75R13161 DLF-F
By Naishtat, et al. H.B. No. 1990
Substitute the following for H.B. No. 1990:
By Berlanga C.S.H.B. No. 1990
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to advocates for survivors of sexual assault and to
1-3 confidential communications; providing a criminal penalty.
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
1-24 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 has completed a sexual assault training program
2-8 certified by the department and:
2-9 (1) is employed by a sexual assault program; or
2-10 (2) provides services through a sexual assault program
2-11 as a volunteer under the supervision of an advocate.
2-12 (Sections 44.052-44.070 reserved for expansion
2-13 SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
2-14 Sec. 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A
2-15 communication between an advocate and a survivor, or a person
2-16 claiming to be a survivor, that is made in the course of providing
2-17 sexual assault advocacy services to the survivor is confidential
2-18 and may not be disclosed except as provided by this subchapter.
2-19 (b) A record of the identity, personal history, or
2-20 background information of a survivor or information concerning the
2-21 victimization of a survivor that is created by or provided to an
2-22 advocate or maintained by a sexual assault program is confidential
2-23 and may not be disclosed except as provided by this subchapter.
2-24 (c) A person who receives information from a confidential
2-25 communication or record as described by this subchapter may not
2-26 disclose the information except to the extent that disclosure is
2-27 consistent with the authorized purposes for which the information
3-1 was obtained.
3-2 (d) This subchapter governs a confidential communication or
3-3 record concerning a survivor regardless of when the survivor
3-4 received the services of an advocate or sexual assault program.
3-5 Sec. 44.072. EXCEPTIONS. (a) A communication or record
3-6 that is confidential under this subchapter may be disclosed in
3-7 court or in an administrative proceeding if:
3-8 (1) the proceeding is brought by the survivor against
3-9 an advocate or a sexual assault program or is a criminal proceeding
3-10 or a certification revocation proceeding in which disclosure is
3-11 relevant to the claims or defense of the advocate or sexual assault
3-12 program; or
3-13 (2) the survivor or a person authorized to act on
3-14 behalf of the survivor consents in writing to the release of the
3-15 confidential information as provided by Section 44.073.
3-16 (b) A communication or record that is confidential under
3-17 this subchapter may be disclosed only to:
3-18 (1) medical or law enforcement personnel if the
3-19 advocate determines that there is a probability of imminent
3-20 physical danger to any person for whom the communication or record
3-21 is relevant or if there is a probability of immediate mental or
3-22 emotional injury to the survivor;
3-23 (2) a governmental agency if the disclosure is
3-24 required or authorized by law;
3-25 (3) a qualified person to the extent necessary for a
3-26 management audit, financial audit, program evaluation, or research,
3-27 except that a report of the research, audit, or evaluation may not
4-1 directly or indirectly identify a survivor;
4-2 (4) a person who has the written consent of the
4-3 survivor or of a person authorized to act on the survivor's behalf
4-4 as provided by Section 44.073; or
4-5 (5) an advocate or a person under the supervision of a
4-6 counseling supervisor who is participating in the evaluation or
4-7 counseling of or advocacy for the survivor.
4-8 (c) A communication or record that is confidential under
4-9 this subchapter may not be disclosed to a parent or legal guardian
4-10 of a survivor who is a minor if an advocate or a sexual assault
4-11 program knows or has reason to believe that the parent or legal
4-12 guardian of the survivor is a suspect in the sexual assault of the
4-13 survivor.
4-14 Sec. 44.073. CONSENT. (a) Consent for the release of
4-15 confidential information must be in writing and signed by the
4-16 survivor, a parent or legal guardian if the survivor is a minor, a
4-17 legal guardian if the survivor has been adjudicated incompetent to
4-18 manage the survivor's personal affairs, an attorney ad litem
4-19 appointed for the survivor, or a personal representative if the
4-20 survivor is deceased. The written consent must specify:
4-21 (1) the information or records covered by the release;
4-22 (2) the reason or purpose for the release; and
4-23 (3) the person to whom the information is to be
4-24 released.
4-25 (b) A survivor or other person authorized to consent may
4-26 withdraw consent to the release of information by submitting a
4-27 written notice of withdrawal to the person or program to which
5-1 consent was provided. Withdrawal of consent does not affect
5-2 information disclosed before the date written notice of the
5-3 withdrawal was received.
5-4 (c) A person who receives information made confidential by
5-5 this chapter may not disclose the information except to the extent
5-6 that disclosure is consistent with the authorized purposes for
5-7 which the person obtained the information.
5-8 Sec. 44.074. CRIMINAL SUBPOENA. Notwithstanding any other
5-9 provision of this chapter, a person may disclose a communication or
5-10 record that is confidential under this chapter for use in a
5-11 criminal investigation or proceeding in response to a subpoena
5-12 issued in accordance with law.
5-13 Sec. 44.075. OFFENSE. A person commits an offense if the
5-14 person intentionally or knowingly discloses a communication or
5-15 record that is confidential under this chapter, except as provided
5-16 by this chapter. An offense under this section is a Class C
5-17 misdemeanor.
5-18 SECTION 3. This Act takes effect September 1, 1997.
5-19 SECTION 4. The importance of this legislation and the
5-20 crowded condition of the calendars in both houses create an
5-21 emergency and an imperative public necessity that the
5-22 constitutional rule requiring bills to be read on three several
5-23 days in each house be suspended, and this rule is hereby suspended.