By: Maxey H.B. No. 2554
73R4276 JJT-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the use of plethysmography in the treatment of sex
1-3 offenders and others; providing a criminal penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. DEFINITIONS. In this Act:
1-6 (1) "Board" means the Polygraph Examiners Board.
1-7 (2) "Penile plethysmograph" means a device that
1-8 measures and records penile tumescence by changes in penile volume
1-9 or in penile circumference.
1-10 SECTION 2. LICENSE REQUIRED. A person may not use or
1-11 operate a penile plethysmograph for assessing a person's sexual
1-12 arousal patterns or interpret data derived from the use or
1-13 operation of a penile plethysmograph to assess a person's sexual
1-14 arousal patterns or for behavior modification unless the person is
1-15 licensed by the board as a plethysmographic clinician or technician
1-16 under this Act.
1-17 SECTION 3. PLETHYSMOGRAPHIC CLINICIAN LICENSE. (a) The
1-18 board may issue a plethysmographic clinician license to an
1-19 applicant who meets the qualifications prescribed by the board.
1-20 The board, in developing qualifications, requirements, and an
1-21 examination for licensure or license renewal, shall consult the
1-22 Interagency Council on Sex Offender Treatment, the Association for
1-23 the Treatment of Sexual Abusers, and any other association or
1-24 organization familiar with the use of penile plethysmography in the
2-1 assessment or treatment of sexual offenders as the board considers
2-2 appropriate.
2-3 (b) At a minimum, the board shall require an applicant for a
2-4 license under this section to have a master's degree or the
2-5 equivalent in a mental health treatment field and to have
2-6 successfully completed:
2-7 (1) graduate courses in developmental psychology,
2-8 psychopathology, personality disorders, and either statistics or
2-9 psychometrics from an accredited university or medical school in
2-10 accordance with criteria prescribed by the board;
2-11 (2) a course of instruction on the use and operation
2-12 of a penile plethysmograph and the interpretation of
2-13 plethysmographic data derived from the use or operation of the
2-14 device; and
2-15 (3) the performance of at least 10 plethysmographic
2-16 assessments, including the interpretation of data derived from the
2-17 device, under the direct supervision of a licensed plethysmographic
2-18 clinician.
2-19 (c) The board shall require an applicant to pass an
2-20 examination approved or developed by the board on:
2-21 (1) the technical aspects of the operation of a penile
2-22 plethysmograph;
2-23 (2) guidelines adopted by the board for the selection
2-24 of stimuli for assessing a person's sexual arousal patterns;
2-25 (3) procedures for screening clients of a
2-26 plethysmographic clinician;
2-27 (4) obtaining a client's consent;
3-1 (5) sanitary and disinfection procedures;
3-2 (6) the physiology of penile tumescence;
3-3 (7) ethical considerations in the performance and use
3-4 of plethysmographic assessments;
3-5 (8) integrating assessment data with treatment
3-6 planning;
3-7 (9) interpretation of plethysmographic information
3-8 resulting from the use of the device; and
3-9 (10) any other topic the board considers appropriate
3-10 or necessary.
3-11 (d) The board shall require continuing education as a
3-12 condition of license renewal.
3-13 (e) A license issued by the board under this section is
3-14 valid for one year from the date of issuance.
3-15 SECTION 4. PLETHYSMOGRAPHIC TECHNICIAN LICENSE. (a) The
3-16 board may issue a plethysmographic technician license to an
3-17 applicant who meets the qualifications prescribed by the board.
3-18 The board, in developing qualifications, requirements, and an
3-19 examination for licensure or license renewal, shall consult the
3-20 Interagency Council on Sex Offender Treatment, the Association for
3-21 the Treatment of Sexual Abusers, and any other association or
3-22 organization familiar with the use of the penile plethysmograph in
3-23 the assessment or treatment of sexual offenders as the board
3-24 considers appropriate.
3-25 (b) At a minimum, the board shall require an applicant for a
3-26 license under this section to have successfully completed:
3-27 (1) courses in abnormal psychology, developmental
4-1 psychology, experimental research procedures, and either statistics
4-2 or psychometrics in accordance with criteria prescribed by the
4-3 board;
4-4 (2) a course of instruction on the use and operation
4-5 of a penile plethysmograph adopted or approved by the board; and
4-6 (3) a required number of plethysmographic assessments
4-7 operating a plethysmograph under the direct supervision of a
4-8 plethysmographic clinician as determined by the board.
4-9 (c) The board shall require continuing education as a
4-10 condition of licensure or license renewal.
4-11 (d) The board shall require an applicant for a license under
4-12 this section to pass a written examination on plethysmography.
4-13 (e) A license issued by the board under this section is
4-14 valid for one year from the date of issuance.
4-15 SECTION 5. FEES. (a) The board shall set license, renewal,
4-16 examination, and inspection fees in amounts reasonable and
4-17 necessary to recover the costs of administering this Act.
4-18 (b) Fees collected under this section may be appropriated
4-19 only to the board to administer this Act.
4-20 SECTION 6. PLETHYSMOGRAPHY PRACTICE RULES. (a) The board
4-21 by rule shall adopt standards for the types and use of sexually
4-22 oriented stimulus materials in plethysmographic assessments. The
4-23 standards at a minimum must provide that:
4-24 (1) stimulus material used in the assessment of sex
4-25 offenders may not include explicit visual depictions of sexual
4-26 activity involving children; and
4-27 (2) stimulus material used in the assessment of
5-1 adolescent sex offenders may not include explicit visual depictions
5-2 of sexual activity.
5-3 (b) The board by rule shall prohibit the use of a penile
5-4 plethysmograph to assess the sexual arousal patterns of a person
5-5 who is less than two years older than the approximate age at which
5-6 the person began puberty.
5-7 (c) The board by rule shall prohibit the use of a penile
5-8 plethysmograph to assess the sexual arousal patterns of a person
5-9 who has been diagnosed as a person with mental retardation.
5-10 (d) The board by rule shall prohibit the use of a penile
5-11 plethysmograph to assess the sexual arousal patterns of an
5-12 adolescent or a person with a mental handicap other than mental
5-13 retardation unless the responsible licensed plethysmographic
5-14 clinician has the documented agreement of a team of not fewer than
5-15 three independent professionals that conducting the assessment is
5-16 appropriate. The rules must require the team, in making the
5-17 determination, to consider the physical, cognitive, emotional, and
5-18 social maturity and the sexual knowledge and experience of the
5-19 person to be assessed. The team must include:
5-20 (1) a licensed psychologist with a doctoral degree in
5-21 clinical child psychology, developmental psychology, or pediatric
5-22 psychiatry;
5-23 (2) a specialist in the treatment of sex offenders;
5-24 and
5-25 (3) a person with experience in working with the
5-26 victims of sex offenses.
5-27 (e) The board by rule shall prohibit a person other than a
6-1 licensed plethysmographic clinician to interpret data derived from
6-2 the use of a penile plethysmograph, assess a person's sexual
6-3 arousal patterns, treat a sex offender, or assist in behavior
6-4 modification.
6-5 (f) The board by rule shall prohibit a plethysmographic
6-6 technician from operating a penile plethysmograph unless the
6-7 technician is under the direct supervision of a licensed
6-8 plethysmographic clinician.
6-9 (g) The board may require periodic inspection of penile
6-10 plethysmographs and facilities in which plethysmographs are used
6-11 for the assessment of sexual arousal patterns to monitor compliance
6-12 with the board's practice rules or rules on equipment disinfection,
6-13 safety, and calibration.
6-14 (h) The board may adopt any other rule on the uses of a
6-15 penile plethysmograph the board considers appropriate.
6-16 SECTION 7. CRIMINAL PENALTY. (a) A person commits an
6-17 offense if the person:
6-18 (1) does not have a license issued under this Act; and
6-19 (2) uses a penile plethysmograph to assess the sexual
6-20 arousal patterns of another person.
6-21 (b) An offense under this section is a Class A misdemeanor.
6-22 SECTION 8. EXCEPTION TO APPLICATION OF ACT. This Act does
6-23 not apply to the use of a penile plethysmograph by a licensed
6-24 physician to diagnose or treat a medical condition.
6-25 SECTION 9. ENFORCEMENT. (a) At the request of the board
6-26 the attorney general may bring suit to enjoin the use of a penile
6-27 plethysmograph in any manner prohibited by this Act or rules
7-1 adopted under this Act.
7-2 (b) The board may deny, suspend, or revoke a license or deny
7-3 the renewal of a license under this Act for any violation of this
7-4 Act or a rule adopted under this Act.
7-5 SECTION 10. AMENDMENT. Subchapter E, Chapter 431, Health
7-6 and Safety Code, is amended by adding Section 431.116 to read as
7-7 follows:
7-8 Sec. 431.116. CERTAIN USES OF PENILE PLETHYSMOGRAPH
7-9 EXEMPTED. (a) To the degree permissible under federal law, the
7-10 board shall exempt from regulation the use by a licensed
7-11 plethysmographic clinician or technician of a penile plethysmograph
7-12 to assess sexual arousal patterns or in behavioral therapy of a sex
7-13 offender.
7-14 (b) The board shall exempt from regulation the use by a
7-15 plethysmographic clinician or technician of a penile plethysmograph
7-16 as a biofeedback device for behavior modification.
7-17 (c) In this section, "penile plethysmograph" means a device
7-18 that measures and records penile tumescence by changes in penile
7-19 volume or in penile circumference.
7-20 SECTION 11. AMENDMENT. Subchapter B, Chapter 43, Penal
7-21 Code, is amended by adding Section 43.27 to read as follows:
7-22 Sec. 43.27. EXCEPTION FOR TREATMENT MATERIALS. It is an
7-23 exception to the application of Sections 43.22, 43.23, 43.24, and
7-24 43.26 if:
7-25 (1) the actor who possessed, promoted, distributed,
7-26 displayed, or exhibited the material was a licensed
7-27 plethysmographic clinician or technician;
8-1 (2) the material was stimulus material designed for
8-2 use in a plethysmographic assessment; and
8-3 (3) the material was in compliance with the rules and
8-4 standards for plethysmographic stimulus materials adopted by the
8-5 Polygraph Examiners Board.
8-6 SECTION 12. APPLICATION OF LICENSURE REQUIREMENTS. (a) The
8-7 requirements of Sections 3 and 4 of this Act that an applicant for
8-8 a plethysmographic clinician or technician license must have
8-9 performed assessments under the supervision of a licensed
8-10 plethysmographic clinician apply only to an application for a
8-11 license filed on or after June 1, 1994.
8-12 (b) The requirements of Sections 3 and 4 of this Act that an
8-13 applicant for a plethysmographic clinician or technician license
8-14 must have successfully completed a course of instruction on the use
8-15 and operation of a penile plethysmograph or on the interpretation
8-16 of plethysmographic information resulting from the use of the
8-17 device do not apply to a person who files an application for a
8-18 license under this Act before June 1, 1994, and who can document
8-19 that the person has either operated the plethysmograph or performed
8-20 at least 10 assessments of sexual response patterns with a penile
8-21 plethysmograph during the 18 months preceding the application date.
8-22 SECTION 13. EFFECTIVE DATE. (a) Except as provided by
8-23 Subsection (b) of this section, this Act takes effect September 1,
8-24 1993.
8-25 (b) Section 7 of this Act takes effect January 1, 1994.
8-26 SECTION 14. EMERGENCY. The importance of this legislation
8-27 and the crowded condition of the calendars in both houses create an
9-1 emergency and an imperative public necessity that the
9-2 constitutional rule requiring bills to be read on three several
9-3 days in each house be suspended, and this rule is hereby suspended.