By: Martinez Fischer, Pitts, Gallego, Berman, H.B. No. 670
Lucio III, et al.
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 IN
CIVIL 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, who 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, including a
proceeding under Rule 202, Texas Rules of Civil Procedure.
(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;
(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.
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, 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. 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. 22.026. 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.
Sec. 22.027. NEWS MEDIA RECORDINGS. Extrinsic evidence of
the authenticity of evidence as a condition precedent to the
admissibility of the evidence in a civil proceeding is not required
with respect to a recording that purports to be a broadcast by a
radio or television station that holds a license issued by the
Federal Communications Commission at the time of the recording.
The court may take judicial notice of the recording license as
provided by Rule 201, Texas Rules of Evidence.
SECTION 2. Chapter 38, Code of Criminal Procedure, is
amended by adding Articles 38.11 and 38.111 to read as follows:
Art. 38.11. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
IN CRIMINAL PROCEEDINGS
Sec. 1. DEFINITIONS. In this article:
(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, who 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.
Sec. 2. PURPOSE. The purpose of this article 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. 3. PRIVILEGE CONCERNING CONFIDENTIAL SOURCES. (a) A
journalist may be compelled to testify regarding or to disclose the
confidential 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 source of any information, document, or item:
(1) was observed by the journalist committing a felony
criminal offense and the subpoenaing party has exhausted reasonable
efforts to obtain the confidential source of any information,
document, or item obtained or prepared while acting as a
journalist;
(2) is a person who confessed or admitted to the
journalist the commission of a felony criminal offense and the
subpoenaing party has exhausted reasonable efforts to obtain the
confidential source of any information, document, or item obtained
or prepared while acting as a journalist;
(3) is a person for whom probable cause exists that the
person participated in a felony criminal offense and the
subpoenaing party has exhausted reasonable efforts to obtain the
confidential source of any information, document, or item obtained
or prepared while acting as a journalist; or
(4) disclosure of the confidential source 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 4 governs the act.
(c) Notwithstanding Section 3(b), if the information,
document, or item was 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, a journalist may be compelled to testify if the person
seeking the testimony, production, or disclosure makes a clear and
specific showing that the subpoenaing party has exhausted
reasonable efforts to obtain from alternative sources the
confidential source of any information, document, or item obtained.
In this context, the court has the discretion to conduct an in
camera hearing. The court may not order the production of the
confidential source until a ruling has been made on the motion.
(d) An application for a subpoena of a journalist under
Article 24.03, or a subpoena of a journalist issued by an attorney
representing the state under Article 20.10 or 20.11, 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 or has
resigned, the application for the subpoena or the subpoena must be
signed by the person succeeding the elected attorney. If the
elected officer is not in the jurisdiction, the highest ranking
assistant to the elected officer must sign the subpoena.
Sec. 4. PRIVILEGE CONCERNING UNPUBLISHED INFORMATION,
DOCUMENT, OR ITEM AND NONCONFIDENTIAL SOURCES. (a) After service
of subpoena 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 unpublished 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 3, if the
person seeking the unpublished 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; and
(2) the unpublished 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 and based on something other than the
assertion of the person requesting the subpoena, reasonable grounds
exist to believe that a crime has occurred.
(b) The court, when considering an order to compel testimony
regarding or to produce or disclose any unpublished information,
document, or item or the source of any information, document, or
item obtained while acting as a journalist, should consider the
following factors, including but not limited to whether:
(1) the subpoena is overbroad, unreasonable, or
oppressive;
(2) reasonable and timely notice was given of the
demand for the information, document, or item;
(3) 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; and
(4) the subpoena or compulsory process is being used
to obtain peripheral, nonessential, or speculative information.
(c) A court may not consider a single factor under
Subsection (b) as outcome-determinative in the decision whether to
compel the testimony or the production or disclosure of the
unpublished information, document, or item, or the source of any
information, document, or item.
Sec. 5. NOTICE. An order to compel testimony, production,
or disclosure to which a journalist has asserted a privilege under
this article 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. 6. PUBLICATION OF PRIVILEGED INFORMATION. Publication
or dissemination by a news medium or communication service provider
of information, documents, or items privileged under this article
is not a waiver of the journalist's privilege regarding sources and
unpublished information, documents, or items.
Sec. 7. PUBLISHED INFORMATION. This article does not apply
to any information, document, or item that has at any time been
published or broadcast by the journalist.
Sec. 8. REIMBURSEMENT OF COSTS. The subpoenaing party shall
pay a journalist a reasonable fee for the journalist's time and
costs incurred in providing the information, item, or document
subpoenaed, based on the fee structure provided by Subchapter F,
Chapter 552, Government Code.
Art. 38.111. NEWS MEDIA RECORDINGS. Extrinsic evidence of
the authenticity of evidence as a condition precedent to the
admissibility of the evidence in a criminal proceeding is not
required with respect to a recording that purports to be a broadcast
by a radio or television station that holds a license issued by the
Federal Communications Commission at the time of the recording.
The court may take judicial notice of the recording license as
provided by Rule 201, Texas Rules of Evidence.
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.