By Puente H.B. No. 54
77R346 JMG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to disclosure of information by a newsperson.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. LEGISLATIVE FINDING AND INTENT. The legislature
1-5 finds that:
1-6 (1) the policy of this state is to ensure that news
1-7 and other information flows freely to the public and that those who
1-8 gather, write, or edit information for the public or disseminate
1-9 information to the public perform these vital functions in a free
1-10 and unfettered atmosphere;
1-11 (2) a person should not be inhibited, directly or
1-12 indirectly, by governmental restraint or sanction imposed by
1-13 governmental process, but rather be encouraged to gather, write,
1-14 edit, or disseminate news or other information vigorously so that
1-15 the public may be fully informed;
1-16 (3) compelling a person to disclose a source of
1-17 information or disclose gathered information is contrary to the
1-18 public interest and inhibits the free flow of information to the
1-19 public; and
1-20 (4) there is an urgent need to provide effective
1-21 measures to halt and prevent this inhibition.
1-22 SECTION 2. DEFINITIONS. In this Act:
1-23 (1) "Medium of communication" means any printed,
1-24 photographic, mechanical, or electronic means of disseminating news
2-1 to the public, including:
2-2 (A) a newspaper, magazine, newsletter, or other
2-3 periodical;
2-4 (B) a book;
2-5 (C) a press association, news agency, or wire
2-6 service; and
2-7 (D) radio, television, cable, and the Internet.
2-8 (2) "News" means any written, oral, or pictorial
2-9 information gathered, procured, transmitted, compiled, or edited
2-10 for dissemination to the public.
2-11 SECTION 3. NEWSPERSON'S PRIVILEGE. (a) A person engaged in
2-12 gathering, procuring, transmitting, compiling, or editing news for
2-13 dissemination to the public or a medium of communication on whose
2-14 behalf news is gathered, procured, transmitted, compiled, edited,
2-15 or disseminated has a privilege to refuse to disclose:
2-16 (1) the source, author, means, agency, or person from
2-17 or through whom any information was procured, obtained, supplied,
2-18 furnished, gathered, transmitted, compiled, edited, disseminated,
2-19 or delivered; or
2-20 (2) any news or information obtained in any situation,
2-21 including a social gathering, in which a newsperson obtains
2-22 information for the purpose of disseminating it to the public,
2-23 regardless of whether the news or information is disseminated.
2-24 (b) The privilege established under this section applies:
2-25 (1) in any legal or quasi-legal proceeding; and
2-26 (2) before any investigative body including a court, a
2-27 grand jury, a petit jury, an administrative agency, the
3-1 legislature, and any legislative committee.
3-2 (c) The privilege does not apply to a newsperson who:
3-3 (1) intentionally conceals from the source of the
3-4 information the fact that the newsperson is a newsperson; or
3-5 (2) is an eyewitness to or participant in an act
3-6 involving physical violence or property damage.
3-7 (d) Except as provided by Section 4 of this Act, the
3-8 privilege established under this section is absolute.
3-9 SECTION 4. APPLICATION OF PRIVILEGE IN CRIMINAL PROCEEDING.
3-10 (a) If a person engaged in gathering, procuring, transmitting,
3-11 compiling, or editing news for dissemination to the public or a
3-12 medium of communication on whose behalf news is gathered, procured,
3-13 transmitted, compiled, edited, or disseminated is subpoenaed by or
3-14 on behalf of a defendant in a criminal proceeding, the procedure
3-15 established under Section 5 of this Act applies.
3-16 (b) If a party seeking enforcement of a subpoena in a
3-17 criminal proceeding alleges that the privilege established under
3-18 this Act does not apply under Section 3(c)(2), Sections 5(c)-(l) of
3-19 this Act apply.
3-20 (c) Section 5 of this Act does not apply to a subpoena
3-21 issued by or on behalf of a party to a proceeding before an
3-22 administrative or investigative body, a grand jury, or a
3-23 legislative committee.
3-24 SECTION 5. REVIEW OF CLAIM OF PRIVILEGE IN CRIMINAL
3-25 PROCEEDING. (a) To sustain a claim of privilege under this Act,
3-26 the party claiming the privilege in a criminal proceeding must make
3-27 a prima facie showing that:
4-1 (1) the party was engaged in gathering, procuring,
4-2 transmitting, compiling, editing, or disseminating news for the
4-3 public or is a medium of communication on whose behalf news is
4-4 gathered, procured, transmitted, compiled, edited, or disseminated;
4-5 and
4-6 (2) the subpoenaed information was obtained in any
4-7 situation, including a social gathering, in which a newsperson
4-8 obtains information for the purpose of disseminating it to the
4-9 public, regardless of whether the news or information is
4-10 disseminated.
4-11 (b) If the party claiming the privilege makes the prima
4-12 facie showing required by Subsection (a) of this section, the
4-13 privilege under this Act is absolute for any information provided
4-14 in confidence and for the identity of any confidential source.
4-15 (c) If the party claiming the privilege makes the prima
4-16 facie showing required by Subsection (a) of this section but the
4-17 information sought was not provided in confidence and is not the
4-18 identity of a confidential source, the party claiming the privilege
4-19 may only be required to disclose the information if the party
4-20 seeking enforcement of the subpoena shows by clear and convincing
4-21 evidence that:
4-22 (1) the privilege has been waived under Rule 511,
4-23 Texas Rules of Evidence; or
4-24 (2) there is a reasonable probability that the
4-25 subpoenaed information is highly relevant, material, and critical
4-26 to the defense, the subpoenaed information cannot be secured from
4-27 an available source less inhibiting on the free flow of information
5-1 to the public, the value of the subpoenaed material as it bears on
5-2 the issue of guilt or innocence outweighs the privilege against
5-3 disclosure, and the request is not overbroad, oppressive, or
5-4 unreasonably burdensome.
5-5 (d) For purposes of Subsection (c) of this section,
5-6 publication constitutes a waiver only for the specific information
5-7 published.
5-8 (e) A showing made under Subsection (c) of this section may
5-9 be overcome by evidence that all or part of the subpoenaed
5-10 information:
5-11 (1) is irrelevant, immaterial, or unnecessary to the
5-12 defense; or
5-13 (2) can be secured from another source.
5-14 (f) On a finding by the court that there has been a waiver
5-15 as to any of the subpoenaed information or that any of the
5-16 subpoenaed information meets the criteria established by Subsection
5-17 (c)(2) of this section, the court shall order the production of
5-18 that information only for in camera inspection and a determination
5-19 as to its probable admissibility in the trial. The party claiming
5-20 the privilege and the party seeking enforcement of the subpoena are
5-21 entitled to a hearing in connection with the in camera inspection
5-22 of the information by the court in which each party is entitled to
5-23 a full opportunity to be heard. If the court, after in camera
5-24 review of the information, determines that the information is
5-25 admissible under Subsection (c) of this section, the court shall
5-26 direct production of that information only.
5-27 (g) A proceeding under this section must take place before
6-1 trial, except that the court may allow a motion to institute
6-2 proceedings under this section to be made during trial if the court
6-3 determines that the information sought is newly discovered evidence
6-4 and could not have been discovered earlier through the exercise of
6-5 due diligence.
6-6 (h) The determinations to be made by the court under this
6-7 section may be made only after a hearing in which the party
6-8 claiming the privilege and the party seeking enforcement of the
6-9 subpoena have a full opportunity to present evidence and argument
6-10 with respect to each of the items sought to be subpoenaed.
6-11 (i) After a hearing conducted by the court under this
6-12 section, the court shall make specific findings of fact and
6-13 conclusions of law with respect to its rulings. The findings of
6-14 fact and conclusions of law must be in writing or set forth on the
6-15 record.
6-16 (j) The state may appeal a decision under this section in
6-17 the same manner as provided for interlocutory appeals by Article
6-18 44.01, Code of Criminal Procedure. An appeal of a decision of a
6-19 court by a defendant must be made in the same manner as provided
6-20 for the appeal of interlocutory orders under the Rules of Appellate
6-21 Procedure. The appeal acts as a stay of all penalties that have
6-22 been imposed for failure to comply with the court's order. On
6-23 appeal, the portion of the record containing the information for
6-24 which the privilege is claimed shall be kept under seal until all
6-25 appeals are exhausted. If the information or any part of the
6-26 information is found to be privileged, the record relating to the
6-27 privileged information must remain permanently sealed. Any
7-1 materials relating to information that is found to be privileged
7-2 after all appeals are exhausted shall be returned to the party
7-3 claiming the privilege.
7-4 (k) If proceedings are instituted under this section by one
7-5 of several codefendants in a criminal trial, notice shall be
7-6 provided to each codefendant. Each codefendant may intervene if
7-7 the codefendant can demonstrate that the information sought under
7-8 the subpoena bears upon that codefendant's guilt or innocence.
7-9 Before being permitted to participate in any in camera proceeding,
7-10 a codefendant must make the showing required of the party seeking
7-11 enforcement of the subpoena under Subsection (c) of this section.
7-12 (l) If the court finds that the party seeking enforcement of
7-13 the subpoena does not have a reasonable basis for requesting the
7-14 information, costs and attorney's fees may be assessed against that
7-15 party. If an application for costs or attorney's fees is made
7-16 under this subsection, the court shall set forth its reasons for
7-17 awarding or denying costs or attorney's fees.
7-18 (m) Notwithstanding Sections 22.004 and 22.109, Government
7-19 Code, the supreme court or court of criminal appeals may not amend
7-20 or adopt rules in conflict with this Act.
7-21 SECTION 6. 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 effect a privilege guaranteed by the
7-27 Constitution of the United States or the constitution of this
8-1 state.
8-2 SECTION 7. 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 8. EFFECTIVE DATE. This Act takes effect
8-8 immediately.