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.