79R1693 RMB-D

By:  Ellis                                                        S.B. No. 604

relating to a qualified privilege of a journalist not to testify. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subchapter B, Chapter 22, Civil Practice and Remedies Code, is amended by adding Section 22.012 to read as follows: Sec. 22.012. JOURNALIST'S TESTIMONIAL PRIVILEGE. (a) In this section: (1) "Journalist" means a person, or an employee, independent contractor, or agent of that person, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination by any news medium. (2) "News medium" means a person who in the ordinary course of business publishes, broadcasts, or otherwise disseminates news by print, television, radio, or other electronic means accessible to the public. (3) "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant. (4) "Public servant" means a person elected, selected, appointed, employed, or otherwise designated as one of the following, even if the person has not yet qualified for office or assumed the person's duties: (A) an officer, employee, or agent of government; (B) a juror or grand juror; (C) an arbitrator, referee, or other person who is authorized by law or private written agreement to hear or determine a cause or controversy; (D) an attorney at law or notary public when participating in the performance of a governmental function; or (E) a person who is performing a governmental function under a claim of right although the person is not legally qualified to do so. (b) Except as provided by Subsection (c), a journalist may not be compelled to disclose in an official proceeding: (1) any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist; or (2) the source of any information, document, or item described by Subdivision (1). (c) A journalist may be compelled to disclose any information, document, or item obtained while acting as a journalist if the person seeking the testimony or production establishes by a preponderance of the evidence that the testimony or production sought: (1) is relevant and material to the proper administration of the official proceeding for which the testimony or production is sought; (2) is essential to the maintenance of a claim or defense of the person seeking the testimony or production; and (3) cannot be obtained from alternate sources. (d) An order to compel testimony or production as to which a journalist has asserted a privilege under this section may be issued only after notice to the journalist and a hearing. The order must include clear and specific findings as to the showing made by the person seeking the testimony or production. (e) Notwithstanding Subsection (b), a journalist does not have a privilege against disclosure of any information, document, or item obtained as a result of the journalist's eyewitness observation of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct. SECTION 2. Chapter 38, Code of Criminal Procedure, is amended by adding Article 38.11 to read as follows: Art. 38.11. JOURNALIST'S TESTIMONIAL PRIVILEGE. Section 22.012, Civil Practice and Remedies Code, applies to a criminal proceeding. SECTION 3. This Act applies only to a subpoena issued or other attempt made to obtain any information, documents, or items from a journalist on or after the effective date of this Act. SECTION 4. This Act takes effect September 1, 2005.