  Local judge grants motion to quash subpoena for TV reporter using new Free Flow of Information Act
By Mary Ann Cavazos
Originally published 11:03 p.m., May 26, 2009
Updated 12:40 a.m., May 27, 2009
CORPUS CHRISTI — The newly enacted Free Flow of Information Act has been used in Corpus Christi in what likely is the first time to persuade a Texas judge to grant a request preventing a journalist from being called to testify in a criminal case.
District Judge Sandra Watts on Tuesday granted a motion to quash a subpoena that prosecutors had sought seeking testimony from KIII-TV3 reporter Katy Kiser.
According to a motion filed by attorney Jorge Rangel on behalf of the station, Kiser interviewed Kenneth Hubbard, a man who was accused of sexual assault in a criminal case. A news report including that footage aired on July 8, 2008.
Kiser received a subpoena earlier this month requiring her to appear as a witness for the prosecution.
Rangel states in the filing that prosecutors already had a copy of the news broadcast and that Kiser wasn’t needed as a witness.
Prosecutor Bill Ainsworth said his main motivation for the subpoena was for Kiser to authenticate the copy of the news report on the stand.
He said the news report included statements by Hubbard in which he admitted the victim was injured but says the sex was consensual.
Rangel argued that under the new act, testimony was not needed for authentication of footage already broadcast and that journalists are protected from revealing unpublished information. Rangel also is the attorney for the “Caller-Times.”
“The enactment of this law is very significant because it provides a strong basis for protecting journalists as they go about gathering and reporting the news,” Rangel said.
Hubbard, 48, had been facing two counts of aggravated sexual assault. On Tuesday afternoon, he took a plea deal for a lesser charge and was sentenced to eight years in prison.
Watts’ order also prohibits the issuance of any other subpoenas for Kiser or the TV station related to the case.
Gov. Rick Perry signed the act, also known as House Bill 670, into law on May 13. The shield law provides a qualified privilege that prevents journalists who receive a subpoena from having to testify or produce documents that were gathered during their journalistic duties.
It also allows journalists to protect their confidential sources in some instances.
Exceptions to the bill that still may require journalists to reveal a source’s identity include when prosecutors can prove to a judge that all reasonable efforts were made to obtain the information by other means. Journalists also still must reveal a confidential source in cases in which they learn the source committed a felony or when revealing the source’s identity is vital to prevent a death or bodily harm.
Laura Prather, an Austin media attorney and board president of the Freedom of Information Foundation of Texas, said the local case is an example of why the law was needed.
“I’m thrilled to see the act being used in the way it should be used,” Prather said.
She said it seemed fitting that the shield law was put to early use in Corpus Christi considering state Rep. Todd Hunter, R-Corpus Christi, played such a vital role in making it a reality.
Hunter, chairman of the House Judiciary Committee, led the negotiations between prosecutors, the news media and legislators including one 13-hour session between the groups to hammer out the details of the bill.
Hunter said he was glad to see the act was working and even more excited that Corpus Christi is likely the first place it was used successfully.
“I think it’s not only ironic but it proves to me that we did the right thing,” Hunter said. |
