Texas recognizes a legal claim for publication of private facts. For the most part, the law in Texas is similar to that described in the general page on publication of private facts. See that page for a full discussion of the elements of and defenses to a private facts claim. Here, we will address only those aspects of Texas law that are different from the general description.
Elements of a Private Facts Claim
In Texas, in order to recover for public disclosure of private facts, a plaintiff must show that (1) publicity was given to matters concerning his or her private life; (2) the publication of these facts would be highly offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized was not of legitimate public concern.
Texas law does not impose liability for publication of information that is of legitimate public concern or newsworthy. A federal court applying Texas law has indicated that "reports of the investigation of crimes or matters pertaining to criminal activity have almost without exception been held to be newsworthy or matters of public interest as a matter of law." Lowe v. Hearst Communications, Inc., 487 F.3d 246, 250 (5th Cir. 2007)
Texas courts have found the following things, among others, to be of legitimate public concern or newsworthy:
- information that plaintiff was a gay, HIV-positive police officer;
- an incident involving the taping of high school students changing clothes by their band director; and
- details about a blackmailing scheme, through which a husband and wife team extorted thousands of dollars from the wife's lovers.
In addition, a photograph that was published in a newspaper that accidentally revealed a high school soccer player's genitalia was protected because the photograph accurately depicted a public, newsworthy event. The court reasoned the First Amendment of the U.S. Constitution and the Texas Constitution provided the newspaper with immunity from liability for damages. McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 905 (Tex. App. 1991)
For additional information and discussion of Texas cases, see the Reporters Committee's Photographers' Guide to Privacy: Texas.
Relying on Public Records
In Texas, you generally cannot be held liable for publishing truthful information gathered from government records that are open to public inspection. So far, Texas courts have applied this protection to information revealed in open court proceedings and contained in police records, but it would likely apply to other government records as well, both because of a potential constitutional privilege and because the information is already exposed to the public eye.
Texas recognizes consent as a defense to a publication of private facts claim. Texas courts may recognize verbal or implied consent, but it is advisable to get it in writing whenever possible. If getting written consent is not practical, you should try to record verbal consent using an audio or video recording device. The age of majority in Texas is eighteen; if you interview or photograph someone under the age of eighteen, you should seek consent from the subject's parent(s) or guardian. See the general description for a more detailed discussion of release forms.