1-1 By: Lucio S.B. No. 1175
1-2 (In the Senate - Filed March 9, 1995; March 15, 1995, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 27, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; April 27, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1175 By: Madla
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to advocates for survivors of sexual assault and to
1-11 confidential communications; providing a criminal penalty.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Section 44.003, Health and Safety Code, is
1-14 amended to read as follows:
1-15 Sec. 44.003. Definitions. In this chapter:
1-16 (1) "Advocate" means a person who provides advocacy
1-17 services as an employee or volunteer of a sexual assault program.
1-18 (2) "Program" means a sexual assault program.
1-19 (3) <(2)> "Service" means the Sexual Assault
1-20 Prevention and Crisis Service.
1-21 (4) <(3)> "Sexual assault" means any act or attempted
1-22 act as described by Section 21.11, 22.011, 22.021, or 25.02, Penal
1-23 Code, or a sexual assault in which the spouse of the victim is the
1-24 actor.
1-25 (5) <(4)> "Sexual assault program" means any local
1-26 public or private nonprofit corporation, independent of a law
1-27 enforcement agency or prosecutor's office, that is operated as an
1-28 independent program or as part of a municipal, county, or state
1-29 agency and that provides the minimum services established by this
1-30 chapter.
1-31 (6) <(5)> "Survivor" means an individual who is a
1-32 victim of a sexual assault, regardless of whether a report or
1-33 conviction is made in the incident.
1-34 SECTION 2. Chapter 44, Health and Safety Code, is amended by
1-35 adding Subchapters C and D to read as follows:
1-36 SUBCHAPTER C. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT
1-37 Sec. 44.051. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT. An
1-38 individual may act as an advocate for survivors of sexual assault
1-39 if the individual is determined by the department as minimally
1-40 competent to be an advocate for survivors of sexual assault and:
1-41 (1) is employed by a certified sexual assault program;
1-42 or
1-43 (2) provides services through a sexual assault program
1-44 as a volunteer under the supervision of an advocate.
1-45 Sec. 44.052. ACCESS TO CRIMINAL HISTORY RECORD INFORMATION.
1-46 A certified sexual assault program is entitled to obtain from the
1-47 Department of Public Safety of the State of Texas criminal history
1-48 record information that relates to a person who is an employee, an
1-49 employee applicant, an advocate, or an advocate applicant of the
1-50 program in the same manner as a volunteer center may obtain that
1-51 information under Section 411.126, Government Code.
1-52 Sec. 44.053. CERTIFICATION OF TRAINING PROGRAMS. (a) The
1-53 board by rule may adopt minimum standards for certifying training
1-54 programs for advocates and for the revocation, suspension, or
1-55 probation of a certification issued under this section.
1-56 (b) Subchapters C through G, Chapter 2001, Government Code,
1-57 do not apply to the denial of approval, approval, revocation,
1-58 suspension, or placement on probation of a training program. The
1-59 department shall conduct a hearing in accordance with rules adopted
1-60 by the board. The rules must provide for notice to an affected
1-61 party.
1-62 (Sections 44.054 to 44.070 reserved for expansion
1-63 SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
1-64 Sec. 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A
1-65 communication between an advocate and a survivor, or a person
1-66 claiming to be a survivor, that is made in the course of providing
1-67 sexual assault advocacy services to the survivor is confidential
1-68 and privileged and may not be disclosed except as provided by this
2-1 subchapter.
2-2 (b) A record of the identity, personal history, or
2-3 background information of a survivor or information concerning the
2-4 victimization of a survivor that is created by or provided to an
2-5 advocate or maintained by a sexual assault program is confidential
2-6 and privileged and may not be disclosed except as provided by this
2-7 subchapter.
2-8 (c) A person who receives information from a confidential
2-9 communication or record as described by this subchapter may not
2-10 disclose the information except to the extent that disclosure is
2-11 consistent with the authorized purposes for which the information
2-12 was obtained.
2-13 (d) This subchapter governs a confidential communication or
2-14 record concerning a survivor regardless of when the survivor
2-15 received the services of an advocate or sexual assault program.
2-16 (e) Notwithstanding Rule 501, Texas Rules of Criminal
2-17 Evidence, and Rule 501, Texas Rules of Civil Evidence, the
2-18 privilege of confidentiality may be claimed in a criminal, civil,
2-19 or administrative proceeding and may be claimed by the survivor or
2-20 an advocate acting on the survivor's behalf.
2-21 (f) If an advocate claims the privilege of confidentiality
2-22 on behalf of a survivor, the authority to do so is presumed to
2-23 exist in the absence of evidence to the contrary.
2-24 Sec. 44.072. EXCEPTIONS. (a) A communication or record
2-25 that is privileged under this subchapter may be disclosed in court
2-26 or in an administrative proceeding if:
2-27 (1) the proceeding is brought by the survivor against
2-28 an advocate or a sexual assault program or is a criminal proceeding
2-29 or a certification revocation proceeding in which disclosure is
2-30 relevant to the claims or defense of the advocate or sexual assault
2-31 program; or
2-32 (2) the survivor or a person authorized to act on
2-33 behalf of the survivor consents in writing to the release of the
2-34 confidential information as provided by Section 44.073.
2-35 (b) A communication or record that is confidential under
2-36 this subchapter may be disclosed only to:
2-37 (1) medical or law enforcement personnel if the
2-38 advocate determines that there is a probability of imminent
2-39 physical danger to any person for whom the communication or record
2-40 is relevant or if there is a probability of immediate mental or
2-41 emotional injury to the survivor;
2-42 (2) a governmental agency if the disclosure is
2-43 required or authorized by law;
2-44 (3) a qualified person to the extent necessary for a
2-45 management audit, financial audit, program evaluation, or research,
2-46 except that a report of the research, audit, or evaluation may not
2-47 directly or indirectly identify a survivor;
2-48 (4) a person who has the written consent of the
2-49 survivor or of a person authorized to act on the survivor's behalf
2-50 as provided by Section 44.073; or
2-51 (5) an advocate or a person under the supervision of a
2-52 counseling supervisor who is participating in the evaluation or
2-53 counseling of or advocacy for the survivor.
2-54 (c) A communication or record that is confidential under
2-55 this subchapter may not be disclosed to a parent or legal guardian
2-56 of a survivor who is a minor if an advocate or a sexual assault
2-57 program knows or has reason to believe that the parent or legal
2-58 guardian of the survivor is a suspect in the sexual assault of the
2-59 survivor.
2-60 Sec. 44.073. CONSENT. (a) Consent for the release of
2-61 confidential information must be in writing and signed by the
2-62 survivor, a parent or legal guardian if the survivor is a minor, a
2-63 legal guardian if the survivor has been adjudicated incompetent to
2-64 manage the survivor's personal affairs, an attorney ad litem
2-65 appointed for the survivor, or a personal representative if the
2-66 survivor is deceased. The written consent must specify:
2-67 (1) the information or records covered by the release;
2-68 (2) the reason or purpose for the release; and
2-69 (3) the person to whom the information is to be
2-70 released.
3-1 (b) A survivor or other person authorized to consent may
3-2 withdraw consent to the release of information by submitting a
3-3 written notice of withdrawal to the person or program to which
3-4 consent was provided. Withdrawal of consent does not affect
3-5 information disclosed before the date written notice of the
3-6 withdrawal was received.
3-7 (c) A person who receives information made confidential by
3-8 this chapter may not disclose the information except to the extent
3-9 that disclosure is consistent with the authorized purposes for
3-10 which the person obtained the information.
3-11 Sec. 44.074. OFFENSE. A person commits an offense if the
3-12 person intentionally or knowingly discloses a communication or
3-13 record that is confidential under this chapter, except as provided
3-14 by this chapter. An offense under this section is a Class C
3-15 misdemeanor.
3-16 SECTION 3. This Act takes effect September 1, 1995.
3-17 SECTION 4. The importance of this legislation and the
3-18 crowded condition of the calendars in both houses create an
3-19 emergency and an imperative public necessity that the
3-20 constitutional rule requiring bills to be read on three several
3-21 days in each house be suspended, and this rule is hereby suspended.
3-22 * * * * *