By McCall H.B. No. 47
74R60(1) CLG
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the testing of a person arrested for certain sexual
1-3 offenses for AIDS, HIV infection, or related conditions.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 15, Code of Criminal Procedure, is
1-6 amended by adding Article 15.171 to read as follows:
1-7 Art. 15.171. TESTING FOR AIDS, HIV INFECTION, OR RELATED
1-8 CONDITIONS. (a) The victim of a person who is arrested for an
1-9 offense under Section 21.11(a)(1), 22.011, or 22.021, Penal Code,
1-10 may make a written request to the Texas Department of Health or a
1-11 health authority to order the person to undergo a medical procedure
1-12 or test designed to show or help show whether the person has:
1-13 (1) a sexually transmitted disease;
1-14 (2) AIDS;
1-15 (3) HIV infection;
1-16 (4) antibodies to HIV; or
1-17 (5) infection with any other probable causative agent
1-18 of AIDS.
1-19 (b) Not later than the 10th day after the date a request is
1-20 made under Subsection (a), the department, the health authority, or
1-21 a designated representative of the department or health authority
1-22 shall give the person who is subject to the order prompt and
1-23 confidential written notice of the order. The order must:
1-24 (1) state the grounds and provisions of the order,
2-1 including the factual basis for its issuance;
2-2 (2) refer the person to appropriate health care
2-3 facilities where the person can undergo the medical procedure or
2-4 test referred to in Subsection (a); and
2-5 (3) inform the person who is subject to the order of
2-6 the person's right to refuse to be tested and the authority of the
2-7 department or health authority to ask for a court order requiring
2-8 the medical procedure or test.
2-9 (c) If the person who is subject to the order refuses to
2-10 comply, the prosecuting attorney who represents the state in
2-11 district court, on request of the department, the health authority,
2-12 or a designated representative of the department or health
2-13 authority, shall petition the district court for a hearing on the
2-14 order. The person who is subject to the order has the right to an
2-15 attorney at the hearing, and the court shall appoint an attorney
2-16 for a person who cannot afford legal representation. The person
2-17 may not waive the right to an attorney unless the person has
2-18 consulted with an attorney.
2-19 (d) The attorney for the state and the attorney for the
2-20 person subject to the order may introduce evidence at the hearing
2-21 in support of or in opposition to the testing of the person. On
2-22 conclusion of the hearing, the court shall either issue an
2-23 appropriate order requiring counseling and testing of the person
2-24 for the conditions described by Subsection (a) or refuse to issue
2-25 the order if the court has determined that the counseling and
2-26 testing of the person is unnecessary. If the court issues an order
2-27 requiring testing, the person who is subject to the order shall pay
3-1 for the cost of the medical procedure or test as court costs. The
3-2 court may assess court costs against the person who requested the
3-3 procedure or test if the court finds that there was not reasonable
3-4 cause for the request.
3-5 (e) The department, the health authority, or a designated
3-6 representative of the department or health authority shall inform
3-7 the person who requested the order of the results of the procedure
3-8 or test. If the person subject to the order is found to have a
3-9 condition described by Subsection (a), the department, health
3-10 authority, or designated representative shall inform that person
3-11 and the person who requested the order of the need for medical
3-12 follow-up and counseling services. The department, health
3-13 authority, or designated representative shall develop protocols for
3-14 coding test specimens to ensure that any identifying information
3-15 concerning the person tested will be destroyed as soon as the
3-16 testing is complete.
3-17 (f) Counseling and testing for HIV conducted under this
3-18 article must conform to the model protocol on HIV counseling and
3-19 testing prescribed by the department.
3-20 (g) The state may not use the fact that a medical procedure
3-21 or test was performed on a person under this article or use the
3-22 results of the procedure or test in any criminal proceeding arising
3-23 out of the alleged offense.
3-24 (h) In this article:
3-25 (1) "AIDS" has the meaning assigned by Section 81.101,
3-26 Health and Safety Code.
3-27 (2) "Department" means the Texas Department of Health.
4-1 (3) "Health authority" has the meaning assigned by
4-2 Section 81.003, Health and Safety Code.
4-3 (4) "HIV" has the meaning assigned by Section 81.101,
4-4 Health and Safety Code.
4-5 (5) "Test result" has the meaning assigned by Section
4-6 81.101, Health and Safety Code.
4-7 SECTION 2. Section 81.102(a), Health and Safety Code, is
4-8 amended to read as follows:
4-9 (a) A person may not require another person to undergo a
4-10 medical procedure or test designed to determine or help determine
4-11 if a person has AIDS or HIV infection, antibodies to HIV, or
4-12 infection with any other probable causative agent of AIDS unless:
4-13 (1) the medical procedure or test is required under
4-14 Subsection (d), under Section 81.050, or under Article 15.171
4-15 <21.31>, Code of Criminal Procedure;
4-16 (2) the medical procedure or test is authorized under
4-17 Article 21.21-4, Insurance Code;
4-18 (3) a medical procedure is to be performed on the
4-19 person that could expose health care personnel to AIDS or HIV
4-20 infection, according to board guidelines defining the conditions
4-21 that constitute possible exposure to AIDS or HIV infection, and
4-22 there is sufficient time to receive the test result before the
4-23 procedure is conducted; or
4-24 (4) the medical procedure or test is necessary:
4-25 (A) as a bona fide occupational qualification
4-26 and there is not a less discriminatory means of satisfying the
4-27 occupational qualification;
5-1 (B) to screen blood, blood products, body
5-2 fluids, organs, or tissues to determine suitability for donation;
5-3 (C) in relation to a particular person under
5-4 this chapter;
5-5 (D) to manage accidental exposure to blood or
5-6 other body fluids, but only if the test is conducted under written
5-7 infectious disease control protocols adopted by the health care
5-8 agency or facility;
5-9 (E) to test residents and clients of residential
5-10 facilities of the Texas Department of Mental Health and Mental
5-11 Retardation, but only if:
5-12 (i) the test result would change the
5-13 medical or social management of the person tested or others who
5-14 associated with that person; and
5-15 (ii) the test is conducted in accordance
5-16 with guidelines adopted by the residential facility or the Texas
5-17 Department of Mental Health and Mental Retardation and approved by
5-18 the department; or
5-19 (F) to test residents and clients of residential
5-20 facilities of the Texas Youth Commission, but only if:
5-21 (i) the test result would change the
5-22 medical or social management of the person tested or others who
5-23 associate with that person; and
5-24 (ii) the test is conducted in accordance
5-25 with guidelines adopted by the Texas Youth Commission.
5-26 SECTION 3. Sections 81.103(b) and (c), Health and Safety
5-27 Code, are amended to read as follows:
6-1 (b) A test result may be released to:
6-2 (1) the department under this chapter;
6-3 (2) a local health authority if reporting is required
6-4 under this chapter;
6-5 (3) the Centers for Disease Control of the United
6-6 States Public Health Service if reporting is required by federal
6-7 law or regulation;
6-8 (4) the physician or other person authorized by law
6-9 who ordered the test;
6-10 (5) a physician, nurse, or other health care personnel
6-11 who have a legitimate need to know the test result in order to
6-12 provide for their protection and to provide for the patient's
6-13 health and welfare;
6-14 (6) the person tested or a person legally authorized
6-15 to consent to the test on the person's behalf;
6-16 (7) the spouse of the person tested if the person
6-17 tests positive for AIDS or HIV infection, antibodies to HIV, or
6-18 infection with any other probable causative agent of AIDS;
6-19 (8) a person authorized to receive test results under
6-20 Article 15.171 <21.31>, Code of Criminal Procedure, concerning a
6-21 person who is tested as required or authorized under that article;
6-22 and
6-23 (9) a person exposed to HIV infection as provided by
6-24 Section 81.050.
6-25 (c) A <The> court that orders testing under Article 15.171,
6-26 Code of Criminal Procedure, shall notify persons receiving test
6-27 results under Subsection (b)(8) of the requirements of this
7-1 section.
7-2 SECTION 4. Article 21.31, Code of Criminal Procedure, and
7-3 Section 81.094, Health and Safety Code, are repealed.
7-4 SECTION 5. This Act takes effect September 1, 1995.
7-5 SECTION 6. (a) The change in law made by this Act applies
7-6 only to an offense committed on or after the effective date of this
7-7 Act. For the purposes of this section, an offense is committed
7-8 before the effective date of this Act if any element of the offense
7-9 occurs before the effective date.
7-10 (b) An offense committed before the effective date of this
7-11 Act is covered by the law in effect when the offense was committed,
7-12 and the former law is continued in effect for that purpose.
7-13 SECTION 7. The importance of this legislation and the
7-14 crowded condition of the calendars in both houses create an
7-15 emergency and an imperative public necessity that the
7-16 constitutional rule requiring bills to be read on three several
7-17 days in each house be suspended, and this rule is hereby suspended.