When does a Texas search warrant affidavit become a public record?

Plain-English summary

The Taylor County Criminal District Attorney asked the AG a timing question with real consequences. Article 18.01(b) of the Code of Criminal Procedure says a search warrant affidavit "is public information if executed," and the magistrate's clerk must make it available for public inspection. The dispute was over the word "executed." The DA's office took the position that the affidavit becomes public when a peace officer executes the search warrant (carries out the search). Several district court judges, on the other hand, were concerned that "execution" here means when the affidavit itself is signed and sworn to.

The AG started with the plain text. The statute says the affidavit is public if the affidavit is executed; it does not say the affidavit is public if the search warrant is executed. The AG contrasted a neighboring provision, article 18.011(b), which expressly ties a deadline to when "the search warrant ... is executed," to show the Legislature knew how to refer to the warrant when it meant the warrant. Reading the words as written, the affidavit becomes public when the affidavit is executed.

The AG then explained what it means to "execute" an affidavit. The term has several meanings, but an affidavit is just a declaration of facts written down and sworn to. Executing an affidavit therefore means bringing it into its final, legally enforceable form, by swearing to it and, where required, filing it with the court or clerk. That is different from executing a search warrant, which means carrying out the search. So a court would likely conclude that a search warrant affidavit becomes executed, and thus public, when it is sworn to and filed with the court, which happens every time a search warrant is requested.

The AG took the DA's policy concern seriously: making an affidavit public before the search could tip off a target that a search is coming. But the AG said courts cannot rewrite plain statutory language based on policy preferences, and it pointed to the fix the Legislature already provided. Under article 18.011, a prosecutor in a felony case can ask a district or appellate judge to seal an affidavit before the warrant is executed if disclosure would jeopardize a victim, witness, or informant, cause destruction of evidence, or reveal an unexpired court-ordered wiretap. The AG acknowledged it was possible the Legislature meant to tie publicity to the warrant's execution (the bill's author seemed to think so), but said a court enforces the words actually enacted unless they create an absurdity, and noted a then-pending bill that would amend the statute to make the affidavit public when the warrant is executed.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting district attorney (as the opinion described it): The opinion answered that a court would likely conclude a search warrant affidavit becomes public when it is sworn to and filed with the court, rather than when a peace officer executes the warrant, and it directed prosecutors with confidentiality concerns to the sealing procedure in article 18.011.

Magistrate's clerks and courts (as the opinion described them): The opinion explained that under the plain text, the affidavit is public information once executed (sworn to and filed), so the clerk's duty to make it available for inspection attaches at that point unless the affidavit has been sealed.

Prosecutors worried about tipping off a target (as the opinion described them): The opinion pointed to article 18.011, which lets an attorney for the state in a felony prosecution ask a judge to seal the affidavit before the warrant is executed on specified grounds, as the Legislature's mechanism for preventing forewarning.

Common questions

Does a search warrant affidavit become public before the search is carried out?
Under this opinion, it can. The AG concluded the affidavit is "executed" and public when it is sworn to and filed with the court, which can occur before a peace officer executes the warrant.

What is the difference between executing an affidavit and executing a warrant?
The opinion explained that executing an affidavit means bringing it into final, legally enforceable form by swearing to it and filing it, while executing a warrant means carrying out the search according to the warrant's terms.

Can a prosecutor keep a search warrant affidavit secret?
Yes, through sealing. The opinion described article 18.011, which lets a felony prosecutor ask a district or appellate judge to seal the affidavit if disclosure would endanger a victim, witness, or informant, cause destruction of evidence, or reveal an unexpired wiretap.

Didn't the bill's author intend the affidavit to be public only after the search?
The opinion acknowledged legislative-history statements suggesting that intent, but said courts enforce the words the Legislature actually enacted unless they create an absurdity, and cannot rewrite plain text to match a possible mistake.

Background and statutory framework

Chapter 18 of the Code of Criminal Procedure sets up the search warrant process (Tex. Code Crim. Proc. arts. 18.01-.24). A magistrate may issue a warrant only on a sworn affidavit establishing probable cause (Tex. Code Crim. Proc. art. 18.01(b)), and the warrant directs officers to search for and seize property (Tex. Code Crim. Proc. arts. 18.01(a), 18.02). An officer must execute the warrant without delay and return it to the magistrate, generally within three days of issuance (Tex. Code Crim. Proc. art. 18.06(a)). Article 18.01(b) makes the affidavit public information "if executed," with the clerk providing it for public inspection.

Applying plain-language rules (Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015); Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008)), the AG declined to read "warrant" into a provision that says "affidavit," contrasting article 18.011(b)'s express reference to execution of the search warrant (In re Bell, 91 S.W.3d 784, 790 (Tex. 2002)). Because "execute" has several meanings (Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 157 (Tex. 2010)), the AG used the meaning fitting an affidavit, a sworn declaration of facts, concluding it is executed when sworn to and filed (Liverman v. State, 470 S.W.3d 831, 838 (Tex. Crim. App. 2015); Smith v. State, 207 S.W.3d 787, 793-94 (Tex. Crim. App. 2006)). The AG noted a Beaumont court had described the statute in terms of executed affidavits accompanying warrants but on facts where the warrant had already been executed, so the precise question was not before it (Houston Chronicle Publ'g Co. v. Woods, 949 S.W.2d 492, 499 (Tex. App.—Beaumont 1997, orig. proceeding); Houston Chronicle Publ'g Co. v. Edwards, 956 S.W.2d 813, 816-17 (Tex. App.—Beaumont 1997, orig. proceeding)). On the policy concern, the AG cited the sealing mechanism in article 18.011(a) and the principle that courts do not rewrite plainly worded statutes for policy reasons or to fix a possible legislative mistake that is not absurd (Tijerina v. City of Tyler, 846 S.W.2d 825, 828 (Tex. 1992); Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)). It observed that a then-pending bill, Tex. H.B. 3237, 85th Leg., R.S. (2017), would amend article 18.01(b) to make the affidavit public when the warrant is executed, and that the original 1981 bill, Tex. H.B. 2153, 67th Leg., R.S. (1981), had said only that the affidavit "is public information."

Citations

Statutes:

• Tex. Code Crim. Proc. arts. 18.01-.24, 18.01(a), 18.01(b), 18.02, 18.011(a), 18.011(b), 18.06(a)

Cases:

• Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015)
• Leland v. Brandal, 257 S.W.3d 204 (Tex. 2008)
• In re Bell, 91 S.W.3d 784 (Tex. 2002)
• Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151 (Tex. 2010)
• Liverman v. State, 470 S.W.3d 831 (Tex. Crim. App. 2015)
• Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006)
• Houston Chronicle Publ'g Co. v. Woods, 949 S.W.2d 492 (Tex. App.—Beaumont 1997, orig. proceeding)
• Houston Chronicle Publ'g Co. v. Edwards, 956 S.W.2d 813 (Tex. App.—Beaumont 1997, orig. proceeding)
• Tijerina v. City of Tyler, 846 S.W.2d 825 (Tex. 1992)
• Brown v. De La Cruz, 156 S.W.3d 560 (Tex. 2004)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0145
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0145.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 24, 2017

The Honorable James Hicks Opinion No. KP-0145
Taylor County Criminal District Attorney
300 Oak Street, Suite 300 Re: When a search warrant affidavit becomes
Abilene, Texas 79602-1577 executed and thus publicly available under
Code of Criminal Procedure article 18.01(b)
(RQ-0138-KP)

Dear Mr. Hicks:

    You ask when Texas law requires that a search warrant affidavit become public information under Code of Criminal Procedure article 18.01(b). [1] Chapter 18 of the Code of Criminal Procedure establishes the search warrant process. See TEX. CODE CRIM. PROC. arts. 18.01-.24. Magistrates may not issue search warrants unless the applicant for the warrant presents sufficient facts to satisfy the issuing magistrate that probable cause exists for its issuance. Id. art. 18.01(b). When requesting a search warrant, the applicant must file a "sworn affidavit setting forth substantial facts establishing probable cause." Id. Upon concluding that probable cause exists, a magistrate issues a search warrant directing peace officers generally "to search for any property or thing and to seize the same and bring it before [the] magistrate." Id. art. 18.01(a); see also id. art. 18.02 (listing the specific items for which a search warrant may be issued). A peace officer receiving a search warrant "shall execute the warrant without delay and forthwith return the warrant to the proper magistrate." Id. art. 18.06(a). A search warrant generally must be executed within three days from the time of its issuance. Id.

   Relevant to your request, Texas law makes public most search warrant affidavits. Article 18.01(b) provides, in relevant part:

            Except as provided by Article 18.011, the affidavit is public information if executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours.

Id. art. 18.01(b). You ask whether a search warrant affidavit is "executed" and thus public information for purposes of this subsection when the affidavit is signed and sworn to before the magistrate or when a peace officer executes the search warrant. Request Letter at 1. Your office takes the position that the affidavit becomes public if and when a peace officer executes the search warrant. Id. at 2. You explain, however, that several district court judges "are concerned that 'execution' in this context refers to when the affidavit is signed and sworn to." Id.

     In construing a statute, our primary objective is "to give effect to the Legislature's intent, which requires us to first look to the statute's plain language." Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015). If that language is unambiguous, we interpret the statute according to its plain meaning. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008). The plain language of article 18.01(b) provides that "the affidavit is public information if executed." TEX. CODE CRIM. PROC. art. 18.01(b) (emphasis added). It does not provide that the affidavit is public information if the search warrant is executed. Cf. id. art. 18.011(b) ("An order sealing an affidavit under this section expires on the 31st day after the date on which the search warrant for which the affidavit was presented is executed." (emphasis added)). In construing statutes, courts do not read into an act a provision that is not there except to give clear effect to legislative intent. In re Bell, 91 S.W.3d 784, 790 (Tex. 2002). Thus, the express language of article 18.01(b) requires that the affidavit becomes public information upon execution of the affidavit itself.

     As the Texas Supreme Court recognized, the term "'execute' has several definitions." Mid-Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151, 157 (Tex. 2010). Common understandings of the term "execute" include "[t]o perform or complete (a contract or duty)," "[t]o change (as a legal interest) from one form to another," and "[t]o make (a legal document) valid by signing; to bring (a legal document) into its final, legally enforceable form." BLACK'S LAW DICTIONARY 689 (10th ed. 2014). Determining the meaning of the term "execute" in a specific statute will depend on its context. Generally, executing a search warrant contemplates carrying out the search according to the terms of the warrant. See TEX. CODE CRIM. PROC. art. 18.06(a) (describing the process for execution of warrants). Unlike a search warrant, which involves the performance of a specific duty, an affidavit is simply a "declaration of facts written down and sworn to by a declarant." BLACK'S LAW DICTIONARY 68 (10th ed. 2014). Executing an affidavit can therefore only mean bringing the affidavit into its final, legally enforceable form, such as by swearing to the statements therein and, to the extent required, filing it with the appropriate court or clerk. See Liverman v. State, 470 S.W.3d 831, 838 (Tex. Crim. App. 2015) (concluding that a mechanic's lien affidavit is executed when filed with the county clerk). Given courts' adherence to the text chosen by the Legislature, a court would likely conclude that a search warrant affidavit becomes executed, and thus public information under article 18.01(b), when sworn to and filed with the court. [2] See TEX. CODE CRIM. PROC. art. 18.01(b) (requiring a sworn affidavit to be filed in every instance when a search warrant is requested); see also Smith v. State, 207 S.W.3d 787, 793-94 (Tex. Crim. App. 2006) (concluding that the act of swearing is the essential element in creating an affidavit, and finding an unsigned affidavit valid where the affiant personally swore to the statements in the affidavit).

    You raise the concern that making a search warrant affidavit public before a peace officer executes the search warrant "would allow criminals to receive forewarning that a search warrant had been issued and was imminent." Request Letter at 2. However, the Legislature, through article 18.011(a), created a mechanism to prevent many of those subject to a search warrant from being forewarned of an impending search by a public affidavit. Article 18.011 allows for the sealing of an affidavit before a peace officer executes the search warrant in certain circumstances: "An attorney representing the state in the prosecution of felonies may request a district judge or the judge of an appellate court to seal an affidavit presented under Article 18.01(b)." TEX. CODE CRIM. PROC. art. 18.011(a). For a judge to seal a search warrant affidavit, the attorney must establish:

            ( 1) public disclosure of the affidavit would jeopardize the safety of a victim, witness, or confidential informant or cause the destruction of evidence; or

            (2) the affidavit contains information obtained from a court-ordered wiretap that has not expired at the time the attorney representing the state requests the sealing of the affidavit.

Id.

    We recognize legitimate policy reasons exist for making all search warrant affidavits public only after a peace officer executes the underlying search warrant. However, we cannot disregard plain statutory language based on our notions of what may constitute good policy. See Tijerina v. City of Tyler, 846 S.W.2d 825, 828 (Tex. 1992) ("While we may permissibly consider public policy in construing the intent of the Legislature from an ambiguous provision, we cannot rewrite or ... deconstruct a plainly worded statute because we believe it does not effectuate sound policy."). We also acknowledge the possibility that, although the Legislature used the words "the affidavit is public information if executed," it may have meant the affidavit is public information if the search warrant for which the affidavit was presented is executed. [3] TEX. CODE CRIM. PROC. art. 18.01(b). "It is at least theoretically possible that legislators—like judges or anyone else—may make a mistake." Brown v. De La Cruz, 156 S.W.3d 560, 566 (Tex. 2004). However, courts are not empowered to fix a mistake by disregarding direct and clear statutory language that does not create an absurdity. Id. Courts "refrain from rewriting text that lawmakers chose." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). Enforcing a law as written is the court's "safest refuge in matters of statutory construction," and a court would likely do so in construing article 18.01(b). Id.

    If the Legislature did not intend for search warrant affidavits to become public until a peace officer executes the warrant, it may revise the statute to that effect. A bill currently pending before the Legislature would amend article 18.01(b) to provide that the affidavit becomes public information when the search warrant for which the affidavit was presented is executed. See Tex. H.B. 3237, 85th Leg., R.S. (2017).

                                 SUMMARY

                  A court construing the plain language of article 18.01(b) of the Code of Criminal Procedure would likely conclude that a search warrant affidavit becomes public information when sworn to and filed with the court.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Honorable James Hicks, Crim. Dist. Att'y, Taylor Cty., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Oct. 24, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] On two separate occasions, one Texas court analyzing article 18.01(b) described the statute to mean: "Affidavits accompanying search warrants, if executed, are public information." Houston Chronicle Publ'g Co. v. Woods, 949 S.W.2d 492, 499 (Tex. App.—Beaumont 1997, orig. proceeding); see also Houston Chronicle Publ'g Co. v. Edwards, 956 S.W.2d 813, 816-17 (Tex. App.—Beaumont 1997, orig. proceeding). The court's description of the law could be read to imply that an affidavit accompanying an unexecuted search warrant is not public information. However, in each of those cases, the search warrant at issue had already been executed, so your specific question was not before the court. Woods, 949 S.W.2d at 493; Edwards, 956 S.W.2d at 814. We cannot assume that the court would reach the same decision when faced with different facts involving a search warrant affidavit accompanying an unexecuted search warrant.

[3] Statements made by the author of the bill that enacted the language suggest the author intended for the search warrant affidavit to become public when the warrant was executed. The original version of that bill stated only that "[t]he affidavit is public information." Tex. H.B. 2153, 67th Leg., R.S. (1981) (Introduced Version). Explaining the substitute bill that contained the current language of the statute, the bill's author stated in relevant part:

            What I've done is require that, first of all, the affidavit, required that the affidavit for the search warrant be public. And what I did is I changed that to require that the affidavit be public information if the warrant was executed. So, if you have an affidavit for a search warrant that never was acted on, then it wouldn't be a public record.

Hearings on Tex. H.B. 2153 Before the House Comm. on Crim. Juris., 67th Leg., R.S. (Apr. 15, 1981).