Sec. 1101.101. SCOPE OF PRIVILEGE. (a) An audit report is privileged as provided by this section.

(b) Except as provided by Sections 1101.102, 1101.103, and 1101.104, any part of an audit report is privileged and is not admissible as evidence or subject to discovery in:

(1) a civil action, whether legal or equitable; or

(2) an administrative proceeding.

(c) A person, when called or subpoenaed as a witness, may not be compelled to testify or produce a document related to an environmental or health and safety audit if:

(1) the testimony or document discloses any item listed in Section 1101.051 that was made as part of the preparation of an audit report and that is addressed in a privileged part of an audit report; and

(2) the person is:

(A) a person who conducted any portion of the audit but did not personally observe the physical events;

(B) a person to whom the audit results are disclosed under Section 1101.103(b); or

(C) a custodian of the audit results.

(d) A person who conducts or participates in the preparation of an environmental or health and safety audit and who has actually observed physical events of violation may testify about those events but may not be compelled to testify about or produce documents related to the preparation of or any privileged part of an environmental or health and safety audit or any item listed in Section 1101.051.

(e) An employee of a state agency may not request, review, or otherwise use an audit report during an agency inspection of a regulated facility or operation or an activity of a regulated facility or operation.

(f) A party asserting the privilege created by this section has the burden of establishing the applicability of the privilege.

Added by Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 20.002(a), eff. September 1, 2017.