80R7599 CAE-F
 
  By: Ellis, Duncan S.B. No. 966
 
 
 
   
 
 
A BILL TO BE ENTITLED
AN ACT
relating to a qualified privilege of a journalist not to testify.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Chapter 22, Civil Practice and Remedies Code, is
amended by adding Subchapter C to read as follows:
SUBCHAPTER C. JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
       Sec. 22.021.  DEFINITIONS. In this subchapter:
             (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 who for financial
gain, for a substantial portion of the person's livelihood, or for
subscription purposes 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;
                   (B)  a person who is or has been a journalist,
scholar, or researcher employed by an institution of higher
education; or
                   (C)  a person who is on a professional track to
earn a significant portion of the person's livelihood by obtaining
or preparing information for dissemination by a news medium or an
agent, assistant, employee, or supervisor of that person.
             (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. 22.022.  PURPOSE.  The purpose of this subchapter 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. 22.023.  PRIVILEGE. (a)  Except as otherwise provided
by this subchapter, a judicial, legislative, administrative, or
other body with the authority to issue a subpoena or other
compulsory process may not compel a journalist to testify, produce,
or 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).
       (b)  A subpoena or other compulsory process may not compel
the parent, subsidiary, division, or affiliate of a communication
service provider or news medium to disclose the identity of a source
of news or information or information, documents, or items that are
privileged from disclosure under Subsection (a).
       Sec. 22.024.  LIMITED DISCLOSURE:  DISCLOSURE OTHER THAN AS
CRIMINAL WITNESS.  After notice 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 disclose any
information, document, or item obtained while acting as a
journalist, other than as described by Section 22.025, if the
person seeking the information, document, or item establishes by
clear and convincing evidence that:
             (1)  all reasonable efforts have been exhausted to
obtain the information from an alternative source;
             (2)  to the extent possible, the subpoena or compulsory
process does not require the production of a large volume of
unpublished material and is limited to the verification of
published information and the surrounding circumstances relating
to the accuracy of the published information;
             (3)  reasonable and timely notice was given of the
demand for the information, document, or item;
             (4)  nondisclosure would be contrary to public
interest;
             (5)  the subpoena or compulsory process is not being
used to obtain peripheral, nonessential, or speculative
information; and
             (6)  the information, document, or item:
                   (A)  is relevant and material to the proper
administration of the official proceeding for which the testimony
or production is sought and is essential to the maintenance of a
claim or defense of the person seeking the testimony or production;
or
                   (B)  is central to the investigation or
prosecution of a criminal case regarding the establishment of guilt
or innocence and, based on an independent source, reasonable
grounds exist to believe that a crime has occurred.
       Sec. 22.025.  LIMITED DISCLOSURE:  CRIMINAL WITNESS. (a)  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 that the information,
document, or item, including any physical evidence or visual or
audio recording of the observed conduct:
             (1)  was obtained as the result of an eyewitness
observation of criminal conduct or commitment of criminal conduct
by the journalist and a court determines by clear and convincing
evidence that the person requesting the disclosure has exhausted
reasonable efforts to obtain the information, document, or item
from alternative sources; or
             (2)  is reasonably necessary to stop or prevent
reasonably certain death or substantial bodily harm.
       (b)  This  section does not apply if the alleged criminal
conduct is the act of communicating, receiving, or possessing the
information, document, or item.
       Sec. 22.026.  NOTICE. An order to compel testimony or
production to which a journalist has asserted a privilege under
this subchapter may be issued only after timely notice to the
journalist, the journalist's employer, or a person who has an
independent contract with a 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 and the clear and
convincing evidence on which the court relied in issuing the
court's order.
       Sec. 22.027. PUBLICATION OF PRIVILEGED INFORMATION.
Publication or dissemination by a news medium or communication
service provider of information, documents, or items privileged
under this subchapter is not a waiver of the journalist's
privilege.
       Sec. 22.028.  SOURCE NOT ADMISSIBLE. The source of any news
or information or any news or information obtained in violation of
this subchapter is not admissible in any action, proceeding, or
hearing before a judicial, legislative, administrative, or other
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 PRIVILEGE.
Subchapter C, Chapter 22, 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 or
communication service provider on or after the effective date of
this Act.
       SECTION 4.  This Act takes effect September 1, 2007.