Texas Journalists and Open Government Advocates Won on Both Sides of the Ball in the 2023 Legislative Session

July 26, 2023 | Insights

By Stacy Allen

In my work for the Texas Association of Broadcasters, I had a ringside seat for some pitched battles to save landmark statutes protecting public access to government records and free speech against encroachment by bills that would chip away at Texans’ right to know and speak their minds about matters of public concern. Significant victories were won in defending against bad legislation. Happily, the offense also scored some points, making the 2023 legislative session a better one than some expected.

Beating Back Bad Bills

In its biggest policy win, TAB and other members of the Protect Free Speech Coalition successfully fended off multiple efforts to weaken the Citizen Participation Act, the anti-SLAPP litigation law which TAB championed in 2011.

The worst threat came from SB 896 by Sen. Bryan Hughes (R-Mineola), which sought to cripple the law that helps end frivolous lawsuits meant to silence critical free speech by restricting the right to appeal from adverse trial court rulings. Broadcasters are often drawn into such suits by their reporting on local disputes. The bill passed the Senate but died in the Texas House when it was not reached for a floor vote. A last-ditch effort to resurrect SB 896 by attaching it as an amendment to an interlocutory appeal housekeeping bill was stopped in its tracks with the threat of a TAB-researched parliamentary point of order which would have killed the host bill.

Other victories came by way of defeating bad bills that would have:

  • Permanently closed off access to mugshot photos.
  • Increased the difficulty in accessing law enforcement dashcam and bodycam video.
  • Created a so-called “expedited response” to a TPIA request which allowed a government body to withhold information if it “made a good faith determination” that the information should be excepted without requesting an AG’s decision (akin to allowing a student to grade his or her own homework).
  • Negatively altered a requirement for investigation of in-custody deaths.
  • Prohibited state-funded dues or sponsorships of non-profit media organizations such as NPR or PBS affiliates and other non-commercial stations with newsrooms.

Passing Good Bills

After four unsuccessful tries, Rep. Joe Moody (D-El Paso) was finally able to pass a law that meaningfully addresses the so-called “dead suspects loophole” in the Texas Public Information Act that has stymied Texas families and newsrooms for years. This has long been a TAB priority.

Currently, law enforcement can shield a wide variety of information in a criminal investigation or prosecution of a case if it did not result in a conviction or deferred adjudication. This exception has been abused, however, in cases in which a suspect died before an investigation or prosecution was complete. For example, because the Uvalde school shooting suspect was killed by authorities, the case will not result in a conviction, and the loophole is still being used to prevent release of information related to the tragedy.

HB 30 provides an exception to the exception and allows for release of information if the suspect(s) are deceased or incapacitated, or, if each other person mentioned in the information consents to its release. A model of bipartisan compromise, the final version of HB 30 received near unanimous support in both the House and Senate.

Other noteworthy amendments strengthening the TPIA include:

  • Reducing the time the AG’s office must render a decision on a governmental request for review to 30 days from 45 days, requiring government entities to produce responsive records within 15 days if the AG’s office rules for release, or notifying a requestor within 15 days if the AG’s office ruled that the records may be withheld, and requiring the AG’s office to create a searchable online database of pending government requests for an opinion (HB 3033 by Rep. Landgraf, R-Odessa).
  • Defining “business days” for the purpose of counting days before a response is due (HB 2135 by Rep. T. Canales, D-Edinburg, added as an amendment to HB 3033). This was a TAB Newsroom Legislative Priority bill.
  • Allowing release of information related to a general, primary, or special election even if that information is involved in litigation, actual or anticipated (SB 1910 by Sen. Bettencourt, R-Houston).
  • Requiring the Texas Commission on Health and Human Services to release hospital misconduct investigation information including the name of the hospital involved, the law the facility is alleged to have violated, the number of investigations that were conducted, the outcome of each investigation including reprimands, denial or revocation of license, adoption of corrective plans, or the imposition of penalties including dollar amounts (HB 49 by Rep. Klick, R-Fort Worth).
  • Requiring reporting of boating accidents, including a provision that mirrors the motor vehicle accident statute (SB 1670 by Sen. Lamantia, D-South Padre).

Other measures supported by TAB this session and in past sessions (public access to dates of birth contained in criminal justice and electoral candidate records, requiring the release of “super public” information like dollar value and descriptions of goods and services contained in government contracts, requiring government database records to be provided in searchable/sortable format, requiring a government entity to pay the requestor’s legal fees when withdrawing its objections to production on the eve of trial) failed again to pass both houses, and will likely be re-introduced in 2025. But friends of transparency in government and free speech can be satisfied with the bills passed (or killed) in 2023.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For assistance related to the First Amendment and issues impacting broadcasters and other media companies, please contact Stacy Allen or a member of the Media Law practice.

Stacy AllenMeet Stacy

In over 30 years of litigating complex state and federal cases across the country, Austin partner Stacy Allen’s aggressive approach to discovery and trial preparation has resulted in favorable judgments and settlements for a wide array of sophisticated commercial clients. Stacy’s national practice concentrates on intellectual property litigation, defense of federal and state class actions against insurers, defense of media companies and news organizations against defamation and privacy tort claims, defense of managed care companies in claims arising from complex provider contracts, and other commercial lawsuits and arbitrations alleging breach of contract, unfair trade practices, fraud, and other business torts.

Stacy Allen and fellow partner Paul Watler recently prepared an update for the Newsroom Legal Guide published by the Texas Association of Broadcasters (TAB). First published in 2012, the guide covers legal principles and considerations affecting Texas broadcasters in gathering and reporting the news. For more information, see “Paul Watler and Stacy Allen Update TAB Newsroom Legal Guide.”

Meet JW

Jackson Walker’s service to Texas broadcasters dates to the earliest days of the industry. In fact, the firm represented pioneer television broadcaster KRLD-TV of Dallas when its signal first went on air in 1949. Today in the internet-centric era of broadcasting, the firm remains at the cutting edge of legal issues for Texas broadcasters. With more than 115 years of experience in media law, the firm handles litigation and transactional matters involving news content, employment, entertainment, intellectual property, advertising, and other related matters. To learn more about Jackson Walker’s century-long dedication to local and regional broadcasters and news organizations, visit our Media Law page.