Texas law does not create a privilege for reporting arrests. Some states have blotter laws, others make the arrest a judicial procedure. But in Texas the first privileged proceeding upon arrest is the filling of the complaint or affidavit alleging that an offense has been committed.

The news media may use the name and the allegation at the time the complaint is filed, whether before or after arrest, and be protected by privilege. Using names of suspects before this point is uncharted legal and ethical territory in Texas.

Some people argue that the arrest may be reported. Others contend that the report in the absence of privilege could be grounds for a libel action if a complaint is not filed backing up arrest allegations.

In an account of the arrest of a suspect, reporters should avoid saying that police said they plan to file a complaint. Police can change their minds or new evidence can be covered. Even reporting the facts of the offense and referring only to a "suspect" could be dangerous because of the possibility of identification.

Reporting previous records can be troublesome. The reporting of a previous arrest not supported by the filing of a compliant is a questionable practice. And the reporting of a previous filing of a complaint not followed by conviction could be defamatory if the disposition of the case is not included.

The best rule of thumb is that reporting previous records must be justified. Public interest or concern is the best justification. Privilege may be lost in the absence of justification. The statute provides that privilege "shall extend to any first publication of such privileged matter . . . and to any subsequent publications thereof . . . when published as a matter of public concern for general information" (Article 5432, Texas Civil Statutes).

Previous records may be pertinent to a current story. The filling of complaints when enhancement or habitual criminal statutes apply is one example. Another example would be a report about a person who was charged with an offense shortly after having been released from prison. This kind of information is obviously pertinent to the story and should not be avoided.

The House of Delegates of the American Bar Association adopted on February 19, 1968, the recommendations of its Committee on Fair Trial and Free Press. The committee was headed by Justice Paul C. Reardon of the Supreme Court of Massachusetts.

The standards were aimed at prosecutors, lawyers, judges and law enforcement officials. Their suggestions would permit use of the name, age and family status of the accused, the charge against him or her and a description of the arrest.

But the standards would bar disclosure of potentially prejudicial information such as the suspect’s record, contents of a confession or admission, lie detector results or refusal to take a test and the identity, testimony or credibility of any witnesses.

Six weeks later the ABA said it would encourage the development of voluntary codes that meet the Reardon standards. And about the same time Justice Reardon said, by way of clarification, that the standards do not prohibit public statements by police and prosecutors on the full facts of an arrest or crime.

In September 1968 the Reardon report was adopted as federal standard by the U.S. Judicial Conference.

As is true in other actions by the ABA, putting the suggestions into effect required action by bar associations on state and local levels. In Texas the implementation came primarily as a result of a joint committee representing the news media and the State Bar of Texas.

The result was the establishment of guidelines that were approved by the three major news associations in the state, the Texas Association of Broadcasters, the Texas Press Association and the Texas Daily Newspaper Association, and by the State Bar of Texas.

The guidelines were worked out by the eight-member committee and announced on October 3, 1969, after nine months of consideration.

In its report the committee said an attorney should be prohibited from using the press "to express his opinions concerning the conduct or rulings of the judge, the findings of the jury or the conduct of opposing counsel." The committee also recommended that attorneys be prohibited from abuse or exploitation of the media to "enhance or prejudice a pending case" and from use of the media for "personal aggrandizement or self laudation."

This was keeping with the kind of attitude expressed in the original report submitted by The Reardon Committee to the American Bar Association.

Overall, the standards have been controversial and newspersons have tended to disagree with them in several areas. For example, they suggest that lawyers not make available before trial previous criminal records, the existence or contents of confessions of admissions and the identity or testimony of prospective witnesses.

The application to lawyers in Texas was made with the disciplinary rules in the Code of Professional Responsibility, established in 1971. The rules, listed in Volume 1A of Vernon’s Civil Statutes, enumerate in detail the limits a lawyer must place on his or her discussion of civil and criminal cases in which they are counsel.

In Nebraska Press Association v. Stuart the U.S. Supreme Court on June 30, 1976, struck down a gag order and limited the use of gag orders. The orders had become a popular vehicle for judges to impose restrictions upon the press coverage of trials.

The court did not rule out the use of restrictive orders in all cases, but Chief Justice Warren E. Burger declared that "the barriers to prior restraint remain high."

By a unanimous vote, the court struck down a gag order issued by a Nebraska judge the previous October that prohibited pretrial reporting of facts about a mass murder case.

"To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated settled principles," the Chief Justice wrote. He said that "once a public hearing had been held, what transpired there couldn’t be subject to prior restraint."

The court said a judge must provide strong justification for any order that restrains the press in advance.

96 S. Ct. 2791 (1976).

On July 2, 1979, the U.S. Supreme Court decided 5 to 4 that judges have broad discretion to close pretrial hearings. The case was Gannett Co. v. DePasquale, 99 S. Ct. 2898 (1979), and the result was to throw courts and the news media into confusion.

Did this mean that all trials could be closed? Newspapers were up in arms. Within the year, 260 instances of attempts by judges to close criminal proceedings were recorded by the Reporters Committee for Freedom of the Press.

A year to the day later, on July 2, 1980, the U.S. Supreme Court ruled 7 to 1 that the public has a constitutional right to attend criminal trials even when defendants want to exclude them. This was Richmond Newspapers, Inc. v. Commonwealth of Virginia, 100 S. Ct. 2814 (1980).

Seven opinions were written. Three justices joined in one, written by Chief Justice Warren E. Burger, that said, "Absent any overriding interest . . . the trial of a criminal case must be open to the public."

But Burger also said that the constitutional right to attend criminal trials is not absolute and that the trial judge may "impose reasonable limitations on access to a trial."

The revision of the Code of Criminal Procedure in 1965 made possible the "separation" of trial juries, meaning they could go home for the night while the trial is in progress.

The code provides for separation in felony cases at the discretion of the judge until the court gives its charge to the jury. The jury may even be allowed to disperse during deliberation if the court gives its permission and if each party consents.

However, in instances where separation is not allowed, the code stipulates that any person who makes known to the jury which party did not consent to separation "shall be punished for contempt of court."

In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict.

But in any case in which the jury is permitted to separate, the judge must give the jurors "proper instructions with regard to their conduct as jurors when so separated."

This presents an additional responsibility for reporters covering such trials. Even though the judge may instruct the jurors not to read the newspapers, listen to the radio or watch television, the news media must be alert to the possibility of using prejudicial information.

Federal Bureau of Prisons policy that limits interviews between reporters and federal inmates was upheld by the Supreme Court in 1974 (Saxbe v. Washington Post Co., 94 S. Ct. 2811).

The rule permits press interviews at federal minimum-security prisons, but interviews are prohibited in medium- and maximum-security institutions.

In 1978 the U.S. Supreme Court ruled that the First Amendment does not give the public or press any right of access to prisons.

The opinion also said that if the print media is given access to a prison, then the electronic media have a right to use cameras and microphones unless officials can come up with a sufficient justification to prohibit coverage by the electronic media.

The case arose when KQED-TV in San Francisco sought to investigate allegations of mistreatment at the Alameda County Jail at Santa Rita.

Houchins v. KQED, 98 S. Ct. 2588 (1978).

Few areas of the law have seen as many twists and turns as the question of whether courts should allow photography and/or television cameras in the courtroom.

The issue has a long history. The American Bar Association first addressed it in 1937. In the aftermath of the trial of Bruno Hauptmann for the kidnap-murder of the Charles A. Lindbergh baby, the bar association adopted Canon 35.

Canon 35 said:

In 1952 Canon 35 was amended to include television in the prohibition. In 1963, the House of Delegates of the American Bar Association voted overwhelmingly to reaffirm Canon 35.

In 1962 the Judicial Conference of the United States adopted a resolution condemning broadcasting of judicial proceedings and the taking of photographs in the federal courtrooms "or its environs." The Judicial Conference is the policy-making body of the federal court system. The chief justice of the United States presides over the conference, which consists of the chief judges of the federal court districts.

In 1996 the Judicial Conference reversed its long-standing opposition to photography and voted to allow each of the nation’s 13 judicial circuits to decide whether to permit photography in those districts.

Texas had permitted photography and radio and television broadcasting in its courtrooms before the State Bar of Texas decided in 1963 to replace Canon 35 with a state Canon 28.

The replacement canon went into effect in 1964 and stated that the individual judge could determine what coverage would be allowed, with exceptions. This was nothing new in Texas. Photography within the courtroom including television and including sound on film had been common in the state.

When Billie Sol Estes faced state indictment for theft, swindling and embezzlement in 1962, the preliminary hearing and trial were televised in Tyler. After the conviction, the Estes case was appealed, ultimately to the U.S. Supreme Court, over the issue of whether he had gotten a fair trial because of the presence of the TV cameras.

The Supreme Court ruled in 1965 that Estes’ rights had been violated. The various opinions were interesting and the final vote was 5-4, but the decision was that television did not belong in the courtroom. The decision dealt a severe blow to the prospects of courtroom photography in general and television in particular. (Estes v. Texas, 86 S. Ct. 18, 1965)

However, in 1990 the Supreme Court of Texas established a new rule of judicial conduct regarding photography in civil trials. The rule now says that judges have the discretion to allow photography upon consultation with lawyers.

The rule did not deal with criminal trials, however, and since then the question of whether or not to allow photography has been decided by individual judges.

An interesting area more ethical than legal has to do with photographing defendants in custody.

In 1968 American Bar Association standards recommend that police establish regulations prohibiting "the deliberate posing of a person in custody for photographing or television by representatives of the news media."

The Texas bar-press guidelines, announced in 1969 and approved in 1970, including this section on photography:

Statutes identify the conditions under which courts may deal with juveniles as delinquents. Most of the effective legislation can be found in Title 3 of the Texas Family Code, which became effective in 1973.

The juvenile court has original exclusive jurisdiction over the persons who may be designated as delinquents. But the law provides for a procedure by which a person who is at least 15 years of age at the time of the commission of a felony may be transferred to a district court for trial as an adult.

The proceedings in a juvenile court are civil, rather than criminal. Actions begin with petitions rather than with arrests and complaints. Therefore, while a delinquent child may be in custody, he or she is never technically under arrest–except in the transfer to a district court, when custody is considered an arrest and the criminal process takes over.

The finding in the juvenile hearing is not whether the person is guilty or innocent, but whether or not he or she is a delinquent child. A child is not considered a criminal because he or she is judged to be a delinquent. News media should keep this in mind in handling stories involving juveniles.

In May 1967, the U.S. Supreme court handed down a decision on appeal from Arizona that extended constitutional protection to youthful offenders.

The court reversed and remanded a case in which Gerald Gault (87 S. Ct. 1428) was adjudged a delinquent and committed to a state school. He was accused of making lewd telephone calls.

The decision in the case declared that a juvenile and his parents must be notified of the accusations against the juvenile and that a juvenile has the right to have an attorney provided for him or her. The court extended other constitutional safeguards to youngsters about the right of cross-examination, confrontation with his accusers and his protection against self-incrimination.

The Family Code provisions reflect most of the requirements enunciated by the Supreme Court in the Gault case.

Records and files are strictly limited and are kept separate from files and records of adults. They are not sent to central state or federal depositories. Fingerprinting and photographing are controlled by the code.

That a juvenile has been handled by a juvenile court cannot be revealed to prospective employers. An individual is under no obligation to reveal that he or she had a record as a juvenile.

The news media should not unduly subject a juvenile to publicity that may be harmful. The juvenile process is designed, ostensibly, to help the child in trouble. Of course, situations arise that are so out of the ordinary that they merit news coverage. And in rare instances the fact that an adult had a juvenile record may be worthy of inclusion in a news story, even though under ordinary circumstances this would be frowned upon.