HBA-KDB S.B. 120 77(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 120
By: Wentworth
Criminal Jurisprudence
4/30/2001
Engrossed

BACKGROUND AND PURPOSE 

Under current law, a search warrant affidavit (affidavit) becomes public
information once it has been executed.  However, there may be several
substantial reasons for sealing an affidavit such as protecting the safety
of a witness or preventing the destruction of evidence.  Senate Bill 120
authorizes an attorney representing the state in the prosecution of
felonies to request that a district judge seal an affidavit under certain
circumstances. 

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. 

ANALYSIS

Senate Bill 120 amends the Code of Criminal Procedure to authorize an
attorney representing the state in the prosecution of felonies to request a
district judge to seal a search warrant affidavit (affidavit) (Sec. 1, Art.
18.011).  The bill sets forth standards for sealing an affidavit and
provisions regarding temporary and extended sealing orders (Secs. 2-4, Art.
18.011).  The bill provides that an affidavit may be sealed by temporary or
extended order only on the state's written motion, which is open to public
inspection (Sec. 5, Art. 18.011).  The bill provides that a motion relating
to temporary or extended sealing or unsealing of an affidavit may be
decided only by written order, which must be open to public inspection.
The bill sets forth specifications regarding a written order (Sec. 6, Art.
18.011). 

The bill authorizes any person to intervene as a matter of right at any
time before or after judgment to unseal an affidavit.  The bill provides
that a court that issues a sealing order retains continuing jurisdiction to
enforce, alter, or vacate that order and prohibits an order sealing or
unsealing an affidavit from being reconsidered on motion of any party or
intervenor who had actual notice of the hearing preceding issuance of the
order unless there is a showing of changed circumstances materially
affecting the order (Sec. 7, Art. 18.011). 

The bill provides that any order or portion of an order or judgment
relating to the temporary or extended sealing or unsealing of an affidavit
is considered to be severed from the case and a final judgment and may be
appealed by any party or intervenor who participated in the hearing
preceding the issuance of the order. The bill provides that an appeal is
not moot if during its pendency a sealing order expires by its terms and
that an appeal does not extend the duration of a temporary or extended
sealing order beyond the provided periods.  The bill authorizes the
appellate court to abate the appeal and order the trial court to direct
that further public notice be given, to hold further hearings, or to make
additional findings.  The bill provides that error in the sealing or
unsealing of an affidavit does not constitute reversible error affecting
the final judgment of a conviction.  The only remedy an appellate court is
authorized to enter to correct an error in the sealing or unsealing of an
affidavit is to reverse, vacate, or modify the sealing or unsealing order
(Sec. 8, Art. 18.011). 

EFFECTIVE DATE

September 1, 2001.