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A BILL TO BE ENTITLED
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AN ACT
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relating to a qualified privilege of a journalist not to testify. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 22, Civil Practice and Remedies Code, is |
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amended by adding Subchapter C to read as follows: |
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SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE IN |
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CIVIL PROCEEDINGS |
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Sec. 22.021. DEFINITIONS. In this subchapter: |
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(1) "Communication service provider" means a person or |
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the parent, subsidiary, division, or affiliate of a person who |
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transmits information chosen by a customer by electronic means, |
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including: |
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(A) a telecommunications carrier, as defined by |
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Section 3, Communications Act of 1934 (47 U.S.C. Section 153); |
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(B) a provider of information service, as defined |
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by Section 3, Communications Act of 1934 (47 U.S.C. Section 153); |
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(C) a provider of interactive computer service, |
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as defined by Section 230, Communications Act of 1934 (47 U.S.C. |
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Section 230); and |
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(D) an information content provider, as defined |
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by Section 230, Communications Act of 1934 (47 U.S.C. Section 230). |
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(2) "Journalist" means a person, including a parent, |
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subsidiary, division, or affiliate of a person, who for a |
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substantial portion of the person's livelihood or for substantial |
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financial gain gathers, compiles, prepares, collects, photographs, |
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|
records, writes, edits, reports, investigates, processes, or |
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publishes news or information that is disseminated by a news medium |
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or communication service provider and includes: |
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(A) a person who supervises or assists in |
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gathering, preparing, and disseminating the news or information; or |
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(B) notwithstanding the foregoing, a person who |
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is or was a journalist, scholar, or researcher employed by an |
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institution of higher education at the time the person obtained or |
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prepared the requested information, or a person who at the time the |
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|
person obtained or prepared the requested information: |
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(i) is earning a significant portion of the |
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person's livelihood by obtaining or preparing information for |
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dissemination by a news medium or communication service provider; |
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or |
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(ii) was serving as an agent, assistant, |
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|
employee, or supervisor of a news medium or communication service |
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|
provider. |
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(3) "News medium" means a newspaper, magazine or |
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periodical, book publisher, news agency, wire service, radio or |
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television station or network, cable, satellite, or other |
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transmission system or carrier or channel, or a channel or |
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|
programming service for a station, network, system, or carrier, or |
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|
an audio or audiovisual production company or Internet company or |
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|
provider, or the parent, subsidiary, division, or affiliate of that |
|
|
entity, that disseminates news or information to the public by any |
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|
means, including: |
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(A) print; |
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|
(B) television; |
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|
(C) radio; |
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(D) photographic; |
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(E) mechanical; |
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(F) electronic; and |
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(G) other means, known or unknown, that are |
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accessible to the public. |
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(4) "Official proceeding" means any type of |
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administrative, executive, legislative, or judicial proceeding |
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that may be conducted before a public servant, including a |
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proceeding under Rule 202, Texas Rules of Civil Procedure. |
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(5) "Public servant" means a person elected, selected, |
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appointed, employed, or otherwise designated as one of the |
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following, even if the person has not yet qualified for office or |
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|
assumed the person's duties: |
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|
(A) an officer, employee, or agent of government; |
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|
(B) a juror; |
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|
(C) an arbitrator, referee, or other person who |
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|
is authorized by law or private written agreement to hear or |
|
|
determine a cause or controversy; |
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|
(D) an attorney or notary public when |
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|
participating in the performance of a governmental function; or |
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(E) a person who is performing a governmental |
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function under a claim of right, although the person is not legally |
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qualified to do so. |
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Sec. 22.022. PURPOSE. The purpose of this subchapter is to |
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increase the free flow of information and preserve a free and active |
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press and, at the same time, protect the right of the public to |
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effective law enforcement and the fair administration of justice. |
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Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided |
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by this subchapter, a judicial, legislative, administrative, or |
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other body with the authority to issue a subpoena or other |
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compulsory process may not compel a journalist to testify regarding |
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|
or to produce or disclose in an official proceeding: |
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(1) any confidential or nonconfidential information, |
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document, or item obtained or prepared while acting as a |
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journalist; or |
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(2) the source of any information, document, or item |
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described by Subdivision (1). |
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(b) A subpoena or other compulsory process may not compel |
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|
the parent, subsidiary, division, or affiliate of a communication |
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service provider or news medium to disclose the information, |
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documents, or items or the source of any information, documents, or |
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items that are privileged from disclosure under Subsection (a). |
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Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice |
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and an opportunity to be heard, a court may compel a journalist, a |
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journalist's employer, or a person with an independent contract |
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with a journalist to testify regarding or to produce or disclose any |
|
|
information, document, or item or the source of any information, |
|
|
document, or item obtained while acting as a journalist if the |
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|
person seeking the information, document, or item or the source of |
|
|
any information, document, or item makes a clear and specific |
|
|
showing that: |
|
|
(1) all reasonable efforts have been exhausted to |
|
|
obtain the information from an alternative source; |
|
|
(2) the subpoena is not overbroad, unreasonable, or |
|
|
oppressive and, when appropriate, will be limited to the |
|
|
verification of published information and the surrounding |
|
|
circumstances relating to the accuracy of the published |
|
|
information; |
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(3) reasonable and timely notice was given of the |
|
|
demand for the information, document, or item; |
|
|
(4) in this instance, the interest of the party |
|
|
subpoenaing the information outweighs the public interest in |
|
|
gathering and dissemination of news, including the concerns of the |
|
|
journalist; |
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(5) the subpoena or compulsory process is not being |
|
|
used to obtain peripheral, nonessential, or speculative |
|
|
information; and |
|
|
(6) the information, document, or item is relevant and |
|
|
material to the proper administration of the official proceeding |
|
|
for which the testimony, production, or disclosure is sought and is |
|
|
essential to the maintenance of a claim or defense of the person |
|
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seeking the testimony, production, or disclosure. |
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Sec. 22.025. NOTICE. An order to compel testimony, |
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production, or disclosure to which a journalist has asserted a |
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privilege under this subchapter may be issued only after timely |
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notice to the journalist, the journalist's employer, or a person |
|
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who has an independent contract with the journalist and a hearing. |
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The order must include clear and specific findings as to the showing |
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made by the person seeking the testimony, production, or disclosure |
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and the clear and specific evidence on which the court relied in |
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issuing the court's order. |
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Sec. 22.026. PUBLICATION OF PRIVILEGED INFORMATION. |
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Publication or dissemination by a news medium or communication |
|
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service provider of information, documents, or items privileged |
|
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under this subchapter is not a waiver of the journalist's |
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|
privilege. |
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Sec. 22.027. NEWS MEDIA RECORDINGS. Extrinsic evidence of |
|
|
the authenticity of evidence as a condition precedent to the |
|
|
admissibility of the evidence in a civil proceeding is not required |
|
|
with respect to a recording that purports to be a broadcast by a |
|
|
radio or television station that holds a license issued by the |
|
|
Federal Communications Commission at the time of the recording. |
|
|
The court may take judicial notice of the recording license as |
|
|
provided by Rule 201, Texas Rules of Evidence. |
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|
SECTION 2. Chapter 38, Code of Criminal Procedure, is |
|
|
amended by adding Articles 38.11 and 38.111 to read as follows: |
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Art. 38.11. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE |
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IN CRIMINAL PROCEEDINGS |
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Sec. 1. DEFINITIONS. In this article: |
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|
(1) "Communication service provider" means a person or |
|
|
the parent, subsidiary, division, or affiliate of a person who |
|
|
transmits information chosen by a customer by electronic means, |
|
|
including: |
|
|
(A) a telecommunications carrier, as defined by |
|
|
Section 3, Communications Act of 1934 (47 U.S.C. Section 153); |
|
|
(B) a provider of information service, as defined |
|
|
by Section 3, Communications Act of 1934 (47 U.S.C. Section 153); |
|
|
(C) a provider of interactive computer service, |
|
|
as defined by Section 230, Communications Act of 1934 (47 U.S.C. |
|
|
Section 230); and |
|
|
(D) an information content provider, as defined |
|
|
by Section 230, Communications Act of 1934 (47 U.S.C. Section 230). |
|
|
(2) "Journalist" means a person, including a parent, |
|
|
subsidiary, division, or affiliate of a person, who for a |
|
|
substantial portion of the person's livelihood or for substantial |
|
|
financial gain gathers, compiles, prepares, collects, photographs, |
|
|
records, writes, edits, reports, investigates, processes, or |
|
|
publishes news or information that is disseminated by a news medium |
|
|
or communication service provider and includes: |
|
|
(A) a person who supervises or assists in |
|
|
gathering, preparing, and disseminating the news or information; or |
|
|
(B) notwithstanding the foregoing, a person who |
|
|
is or was a journalist, scholar, or researcher employed by an |
|
|
institution of higher education at the time the person obtained or |
|
|
prepared the requested information, or a person who at the time the |
|
|
person obtained or prepared the requested information: |
|
|
(i) is earning a significant portion of the |
|
|
person's livelihood by obtaining or preparing information for |
|
|
dissemination by a news medium or communication service provider; |
|
|
or |
|
|
(ii) was serving as an agent, assistant, |
|
|
employee, or supervisor of a news medium or communication service |
|
|
provider. |
|
|
(3) "News medium" means a newspaper, magazine or |
|
|
periodical, book publisher, news agency, wire service, radio or |
|
|
television station or network, cable, satellite, or other |
|
|
transmission system or carrier or channel, or a channel or |
|
|
programming service for a station, network, system, or carrier, or |
|
|
an audio or audiovisual production company or Internet company or |
|
|
provider, or the parent, subsidiary, division, or affiliate of that |
|
|
entity, that disseminates news or information to the public by any |
|
|
means, including: |
|
|
(A) print; |
|
|
(B) television; |
|
|
(C) radio; |
|
|
(D) photographic; |
|
|
(E) mechanical; |
|
|
(F) electronic; and |
|
|
(G) other means, known or unknown, that are |
|
|
accessible to the public. |
|
|
(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 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. |
|
|
Sec. 2. PURPOSE. The purpose of this article is to increase |
|
|
the free flow of information and preserve a free and active press |
|
|
and, at the same time, protect the right of the public to effective |
|
|
law enforcement and the fair administration of justice. |
|
|
Sec. 3. PRIVILEGE CONCERNING CONFIDENTIAL SOURCES. (a) A |
|
|
journalist may be compelled to testify regarding or to disclose the |
|
|
confidential source of any information, document, or item obtained |
|
|
while acting as a journalist if the person seeking the testimony, |
|
|
production, or disclosure makes a clear and specific showing that |
|
|
the source of any information, document, or item: |
|
|
(1) was observed by the journalist committing a felony |
|
|
criminal offense and the subpoenaing party has exhausted reasonable |
|
|
efforts to obtain from alternative sources the confidential source |
|
|
of any information, document, or item obtained or prepared while |
|
|
acting as a journalist; |
|
|
(2) is a person who confessed or admitted to the |
|
|
journalist the commission of a felony criminal offense and the |
|
|
subpoenaing party has exhausted reasonable efforts to obtain from |
|
|
alternative sources the confidential source of any information, |
|
|
document, or item obtained or prepared while acting as a |
|
|
journalist; |
|
|
(3) is a person for whom probable cause exists that the |
|
|
person participated in a felony criminal offense and the |
|
|
subpoenaing party has exhausted reasonable efforts to obtain from |
|
|
alternative sources the confidential source of any information, |
|
|
document, or item obtained or prepared while acting as a |
|
|
journalist; or |
|
|
(4) disclosure of the confidential source is |
|
|
reasonably necessary to stop or prevent reasonably certain death or |
|
|
substantial bodily harm. |
|
|
(b) If the alleged criminal conduct is the act of |
|
|
communicating, receiving, or possessing the information, document, |
|
|
or item, this section does not apply and Section 4 governs the act. |
|
|
(c) Notwithstanding Subsection (b), Subsection (a) applies |
|
|
to any information, document, or item disclosed or received in |
|
|
violation of a grand jury oath given to either a juror or a witness |
|
|
under Article 19.34 or 20.16. In this context, the court has the |
|
|
discretion to conduct an in camera hearing. The court may not order |
|
|
the production of the confidential source until a ruling has been |
|
|
made on the motion. |
|
|
(d) An application for a subpoena of a journalist under |
|
|
Article 24.03, or a subpoena of a journalist issued by an attorney |
|
|
representing the state under Article 20.10 or 20.11, must be signed |
|
|
by the elected district attorney, elected criminal district |
|
|
attorney, or elected county attorney, as applicable. If the |
|
|
elected district attorney, elected criminal district attorney, or |
|
|
elected county attorney has been disqualified or recused or has |
|
|
resigned, the application for the subpoena or the subpoena must be |
|
|
signed by the person succeeding the elected attorney. If the |
|
|
elected officer is not in the jurisdiction, the highest ranking |
|
|
assistant to the elected officer must sign the subpoena. |
|
|
Sec. 4. PRIVILEGE CONCERNING UNPUBLISHED INFORMATION, |
|
|
DOCUMENT, OR ITEM AND NONCONFIDENTIAL SOURCES. (a) After service |
|
|
of subpoena and an opportunity to be heard, a court may compel a |
|
|
journalist, a journalist's employer, or a person with an |
|
|
independent contract with a journalist to testify regarding or to |
|
|
produce or disclose any unpublished information, document, or item |
|
|
or the source of any information, document, or item obtained while |
|
|
acting as a journalist, other than as described by Section 3, if the |
|
|
person seeking the unpublished information, document, or item or |
|
|
the source of any information, document, or item makes a clear and |
|
|
specific showing that: |
|
|
(1) all reasonable efforts have been exhausted to |
|
|
obtain the information from alternative sources; and |
|
|
(2) the unpublished information, document, or item: |
|
|
(A) is relevant and material to the proper |
|
|
administration of the official proceeding for which the testimony, |
|
|
production, or disclosure is sought and is essential to the |
|
|
maintenance of a claim or defense of the person seeking the |
|
|
testimony, production, or disclosure; or |
|
|
(B) is central to the investigation or |
|
|
prosecution of a criminal case and, based on something other than |
|
|
the assertion of the person requesting the subpoena, reasonable |
|
|
grounds exist to believe that a crime has occurred. |
|
|
(b) The court, when considering an order to compel testimony |
|
|
regarding or to produce or disclose any unpublished information, |
|
|
document, or item or the source of any information, document, or |
|
|
item obtained while acting as a journalist, should consider the |
|
|
following factors, including but not limited to, whether: |
|
|
(1) the subpoena is overbroad, unreasonable, or |
|
|
oppressive; |
|
|
(2) reasonable and timely notice was given of the |
|
|
demand for the information, document, or item; |
|
|
(3) in this instance, the interest of the party |
|
|
subpoenaing the information outweighs the public interest in |
|
|
gathering and dissemination of news, including the concerns of the |
|
|
journalist; and |
|
|
(4) the subpoena or compulsory process is being used |
|
|
to obtain peripheral, nonessential, or speculative information. |
|
|
(c) A court may not consider a single factor under |
|
|
Subsection (b) as outcome-determinative in the decision whether to |
|
|
compel the testimony or the production or disclosure of the |
|
|
unpublished information, document, or item, or the source of any |
|
|
information, document, or item. |
|
|
Sec. 5. NOTICE. An order to compel testimony, production, |
|
|
or disclosure to which a journalist has asserted a privilege under |
|
|
this article may be issued only after timely notice to the |
|
|
journalist, the journalist's employer, or a person who has an |
|
|
independent contract with the journalist and a hearing. The order |
|
|
must include clear and specific findings as to the showing made by |
|
|
the person seeking the testimony, production, or disclosure and the |
|
|
clear and specific evidence on which the court relied in issuing the |
|
|
court's order. |
|
|
Sec. 6. PUBLICATION OF PRIVILEGED INFORMATION. Publication |
|
|
or dissemination by a news medium or communication service provider |
|
|
of information, documents, or items privileged under this article |
|
|
is not a waiver of the journalist's privilege regarding sources and |
|
|
unpublished information, documents, or items. |
|
|
Sec. 7. PUBLISHED INFORMATION. This article does not apply |
|
|
to any information, document, or item that has at any time been |
|
|
published or broadcast by the journalist. |
|
|
Sec. 8. REIMBURSEMENT OF COSTS. The subpoenaing party |
|
|
shall pay a journalist a reasonable fee for the journalist's time |
|
|
and costs incurred in providing the information, item, or document |
|
|
subpoenaed, based on the fee structure provided by Subchapter F, |
|
|
Chapter 552, Government Code. |
|
|
Art. 38.111. NEWS MEDIA RECORDINGS. Extrinsic evidence of |
|
|
the authenticity of evidence as a condition precedent to the |
|
|
admissibility of the evidence in a criminal proceeding is not |
|
|
required with respect to a recording that purports to be a broadcast |
|
|
by a radio or television station that holds a license issued by the |
|
|
Federal Communications Commission at the time of the recording. |
|
|
The court may take judicial notice of the recording license as |
|
|
provided by Rule 201, Texas Rules of Evidence. |
|
|
SECTION 3. This Act applies only to information, documents, |
|
|
or items or the source of any information, document, or item |
|
|
obtained or prepared for publication in a news medium or |
|
|
communication service provider on or after the effective date of |
|
|
this Act. |
|
|
SECTION 4. This Act takes effect September 1, 2009. |
|
|
|
|
|
* * * * * |