Defense saves notices, derails libel measure while transparency reform fails in tough session

AUSTIN — Newspaper public notice survived serious attacks in the 85th Texas Legislature, and press interests fended off dangerous bills that would have made newsrooms more susceptible to libel suits.
Transparency legislation championed by the Texas Press Association and its allies did not fare as well, however. Most pro-transparency bills fell victim to a deeply divided legislature that fought bitterly over everything from sanctuary cities to tax reform to transgender bathroom access.

Analysis by Donnis Baggett, TPA executive vice president

The dark Texas political climate was made even worse by the media-bashing storm sweeping the nation. We faced even rougher political seas than usual as newspapers, broadcasters and open-government advocates fought to preserve First Amendment protections and access to government information.
But despite the hostile atmosphere, a strong defense by TPA and its allies —the Texas Association of Broadcasters and the Freedom of Information Foundation of Texas — managed to stop two bills that would have dramatically weakened our First Amendment rights: one weakening a key libel defense and another that would have gutted the reporter’s privilege.
And in the waning moments of the session, our legislative supporters pushed through SCR 56, a resolution calling on the lieutenant governor and House speaker to form a joint committee to study transparency problems and make recommendations to the next legislature.
Another silver lining was the passage of HB 2873 by Rep. John Smithee, R-Amarillo. The legislation makes it easier for plaintiffs to be awarded attorneys’ fees when they must sue to get a governmental entity to comply with public information laws. Currently, some governmental officials withhold information that is clearly public, dragging their feet until just before trial and then turning over the information at the last minute to avoid court orders to pay plaintiffs’ legal fees. Now attorneys’ fees can be awarded much earlier in the process, which should put an end to such stalling.
TPA tracked more than 200 of the 6,631 bills filed this session. Here are some bad pieces of legislation we helped prevent from becoming law:
• HB 3387 by Rep. Ken King, R-Canadian, and SB 2121 by Sen. Kel Seliger, R-Amarillo, would have drastically narrowed the definition of a public figure, making it much easier for a public official or other high-profile plaintiff to win a libel suit.
• HB 3388, also by King, would have gutted the reporter’s privilege law, which provides protection for journalists against subpoenas seeking unpublished notes and photos and the identities of confidential sources. The two bills were aimed at curbing abuses by political operatives who claim they’re reporters when convenient in order to skirt libel and campaign ethics laws. But the wording of the measures threatened legitimate news media as well.
• SB 2 and SB 669, two property tax reform bills that originated in the Senate, were heavily amended by the House Ways and Means Committee, chaired by Rep. Dennis Bonnen, R-Angleton. The amendments would have gutted current public notice requirements for tax rates, allowing local governments to merely post announcements about tax hikes on their websites rather than provide newspaper or mail notice.
• HB 1530 by Rep. Paul Workman, R-Austin, would have allowed a governmental entity to satisfy legal requirements for newspaper public notices by placing the notices in “any other form of media” the entity might choose...including the entity’s own website.  The bill resulted from complaints by tiny suburban municipalities with no newspaper based in their towns. Many of those municipalities use the metro paper serving their region as a whole, and they complain about the cost. 
• A similar bill, HB 3141 by Rep. Cindy Burkett, R-Sunnyvale, would have allowed municipalities to satisfy public notice requirements by mailing the notices inside utility bills rather than publishing them in a newspaper.
• HB 1149 by Rep. Sarah Davis, R-Houston, would have eliminated the legal requirement to list polling places in newspaper notices. Davis has filed this bill the past four sessions, maintaining that the lists are hard to read and that few people read newspapers anymore. We expect to see this bill — and other anti-newspaper notice measures —resurrected in 2019. 
While our defense prevailed against bad legislation, we weren’t so fortunate on offense as we pushed bills to restore access to information that was sealed by bad appellate court rulings. Although the bills passed the Senate overwhelmingly, they fell victim to a hostile House Government Transparency and Operation Committee, chaired by Rep. Gary Elkins, R-Houston. 
SB 407 by Sen. Kirk Watson, D-Austin, and its companion, HB 792 by Rep. Giovanni Capriglione, R-Southlake, sought to repair the damage done by the 2015 Texas Supreme Court ruling in the Boeing case. The court ruled that businesses and governmental entities may withhold information about their contracts on grounds that releasing the information might put them at a competitive disadvantage in the future. 
SB 408 by Watson and its companion, HB 793 by Capriglione, would have addressed another bad Supreme Court ruling in the Greater Houston Partnership case. The high court ignored precedent and ruled that the non-profit GHP, which was paid by the City of Houston to perform economic development work, was not subject to the public information act.  The result: citizens now have no way to know how their tax money is being spent by such entities. 
HB 2710 by Rep. Todd Hunter, R-Corpus Christi, would have restored access to dates of birth in governmental records. A 3rd Court of Appeals ruling made much of that information off limits. The effects of the ruling are just now beginning to be felt. Media and other businesses such as lenders, title companies and background-check firms need dates of birth to confirm identities of people with common names.
Another Hunter bill, HB 2670, would have put teeth in the law to close the infamous “custodial loophole” that enables officials using their private electronic devices for public business to ignore laws requiring public documents to be made available when requested. The bill would have established a process for the attorney general to force scofflaw officials to comply. 
SB 1347 by Sen. Watson and HB 2328 by Rep. Eddie Lucio III, D-Brownsville, would have established a process for a governmental entity to expedite a public information request. The bill promised to reduce the backlog of repetitive requests for attorney general opinions and would have required the governmental body to get expedited information to requestors within five days. The measure passed the House, then was amended by the Senate to include transparency measures that were stalled in the House.  The House leadership rejected the amended version.
History will not portray the 85th session as one of the Texas Legislature’s brightest hours. Perhaps it’s fitting that the session ended with several representatives nearly coming to blows on the House floor during a stormy protest over sanctuary cities. But despite the political tempest, Texas newspapers ended the session with no loss of blood and even took a couple of steps forward, thanks to statesmen such as Hunter, Watson, Capriglione and Smithee.
At times like these, that is truly something to celebrate. 
Editor’s note: An updated list of our legislative wins and losses is posted on the home page of www.texaspress.com.