12 (c) Not later than the third business day after execution of
2-13 the search warrant, the state shall post at the place where notices
2-14 for meetings of county governmental bodies are required to be
2-15 posted a copy of:
2-16 (1) the temporary sealing order;
2-17 (2) the motion for temporary sealing;
2-18 (3) any affidavit supporting the motion for temporary
2-19 sealing; and
2-20 (4) the search warrant.
2-21 Sec. 4. EXTENDED SEALING ORDER. (a) The court, after
2-22 motion, notice, and hearing as provided by this section, may enter
2-23 an order extending the sealing of the affidavit for an additional
2-24 period of not more than 60 days.
2-25 (b) The state may not move to extend a sealing order unless
2-26 before the fourth day after execution of the search warrant the
2-27 state posts a public notice at the place where notices for meetings
2-28 of county governmental bodies are required to be posted. The
2-29 notice must state:
2-30 (1) that a hearing on the state's motion for extended
2-31 sealing in the specific case will be held in open court;
2-32 (2) that any person may intervene and be heard
2-33 concerning the motion for extended sealing;
2-34 (3) the specific time and place of the hearing; and
2-35 (4) the style and number of the case.
2-36 (c) Immediately after posting notice under Subsection (b),
2-37 the state shall file a verified copy of the posted notice with the
2-38 clerk of the court in which the case is pending and with the clerk
2-39 of the court of criminal appeals.
2-40 (d) A public hearing on a motion for extended sealing must
2-41 be held in court as soon as practicable, but not less than 10 days
2-42 after the date on which the motion is filed and notice is posted.
2-43 At the hearing, the state must prove by a preponderance of the
2-44 evidence the existence of facts described by Section 2. Any party
2-45 may participate in the hearing. A nonparty may intervene as a
2-46 matter of right for the limited purpose of participating in the
2-47 proceedings on payment of the fee required for filing a plea in
2-48 intervention. The court may inspect in camera as necessary the
2-49 search warrant affidavit, but not an affidavit supporting or
2-50 opposing sealing. The court may determine a motion relating to
2-51 sealing or unsealing of an affidavit in accordance with the
2-52 procedures prescribed by Rule 120a, Texas Rules of Civil Procedure,
2-53 except that any intervenor may file and serve affidavits three days
2-54 before the hearing on the motion for extended sealing.
2-55 Sec. 5. WRITTEN MOTION. A search warrant affidavit may be
2-56 sealed by temporary or extended order only on the state's written
2-57 motion. The state's motion is open to public inspection as
2-58 provided by this article.
2-59 Sec. 6. ORDERS. (a) A motion relating to temporary or
2-60 extended sealing or unsealing of a search warrant affidavit may be
2-61 decided only by written order. The order must be open to public
2-62 inspection and must state:
2-63 (1) the style and number of the case;
2-64 (2) the specific reasons for finding and concluding
2-65 whether the showing required by Section 2 has been made;
2-66 (3) the specific portions of the search warrant
2-67 affidavit that are to be sealed; and
2-68 (4) the period for which the sealed portions of the
2-69 affidavits are to be sealed.
3-1 (b) The order may not be included in any judgment or other
3-2 order and must be a separate document in the case. The failure of
3-3 the state or the court to comply with this section does not affect
3-4 any party's right to appeal.
3-5 (c) On the expiration of a sealing order the affidavit must
3-6 be unsealed, unless the order is extended as provided by this
3-7 article.
3-8 (d) An order issued under this article may not:
3-9 (1) seal or prohibit the disclosure of information
3-10 relating to the contents of a search warrant, the return of a
3-11 search warrant, or the inventory of property taken pursuant to a
3-12 search warrant; or
3-13 (2) affect the right of a defendant to discover the
3-14 contents of an affidavit.
3-15 Sec. 7. CONTINUING JURISDICTION. Any person may intervene
3-16 as a matter of right at any time before or after judgment to unseal
3-17 a search warrant affidavit. A court that issues a sealing order
3-18 retains continuing jurisdiction to enforce, alter, or vacate that
3-19 order. An order sealing or unsealing a search warrant affidavit
3-20 may not be reconsidered on motion of any party or intervenor who
3-21 had actual notice of the hearing preceding issuance of the order
3-22 unless there is a showing of changed circumstances materially
3-23 affecting the order. Such circumstances need not be related to the
3-24 case in which the order was issued.
3-25 Sec. 8. APPEAL. Any order or portion of an order or
3-26 judgment relating to the temporary or extended sealing or unsealing
3-27 of a search warrant affidavit is considered to be severed from the
3-28 case and a final judgment and may be appealed by any party or
3-29 intervenor who participated in the hearing preceding the issuance
3-30 of the order. An appeal is not moot if during its pendency a
3-31 sealing order expires by its terms. An appeal does not extend the
3-32 duration of a temporary or extended sealing order beyond the
3-33 periods provided by this article. The appellate court may abate
3-34 the appeal and order the trial court to direct that further public
3-35 notice be given, to hold further hearings, or to make additional
3-36 findings. Error in the sealing or unsealing of an affidavit does
3-37 not constitute reversible error affecting the final judgment of a
3-38 conviction. The only remedy an appellate court may enter to
3-39 correct an error in the sealing or unsealing of a search warrant
3-40 affidavit is to reverse, vacate, or modify the sealing or unsealing
3-41 order.
3-42 SECTION 3. This Act takes effect September 1, 2001, and
3-43 applies only to a search warrant the affidavit for which is filed
3-44 on or after that date.
3-45 * * * * *