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A BILL TO BE ENTITLED
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AN ACT
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relating to the forensic medical examination of a sexual assault |
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victim who has not reported the assault to a law enforcement agency. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 56.02(a), Code of Criminal Procedure, is |
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amended to read as follows: |
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(a) A victim, guardian of a victim, or close relative of a |
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deceased victim is entitled to the following rights within the |
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criminal justice system: |
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(1) the right to receive from law enforcement agencies |
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adequate protection from harm and threats of harm arising from |
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cooperation with prosecution efforts; |
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(2) the right to have the magistrate take the safety of |
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the victim or his family into consideration as an element in fixing |
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the amount of bail for the accused; |
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(3) the right, if requested, to be informed: |
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(A) by the attorney representing the state of |
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relevant court proceedings, including appellate proceedings, and |
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to be informed if those proceedings have been canceled or |
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rescheduled prior to the event; and |
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(B) by an appellate court of decisions of the |
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court, after the decisions are entered but before the decisions are |
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made public; |
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(4) the right to be informed, when requested, by a |
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peace officer concerning the defendant's right to bail and the |
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procedures in criminal investigations and by the district |
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attorney's office concerning the general procedures in the criminal |
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justice system, including general procedures in guilty plea |
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negotiations and arrangements, restitution, and the appeals and |
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parole process; |
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(5) the right to provide pertinent information to a |
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probation department conducting a presentencing investigation |
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concerning the impact of the offense on the victim and his family by |
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testimony, written statement, or any other manner prior to any |
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sentencing of the offender; |
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(6) the right to receive information regarding |
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compensation to victims of crime as provided by Subchapter B, |
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including information related to the costs that may be compensated |
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under that subchapter and the amount of compensation, eligibility |
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for compensation, and procedures for application for compensation |
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under that subchapter, the payment for a medical examination under |
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Article 56.06 for a victim of a sexual assault, and when requested, |
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to referral to available social service agencies that may offer |
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additional assistance; |
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(7) the right to be informed, upon request, of parole |
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procedures, to participate in the parole process, to be notified, |
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if requested, of parole proceedings concerning a defendant in the |
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victim's case, to provide to the Board of Pardons and Paroles for |
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inclusion in the defendant's file information to be considered by |
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the board prior to the parole of any defendant convicted of any |
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crime subject to this subchapter, and to be notified, if requested, |
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of the defendant's release; |
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(8) the right to be provided with a waiting area, |
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separate or secure from other witnesses, including the offender and |
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relatives of the offender, before testifying in any proceeding |
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concerning the offender; if a separate waiting area is not |
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available, other safeguards should be taken to minimize the |
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victim's contact with the offender and the offender's relatives and |
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witnesses, before and during court proceedings; |
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(9) the right to prompt return of any property of the |
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victim that is held by a law enforcement agency or the attorney for |
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the state as evidence when the property is no longer required for |
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that purpose; |
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(10) the right to have the attorney for the state |
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notify the employer of the victim, if requested, of the necessity of |
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the victim's cooperation and testimony in a proceeding that may |
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necessitate the absence of the victim from work for good cause; |
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(11) the right to counseling, on request, regarding |
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acquired immune deficiency syndrome (AIDS) and human |
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immunodeficiency virus (HIV) infection and testing for acquired |
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immune deficiency syndrome (AIDS), human immunodeficiency virus |
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(HIV) infection, antibodies to HIV, or infection with any other |
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probable causative agent of AIDS, if the offense is an offense under |
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Section 21.02, 21.11(a)(1), 22.011, or 22.021, Penal Code; |
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(12) the right to request victim-offender mediation |
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coordinated by the victim services division of the Texas Department |
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of Criminal Justice; |
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(13) the right to be informed of the uses of a victim |
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impact statement and the statement's purpose in the criminal |
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justice system, to complete the victim impact statement, and to |
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have the victim impact statement considered: |
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(A) by the attorney representing the state and |
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the judge before sentencing or before a plea bargain agreement is |
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accepted; and |
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(B) by the Board of Pardons and Paroles before an |
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inmate is released on parole; and |
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(14) to the extent [except as] provided by Articles |
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56.06 and 56.065 [Article 56.06(a)], for a victim of a sexual |
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assault, the right to a forensic medical examination if, within 96 |
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hours of the sexual assault, the [sexual] assault is reported to a |
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law enforcement agency or a forensic medical examination is |
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otherwise conducted at a health care facility [within 96 hours of
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the assault]. |
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SECTION 2. The heading to Article 56.06, Code of Criminal |
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Procedure, is amended to read as follows: |
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Art. 56.06. MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM |
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WHO HAS REPORTED ASSAULT; COSTS. |
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SECTION 3. Subchapter A, Chapter 56, Code of Criminal |
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Procedure, is amended by adding Article 56.065 to read as follows: |
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Art. 56.065. MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM |
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WHO HAS NOT REPORTED ASSAULT; COSTS. (a) In this article: |
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(1) "Crime laboratory" has the meaning assigned by |
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Article 38.35. |
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(2) "Department" means the Department of Public |
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Safety. |
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(3) "Sexual assault examiner" and "sexual assault |
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nurse examiner" have the meanings assigned by Section 420.003, |
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Government Code. |
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(b) This article applies to the following health care |
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facilities that provide diagnosis or treatment services to victims |
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of sexual assault: |
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(1) a general or special hospital licensed under |
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Chapter 241, Health and Safety Code; |
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(2) a general or special hospital owned by this state; |
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(3) an outpatient clinic; and |
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(4) a private physician's office. |
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(c) In accordance with Subchapter B, Chapter 420, |
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Government Code, and except as provided by Subsection (e), a health |
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care facility shall conduct a forensic medical examination of the |
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victim of an alleged sexual assault if: |
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(1) the victim arrives at the facility within 96 hours |
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after the assault occurred; |
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(2) the victim consents to the examination; and |
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(3) at the time of the examination the victim has not |
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reported the assault to a law enforcement agency. |
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(d) The department shall pay the appropriate fees, as set by |
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attorney general rule, for the forensic portion of the medical |
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examination and for the evidence collection kit if a physician, |
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sexual assault examiner, or sexual assault nurse examiner conducts |
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the forensic portion of the examination within 96 hours after the |
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alleged sexual assault occurred. The attorney general shall |
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reimburse the department for fees paid under this subsection. |
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(e) If a health care facility does not provide diagnosis or |
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treatment services to victims of sexual assault, the facility shall |
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refer a victim seeking a forensic medical examination under |
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Subsection (c) to a health care facility that provides services to |
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those victims. |
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(f) The department may develop procedures regarding the |
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submission or collection of additional evidence of the alleged |
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sexual assault other than through an examination as described by |
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this article. |
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(g) The department shall develop procedures for the |
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transfer and preservation of evidence collected under this article |
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to a crime laboratory or other suitable location designated by the |
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public safety director of the department. The receiving entity |
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shall preserve the evidence until the earlier of: |
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(1) the second anniversary of the date the evidence |
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was collected; or |
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(2) the date the victim or a legal representative of |
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the victim signs a written consent to release the evidence. |
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(h) The victim may not be required to: |
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(1) participate in the investigation or prosecution of |
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an offense as a condition of receiving a forensic medical |
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examination under this article; or |
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(2) pay for the forensic portion of the medical |
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examination or for the evidence collection kit. |
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(i) The attorney general and the department each shall adopt |
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rules as necessary to implement this article. |
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SECTION 4. Section 323.004(b), Health and Safety Code, is |
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amended to read as follows: |
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(b) A health care facility providing care to a sexual |
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assault survivor shall provide the survivor with: |
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(1) a forensic medical examination in accordance with |
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Subchapter B, Chapter 420, Government Code, if the examination has |
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been requested [approved] by a law enforcement agency under Article |
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56.06, Code of Criminal Procedure, or is conducted under Article |
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56.065, Code of Criminal Procedure; |
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(2) a private area, if available, to wait or speak with |
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the appropriate medical, legal, or sexual assault crisis center |
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staff or volunteer until a physician, nurse, or physician assistant |
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is able to treat the survivor; |
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(3) access to a sexual assault program advocate, if |
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available, as provided by Article 56.045, Code of Criminal |
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Procedure; |
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(4) the information form required by Section 323.005; |
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(5) a private treatment room, if available; |
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(6) if indicated by the history of contact, access to |
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appropriate prophylaxis for exposure to sexually transmitted |
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infections; and |
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(7) the name and telephone number of the nearest |
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sexual assault crisis center. |
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SECTION 5. Section 323.005(a), Health and Safety Code, is |
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amended to read as follows: |
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(a) The department shall develop a standard information |
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form for sexual assault survivors that must include: |
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(1) a detailed explanation of the forensic medical |
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examination required to be provided by law, including a statement |
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that photographs may be taken of the genitalia; |
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(2) information regarding treatment of sexually |
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transmitted infections and pregnancy, including: |
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(A) generally accepted medical procedures; |
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(B) appropriate medications; and |
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(C) any contraindications of the medications |
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prescribed for treating sexually transmitted infections and |
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preventing pregnancy; |
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(3) information regarding drug-facilitated sexual |
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assault, including the necessity for an immediate urine test for |
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sexual assault survivors who may have been involuntarily drugged; |
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(4) information regarding crime victims compensation, |
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including: |
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(A) a statement that: |
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(i) a law enforcement agency will pay for |
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the forensic portion of an [the] examination requested by the |
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agency under Article 56.06, Code of Criminal Procedure, and for the |
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evidence collection kit; or |
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(ii) the Department of Public Safety will |
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pay the appropriate fees for the forensic portion of an examination |
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conducted under Article 56.065, Code of Criminal Procedure, and for |
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the evidence collection kit; and |
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(B) reimbursement information for the medical |
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portion of the examination; |
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(5) an explanation that consent for the forensic |
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medical examination may be withdrawn at any time during the |
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examination; |
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(6) the name and telephone number of sexual assault |
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crisis centers statewide; and |
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(7) information regarding postexposure prophylaxis |
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for HIV infection. |
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SECTION 6. (a) As soon as practicable after the effective |
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date of this Act, the attorney general shall adopt the rules |
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required by Article 56.065(i), Code of Criminal Procedure, as added |
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by this Act. |
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(b) As soon as practicable after the effective date of this |
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Act, the Department of Public Safety of the State of Texas shall |
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adopt the rules required by Article 56.065(i), Code of Criminal |
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Procedure, as added by this Act. |
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(c) The change in law made by this Act applies to a forensic |
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medical examination of an alleged sexual assault victim that is |
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conducted on or after the effective date of this Act. An |
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examination that is conducted before the effective date of this Act |
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is covered by the law in effect when the examination was conducted, |
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and the former law is continued in effect for that purpose. |
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SECTION 7. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |