TAB Preserves Anti-SLAPP Litigation Law, Notches Wins in Tax Policy and Open Government

posted on 5.30.2023

The regular session of the tumultuous 88th Texas Legislature ended Monday, capped by several TAB policy wins awaiting Gov. Greg Abbott's signature.

The weekend leading up to sine die brought a flurry of activity on several remaining legislative priorities advocated by statewide leaders such as shoring up the Texas electric grid and outlining a new economic incentive framework to replace the flawed Chapter 313 program in the tax code. Other issues remained unaddressed by lawmakers as the session ended such border security and long-term property tax relief.

TAB expects at least one special session on the issue of school choice/vouchers, one of Gov. Greg Abbott's priorities.

The session was also marked by the expulsion of a Texas House member and impeachment of a statewide officeholder, both Republicans, by a GOP-controlled Texas House. The Texas House impeached Attorney General Ken Paxton, R-McKinney, this past weekend on a 121-23 vote. Earlier in the month House lawmakers expulsed now former Rep. Bryan Slayton, R-Royce City, a married lawmaker who engaged in an inappropriate relationship with a 19-year-old legislative intern.

Texas Citizen Participation Act Preserved

In its biggest policy win, TAB successfully fended off multiple efforts to weaken the Citizen Participation Act, the anti-SLAPP litigation law which TAB championed in 2011.

This session TAB and other groups that were members of the Protect Free Speech Coalition were able to stop 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. Broadcasters are often drawn into such suits by their reporting on local disputes.

While TAB fought SB 896 every step of the legislative process, we consistently offered language which would have addressed issues with the law's implementation that have been raised by critics of the statute. The bill passed the Senate but died in the Texas House when it was not reached for a floor vote.

Many Texas broadcasters responded to TAB's repeated requests to contact lawmakers on the bill. Others provided key committee testimony on TAB's behalf such as general managers Bobby Springer of KHOU-TV Houston and Eric Lassberg of KXAN-TV Austin. Alternative bill language and testimony were provided by Laura Prather and Reid Pillifant of TAB Associate member law firm Haynes Boone, as well as Stacy Allen of TAB's state legal counsel Jackson Walker. All three served on TAB's Newsroom Legislative Committee for the session.

A last-ditch effort to attach SB 896 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 on HB 3129. It was an outstanding effort as broadcasters and TAB never gave up defending this hard-earned free speech protection that most Texans do not realize they have.

Other TAB Policy Wins

Legislation clarifying that Radio stations are permitted to take costs of goods sold into consideration when calculating their state franchise tax liability passed the Legislature May 23 and is awaiting Gov. Abbott's signature. SB 1614 by Sen. Charles Perry, R-Lubbock, clarifies, consistent with the tax code's applicable provisions for broadcasting and "live and prerecorded television and radio programs," that Radio broadcasters may take the cost of goods sold into consideration when calculating their franchise tax liability, just as Television broadcasters are permitted to do. TAB proactively sought a legislative solution on this issue after recent discussions by state tax officials suggested that further clarification would be helpful to forestall potential misinterpretations of the law.

In the Open Government realm, two TAB-advocated measures, one of which was a TAB newsroom legislative priority, are also awaiting Gov. Abbott's action. June 18 is the last day for the governor to sign or veto bills.

HB 3033 by Rep. Brooks Landgraf, R-Odessa, includes language from HB 2135 by Rep. Terry Canales, D-Edinburg, which was one of five TAB newsroom legislative priorities. The added language clearly defines "business days" under the Texas Public Information Act so local governments across Texas are not left to decide on their own which days they are open and closed for TPIA requests. HB 3033 also includes language from three other Open Government-related bills, two of which featured TAB drafted language to minimize any potential harm to TPIA requestors.
The other measure that passed, HB 30 by Rep. Joe Moody, D-El Paso, addresses the so-called "dead suspects loophole" in the Texas Public Information Act that has stymied Texas families and newsrooms for years.

Currently, law enforcement can shield a wide variety of information in pending investigations and in closed cases that do not result in a conviction. 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 this criminal case. The final version of HB 30 was heavily edited by the Texas House and Senate as it moved through the legislature. A conference committee was needed to resolve the differences between the two versions. The "as passed" version of HB 30 will allow Texas citizens to access more information that will help hold accountable the law enforcement that taxpayers fund.

Unresolved Open Government Issues

Unfortunately, TAB was unable to garner wins on other four other Open Government issues. Bills addressing two of the issues passed the Texas House, only to die in the Senate's Business and Commerce Committee for lack of a hearing, just like their Senate companion measures.

HB 2309 by Rep. Todd Hunter, R-Corpus Christi, ensured public access to dates of birth in criminal justice and electoral candidate records and documents. A newsroom's inability to verify the right individual when reporting on a crime could easily lead to legal action against a station if the wrong individual were reported. SB 46 by Sen. Judith Zaffirini, D-Laredo, also addressed the issue and died a similar death in the same committee. Measures addressed the DOB issue passed the Senate in 2017, and the House in 2019 and 2021, but have not passed both houses in the same session.

HB 2493 by Rep. Giovanni Capriglione, R-Southlake, would have codified guidance from the Attorney General's office directing government officials to release public information stored in spreadsheets in their original format, rather than converting them to PDF images that cannot be easily searched, sorted, nor analyzed. Governmental entities often store public information in spreadsheets. Analyzing data in a spreadsheet can help a requestor evaluate broad trends and better hold governments accountable. Two Senate bills also addressed the issue, SB 45 by Sen. Zaffirini and SB 965 by. Sen. Nathan Johnson, D-Dallas. All three bills failed to get a Senate committee hearing.

In two other Open Records problem areas, House and Senate companion bills endured a similar fate by never receiving a hearing.

HB 2492 by Rep. Capriglione and its companion SB 680 by Sen. Nathan Johnson, D-Dallas, clarified state law to ensure that local and state officials expedite the release of statutorily designated "super public" information such as the dollar value and descriptions of goods and services.

HB 2874 by Rep. John Smithee, R-Amarillo and SB 2286 by Rep. Mayes Middleton, R-Galveston, required governmental agencies pay requestor's attorney fees when these entities voluntarily release records after a suit has been filed. Smithee passed a similar bill in the 2017 session, only to see it vetoed by the governor.

Contact TAB's Michael Schneider to subscribe or call (512) 322-9944.

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