Several speech, access bills passed by Texas Legislature

The Texas Legislature passed several measures this week designed to improve open government and protect First Amendment interests for journalists and other members of the public.

Among the pieces of legislation heading to Gov. Rick Perry for final approval is an update to the Texas Public Information Act, an important amendment to the state’s two-year-old anti-SLAPP statute, and a bill that allows for lesser damages in libel lawsuits if a party affected by a mistake doesn’t ask for a correction or retraction before filing a lawsuit. Perry is expected to approve the measures.

“This is a tremendous step forward,” said Laura Prather, a First Amendment attorney and board member of the Freedom of Information Foundation of Texas, a non-profit organization that promotes open government and First Amendment interests. “The people of Texas are the winners because more light will shine on the workings of our government.”

Lawmakers updated the Texas Public Information Act to make it clear that public officials cannot avoid disclosing email messages and other electronic communications concerning official business by using private email services. Senate Bill 1368 states that communications by public officials that relate to public business must be disclosed under the act, regardless of whether they are written on a public or private email system.

The issue of whether private email is subject to the Public Information Act is currently being litigated by a Texas public official. Tommy Adkisson, a county commissioner in Bexar County, is fighting efforts by the San Antonio Express-News to obtain email messages he sent to two constituents regarding official business.

A trial court ruled last fall that Adkisson must disclose the requested email messages, but Adkisson appealed to a state appellate court. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in the case, arguing that the emails should be disclosed.

Another bill passed by lawmakers will allow the public to view communications made outside of public meetings among members of a governmental body. Senate Bill 1297 will allow lawmakers to communicate in writing through a publicly accessible online message board about government business without violating the Texas Open Meetings Act.

In House Bill 1759, the Legislature voted to limit the damages that can be collected from a publisher that makes errors if they run a correction or clarification. Under the legislation, a person who feels they were defamed has 90 days from learning of the statement to request a correction, clarification or retraction. The bill also requires corrections to be published in a manner similarly prominent to how the original information was presented in order to reach the same audience who viewed the original erroneous statement.

Lastly, House Bill 2935 clarifies that parties relying on the Texas Citizens Participation Act, the state’s anti-SLAPP statute, can immediately appeal adverse trial court rulings. Texas courts have been inconsistent in applying the statute's appeal provision since the statute was enacted two years ago.

The acronym "SLAPP" is short for "strategic lawsuits against public participation," and the law is intended to quickly dispose of frivolous cases filed to silence critics exercising their speech rights.

The bill also amends the Texas Citizens Participation Act to allow up to 90 days for a hearing to be set to consider a motion to dismiss the suit. A court may extend the time for a hearing date by an additional 30 days if it allows limited discovery under the statute.