By Danburg, Naishtat H.B. No. 124
74R741 NSC-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to creating the offense of sexual exploitation by a mental
1-3 health services provider.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 21, Penal Code, is amended by adding
1-6 Section 21.12 to read as follows:
1-7 Sec. 21.12. SEXUAL EXPLOITATION BY MENTAL HEALTH SERVICES
1-8 PROVIDER. (a) In this section:
1-9 (1) "Mental health services" means assessment,
1-10 diagnosis, treatment, or counseling in a professional relationship
1-11 to assist an individual or group in:
1-12 (A) alleviating mental or emotional illness,
1-13 symptoms, conditions, or disorders, including alcohol or drug
1-14 addiction;
1-15 (B) understanding conscious or subconscious
1-16 motivations;
1-17 (C) resolving emotional, attitudinal, or
1-18 relationship conflicts; or
1-19 (D) modifying feelings, attitudes, or behaviors
1-20 that interfere with effective emotional, social, or intellectual
1-21 functioning.
1-22 (2) "Mental health services provider" means an
1-23 individual, licensed or unlicensed, who performs or purports to
1-24 perform mental health services, including a:
2-1 (A) "licensed social worker" as defined by
2-2 Section 50.001, Human Resources Code;
2-3 (B) "chemical dependency counselor" as defined
2-4 by Section 1, Chapter 635, Acts of the 72nd Legislature, Regular
2-5 Session, 1991 (Article 4512o, Vernon's Texas Civil Statutes);
2-6 (C) "licensed professional counselor" as defined
2-7 by Section 2, Licensed Professional Counselor Act (Article 4512g,
2-8 Vernon's Texas Civil Statutes);
2-9 (D) "licensed marriage and family therapist" as
2-10 defined by Section 2, Licensed Marriage and Family Therapist Act
2-11 (Article 4512c-1, Vernon's Texas Civil Statutes);
2-12 (E) member of the clergy;
2-13 (F) "physician" who is "practicing medicine" as
2-14 defined by Section 1.03, Medical Practice Act (Article 4495b,
2-15 Vernon's Texas Civil Statutes); and
2-16 (G) "psychologist" offering "psychological
2-17 services" as defined by Section 2, Psychologists' Certification and
2-18 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes).
2-19 (3) "Patient" means an individual who seeks or obtains
2-20 mental health services.
2-21 (4) "Sexually exploitive behavior" means a pattern,
2-22 practice, or scheme of conduct, which may include sexual contact,
2-23 that can reasonably be construed as being for the purposes of
2-24 sexual arousal or gratification or sexual abuse of any person.
2-25 The term does not include obtaining information about a patient's
2-26 sexual history within standard accepted practice while treating a
2-27 sexual or marital dysfunction.
3-1 (b) A person commits an offense if the person is a mental
3-2 health services provider and intentionally:
3-3 (1) engages in sexual contact with a patient or former
3-4 patient; or
3-5 (2) engages in sexually exploitive behavior with a
3-6 patient or former patient.
3-7 (c) It is not a defense to prosecution under this section
3-8 that the sexual contact or sexually exploitive behavior with the
3-9 patient or former patient occurred:
3-10 (1) with the consent of the patient or former patient;
3-11 (2) outside the therapy or treatment sessions of the
3-12 patient or former patient; or
3-13 (3) off the premises regularly used by the mental
3-14 health services provider for the therapy or treatment sessions of
3-15 the patient or former patient.
3-16 (d) It is a defense to prosecution under this section that
3-17 the former patient was not emotionally dependent on the mental
3-18 health services provider when the sexual contact occurred or the
3-19 sexually exploitive behavior began and the mental health services
3-20 provider terminated psychotherapy with the patient more than two
3-21 years before the date the sexual contact occurred or the sexually
3-22 exploitive behavior began.
3-23 (e) A person is considered emotionally dependent for
3-24 purposes of this section if the nature of the patient's or former
3-25 patient's emotional condition and the nature of the treatment
3-26 provided by the mental health services provider are such that the
3-27 mental health services provider knows or has reason to believe that
4-1 the patient or former patient is unable to withhold consent to the
4-2 sexual contact or the sexually exploitive behavior.
4-3 (f) It is a defense to prosecution under this section that
4-4 the sexual contact is a part of a professionally recognized medical
4-5 treatment of a patient.
4-6 (g) Except as provided by Subsection (h), an offense under
4-7 this section is a felony of the third degree.
4-8 (h) If it is shown on the trial of an offense under this
4-9 section that the defendant has been previously convicted of an
4-10 offense under this section, the offense is a felony of the second
4-11 degree.
4-12 SECTION 2. Section 50.021(a), Human Resources Code, is
4-13 amended to read as follows:
4-14 (a) The board shall revoke or suspend a license or order of
4-15 recognition, place on probation a person whose license or order of
4-16 recognition has been suspended, or reprimand a person with a
4-17 license or order of recognition for any of the following reasons:
4-18 (1) violating a provision of this chapter or a rule of
4-19 the board;
4-20 (2) circumventing or attempting to circumvent this
4-21 chapter or a rule of the board;
4-22 (3) participating, directly or indirectly, in a plan,
4-23 scheme, or arrangement attempting or having as its purpose the
4-24 evasion of this chapter or a rule of the board;
4-25 (4) engaging in unethical conduct;
4-26 (5) engaging in conduct which discredits or tends to
4-27 discredit the profession of social work;
5-1 (6) performing an act, allowing an omission, or making
5-2 an assertion or representation that is fraudulent, deceitful, or
5-3 misleading or that in any manner tends to create a misleading
5-4 impression;
5-5 (7) knowingly associating with or permitting or
5-6 allowing the use of any licensed person's professional services or
5-7 professional identification in a project or enterprise that the
5-8 person knows or with the exercise of reasonable diligence should
5-9 know is a practice that violates this chapter or a rule of the
5-10 board pertaining to the practice of social work;
5-11 (8) knowingly associating with or permitting the use
5-12 of a licensed person's name, professional services, professional
5-13 identification, or endorsement in connection with a venture or
5-14 enterprise that the person knows or with the exercise of reasonable
5-15 diligence should know is a trade, business, or professional
5-16 practice of a fraudulent, deceitful, misleading, or dishonest
5-17 nature;
5-18 (9) revealing, directly or indirectly, or causing to
5-19 be revealed a confidential communication transmitted to the
5-20 licensed person by a client or recipient of his services except as
5-21 may be required by law;
5-22 (10) having a certificate or a license to practice
5-23 social work in another jurisdiction denied, suspended, or revoked
5-24 for reasons or causes the board finds would constitute a violation
5-25 of this chapter or a rule pertaining to the practice of social work
5-26 adopted by the board;
5-27 (11) having been convicted of a felony in an American
6-1 jurisdiction; or
6-2 (12) refusing to do or perform any act or service for
6-3 which the person is licensed under this chapter solely on the basis
6-4 of the recipient's age, sex, race, religion, national origin,
6-5 color, or political affiliation; or
6-6 (13) committing an act in violation of Section 21.12
6-7 <21.14>, Penal Code, or for which liability exists under Chapter
6-8 81, Civil Practice and Remedies Code.
6-9 SECTION 3. Section 23(a), Psychologists' Certification and
6-10 Licensing Act (Article 4512c, Vernon's Texas Civil Statutes), is
6-11 amended to read as follows:
6-12 (a) The Board shall revoke or suspend a license or
6-13 certificate, place on probation a person whose license or
6-14 certificate has been suspended, or reprimand a license or
6-15 certificate holder if the license or certificate holder:
6-16 (1) has been convicted of a felony or of a violation
6-17 of the law involving moral turpitude by any court; the conviction
6-18 of a felony shall be the conviction of any offense which if
6-19 committed within this state would constitute a felony under the
6-20 laws of this state;
6-21 (2) uses drugs or intoxicating liquors to an extent
6-22 that affects his professional competency;
6-23 (3) has been guilty of fraud or deceit in connection
6-24 with his services rendered as a psychologist;
6-25 (4) except as provided by Section 15B of this Act, has
6-26 aided or abetted a person, not a licensed psychologist, in
6-27 representing that person as a psychologist within this state;
7-1 (5) except as provided by Section 15B of this Act, has
7-2 represented himself or herself to be a psychologist licensed in
7-3 this state at a time he or she was not licensed to practice
7-4 psychology in this state, or practiced psychology in this state
7-5 without a license to practice psychology in this state;
7-6 (6) violates a rule adopted by the Board; or
7-7 (7) violates a provision of this Act; or
7-8 (8) has committed an act in violation of Section 21.12
7-9 <21.14>, Penal Code, or for which liability exists under Chapter
7-10 81, Civil Practice and Remedies Code.
7-11 SECTION 4. Section 25(a), Licensed Marriage and Family
7-12 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
7-13 amended to read as follows:
7-14 (a) The board shall suspend or revoke a license, place on
7-15 probation a person whose license has been suspended, or reprimand a
7-16 license holder if the license holder has:
7-17 (1) been convicted of a felony or a misdemeanor
7-18 involving moral turpitude;
7-19 (2) obtained or attempted to obtain registration by
7-20 fraud or deception;
7-21 (3) used drugs or alcohol to an extent that affects
7-22 professional competence;
7-23 (4) been grossly negligent in performing professional
7-24 duties;
7-25 (5) been adjudicated mentally incompetent by a court
7-26 of competent jurisdiction;
7-27 (6) practiced in a manner detrimental to the public
8-1 health or welfare;
8-2 (7) advertised in a manner that tends to deceive or
8-3 defraud the public;
8-4 (8) had a license or certification revoked by a
8-5 licensing agency or by a certifying professional organization;
8-6 (9) otherwise violated this Act or a rule or code of
8-7 ethics adopted under this Act; or
8-8 (10) committed an act in violation of Section 21.12
8-9 <21.14>, Penal Code, or for which liability exists under Chapter
8-10 81, Civil Practice and Remedies Code.
8-11 SECTION 5. Section 16(a), Licensed Professional Counselor
8-12 Act (Article 4512g, Vernon's Texas Civil Statutes), is amended to
8-13 read as follows:
8-14 (a) The board shall revoke, suspend, suspend on an emergency
8-15 basis, or refuse to renew the license of a counselor, place on
8-16 probation a counselor whose license has been suspended, or
8-17 reprimand a counselor if the counselor:
8-18 (1) has committed an act in violation of Section 21.12
8-19 <21.14>, Penal Code, or for which liability exists under Chapter
8-20 81, Civil Practice and Remedies Code;
8-21 (2) has violated this Act or a rule or code of ethics
8-22 adopted by the board;
8-23 (3) is legally committed to an institution because of
8-24 mental incompetence from any cause; or
8-25 (4) <(3)> offers to pay or agrees to accept any
8-26 remuneration, directly or indirectly, to or from any person or
8-27 entity for securing or soliciting a patient or patronage.
9-1 SECTION 6. Section 16, Chapter 635, Acts of the 72nd
9-2 Legislature, Regular Session, 1991 (Article 4512o, Vernon's Texas
9-3 Civil Statutes), is amended to read as follows:
9-4 Sec. 16. License refusal; disciplinary actions. The
9-5 commission may refuse to issue or renew a license, place on
9-6 probation a license holder whose license has been suspended,
9-7 reprimand a license holder, or revoke or suspend a license issued
9-8 under this Act for:
9-9 (1) violating or assisting another to violate this Act
9-10 or a rule of the commission adopted under this Act;
9-11 (2) circumventing or attempting to circumvent this Act
9-12 or a rule of the commission adopted under this Act;
9-13 (3) participating, directly or indirectly, in a plan
9-14 the purpose of which is the evasion of this Act or a rule of the
9-15 commission adopted under this Act;
9-16 (4) engaging in false, misleading, or deceptive
9-17 conduct as defined by Section 17.46, Business & Commerce Code;
9-18 (5) engaging in conduct that discredits or tends to
9-19 discredit the profession of chemical dependency counseling;
9-20 (6) revealing or causing to be revealed, directly or
9-21 indirectly, a confidential communication made to the licensed
9-22 chemical dependency counselor by a client or recipient of services,
9-23 except as required by law;
9-24 (7) having a license to practice chemical dependency
9-25 counseling in another jurisdiction refused, suspended, or revoked
9-26 for a reason that the commission finds would constitute a violation
9-27 of this Act or a commission rule established under this Act;
10-1 (8) refusing to perform an act or service for which
10-2 the person is licensed to perform under this Act on the basis of
10-3 the client's or recipient's age, sex, race, religion, national
10-4 origin, color, or political affiliation; or
10-5 (9) committing an act in violation of Section 21.12
10-6 <21.14>, Penal Code, or for which liability exists under Chapter
10-7 81, Civil Practice and Remedies Code.
10-8 SECTION 7. This Act takes effect September 1, 1995.
10-9 SECTION 8. The importance of this legislation and the
10-10 crowded condition of the calendars in both houses create an
10-11 emergency and an imperative public necessity that the
10-12 constitutional rule requiring bills to be read on three several
10-13 days in each house be suspended, and this rule is hereby suspended.