81R7218 CAE-F
By: Pena H.B. No. 1885
A BILL TO BE ENTITLED
AN ACT
relating to a qualified privilege of a journalist not to testify.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 22, Civil Practice and Remedies Code, is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
Sec. 22.021. DEFINITIONS. In this subchapter:
(1) "Communication service provider" means a person or
the parent, subsidiary, division, or affiliate of a person who
transmits information chosen by a customer by electronic means,
including:
(A) a telecommunications carrier, as defined by
Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
(B) a provider of information service, as defined
by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
(C) a provider of interactive computer service,
as defined by Section 230, Communications Act of 1934 (47 U.S.C.
Section 230); and
(D) an information content provider, as defined
by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
(2) "Journalist" means a person, including a parent,
subsidiary, division, or affiliate of a person, that for a
substantial portion of the person's livelihood or for substantial
financial gain, gathers, compiles, prepares, collects,
photographs, records, writes, edits, reports, investigates,
processes, or publishes news or information that is disseminated by
a news medium or communication service provider and includes:
(A) a person who supervises or assists in
gathering, preparing, and disseminating the news or information;
or
(B) notwithstanding the foregoing, a person who
is or was a journalist, scholar, or researcher employed by an
institution of higher education at the time the person obtained or
prepared the requested information, or a person who at the time the
person obtained or prepared the requested information:
(i) is earning a significant portion of the
person's livelihood by obtaining or preparing information for
dissemination by a news medium or communication service provider;
or
(ii) was serving as an agent, assistant,
employee, or supervisor of a news medium or communication service
provider.
(3) "News medium" means a newspaper, magazine or
periodical, book publisher, news agency, wire service, radio or
television station or network, cable, satellite, or other
transmission system or carrier or channel, or a channel or
programming service for a station, network, system, or carrier, or
an audio or audiovisual production company or Internet company or
provider, or the parent, subsidiary, division, or affiliate of that
entity, that disseminates news or information to the public by any
means, including:
(A) print;
(B) television;
(C) radio;
(D) photographic;
(E) mechanical;
(F) electronic; and
(G) other means, known or unknown, that are
accessible to the public.
(4) "Official proceeding" means any type of
administrative, executive, legislative, or judicial proceeding
that may be conducted before a public servant.
(5) "Public servant" means a person elected, selected,
appointed, employed, or otherwise designated as one of the
following, even if the person has not yet qualified for office or
assumed the person's duties:
(A) an officer, employee, or agent of government;
(B) a juror or grand juror;
(C) an arbitrator, referee, or other person who
is authorized by law or private written agreement to hear or
determine a cause or controversy;
(D) an attorney or notary public when
participating in the performance of a governmental function; or
(E) a person who is performing a governmental
function under a claim of right, although the person is not legally
qualified to do so.
(6) "Violent offense" has the meaning assigned by
Article 17.032(a), Code of Criminal Procedure, and also includes
those crimes found in Sections 22.07, 43.25, 43.26(e), and 71.022,
Penal Code.
Sec. 22.022. PURPOSE. The purpose of this subchapter is to
increase the free flow of information and preserve a free and active
press and, at the same time, protect the right of the public to
effective law enforcement and the fair administration of justice.
Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided
by this subchapter, a judicial, legislative, administrative, or
other body with the authority to issue a subpoena or other
compulsory process may not compel a journalist to testify regarding
or to produce or disclose in an official proceeding:
(1) any confidential or nonconfidential information,
document, or item obtained or prepared while acting as a
journalist; or
(2) the source of any information, document, or item
described by Subdivision (1).
(b) A subpoena or other compulsory process may not compel
the parent, subsidiary, division, or affiliate of a communication
service provider or news medium to disclose the information,
documents, or items or the source of any information, documents, or
items that are privileged from disclosure under Subsection (a).
Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice
and an opportunity to be heard, a court may compel a journalist, a
journalist's employer, or a person with an independent contract
with a journalist to testify regarding or to produce or disclose any
information, document, or item or the source of any information,
document, or item obtained while acting as a journalist, other than
as described by Section 22.025, if the person seeking the
information, document, or item or the source of any information,
document, or item makes a clear and specific showing that:
(1) all reasonable efforts have been exhausted to
obtain the information from an alternative source;
(2) the subpoena is not overbroad, unreasonable, or
oppressive and, if appropriate, will be limited to the verification
of published information and the surrounding circumstances
relating to the accuracy of the published information;
(3) reasonable and timely notice was given of the
demand for the information, document, or item;
(4) in this instance, the interest of the party
subpoenaing the information, document, or item outweighs the public
interest in gathering and dissemination of news, including the
concerns of the journalist;
(5) the subpoena or compulsory process is not being
used to obtain peripheral, nonessential, or speculative
information; and
(6) the information, document, or item:
(A) is relevant and material to the proper
administration of the official proceeding for which the testimony,
production, or disclosure is sought and is essential to the
maintenance of a claim or defense of the person seeking the
testimony, production, or disclosure; or
(B) is central to the investigation or
prosecution of a criminal case regarding the establishment of guilt
or innocence and, based on something other than the assertion of the
person requesting the subpoena, reasonable grounds exist to believe
that a crime has occurred.
Sec. 22.025. LIMITED DISCLOSURE: INFORMATION OBTAINED BY
OBSERVING CRIME OR PERSON ALLEGED TO HAVE COMMITTED CERTAIN CRIMES;
PREVENTION OF CERTAIN HARMS. (a) A journalist may be compelled to
testify regarding or to produce or disclose any information,
document, or item or the source of any information, document, or
item obtained while acting as a journalist if the person seeking the
testimony, production, or disclosure makes a clear and specific
showing that the information, document, or item or the source of any
information, document, or item:
(1) was obtained as the result of an eyewitness
observation of criminal conduct by the journalist and a court
determines by clear and specific evidence that the person
requesting the testimony, production, or disclosure has exhausted
reasonable efforts to obtain the information, document, or item
from alternative sources;
(2) was obtained from any person who has confessed or
admitted to the commission of a violent offense or to a crime
against a child victim younger than 14 years of age at the time the
offense was committed and a court determines by clear and specific
evidence that the person requesting the testimony, production, or
disclosure has exhausted reasonable efforts to obtain the
information, document, or item from alternative sources;
(3) was obtained from any person for whom probable
cause exists that the person has participated in a violent offense
or in a crime against a child victim younger than 14 years of age at
the time the offense was committed and a court determines by clear
and specific evidence that the person requesting the testimony,
production, or disclosure has exhausted reasonable efforts to
obtain the information, document, or item from alternative sources;
or
(4) is reasonably necessary to stop or prevent
reasonably certain death or substantial bodily harm.
(b) If the alleged criminal conduct is the act of
communicating, receiving, or possessing the information, document,
or item and the information, document, or item does not relate to
conduct contained in Section 22.021(6), this section does not
apply, and Section 22.024 governs the act. Notwithstanding the
preceding sentence, Section 22.025(a)(1) applies to any
information, document, or item disclosed or received in violation
of a grand jury oath given to either a juror or a witness under
Article 19.34 or 20.16, Code of Criminal Procedure.
(c) An application for a subpoena of a journalist under
Article 24.03, Code of Criminal Procedure, or a subpoena of a
journalist issued by an attorney representing the state under
Article 20.10 or 20.11, Code of Criminal Procedure, must be signed
by the elected district attorney, elected criminal district
attorney, or elected county attorney, as applicable. If the
elected district attorney, elected criminal district attorney, or
elected county attorney has been disqualified or recused, the
application for the subpoena or the subpoena must be signed by the
person succeeding the elected attorney.
Sec. 22.026. NOTICE. An order to compel testimony,
production, or disclosure to which a journalist has asserted a
privilege under this subchapter may be issued only after timely
notice to the journalist, the journalist's employer, or a person
who has an independent contract with a journalist and a hearing.
The order must include clear and specific findings as to the showing
made by the person seeking the testimony, production, or disclosure
and the clear and specific evidence on which the court relied in
issuing the court's order.
Sec. 22.027. PUBLICATION OF PRIVILEGED INFORMATION.
Publication or dissemination by a news medium or communication
service provider of information, documents, or items privileged
under this subchapter is not a waiver of the journalist's
privilege.
SECTION 2. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.11 to read as follows:
Art. 38.11. JOURNALIST'S TESTIMONIAL PRIVILEGE.
Subchapter C, Chapter 22, Civil Practice and Remedies Code, applies
to a criminal proceeding.
SECTION 3. This Act applies only to information, documents,
or items or the source of any information, document, or item
obtained or prepared for publication in a news medium or
communication service provider on or after the effective date of
this Act.
SECTION 4. This Act takes effect September 1, 2009.