H.B. No. 670

	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 IN
	CIVIL PROCEEDINGS
	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, 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, including a
	proceeding under Rule 202, Texas Rules of Civil Procedure.
	(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;
	(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 regarding
	or to 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 information,
	documents, or items or the source of any information, documents, or
	items that are privileged from disclosure under Subsection (a).
	Sec. 22.024.  LIMITED DISCLOSURE GENERALLY. 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 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
	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 alternative sources;
	(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;
	(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;
	(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
	seeking the testimony, production, or disclosure.
	Sec. 22.025.  NOTICE. An order to compel testimony,
	production, or disclosure 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 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. 22.026.  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. 22.027.  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.
	SECTION 2.  Chapter 38, Code of Criminal Procedure, is
	amended by adding Articles 38.11 and 38.111 to read as follows:
	Art. 38.11.  JOURNALIST'S QUALIFIED TESTIMONIAL PRIVILEGE
	IN CRIMINAL PROCEEDINGS
	Sec. 1.  DEFINITIONS. In this article:
	(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. (a) Except as otherwise provided by
	this article, 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 regarding or to
	produce or disclose in an official proceeding:
	(1)  any confidential or nonconfidential unpublished
	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 unpublished
	information, documents, or items or the source of any information,
	documents, or items that are privileged from disclosure under
	Subsection (a).
	Sec. 4.  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 5 governs the act.
	(c)  Notwithstanding Subsection (b), if the information,
	document, or item was 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, a journalist may be compelled to testify if the person
	seeking the testimony, production, or disclosure makes a clear and
	specific showing that the subpoenaing party has exhausted
	reasonable efforts to obtain from alternative sources the
	confidential source of any information, document, or item obtained.
	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. 5.  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 4, 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. 6.  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. 7.  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. 8.  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. 9.  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 immediately if it receives
	a vote of two-thirds of all the members elected to each house, as
	provided by Section 39, Article III, Texas Constitution.  If this
	Act does not receive the vote necessary for immediate effect, this
	Act takes effect September 1, 2009.
	______________________________	______________________________
	President of the Senate	Speaker of the House
	I certify that H.B. No. 670 was passed by the House on April
	2, 2009, by the following vote:  Yeas 146, Nays 0, 1 present, not
	voting; and that the House concurred in Senate amendments to H.B.
	No. 670 on April 30, 2009, by the following vote:  Yeas 146, Nays 0,
	1 present, not voting.
	______________________________
	Chief Clerk of the House
	I certify that H.B. No. 670 was passed by the Senate, with
	amendments, on April 28, 2009, by the following vote:  Yeas 31,
	Nays 0.
	______________________________
	Secretary of the Senate
	APPROVED: __________________
	Date
	__________________
	Governor