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.