By: Pena H.B. No. 382

A BILL TO BE ENTITLED

AN ACT

relating to a journalist's testimonial privilege.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subchapter B, Chapter 22, Civil Practices and Remedies Code, is amended by adding Section 22.012 to read as follows:

Sec. 22.012. JOURNALIST'S TESTIMONIAL PRIVILEGE. (a) Definitions:

(1) "Journalist" means a person who, for financial gain or livelihood, is engaged in gathering, compiling, preparing, collecting, photographing, recording, writing, editing, reporting, investigating, processing or publishing news or information in a tangible form that is distributed or intended to be distributed to a group of people by any news medium or through any communication service provider. This includes anyone who supervises or assists the journalist in gathering, preparing, or dissemination of news or information.

(2) "News medium" means any newspaper, magazine, or other periodical, book publisher, news agency, wire service, radio or television station or network, system or carrier, or audio or audiovisual production company or internet company or provider that disseminates news or information to the public by any means, including, but not limited to, print, television, radio, photographic, mechanical, electronic or other means now known or hearafter devised. This includes any parent, subsidiary, division, or affiliate of the foregoing entities to the extent the subpoena or other compulsory process seeks the identity of a source of the news or information described herein.

(3) "Communication service provider" means any person that transmits information of the customer's choosing by electronic means; and includes a telecommunications carrier, an information service provider, an interactive computer service provider, and an information content provider as defined in section 3 and section 230 of the Communications Act of 1934 (47 U.S.C. 153, 230). This includes any parent, subsidiary, division, or affiliate of the aforementioned entities to the extent the subpoena or other compulsory process seeks the identity of a source or the news or information described herein.

(4) "Official proceeding" means any type of administrative, executive, legislative, or judicial proceeding that may be conducted before a public servant.

(5) "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 Subsections (c) and (e), no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process shall compel a journalist to testify, produce, or otherwise disclose in an official proceeding any confidential or nonconfidential information, document, or item legally obtained or prepared while acting as a journalist.

(c) Compelled disclosures otherwise prohibited under Subsection (b) may be ordered only if a court of competent jurisdiction, after providing the journalist, or one who employs or has an independent contract with a journalist, notice and an opportunity to be heard, determines by clear and convincing evidence that:

(1) the person or entity seeking the information has exhausted all reasonable efforts to obtain the information from alternative sources;

(2) to the extent possible, the subpoena avoids requiring production of a large volume of unpublished material and is limited to the verification of published information and surrounding circumstances relating to the accuracy of the published information;

(3) reasonable and timely notice has been given of the demand for documents or information;

(4) nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in newsgathering; and

(5) the subpoena is not being used to obtain peripheral, nonessential, or speculative information; and

(6) when sought in a criminal matter, there are reasonable grounds, based on an alternative, independent source, to believe that a crime has occurred, and that the information sought is central to the investigation or prosecution, particularly with respect to directly establishing guilt or innocence; or

(7) when sought in a civil matter, the disclosure is relevant and material to the proper administration of justice and is essential to the maintenance of a claim or defense of the person seeking the testimony or production.

(d) An order to compel testimony or production of documents as to which a journalist has asserted a privilege under this section may be issued only after timely and sufficient notice to the journalist and a hearing on the matter has been provided. 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 or document in the following circumstances:

(1) if the information or documents sought were obtained as a result of the eyewitness observations of criminal conduct or commitment of criminal conduct by the journalist, including any physical evidence or visual or audio recording of the observed conduct, provided that a court of law determines by clear and convincing evidence that the party seeking the compelled disclosure under this section has exhausted all reasonable efforts to obtain the information from alternative sources. This section does not apply where the alleged criminal conduct is the act of communicating or processing the documents or information at issue; or

(2) if the disclosure of the information or documents sought is reasonably necessary to stop or prevent reasonably certain death or substancial bodily harm.

(f) Publication or dissemination by the news media or communications service provider of information or documents, or a portion thereof, shall not constitute a waiver of the protection from the compelled disclosure that is contained in Subsection (b).

(g) The source of any news or information or any news or information obtained in violation of the provisions hereunder shall be inadmissible in any action, proceeding, or hearing before any judicial, legislative, or administrative body.

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 PRIVLEGE. Section 22.012, Civil Practice and Remedies Code, applies to a criminal proceeding.

SECTION 3. This Act applies only to information, documents, or items obtained or prepared for publication in a news medium after the effective date of this Act.

SECTION 4. This Act takes effect September 1, 2007.