1-1 By: Naishtat, et al. (Senate Sponsor - Barrientos) H.B. No. 1990
1-2 (In the Senate - Received from the House May 8, 1997;
1-3 May 9, 1997, read first time and referred to Committee on
1-4 Jurisprudence; May 16, 1997, reported favorably, as amended, by the
1-5 following vote: Yeas 6, Nays 0; May 16, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Duncan
1-7 Amend H.B. No. 1990 as follows:
1-8 On page 2, line 60, strike "may" and substitute "shall".
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to advocates for survivors of sexual assault and to
1-12 confidential communications; providing a criminal penalty.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 44.003, Health and Safety Code, is
1-15 amended to read as follows:
1-16 Sec. 44.003. Definitions. In this chapter:
1-17 (1) "Advocate" means a person who provides advocacy
1-18 services as an employee or volunteer of a sexual assault program.
1-19 (2) "Program" means a sexual assault program.
1-20 (3) [(2)] "Service" means the Sexual Assault
1-21 Prevention and Crisis Service.
1-22 (4) [(3)] "Sexual assault" means any act or attempted
1-23 act as described by Section 21.11, 22.011, 22.021, or 25.02, Penal
1-24 Code, or a sexual assault in which the spouse of the victim is the
1-25 actor.
1-26 (5) [(4)] "Sexual assault program" means any local
1-27 public or private nonprofit corporation, independent of a law
1-28 enforcement agency or prosecutor's office, that is operated as an
1-29 independent program or as part of a municipal, county, or state
1-30 agency and that provides the minimum services established by this
1-31 chapter.
1-32 (6) [(5)] "Survivor" means an individual who is a
1-33 victim of a sexual assault, regardless of whether a report or
1-34 conviction is made in the incident.
1-35 SECTION 2. Chapter 44, Health and Safety Code, is amended by
1-36 adding Subchapters C and D to read as follows:
1-37 SUBCHAPTER C. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT
1-38 Sec. 44.051. ADVOCATES FOR SURVIVORS OF SEXUAL ASSAULT. An
1-39 individual may act as an advocate for survivors of sexual assault
1-40 if the individual has completed a sexual assault training program
1-41 certified by the department and:
1-42 (1) is employed by a sexual assault program; or
1-43 (2) provides services through a sexual assault program
1-44 as a volunteer under the supervision of an advocate.
1-45 (Sections 44.052-44.070 reserved for expansion
1-46 SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS
1-47 Sec. 44.071. CONFIDENTIAL COMMUNICATIONS. (a) A
1-48 communication between an advocate and a survivor, or a person
1-49 claiming to be a survivor, that is made in the course of providing
1-50 sexual assault advocacy services to the survivor is confidential
1-51 and may not be disclosed except as provided by this subchapter.
1-52 (b) A record of the identity, personal history, or
1-53 background information of a survivor or information concerning the
1-54 victimization of a survivor that is created by or provided to an
1-55 advocate or maintained by a sexual assault program is confidential
1-56 and may not be disclosed except as provided by this subchapter.
1-57 (c) A person who receives information from a confidential
1-58 communication or record as described by this subchapter may not
1-59 disclose the information except to the extent that disclosure is
1-60 consistent with the authorized purposes for which the information
1-61 was obtained.
1-62 (d) This subchapter governs a confidential communication or
1-63 record concerning a survivor regardless of when the survivor
1-64 received the services of an advocate or sexual assault program.
2-1 Sec. 44.072. EXCEPTIONS. (a) A communication or record
2-2 that is confidential under this subchapter may be disclosed in
2-3 court or in an administrative proceeding if:
2-4 (1) the proceeding is brought by the survivor against
2-5 an advocate or a sexual assault program or is a criminal proceeding
2-6 or a certification revocation proceeding in which disclosure is
2-7 relevant to the claims or defense of the advocate or sexual assault
2-8 program; or
2-9 (2) the survivor or a person authorized to act on
2-10 behalf of the survivor consents in writing to the release of the
2-11 confidential information as provided by Section 44.073.
2-12 (b) A communication or record that is confidential under
2-13 this subchapter may be disclosed only to:
2-14 (1) medical or law enforcement personnel if the
2-15 advocate determines that there is a probability of imminent
2-16 physical danger to any person for whom the communication or record
2-17 is relevant or if there is a probability of immediate mental or
2-18 emotional injury to the survivor;
2-19 (2) a governmental agency if the disclosure is
2-20 required or authorized by law;
2-21 (3) a qualified person to the extent necessary for a
2-22 management audit, financial audit, program evaluation, or research,
2-23 except that a report of the research, audit, or evaluation may not
2-24 directly or indirectly identify a survivor;
2-25 (4) a person who has the written consent of the
2-26 survivor or of a person authorized to act on the survivor's behalf
2-27 as provided by Section 44.073; or
2-28 (5) an advocate or a person under the supervision of a
2-29 counseling supervisor who is participating in the evaluation or
2-30 counseling of or advocacy for the survivor.
2-31 (c) A communication or record that is confidential under
2-32 this subchapter may not be disclosed to a parent or legal guardian
2-33 of a survivor who is a minor if an advocate or a sexual assault
2-34 program knows or has reason to believe that the parent or legal
2-35 guardian of the survivor is a suspect in the sexual assault of the
2-36 survivor.
2-37 Sec. 44.073. CONSENT. (a) Consent for the release of
2-38 confidential information must be in writing and signed by the
2-39 survivor, a parent or legal guardian if the survivor is a minor, a
2-40 legal guardian if the survivor has been adjudicated incompetent to
2-41 manage the survivor's personal affairs, an attorney ad litem
2-42 appointed for the survivor, or a personal representative if the
2-43 survivor is deceased. The written consent must specify:
2-44 (1) the information or records covered by the release;
2-45 (2) the reason or purpose for the release; and
2-46 (3) the person to whom the information is to be
2-47 released.
2-48 (b) A survivor or other person authorized to consent may
2-49 withdraw consent to the release of information by submitting a
2-50 written notice of withdrawal to the person or program to which
2-51 consent was provided. Withdrawal of consent does not affect
2-52 information disclosed before the date written notice of the
2-53 withdrawal was received.
2-54 (c) A person who receives information made confidential by
2-55 this chapter may not disclose the information except to the extent
2-56 that disclosure is consistent with the authorized purposes for
2-57 which the person obtained the information.
2-58 Sec. 44.074. CRIMINAL SUBPOENA. Notwithstanding any other
2-59 provision of this chapter, a person may disclose a communication or
2-60 record that is confidential under this chapter for use in a
2-61 criminal investigation or proceeding in response to a subpoena
2-62 issued in accordance with law.
2-63 Sec. 44.075. OFFENSE. A person commits an offense if the
2-64 person intentionally or knowingly discloses a communication or
2-65 record that is confidential under this chapter, except as provided
2-66 by this chapter. An offense under this section is a Class C
2-67 misdemeanor.
2-68 SECTION 3. This Act takes effect September 1, 1997.
2-69 SECTION 4. The importance of this legislation and the
3-1 crowded condition of the calendars in both houses create an
3-2 emergency and an imperative public necessity that the
3-3 constitutional rule requiring bills to be read on three several
3-4 days in each house be suspended, and this rule is hereby suspended.
3-5 * * * * *