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Texas

Reporter's Privilege Compendium

Laura Lee Prather
Catherine L. Robb

Mark A. Flores
Haynes and Boone, LLP
600 Congress Avenue, Suite 1300
Austin, Texas 78701
(512) 867-8400

Special thanks to Robert P. Latham and Daniel Scardino, Jackson Walker L.L.P., who wrote the pre-shield law edition of this work.

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I. Introduction: History & Background

The state of the Reporter’s Privilege remains strong thanks to the state’s shield law, although there is still uncertainty as to how some provisions are interpreted. The shield law (signed on May 13, 2009, and effective upon signing) has been used on a number of occasions with mostly positive results. Not only have numerous court proceedings resulted in favorable rulings for reporters and the media, but there is considerable anecdotal evidence of many media outlets convincing the subpoenaing party to withdraw the subpoena upon being informed of the shield law.

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II. Authority for and source of the right

was signed by Governor Rick Perry that day and became effectively immediately. The law is now codified at Texas Civil Practice & 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., No. 3:92-CV-1533-T, 3:92-CV-1534-T, 1993 U.S. Dist. LEXIS 21624, 22 Med. L. Rptr. 2270 (N.D. Tex. Dec. 21, 1993); but see State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App 1994) (en banc) (“[N]ewsmen have no constitutional privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution.”). 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 maintenance of the claim; and

(3) not obtainable from other sources.

Channel Two, 725 S.W.2d at 472 (format added).

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A. Shield law statute

  1. Shield law statute

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, codified at Texas Civil Practice & Remedies Code §§22.021-22.027, 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 that they have satisfied the following six-part test:

(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.

 

Tex. Civ. Prac. & Rem. Code §22.024.

The criminal section, on the other hand, codified at Texas Code of Criminal Procedure arts. 38.11 and 38.111, 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. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or, (3) probable cause exists that the source committed a felony. In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Further, a journalist can be compelled to give up his confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. With regard to unpublished materials (i.e., work product) in the criminal setting, the requesting party must first show through clear and convincing evidence that “all reasonable efforts have been exhausted to obtain the information from alternative sources” and that the requested materials are “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 “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 occurred.”  Tex. Code Crim. Proc. art. 38.11 § 5(a).  The Court should also consider whether the nature of the subpoena, the timing of the notice of the demand and whether the interest of the requesting party outweighs “the public interest in gathering and dissemination of news.”  Tex. Code Crim. Proc. art. 38.11 § 5(b).  Published materials are not covered by the criminal statute so one would look to common law with regard to those materials.

The bill that was proposed in the 2005 and 2007 and ultimately passed in the 2009 legislative session is a qualified privilege patterned in large part after the Department of Justice Guidelines. In 2007, there were two chief opponents to the legislation – law enforcement and the business community. During the 2007 session, the proponents of the law were able to negotiate with the business community to alleviate their concerns about disclosure of trade secrets and other information they deemed to be “private” or “proprietary” in nature. Ultimately, the business community groups signed a letter to the Legislature indicating they no longer opposed the bill. Despite repeated efforts, there were no fruitful negotiations with the prosecutors in either 2005 or 2007. In 2007, the bill passed out of the Texas Senate and the House Judiciary Committee but was killed on a technical point of order during the last days of the 80th regular legislative session.

In the 2009 legislative session, long-time sponsors in the Senate – Senator Rodney Ellis (D-Houston) and Senator Robert Duncan (R-Lubbock) – continued as steadfast supporters of the legislation. Having lost the prior House sponsor in a primary election, a new House sponsor was needed. San Antonio Representative Trey Martinez-Fischer signed up to sponsor the legislation and was key in its passage. HB 670 (the Texas Free Flow of Information Act) was heard by the newly-reconstituted House Judiciary and Civil Jurisprudence committee in 2009. There were only three returning members of the committee who had heard the issue in previous sessions. Proponents were concerned that the learning curve would be detrimental to the cause, but this proved not to be a problem, in large part, because of the strength of the new chairman of the committee – Chairman Todd Hunter (R-Corpus Christi).

From the beginning, Chairman Hunter worked to have the bill heard early, and he put tremendous pressure on the prosecutorial community to sit down and have a meaningful discussion and negotiate with the media on the bill. As a result of Chairman Hunter’s tenacity and dedication, those advocating for the bill had four different negotiation sessions with the prosecutors – the final one lasting more than thirteen hours. In the end, everyone agreed upon the language in the bill; prosecutors testified before the House and Senate committees that they no longer had opposition to the bill, and the bill sailed through the House and the Senate with unanimous votes on third reading.

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B. State constitutional provision

There is no express shield law provision in the Texas Constitution. In pre-shield law cases, there was little constitutional protection found in case law; courts simply applied the same law to subpoenas to reporters as they did to any other subpoena.

Nevertheless, pre-shield law, some Texas courts did recognize a privilege. The Fifth Circuit recognized the privilege in Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), modified on reh’g, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981), stating:

We hold that a reporter has a First Amendment privilege which protects the refusal to disclose the identity of confidential informants.

Id. at 725; see also In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983) (holding Miller establishes the rule for the Fifth Circuit). Two Texas courts of appeals also recognized the privilege. See Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App.—San Antonio 1991, orig. proceeding) (recognizing a qualified privilege under the First Amendment and Texas Constitution, art. I, § 8); Channel Two Television Co. v. Dickerson, 725 S.W.2d 470 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding) (same).

Under federal and Texas case authority, a few courts found that the requesting party’s burden was to make a clear and specific showing that (i) the information sought was highly material and relevant to the inquiry at hand; (ii) there was a compelling need for the information; and (iii) the information was not obtainable from other available sources. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980); Dallas Morning News Co. v. Garcia, 822 S.W.2d 675, 680 (Tex. App.—San Antonio 1991, orig. proceeding); Channel Two Television Co. v. Dickerson, 725 S.W.2d 470, 472 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding). This test was recognized and applied by the Houston First District Court of Appeals and the San Antonio Court of Appeals. In the libel context, the Texas Supreme Court has found that Article I, §8 of the Texas Constitution (the Texas counterpart to the First Amendment) does not contain any greater protection than the First Amendment. See Bentley v. Bunton, 94 S.W.3d 561, 578-79, 45 Tex. Sup. Ct. J. 1172 (Tex. 2002).

In the criminal context, the Texas Court of Criminal Appeals, which is the state’s highest criminal court, consistently held that there was no support in the Texas constitution for finding a reporter’s privilege in criminal cases. State ex. Rel. Healey v McMeans, 884 S.W.2d 772, 775 (Tex. Crim. App. 1994) (en banc); see also Ex Parte Groethe, 687 S.W.2d 736, 739-40 (Tex. Crim. App. 1984) (denying a reporter’s privilege where the reporter personally viewed the criminal activity, but implicitly leaving open the possibility of such a privilege in other circumstances). One criminal case that did find for the reporter, although not a reporter’s privilege, is Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App. 1998) (en banc). In that case, the Court of Criminal Appeals ruled that failure to force a reporter to testify at the underlying criminal trial (based on the trial court’s grant of the reporter’s motion to quash based on a First Amendment privilege) did not cause a denial of compulsory process because the defendant failed to show the information would have been material and favorable to the defense.

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C. Federal constitutional provision

To the extent Texas courts have recognized any sort of reporter’s privilege based on federal law, it has been grounded upon the First Amendment to the United States Constitution, and the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972). See, e.g., Holland v. Centennial Homes, Inc., No. 3:92-CV-1533-T, 3:92-CV-1534-T, 1993 U.S. Dist. LEXIS 21624, 22 Med. L. Rptr. 2270 (N.D. Tex. Dec. 21, 1993); but see State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App 1994) (en banc) (“[N]ewsmen have no constitutional privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution.”). The amount of protection afforded has varied depending on whether the subpoena arose in the civil or criminal context and whether the information or source sought was confidential or not. To the extent a balancing test was applied, the test consisted of three prongs – the information sought must be: (1) highly relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources. See Dallas Morning News v. Garcia, 822 S.W.2d 675 (Tex. App.—San Antonio 1991, orig. proceeding); Texas v. Lyon, 19 Med. L. Rptr. 2153 (Tex. Crim. Dist. Ct.—Dallas 1991).

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D. Other sources

The Texas Rules of Evidence, which do not recognize a privilege unless they are based on a constitution, state, or rule of evidence, see Tex. R. Evid. 501, do not recognize a testimonial privilege for reporters. Thus, Texas does not recognize a common law basis for a reporter’s privilege.

Nevertheless, attorneys have been searching for other legal avenues to bolster protection of such materials and, in fact, there is some protection granted to news organizations in the criminal context. Article 18.01(e) of the Texas Code of Criminal Procedure grants special protection to news organizations for evidentiary searches, which has been relied upon as an argument for providing protection from subpoenas, as well. Advocates have argued that a prosecutor or private litigant should not be able to obtain by subpoena material that police are not able to obtain by court order. In State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) (en banc), this question was posed in a concurrence by one Justice, inquiring in regard to Article 18.01(e): “We might ask if you can’t seize it by a court order (search warrant), how can you subpoena it by a clerk order?” Additionally, media attorneys have also argued that unpublished and confidential information should be protected as proprietary information or trade secrets, although no Texas court has ruled directly on that issue.

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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) 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.

Tex. Civ. Prac. & 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 Crim. Proc. arts. 38.11 and 38.111.

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A. Generally

The bill that was originally proposed is a qualified privilege patterned in large part after the United States Department of Justice Guidelines. Proponents believe that the right balance has been struck in Texas’ reporter’s privilege – one in which the goal of increasing the free flow of information and preserving a free and active press has been balanced with protecting the right of the public to effective law enforcement and the fair administration of justice. The purpose of the statute is expressly set forth in the civil statute at Tex. Civ. Prac. & Rem. Code §22.022 and in the criminal statute at Tex. Code Crim. Proc. art. 38.11, §2.

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B. Absolute or qualified privilege

The Texas Free Flow of Information Act (also known as a reporter’s privilege) is a qualified privilege as to civil subpoenas. 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) 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.

Tex. Civ. Prac. & Rem. Code § 22.024.

The criminal section, on the other hand, is separated into three parts with different tests applying to different matters. See Tex. Code. Crim. Proc. art. 38.11. The first part deals with confidential sources, the next with unpublished work product and non-confidential sources, and the third with published information. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3). In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Id. Further, a journalist can be compelled to give up his or her confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4).

With regard to unpublished materials (i.e., work product) and non-confidential sources in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information; and (3) the information sought 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. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).

Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8.

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C. Type of case

1. Civil

The Texas Free Flow of Information Act has separate civil and criminal sections. The civil section, codified at Texas Civil Practices & Remedies Code §§22.021-22.027, 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) 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.

Tex. Civ. Prac. & Rem. Code §22.024.

Additionally, the shield law makes all broadcasts self-authenticating, so a reporter will not have to testify solely for the purpose of authenticating a broadcast tape. See Tex. Civ. Prac. & Rem. Code §22.027, and Tex. Code Crim. Proc. art. 38.111.

 

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2. Criminal

The criminal section of the shield law is separated into three parts with different tests applying to different matters. See Tex. Code Crim. Proc. art. 38.11. The first part deals with confidential sources, the next with unpublished work product and non-confidential sources, and the third with published information. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §4(a)(1)-(3). In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted reasonable efforts to get the information elsewhere. Id. Further, a journalist can be compelled to give up his confidential source without the requirement of a showing of exhaustion of efforts if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4).

With regard to unpublished materials (i.e., work product) and non-confidential sources in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; and (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information or the information sought 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. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).

Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8.

Some unique aspects of the criminal statute include: (1) the elected district attorney (or a suitable substitute under the statute) is required to sign all criminal subpoenas issued to journalists, and (2) the subpoenaing party is required to pay the journalist a reasonable fee for the journalists’ time and costs incurred in responding to the subpoena (the calculation of cost is based on the cost provision in the Texas Public Information Act). See Tex. Code Crim. Proc. art. 38.11, §§5 and 9. Additionally, as with civil subpoenas, with regard to criminal subpoenas, the shield law makes all broadcasts self-authenticating, so a reporter will not have to testify solely for the purpose of authenticating a broadcast tape. Tex. Code Crim. Proc. art. 38.111.

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3. Grand jury

The criminal shield law also addresses grand jury subpoenas for confidential source information under certain circumstances. In particular, if the information or document was disclosed in violation of an oath given to a juror or a witness, a journalist can only be compelled to testify when the person seeking the testimony, production or disclosure makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain the confidential source information from alternate sources. See Tex. Code Crim. Proc. art. 38.11, §4(c). In this situation, the Court has the discretion to order an in camera hearing. Id. Furthermore, a court may not order the production of the confidential source until a ruling has been made on the motion. Id.

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D. Information and/or identity of source

The privilege protects the identity of the source, as well as the information, document, or other item that could identify the source or that was provided by the source. In the civil context, the qualified privilege can be overcome if the subpoenaing party can show by clear and specific evidence the following:

(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.

Tex. Civ. Prac. & Rem. Code §22.024.

In the criminal context, the identity of a confidential source is privileged unless the requesting party has exhausted reasonable efforts to obtain the material from another source and (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3).  A court may also compel the disclosure of the identity of a confidential source if it “is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”  Id. at §4(a)(4).

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E. Confidential and/or nonconfidential information

The civil section of the shield law does not distinguish between confidential and non-confidential information for purposes of privilege. The criminal section of the shield law does make a distinction. When a confidential source is involved in a criminal matter, there is a privilege unless the requesting party has exhausted reasonable efforts to obtain the material from another source and (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3). Further, a journalist can be compelled to give up his confidential source if disclosure is “reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.” Tex. Code Crim. Proc. art. 38.11, §4(a)(4). When non-confidential information or sources are involved, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources;  and (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information or the information sought 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. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).

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F. Published and/or non-published material

The civil section of the shield law does not distinguish between published and unpublished materials. See Tex. Code. Civ. P. §22.023. The criminal section does. See Tex. Code Crim. Proc. art. 38.11, §§5 and 8. With regard to unpublished materials (i.e., work product) in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; and (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information or the information sought 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. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).

Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8. Under common law, in the criminal setting, courts have not been very supportive of a privilege regardless of whether the material has been published or not. See, e.g., Ex Parte Grothe, 687 S.W.2d 736 (Tex. Ct. App. 1984) (finding no privilege to withhold evidence in criminal prosecution); State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) (en banc) (finding no newsman’s privilege for reporters called to testify in criminal proceeding); United States v. Smith, 135 F.3d 963, 970 (5th Cir. 1998) (finding no reporter’s privilege for un-broadcast material sought in criminal proceeding).

Some advocates have argued that unpublished material should be protected as proprietary information or trade secrets, but there have been no opinions directly ruling on that issue.

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G. Reporter's personal observations

An exception to the absolute privilege in the criminal context concerning confidential sources exists when the journalist observes the commission of a felony or a person has admitted the commission of a felony to the journalist. In those circumstances, the journalist may be compelled to testify if the person seeking the testimony makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain the confidential source of the information, document, or item. Tex. Code Crim. Proc. art. 38.11, §4(a)(2).

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H. Media as a party

The Texas shield law does not differentiate between cases where the media is a party and where it is not.

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I. Defamation actions

There have been no reported cases in Texas, to date, interpreting the state shield law in the context of a libel proceeding.

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IV. Who is covered

The Texas shield law defines the terms “journalist,” “news medium,” and “communication service provider.” See Tex. Civ. Prac. & Rem. Code §§22.021(1), (2), and (3) and Tex. Code Crim. Proc. art. 38.11, §§1(1), (2), and (3). The “journalist,” as defined in the statute, cannot be compelled to testify unless the tests set forth in the statute are met. Additionally, a subpoena may not compel a “communications service provider” or “news medium,” as defined by the statute, to disclose information unless the tests set forth in the statute are met. See Tex. Civ. Prac. & Rem. Code §22.023 and Tex. Code Crim. Proc. art. 38.11, §3.  “Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

“Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.  The shield law defines a “journalist” as “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 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.” See Tex. Civ. Prac. & Rem. Code §22.021(2) and Tex. Code Crim. Proc. art. 38.11, §1(2).

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b. Editor

The Texas shield law does not have a specific definition for editor, but editor likely falls within the definition for journalist.

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c. News

“Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.  There is no specific definition of news under the Texas shield law. However, “news medium” is defined under the statute as: “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.” See Tex. Civ. Prac. & Rem. Code §22.021(3) and Tex. Code Crim. Proc. art. 38.11, §1(3).

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d. Photo journalist

There is no specific definition of photojournalist under the Texas shield law, but a photojournalist likely falls into the definition of a journalist.

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e. News organization/medium

“Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.  The shield law defines “News Medium” as “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.” See Tex. Civ. Prac. & Rem. Code §22.021(3) and Tex. Code Crim. Proc. art. 38.11, §1(3).

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2. Others, including non-traditional news gatherers

“Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.  The shield law defines “Communication service provider” as “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 §3, Communications Act of 1934 (47 U.S.C. §153); (b) a provider of information service, as defined by §3, Communications Act of 1934 (47 U.S.C. §153); (c) a provider of interactive computer service, as defined by §230, Communications Act of 1934 (47 U.S.C. §230); and (d) an information content provider, as defined by §230, Communications Act of 1934 (47 U.S.C. §230).” See Tex. Civ. Prac. & Rem. Code §22.021(1) and Tex. Code Crim. Proc. art. 38.11, §1(3).

The statute does not expressly apply to student journalists and would only apply to academic researchers if they fall within the definition of journalist.

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B. Whose privilege is it?

The privilege belongs to a “journalist, a journalist’s employer or a person with an independent contract with a journalist” in the civil and non-confidential criminal context.  See Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11, §5.  The privilege belongs solely to the journalist when applied to a subpoena seeking information regarding a confidential source.  Tex. Code Crim. Proc. art. 38.11, §4.

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V. Procedures for issuing and contesting subpoenas

In Texas, serving a subpoena on a reporter or media organization is no different than serving a subpoena on anyone else. There is no special proceeding or showing that needs to be made before a subpoena is served. However, subpoenas should not be lightly served on the media in light of the strong statutory protections afforded reporters and media organizations in the Texas Free Flow of Information Act.  See generally Tex. Civ. Prac. & Rem. Code §22.021 et seq. and Tex. Code Crim. Proc. arts. 38.11, 38.111.  Private litigants wishing to acquire information about their case should attempt to exhaust all non-media sources before burdening the press with a subpoena. Irrelevant subpoenas will, justifiably, provoke strong responses, costing both parties additional legal expenses and time.

A subpoena is, in essence, a court order commanding the subpoenaed person or entity to appear to testify or to permit inspection of documents or items. The issuance of subpoenas in civil cases is governed by the Texas Rules of Civil Procedure. In criminal cases, the issuance of a subpoena is governed by the Texas Code of Criminal Procedure.

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A. What subpoena server must do

1. Service of subpoena, time

The Texas Rules of Civil Procedure (Rule 176) do not state how much advance notice must be given for issuing a subpoena for a hearing or trial. The subpoenaing party must be diligent in procuring the testimony. Further, both the civil and the criminal reporter’s privilege statutes expressly state that an order to compel privileged information may only be issued after timely notice has been given to the journalist and a hearing has been held. See Tex. Civ. Prac. & Rem. Code §22.025 and Tex. Code Crim. Proc. art. 38.11, §6. Finally, one of the factors the court is required to consider prior to ruling on a motion is whether reasonable and timely notice was given of the demand for information. See Tex. Civ. Prac. & Rem. Code §22.024(3) and Tex. Code Crim. Proc. art. 38.11, §5(b)(2).

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2. Deposit of security

For all subpoenas for a witness’ testimony (whether to media or not), the subpoena must be accompanied by one day’s witness fee as required by law. Tex. R. Civ. P. 176.5. In addition, for criminal subpoenas, the subpoenaing party is required to pay a reasonable fee for the journalists’ time and costs incurred in responding to the subpoena. See Tex. Code Crim. Proc. art. 38.11, §9.

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3. Filing of affidavit

There is no explicit requirement for a subpoenaing party to file an affidavit; however, the burden is on the subpoenaing party to meet the test to overcome the privilege by clear and specific evidence. See Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11 §§4 and 5.

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4. Judicial approval

Subpoenas generally do not have to be approved by a judge or magistrate before a party can serve them and can usually be issued by the clerk of court, a court reporter, or an attorney licensed to practice in the state. But, under the shield law, criminal subpoenas issued to journalists must be signed by the elected district attorney, elected criminal district attorney, or elected county attorney as applicable. Tex. Code Crim. Proc. art. 38.11, §4(d). If the elected district attorney, criminal district attorney, or county attorney has been disqualified, recused, or has resigned, the subpoena must be signed by the person succeeding such person. Id. If the elected representative is not in the jurisdiction, the highest ranking assistant to the elected officer must sign the subpoena. Id. Additionally, where a grand jury wishes to subpoena a witness located outside of the county, it must apply to the district court for a subpoena for that witness. Tex. Code Crim. Proc. art. 20.11.

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5. Service of police or other administrative subpoenas

There are no special rules regarding the use and service of police or other administrative subpoenas; although, search warrants on Texas newsrooms are prohibited under Tex. Code Crim. Proc. art. 18.01(e).

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B. How to Quash

As a preliminary matter, and especially because the Texas shield law is still relatively new, the media party receiving the subpoena should make the subpoenaing party aware of the new Texas shield law and the requirements they must meet in order to obtain the requested information (if at all). This is especially true when the requested information is simply to authenticate a broadcast, which is self-authenticating under the Texas shield law and, therefore, should not be the subject of a subpoena. In addition, if the subpoenaing party does not withdraw the subpoena, the journalist should file a Motion for Protection and to Quash as soon as possible, but in any event, prior to the time provided for compliance with the subpoena.

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1. Contact other party first

The law does not require that the subpoenaing party be contacted prior to moving to quash. However, some courts do require a certificate of conference before considering any motion or setting a hearing. Check the local rules for the court where you are filing. Furthermore, as a practical matter, because many subpoenaing parties may be unaware of the shield law, the journalist or their attorney should contact the subpoenaing party first and provide a copy of the shield law (or relevant portions) and explain why the subpoena is not allowed. In some instances, the subpoenaing party will withdraw the subpoena. If they do not, a journalist will likely have to file a motion to quash.

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2. Filing an objection or a notice of intent

A notice of intent is not required prior to filing a Motion for Protection or to Quash. Once the journalists have served objections on the subpoenaing party or filed a Motion for Protection or to Quash, the journalist does not have to comply with that portion of the subpoena (or the subpoena overall) until or unless ordered to do so by a Court.

Generally, in the case of civil subpoenas, a person must comply with a subpoena unless discharged by the court or by the party summoning the witness. See Tex. R. Civ. Proc. 176.6(a). Therefore, a witness should timely raise objections or seek protection from an oppressive subpoena, if necessary. If the subpoena requires the person to produce documents and items, a subpoenaed person may serve upon the subpoenaing party, at any time before compliance is due, written objections to producing any or all of the designated materials, alleviating the requirement to comply with that portion of the subpoena until ordered to do so by a court. Tex. R. Civ. Proc. 176.6(d). A subpoenaed person who is commanded to appear for a hearing, deposition, or trial may move for protection under Tex. R. Civ. Proc. 192.6 as long as a motion is filed with the court before compliance is due. Tex. R. Civ. Proc. 176.6(e). Furthermore, if the subpoenaed person objects to the time and/or place for a deposition, filing a motion to quash or for protection within three days after receiving the subpoena automatically stays the deposition until the motion can be determined. See Tex. R. Civ. Proc. 199.4.  Great care should be taken to make a timely objection to a request for written discovery as Tex. R. Civ. Proc. 193.2(e) states that the failure to do so results in the waiver of the objection “unless the court excuses the waiver for good cause shown.”

In the case of criminal or a grand jury subpoenas, a subpoenaed person must generally comply on the same terms and grounds as a civil litigant. Thus, the subpoenaed person should timely file a motion to quash.

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3. File a motion to quash

a. Which court?

For civil subpoenas, a Motion for Protection and to Quash should be filed in the court where the action is pending or in any district court in the county where the subpoena was served. Tex. R. Civ. Proc. 176.6(e), 192.6(b). In the context of grand jury of criminal subpoenas, the motion should be filed in the court where the criminal proceeding is taking place.

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b. Motion to compel

If the subpoena otherwise complies with the Texas Rules of Civil Procedure, the journalist should not wait for the subpoenaing party to file a motion to compel but should serve objections or file a Motion for Protection and to Quash prior to the time of compliance.  This is especially true given the potential for waiver of objections due to the failure to respond to a request for written discovery.  Tex. R. Civ. P. 193.2(e)

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c. Timing

Notice and an opportunity to be heard must precede any attempt to compel testimony by the journalist. Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11, §6. For a trial subpoena, the journalist should object or move for a protective order or to quash prior to the time specified for appearing in court. For any other kind of discovery subpoena, the journalists must object or move for protection or to quash prior to the time specified for compliance in the subpoena. The failure to timely object to a request for written discovery may result in the waiver of the objection absent a showing of good cause pursuant to Tex. R. Civ. P. 193.2(e).

Furthermore, if this is an issue the journalist or news organization is willing to appeal, keep in mind that if the motion is denied, you will need time to respond or file a mandamus or appeal. Finally, if it is the time or place for a deposition that the journalist objects to, one must file a motion for protection or to quash within three days of receiving the subpoena to automatically stay the deposition until the motion can be determined. See Tex. R. Civ. Proc. 199.4.

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d. Language

The motion to quash should recite the statutory privilege and the purpose of the law. See Tex. Civ. Prac. & Rem. Code §§22.021-22.025 and Tex. Code Crim. Proc. art. 38.11. It should also make it clear that the subpoenaing party has the burden and the burden is a heightened standard of clear and specific evidence. See Tex. Civ. Prac. & Rem. Code §22.024; Tex. Code Crim. Proc. art. 38.11, §§4 and 5; see also Texas R. Civ. Proc. 176.6. When filing a Motion to Quash, it is helpful to cite to the language in the privilege which presumes the privilege applies when asserted “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.” See Tex. Civ. Prac. & Rem. Code §22.023 and Tex. Code Crim. Proc. art. 38.11, §3.

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e. Additional material

As a practical matter, the journalists should attach to the Motion to Quash an affidavit supporting the motion to ensure that the Court knows that the reporter falls within the definition of journalist contained in the shield law.

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4. In camera review

The shield law does not require in camera review. Nevertheless, one may be conducted in the context of a grand jury subpoena where a subpoena seeks confidential source information. Tex. Code Crim. Proc. art. 38.11, §4(c). If the information or document was disclosed in violation of an oath given to a juror or a witness in a grand jury proceeding, a court has the discretion to conduct an in camera hearing. Id. In such an instance, a journalist can 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 the confidential source information from alternate sources. Id. The court may not order the production of the confidential source until a ruling has been made on the motion. Id.

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a. Necessity

The law does not direct that an in camera review of materials or interview with the reporter be conducted prior to ruling on a motion to quash.

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This issue is not specifically addressed in the statute. As a practical matter, a stay should be requested.

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c. Consequences of refusing

If the court orders an in camera review and the journalist does not comply, there is a possibility that the motion will be denied and the journalists will be held in contempt.

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5. Briefing schedule

There is not a set briefing schedule for motions to quash.  Local rules should be consulted to ensure compliance with any briefing and filing schedules set forth therein.

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6. Amicus briefs

Texas courts will accept amicus briefs from interested media organizations. One can anticipate the Texas District and County Attorneys Association would oppose a broad interpretation of the statute.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The standard of proof under the civil and criminal provisions of the Texas Free Flow of Information Act for a subpoenaing party is a “clear and specific showing.” This standard is more than a preponderance of the evidence but likely less than clear and convincing evidence. The standard was taken from language in the case of Channel Two Television Co. v. Dickerson, 725 S.W.2d 470, 472 (Tex. App.—Houston [1st Dist.] 1987, no writ).

In the civil context, the subpoenaing party must make 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.

Tex. Civ. Prac. & Rem. Code §22.024.

In the criminal context, the burden is also on the subpoenaing party; however, the test that must be met varies based upon whether one is seeking confidential or non-confidential source information or published or unpublished documents. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3). In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Id. Further, a journalist can be compelled to give up his confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4).

With regard to unpublished materials (i.e., work product) and non-confidential sources in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information; or (3) the information sought 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. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).

Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8.

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B. Elements

1. Relevance of material to case at bar

In the civil context, the subpoenaing party must make a clear and specific showing that 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. Tex. Civ. Prac. & Rem. Code §22.024(6).

In the criminal context, the subpoenaing party must make a clear and specific showing that 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, or is central to the investigation or prosecution of a criminal case and based on something other than the testimony of the requestor, reasonable grounds exist to believe a crime has occurred.” Tex. Code Crim. Proc. art. 38.11, §5(a) (internal parentheses omitted).

Pre-statute case law addressing the relevance factor in applying the reporter's privilege, looked at the relationship between what the materials or information sought was likely to contain and what the material issues in the case were for the party that was seeking the information through subpoena. If the material or information sought by subpoena were not likely to pertain to the issues of the subpoenaing party, then the material or information were generally found to be not highly material and relevant.

Additionally, Texas rules of both civil and criminal procedure also contain requirements of relevancy. Under the Texas Rules of Civil Procedure, a party is entitled to conduct discovery only to the extent “reasonably calculated to lead to the discovery of admissible evidence.” Tex. R. Civ. Proc. 192.3. This rule also applies to criminal proceedings pursuant to Texas Code of Criminal Procedure, article 39.04. See also Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App. 1998). Furthermore, the Texas Code of Criminal Procedure requires that any subpoena issued in a criminal case must constitute or contain evidence material to any matter involved in the action and that, when applying for a subpoena, the applicant must state that the information sought is material to the case. Tex. Code Crim. Proc. art. 39.14 and 24.03.

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2. Material unavailable from other sources

Under the civil statute and the criminal statute regarding unpublished information and nonconfidential sources, the subpoenaing party must make a clear and specific showing that “all reasonable efforts have been exhausted to obtain the information from alternative sources.”  Under the criminal statute concerning confidential sources, the subpoenaing party generally must only show that “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.”  Tex. Code Crim. Proc. art. 38.11§4(a)(1)(2)(3).  This requirement does not apply to criminal subpoenas for confidential source information when disclosure of the confidential source is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4). But, due to the fact that the statute was only recently adopted, there are no reported decisions yet on what constitutes “unavailable” under the statute. Pre-statute, courts looked to whether the information or material was unavailable from other sources (the second prong of the test outlined by Justice Powell in Branzburg), without providing much guidance as to how that factor should be determined.

In one case that provides some guidance, Campbell v. Klevenhagen, 760 F. Supp. 1206 (S.D. Tex. 1991), the court found that a state court's order compelling four reporters to appear at a criminal trial and remain on call throughout the trial in order to identify possible witnesses to a crime violated the First Amendment press freedoms more than it enforced the criminal defendant’s Sixth Amendment right to compel witness testimony. Id. at 1211-14.

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a. How exhaustive must search be?

Under the civil and criminal statute, the subpoenaing party must generally make a clear and specific showing that all reasonable efforts have been exhausted to obtain the information from alternative sources.  Tex. Civ. Prac. & Rem. Code 22.024; Tex. Code Crim. Prac. art. 38.11 §5.  In subpoenas seeking information concerning confidential sources, only a clear and specific showing that reasonable efforts have been exhausted is required.  Tex. Code Crim. Prac. art. 38.11 §4.  But, due to the recent adoption of the statute, there are no reported decisions yet on what constitutes “exhaustion” for purposes of the statute. Pre-statute, there was not much law detailing the level of exhaustion required.

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b. What proof of search does a subpoenaing party need to make?

Under the civil and criminal statute, the subpoenaing party must generally make a clear and specific showing that all reasonable efforts have been exhausted to obtain the information from alternative sources.  Tex. Civ. Prac. & Rem. Code 22.024; Tex. Code Crim. Prac. art. 38.11 §5.  In subpoenas seeking information concerning confidential sources, only a clear and specific showing that reasonable efforts have been exhausted is required.  Tex. Code Crim. Prac. art. 38.11 §4.  This standard is greater than a preponderance of evidence but likely lower than clear and convincing evidence.

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c. Source is an eyewitness to a crime

An exception to the absolute privilege in the criminal context concerning confidential sources exists when the journalist observes the commission of a felony or a person has admitted the commission of a felony to the journalist. See Tex. Code Crim. Proc. art. 38.11, §4(a).

In those circumstances, the journalist may be compelled to testify if the person seeking the testimony makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain from alternative sources the confidential source of the information, document, or item. Id.

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3. Balancing of interests

The subpoenaing party must demonstrate, by a clear and specific showing, that “the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist.” See Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11, §§4 and 5.  Both the civil and criminal shield statutes state the purpose “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.” Tex. Civ. Prac. & Rem. Code §22.022 and Tex. Code Crim. Proc. art. 38.11, §2.

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4. Subpoena not overbroad or unduly burdensome

The subpoenaing party must make a clear and specific showing that 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. See Tex. Civ. Prac. & Rem. Code §22.024(2). See also Tex. Code Crim. Proc. art. 38.11, §5(b)(1). There is no similar provision in the section governing the privilege concerning criminal subpoenas seeking information concerning confidential sources.

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5. Threat to human life

In the criminal context, a journalist can be compelled to give up a confidential source upon a clear and specific showing that disclosure is “reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”  See Tex. Code Crim. Proc. art. 38.11, §4(a)(4). No further showing is required to enforce this exception to the privilege.

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6. Material is not cumulative

Generally, under both the civil and criminal statute, the party who issued the subpoena must demonstrate they have exhausted all reasonable efforts to get the information elsewhere. Therefore, if the expected testimony or material would be cumulative, it may not be obtained.  This does not apply in the case of a criminal subpoena when the “disclosure of the confidential source is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”  Tex. Code Crim. Proc. art. 38.11 §4(a)(4).

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7. Civil/criminal rules of procedure

Subpoenas can be contested as unduly burdensome (regardless of whether issued to a journalist or not). Tex. R. Civ. P. 176.7. The shield law also requires that the subpoena not be unduly burdensome in most cases. The reporter’s privilege expressly provides for a court to consider whether the subpoena at issue is overbroad, unreasonable or oppressive, or being used to obtain peripheral, non-essential or speculative information. Tex. Civ. Prac. & Rem. Code §§22.024(2) and (5) and Tex. Code. Crim. Proc. art. 38.11, §§5(b)(1) and 5(b)(4).  This is not required to overcome the reporter’s privilege concerning criminal subpoenas seeking information concerning confidential sources.  In a civil case, the subject of the subpoena should file a Motion for Protection or a Motion to Quash. Tex. R. Civ. P. 192. In a criminal case or a response to a grand jury subpoena, a Motion to Quash is the appropriate pleading to file. One basis for objecting to pre-trial subpoenas in a criminal case is that the Texas Code of Criminal Procedure does not provide pre-trial discovery. See Order Quashing Subpoena in State of Texas v. Coe, Cause No. 1227878 (Harris Cnty. Dist. Ct. June 15, 2010) (quashing subpoena issued by Coe on Non-Party Houston Community Newspapers).

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8. Other elements

There are no other elements that must be met.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

In the civil context, publication of information, documents, or items privileged under the shield law is not a waiver of the privilege. See Tex. Civ. Prac. & Rem. Code §22.026. In the criminal context, publication of information, documents, or items privileged under the shield law is not a waiver of the privilege regarding sources and unpublished information, documents, or items. See Tex. Code Crim. Proc. art. 38.11, §7. But, the criminal statute does not apply to any information, document, or item that has been published; instead, the common law, as adopted pre-statute, continues to govern published information sought through criminal subpoenas. Tex. Code Crim. Proc. art. 38.11, §8. To date, there is no case law determining under what conditions the statutory privilege can be waived.

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2. Elements of waiver

a. Disclosure of confidential source's name

To date, there is no case law determining under what conditions the statutory privilege can be waived.

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b. Disclosure of non-confidential source's name

To date, there is no case law determining under what conditions the statutory privilege can be waived.

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c. Partial disclosure of information

Partial disclosure does not waive disclosure of unpublished or un-broadcast information.

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d. Other elements

None.

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3. Agreement to partially testify act as waiver?

To date, there is no case law determining under what conditions the statutory privilege can be waived.

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VII. What constitutes compliance?

A. Newspaper articles

Pursuant to Texas Rule of Evidence 902(6), newspapers are self-authenticating.

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B. Broadcast materials

Under the shield law, recordings of broadcasts by television and radio stations are self-authenticating. See Tex. Civ. Prac. & Rem. Code §22.027, and Tex. Code Crim. Proc. art. 38.111. As a practical matter if a journalist receives a civil subpoena and if the broadcast is on the media entity’s website, the journalist should tell the subpoenaing party to download it from the website, and it is self-authenticating. If the journalist receives a criminal subpoena, the journalists should make a copy and charge the subpoenaing party for the cost of production. In either instance, the journalist does not need to provide a business records affidavit with the video nor should they have to testify to authenticate the materials because the video is self-authenticating.

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C. Testimony vs. affidavits

No testimony – either by affidavit or live testimony – is required to authenticate a newspaper article or broadcast. If, despite the statute and rules of evidence, a party insists on an affidavit and the media entity wants to avoid a costly dispute, a business records affidavit (or a deposition on written questions) from the organization’s custodian of records will suffice to authenticate the records. Texas Rule of Evidence 902(10) provides the form business records affidavit under Texas law. A deposition on written questions should not be addressed directly to the journalist. Note that business records affidavits must be filed with the court at least 14 days prior to trial, so such measures should be taken in a timely manner to avoid having to file a last-minute motion to quash or having the reporter testify. Id.

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D. Non-compliance remedies

“Broadly defined, contempt of court is disobedience of a court by an action in opposition to its authority.” Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995). Contempt of court may be civil or criminal. The purpose of civil contempt is to persuade or coerce the contemnor to obey an order of the court, while criminal contempt has the purpose of punishing the contemnor for some past conduct or disobedience to a court order that constitutes an affront to the dignity and authority of the court. Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.—El Paso 1994, orig. proceeding).

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1. Civil contempt

Generally, the media would be subject to the same punishment for refusing to comply with a subpoena as non-media would be, keeping in mind the protections offered by the shield law. Failure to comply with a subpoena can result in a finding of civil contempt of court and may be punishable by a fine, confinement, or both. Tex. R. Civ. P. 176.8. Under Texas Rule of Civil Procedure 176.8, refusal to comply with a subpoena can be deemed contempt of court of either the court issuing the subpoena or by the court in the county in which the subpoena was served.

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a. Fines

Failure to comply with a subpoena may be punishable by a fine, confinement, or both. Tex. R. Civ. P. 176.8. There is no limit in the Texas Rules of Civil Procedure to the amount of a fine that may be imposed for civil contempt.

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b. Jail

As stated above, failure to comply with a subpoena may also be punishable by confinement. Tex. R. Civ. P. 176.8. There is no limit in the Texas Rules of Civil Procedure to the maximum confinement time a court may order for civil contempt, although, as a general rule, a court will order confinement until compliance or until the reason for confinement is moot.

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2. Criminal contempt

The Texas Code of Criminal Procedure authorizes a discretionary punishment for refusal to obey a subpoena of up to $500 for a felony case and up to $100 for a misdemeanor case. Tex. Code Crim. Proc. art. 24.05. Furthermore, if a subpoenaed witness does not appear, the state or the defendant may issue an attachment for that witness to appear, which will command a peace officer to take bring the witness before such court, magistrate or grand jury on a day named. Tex. Code Crim. Proc. art. 24.11. A grand jury foreman may also issue a writ of attachment pursuant to Article 24.11 to force the appearance of a witness. A refusal to comply with a grand jury subpoena is punishable by a maximum fine of $500 and confinement until compliance. Tex. Code Crim. Proc. art. 20.15. Pre-statute, the book author Vanessa Leggett refused to testify before a grand jury and was cited for contempt. She argued that she had a First Amendment privilege under Branzburg that protected her against the grand jury subpoena she had been served with. The Fifth Circuit turned down her appeal, relying on its prior holding in United States v. Smith, 135 F.3d 963 (5th Cir. 1998); see In Re Grand Jury Subpoenas, 29 Media L. Rep. 2301 (5th Cir. 2002) (unpublished). As a result, Leggett spent 168 days in jail, and was only released when the grand jury term expired.

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3. Other remedies

There is no rule in Texas that, where a party refuses to testify about certain facts, the trier of fact may infer a presumption of actual malice against that party. But, Texas does have a spoliation rule applicable to parties (not just media) that allows a presumption to attach where evidence is intentionally destroyed to avoid disclosure. Such presumption can be defended against if the party can demonstrate that the evidence was destroyed in the regular course of business, rather than intentionally or negligently. See e.g., Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40 (Tex. App.—Corpus Christi 2001) (holding that spoliation of videotapes of entire television broadcasts did not render remaining portions inadmissible in action for invasion of privacy and defamation, or entitle plaintiffs to presumption that missing portions of broadcasts were unfavorable to television station, where spoliation occurred in regular course of station's business and, thus, did not amount to negligent or intentional destruction).

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Interlocutory appeals are not available from an order denying a motion to quash or an order of contempt. However, a person may seek appellate review of the denial of a motion to quash by way of an original proceeding for mandamus or habeas corpus relief – initiated in the appropriate court of appeals. A petition for writ of mandamus is the appropriate procedure where the trial court's order did not involve confinement as a remedy for noncompliance. Where the order involves confinement, the appropriate procedure is a writ of habeas corpus.  See In re Rivas-Luna, 528 S.W.3d 167, 169 (Tex. App.—El Paso 2017, orig. proceeding); Ex parte Hughey, 932 S.W.2d 308, 310-11 (Tex. App.—Tyler 1996, orig. proceeding).  The losing party will bear the burden of showing that the contempt order is void.  In re Lowry, 511 S.W.3d 256, 256 (Tex. App.—Dallas 2015, orig. proceeding).  Both mandamus and habeas corpus are extraordinary writs that should be issued only when the trial court has clearly abused its discretion and there is no adequate remedy by normal appeal.

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2. Expedited appeals

circumstances

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B. Procedure

1. To whom is the appeal made?

A petition for extraordinary relief, such as a writ of mandamus or habeas corpus, is governed by Texas Rule of Civil Procedure 52 and is commenced by filing a petition with the clerk in the appropriate appellate court. Tex. R. App. P. 52. The appropriate appellate court will be the one with jurisdiction over the underlying trial court that issued the order of contempt or denying the motion to quash.

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2. Stays pending appeal

There is no automatic stay pending the outcome of the petition for mandamus or habeas corpus. A stay may be sought in either the trial court of the appellate court and is entirely up to the discretion of the court. The fact that constitutional implications may be involved in the “appeal” does not necessarily mean that a requested stay is any more likely to be granted. In fact, one court found that a petition involving constitutional issues must include “substantive analysis of the facts and authorities relied upon” or it may be considered inadequate. In re Kuhler, 60 S.W.3d 381, 384 (Tex. App.—Amarillo 2001, orig. proceeding).

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3. Nature of appeal

Rule 52 of the Texas Rules of Appellate Procedure authorizes both a writ of mandamus and habeas corpus, and the contents of a petition for writ of mandamus and habeas corpus are the same. All statements in the petition must be verified by affidavit and the petition must follow the instructions of Rule 52 carefully. Tex. R. App. P. 52. The petition must include the following: identification of the parties; a table of contents; an index of authorities; a statement of the case; a statement of jurisdiction; a list of the issues presented; a statement of the facts; the argument for relief; a prayer; and, an appendix containing the order of the trial court denying the motion to quash. Id. If the relief being requested is from confinement, the petition for habeas corpus should also include proof that the person seeking relief is actually being confined or restrained. Additionally, the person filing the petition must file and certify by affidavit every document that is related to the claim for relief that was previously filed in the trial court. Id.

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4. Standard of review

A party seeking mandamus relief must show that the trial court either failed to perform a clear legal duty or committed a clear abuse of discretion, that the person has no adequate legal remedies, and that the petition raises important issues for the state's jurisprudence. Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); see also In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008). The standard of review is “clear abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because this is a high standard, the appellate court must give the trial court’s determination of factual issues wide latitude, but it is not required to be so deferential to legal determinations made by the trial court. Thus, the subpoenaed party should argue that the trial court's denial of the motion to quash was a “clear abuse of discretion.”

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5. Addressing mootness questions

Courts have not addressed this issue.

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6. Relief

The appellate court reviewing the petition for mandamus (or habeas corpus) may either grant or deny the request for relief. If the court grants the petition, the appellate court must issue an opinion. See Tex. R. App. P. 52.8. But, if the court denies the relief, the appellate court does not have to issue an opinion explaining why it is denying such relief. Id.

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IX. Other issues

A. Newsroom searches

Article 18 of the Texas Code of Criminal Procedure Texas provides statutory protection for newsrooms from search warrants. In particular, Article 18 provides:

A search warrant may not be issued … [for items] in an office of a newspaper, news magazine, television station, or radio station, and in no event may property or items … be legally seized in any search pursuant to a search warrant of an office of a newspaper, news magazine, television station, or radio station.

Tex. Code Crim. Proc. art. 18.01(e). Pre-shield law, this provision was cited to as support for a reporter’s privilege.

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B. Separation orders

There are no reported cases on this issue, although the concern over subpoenaing reporters to testify at a trial when they are actively reporting on the trial or hearing is an issue of concern for reporters and has been cited by lawyers as an additional reason to quash a subpoena in this circumstance.

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C. Third-party subpoenas

Anyone affected by a subpoena may file a motion to quash or for a protective order seeking to have the subpoena quashed in whole or in part. Tex. R. Civ. Proc. 192.6(a). Therefore, not only the party to whom the subpoena is directed, but also any party affected by the subpoena, may attempt to get the subpoena quashed. Thus, if a reporter discovers that a civil litigant has subpoenaed telephone records in an effort to discover the reporter's confidential source, the reporter may file a motion to quash the subpoena based on an assertion of the reporter's privilege, even if the subpoena is not directed at the reporter him or herself.

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D. The source's rights and interests

Anyone affected by a subpoena may file a motion to quash or for a protective order seeking to have the subpoena quashed in whole or in part. Tex. R. Civ. Proc. 192.6(a). Thus, while there has not yet been any reported case in Texas where one has tried to subpoena a confidential source since the shield law was passed, the source could file a motion to prevent disclosure.  Notably, however, the protection of the criminal shield law related to confidential sources only applies to the journalist.  See Tex. Code Crim. Proc. art. 38.11 §4.  In Cohen v. Cowles Media, 501 U.S. 663 (1991), the United States Supreme Court protected the confidential source relationship by holding that, under a theory of promissory estoppel, a reporter could be held liable for monetary damages for breaking a promise of confidentiality to a source.

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