By Ellis S.B. No. 58
74R1614 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 information was procured, obtained, supplied,
3-5 furnished, gathered, transmitted, compiled, edited, disseminated,
3-6 or delivered; or
3-7 (2) 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 a legal or quasi-legal proceeding; and
3-12 (2) before an investigative body, including a court, a
3-13 grand jury, a petit jury, an administrative agency, the
3-14 legislature, and a 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 information provided in
4-20 confidence and for the identity of a 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 in Subsection (c)(2) of
5-23 this section, the court shall order the production of that
5-24 information for only in camera inspection and a determination as to
5-25 its probable admissibility in the trial. The party claiming the
5-26 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 stated 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 a
6-24 penalty imposed for failure to comply with the court's order. The
6-25 portion of the record on appeal containing the information for
6-26 which the privilege is claimed shall be kept under seal until all
6-27 appeals are exhausted. If all or part of the information is found
7-1 to be privileged, the record relating to the privileged information
7-2 must remain permanently sealed. Materials relating to information
7-3 that are found to be privileged after all appeals are exhausted
7-4 shall be returned to the party claiming the privilege.
7-5 (k) If proceedings are instituted under this section by one
7-6 of several codefendants in a criminal trial, notice shall be
7-7 provided to each codefendant. Each codefendant may intervene if
7-8 the codefendant can demonstrate that the information sought under
7-9 the subpoena bears upon that codefendant's guilt or innocence.
7-10 Before being permitted to participate in any in camera proceeding,
7-11 a codefendant must make the showing required of the party seeking
7-12 enforcement of the subpoena under Subsection (c) of this section.
7-13 (l) If the court finds that the party seeking enforcement
7-14 of the subpoena had no reasonable basis for requesting the
7-15 information, costs and attorney's fees may be assessed against that
7-16 party. If an application for costs or attorney's fees is made
7-17 under this subsection, the court shall state its reasons for
7-18 awarding or denying costs or attorney's fees.
7-19 SECTION 7. LIBERAL CONSTRUCTION. This Act shall be
7-20 liberally construed to achieve its purposes.
7-21 SECTION 8. PRIVILEGE CUMULATIVE; NO LIMITATION ON
7-22 CONSTITUTIONAL PRIVILEGES. (a) The rights provided by this Act
7-23 are in addition to any rights guaranteed by the Constitution of the
7-24 United States or the constitution of this state.
7-25 (b) This Act may not be construed to create or imply any
7-26 limitation on or to otherwise affect a privilege guaranteed by the
7-27 Constitution of the United States or the constitution of this
8-1 state.
8-2 SECTION 9. TRANSITION. This Act applies only to a subpoena
8-3 for information issued on or after the effective date of this Act.
8-4 A subpoena for information made before the effective date of this
8-5 Act is governed by the law in effect at the time the subpoena was
8-6 issued, and that law is continued in effect for that purpose.
8-7 SECTION 10. EMERGENCY. The importance of this legislation
8-8 and the crowded condition of the calendars in both houses create an
8-9 emergency and an imperative public necessity that the
8-10 constitutional rule requiring bills to be read on three several
8-11 days in each house be suspended, and this rule is hereby suspended,
8-12 and that this Act take effect and be in force from and after its
8-13 passage, and it is so enacted.