81R5736 SJM-D
 
  By: Naishtat H.B. No. 2626
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the forensic medical examination of a sexual assault
  victim who has not reported the assault to a law enforcement agency.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 56.02(a), Code of Criminal Procedure, is
  amended to read as follows:
         (a)  A victim, guardian of a victim, or close relative of a
  deceased victim is entitled to the following rights within the
  criminal justice system:
               (1)  the right to receive from law enforcement agencies
  adequate protection from harm and threats of harm arising from
  cooperation with prosecution efforts;
               (2)  the right to have the magistrate take the safety of
  the victim or his family into consideration as an element in fixing
  the amount of bail for the accused;
               (3)  the right, if requested, to be informed:
                     (A)  by the attorney representing the state of
  relevant court proceedings, including appellate proceedings, and
  to be informed if those proceedings have been canceled or
  rescheduled prior to the event; and
                     (B)  by an appellate court of decisions of the
  court, after the decisions are entered but before the decisions are
  made public;
               (4)  the right to be informed, when requested, by a
  peace officer concerning the defendant's right to bail and the
  procedures in criminal investigations and by the district
  attorney's office concerning the general procedures in the criminal
  justice system, including general procedures in guilty plea
  negotiations and arrangements, restitution, and the appeals and
  parole process;
               (5)  the right to provide pertinent information to a
  probation department conducting a presentencing investigation
  concerning the impact of the offense on the victim and his family by
  testimony, written statement, or any other manner prior to any
  sentencing of the offender;
               (6)  the right to receive information regarding
  compensation to victims of crime as provided by Subchapter B,
  including information related to the costs that may be compensated
  under that subchapter and the amount of compensation, eligibility
  for compensation, and procedures for application for compensation
  under that subchapter, the payment for a medical examination under
  Article 56.06 for a victim of a sexual assault, and when requested,
  to referral to available social service agencies that may offer
  additional assistance;
               (7)  the right to be informed, upon request, of parole
  procedures, to participate in the parole process, to be notified,
  if requested, of parole proceedings concerning a defendant in the
  victim's case, to provide to the Board of Pardons and Paroles for
  inclusion in the defendant's file information to be considered by
  the board prior to the parole of any defendant convicted of any
  crime subject to this subchapter, and to be notified, if requested,
  of the defendant's release;
               (8)  the right to be provided with a waiting area,
  separate or secure from other witnesses, including the offender and
  relatives of the offender, before testifying in any proceeding
  concerning the offender; if a separate waiting area is not
  available, other safeguards should be taken to minimize the
  victim's contact with the offender and the offender's relatives and
  witnesses, before and during court proceedings;
               (9)  the right to prompt return of any property of the
  victim that is held by a law enforcement agency or the attorney for
  the state as evidence when the property is no longer required for
  that purpose;
               (10)  the right to have the attorney for the state
  notify the employer of the victim, if requested, of the necessity of
  the victim's cooperation and testimony in a proceeding that may
  necessitate the absence of the victim from work for good cause;
               (11)  the right to counseling, on request, regarding
  acquired immune deficiency syndrome (AIDS) and human
  immunodeficiency virus (HIV) infection and testing for acquired
  immune deficiency syndrome (AIDS), human immunodeficiency virus
  (HIV) infection, antibodies to HIV, or infection with any other
  probable causative agent of AIDS, if the offense is an offense under
  Section 21.02, 21.11(a)(1), 22.011, or 22.021, Penal Code;
               (12)  the right to request victim-offender mediation
  coordinated by the victim services division of the Texas Department
  of Criminal Justice;
               (13)  the right to be informed of the uses of a victim
  impact statement and the statement's purpose in the criminal
  justice system, to complete the victim impact statement, and to
  have the victim impact statement considered:
                     (A)  by the attorney representing the state and
  the judge before sentencing or before a plea bargain agreement is
  accepted; and
                     (B)  by the Board of Pardons and Paroles before an
  inmate is released on parole; and
               (14)  to the extent [except as] provided by Articles
  56.06 and 56.065 [Article 56.06(a)], for a victim of a sexual
  assault, the right to a forensic medical examination if, within 96
  hours of the sexual assault, the [sexual] assault is reported to a
  law enforcement agency or a forensic medical examination is
  otherwise conducted at a health care facility [within 96 hours of
  the assault].
         SECTION 2.  The heading to Article 56.06, Code of Criminal
  Procedure, is amended to read as follows:
         Art. 56.06.  MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM
  WHO HAS REPORTED ASSAULT; COSTS.
         SECTION 3.  Subchapter A, Chapter 56, Code of Criminal
  Procedure, is amended by adding Article 56.065 to read as follows:
         Art. 56.065.  MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM
  WHO HAS NOT REPORTED ASSAULT; COSTS. (a)  In this article:
               (1)  "Crime laboratory" has the meaning assigned by
  Article 38.35.
               (2)  "Department" means the Department of Public
  Safety.
               (3)  "Sexual assault examiner" and "sexual assault
  nurse examiner" have the meanings assigned by Section 420.003,
  Government Code.
         (b)  This article applies to the following health care
  facilities that provide diagnosis or treatment services to victims
  of sexual assault:
               (1)  a general or special hospital licensed under
  Chapter 241, Health and Safety Code;
               (2)  a general or special hospital owned by this state;
               (3)  an outpatient clinic; and
               (4)  a private physician's office.
         (c)  Except as provided by Subsection (e), a health care
  facility shall conduct in accordance with Subchapter B, Chapter
  420, Government Code, a forensic medical examination of the victim
  of an alleged sexual assault if:
               (1)  the victim arrives at the facility within 96 hours
  after the assault occurred;
               (2)  the victim or a legal representative of the victim
  consents to the examination;
               (3)  at the time of the examination the victim has not
  reported the assault to a law enforcement agency; and
               (4)  a physician determines that it is not detrimental
  to the victim's health to conduct the examination.
         (d)  The department shall pay for reasonable costs of the
  forensic portion of the medical examination and for the evidence
  collection kit if a physician, sexual assault examiner, or sexual
  assault nurse examiner conducts the forensic portion of the
  examination within 96 hours after the alleged sexual assault
  occurred.  The attorney general shall reimburse the department for
  costs paid under this subsection.
         (e)  If a health care facility does not provide diagnosis or
  treatment services to victims of sexual assault, the facility shall
  refer a victim seeking a forensic medical examination under
  Subsection (c) to a health care facility that provides services to
  those victims.
         (f)  The department shall develop procedures for the
  transfer of evidence collected under this article to a crime
  laboratory designated by the department. The designated laboratory
  shall preserve the evidence until the earlier of:
               (1)  the second anniversary of the date the laboratory
  received the evidence; or
               (2)  the date the victim or a legal representative of
  the victim signs a written consent to release the evidence.
         (g)  The victim may not be required to:
               (1)  participate in the investigation or prosecution of
  an offense as a condition of receiving a forensic medical
  examination under this article; or
               (2)  pay for the cost of the forensic portion of the
  medical examination or for the evidence collection kit.
         (h)  The attorney general and the department each shall adopt
  rules as necessary to implement this article.
         SECTION 4.  Section 323.004(b), Health and Safety Code, is
  amended to read as follows:
         (b)  A health care facility providing care to a sexual
  assault survivor shall provide the survivor with:
               (1)  a forensic medical examination in accordance with
  Subchapter B, Chapter 420, Government Code, if the examination has
  been requested [approved] by a law enforcement agency under Article
  56.06, Code of Criminal Procedure, or is conducted under Article
  56.065, Code of Criminal Procedure;
               (2)  a private area, if available, to wait or speak with
  the appropriate medical, legal, or sexual assault crisis center
  staff or volunteer until a physician, nurse, or physician assistant
  is able to treat the survivor;
               (3)  access to a sexual assault program advocate, if
  available, as provided by Article 56.045, Code of Criminal
  Procedure;
               (4)  the information form required by Section 323.005;
               (5)  a private treatment room, if available;
               (6)  if indicated by the history of contact, access to
  appropriate prophylaxis for exposure to sexually transmitted
  infections; and
               (7)  the name and telephone number of the nearest
  sexual assault crisis center.
         SECTION 5.  Section 323.005(a), Health and Safety Code, is
  amended to read as follows:
         (a)  The department shall develop a standard information
  form for sexual assault survivors that must include:
               (1)  a detailed explanation of the forensic medical
  examination required to be provided by law, including a statement
  that photographs may be taken of the genitalia;
               (2)  information regarding treatment of sexually
  transmitted infections and pregnancy, including:
                     (A)  generally accepted medical procedures;
                     (B)  appropriate medications; and
                     (C)  any contraindications of the medications
  prescribed for treating sexually transmitted infections and
  preventing pregnancy;
               (3)  information regarding drug-facilitated sexual
  assault, including the necessity for an immediate urine test for
  sexual assault survivors who may have been involuntarily drugged;
               (4)  information regarding crime victims compensation,
  including:
                     (A)  a statement that:
                           (i)  a law enforcement agency will pay for
  the cost of the forensic portion of an [the] examination requested
  by the agency under Article 56.06, Code of Criminal Procedure; or
                           (ii)  the Department of Public Safety will
  pay for the reasonable costs of the forensic portion of an
  examination conducted under Article 56.065, Code of Criminal
  Procedure; and
                     (B)  reimbursement information for the medical
  portion of the examination;
               (5)  an explanation that consent for the forensic
  medical examination may be withdrawn at any time during the
  examination;
               (6)  the name and telephone number of sexual assault
  crisis centers statewide; and
               (7)  information regarding postexposure prophylaxis
  for HIV infection.
         SECTION 6.  (a)  As soon as practicable after the effective
  date of this Act, the attorney general shall adopt the rules
  required by Article 56.065(h), Code of Criminal Procedure, as added
  by this Act.
         (b)  As soon as practicable after the effective date of this
  Act, the Department of Public Safety of the State of Texas shall
  adopt the rules required by Article 56.065(h), Code of Criminal
  Procedure, as added by this Act.
         (c)  The change in law made by this Act applies to a forensic
  medical examination of an alleged sexual assault victim that is
  conducted on or after the effective date of this Act. An
  examination that is conducted before the effective date of this Act
  is covered by the law in effect when the examination was conducted,
  and the former law is continued in effect for that purpose.
         SECTION 7.  This Act takes effect September 1, 2009.