II. Authority for and source of the right

On May 13, 2009, Texas became the thirty-seventh state to enact a reporter’s privilege. The law was signed by Governor Rick Perry that day and became effectively immediately. The law is now codified at Texas Civil Practices & Remedies Code §22.021-22.027 and Texas Code of Criminal Procedure Arts. 38.11 and 38.111. Prior to the passage of the shield law, advocates of a reporter’s privilege and Texas courts looked to the First Amendment to the United States Constitution, and, specifically, to the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and cases following Branzburg in the federal circuits, to find the basis of a reporter's privilege. See, e.g., Holland v. Centennial Homes, Inc., 22 Med. L. Rptr. 2270 (N.D. Tex. 1993); but see State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App 1994) (en banc). Additionally, some support for such a privilege was also found in Article I, §8 of the Texas Constitution. See Channel Two Television v. Dickerson, 725 S.W.2d 470 (Tex. App.—Houston [1st Dist.] 1987). In that case, the appellate court found that a reporter's privilege existed based on the Texas Constitution. The court applied the three-part test of Justice Powell’s concurrence in Branzburg, holding that a party seeking materials or testimony must show that it is:

(1) highly material and relevant;

(2) necessary or critical to the claim; and

(3) not obtainable from other sources.

Channel Two, 725 S.W.2d at 472.