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.