III. Scope of protection

The Texas Free Flow of Information Act (also known as a reporter’s privilege) is a qualified privilege with separate civil and criminal sections. The civil section applies to confidential and non-confidential sources, journalist’s work product and published and unpublished materials. In order to require a reporter to testify or produce materials, the party who issued the subpoena must show by clear and specific evidence the following: (1) they have exhausted all reasonable efforts to get the information elsewhere, (2) the information is relevant and material to the proper administration of justice, and, (3) the information sought is essential to the maintenance of the claim or defense of the person asking for it. Tex. Civ. P. & Rem. Code §22.024.

The criminal section, on the other hand, is separated into three parts with different tests applying to different matters. The first part deals with confidential sources, the next with unpublished work product and non-confidential sources, and the third with published information. See Tex. Code of Crim. Proc., art. 38.11 and 38.111.