TX11: Face-to-face swearing to a SW affidavit not required; fax will do

A face-to-face meeting better the affiant for a search warrant and the issuing magistrate is not required. Here, they recognized each other’s voices, the affiant swore over the phone and faxed the affidavit to the magistrate who faxed back the signed search warrant. Clay v. State, 382 S.W.3d 465 (Tex. App. – Waco March 21, 2012), discretionary review granted by Clay, 2012 Tex. Crim. App. LEXIS 847 (Tex. Crim.
App. June 27, 2012):

The second statement relied upon by Clay is a comment by the Court that, while recognizing innovations such as telephonic search warrants should not be foreclosed by the requirement of a signed affidavit, “[w]e leave those potential future changes to the Texas Legislature….” Smith v. State, 207 S.W.3d 787, 793 (Tex. Crim. App. 2006). This statement, Clay believes, is an acknowledgment that a procedure to obtain warrants by telephone and facsimile has not been authorized by statute, does not exist under Texas law, and therefore cannot be a valid practice in Texas at the present time. We believe it is not such an acknowledgement and certainly is not such a prohibition. As the Court stated, it is important for the law to retain some flexibility in the face of technological advances. Id. at 792. Had there been no flexibility in the statute, the Smith Court would have been compelled to hold that a signed affidavit was required. It did not. And thus, the statute is also flexible so as to allow for the taking of an oath over the telephone or by some other electronic means of communication under certain circumstances. That is the nature of the development of the common law. We must decide only the issue presented—in this case, is the affidavit invalid because it was not made on an oath administered face-to-face.