HBA-NMO S.B. 919 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 919
By: Wentworth
Criminal Jurisprudence
5/13/1999
Engrossed


BACKGROUND AND PURPOSE 

Current law considers executed search warrant affidavits public
information, open to public inspection. Sealing affidavits may protects the
integrity of ongoing investigations.   S.B. 919 authorizes a district or
appellate court, when compelling need is demonstrated, to seal an certain
affidavits on which search warrants are based.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 18.01(b), Code of Criminal Procedure, to provide
an exception to search warrant affidavits being public information if
executed. 

SECTION 2.  Amends Chapter 18, Code of Criminal Procedure, by adding
Article 18.011, as follows: 

Article 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 under Article 18.01(b).
Authorizes that a search warrant affidavit be sealed only in accordance
with this article. 

Sec. 2.  STANDARD FOR SEALING.  Sets forth conditions that must be met
before authority is granted to seal a search warrant affidavit. 

Sec. 3.  TEMPORARY SEALING ORDER.  Authorizes the issuance of a temporary
order sealing a search warrant affidavit on a written motion showing
certain compelling need for sealing.  Sets forth time constraints and
conditions for a temporary sealing order.  Authorizes the court to modify
or withdraw any temporary order by party motion or intervenor at a hearing.
Provides that issuance of a temporary order does not reduce the state's
burden of proof for an extended sealing order at the hearing.  Requires the
state to post certain notices regarding the temporarily sealed order.   

Sec. 4.  EXTENDED SEALING ORDER.  Authorizes the court, after motion,
notice, and hearing as provided by this section, 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 before the fourth day after execution of the search warrant the
state posts  a public notice at the appropriate location.  Sets forth
information required in the notice, and requires the state to file a
verified copy of the notice with the clerk of the court in which the case
is pending and with the clerk of the court of criminal appeals.  Provides
that  a public hearing  be held in court not less than 10 days after the
date on which the motion is filed and notice is posted.  Provides that the
state, at the hearing, must prove the existence of the facts described by
Section 2.  Authorizes any party to participate in the hearing and a
nonparty to intervene to participate in the proceedings on payment of the
fee  required for filing a plea in intervention.  Authorizes the court to
inspect the search warrant affidavit, but not an affidavit supporting or
opposing sealing.  Authorizes the court to determine a motion relating to
sealing or unsealing an affidavit in accordance with certain rules, except
that any intervenor may file and serve affidavits within three days before
the hearing.  

Sec. 5.  WRITTEN MOTION.  Authorizes that a temporary search warrant
affidavit or an extended order be sealed only by the state's written motion
which is open to public inspection.   

Sec. 6.  ORDERS.  Authorizes that a motion related to temporary or extended
sealing or unsealing of a search warrant affidavit be decided only by
written order.  Provides that the order be open to public inspection and
must state certain information regarding the case and affidavit.  Prohibits
the order from being included in any judgment or other order, and provides
that it must be a separate document in the case.  Provides that failure of
the state or court to comply with this section does not affect any party's
right to appeal.  Provides that the affidavit, on the expiration of a
sealing order, must be unsealed, unless the order is extended.  Prohibits
an order issued under this article from certain actions.  

Sec. 7.  CONTINUING JURISDICTION.  Authorizes any person to intervene as a
matter of right at any time before or after judgment to unseal a search
warrant affidavit.  Provides that the issuing court retains continuing
jurisdiction to enforce, alter, or vacate the order. Prohibits an order
from being reconsidered on any motion, unless a material circumstance has
changed that affects the order.  Provides that the circumstances do not
have to be related to the case. 

Sec. 8.  APPEAL.  Provides that any of the preceding orders are considered
to be severed from the case and a final judgment and authorizes any party
or intervenor who participated in the hearing preceding the issuance of the
order to appeal an order.  Provides that an appeal is not moot if during
its pendency a sealing order expires by its terms.  Provides that an appeal
does not extend the duration of a temporary or extending sealing order
beyond the period provided in this article.  Authorizes the appellate court
to abate the appeal and order the trial to direct that further public
notice be given, to hold further hearings, or to make additional findings.
Provides that error in sealing or unsealing of an affidavit does not
constitute reversible error affecting the final judgment of a conviction.
Authorizes an appellate court, as the only remedy to correct an error in
the sealing or unsealing of a search warrant affidavit, to reverse, vacate,
or modify the sealing or unsealing order. 

SECTION 3.Effective date: September 1, 1999.
  Makes application of this Act prospective.