By: Lucio S.B. No. 1175
A BILL TO BE ENTITLED
AN ACT
1-1 relating to advocates for survivors of sexual assault and to
1-2 confidential communications; providing a criminal penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 44.003, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Sec. 44.003. Definitions. In this chapter:
1-7 (1) "Advocate" means a person who provides advocacy
1-8 services as an employee or volunteer of a sexual assault program.
1-9 (2) "Program" means a sexual assault program.
1-10 (3) <(2)> "Service" means the Sexual Assault
1-11 Prevention and Crisis Service.
1-12 (4) <(3)> "Sexual assault" means any act or attempted
1-13 act as described by Section 21.11, 22.011, 22.021, or 25.02, Penal
1-14 Code, or a sexual assault in which the spouse of the victim is the
1-15 actor.
1-16 (5) <(4)> "Sexual assault program" means any local
1-17 public or private nonprofit corporation, independent of a law
1-18 enforcement agency or prosecutor's office, that is operated as an
1-19 independent program or as part of a municipal, county, or state
1-20 agency and that provides the minimum services established by this
1-21 chapter.
1-22 (6) <(5)> "Survivor" means an individual who is a
1-23 victim of a sexual assault, regardless of whether a report or
2-1 conviction is made in the incident.
2-2 SECTION 2. Chapter 44, Health and Safety Code, is amended by
2-3 adding Subchapters C and D to read as follows:
2-4 SUBCHAPTER C. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT
2-5 Sec. 44.051. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT. An
2-6 individual may act as an advocate for survivors of sexual assault
2-7 if the individual is determined by the department as minimally
2-8 competent to be an advocate for survivors of sexual assault and:
2-9 (1) is employed by a certified sexual assault program;
2-10 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. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION.
2-14 A certified sexual assault program is entitled to obtain from the
2-15 Department of Public Safety of the State of Texas criminal history
2-16 record information that relates to a person who is an employee, an
2-17 employee applicant, an advocate, or an advocate applicant of the
2-18 program in the same manner as a volunteer center may obtain that
2-19 information under Section 411.126, Government Code.
2-20 Sec. 44.053. CERTIFICATION OF TRAINING PROGRAMS. (a) The
2-21 board by rule may adopt minimum standards for certifying training
2-22 programs for advocates and for the revocation, suspension, or
2-23 probation of a certification issued under this section.
2-24 (b) Subchapters C through G, Chapter 2001, Government Code,
2-25 do not apply to the denial of approval, approval, revocation,
3-1 suspension, or placement on probation of a training program. The
3-2 department shall conduct a hearing in accordance with rules adopted
3-3 by the board. The rules must provide for notice to an affected
3-4 party.
3-5 (Sections 44.054 to 44.070 reserved for expansion
3-6 SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
3-7 Sec. 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A
3-8 communication between an advocate and a survivor, or a person
3-9 claiming to be a survivor, that is made in the course of providing
3-10 sexual assault advocacy services to the survivor is confidential
3-11 and privileged and may not be disclosed except as provided by this
3-12 subchapter.
3-13 (b) A record of the identity, personal history, or
3-14 background information of a survivor or information concerning the
3-15 victimization of a survivor that is created by or provided to an
3-16 advocate or maintained by a sexual assault program is confidential
3-17 and privileged and may not be disclosed except as provided by this
3-18 subchapter.
3-19 (c) A person who receives information from a confidential
3-20 communication or record as described by this subchapter may not
3-21 disclose the information except to the extent that disclosure is
3-22 consistent with the authorized purposes for which the information
3-23 was obtained.
3-24 (d) This subchapter governs a confidential communication or
3-25 record concerning a survivor regardless of when the survivor
4-1 received the services of an advocate or sexual assault program.
4-2 (e) Notwithstanding Rule 501, Texas Rules of Criminal
4-3 Evidence, and Rule 501, Texas Rules of Civil Evidence, the
4-4 privilege of confidentiality may be claimed in a criminal, civil,
4-5 or administrative proceeding and may be claimed by the survivor or
4-6 an advocate acting on the survivor's behalf.
4-7 (f) If an advocate claims the privilege of confidentiality
4-8 on behalf of a survivor, the authority to do so is presumed to
4-9 exist in the absence of evidence to the contrary.
4-10 Sec. 44.072. EXCEPTIONS. (a) A communication or record
4-11 that is privileged under this subchapter may be disclosed in court
4-12 or in an administrative proceeding if:
4-13 (1) the proceeding is brought by the survivor against
4-14 an advocate or a sexual assault program or is a criminal proceeding
4-15 or a certification revocation proceeding in which disclosure is
4-16 relevant to the claims or defense of the advocate or sexual assault
4-17 program; or
4-18 (2) the survivor or a person authorized to act on
4-19 behalf of the survivor consents in writing to the release of the
4-20 confidential information as provided by Section 44.073.
4-21 (b) A communication or record that is confidential under
4-22 this subchapter may be disclosed only to:
4-23 (1) medical or law enforcement personnel if the
4-24 advocate determines that there is a probability of imminent
4-25 physical danger to any person for whom the communication or record
5-1 is relevant or if there is a probability of immediate mental or
5-2 emotional injury to the survivor;
5-3 (2) a governmental agency if the disclosure is
5-4 required or authorized by law;
5-5 (3) a qualified person to the extent necessary for a
5-6 management audit, financial audit, program evaluation, or research,
5-7 except that a report of the research, audit, or evaluation may not
5-8 directly or indirectly identify a survivor;
5-9 (4) a person who has the written consent of the
5-10 survivor or of a person authorized to act on the survivor's behalf
5-11 as provided by Section 44.073; or
5-12 (5) an advocate or a person under the supervision of a
5-13 counseling supervisor who is participating in the evaluation or
5-14 counseling of or advocacy for the survivor.
5-15 (c) A communication or record that is confidential under
5-16 this subchapter may not be disclosed to a parent or legal guardian
5-17 of a survivor who is a minor if an advocate or a sexual assault
5-18 program knows or has reason to believe that the parent or legal
5-19 guardian of the survivor is a suspect in the sexual assault of the
5-20 survivor.
5-21 Sec. 44.073. CONSENT. (a) Consent for the release of
5-22 confidential information must be in writing and signed by the
5-23 survivor, a parent or legal guardian if the survivor is a minor, a
5-24 legal guardian if the survivor has been adjudicated incompetent to
5-25 manage the survivor's personal affairs, an attorney ad litem
6-1 appointed for the survivor, or a personal representative if the
6-2 survivor is deceased. The written consent must specify:
6-3 (1) the information or records covered by the release;
6-4 (2) the reason or purpose for the release; and
6-5 (3) the person to whom the information is to be
6-6 released.
6-7 (b) A survivor or other person authorized to consent may
6-8 withdraw consent to the release of information by submitting a
6-9 written notice of withdrawal to the person or program to which
6-10 consent was provided. Withdrawal of consent does not affect
6-11 information disclosed before the date written notice of the
6-12 withdrawal was received.
6-13 (c) A person who receives information made confidential by
6-14 this chapter may not disclose the information except to the extent
6-15 that disclosure is consistent with the authorized purposes for
6-16 which the person obtained the information.
6-17 Sec. 44.074. OFFENSE. A person commits an offense if the
6-18 person intentionally or knowingly discloses a communication or
6-19 record that is confidential under this chapter, except as provided
6-20 by this chapter. An offense under this section is a Class C
6-21 misdemeanor.
6-22 SECTION 3. This Act takes effect September 1, 1995.
6-23 SECTION 4. The importance of this legislation and the
6-24 crowded condition of the calendars in both houses create an
6-25 emergency and an imperative public necessity that the
7-1 constitutional rule requiring bills to be read on three several
7-2 days in each house be suspended, and this rule is hereby suspended.