By:  Menendez                                                     H.B. No. 1095


A BILL TO BE ENTITLED
AN ACT
relating to the offense of harassment by persons in certain correctional facilities and to creating the offense of harassment of public servant. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. The heading to Section 22.11, Penal Code, is amended to read as follows: Sec. 22.11. HARASSMENT BY PERSONS IN CERTAIN CORRECTIONAL FACILITIES; HARASSMENT OF PUBLIC SERVANT. SECTION 2. Section 22.11, Penal Code, is amended by amending Subsections (a) and (b) and adding Subsections (b-1), (b-2), and (e) to read as follows: (a) A person commits an offense if, with the intent to assault, harass, or alarm, the person: (1) [,] while imprisoned or confined in a correctional or detention facility [and with intent to harass, alarm, or annoy another person], causes another [the other] person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal; or (2) causes another person the actor knows to be a public servant to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of the actor, any other person, or an animal while the public servant is lawfully discharging an official duty or in retaliation or on account of an exercise of the public servant's official power or performance of an official duty. (b) Except as provided by Subsections (b-1) and (b-2), an [An] offense under Subsection (a)(1) [this section] is a felony of the third degree and an offense under Subsection (a)(2) is a Class A misdemeanor. (b-1) An offense under Subsection (a)(1) is a felony of the second degree if, as a result of the offense, a person contracts HIV, hepatitis A, hepatitis B, tuberculosis, or any other disease designated as a reportable disease under Section 81.048, Health and Safety Code. (b-2) An offense under Subsection (a)(2) is a state jail felony if the actor knows or is aware of but consciously disregards a substantial risk that the blood, seminal fluid, vaginal fluid, saliva, urine, or feces used to commit the offense is infected with HIV, hepatitis A, hepatitis B, tuberculosis, or any other disease designated as a reportable disease under Section 81.048, Health and Safety Code, except that the offense is a felony of the second degree if, as a result of the offense, a person contracts HIV, hepatitis A, hepatitis B, tuberculosis, or the reportable disease. (e) For purposes of Subsection (a)(2), the actor is presumed to have known the person was a public servant if the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant. SECTION 3. Article 21.31, Code of Criminal Procedure, is amended to read as follows: Art. 21.31. [AIDS] TESTING FOR AIDS AND CERTAIN OTHER DISEASES. (a) A person who is indicted for or who waives indictment for an offense under Section 21.11(a)(1), 22.011, or 22.021, Penal Code, shall, at the direction of the court, undergo a medical procedure or test designed to show or help show whether the person has a sexually transmitted disease or has acquired immune deficiency syndrome (AIDS) or human immunodeficiency virus (HIV) infection, antibodies to HIV, or infection with any other probable causative agent of AIDS. The court may direct the person to undergo the procedure or test on its own motion or on the request of the victim of the alleged offense. If the person refuses to submit voluntarily to the procedure or test, the court shall require the person to submit to the procedure or test. The court may require a defendant previously required under this article to undergo a medical procedure or test on indictment for an offense to undergo a subsequent medical procedure or test following conviction of the offense. The person performing the procedure or test shall make the test results available to the local health authority, and the local health authority shall be required to make the notification of the test result to the victim of the alleged offense and to the defendant. (b) The court shall order a person who is charged with an offense under Section 22.11, Penal Code, to undergo in the manner provided by Subsection (a) a medical procedure or test designed to show or help show whether the person has HIV, hepatitis A, hepatitis B, tuberculosis, or any other disease designated as a reportable disease under Section 81.048, Health and Safety Code. The person charged with the offense shall pay the costs of testing under this subsection. (c) The state may not use the fact that a medical procedure or test was performed on a person under Subsection (a) [this subsection] or use the results of a [the] procedure or test conducted under Subsection (a) in any criminal proceeding arising out of the alleged offense. (d) [(b)] Testing under this article [section] shall be conducted in accordance with written infectious disease control protocols adopted by the Texas Board of Health that clearly establish procedural guidelines that provide criteria for testing and that respect the rights of the person accused and any victim [the victims] of the alleged offense. (e) This article does not permit [(c) Nothing in this section would allow] a court to release a test result to anyone other than those [specifically] authorized by [this] law, and the provisions of Section 81.103(d), Health and Safety Code, may [shall] not be construed to allow that [such] disclosure. SECTION 4. Article 42.037, Code of Criminal Procedure, is amended by adding Subsection (p) to read as follows: (p) The court shall order a defendant convicted of an offense under Section 22.11, Penal Code, to make restitution to the victim of the offense or the victim's employer in an amount equal to the sum of any expenses incurred by the victim or employer to: (1) test the victim for HIV, hepatitis A, hepatitis B, tuberculosis, or any other disease designated as a reportable disease under Section 81.048, Health and Safety Code; or (2) treat the victim for HIV, hepatitis A, hepatitis B, tuberculosis, or any other disease designated as a reportable disease under Section 81.048, Health and Safety Code, the victim contracts as a result of the offense. SECTION 5. The changes in law made by this Act apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect at the time the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date. SECTION 6. This Act takes effect September 1, 2005.