A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a journalist's testimonial privilege.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subchapter B, Chapter 22, Civil Practices and
1-5 Remedies Code, is amended by adding Section 22.012 to read as
1-6 follows:
1-7 Sec. 22.012. JOURNALIST'S TESTIMONIAL PRIVILEGE. (a)
1-8 Definitions:
1-9 (1) "Journalist" means a person who, for financial
1-10 gain or livelihood, is engaged in gathering, compiling, preparing,
1-11 collecting, photographing, recording, writing, editing, reporting,
1-12 investigating, processing or publishing news or information in a
1-13 tangible form that is distributed or intended to be distributed to a
1-14 group of people by any news medium or through any communication
1-15 service provider. This includes anyone who supervises or assists
1-16 the journalist in gathering, preparing, or dissemination of news or
1-17 information.
1-18 (2) "News medium" means any newspaper, magazine, or
1-19 other periodical, book publisher, news agency, wire service, radio
1-20 or television station or network, system or carrier, or audio or
1-21 audiovisual production company or internet company or provider that
1-22 disseminates news or information to the public by any means,
1-23 including, but not limited to, print, television, radio,
1-24 photographic, mechanical, electronic or other means now known or
2-1 hearafter devised. This includes any parent, subsidiary, division,
2-2 or affiliate of the foregoing entities to the extent the subpoena or
2-3 other compulsory process seeks the identity of a source of the news
2-4 or information described herein.
2-5 (3) "Communication service provider" means any person
2-6 that transmits information of the customer's choosing by electronic
2-7 means; and includes a telecommunications carrier, an information
2-8 service provider, an interactive computer service provider, and an
2-9 information content provider as defined in section 3 and section
2-10 230 of the Communications Act of 1934 (47 U.S.C. 153, 230). This
2-11 includes any parent, subsidiary, division, or affiliate of the
2-12 aforementioned entities to the extent the subpoena or other
2-13 compulsory process seeks the identity of a source or the news or
2-14 information described herein.
2-15 (4) "Official proceeding" means any type of
2-16 administrative, executive, legislative, or judicial proceeding
2-17 that may be conducted before a public servant.
2-18 (5) "Public servant" means a person elected, selected,
2-19 appointed, employed or otherwise designated as one of the
2-20 following, even if the person has not yet qualified for office or
2-21 assumed the person's duties:
2-22 (A) an officer, employee or agent of government;
2-23 (B) a juror or grand juror;
2-24 (C) an arbitrator, referee, or other person who
2-25 is authorized by law or private written agreement to hear or
2-26 determine a cause or controversy;
2-27 (D) an attorney at law or notary public when
3-1 participating in the performance of a governmental function; or
3-2 (E) a person who is performing a governmental
3-3 function under a claim of right although the person is not legally
3-4 qualified to do so.
3-5 (b) Except as provided by Subsections (c) and (e), no
3-6 judicial, legislative, administrative, or other body with the power
3-7 to issue a subpoena or other compulsory process shall compel a
3-8 journalist to testify, produce, or otherwise disclose in an
3-9 official proceeding any confidential or nonconfidential
3-10 information, document, or item legally obtained or prepared while
3-11 acting as a journalist.
3-12 (c) Compelled disclosures otherwise prohibited under
3-13 Subsection (b) may be ordered only if a court of competent
3-14 jurisdiction, after providing the journalist, or one who employs or
3-15 has an independent contract with a journalist, notice and an
3-16 opportunity to be heard, determines by clear and convincing
3-17 evidence that:
3-18 (1) the person or entity seeking the information has
3-19 exhausted all reasonable efforts to obtain the information from
3-20 alternative sources;
3-21 (2) to the extent possible, the subpoena avoids
3-22 requiring production of a large volume of unpublished material and
3-23 is limited to the verification of published information and
3-24 surrounding circumstances relating to the accuracy of the published
3-25 information;
3-26 (3) reasonable and timely notice has been given of the
3-27 demand for documents or information;
4-1 (4) nondisclosure of the information would be contrary
4-2 to the public interest, taking into account both the public
4-3 interest in compelling disclosure and the public interest in
4-4 newsgathering; and
4-5 (5) the subpoena is not being used to obtain
4-6 peripheral, nonessential, or speculative information; and
4-7 (6) when sought in a criminal matter, there are
4-8 reasonable grounds, based on an alternative, independent source, to
4-9 believe that a crime has occurred, and that the information sought
4-10 is central to the investigation or prosecution, particularly with
4-11 respect to directly establishing guilt or innocence; or
4-12 (7) when sought in a civil matter, the disclosure is
4-13 relevant and material to the proper administration of justice and
4-14 is essential to the maintenance of a claim or defense of the person
4-15 seeking the testimony or production.
4-16 (d) An order to compel testimony or production of documents
4-17 as to which a journalist has asserted a privilege under this section
4-18 may be issued only after timely and sufficient notice to the
4-19 journalist and a hearing on the matter has been provided. The order
4-20 must include clear and specific findings as to the showing made by
4-21 the person seeking the testimony or production.
4-22 (e) Notwithstanding Subsection (b), a journalist does not
4-23 have a privilege against disclosure of any information or document
4-24 in the following circumstances:
4-25 (1) if the information or documents sought were
4-26 obtained as a result of the eyewitness observations of criminal
4-27 conduct or commitment of criminal conduct by the journalist,
5-1 including any physical evidence or visual or audio recording of the
5-2 observed conduct, provided that a court of law determines by clear
5-3 and convincing evidence that the party seeking the compelled
5-4 disclosure under this section has exhausted all reasonable efforts
5-5 to obtain the information from alternative sources. This section
5-6 does not apply where the alleged criminal conduct is the act of
5-7 communicating or processing the documents or information at issue;
5-8 or
5-9 (2) if the disclosure of the information or documents
5-10 sought is reasonably necessary to stop or prevent reasonably
5-11 certain death or substancial bodily harm.
5-12 (f) Publication or dissemination by the news media or
5-13 communications service provider of information or documents, or a
5-14 portion thereof, shall not constitute a waiver of the protection
5-15 from the compelled disclosure that is contained in Subsection (b).
5-16 (g) The source of any news or information or any news or
5-17 information obtained in violation of the provisions hereunder shall
5-18 be inadmissible in any action, proceeding, or hearing before any
5-19 judicial, legislative, or administrative body.
5-20 SECTION 2. Chapter 38, Code of Criminal Procedure, is
5-21 amended by adding Article 38.11 to read as follows:
5-22 Art 38.11 JOURNALIST'S TESTIMONIAL PRIVLEGE. Section 22.012,
5-23 Civil Practice and Remedies Code, applies to a criminal proceeding.
5-24 SECTION 3. This Act applies only to information, documents,
5-25 or items obtained or prepared for publication in a news medium after
5-26 the effective date of this Act.
5-27 SECTION 4. This Act takes effect September 1, 2007.
