By Naishtat H.B. No. 1990
75R7336 DLF-F
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 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 (Sections 44.052-44.070 reserved for expansion
2-14 SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
2-15 Sec. 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A
2-16 communication between an advocate and a survivor, or a person
2-17 claiming to be a survivor, that is made in the course of providing
2-18 sexual assault advocacy services to the survivor is confidential
2-19 and privileged and may not be disclosed except as provided by this
2-20 subchapter.
2-21 (b) A record of the identity, personal history, or
2-22 background information of a survivor or information concerning the
2-23 victimization of a survivor that is created by or provided to an
2-24 advocate or maintained by a sexual assault program is confidential
2-25 and privileged and may not be disclosed except as provided by this
2-26 subchapter.
2-27 (c) A person who receives information from a confidential
3-1 communication or record as described by this subchapter may not
3-2 disclose the information except to the extent that disclosure is
3-3 consistent with the authorized purposes for which the information
3-4 was obtained.
3-5 (d) This subchapter governs a confidential communication or
3-6 record concerning a survivor regardless of when the survivor
3-7 received the services of an advocate or sexual assault program.
3-8 (e) Notwithstanding Rule 501, Texas Rules of Criminal
3-9 Evidence, and Rule 501, Texas Rules of Civil Evidence, the
3-10 privilege of confidentiality may be claimed in a criminal, civil,
3-11 or administrative proceeding and may be claimed by the survivor or
3-12 an advocate acting on the survivor's behalf.
3-13 (f) If an advocate claims the privilege of confidentiality
3-14 on behalf of a survivor, the authority to do so is presumed to
3-15 exist in the absence of evidence to the contrary.
3-16 Sec. 44.072. EXCEPTIONS. (a) A communication or record
3-17 that is privileged under this subchapter may be disclosed in court
3-18 or in an administrative proceeding if:
3-19 (1) the proceeding is brought by the survivor against
3-20 an advocate or a sexual assault program or is a criminal proceeding
3-21 or a certification revocation proceeding in which disclosure is
3-22 relevant to the claims or defense of the advocate or sexual assault
3-23 program; or
3-24 (2) the survivor or a person authorized to act on
3-25 behalf of the survivor consents in writing to the release of the
3-26 confidential information as provided by Section 44.073.
3-27 (b) A communication or record that is confidential under
4-1 this subchapter may be disclosed only to:
4-2 (1) medical or law enforcement personnel if the
4-3 advocate determines that there is a probability of imminent
4-4 physical danger to any person for whom the communication or record
4-5 is relevant or if there is a probability of immediate mental or
4-6 emotional injury to the survivor;
4-7 (2) a governmental agency if the disclosure is
4-8 required or authorized by law;
4-9 (3) a qualified person to the extent necessary for a
4-10 management audit, financial audit, program evaluation, or research,
4-11 except that a report of the research, audit, or evaluation may not
4-12 directly or indirectly identify a survivor;
4-13 (4) a person who has the written consent of the
4-14 survivor or of a person authorized to act on the survivor's behalf
4-15 as provided by Section 44.073; or
4-16 (5) an advocate or a person under the supervision of a
4-17 counseling supervisor who is participating in the evaluation or
4-18 counseling of or advocacy for the survivor.
4-19 (c) A communication or record that is confidential under
4-20 this subchapter may not be disclosed to a parent or legal guardian
4-21 of a survivor who is a minor if an advocate or a sexual assault
4-22 program knows or has reason to believe that the parent or legal
4-23 guardian of the survivor is a suspect in the sexual assault of the
4-24 survivor.
4-25 Sec. 44.073. CONSENT. (a) Consent for the release of
4-26 confidential information must be in writing and signed by the
4-27 survivor, a parent or legal guardian if the survivor is a minor, a
5-1 legal guardian if the survivor has been adjudicated incompetent to
5-2 manage the survivor's personal affairs, an attorney ad litem
5-3 appointed for the survivor, or a personal representative if the
5-4 survivor is deceased. The written consent must specify:
5-5 (1) the information or records covered by the release;
5-6 (2) the reason or purpose for the release; and
5-7 (3) the person to whom the information is to be
5-8 released.
5-9 (b) A survivor or other person authorized to consent may
5-10 withdraw consent to the release of information by submitting a
5-11 written notice of withdrawal to the person or program to which
5-12 consent was provided. Withdrawal of consent does not affect
5-13 information disclosed before the date written notice of the
5-14 withdrawal was received.
5-15 (c) A person who receives information made confidential by
5-16 this chapter may not disclose the information except to the extent
5-17 that disclosure is consistent with the authorized purposes for
5-18 which the person obtained the information.
5-19 Sec. 44.074. OFFENSE. A person commits an offense if the
5-20 person intentionally or knowingly discloses a communication or
5-21 record that is confidential under this chapter, except as provided
5-22 by this chapter. An offense under this section is a Class C
5-23 misdemeanor.
5-24 SECTION 3. This Act takes effect September 1, 1997.
5-25 SECTION 4. The importance of this legislation and the
5-26 crowded condition of the calendars in both houses create an
5-27 emergency and an imperative public necessity that the
6-1 constitutional rule requiring bills to be read on three several
6-2 days in each house be suspended, and this rule is hereby suspended.