1-1 By: Hamric (Senate Sponsor - Lucio) H.B. No. 2978
1-2 (In the Senate - Received from the House May 14, 1999;
1-3 May 14, 1999, read first time and referred to Committee on Criminal
1-4 Justice; May 14, 1999, reported favorably by the following vote:
1-5 Yeas 5, Nays 0; May 14, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to requiring an individual convicted of or receiving
1-9 deferred adjudication for the offense of prostitution to undergo
1-10 certain medical tests and to the creation of the offense of
1-11 engaging in prostitution while knowingly infected with certain
1-12 diseases.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 43.02, Penal Code, is amended to read as
1-15 follows:
1-16 Sec. 43.02. PROSTITUTION. (a) A person commits an offense
1-17 if he knowingly:
1-18 (1) offers to engage, agrees to engage, or engages in
1-19 sexual conduct for a fee; or
1-20 (2) solicits another in a public place to engage with
1-21 him in sexual conduct for hire.
1-22 (b) A person commits an offense if the person knows he or
1-23 she has acquired immune deficiency syndrome (AIDS) or human
1-24 immunodeficiency virus (HIV) infection, antibodies to HIV, or
1-25 infection with any other probable causative agent of AIDS, and the
1-26 person knowingly:
1-27 (1) offers to engage, agrees to engage, or engages in
1-28 sexual conduct for a fee; or
1-29 (2) solicits another in a public place to engage with
1-30 him or her in sexual conduct for hire.
1-31 (c) An offense is established under Subsection (a)(1) or
1-32 (b)(1) whether the actor is to receive or pay a fee. An offense is
1-33 established under Subsection (a)(2) or (b)(2) whether the actor
1-34 solicits a person to hire him or offers to hire the person
1-35 solicited.
1-36 (d) [(c)] An offense under Subsection (a) [this section] is
1-37 a Class B misdemeanor, unless the actor has been convicted
1-38 previously under this section, in which event it is a Class A
1-39 misdemeanor. An offense under Subsection (b) is a felony of the
1-40 third degree.
1-41 SECTION 2. Chapter 42, Code of Criminal Procedure, is
1-42 amended by adding Article 42.038 to read as follows:
1-43 Art. 42.038. AIDS TESTING. (a) A defendant who is
1-44 convicted of or receives deferred adjudication for an offense under
1-45 Section 43.02, Penal Code, shall, at the direction of the court,
1-46 undergo a medical procedure or test designed to show or help show
1-47 whether the defendant has a sexually transmitted disease or has
1-48 acquired immune deficiency syndrome (AIDS) or human
1-49 immunodeficiency virus (HIV) infection, antibodies to HIV, or
1-50 infection with any other probable causative agent of AIDS. If the
1-51 defendant refuses to submit voluntarily to the procedure or test,
1-52 the court shall require the defendant to submit to the procedure or
1-53 test. The person performing the procedure or test shall make the
1-54 test results available to the local health authority, and the local
1-55 health authority shall be required to make the notification of the
1-56 test results to the defendant and provide with the notification
1-57 information on HIV treatment options. The results and treatment
1-58 options information must be provided in English and Spanish. The
1-59 state may use the fact that a medical procedure or test was
1-60 performed on a defendant under this subsection or use the results
1-61 of the procedure or test in any subsequent prosecution of the
1-62 defendant for an offense under Section 43.02, Penal Code.
1-63 (b) Testing under this article shall be conducted in
1-64 accordance with written infectious disease control protocols
2-1 adopted by the Texas Board of Health that clearly establish
2-2 procedural guidelines that provide criteria for testing and that
2-3 respect the rights of the defendant and the victims of the alleged
2-4 offense.
2-5 (c) This article does not permit a court to release a test
2-6 result to anyone other than a person to whom the court is
2-7 specifically authorized by this article to release the result.
2-8 SECTION 3. Subchapter A, Chapter 102, Code of Criminal
2-9 Procedure, is amended by adding Article 102.020 to read as follows:
2-10 Art. 102.020. AIDS TESTS. (a) A defendant convicted of an
2-11 offense under Section 43.02, Penal Code, shall pay a fee that
2-12 equals the cost paid by the county for a medical procedure or test
2-13 performed on the defendant under Article 42.038, not to exceed
2-14 $100.
2-15 (b) In this article, a person is considered to have been
2-16 convicted in a case if:
2-17 (1) a sentence is imposed; or
2-18 (2) the defendant receives community supervision or
2-19 deferred adjudication.
2-20 SECTION 4. Section 81.102(a), Health and Safety Code, is
2-21 amended to read as follows:
2-22 (a) A person may not require another person to undergo a
2-23 medical procedure or test designed to determine or help determine
2-24 if a person has AIDS or HIV infection, antibodies to HIV, or
2-25 infection with any other probable causative agent of AIDS unless:
2-26 (1) the medical procedure or test is required under
2-27 Subsection (d), under Section 81.050, or under Article 21.31 or
2-28 42.038, Code of Criminal Procedure;
2-29 (2) the medical procedure or test is required under
2-30 Section 81.090, and no objection has been made under Section
2-31 81.090(l);
2-32 (3) the medical procedure or test is authorized under
2-33 Article 21.21-4, Insurance Code;
2-34 (4) a medical procedure is to be performed on the
2-35 person that could expose health care personnel to AIDS or HIV
2-36 infection, according to board guidelines defining the conditions
2-37 that constitute possible exposure to AIDS or HIV infection, and
2-38 there is sufficient time to receive the test result before the
2-39 procedure is conducted; or
2-40 (5) the medical procedure or test is necessary:
2-41 (A) as a bona fide occupational qualification
2-42 and there is not a less discriminatory means of satisfying the
2-43 occupational qualification;
2-44 (B) to screen blood, blood products, body
2-45 fluids, organs, or tissues to determine suitability for donation;
2-46 (C) in relation to a particular person under
2-47 this chapter;
2-48 (D) to manage accidental exposure to blood or
2-49 other body fluids, but only if the test is conducted under written
2-50 infectious disease control protocols adopted by the health care
2-51 agency or facility;
2-52 (E) to test residents and clients of residential
2-53 facilities of the Texas Department of Mental Health and Mental
2-54 Retardation, but only if:
2-55 (i) the test result would change the
2-56 medical or social management of the person tested or others who
2-57 associated with that person; and
2-58 (ii) the test is conducted in accordance
2-59 with guidelines adopted by the residential facility or the Texas
2-60 Department of Mental Health and Mental Retardation and approved by
2-61 the department; or
2-62 (F) to test residents and clients of residential
2-63 facilities of the Texas Youth Commission, but only if:
2-64 (i) the test result would change the
2-65 medical or social management of the person tested or others who
2-66 associate with that person; and
2-67 (ii) the test is conducted in accordance
2-68 with guidelines adopted by the Texas Youth Commission.
2-69 SECTION 5. (a) The change in law made by this Act applies
3-1 only to an offense committed on or after the effective date of this
3-2 Act. For purposes of this section, an offense is committed before
3-3 the effective date of this Act if any element of the offense occurs
3-4 before the effective date.
3-5 (b) An offense committed before the effective date of this
3-6 Act is covered by the law in effect when the offense was committed,
3-7 and the former law is continued in effect for that purpose.
3-8 SECTION 6. This Act takes effect September 1, 1999.
3-9 SECTION 7. The importance of this legislation and the
3-10 crowded condition of the calendars in both houses create an
3-11 emergency and an imperative public necessity that the
3-12 constitutional rule requiring bills to be read on three several
3-13 days in each house be suspended, and this rule is hereby suspended.
3-14 * * * * *