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.