By: Lucio S.B. No. 1175
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the certification of persons as advocates for victims
1-2 of sexual assault and to confidential communications; providing
1-3 criminal penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 44.003, Health and Safety Code, is
1-6 amended to read as follows:
1-7 Sec. 44.003. Definitions. In this chapter:
1-8 (1) "Advocate" means a person who provides advocacy
1-9 services as an employee or volunteer of a sexual assault program.
1-10 (2) "Program" means a sexual assault program.
1-11 (3) <(2)> "Service" means the Sexual Assault
1-12 Prevention and Crisis Service.
1-13 (4) <(3)> "Sexual assault" means any act or attempted
1-14 act as described by Section 21.11, 22.011, 22.021, or 25.02, Penal
1-15 Code, or a sexual assault in which the spouse of the victim is the
1-16 actor.
1-17 (5) <(4)> "Sexual assault program" means any local
1-18 public or private nonprofit corporation, independent of a law
1-19 enforcement agency or prosecutor's office, that is operated as an
1-20 independent program or as part of a municipal, county, or state
1-21 agency and that provides the minimum services established by this
1-22 chapter.
1-23 (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.
2-22 (a) 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
3-1 advocate certification.
3-2 (b) The minimum standards for recertification of an advocate
3-3 may include continuing education requirements.
3-4 (c) The department shall issue a certificate to an advocate
3-5 who meets the minimum standards for certification adopted by the
3-6 board under this section. A certificate is valid for two years
3-7 after the date of issuance.
3-8 (d) Sections 13-20, Administrative Procedure and Texas
3-9 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), do
3-10 not apply to revocation, suspension, or probation of a sexual
3-11 assault advocate certificate. The department shall conduct
3-12 hearings in accordance with rules adopted by the board. The rules
3-13 must provide for notice to affected parties.
3-14 Sec. 44.054. ACCESS TO CERTAIN CRIMINAL HISTORY RECORD
3-15 INFORMATION. (a) The department is entitled to obtain criminal
3-16 history record information maintained by the Department of Public
3-17 Safety, the Federal Bureau of Investigation identification
3-18 division, or another law enforcement agency to investigate an
3-19 applicant for certification as an advocate.
3-20 (b) The board shall adopt rules governing the custody and
3-21 use of information obtained under this section.
3-22 (c) The department may use information obtained under this
3-23 section only to ascertain the eligibility of an investigated person
3-24 to be certified or to continue to be certified as an advocate.
3-25 (d) The department shall adopt a uniform method of obtaining
4-1 criminal history record information. The uniform method must
4-2 require the department to submit to the Department of Public Safety
4-3 or to another law enforcement agency a complete set of fingerprints
4-4 of the person being investigated. The department may also submit
4-5 the fingerprints to the Federal Bureau of Investigation
4-6 identification division.
4-7 (e) The department may deny certification to an applicant
4-8 who does not provide a complete set of fingerprints on request.
4-9 (f) All information received by the department under this
4-10 section is privileged and confidential and is for the exclusive use
4-11 of the department. Except on court order or with the written
4-12 consent of the person being investigated, the information may not
4-13 be released or otherwise disclosed to any other person or agency.
4-14 (g) After a person is certified as an advocate, the
4-15 department shall seal the criminal history record information
4-16 regarding the person and maintain the information as provided by
4-17 board rule. The department shall destroy the criminal history
4-18 record information of an applicant who is not certified.
4-19 (h) A person commits an offense if the person releases or
4-20 discloses any information received under this section, except as
4-21 provided by Subsection (f). An offense under this subsection is a
4-22 Class B misdemeanor. An offense under this section is an offense
4-23 involving official misconduct.
4-24 Sec. 44.055. TRAINING PROGRAMS. (a) The board by rule may
4-25 adopt minimum standards for:
5-1 (1) the approval of training programs for advocates
5-2 and the revocation, suspension, or probation of an approval; and
5-3 (2) the approval of instructors and the revocation,
5-4 suspension, or probation of the approval.
5-5 (b) Sections 13-20, Administrative Procedure and Texas
5-6 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), do
5-7 not apply to the denial of approval, approval, revocation,
5-8 suspension, or probation of a training program. The department
5-9 shall conduct a hearing in accordance with rules adopted by the
5-10 board. The rules must provide for notice to an affected party.
5-11 SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
5-12 Sec. 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A
5-13 communication between a certified advocate and a survivor, or a
5-14 person claiming to be a survivor, that is made in the course of
5-15 providing sexual assault advocacy services to the survivor is
5-16 confidential and privileged and may not be disclosed except as
5-17 provided by this subchapter.
5-18 (b) A record of the identity, personal history, background
5-19 information, or information concerning the victimization of a
5-20 survivor that is created by or provided to an advocate or
5-21 maintained by a sexual assault program is confidential and
5-22 privileged and may not be disclosed except as provided by this
5-23 subchapter.
5-24 (c) A person who receives information from a confidential
5-25 communication or record as described by this subchapter may not
6-1 disclose the information except to the extent that disclosure is
6-2 consistent with the authorized purposes for which the information
6-3 was obtained.
6-4 (d) This subchapter governs a confidential communication or
6-5 record concerning a survivor regardless of when the survivor
6-6 received the services of an advocate or sexual assault program.
6-7 (e) Notwithstanding Rule 501, Texas Rules of Criminal
6-8 Evidence, and Rule 501, Texas Rules of Civil Evidence, the
6-9 privilege of confidentiality may be claimed in a criminal, civil,
6-10 or administrative proceeding and may be claimed by the survivor or
6-11 an advocate acting on the survivor's behalf.
6-12 (f) If the advocate claims the privilege of confidentiality
6-13 on behalf of the survivor, the authority to do so is presumed in
6-14 the absence of evidence to the contrary.
6-15 Sec. 44.072. EXCEPTIONS. (a) Communications or records
6-16 that are privileged under this subchapter may be disclosed in court
6-17 or in an administrative proceeding if:
6-18 (1) the proceeding is brought by the survivor against
6-19 an advocate or a sexual assault program or is a criminal or
6-20 certification revocation proceeding in which disclosure is relevant
6-21 to the claims or defense of an advocate or a sexual assault
6-22 program; or
6-23 (2) the survivor or a person authorized to act on
6-24 behalf of the survivor submits a written consent to the release of
6-25 the confidential information in accordance with Section 44.073.
7-1 (b) Communications and records that are confidential under
7-2 this subchapter may be disclosed only to:
7-3 (1) medical or law enforcement personnel if the
7-4 advocate determines that there is a probability of imminent
7-5 physical danger to any person or if there is a probability of
7-6 immediate mental or emotional injury to the survivor;
7-7 (2) a governmental agency if the disclosure is
7-8 required or authorized by law;
7-9 (3) a qualified person to the extent necessary for
7-10 management audits, financial audits, program evaluation, or
7-11 research, except that any report of the research, audit, or
7-12 evaluation may not directly or indirectly identify a survivor;
7-13 (4) a person who has the written consent of the
7-14 survivor or of a person authorized to act on the survivor's behalf
7-15 in accordance with Section 44.073; or
7-16 (5) other certified advocates and personnel under the
7-17 direction of a counseling supervisor who is participating in the
7-18 evaluation or counseling of or advocacy for the survivor.
7-19 Sec. 44.073. CONSENT. (a) Consent for the release of
7-20 confidential information must be in writing and signed by the
7-21 survivor, a parent or legal guardian if the survivor is a minor, a
7-22 legal guardian if the survivor has been adjudicated incompetent to
7-23 manage the survivor's personal affairs, an attorney ad litem
7-24 appointed for the survivor, or a personal representative if the
7-25 survivor is deceased. The written consent must specify:
8-1 (1) the information or records to be covered by the
8-2 release;
8-3 (2) the reasons or purpose for the release; and
8-4 (3) the person to whom the information is to be
8-5 released.
8-6 (b) The survivor or other person authorized to consent may
8-7 withdraw consent to the release of any information by submitting a
8-8 written notice of withdrawal to the person or program to which
8-9 consent was provided. Withdrawal of consent does not affect any
8-10 information disclosed before the date on which written notice of
8-11 the withdrawal was received.
8-12 (c) A person who receives information made confidential by
8-13 this chapter may not disclose the information except to the extent
8-14 that disclosure is consistent with the authorized purposes for
8-15 which the person obtained the information.
8-16 Sec. 44.074. PENALTY. A person commits an offense if the
8-17 person intentionally or knowingly discloses a communication or
8-18 record that is confidential under this chapter, except as provided
8-19 by this chapter. An offense under this section is a Class C
8-20 misdemeanor.
8-21 SECTION 3. This Act takes effect September 1, 1995.
8-22 SECTION 4. The importance of this legislation and the
8-23 crowded condition of the calendars in both houses create an
8-24 emergency and an imperative public necessity that the
8-25 constitutional rule requiring bills to be read on three several
9-1 days in each house be suspended, and this rule is hereby suspended.