Texas 2009 - 81st Regular

Texas House Bill HB670 Compare Versions

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1	1	H.B. No. 670
2	2
3	3
4	4	AN ACT
5	5	relating to a qualified privilege of a journalist not to testify.
6	6	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
7	7	SECTION 1. Chapter 22, Civil Practice and Remedies Code, is
8	8	amended by adding Subchapter C to read as follows:
9	9	SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE IN
10	10	CIVIL PROCEEDINGS
11	11	Sec. 22.021. DEFINITIONS. In this subchapter:
12	12	(1) "Communication service provider" means a person or
13	13	the parent, subsidiary, division, or affiliate of a person who
14	14	transmits information chosen by a customer by electronic means,
15	15	including:
16	16	(A) a telecommunications carrier, as defined by
17	17	Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
18	18	(B) a provider of information service, as defined
19	19	by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
20	20	(C) a provider of interactive computer service,
21	21	as defined by Section 230, Communications Act of 1934 (47 U.S.C.
22	22	Section 230); and
23	23	(D) an information content provider, as defined
24	24	by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
25	25	(2) "Journalist" means a person, including a parent,
26	26	subsidiary, division, or affiliate of a person, who for a
27	27	substantial portion of the person's livelihood or for substantial
28	28	financial gain, gathers, compiles, prepares, collects,
29	29	photographs, records, writes, edits, reports, investigates,
30	30	processes, or publishes news or information that is disseminated by
31	31	a news medium or communication service provider and includes:
32	32	(A) a person who supervises or assists in
33	33	gathering, preparing, and disseminating the news or information; or
34	34	(B) notwithstanding the foregoing, a person who
35	35	is or was a journalist, scholar, or researcher employed by an
36	36	institution of higher education at the time the person obtained or
37	37	prepared the requested information, or a person who at the time the
38	38	person obtained or prepared the requested information:
39	39	(i) is earning a significant portion of the
40	40	person's livelihood by obtaining or preparing information for
41	41	dissemination by a news medium or communication service provider;
42	42	or
43	43	(ii) was serving as an agent, assistant,
44	44	employee, or supervisor of a news medium or communication service
45	45	provider.
46	46	(3) "News medium" means a newspaper, magazine or
47	47	periodical, book publisher, news agency, wire service, radio or
48	48	television station or network, cable, satellite, or other
49	49	transmission system or carrier or channel, or a channel or
50	50	programming service for a station, network, system, or carrier, or
51	51	an audio or audiovisual production company or Internet company or
52	52	provider, or the parent, subsidiary, division, or affiliate of that
53	53	entity, that disseminates news or information to the public by any
54	54	means, including:
55	55	(A) print;
56	56	(B) television;
57	57	(C) radio;
58	58	(D) photographic;
59	59	(E) mechanical;
60	60	(F) electronic; and
61	61	(G) other means, known or unknown, that are
62	62	accessible to the public.
63	63	(4) "Official proceeding" means any type of
64	64	administrative, executive, legislative, or judicial proceeding
65	65	that may be conducted before a public servant, including a
66	66	proceeding under Rule 202, Texas Rules of Civil Procedure.
67	67	(5) "Public servant" means a person elected, selected,
68	68	appointed, employed, or otherwise designated as one of the
69	69	following, even if the person has not yet qualified for office or
70	70	assumed the person's duties:
71	71	(A) an officer, employee, or agent of government;
72	72	(B) a juror;
73	73	(C) an arbitrator, referee, or other person who
74	74	is authorized by law or private written agreement to hear or
75	75	determine a cause or controversy;
76	76	(D) an attorney or notary public when
77	77	participating in the performance of a governmental function; or
78	78	(E) a person who is performing a governmental
79	79	function under a claim of right, although the person is not legally
80	80	qualified to do so.
81	81	Sec. 22.022. PURPOSE. The purpose of this subchapter is to
82	82	increase the free flow of information and preserve a free and active
83	83	press and, at the same time, protect the right of the public to
84	84	effective law enforcement and the fair administration of justice.
85	85	Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided
86	86	by this subchapter, a judicial, legislative, administrative, or
87	87	other body with the authority to issue a subpoena or other
88	88	compulsory process may not compel a journalist to testify regarding
89	89	or to produce or disclose in an official proceeding:
90	90	(1) any confidential or nonconfidential information,
91	91	document, or item obtained or prepared while acting as a
92	92	journalist; or
93	93	(2) the source of any information, document, or item
94	94	described by Subdivision (1).
95	95	(b) A subpoena or other compulsory process may not compel
96	96	the parent, subsidiary, division, or affiliate of a communication
97	97	service provider or news medium to disclose the information,
98	98	documents, or items or the source of any information, documents, or
99	99	items that are privileged from disclosure under Subsection (a).
100	100	Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice
101	101	and an opportunity to be heard, a court may compel a journalist, a
102	102	journalist's employer, or a person with an independent contract
103	103	with a journalist to testify regarding or to produce or disclose any
104	104	information, document, or item or the source of any information,
105	105	document, or item obtained while acting as a journalist, if the
106	106	person seeking the information, document, or item or the source of
107	107	any information, document, or item makes a clear and specific
108	108	showing that:
109	109	(1) all reasonable efforts have been exhausted to
110	110	obtain the information from alternative sources;
111	111	(2) the subpoena is not overbroad, unreasonable, or
112	112	oppressive and, when appropriate, will be limited to the
113	113	verification of published information and the surrounding
114	114	circumstances relating to the accuracy of the published
115	115	information;
116	116	(3) reasonable and timely notice was given of the
117	117	demand for the information, document, or item;
118	118	(4) in this instance, the interest of the party
119	119	subpoenaing the information outweighs the public interest in
120	120	gathering and dissemination of news, including the concerns of the
121	121	journalist;
122	122	(5) the subpoena or compulsory process is not being
123	123	used to obtain peripheral, nonessential, or speculative
124	124	information; and
125	125	(6) the information, document, or item is relevant and
126	126	material to the proper administration of the official proceeding
127	127	for which the testimony, production, or disclosure is sought and is
128	128	essential to the maintenance of a claim or defense of the person
129	129	seeking the testimony, production, or disclosure.
130	130	Sec. 22.025. NOTICE. An order to compel testimony,
131	131	production, or disclosure to which a journalist has asserted a
132	132	privilege under this subchapter may be issued only after timely
133	133	notice to the journalist, the journalist's employer, or a person
134	134	who has an independent contract with the journalist and a hearing.
135	135	The order must include clear and specific findings as to the showing
136	136	made by the person seeking the testimony, production, or disclosure
137	137	and the clear and specific evidence on which the court relied in
138	138	issuing the court's order.
139	139	Sec. 22.026. PUBLICATION OF PRIVILEGED INFORMATION.
140	140	Publication or dissemination by a news medium or communication
141	141	service provider of information, documents, or items privileged
142	142	under this subchapter is not a waiver of the journalist's
143	143	privilege.
144	144	Sec. 22.027. NEWS MEDIA RECORDINGS. Extrinsic evidence of
145	145	the authenticity of evidence as a condition precedent to the
146	146	admissibility of the evidence in a civil proceeding is not required
147	147	with respect to a recording that purports to be a broadcast by a
148	148	radio or television station that holds a license issued by the
149	149	Federal Communications Commission at the time of the recording.
150	150	The court may take judicial notice of the recording license as
151	151	provided by Rule 201, Texas Rules of Evidence.
152	152	SECTION 2. Chapter 38, Code of Criminal Procedure, is
153	153	amended by adding Articles 38.11 and 38.111 to read as follows:
154	154	Art. 38.11. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
155	155	IN CRIMINAL PROCEEDINGS
156	156	Sec. 1. DEFINITIONS. In this article:
157	157	(1) "Communication service provider" means a person or
158	158	the parent, subsidiary, division, or affiliate of a person who
159	159	transmits information chosen by a customer by electronic means,
160	160	including:
161	161	(A) a telecommunications carrier, as defined by
162	162	Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
163	163	(B) a provider of information service, as defined
164	164	by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
165	165	(C) a provider of interactive computer service,
166	166	as defined by Section 230, Communications Act of 1934 (47 U.S.C.
167	167	Section 230); and
168	168	(D) an information content provider, as defined
169	169	by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
170	170	(2) "Journalist" means a person, including a parent,
171	171	subsidiary, division, or affiliate of a person, who for a
172	172	substantial portion of the person's livelihood or for substantial
173	173	financial gain, gathers, compiles, prepares, collects,
174	174	photographs, records, writes, edits, reports, investigates,
175	175	processes, or publishes news or information that is disseminated by
176	176	a news medium or communication service provider and includes:
177	177	(A) a person who supervises or assists in
178	178	gathering, preparing, and disseminating the news or information; or
179	179	(B) notwithstanding the foregoing, a person who
180	180	is or was a journalist, scholar, or researcher employed by an
181	181	institution of higher education at the time the person obtained or
182	182	prepared the requested information, or a person who at the time the
183	183	person obtained or prepared the requested information:
184	184	(i) is earning a significant portion of the
185	185	person's livelihood by obtaining or preparing information for
186	186	dissemination by a news medium or communication service provider;
187	187	or
188	188	(ii) was serving as an agent, assistant,
189	189	employee, or supervisor of a news medium or communication service
190	190	provider.
191	191	(3) "News medium" means a newspaper, magazine or
192	192	periodical, book publisher, news agency, wire service, radio or
193	193	television station or network, cable, satellite, or other
194	194	transmission system or carrier or channel, or a channel or
195	195	programming service for a station, network, system, or carrier, or
196	196	an audio or audiovisual production company or Internet company or
197	197	provider, or the parent, subsidiary, division, or affiliate of that
198	198	entity, that disseminates news or information to the public by any
199	199	means, including:
200	200	(A) print;
201	201	(B) television;
202	202	(C) radio;
203	203	(D) photographic;
204	204	(E) mechanical;
205	205	(F) electronic; and
206	206	(G) other means, known or unknown, that are
207	207	accessible to the public.
208	208	(4) "Official proceeding" means any type of
209	209	administrative, executive, legislative, or judicial proceeding
210	210	that may be conducted before a public servant.
211	211	(5) "Public servant" means a person elected, selected,
212	212	appointed, employed, or otherwise designated as one of the
213	213	following, even if the person has not yet qualified for office or
214	214	assumed the person's duties:
215	215	(A) an officer, employee, or agent of government;
216	216	(B) a juror or grand juror;
217	217	(C) an arbitrator, referee, or other person who
218	218	is authorized by law or private written agreement to hear or
219	219	determine a cause or controversy;
220	220	(D) an attorney or notary public when
221	221	participating in the performance of a governmental function; or
222	222	(E) a person who is performing a governmental
223	223	function under a claim of right, although the person is not legally
224	224	qualified to do so.
225	225	Sec. 2. PURPOSE. The purpose of this article is to increase
226	226	the free flow of information and preserve a free and active press
227	227	and, at the same time, protect the right of the public to effective
228	228	law enforcement and the fair administration of justice.
229	229	Sec. 3. PRIVILEGE. (a) Except as otherwise provided by
230	230	this article, a judicial, legislative, administrative, or other
231	231	body with the authority to issue a subpoena or other compulsory
232	232	process may not compel a journalist to testify regarding or to
233	233	produce or disclose in an official proceeding:
234	234	(1) any confidential or nonconfidential unpublished
235	235	information, document, or item obtained or prepared while acting as
236	236	a journalist; or
237	237	(2) the source of any information, document, or item
238	238	described by Subdivision (1).
239	239	(b) A subpoena or other compulsory process may not compel
240	240	the parent, subsidiary, division, or affiliate of a communication
241	241	service provider or news medium to disclose the unpublished
242	242	information, documents, or items or the source of any information,
243	243	documents, or items that are privileged from disclosure under
244	244	Subsection (a).
245	245	Sec. 4. PRIVILEGE CONCERNING CONFIDENTIAL SOURCES. (a) A
246	246	journalist may be compelled to testify regarding or to disclose the
247	247	confidential source of any information, document, or item obtained
248	248	while acting as a journalist if the person seeking the testimony,
249	249	production, or disclosure makes a clear and specific showing that
250	250	the source of any information, document, or item:
251	251	(1) was observed by the journalist committing a felony
252	252	criminal offense and the subpoenaing party has exhausted reasonable
253	253	efforts to obtain from alternative sources the confidential source
254	254	of any information, document, or item obtained or prepared while
255	255	acting as a journalist;
256	256	(2) is a person who confessed or admitted to the
257	257	journalist the commission of a felony criminal offense and the
258	258	subpoenaing party has exhausted reasonable efforts to obtain from
259	259	alternative sources the confidential source of any information,
260	260	document, or item obtained or prepared while acting as a
261	261	journalist;
262	262	(3) is a person for whom probable cause exists that the
263	263	person participated in a felony criminal offense and the
264	264	subpoenaing party has exhausted reasonable efforts to obtain from
265	265	alternative sources the confidential source of any information,
266	266	document, or item obtained or prepared while acting as a
267	267	journalist; or
268	268	(4) disclosure of the confidential source is
269	269	reasonably necessary to stop or prevent reasonably certain death or
270	270	substantial bodily harm.
271	271	(b) If the alleged criminal conduct is the act of
272	272	communicating, receiving, or possessing the information, document,
273	273	or item, this section does not apply, and Section 5 governs the act.
274	274	(c) Notwithstanding Subsection (b), if the information,
275	275	document, or item was disclosed or received in violation of a grand
276	276	jury oath given to either a juror or a witness under Article 19.34
277	277	or 20.16, a journalist may be compelled to testify if the person
278	278	seeking the testimony, production, or disclosure makes a clear and
279	279	specific showing that the subpoenaing party has exhausted
280	280	reasonable efforts to obtain from alternative sources the
281	281	confidential source of any information, document, or item obtained.
282	282	In this context, the court has the discretion to conduct an in
283	283	camera hearing. The court may not order the production of the
284	284	confidential source until a ruling has been made on the motion.
285	285	(d) An application for a subpoena of a journalist under
286	286	Article 24.03, or a subpoena of a journalist issued by an attorney
287	287	representing the state under Article 20.10 or 20.11, must be signed
288	288	by the elected district attorney, elected criminal district
289	289	attorney, or elected county attorney, as applicable. If the
290	290	elected district attorney, elected criminal district attorney, or
291	291	elected county attorney has been disqualified or recused or has
292	292	resigned, the application for the subpoena or the subpoena must be
293	293	signed by the person succeeding the elected attorney. If the
294	294	elected officer is not in the jurisdiction, the highest ranking
295	295	assistant to the elected officer must sign the subpoena.
296	296	Sec. 5. PRIVILEGE CONCERNING UNPUBLISHED INFORMATION,
297	297	DOCUMENT, OR ITEM AND NONCONFIDENTIAL SOURCES. (a) After service
298	298	of subpoena and an opportunity to be heard, a court may compel a
299	299	journalist, a journalist's employer, or a person with an
300	300	independent contract with a journalist to testify regarding or to
301	301	produce or disclose any unpublished information, document, or item
302	302	or the source of any information, document, or item obtained while
303	303	acting as a journalist, other than as described by Section 4, if the
304	304	person seeking the unpublished information, document, or item or
305	305	the source of any information, document, or item makes a clear and
306	306	specific showing that:
307	307	(1) all reasonable efforts have been exhausted to
308	308	obtain the information from alternative sources; and
309	309	(2) the unpublished information, document, or item:
310	310	(A) is relevant and material to the proper
311	311	administration of the official proceeding for which the testimony,
312	312	production, or disclosure is sought and is essential to the
313	313	maintenance of a claim or defense of the person seeking the
314	314	testimony, production, or disclosure; or
315	315	(B) is central to the investigation or
316	316	prosecution of a criminal case and based on something other than the
317	317	assertion of the person requesting the subpoena, reasonable grounds
318	318	exist to believe that a crime has occurred.
319	319	(b) The court, when considering an order to compel testimony
320	320	regarding or to produce or disclose any unpublished information,
321	321	document, or item or the source of any information, document, or
322	322	item obtained while acting as a journalist, should consider the
323	323	following factors, including but not limited to whether:
324	324	(1) the subpoena is overbroad, unreasonable, or
325	325	oppressive;
326	326	(2) reasonable and timely notice was given of the
327	327	demand for the information, document, or item;
328	328	(3) in this instance, the interest of the party
329	329	subpoenaing the information outweighs the public interest in
330	330	gathering and dissemination of news, including the concerns of the
331	331	journalist; and
332	332	(4) the subpoena or compulsory process is being used
333	333	to obtain peripheral, nonessential, or speculative information.
334	334	(c) A court may not consider a single factor under
335	335	Subsection (b) as outcome-determinative in the decision whether to
336	336	compel the testimony or the production or disclosure of the
337	337	unpublished information, document, or item, or the source of any
338	338	information, document, or item.
339	339	Sec. 6. NOTICE. An order to compel testimony, production,
340	340	or disclosure to which a journalist has asserted a privilege under
341	341	this article may be issued only after timely notice to the
342	342	journalist, the journalist's employer, or a person who has an
343	343	independent contract with the journalist and a hearing. The order
344	344	must include clear and specific findings as to the showing made by
345	345	the person seeking the testimony, production, or disclosure and the
346	346	clear and specific evidence on which the court relied in issuing the
347	347	court's order.
348	348	Sec. 7. PUBLICATION OF PRIVILEGED INFORMATION. Publication
349	349	or dissemination by a news medium or communication service provider
350	350	of information, documents, or items privileged under this article
351	351	is not a waiver of the journalist's privilege regarding sources and
352	352	unpublished information, documents, or items.
353	353	Sec. 8. PUBLISHED INFORMATION. This article does not apply
354	354	to any information, document, or item that has at any time been
355	355	published or broadcast by the journalist.
356	356	Sec. 9. REIMBURSEMENT OF COSTS. The subpoenaing party shall
357	357	pay a journalist a reasonable fee for the journalist's time and
358	358	costs incurred in providing the information, item, or document
359	359	subpoenaed, based on the fee structure provided by Subchapter F,
360	360	Chapter 552, Government Code.
361	361	Art. 38.111. NEWS MEDIA RECORDINGS. Extrinsic evidence of
362	362	the authenticity of evidence as a condition precedent to the
363	363	admissibility of the evidence in a criminal proceeding is not
364	364	required with respect to a recording that purports to be a broadcast
365	365	by a radio or television station that holds a license issued by the
366	366	Federal Communications Commission at the time of the recording.
367	367	The court may take judicial notice of the recording license as
368	368	provided by Rule 201, Texas Rules of Evidence.
369	369	SECTION 3. This Act applies only to information, documents,
370	370	or items or the source of any information, document, or item
371	371	obtained or prepared for publication in a news medium or
372	372	communication service provider on or after the effective date of
373	373	this Act.
374	374	SECTION 4. This Act takes effect immediately if it receives
375	375	a vote of two-thirds of all the members elected to each house, as
376	376	provided by Section 39, Article III, Texas Constitution. If this
377	377	Act does not receive the vote necessary for immediate effect, this
378	378	Act takes effect September 1, 2009.
379	379	______________________________ ______________________________
380	380	President of the Senate Speaker of the House
381	381	I certify that H.B. No. 670 was passed by the House on April
382	382	2, 2009, by the following vote: Yeas 146, Nays 0, 1 present, not
383	383	voting; and that the House concurred in Senate amendments to H.B.
384	384	No. 670 on April 30, 2009, by the following vote: Yeas 146, Nays 0,
385	385	1 present, not voting.
386	386	______________________________
387	387	Chief Clerk of the House
388	388	I certify that H.B. No. 670 was passed by the Senate, with
389	389	amendments, on April 28, 2009, by the following vote: Yeas 31,
390	390	Nays 0.
391	391	______________________________
392	392	Secretary of the Senate
393	393	APPROVED: __________________
394	394	Date
395	395	__________________
396	396	Governor