Background

• Texas Code of Criminal Procedure art. 18.01(b) states "the affidavit is public information if executed," and requires a sworn affidavit when requesting a search warrant.
• The requester (Taylor County Criminal District Attorney) asked whether "executed" means when the affidavit is sworn and filed or when the peace officer executes the search warrant.
• The Attorney General analyzed the plain text of art. 18.01(b) and contrasted it with art. 18.011(b), which separately references execution of the search warrant.
• The opinion explains ordinary meanings of "execute," notes that executing an affidavit normally means swearing to and filing the affidavit, and analogizes to mechanic's lien precedent.
• The opinion recognizes policy concerns about forewarning suspects before a warrant is carried out but points to art. 18.011(a) as the statutory mechanism to seal affidavits in limited circumstances.
• The AG concludes that, under the statute's plain language, a search-warrant affidavit becomes public when it is sworn to and filed (i.e., when the affidavit itself is executed).

Issues

Key Cases Cited

• Mid Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323 S.W.3d 151 (Tex. 2010) (discusses multiple meanings of "execute")
• Liverman v. State, 470 S.W.3d 831 (Tex. Crim. App. 2015) (affidavit executed when filed with county clerk analogy)
• Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. 2006) (swearing is essential to create an affidavit)
• Houston Chronicle Publ'g Co. v. Woods, 949 S.W.2d 492 (Tex. App.—Beaumont 1997) (characterized affidavits accompanying executed warrants as public)
• Tijerina v. City of Tyler, 846 S.W.2d 825 (Tex. 1992) (courts must not rewrite plainly worded statutes for policy reasons)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (courts refrain from rewriting legislative text)