VIA Media Postcard: 2013 Legislative Session a Success for Texas Newsrooms

by Jackson Walker

The 2013 Legislative session proved to be one of the most successful ever for Texas newsrooms, with several important bills passed and signed into law by Governor Perry. These victories were the result of the combined efforts of the Texas Association of Broadcasters, other news organizations, and media lawyers – including several from Jackson Walker – who testified before House and Senate committees and lobbied for new laws protecting newsrooms and promoting transparency in state and local government.

HB 1759 (codified in Texas Civil Practice & Remedies Code §§ 73.051– 062)

With the passage of this law, Texas joined 31 other states that have enacted similar statutes providing a uniform process for requesting and issuing retractions, clarifications, or corrections that could limit exposure to liability in a potential defamation action. Previously, a plaintiff could wait to provide notice of an allegedly defamatory publication until bringing suit on the eve of the end of the limitations period, and retain the right to seek exemplary damages long after a correction might have mitigated the harm. Now, a prospective defamation plaintiff must give a publisher an opportunity to correct, clarify, or withdraw allegedly false content before filing a defamation lawsuit. Furthermore, a plaintiff that fails to request the retraction within 90 days after learning of the publication will lose the ability to recover exemplary damages unless the publication was made with actual malice. A plaintiff that fails to make a timely retraction request may only recover actual damages, which can be difficult to prove in defamation cases. Additionally, a publisher that makes a correction, retraction, or clarification within 30 days of such a request will not be liable for exemplary damages unless the publication was made with actual malice. The unavailability of exemplary damages in most instances will make bringing defamation actions less attractive to potential plaintiffs.

In response to concerns over "off-the-record" communications, the Legislature passed SB 1563 to bring the state's sunshine laws in line with recent advances in technology.

HB 2935 (codified in Texas Civil Practice & Remedies Code § 51.014)

In 2011, the Texas Legislature passed one of the strongest anti–SLAPP statutes in the nation, empowering trial court judges to dismiss unmeritorious defamation actions relating to "matters of public concern" at the outset of litigation, before costly attorneys' fees are incurred by the defendant. The statute also provided the defendant the right to an interlocutory (immediate) appeal if the lower court judge denied or failed to rule on a motion to dismiss under the statute. Prompted by some confusion at the appellate court level, the Legislature passed HB 2935 amending the state's interlocutory appeal statute to confirm a defendant's right to an interlocutory appeal after a denial of its anti–SLAPP motion to dismiss. This clarification restores the value of Texas' anti–SLAPP law as a powerful weapon against frivolous and vexatious litigation intended to silence legitimate news coverage.

SB 1563 (codified in Texas Government Code § 552.002)

In recent years, newsrooms have encountered difficulties obtaining certain electronically stored information under the Texas Public Information Act. Such information included emails and text messages transmitted by public officials to and from each other and lobbyists during public hearings. In response to concerns over such "off-the-record" communications, the Legislature passed SB 1563 to bring the state's sunshine laws in line with recent advances in technology. In particular, the revisions now broaden the meaning of "public information" to include electronic communications created, transmitted, received, or maintained on any device if the communication was made in connection with the transaction of official business. Furthermore, the new law specifically includes e-mail, text messages and Internet postings as forms of communications which may be subject to disclosure under the TPIA.

Equally important, many bills which were antithetical to the interests of news organizations were defeated or amended to cure the harm. The 2013 session continued a positive trend of enactment of important new laws protecting journalists and promoting access to government records.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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