By: Ellis S.B. No. 263 73R1528 DLF-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the adoption of the Texas Free Flow of Information Act 1-3 concerning disclosure of information by a newsperson in response 1-4 to a subpoena. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. SHORT TITLE. This Act may be cited as the Texas 1-7 Free Flow of Information Act. 1-8 SECTION 2. LEGISLATIVE FINDING AND INTENT. The legislature 1-9 finds that: 1-10 (1) the policy of this state is to ensure that news 1-11 and other information flows freely to the public and that those who 1-12 gather, write, or edit information for the public or disseminate 1-13 information to the public may perform these vital functions only in 1-14 a free and unfettered atmosphere; 1-15 (2) a person should not be inhibited, directly or 1-16 indirectly, by governmental restraint or sanction imposed by 1-17 governmental process, but rather be encouraged to gather, write, 1-18 edit, or disseminate news or other information vigorously so that 1-19 the public may be fully informed; 1-20 (3) compelling a person to disclose a source of 1-21 information or disclose gathered information is contrary to the 1-22 public interest and inhibits the free flow of information to the 1-23 public; and 1-24 (4) there is an urgent need to provide effective 2-1 measures to halt and prevent this inhibition. 2-2 SECTION 3. DEFINITIONS. In this Act: 2-3 (1) "In the course of pursuing a newsperson's 2-4 professional activities" means any situation, including a social 2-5 gathering, in which a newsperson obtains information for the 2-6 purpose of disseminating it to the public other than: 2-7 (A) a situation in which a newsperson 2-8 intentionally conceals from the source of the information the fact 2-9 that the newsperson is a newsperson; and 2-10 (B) a situation in which a newsperson is an 2-11 eyewitness to or participant in an act involving physical violence 2-12 or property damage. 2-13 (2) "Medium of communication" means any printed, 2-14 photographic, mechanical, or electronic means of disseminating news 2-15 to the public, including: 2-16 (A) a newspaper, magazine, newsletter, or other 2-17 periodical; 2-18 (B) a book; 2-19 (C) a press association, news agency, or wire 2-20 service; and 2-21 (D) radio, television, and cable. 2-22 (3) "News" means any written, oral, or pictorial 2-23 information gathered, procured, transmitted, compiled, or edited 2-24 for dissemination to the public. 2-25 SECTION 4. NEWSPERSON'S PRIVILEGE. (a) A person engaged in 2-26 gathering, procuring, transmitting, compiling, or editing news for 2-27 dissemination to the public or a medium of communication on whose 3-1 behalf news is gathered, procured, transmitted, compiled, edited, 3-2 or disseminated has a privilege to refuse to disclose: 3-3 (1) the source, author, means, agency, or person from 3-4 or through whom any information was procured, obtained, supplied, 3-5 furnished, gathered, transmitted, compiled, edited, disseminated, 3-6 or delivered; or 3-7 (2) any news or information obtained in the course of 3-8 pursuing a newsperson's professional activities, regardless of 3-9 whether the news or information is disseminated. 3-10 (b) The privilege established under this section applies: 3-11 (1) in any legal or quasi-legal proceeding; and 3-12 (2) before any investigative body, including a court, 3-13 a grand jury, a petit jury, an administrative agency, the 3-14 legislature, and any legislative committee. 3-15 (c) Except as provided by Section 5 of this Act, the 3-16 privilege established under this section is absolute. 3-17 SECTION 5. APPLICATION OF PRIVILEGE IN CRIMINAL PROCEEDING. 3-18 (a) If a person engaged in gathering, procuring, transmitting, 3-19 compiling, or editing news for dissemination to the public or a 3-20 medium of communication on whose behalf news is gathered, procured, 3-21 transmitted, compiled, edited, or disseminated is subpoenaed by or 3-22 on behalf of a defendant in a criminal proceeding, the procedure 3-23 established under Section 6 of this Act applies. 3-24 (b) If a party seeking enforcement of a subpoena in a 3-25 criminal proceeding alleges that the privilege established under 3-26 this Act does not apply because it pertains to information obtained 3-27 by a newsperson who is an eyewitness to or participant in an act 4-1 involving physical violence or property damage, Subsections (c)-(l) 4-2 of Section 6 of this Act apply. 4-3 (c) For purposes of this section, "criminal proceeding" does 4-4 not include a proceeding before an administrative or investigative 4-5 body, a grand jury, or a legislative committee. 4-6 SECTION 6. REVIEW OF CLAIM OF PRIVILEGE IN CRIMINAL 4-7 PROCEEDING. (a) To sustain a claim of privilege under this Act, 4-8 the party claiming the privilege in a criminal proceeding must make 4-9 a prima facie showing that: 4-10 (1) the party was engaged in gathering, procuring, 4-11 transmitting, compiling, editing, or disseminating news for the 4-12 public or is a medium of communication on whose behalf news is 4-13 gathered, procured, transmitted, compiled, edited, or disseminated; 4-14 and 4-15 (2) the subpoenaed information was obtained in the 4-16 course of pursuing a newsperson's professional activities. 4-17 (b) If the party claiming the privilege makes the prima 4-18 facie showing required by Subsection (a) of this section, the 4-19 privilege under this Act is absolute for any information provided 4-20 in confidence and for the identity of any confidential source. 4-21 (c) If the party claiming the privilege makes the prima 4-22 facie showing required by Subsection (a) of this section but the 4-23 information sought was not provided in confidence and is not the 4-24 identity of a confidential source, the party claiming the privilege 4-25 may be required to disclose the information only if the party 4-26 seeking enforcement of the subpoena shows by clear and convincing 4-27 evidence that: 5-1 (1) the privilege has been waived under Rule 511, 5-2 Texas Rules of Criminal Evidence; or 5-3 (2) there is a reasonable probability that the 5-4 subpoenaed information is highly relevant, material, and critical 5-5 to the defense, the subpoenaed information cannot be secured from 5-6 an available source less inhibiting on the free flow of information 5-7 to the public, the value of the subpoenaed material as it bears on 5-8 the issue of guilt or innocence outweighs the privilege against 5-9 disclosure, and the request is not overbroad, oppressive, or 5-10 unreasonably burdensome. 5-11 (d) For purposes of Subsection (c) of this section, 5-12 publication constitutes a waiver for only the specific information 5-13 published. 5-14 (e) A showing made under Subsection (c) of this section may 5-15 be overcome by evidence that all or part of the subpoenaed 5-16 information: 5-17 (1) is irrelevant, immaterial, or unnecessary to the 5-18 defense; or 5-19 (2) can be secured from another source. 5-20 (f) On a finding by the court that there has been a waiver 5-21 as to any of the subpoenaed information or that any of the 5-22 subpoenaed information meets the criteria set forth in Subsection 5-23 (c)(2) of this section, the court shall order the production of 5-24 that information for only in camera inspection and a determination 5-25 as to its probable admissibility in the trial. The party claiming 5-26 the privilege and the party seeking enforcement of the subpoena are 5-27 entitled to a hearing in connection with the in camera inspection 6-1 of the information by the court in which each party is entitled to 6-2 a full opportunity to be heard. If the court, after in camera 6-3 review of the information, determines that the information is 6-4 admissible under Subsection (c) of this section, the court shall 6-5 direct production of that information only. 6-6 (g) A proceeding under this section must take place before 6-7 trial, except that the court may allow a motion to institute 6-8 proceedings under this section to be made during trial if the court 6-9 determines that the information sought is newly discovered evidence 6-10 and could not have been discovered earlier through the exercise of 6-11 due diligence. 6-12 (h) The determinations to be made by the court under this 6-13 section may be made only after a hearing in which the party 6-14 claiming the privilege and the party seeking enforcement of the 6-15 subpoena have a full opportunity to present evidence and argument 6-16 with respect to each of the items sought to be subpoenaed. 6-17 (i) After a hearing conducted by the court under this 6-18 section, the court shall make specific findings of fact and 6-19 conclusions of law with respect to its rulings. The findings of 6-20 fact and conclusions of law must be in writing or set forth on the 6-21 record. 6-22 (j) An interlocutory appeal may be taken from a decision to 6-23 uphold or quash a subpoena. That appeal acts as a stay of all 6-24 penalties that have been imposed for failure to comply with the 6-25 court's order. The portion of the record on appeal containing the 6-26 information for which the privilege is claimed shall be kept under 6-27 seal until all appeals are exhausted. If the information or any 7-1 part of the information is found to be privileged, the record 7-2 relating to the privileged information must remain permanently 7-3 sealed. Any materials relating to information that is found to be 7-4 privileged after all appeals are exhausted shall be returned to the 7-5 party claiming the privilege. 7-6 (k) If proceedings are instituted under this section by one 7-7 of several codefendants in a criminal trial, notice shall be 7-8 provided to each codefendant. Each codefendant may intervene if 7-9 the codefendant can demonstrate that the information sought under 7-10 the subpoena bears upon that codefendant's guilt or innocence. 7-11 Before being permitted to participate in any in camera proceeding, 7-12 a codefendant must make the showing required of the party seeking 7-13 enforcement of the subpoena under Subsection (c) of this section. 7-14 (l) If the court finds that the party seeking enforcement 7-15 of the subpoena had no reasonable basis for requesting the 7-16 information, costs and attorney's fees may be assessed against that 7-17 party. If an application for costs or attorney's fees is made 7-18 under this subsection, the court shall set forth its reasons for 7-19 awarding or denying costs or attorney's fees. 7-20 SECTION 7. LIBERAL CONSTRUCTION. This Act shall be 7-21 liberally construed to achieve its purposes. 7-22 SECTION 8. PRIVILEGE CUMULATIVE; NO LIMITATION ON 7-23 CONSTITUTIONAL PRIVILEGES. (a) The rights provided by this Act 7-24 are in addition to any rights guaranteed by the Constitution of the 7-25 United States or the constitution of this state. 7-26 (b) This Act may not be construed to create or imply any 7-27 limitation on or to otherwise affect a privilege guaranteed by the 8-1 Constitution of the United States or the constitution of this 8-2 state. 8-3 SECTION 9. TRANSITION. This Act applies only to a subpoena 8-4 for information issued on or after the effective date of this Act. 8-5 A subpoena for information made before the effective date of this 8-6 Act is governed by the law in effect at the time the subpoena was 8-7 issued, and that law is continued in effect for that purpose. 8-8 SECTION 10. EMERGENCY. The importance of this legislation 8-9 and the crowded condition of the calendars in both houses create an 8-10 emergency and an imperative public necessity that the 8-11 constitutional rule requiring bills to be read on three several 8-12 days in each house be suspended, and this rule is hereby suspended, 8-13 and that this Act take effect and be in force from and after its 8-14 passage, and it is so enacted.