Texas 2009 - 81st Regular

Texas Senate Bill SB915 Compare Versions

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1	1	By: Ellis, Duncan, Hinojosa S.B. No. 915
2	2	(In the Senate - Filed February 17, 2009; March 9, 2009,
3	3	read first time and referred to Committee on Jurisprudence;
4	4	March 30, 2009, reported adversely, with favorable Committee
5	5	Substitute by the following vote: Yeas 6, Nays 0; March 30, 2009,
6	6	sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR S.B. No. 915 By: Duncan
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to a qualified privilege of a journalist not to testify.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. Chapter 22, Civil Practice and Remedies Code, is
15	15	amended by adding Subchapter C to read as follows:
16	16	SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE IN
17	17	CIVIL PROCEEDINGS
18	18	Sec. 22.021. DEFINITIONS. In this subchapter:
19	19	(1) "Communication service provider" means a person or
20	20	the parent, subsidiary, division, or affiliate of a person who
21	21	transmits information chosen by a customer by electronic means,
22	22	including:
23	23	(A) a telecommunications carrier, as defined by
24	24	Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
25	25	(B) a provider of information service, as defined
26	26	by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
27	27	(C) a provider of interactive computer service,
28	28	as defined by Section 230, Communications Act of 1934 (47 U.S.C.
29	29	Section 230); and
30	30	(D) an information content provider, as defined
31	31	by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
32	32	(2) "Journalist" means a person, including a parent,
33	33	subsidiary, division, or affiliate of a person, who for a
34	34	substantial portion of the person's livelihood or for substantial
35	35	financial gain gathers, compiles, prepares, collects, photographs,
36	36	records, writes, edits, reports, investigates, processes, or
37	37	publishes news or information that is disseminated by a news medium
38	38	or communication service provider and includes:
39	39	(A) a person who supervises or assists in
40	40	gathering, preparing, and disseminating the news or information; or
41	41	(B) notwithstanding the foregoing, a person who
42	42	is or was a journalist, scholar, or researcher employed by an
43	43	institution of higher education at the time the person obtained or
44	44	prepared the requested information, or a person who at the time the
45	45	person obtained or prepared the requested information:
46	46	(i) is earning a significant portion of the
47	47	person's livelihood by obtaining or preparing information for
48	48	dissemination by a news medium or communication service provider;
49	49	or
50	50	(ii) was serving as an agent, assistant,
51	51	employee, or supervisor of a news medium or communication service
52	52	provider.
53	53	(3) "News medium" means a newspaper, magazine or
54	54	periodical, book publisher, news agency, wire service, radio or
55	55	television station or network, cable, satellite, or other
56	56	transmission system or carrier or channel, or a channel or
57	57	programming service for a station, network, system, or carrier, or
58	58	an audio or audiovisual production company or Internet company or
59	59	provider, or the parent, subsidiary, division, or affiliate of that
60	60	entity, that disseminates news or information to the public by any
61	61	means, including:
62	62	(A) print;
63	63	(B) television;
64	64	(C) radio;
65	65	(D) photographic;
66	66	(E) mechanical;
67	67	(F) electronic; and
68	68	(G) other means, known or unknown, that are
69	69	accessible to the public.
70	70	(4) "Official proceeding" means any type of
71	71	administrative, executive, legislative, or judicial proceeding
72	72	that may be conducted before a public servant, including a
73	73	proceeding under Rule 202, Texas Rules of Civil Procedure.
74	74	(5) "Public servant" means a person elected, selected,
75	75	appointed, employed, or otherwise designated as one of the
76	76	following, even if the person has not yet qualified for office or
77	77	assumed the person's duties:
78	78	(A) an officer, employee, or agent of government;
79	79	(B) a juror;
80	80	(C) an arbitrator, referee, or other person who
81	81	is authorized by law or private written agreement to hear or
82	82	determine a cause or controversy;
83	83	(D) an attorney or notary public when
84	84	participating in the performance of a governmental function; or
85	85	(E) a person who is performing a governmental
86	86	function under a claim of right, although the person is not legally
87	87	qualified to do so.
88	88	Sec. 22.022. PURPOSE. The purpose of this subchapter is to
89	89	increase the free flow of information and preserve a free and active
90	90	press and, at the same time, protect the right of the public to
91	91	effective law enforcement and the fair administration of justice.
92	92	Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided
93	93	by this subchapter, a judicial, legislative, administrative, or
94	94	other body with the authority to issue a subpoena or other
95	95	compulsory process may not compel a journalist to testify regarding
96	96	or to produce or disclose in an official proceeding:
97	97	(1) any confidential or nonconfidential information,
98	98	document, or item obtained or prepared while acting as a
99	99	journalist; or
100	100	(2) the source of any information, document, or item
101	101	described by Subdivision (1).
102	102	(b) A subpoena or other compulsory process may not compel
103	103	the parent, subsidiary, division, or affiliate of a communication
104	104	service provider or news medium to disclose the information,
105	105	documents, or items or the source of any information, documents, or
106	106	items that are privileged from disclosure under Subsection (a).
107	107	Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice
108	108	and an opportunity to be heard, a court may compel a journalist, a
109	109	journalist's employer, or a person with an independent contract
110	110	with a journalist to testify regarding or to produce or disclose any
111	111	information, document, or item or the source of any information,
112	112	document, or item obtained while acting as a journalist if the
113	113	person seeking the information, document, or item or the source of
114	114	any information, document, or item makes a clear and specific
115	115	showing that:
116	116	(1) all reasonable efforts have been exhausted to
117	117	obtain the information from an alternative source;
118	118	(2) the subpoena is not overbroad, unreasonable, or
119	119	oppressive and, when appropriate, will be limited to the
120	120	verification of published information and the surrounding
121	121	circumstances relating to the accuracy of the published
122	122	information;
123	123	(3) reasonable and timely notice was given of the
124	124	demand for the information, document, or item;
125	125	(4) in this instance, the interest of the party
126	126	subpoenaing the information outweighs the public interest in
127	127	gathering and dissemination of news, including the concerns of the
128	128	journalist;
129	129	(5) the subpoena or compulsory process is not being
130	130	used to obtain peripheral, nonessential, or speculative
131	131	information; and
132	132	(6) the information, document, or item is relevant and
133	133	material to the proper administration of the official proceeding
134	134	for which the testimony, production, or disclosure is sought and is
135	135	essential to the maintenance of a claim or defense of the person
136	136	seeking the testimony, production, or disclosure.
137	137	Sec. 22.025. NOTICE. An order to compel testimony,
138	138	production, or disclosure to which a journalist has asserted a
139	139	privilege under this subchapter may be issued only after timely
140	140	notice to the journalist, the journalist's employer, or a person
141	141	who has an independent contract with the journalist and a hearing.
142	142	The order must include clear and specific findings as to the showing
143	143	made by the person seeking the testimony, production, or disclosure
144	144	and the clear and specific evidence on which the court relied in
145	145	issuing the court's order.
146	146	Sec. 22.026. PUBLICATION OF PRIVILEGED INFORMATION.
147	147	Publication or dissemination by a news medium or communication
148	148	service provider of information, documents, or items privileged
149	149	under this subchapter is not a waiver of the journalist's
150	150	privilege.
151	151	Sec. 22.027. NEWS MEDIA RECORDINGS. Extrinsic evidence of
152	152	the authenticity of evidence as a condition precedent to the
153	153	admissibility of the evidence in a civil proceeding is not required
154	154	with respect to a recording that purports to be a broadcast by a
155	155	radio or television station that holds a license issued by the
156	156	Federal Communications Commission at the time of the recording.
157	157	The court may take judicial notice of the recording license as
158	158	provided by Rule 201, Texas Rules of Evidence.
159	159	SECTION 2. Chapter 38, Code of Criminal Procedure, is
160	160	amended by adding Articles 38.11 and 38.111 to read as follows:
161	161	Art. 38.11. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
162	162	IN CRIMINAL PROCEEDINGS
163	163	Sec. 1. DEFINITIONS. In this article:
164	164	(1) "Communication service provider" means a person or
165	165	the parent, subsidiary, division, or affiliate of a person who
166	166	transmits information chosen by a customer by electronic means,
167	167	including:
168	168	(A) a telecommunications carrier, as defined by
169	169	Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
170	170	(B) a provider of information service, as defined
171	171	by Section 3, Communications Act of 1934 (47 U.S.C. Section 153);
172	172	(C) a provider of interactive computer service,
173	173	as defined by Section 230, Communications Act of 1934 (47 U.S.C.
174	174	Section 230); and
175	175	(D) an information content provider, as defined
176	176	by Section 230, Communications Act of 1934 (47 U.S.C. Section 230).
177	177	(2) "Journalist" means a person, including a parent,
178	178	subsidiary, division, or affiliate of a person, who for a
179	179	substantial portion of the person's livelihood or for substantial
180	180	financial gain gathers, compiles, prepares, collects, photographs,
181	181	records, writes, edits, reports, investigates, processes, or
182	182	publishes news or information that is disseminated by a news medium
183	183	or communication service provider and includes:
184	184	(A) a person who supervises or assists in
185	185	gathering, preparing, and disseminating the news or information; or
186	186	(B) notwithstanding the foregoing, a person who
187	187	is or was a journalist, scholar, or researcher employed by an
188	188	institution of higher education at the time the person obtained or
189	189	prepared the requested information, or a person who at the time the
190	190	person obtained or prepared the requested information:
191	191	(i) is earning a significant portion of the
192	192	person's livelihood by obtaining or preparing information for
193	193	dissemination by a news medium or communication service provider;
194	194	or
195	195	(ii) was serving as an agent, assistant,
196	196	employee, or supervisor of a news medium or communication service
197	197	provider.
198	198	(3) "News medium" means a newspaper, magazine or
199	199	periodical, book publisher, news agency, wire service, radio or
200	200	television station or network, cable, satellite, or other
201	201	transmission system or carrier or channel, or a channel or
202	202	programming service for a station, network, system, or carrier, or
203	203	an audio or audiovisual production company or Internet company or
204	204	provider, or the parent, subsidiary, division, or affiliate of that
205	205	entity, that disseminates news or information to the public by any
206	206	means, including:
207	207	(A) print;
208	208	(B) television;
209	209	(C) radio;
210	210	(D) photographic;
211	211	(E) mechanical;
212	212	(F) electronic; and
213	213	(G) other means, known or unknown, that are
214	214	accessible to the public.
215	215	(4) "Official proceeding" means any type of
216	216	administrative, executive, legislative, or judicial proceeding
217	217	that may be conducted before a public servant.
218	218	(5) "Public servant" means a person elected, selected,
219	219	appointed, employed, or otherwise designated as one of the
220	220	following, even if the person has not yet qualified for office or
221	221	assumed the person's duties:
222	222	(A) an officer, employee, or agent of government;
223	223	(B) a juror or grand juror;
224	224	(C) an arbitrator, referee, or other person who
225	225	is authorized by law or private written agreement to hear or
226	226	determine a cause or controversy;
227	227	(D) an attorney or notary public when
228	228	participating in the performance of a governmental function; or
229	229	(E) a person who is performing a governmental
230	230	function under a claim of right, although the person is not legally
231	231	qualified to do so.
232	232	Sec. 2. PURPOSE. The purpose of this article is to increase
233	233	the free flow of information and preserve a free and active press
234	234	and, at the same time, protect the right of the public to effective
235	235	law enforcement and the fair administration of justice.
236	236	Sec. 3. PRIVILEGE CONCERNING CONFIDENTIAL SOURCES. (a) A
237	237	journalist may be compelled to testify regarding or to disclose the
238	238	confidential source of any information, document, or item obtained
239	239	while acting as a journalist if the person seeking the testimony,
240	240	production, or disclosure makes a clear and specific showing that
241	241	the source of any information, document, or item:
242	242	(1) was observed by the journalist committing a felony
243	243	criminal offense and the subpoenaing party has exhausted reasonable
244	244	efforts to obtain from alternative sources the confidential source
245	245	of any information, document, or item obtained or prepared while
246	246	acting as a journalist;
247	247	(2) is a person who confessed or admitted to the
248	248	journalist the commission of a felony criminal offense and the
249	249	subpoenaing party has exhausted reasonable efforts to obtain from
250	250	alternative sources the confidential source of any information,
251	251	document, or item obtained or prepared while acting as a
252	252	journalist;
253	253	(3) is a person for whom probable cause exists that the
254	254	person participated in a felony criminal offense and the
255	255	subpoenaing party has exhausted reasonable efforts to obtain from
256	256	alternative sources the confidential source of any information,
257	257	document, or item obtained or prepared while acting as a
258	258	journalist; or
259	259	(4) disclosure of the confidential source is
260	260	reasonably necessary to stop or prevent reasonably certain death or
261	261	substantial bodily harm.
262	262	(b) If the alleged criminal conduct is the act of
263	263	communicating, receiving, or possessing the information, document,
264	264	or item, this section does not apply and Section 4 governs the act.
265	265	(c) Notwithstanding Subsection (b), Subsection (a) applies
266	266	to any information, document, or item disclosed or received in
267	267	violation of a grand jury oath given to either a juror or a witness
268	268	under Article 19.34 or 20.16. In this context, the court has the
269	269	discretion to conduct an in camera hearing. The court may not order
270	270	the production of the confidential source until a ruling has been
271	271	made on the motion.
272	272	(d) An application for a subpoena of a journalist under
273	273	Article 24.03, or a subpoena of a journalist issued by an attorney
274	274	representing the state under Article 20.10 or 20.11, must be signed
275	275	by the elected district attorney, elected criminal district
276	276	attorney, or elected county attorney, as applicable. If the
277	277	elected district attorney, elected criminal district attorney, or
278	278	elected county attorney has been disqualified or recused or has
279	279	resigned, the application for the subpoena or the subpoena must be
280	280	signed by the person succeeding the elected attorney. If the
281	281	elected officer is not in the jurisdiction, the highest ranking
282	282	assistant to the elected officer must sign the subpoena.
283	283	Sec. 4. PRIVILEGE CONCERNING UNPUBLISHED INFORMATION,
284	284	DOCUMENT, OR ITEM AND NONCONFIDENTIAL SOURCES. (a) After service
285	285	of subpoena and an opportunity to be heard, a court may compel a
286	286	journalist, a journalist's employer, or a person with an
287	287	independent contract with a journalist to testify regarding or to
288	288	produce or disclose any unpublished information, document, or item
289	289	or the source of any information, document, or item obtained while
290	290	acting as a journalist, other than as described by Section 3, if the
291	291	person seeking the unpublished information, document, or item or
292	292	the source of any information, document, or item makes a clear and
293	293	specific showing that:
294	294	(1) all reasonable efforts have been exhausted to
295	295	obtain the information from alternative sources; and
296	296	(2) the unpublished information, document, or item:
297	297	(A) is relevant and material to the proper
298	298	administration of the official proceeding for which the testimony,
299	299	production, or disclosure is sought and is essential to the
300	300	maintenance of a claim or defense of the person seeking the
301	301	testimony, production, or disclosure; or
302	302	(B) is central to the investigation or
303	303	prosecution of a criminal case and, based on something other than
304	304	the assertion of the person requesting the subpoena, reasonable
305	305	grounds exist to believe that a crime has occurred.
306	306	(b) The court, when considering an order to compel testimony
307	307	regarding or to produce or disclose any unpublished information,
308	308	document, or item or the source of any information, document, or
309	309	item obtained while acting as a journalist, should consider the
310	310	following factors, including but not limited to, whether:
311	311	(1) the subpoena is overbroad, unreasonable, or
312	312	oppressive;
313	313	(2) reasonable and timely notice was given of the
314	314	demand for the information, document, or item;
315	315	(3) in this instance, the interest of the party
316	316	subpoenaing the information outweighs the public interest in
317	317	gathering and dissemination of news, including the concerns of the
318	318	journalist; and
319	319	(4) the subpoena or compulsory process is being used
320	320	to obtain peripheral, nonessential, or speculative information.
321	321	(c) A court may not consider a single factor under
322	322	Subsection (b) as outcome-determinative in the decision whether to
323	323	compel the testimony or the production or disclosure of the
324	324	unpublished information, document, or item, or the source of any
325	325	information, document, or item.
326	326	Sec. 5. NOTICE. An order to compel testimony, production,
327	327	or disclosure to which a journalist has asserted a privilege under
328	328	this article may be issued only after timely notice to the
329	329	journalist, the journalist's employer, or a person who has an
330	330	independent contract with the journalist and a hearing. The order
331	331	must include clear and specific findings as to the showing made by
332	332	the person seeking the testimony, production, or disclosure and the
333	333	clear and specific evidence on which the court relied in issuing the
334	334	court's order.
335	335	Sec. 6. PUBLICATION OF PRIVILEGED INFORMATION. Publication
336	336	or dissemination by a news medium or communication service provider
337	337	of information, documents, or items privileged under this article
338	338	is not a waiver of the journalist's privilege regarding sources and
339	339	unpublished information, documents, or items.
340	340	Sec. 7. PUBLISHED INFORMATION. This article does not apply
341	341	to any information, document, or item that has at any time been
342	342	published or broadcast by the journalist.
343	343	Sec. 8. REIMBURSEMENT OF COSTS. The subpoenaing party
344	344	shall pay a journalist a reasonable fee for the journalist's time
345	345	and costs incurred in providing the information, item, or document
346	346	subpoenaed, based on the fee structure provided by Subchapter F,
347	347	Chapter 552, Government Code.
348	348	Art. 38.111. NEWS MEDIA RECORDINGS. Extrinsic evidence of
349	349	the authenticity of evidence as a condition precedent to the
350	350	admissibility of the evidence in a criminal proceeding is not
351	351	required with respect to a recording that purports to be a broadcast
352	352	by a radio or television station that holds a license issued by the
353	353	Federal Communications Commission at the time of the recording.
354	354	The court may take judicial notice of the recording license as
355	355	provided by Rule 201, Texas Rules of Evidence.
356	356	SECTION 3. This Act applies only to information, documents,
357	357	or items or the source of any information, document, or item
358	358	obtained or prepared for publication in a news medium or
359	359	communication service provider on or after the effective date of
360	360	this Act.
361	361	SECTION 4. This Act takes effect September 1, 2009.
362	362	* * * * *