Texas House Pushing to Criminalize Citizens Who Record Legislators
Texas House members voted Tuesday to keep a provision within an ethics reform bill that would open citizen journalists to lawsuits if they were to audio record a legislature without permission.
The Senate version of the bill, authored by Van Taylor (R – Plano), concentrated solely on the actions of public officials to increase transparency and eliminate conflicts of interest between elected officials and financially motivated lobbyists. Key provisions included disclosure of government contracts, disclosure of bond counsel, disclosure of legal referral fees, prohibiting elected officials from simultaneously being lobbyists and closing loopholes to evade disclosure of expensive meals paid for by lobbyists. For what it’s worth, Taylor earned an ‘attaboy’ from newly elected Governor Greg Abbott after it passed the Senate 31-0.
“I applaud the Texas Senate for passing a meaningful ethics reform package. SB 19 reinforces the faith and trust that Texans deserve to place in their government, and it ensures that we remain focused on who we truly serve – the people of Texas. I look forward to working with the House to enact these ethics reform into law.”
Apparently, the Texas House doesn’t have the same level of commitment to ethics as the Senate judging by how the bill was almost immediately dismantled and injected with a provision to eliminate the recording of ‘audible’ conversations between citizens and public officials, essentially banning ‘ambush’ interviews.
Rep. Byron Cook (R-Corsicana) and his lawyers who wrote the proposed text showed creativity in how they spun the purpose of the bill in that it would protect citizens from politicians recording them while they petitioned their government. They even threw in a reference to the Texas constitution.
ARTICLE 5. RECORDS OF CERTAIN ORAL COMMUNICATIONS
SECTION 5.01. Section 306.002, Government Code, is amended to read as follows:
Sec. 306.002. APPLICATION. This chapter applies to:
(1) records and communications collected and maintained by members of the legislature and the lieutenant governor on June 12, 1985, as well as to records made and communications received by those officials on or after that date; and
(2) oral communications to members of the legislature and the lieutenant governor.
SECTION 5.02. Chapter 306, Government Code, is amended by adding Section 306.0041 to read as follows:
Sec. 306.0041. INTERCEPTION OF ORAL COMMUNICATIONS MADE IN THE CAPITOL. (a) In this chapter:
(1) “Intercept” means the aural acquisition of the contents of a communication through the use of an electronic, mechanical, or other device that is made without the consent of all parties to the communication, but does not include the ordinary use of:
(A) a telephone or telegraph instrument or facility or telephone or telegraph equipment;
(B) a hearing aid designed to correct subnormal hearing to not better than normal;
(C) a radio, television, or other wireless receiver; or
(D) a cable system that relays a public wireless broadcast from a common antenna to a receiver.
(2) “Protected oral communication” means an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation. The term does not include an electronic communication.
(b) To ensure the right of the citizens of this state to petition state government, as guaranteed by Article I, Section 27, Texas Constitution, by protecting the confidentiality of communications of citizens with a member of the legislature or the lieutenant governor, a person has a justified expectation that the person’s oral communication with a member of the legislature or the lieutenant governor while in the state capitol is not subject to interception. A person whose oral communication with a member of the legislature or the lieutenant governor consists of testimony at a public meeting of a legislative committee or agency does not have a justified expectation that the communication is not subject to interception.
According to a press release on Taylor’s website, he was simply astonished by the elimination of meaningful reforms set forth by his bill:
Senator Van Taylor expressed astonishment for the elimination of meaningful ethics reforms of elected officials in the House today. Instead of finding additional opportunities for ethics reform focused on elected officials, the House elected to pursue more regulations against the free speech of private citizens. The Senate passed version was applauded by Governor Greg Abbott, Lieutenant Governor Dan Patrick, and passed the Senate 31-0.
“The purpose of the Senate’s ethics package, which was applauded by Governor Abbott who placed this charge on his emergency call, is to put a mirror on elected officials and affirm to the people that our efforts to represent them rise above even the appearance of impropriety or self-service,” stated Taylor. “Some in the House apparently don’t think elected officials are the problem and instead muddled the bill with a litany of bizarre measures that point the finger at everyone besides themselves…
The House version of the bill also defines penalties for anyone caught recording one of the all-mighty politicians without their express written consent. An individual with cause of action would be entitled to an injunction from further recordings, a minimum of $10,000 in damages and attorney’s fees. It should be noted that Texas is a one-party consent state, meaning as long as one person in a conversation is aware of the recording, then it is lawful activity.
With the House and Senate so far apart on the ethical scale, it is unknown if either chamber will compromise enough to pass any meaningful reforms.