By: Pea H.B. No. 3919
A BILL TO BE ENTITLED
AN ACT
relating to a qualified privilege of a journalist not to testify in
an administrative, executive, legislative, or civil judicial
proceeding.
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 IN
ADMINISTRATIVE, EXECUTIVE, LEGISLATIVE, OR CIVIL JUDICIAL
PROCEEDINGS
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 civil 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
other than a judge presiding in a criminal proceeding;
(B) a juror in a civil proceeding;
(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, other than an attorney
representing the state or a defendant in a criminal matter, 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.
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 journalist may not be compelled 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, when 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 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 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.
Sec. 22.025. LIMITED DISCLOSURE: INFORMATION OBTAINED BY
OBSERVING CRIME OR FROM PERSON ALLEGED TO HAVE COMMITTED A CRIME;
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; or
(2) 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, this section does not apply, and Section 22.024 governs the
act.
(c) Notwithstanding Subsection (b), Subsection (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.
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 the 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. This Act applies only to information, documents,
items, or the confidential 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 3. This Act takes effect September 1, 2009.