Texas 2009 - 81st Regular

Texas House Bill HB3919 Compare Versions

Only one version of the bill is available at this time.

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1	1	By: Pea H.B. No. 3919
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to a qualified privilege of a journalist not to testify in
7	7	an administrative, executive, legislative, or civil judicial
8	8	proceeding.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 22, Civil Practice and Remedies Code, is
11	11	amended by adding Subchapter C to read as follows:
12	12	SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE IN
13	13	ADMINISTRATIVE, EXECUTIVE, LEGISLATIVE, OR CIVIL JUDICIAL
14	14	PROCEEDINGS
15	15	Sec. 22.021. DEFINITIONS. In this subchapter:
16	16	(1) "Communication service provider" means a person or
17	17	the parent, subsidiary, division, or affiliate of a person who
18	18	transmits information chosen by a customer by electronic means,
19	19	including:
20	20	(A) a telecommunications carrier, as defined by
21	21	Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
22	22	(B) a provider of information service, as defined
23	23	by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
24	24	(C) a provider of interactive computer service,
25	25	as defined by Section 230, Communications Act of 1934 (47 U.S.C.
26	26	Section 230); and
27	27	(D) an information content provider, as defined
28	28	by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
29	29	(2) "Journalist" means a person, including a parent,
30	30	subsidiary, division, or affiliate of a person, that for a
31	31	substantial portion of the person's livelihood or for substantial
32	32	financial gain, gathers, compiles, prepares, collects,
33	33	photographs, records, writes, edits, reports, investigates,
34	34	processes, or publishes news or information that is disseminated by
35	35	a news medium or communication service provider and includes:
36	36	(A) a person who supervises or assists in
37	37	gathering, preparing, and disseminating the news or information; or
38	38	(B) notwithstanding the foregoing, a person who
39	39	is or was a journalist, scholar, or researcher employed by an
40	40	institution of higher education at the time the person obtained or
41	41	prepared the requested information, or a person who at the time the
42	42	person obtained or prepared the requested information:
43	43	(i) is earning a significant portion of the
44	44	person's livelihood by obtaining or preparing information for
45	45	dissemination by a news medium or communication service provider;
46	46	or
47	47	(ii) was serving as an agent, assistant,
48	48	employee, or supervisor of a news medium or communication service
49	49	provider.
50	50	(3) "News medium" means a newspaper, magazine or
51	51	periodical, book publisher, news agency, wire service, radio or
52	52	television station or network, cable, satellite, or other
53	53	transmission system or carrier or channel, or a channel or
54	54	programming service for a station, network, system, or carrier, or
55	55	an audio or audiovisual production company or Internet company or
56	56	provider, or the parent, subsidiary, division, or affiliate of that
57	57	entity, that disseminates news or information to the public by any
58	58	means, including:
59	59	(A) print;
60	60	(B) television;
61	61	(C) radio;
62	62	(D) photographic;
63	63	(E) mechanical;
64	64	(F) electronic; and
65	65	(G) other means, known or unknown, that are
66	66	accessible to the public.
67	67	(4) "Official proceeding" means any type of
68	68	administrative, executive, legislative, or civil judicial
69	69	proceeding that may be conducted before a public servant.
70	70	(5) "Public servant" means a person elected, selected,
71	71	appointed, employed, or otherwise designated as one of the
72	72	following, even if the person has not yet qualified for office or
73	73	assumed the person's duties:
74	74	(A) an officer, employee, or agent of government
75	75	other than a judge presiding in a criminal proceeding;
76	76	(B) a juror in a civil proceeding;
77	77	(C) an arbitrator, referee, or other person who
78	78	is authorized by law or private written agreement to hear or
79	79	determine a cause or controversy;
80	80	(D) an attorney, other than an attorney
81	81	representing the state or a defendant in a criminal matter, or
82	82	notary public when participating in the performance of a
83	83	governmental function; or
84	84	(E) a person who is performing a governmental
85	85	function under a claim of right, although the person is not legally
86	86	qualified to do so.
87	87	Sec. 22.022. PURPOSE. The purpose of this subchapter is to
88	88	increase the free flow of information and preserve a free and active
89	89	press and, at the same time, protect the right of the public to
90	90	effective law enforcement and the fair administration of justice.
91	91	Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided
92	92	by this subchapter, a journalist may not be compelled to testify
93	93	regarding or to produce or disclose in an official proceeding:
94	94	(1) any confidential or nonconfidential information,
95	95	document, or item obtained or prepared while acting as a
96	96	journalist; or
97	97	(2) the source of any information, document, or item
98	98	described by Subdivision (1).
99	99	(b) A subpoena or other compulsory process may not compel
100	100	the parent, subsidiary, division, or affiliate of a communication
101	101	service provider or news medium to disclose the information,
102	102	documents, or items or the source of any information, documents, or
103	103	items that are privileged from disclosure under Subsection (a).
104	104	Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice
105	105	and an opportunity to be heard, a court may compel a journalist, a
106	106	journalist's employer, or a person with an independent contract
107	107	with a journalist to testify regarding or to produce or disclose any
108	108	information, document, or item or the source of any information,
109	109	document, or item obtained while acting as a journalist, other than
110	110	as described by Section 22.025, if the person seeking the
111	111	information, document, or item or the source of any information,
112	112	document, or item makes a clear and specific showing that:
113	113	(1) all reasonable efforts have been exhausted to
114	114	obtain the information from an alternative source;
115	115	(2) the subpoena is not overbroad, unreasonable, or
116	116	oppressive and, when appropriate, will be limited to the
117	117	verification of published information and the surrounding
118	118	circumstances relating to the accuracy of the published
119	119	information;
120	120	(3) reasonable and timely notice was given of the
121	121	demand for the information, document, or item;
122	122	(4) in this instance, the interest of the party
123	123	subpoenaing the information outweighs the public interest in
124	124	gathering and dissemination of news, including the concerns of the
125	125	journalist;
126	126	(5) the subpoena or compulsory process is not being
127	127	used to obtain peripheral, nonessential, or speculative
128	128	information; and
129	129	(6) the information, document, or item is relevant and
130	130	material to the proper administration of the official proceeding
131	131	for which the testimony, production, or disclosure is sought and is
132	132	essential to the maintenance of a claim or defense of the person
133	133	seeking the testimony, production, or disclosure.
134	134	Sec. 22.025. LIMITED DISCLOSURE: INFORMATION OBTAINED BY
135	135	OBSERVING CRIME OR FROM PERSON ALLEGED TO HAVE COMMITTED A CRIME;
136	136	PREVENTION OF CERTAIN HARMS. (a) A journalist may be compelled to
137	137	testify regarding or to produce or disclose any information,
138	138	document, or item or the source of any information, document, or
139	139	item obtained while acting as a journalist if the person seeking the
140	140	testimony, production, or disclosure makes a clear and specific
141	141	showing that the information, document, or item or the source of any
142	142	information, document, or item:
143	143	(1) was obtained as the result of an eyewitness
144	144	observation of criminal conduct by the journalist and a court
145	145	determines by clear and specific evidence that the person
146	146	requesting the testimony, production, or disclosure has exhausted
147	147	reasonable efforts to obtain the information, document, or item
148	148	from alternative sources; or
149	149	(2) is reasonably necessary to stop or prevent
150	150	reasonably certain death or substantial bodily harm.
151	151	(b) If the alleged criminal conduct is the act of
152	152	communicating, receiving, or possessing the information, document,
153	153	or item, this section does not apply, and Section 22.024 governs the
154	154	act.
155	155	(c) Notwithstanding Subsection (b), Subsection (a)(1)
156	156	applies to any information, document, or item disclosed or received
157	157	in violation of a grand jury oath given to either a juror or a
158	158	witness under Article 19.34 or 20.16, Code of Criminal Procedure.
159	159	Sec. 22.026. NOTICE. An order to compel testimony,
160	160	production, or disclosure to which a journalist has asserted a
161	161	privilege under this subchapter may be issued only after timely
162	162	notice to the journalist, the journalist's employer, or a person
163	163	who has an independent contract with the journalist and a hearing.
164	164	The order must include clear and specific findings as to the showing
165	165	made by the person seeking the testimony, production, or disclosure
166	166	and the clear and specific evidence on which the court relied in
167	167	issuing the court's order.
168	168	Sec. 22.027. PUBLICATION OF PRIVILEGED INFORMATION.
169	169	Publication or dissemination by a news medium or communication
170	170	service provider of information, documents, or items privileged
171	171	under this subchapter is not a waiver of the journalist's
172	172	privilege.
173	173	SECTION 2. This Act applies only to information, documents,
174	174	items, or the confidential source of any information, document, or
175	175	item obtained or prepared for publication in a news medium or
176	176	communication service provider on or after the effective date of
177	177	this Act.
178	178	SECTION 3. This Act takes effect September 1, 2009.