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TPA Legislative Report

By DONNIS BAGGETT Executive Vice President Texas Press Association The newspaper industry steamed successfully through the stormy seas of the 84th Texas Legislature, passing crucial First Amendment legislation and protecting public notices, public records and open meetings. Yogi Berra’s old saw “it ain’t over till it’s over” came to mind more than once, with seemingly dead bills coming back to life and supposedly done deals coming undone. But when the gavels fell and the skies cleared, reporters and the public were in stronger position than before to keep track of state and local governments. Gov. Greg Abbott has until June 21 to sign or veto legislation, and while he has already signed our top-priority bill, most legislation is still in his office undergoing scrutiny. Gubernatorial vetoes are a rarity, however, and few if any measures tracked by Texas Press Association are expected to be vetoed. Unless otherwise noted, the bills below have not yet been signed by the governor. Below is a summary of key legislation. For a complete list of the nearly 200 bills tracked throughout the session by TPA, click here to download a spreadsheet.

FIRST AMENDMENT/LIBEL LAW

HB 1766 by Rep. Todd Hunter, R-Corpus Christi/SB 627 by Sen. Joan Huffman, R-Houston —Gov. Abbott signed this crucial bill into law on May 28, providing libel protection for journalists who accurately quote third-party sources who make allegations of wrongdoing. TPA witnesses pointed out that journalists often reveal alleged wrongdoing before governmental authorities are even aware that a problem exists. Because of the importance of the media’s watchdog role, for 20 years legal precedent protected Texas journalists who reported on third-party allegations of wrongdoing. Ruling on a case known as Neely v. Wilson in 2013, the Supreme Court of Texas cast a cloud of doubt on that precedent, spawning concern about reporters’ vulnerability to libel judgments. SB 627/HB 1766 was filed to codify the protection established through precedent for the past two decades. The Texas Trial Lawyers Association Trial initially opposed the bill, maintaining that it would give free reign to reporters to write virtually anything they wanted. Hunter called both sides to the conference table to hammer out a compromise, and TPA counsel Laura Lee Prather of Haynes and Boone spearheaded negotiations for media interests. The resulting compromise bill passed both houses of the Legislature unanimously and became law immediately upon the governor’s signature.

PUBLIC NOTICE

The 2015 session brought 12 bills that would reduce or eliminate public notices in newspapers — or a total of 15 if you count companion bills separately. We were able to kill six of the 12 measures in the committee process and neutralize five others with newspaper-friendly amendments. Only one anti-notice bill —a cleanup of an arcane law involving state-owned coastal lands — passed the Legislature and was signed into law by the governor. The bill, SB 903/HB 2104, eliminates a requirement for newspaper notice of procedures for the management, sale or lease of certain state-owned coastal property. Although we opposed the bill, we have found no coastal publisher who recalls ever printing such a notice, so its passage is expected to have no noticeable effect. TPA supported a positive public notice measure that passed — HCR 96 by Rep. Todd Hunter, R-Corpus Christi. This concurrent resolution, co-sponsored in the Senate by Sen. Kelly Hancock, R-North Richland Hills, asks the House speaker and lieutenant governor to form an interim committee to study public notices. The resolution passed both houses of the Legislature unanimously. Hunter, chair of the House Calendars Committee and the media’s staunchest ally over the past several legislative sessions, told TPA he was concerned about the growing number of bills to reduce or eliminate newspaper notice. He also expressed concern that some of the session’s anti-notice bills were filed by legislative veterans, some of them members of the House leadership team. Due to the standing of those veteran legislators, killing or amending their bills was a much tougher task than in years past, when anti-notice measures were generally filed by contrarian members with less political clout. Hunter proposed in HCR 96 that legislators undertake a study of the public notice issue with an eye toward improving notice rather than diminishing it in an era of media transformation. The interim study will most likely feature public hearings around the state in 2016. Publishers and readers who value printed public notices will be crucial to making the case for newspapers in these hearings. TPA is already working on strategy for the hearings, so stay tuned. Grassroots involvement — our most effective legislative asset — will be key.

CUSTODIAL RESPONSIBILITY

HB 1764 by Rep. Todd Hunter, R-Corpus Christi/SB 1087 by Sen. Lois Kolkhorst, R-Brenham — These companion bills would have established custodial responsibility for electronic messages that are public record based on their subject matter but are transmitted or received by a public official using a private device. Unfortunately, we fell short in our efforts to pass the legislation. Existing state law says clearly that public documents on an official’s private device are eligible for public inspection, but the law does not outline custodial responsibility for the documents. In some cases, officials have maintained that providing documents from their private devices is a violation of their privacy and have refused to make the documents available. The bill would require the official to make requested public records available to the custodian of public information of that governmental entity. Should the official still refuse, the custodian of the governmental entity could file suit against the official to force compliance. Frank Battle, chief counsel for House Speaker Joe Straus, handled negotiations between open government advocates and local government associations and succeeded in forging compromise language allaying privacy concerns. Despite the agreed-upon language, the measure did not make it to the House Calendars Committee before the deadline for a vote to be scheduled. TPA plans to make this issue a top legislative priority in the 2017 session. We are hopeful the agreed-upon language will help the legislation sail through the process next time.

AUTO ACCIDENT REPORTS

HB 2633 by Rep. Ana Hernandez, D-Houston — This one was a nail-biter, but we won in the end. The bill was designed to discourage ambulance-chasing lawyers and others who use public information on auto accidents to solicit business. In its original form, it would have eliminated reporters’ access to names in automobile accident reports. Pressure from publishers resulted in a House amendment to restore media access, but that amendment was stripped by Senate sponsor Charles Perry, R-Lubbock, who cited privacy concerns. The measure went to conference committee, where the constitutionality of the Perry version was questioned, and media access was restored. The conference committee version was approved by both the House and the Senate.

POLICE REPORTS

SB 308 by Sen. John Whitmire, D-Houston — Passage of this bill means that police departments of private universities must now open their offense reports to the public. Offense reports from governmental law enforcement agencies have been publicly available for many years, but the law did not require compliance by private university police departments. The legislation resulted from outcries over high-profile cases involving private university police officers. It passed both houses unanimously and awaits the governor’s signature.

CONCURRENT OPEN GOVERNMENT JURISDICTION

HB 3997 by Rep. Gary Elkins, R-Houston — This measure championed by media and transparency advocates would have given the Texas attorney general concurrent jurisdiction to enforce state open government laws. Although the bill was assigned to Elkins’ own House Government Transparency and Operations Committee, it received a hearing late in the session and never made it out of his committee. Currently, the attorney general cannot prosecute violations of the public information act or open meetings act unless invited to do so by the local district attorney. Historically, few district attorneys have been willing to either prosecute fellow local officials or to ask the attorney general to intervene.

OTHER SIGNIFICANT BILLS

HB 23 by Rep Sarah Davis, R-Houston — Requires disclosure of relationships between local government officials and vendors and establishes penalties for failure to do so. Passed. Supported by TPA. HB 1036 by Rep. Eric Johnson, D-Dallas — Requires the attorney general to develop a detailed form for law enforcement agencies to report any officer-involved injury or death. Passed. Supported by TPA. HB 1295 by Rep. Giovanni Capriglione, R-Southlake — Requires governmental bodies to report all interested parties who will benefit from governmental contracts. Passed. Supported by TPA. HB 1630 by Rep. Ramon Romero, D-Dallas — Prohibits a governmental entity from settling a lawsuit if a condition of the settlement requires the plaintiff to sign a non-disclosure agreement. Passed. Supported by TPA. HB 2918 by Rep. Jason Villalba, R-Dallas — Would have restricted citizens’ right to photograph police officers in the course of performing their duties. Failed. Opposed by TPA. HB 3736 by Rep. Sarah Davis, R-Houston — Requires state agency governing board members and governing officers to disclose conflicts of interest and refrain from participating in decisions on matters for which they had a conflict of interest. Passed. HB 3846 by Rep. John Smithee, R-Amarillo — Seals information on persons participating in an execution and the companies involved in manufacturing the execution drugs. Passed and signed by the governor. Opposed by TPA. SB 306 by Sen. Judith Zaffirini, D-Laredo — Requires the State Commission on Judicial Conduct to file an annual report on the number of complaints received, the number of complaints dismissed due to insufficient evidence, the number dismissed due to the facts not constituting misconduct or disability, the number dismissed as unfounded or frivolous and the number of each type of judicial misconduct or disability that resulted in sanction or censure of a judge. Passed. Supported by TPA. SB 949 by Sen. Carlos Uresti, D-San Antonio — Requires an annual Child Protective Services report on child fatalities and near-fatalities. Passed. Supported by TPA. SB 1844 by Judith Zaffirini, D-Laredo — Creates a state data coordination and transparency commission that would review the possibility of posting state agency data in a format easily accessible to the public. Passed. Supported by TPA.