By:  Naishtat                                         H.B. No. 1984
       73R595 CLG-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the certification of persons as advocates for victims
    1-3  of sexual assault and to confidential communications; providing
    1-4  criminal penalties.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Section 44.003, Health and Safety Code, is
    1-7  amended to read as follows:
    1-8        Sec. 44.003.  Definitions.  In this chapter:
    1-9              (1)  "Advocate" means a person who provides advocacy
   1-10  services as an employee or volunteer of a sexual assault program.
   1-11              (2)  "Program" means a sexual assault program.
   1-12              (3) <(2)>  "Service" means the Sexual Assault
   1-13  Prevention and Crisis Service.
   1-14              (4) <(3)>  "Sexual assault" means any act or attempted
   1-15  act as described by Section 21.11, 22.011, 22.021, or 25.02, Penal
   1-16  Code, or a sexual assault in which the spouse of the victim is the
   1-17  actor.
   1-18              (5) <(4)>  "Sexual assault program" means any local
   1-19  public or private nonprofit corporation, independent of a law
   1-20  enforcement agency or prosecutor's office, that is operated as an
   1-21  independent program or as part of a municipal, county, or state
   1-22  agency and that provides the minimum services established by this
   1-23  chapter.
   1-24              (6) <(5)>  "Survivor" means an individual who is a
    2-1  victim of a sexual assault, regardless of whether a report or
    2-2  conviction is made in the incident.
    2-3        SECTION 2.  Chapter 44, Health and Safety Code, is amended by
    2-4  adding Subchapters C and D to read as follows:
    2-5      SUBCHAPTER C.  CERTIFICATION AND QUALIFICATION OF ADVOCATES
    2-6        Sec. 44.051.  ADVOCATES FOR VICTIMS OF SEXUAL ASSAULT.  An
    2-7  individual qualifies as an advocate for victims of sexual assault
    2-8  if the individual is certified by the department as minimally
    2-9  competent to be an advocate for victims of sexual assault and:
   2-10              (1)  is employed by a sexual assault program; or
   2-11              (2)  provides services through a sexual assault program
   2-12  as a volunteer under the supervision of an advocate.
   2-13        Sec. 44.052.  APPLICATION AND FEES.  (a)  An application for
   2-14  certification or recertification as an advocate shall be made to
   2-15  the department on a form prescribed by the board and under rules
   2-16  adopted by the board.
   2-17        (b)  A nonrefundable fee in an amount set by the board not to
   2-18  exceed $25 shall accompany the application.
   2-19        (c)  The fee required by Subsection (b) may be paid by a
   2-20  sexual assault program.
   2-21        Sec. 44.053.  ADVOCATE QUALIFICATION AND CERTIFICATION.  (a)
   2-22  The board by rule may establish minimum standards for:
   2-23              (1)  the certification and recertification of an
   2-24  advocate; and
   2-25              (2)  the revocation, suspension, and probation of
   2-26  advocate certification.
   2-27        (b)  The minimum standards for recertification of an advocate
    3-1  may include continuing education requirements.
    3-2        (c)  The department shall issue a certificate to an advocate
    3-3  who meets the minimum standards for certification adopted by the
    3-4  board under this section.  A certificate is valid for two years
    3-5  after the date of issuance.
    3-6        (d)  Sections 13-20, Administrative Procedure and Texas
    3-7  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), do
    3-8  not apply to revocation, suspension, or probation of a sexual
    3-9  assault advocate certificate.  The department shall conduct
   3-10  hearings in accordance with rules adopted by the board.  The rules
   3-11  must provide for notice to affected parties.
   3-12        Sec. 44.054.  ACCESS TO CERTAIN CRIMINAL HISTORY RECORD
   3-13  INFORMATION.  (a)  The department is entitled to obtain criminal
   3-14  history record information maintained by the Department of Public
   3-15  Safety, the Federal Bureau of Investigation identification
   3-16  division, or another law enforcement agency to investigate an
   3-17  applicant for certification as an advocate.
   3-18        (b)  The board shall adopt rules governing the custody and
   3-19  use of information obtained under this section.
   3-20        (c)  The department may use information obtained under this
   3-21  section only to ascertain the eligibility of an investigated person
   3-22  to be certified or to continue to be certified as an advocate.
   3-23        (d)  The department shall adopt a uniform method of obtaining
   3-24  criminal history record information.  The uniform method must
   3-25  require the department to submit to the Department of Public Safety
   3-26  or to another law enforcement agency a complete set of fingerprints
   3-27  of the person being investigated.  The department may also submit
    4-1  the fingerprints to the Federal Bureau of Investigation
    4-2  identification division.
    4-3        (e)  The department may deny certification to an applicant
    4-4  who does not provide a complete set of fingerprints on request.
    4-5        (f)  All information received by the department under this
    4-6  section is privileged and confidential and is for the exclusive use
    4-7  of the department.  Except on court order or with the written
    4-8  consent of the person being investigated, the information may not
    4-9  be released or otherwise disclosed to any other person or agency.
   4-10        (g)  After a person is certified as an advocate, the
   4-11  department shall seal the criminal history record information
   4-12  regarding the person and maintain the information as provided by
   4-13  board rule.  The department shall destroy the criminal history
   4-14  record information of an applicant who is not certified.
   4-15        (h)  A person commits an offense if the person releases or
   4-16  discloses any information received under this section, except as
   4-17  provided by Subsection (f).  An offense under this subsection is a
   4-18  Class B misdemeanor.  An offense under this section is an offense
   4-19  involving official misconduct.
   4-20        Sec. 44.055.  TRAINING PROGRAMS.  (a)  The board by rule may
   4-21  adopt minimum standards for:
   4-22              (1)  the approval of training programs for advocates
   4-23  and the revocation, suspension, or probation of an approval; and
   4-24              (2)  the approval of instructors and the revocation,
   4-25  suspension, or probation of the approval.
   4-26        (b)  Sections 13-20, Administrative Procedure and Texas
   4-27  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), do
    5-1  not apply to the denial of approval, approval, revocation,
    5-2  suspension, or probation of a training program.  The department
    5-3  shall conduct a hearing in accordance with rules adopted by the
    5-4  board.  The rules must provide for notice to an affected party.
    5-5              SUBCHAPTER D.  CONFIDENTIAL COMMUNICATIONS
    5-6        Sec. 44.071.  CONFIDENTIAL COMMUNICATIONS.  (a)  A
    5-7  communication between a certified advocate and a survivor, or a
    5-8  person claiming to be a survivor, that is made in the course of
    5-9  providing sexual assault advocacy services to the survivor is
   5-10  confidential and privileged and may not be disclosed except as
   5-11  provided by this subchapter.
   5-12        (b)  A record of the identity, personal history, background
   5-13  information, or information concerning the victimization of a
   5-14  survivor that is created by or provided to an advocate or
   5-15  maintained by a sexual assault program is confidential and
   5-16  privileged and may not be disclosed except as provided by this
   5-17  subchapter.
   5-18        (c)  A person who receives information from a confidential
   5-19  communication or record as described by this subchapter may not
   5-20  disclose the information except to the extent that disclosure is
   5-21  consistent with the authorized purposes for which the information
   5-22  was obtained.
   5-23        (d)  This subchapter governs a confidential communication or
   5-24  record concerning a survivor regardless of when the survivor
   5-25  received the services of an advocate or sexual assault program.
   5-26        (e)  Notwithstanding Rule 501, Texas Rules of Criminal
   5-27  Evidence, and Rule 501, Texas Rules of Civil Evidence, the
    6-1  privilege of confidentiality may be claimed in a criminal, civil,
    6-2  or administrative proceeding and may be claimed by the survivor or
    6-3  an advocate acting on the survivor's behalf.
    6-4        (f)  If the advocate claims the privilege of confidentiality
    6-5  on behalf of the survivor, the authority to do so is presumed in
    6-6  the absence of evidence to the contrary.
    6-7        Sec. 44.072.  EXCEPTIONS.  (a)  Communications or records
    6-8  that are privileged under this subchapter may be disclosed in court
    6-9  or in an administrative proceeding if:
   6-10              (1)  the proceeding is brought by the survivor against
   6-11  an advocate or a sexual assault program or is a criminal or
   6-12  certification revocation proceeding in which disclosure is relevant
   6-13  to the claims or defense of an advocate or a sexual assault
   6-14  program; or
   6-15              (2)  the survivor or a person authorized to act on
   6-16  behalf of the survivor submits a written consent to the release of
   6-17  the confidential information in accordance with Section 44.073.
   6-18        (b)  Communications and records that are confidential under
   6-19  this subchapter may be disclosed only to:
   6-20              (1)  medical or law enforcement personnel if the
   6-21  advocate determines that there is a probability of imminent
   6-22  physical danger to any person or if there is a probability of
   6-23  immediate mental or emotional injury to the survivor;
   6-24              (2)  a governmental agency if the disclosure is
   6-25  required or authorized by law;
   6-26              (3)  a qualified person to the extent necessary for
   6-27  management audits, financial audits, program evaluation, or
    7-1  research, except that any report of the research, audit, or
    7-2  evaluation may not directly or indirectly identify a survivor;
    7-3              (4)  a person who has the written consent of the
    7-4  survivor or of a person authorized to act on the survivor's behalf
    7-5  in accordance with  Section 44.073; or
    7-6              (5)  other certified advocates and personnel under the
    7-7  direction of a counseling supervisor who is participating in the
    7-8  evaluation or counseling of or advocacy for the survivor.
    7-9        Sec. 44.073.  CONSENT.  (a)  Consent for the release of
   7-10  confidential information must be in writing and signed by the
   7-11  survivor, a parent or legal guardian if the survivor is a minor, a
   7-12  legal guardian if the survivor has been adjudicated incompetent to
   7-13  manage the survivor's personal affairs, an attorney ad litem
   7-14  appointed for the survivor, or a personal representative if the
   7-15  survivor is deceased.  The written consent must specify:
   7-16              (1)  the information or records to be covered by the
   7-17  release;
   7-18              (2)  the reasons or purpose for the release; and
   7-19              (3)  the person to whom the information is to be
   7-20  released.
   7-21        (b)  The survivor or other person authorized to consent may
   7-22  withdraw consent to the release of any information by submitting a
   7-23  written notice of withdrawal to the person or program to which
   7-24  consent was provided.  Withdrawal of consent does not affect any
   7-25  information disclosed before the date on which written notice of
   7-26  the withdrawal was received.
   7-27        (c)  A person who receives information made confidential by
    8-1  this chapter may not disclose the information except to the extent
    8-2  that disclosure is consistent with the authorized purposes for
    8-3  which the person obtained the information.
    8-4        Sec. 44.074.  PENALTY.  A person commits an offense if the
    8-5  person intentionally or knowingly discloses a communication or
    8-6  record that is confidential under this chapter, except as provided
    8-7  by this chapter.  An offense under this section is a Class C
    8-8  misdemeanor.
    8-9        SECTION 3.  This Act takes effect September 1, 1993.
   8-10        SECTION 4.  The importance of this legislation and the
   8-11  crowded condition of the calendars in both houses create an
   8-12  emergency and an imperative public necessity that the
   8-13  constitutional rule requiring bills to be read on three several
   8-14  days in each house be suspended, and this rule is hereby suspended.