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AN ACT
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relating to sexual harassment, sexual assault, dating violence, and |
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stalking at public and private postsecondary educational |
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institutions; providing an administrative penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 51, Education Code, is amended by adding |
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Subchapter E-3 to read as follows: |
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SUBCHAPTER E-3. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING |
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VIOLENCE, AND STALKING |
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Sec. 51.281. DEFINITIONS. In this subchapter: |
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(1) "Coordinating board" means the Texas Higher |
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Education Coordinating Board. |
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(2) "Dating violence," "sexual assault," and |
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"stalking" have the meanings assigned by the Jeanne Clery |
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Disclosure of Campus Security Policy and Campus Crime Statistics |
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Act (20 U.S.C. Section 1092(f)(6)(A)). |
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(3) "Postsecondary educational institution" means an |
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institution of higher education or a private or independent |
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institution of higher education, as those terms are defined by |
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Section 61.003. |
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(4) "Sexual harassment" means unwelcome, sex-based |
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verbal or physical conduct that: |
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(A) in the employment context, unreasonably |
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interferes with a person's work performance or creates an |
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intimidating, hostile, or offensive work environment; or |
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(B) in the education context, is sufficiently |
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severe, persistent, or pervasive that the conduct interferes with a |
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student's ability to participate in or benefit from educational |
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programs or activities at a postsecondary educational institution. |
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Sec. 51.282. POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT, |
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DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational |
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institution shall adopt a policy on sexual harassment, sexual |
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assault, dating violence, and stalking applicable to each student |
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enrolled at and each employee of the institution. The policy must: |
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(1) include: |
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(A) definitions of prohibited behavior; |
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(B) sanctions for violations; |
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(C) the protocol for reporting and responding to |
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reports of sexual harassment, sexual assault, dating violence, and |
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stalking; |
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(D) interim measures to protect victims of sexual |
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harassment, sexual assault, dating violence, or stalking during the |
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pendency of the institution's disciplinary process, including |
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protection from retaliation, and any other accommodations |
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available to those victims at the institution; and |
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(E) a statement regarding: |
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(i) the importance of a victim of sexual |
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harassment, sexual assault, dating violence, or stalking going to a |
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hospital for treatment and preservation of evidence, if applicable, |
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as soon as practicable after the incident; |
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(ii) the right of a victim of sexual |
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harassment, sexual assault, dating violence, or stalking to report |
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the incident to the institution and to receive a prompt and |
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equitable resolution of the report; and |
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(iii) the right of a victim of a crime to |
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choose whether to report the crime to law enforcement, to be |
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assisted by the institution in reporting the crime to law |
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enforcement, or to decline to report the crime to law enforcement; |
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and |
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(2) be approved by the institution's governing board |
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before final adoption by the institution. |
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(b) Each postsecondary educational institution shall make |
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the institution's sexual harassment, sexual assault, dating |
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violence, and stalking policy available to students, faculty, and |
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staff members by: |
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(1) including the policy in the institution's student |
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handbook and personnel handbook; and |
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(2) creating and maintaining a web page dedicated |
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solely to the policy that is easily accessible through a clearly |
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identifiable link on the institution's Internet website home page. |
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(c) Each postsecondary educational institution shall |
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require each entering freshman or undergraduate transfer student to |
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attend an orientation on the institution's sexual harassment, |
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sexual assault, dating violence, and stalking policy before or |
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during the first semester or term in which the student is enrolled |
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at the institution. The institution shall establish the format and |
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content of the orientation. The orientation: |
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(1) may be provided online; and |
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(2) must include the statements described by |
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Subsection (a)(1)(E). |
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(d) Each postsecondary educational institution shall |
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develop and implement a comprehensive prevention and outreach |
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program on sexual harassment, sexual assault, dating violence, and |
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stalking. The program must: |
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(1) address a range of strategies to prevent sexual |
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harassment, sexual assault, dating violence, and stalking, |
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including a victim empowerment program, a public awareness |
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campaign, primary prevention, bystander intervention, and risk |
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reduction; and |
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(2) include providing to students information |
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regarding the protocol for reporting incidents of sexual |
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harassment, sexual assault, dating violence, and stalking adopted |
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under Subsection (a), including the name, office location, and |
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contact information of the institution's Title IX coordinator, by: |
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(A) e-mailing the information to each student at |
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the beginning of each semester or other academic term; and |
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(B) including the information in the orientation |
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required under Subsection (c). |
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(e) As part of the protocol for responding to reports of |
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sexual harassment, sexual assault, dating violence, and stalking |
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adopted under Subsection (a), each postsecondary educational |
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institution shall: |
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(1) to the greatest extent practicable based on the |
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number of counselors employed by the institution, ensure that each |
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alleged victim or alleged perpetrator of an incident of sexual |
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harassment, sexual assault, dating violence, or stalking and any |
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other person who reports such an incident are offered counseling |
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provided by a counselor who does not provide counseling to any other |
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person involved in the incident; and |
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(2) notwithstanding any other law, allow an alleged |
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victim or alleged perpetrator of an incident of sexual harassment, |
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sexual assault, dating violence, or stalking to drop a course in |
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which both parties are enrolled without any academic penalty. |
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(f) Each biennium, each postsecondary educational |
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institution shall review the institution's sexual harassment, |
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sexual assault, dating violence, and stalking policy and, with |
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approval of the institution's governing board, revise the policy as |
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necessary. |
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Sec. 51.285. VICTIM REQUEST NOT TO INVESTIGATE. (a) If an |
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alleged victim of an incident of sexual harassment, sexual assault, |
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dating violence, or stalking reported to a postsecondary |
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educational institution requests the institution not to |
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investigate the alleged incident, the institution may investigate |
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the alleged incident in a manner that complies with the |
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confidentiality requirements under Section 51.291. In determining |
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whether to investigate the alleged incident, the institution shall |
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consider: |
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(1) the seriousness of the alleged incident; |
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(2) whether the institution has received other reports |
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of sexual harassment, sexual assault, dating violence, or stalking |
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committed by the alleged perpetrator or perpetrators; |
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(3) whether the alleged incident poses a risk of harm |
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to others; and |
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(4) any other factors the institution determines |
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relevant. |
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(b) If a postsecondary educational institution decides not |
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to investigate an alleged incident of sexual harassment, sexual |
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assault, dating violence, or stalking based on the alleged victim's |
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request not to investigate, the institution shall take any steps |
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the institution determines necessary to protect the health and |
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safety of the institution's community in relation to the alleged |
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incident. |
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(c) A postsecondary educational institution shall inform an |
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alleged victim of an incident of sexual harassment, sexual assault, |
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dating violence, or stalking who requests the institution not to |
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investigate the alleged incident of the institution's decision |
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whether to investigate the alleged incident. |
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Sec. 51.286. DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS. |
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A postsecondary educational institution that initiates a |
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disciplinary process concerning an allegation that a student |
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enrolled at the institution violated the institution's code of |
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conduct by committing sexual harassment, sexual assault, dating |
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violence, or stalking shall: |
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(1) provide to the student and the alleged victim a |
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prompt and equitable opportunity to present witnesses and other |
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evidence relevant to the alleged violation during the disciplinary |
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process; |
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(2) ensure that both the student and the alleged |
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victim have reasonable and equitable access to all evidence |
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relevant to the alleged violation in the institution's possession, |
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including any statements made by the alleged victim or by other |
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persons, information stored electronically, written or electronic |
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communications, social media posts, or physical evidence, redacted |
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as necessary to comply with any applicable federal or state law |
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regarding confidentiality; and |
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(3) take reasonable steps to protect the student and |
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the alleged victim from retaliation and harassment during the |
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pendency of the disciplinary process. |
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Sec. 51.287. STUDENT WITHDRAWAL OR GRADUATION PENDING |
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DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from |
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a postsecondary educational institution pending a disciplinary |
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charge alleging that the student violated the institution's code of |
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conduct by committing sexual harassment, sexual assault, dating |
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violence, or stalking, the institution: |
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(1) may not end the disciplinary process or issue a |
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transcript to the student until the institution makes a final |
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determination of responsibility; and |
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(2) shall expedite the institution's disciplinary |
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process as necessary to accommodate both the student's and the |
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alleged victim's interest in a speedy resolution. |
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(b) On request by another postsecondary educational |
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institution, a postsecondary educational institution shall provide |
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to the requesting institution information relating to a |
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determination by the institution that a student enrolled at the |
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institution violated the institution's code of conduct by |
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committing sexual harassment, sexual assault, dating violence, or |
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stalking. |
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Sec. 51.288. TRAUMA-INFORMED INVESTIGATION TRAINING. Each |
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peace officer employed by a postsecondary educational institution |
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shall complete training on trauma-informed investigation into |
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allegations of sexual harassment, sexual assault, dating violence, |
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and stalking. |
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Sec. 51.289. MEMORANDA OF UNDERSTANDING REQUIRED. To |
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facilitate effective communication and coordination regarding |
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allegations of sexual harassment, sexual assault, dating violence, |
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and stalking at the institution, a postsecondary educational |
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institution shall enter into a memorandum of understanding with one |
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or more: |
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(1) local law enforcement agencies; |
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(2) sexual harassment, sexual assault, dating |
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violence, or stalking advocacy groups; and |
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(3) hospitals or other medical resource providers. |
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Sec. 51.290. RESPONSIBLE AND CONFIDENTIAL EMPLOYEE; |
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STUDENT ADVOCATE. (a) Each postsecondary educational institution |
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shall: |
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(1) designate: |
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(A) one or more employees to act as responsible |
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employees for purposes of Title IX of the Education Amendments of |
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1972 (20 U.S.C. Section 1681 et seq.); and |
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(B) one or more employees as persons to whom |
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students enrolled at the institution may speak confidentially |
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concerning sexual harassment, sexual assault, dating violence, and |
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stalking; and |
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(2) inform each student enrolled at the institution of |
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the responsible and confidential employees designated under |
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Subdivision (1). |
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(b) A postsecondary educational institution may designate |
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one or more students enrolled at the institution as student |
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advocates to whom other students enrolled at the institution may |
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speak confidentially concerning sexual harassment, sexual assault, |
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dating violence, and stalking. The institution shall notify each |
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student enrolled at the institution of the student advocates |
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designated under this subsection. |
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(c) A confidential employee designated under Subsection |
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(a)(1)(B) or a student advocate designated under Subsection (b) may |
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not disclose any communication made by a student to the employee or |
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advocate unless the student consents to the disclosure or the |
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employee or advocate is required to make the disclosure under state |
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or federal law. |
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Sec. 51.291. CONFIDENTIALITY. (a) The protections |
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provided by this section apply to: |
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(1) an alleged victim of an incident of sexual |
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harassment, sexual assault, dating violence, or stalking reported |
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to a postsecondary educational institution; |
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(2) a person who reports to a postsecondary |
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educational institution an incident of sexual harassment, sexual |
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assault, dating violence, or stalking, who sought guidance from the |
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institution concerning such an incident, or who participated in the |
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institution's investigation of such an incident; and |
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(3) a person who is alleged in a report made to a |
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postsecondary educational institution to have committed or |
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assisted in the commission of sexual harassment, sexual assault, |
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dating violence, or stalking if, after completing an investigation, |
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the institution determines the report to be unsubstantiated or |
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without merit. |
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(b) Unless waived in writing by the person, the identity of |
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a person described by Subsection (a): |
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(1) is confidential and not subject to disclosure |
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under Chapter 552, Government Code; and |
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(2) may be disclosed only to: |
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(A) the postsecondary educational institution to |
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which the report described by Subsection (a) is made as necessary to |
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conduct an investigation of the report; |
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(B) a law enforcement officer as necessary to |
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conduct a criminal investigation of the report described by |
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Subsection (a); or |
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(C) a health care provider in an emergency |
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situation, as determined necessary by the institution. |
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(c) A disclosure under Subsection (b) is not a voluntary |
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disclosure for purposes of Section 552.007, Government Code. |
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(d) Information regarding an incident of sexual harassment, |
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sexual assault, dating violence, or stalking disclosed to a health |
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care provider or other medical provider employed by a postsecondary |
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educational institution is confidential and may be shared by the |
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provider only with the victim's consent. The provider must provide |
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aggregate data or other nonidentifying information regarding those |
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incidents to the institution's Title IX coordinator. |
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Sec. 51.292. COMPLIANCE. (a) If the coordinating board |
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determines that a postsecondary educational institution is not in |
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substantial compliance with this subchapter, the coordinating |
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board may assess an administrative penalty against the institution |
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in an amount not to exceed $2 million. In determining the amount of |
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the penalty, the coordinating board shall consider the nature of |
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the violation and the number of students enrolled at the |
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institution. |
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(b) If the coordinating board assesses an administrative |
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penalty against a postsecondary educational institution under |
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Subsection (a), the coordinating board shall provide to the |
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institution written notice of the coordinating board's reasons for |
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assessing the penalty. |
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(c) A postsecondary educational institution assessed an |
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administrative penalty under Subsection (a) may appeal the penalty |
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in the manner provided by Chapter 2001, Government Code. |
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(d) A postsecondary educational institution may not pay an |
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administrative penalty assessed under Subsection (a) using state or |
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federal money. |
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(e) An administrative penalty collected under this section |
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shall be deposited to the credit of the sexual assault program fund |
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established under Section 420.008, Government Code. |
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(f) The coordinating board shall annually submit to the |
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governor, the lieutenant governor, the speaker of the house of |
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representatives, and the standing legislative committees with |
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primary jurisdiction over legislation concerning sexual assault at |
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postsecondary educational institutions a report regarding |
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compliance with this subchapter, including a summary of the |
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postsecondary educational institutions found not to be in |
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substantial compliance as provided by this section and any |
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penalties assessed under this section during the preceding year. |
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Sec. 51.293. EQUAL ACCESS. In implementing the |
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requirements under this subchapter, a postsecondary educational |
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institution shall, to the greatest extent practicable, ensure equal |
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access for students enrolled at or employees of the institution who |
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are persons with disabilities. The institution shall make |
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reasonable efforts to consult with a disability services office of |
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the institution, advocacy groups for people with disabilities, and |
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other relevant stakeholders to assist the institution with |
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complying with the institution's duties under this section. |
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Sec. 51.294. ADVISORY COMMITTEE. (a) The commissioner of |
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higher education shall establish an advisory committee to: |
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(1) make recommendations to the coordinating board |
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regarding rules for adoption under Section 51.295; and |
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(2) develop recommended training for responsible and |
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confidential employees designated under Section 51.290 and for |
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Title IX coordinators at postsecondary educational institutions. |
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(b) The advisory committee consists of nine members |
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appointed by the commissioner of higher education. Each member |
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must be a chief executive officer of a postsecondary educational |
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institution or a representative designated by that officer. |
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(c) The advisory committee shall annually review and, if |
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necessary, update the training recommended under Subsection |
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(a)(2). |
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Sec. 51.295. RULES. (a) The coordinating board shall adopt |
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rules as necessary to implement and enforce this subchapter, |
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including rules that: |
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(1) define relevant terms; and |
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(2) ensure implementation of this subchapter in a |
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manner that complies with federal law regarding confidentiality of |
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student educational information, including the Family Educational |
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Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g). |
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(b) In adopting rules under this section, the coordinating |
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board shall consult with relevant stakeholders. |
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SECTION 2. Sections 51.9365(b), (c), and (d), Education |
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Code, are transferred to Subchapter E-3, Chapter 51, Education |
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Code, as added by this Act, redesignated as Section 51.283, |
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Education Code, and amended to read as follows: |
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Sec. 51.283. ELECTRONIC REPORTING OPTION. (a) [(b)] Each |
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postsecondary educational institution shall provide an option for a |
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student enrolled at or an employee of the institution to |
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electronically report to the institution an allegation of sexual |
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harassment, sexual assault, dating violence, or stalking committed |
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against or witnessed by the student or employee, regardless of the |
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location at which the alleged offense occurred. |
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(b) [(c)] The electronic reporting option provided under |
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Subsection (a) [(b)] must: |
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(1) enable a student or employee to report the alleged |
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offense anonymously; and |
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(2) be easily accessible through a clearly |
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identifiable link on the postsecondary educational institution's |
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Internet website home page. |
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(c) [(d)] A protocol for reporting sexual assault adopted |
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under Section 51.282 [51.9363] must comply with this section. |
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SECTION 3. Sections 51.9366(b), (c), (d), (e), and (f), |
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Education Code, are transferred to Subchapter E-3, Chapter 51, |
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Education Code, as added by this Act, redesignated as Section |
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51.284, Education Code, and amended to read as follows: |
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Sec. 51.284. AMNESTY FOR STUDENTS REPORTING CERTAIN |
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INCIDENTS. (a) [(b)] A postsecondary educational institution may |
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not take any disciplinary action against a student enrolled at the |
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institution who in good faith reports to the institution being the |
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victim of, or a witness to, an incident of sexual harassment, sexual |
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assault, dating violence, or stalking for a violation by the |
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student of the institution's code of conduct occurring at or near |
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the time of the incident, regardless of the location at which the |
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incident occurred or the outcome of the institution's disciplinary |
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process regarding the incident, if any. |
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(b) [(c)] A postsecondary educational institution may |
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investigate to determine whether a report of an incident of sexual |
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harassment, sexual assault, dating violence, or stalking was made |
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in good faith. |
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(c) [(d)] A determination that a student is entitled to |
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amnesty under Subsection (a) [(b)] is final and may not be revoked. |
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(d) [(e)] Subsection (a) [(b)] does not apply to a student |
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who reports the student's own commission or assistance in the |
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commission of sexual harassment, sexual assault, dating violence, |
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or stalking. |
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(e) [(f)] This section may not be construed to limit a |
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postsecondary educational institution's ability to provide amnesty |
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from application of the institution's policies in circumstances not |
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described by Subsection (a) [(b)]. |
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SECTION 4. The following provisions of the Education Code |
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are repealed: |
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(1) Section 51.9363; |
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(2) the heading to Sections 51.9365 and 51.9366; |
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(3) Sections 51.9365(a) and (e); and |
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(4) Sections 51.9366(a) and (g). |
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SECTION 5. The changes in law made by this Act apply |
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beginning August 1, 2020. |
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SECTION 6. Not later than September 1, 2021, the Texas |
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Higher Education Coordinating Board shall submit its initial report |
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required under Section 51.292(f), Education Code, as added by this |
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Act. |
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SECTION 7. This Act takes effect September 1, 2019. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 1735 was passed by the House on April |
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17, 2019, by the following vote: Yeas 113, Nays 29, 2 present, not |
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voting; that the House refused to concur in Senate amendments to |
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H.B. No. 1735 on May 23, 2019, and requested the appointment of a |
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conference committee to consider the differences between the two |
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houses; and that the House adopted the conference committee report |
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on H.B. No. 1735 on May 26, 2019, by the following vote: Yeas 109, |
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Nays 30, 1 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 1735 was passed by the Senate, with |
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amendments, on May 16, 2019, by the following vote: Yeas 31, Nays |
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0; at the request of the House, the Senate appointed a conference |
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committee to consider the differences between the two houses; and |
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that the Senate adopted the conference committee report on H.B. No. |
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1735 on May 26, 2019, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |