By McCall H.B. No. 42
75R581 PEP-D
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 issue an order of the department or health authority and
1-23 shall give the person who is subject to the order prompt and
1-24 confidential written notice of the order. The order must:
2-1 (1) state the grounds and provisions of the order,
2-2 including the factual basis for its issuance;
2-3 (2) refer the person to appropriate health care
2-4 facilities where the person can undergo the medical procedure or
2-5 test referred to in Subsection (a); and
2-6 (3) inform the person who is subject to the order of:
2-7 (A) the person's right to refuse to be tested;
2-8 and
2-9 (B) the authority of the department or health
2-10 authority to request a court order requiring the medical procedure
2-11 or test.
2-12 (c) If the person who is subject to the order of the
2-13 department or health authority refuses to comply, the prosecuting
2-14 attorney who represents the state in district court, on request of
2-15 the department, the health authority, or a designated
2-16 representative of the department or health authority, shall
2-17 petition the district court for a hearing on the order. The person
2-18 who is subject to the order has the right to an attorney at the
2-19 hearing, and the court shall appoint an attorney for a person who
2-20 cannot afford legal representation. The person may waive the right
2-21 to an attorney only if the person consulted with an attorney before
2-22 waiving that right.
2-23 (d) The attorney for the state and the attorney for the
2-24 person subject to the order of the department or health authority
2-25 may introduce evidence at the hearing in support of or in
2-26 opposition to the order. On conclusion of the hearing, the court
2-27 shall either issue an appropriate order requiring counseling and
3-1 testing of the person for the conditions described by Subsection
3-2 (a) or refuse to issue an order if the court has determined that
3-3 the counseling and testing of the person is unnecessary. If the
3-4 court issues an order requiring testing, the person who is subject
3-5 to the court order shall pay for the cost of the medical procedure
3-6 or test as court costs. The court may assess court costs against
3-7 the person who requested the order of the department or health
3-8 authority if the court finds that there was not reasonable cause
3-9 for that request.
3-10 (e) The department, the health authority, or a designated
3-11 representative of the department or health authority shall inform
3-12 the person who requested the department or health authority to
3-13 order a procedure or test of the results of each procedure or test
3-14 conducted as a direct result of that request. If a person who
3-15 undergoes a procedure or test under this article is found to have a
3-16 condition described by Subsection (a), the department, health
3-17 authority, or designated representative shall inform that person
3-18 and the person who requested the department or health authority to
3-19 order a procedure or test of the need for medical follow-up and
3-20 counseling services. The department, health authority, or
3-21 designated representative shall develop protocols for coding test
3-22 specimens to ensure that any identifying information concerning the
3-23 person tested will be destroyed as soon as the testing is complete.
3-24 (f) Counseling and testing for HIV conducted under this
3-25 article must conform to the model protocol on HIV counseling and
3-26 testing prescribed by the department.
3-27 (g) The state may not use the fact that a medical procedure
4-1 or test was performed on a person under this article or use the
4-2 results of the procedure or test in a criminal proceeding arising
4-3 out of the alleged offense.
4-4 (h) In this article:
4-5 (1) "AIDS" has the meaning assigned by Section 81.101,
4-6 Health and Safety Code.
4-7 (2) "Department" means the Texas Department of Health.
4-8 (3) "Health authority" has the meaning assigned by
4-9 Section 81.003, Health and Safety Code.
4-10 (4) "HIV" has the meaning assigned by Section 81.101,
4-11 Health and Safety Code.
4-12 (5) "Test result" has the meaning assigned by Section
4-13 81.101, Health and Safety Code.
4-14 SECTION 2. Section 81.102(a), Health and Safety Code, is
4-15 amended to read as follows:
4-16 (a) A person may not require another person to undergo a
4-17 medical procedure or test designed to determine or help determine
4-18 if a person has AIDS or HIV infection, antibodies to HIV, or
4-19 infection with any other probable causative agent of AIDS unless:
4-20 (1) the medical procedure or test is required under
4-21 Subsection (d), under Section 81.050, or under Article 15.171
4-22 [21.31], Code of Criminal Procedure;
4-23 (2) the medical procedure or test is required under
4-24 Section 81.090, and no objection has been made under Section
4-25 81.090(l);
4-26 (3) the medical procedure or test is authorized under
4-27 Article 21.21-4, Insurance Code;
5-1 (4) a medical procedure is to be performed on the
5-2 person that could expose health care personnel to AIDS or HIV
5-3 infection, according to board guidelines defining the conditions
5-4 that constitute possible exposure to AIDS or HIV infection, and
5-5 there is sufficient time to receive the test result before the
5-6 procedure is conducted; or
5-7 (5) the medical procedure or test is necessary:
5-8 (A) as a bona fide occupational qualification
5-9 and there is not a less discriminatory means of satisfying the
5-10 occupational qualification;
5-11 (B) to screen blood, blood products, body
5-12 fluids, organs, or tissues to determine suitability for donation;
5-13 (C) in relation to a particular person under
5-14 this chapter;
5-15 (D) to manage accidental exposure to blood or
5-16 other body fluids, but only if the test is conducted under written
5-17 infectious disease control protocols adopted by the health care
5-18 agency or facility;
5-19 (E) to test residents and clients of residential
5-20 facilities of the Texas Department of Mental Health and Mental
5-21 Retardation, but only if:
5-22 (i) the test result would change the
5-23 medical or social management of the person tested or others who
5-24 associated with that person; and
5-25 (ii) the test is conducted in accordance
5-26 with guidelines adopted by the residential facility or the Texas
5-27 Department of Mental Health and Mental Retardation and approved by
6-1 the department; or
6-2 (F) to test residents and clients of residential
6-3 facilities of the Texas Youth Commission, but only if:
6-4 (i) the test result would change the
6-5 medical or social management of the person tested or others who
6-6 associate with that person; and
6-7 (ii) the test is conducted in accordance
6-8 with guidelines adopted by the Texas Youth Commission.
6-9 SECTION 3. Sections 81.103(b) and (c), Health and Safety
6-10 Code, are amended to read as follows:
6-11 (b) A test result may be released to:
6-12 (1) the department under this chapter;
6-13 (2) a local health authority if reporting is required
6-14 under this chapter;
6-15 (3) the Centers for Disease Control of the United
6-16 States Public Health Service if reporting is required by federal
6-17 law or regulation;
6-18 (4) the physician or other person authorized by law
6-19 who ordered the test;
6-20 (5) a physician, nurse, or other health care personnel
6-21 who have a legitimate need to know the test result in order to
6-22 provide for their protection and to provide for the patient's
6-23 health and welfare;
6-24 (6) the person tested or a person legally authorized
6-25 to consent to the test on the person's behalf;
6-26 (7) the spouse of the person tested if the person
6-27 tests positive for AIDS or HIV infection, antibodies to HIV, or
7-1 infection with any other probable causative agent of AIDS;
7-2 (8) a person authorized to receive test results under
7-3 Article 15.171 [21.31], Code of Criminal Procedure, concerning a
7-4 person who is tested as required or authorized under that article;
7-5 and
7-6 (9) a person exposed to HIV infection as provided by
7-7 Section 81.050.
7-8 (c) A [The] court that orders testing under Article 15.171,
7-9 Code of Criminal Procedure, shall notify persons receiving test
7-10 results under Subsection (b)(8) of the requirements of this
7-11 section.
7-12 SECTION 4. Article 21.31, Code of Criminal Procedure, and
7-13 Section 81.094, Health and Safety Code, are repealed.
7-14 SECTION 5. This Act takes effect September 1, 1997.
7-15 SECTION 6. (a) The change in law made by this Act applies
7-16 only to an offense committed on or after the effective date of this
7-17 Act. For the purposes of this section, an offense is committed
7-18 before the effective date of this Act if any element of the offense
7-19 occurs before the effective date.
7-20 (b) An offense committed before the effective date of this
7-21 Act is covered by the law in effect when the offense was committed,
7-22 and the former law is continued in effect for that purpose.
7-23 SECTION 7. The importance of this legislation and the
7-24 crowded condition of the calendars in both houses create an
7-25 emergency and an imperative public necessity that the
7-26 constitutional rule requiring bills to be read on three several
7-27 days in each house be suspended, and this rule is hereby suspended.