By: Howard, et al. (Senate Sponsor - Watson) H.B. No. 1735
         (In the Senate - Received from the House April 23, 2019;
  April 29, 2019, read first time and referred to Committee on Higher
  Education; May 13, 2019, reported adversely, with favorable
  Committee Substitute by the following vote:  Yeas 8, Nays 0;
  May 13, 2019, sent to printer.)
Click here to see the committee vote
 
  COMMITTEE SUBSTITUTE FOR H.B. No. 1735 By:  Watson
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to sexual harassment, sexual assault, dating violence, and
  stalking at public and private postsecondary educational
  institutions; providing an administrative penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 51, Education Code, is amended by adding
  Subchapter E-3 to read as follows:
  SUBCHAPTER E-3. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING
  VIOLENCE, AND STALKING
         Sec. 51.281.  DEFINITIONS. In this subchapter:
               (1)  "Coordinating board" means the Texas Higher
  Education Coordinating Board.
               (2)  "Dating violence," "sexual assault," and
  "stalking" have the meanings assigned by the Jeanne Clery
  Disclosure of Campus Security Policy and Campus Crime Statistics
  Act (20 U.S.C. Section 1092(f)(6)(A)).
               (3)  "Postsecondary educational institution" means an
  institution of higher education or a private or independent
  institution of higher education, as those terms are defined by
  Section 61.003.
               (4)  "Sexual harassment" means unwelcome, sex-based
  verbal or physical conduct that:
                     (A)  in the employment context, unreasonably
  interferes with a person's work performance or creates an
  intimidating, hostile, or offensive work environment; or
                     (B)  in the education context, is sufficiently
  severe, persistent, or pervasive that the conduct interferes with a
  student's ability to participate in or benefit from educational
  programs or activities at a postsecondary educational institution.
         Sec. 51.282.  POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT,
  DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational
  institution shall adopt a policy on sexual harassment, sexual
  assault, dating violence, and stalking applicable to each student
  enrolled at and each employee of the institution. The policy must:
               (1)  include:
                     (A)  definitions of prohibited behavior;
                     (B)  sanctions for violations;
                     (C)  the protocol for reporting and responding to
  reports of sexual harassment, sexual assault, dating violence, and
  stalking;
                     (D)  interim measures to protect victims of sexual
  harassment, sexual assault, dating violence, or stalking during the
  pendency of the institution's disciplinary process, including
  protection from retaliation, and any other accommodations
  available to those victims at the institution; and
                     (E)  a statement regarding:
                           (i)  the importance of a victim of sexual
  harassment, sexual assault, dating violence, or stalking going to a
  hospital for treatment and preservation of evidence, if applicable,
  as soon as practicable after the incident;
                           (ii)  the right of a victim of sexual
  harassment, sexual assault, dating violence, or stalking to report
  the incident to the institution and to receive a prompt and
  equitable resolution of the report; and
                           (iii)  the right of a victim of a crime to
  choose whether to report the crime to law enforcement, to be
  assisted by the institution in reporting the crime to law
  enforcement, or to decline to report the crime to law enforcement;
  and
               (2)  be approved by the institution's governing board
  before final adoption by the institution.
         (b)  Each postsecondary educational institution shall make
  the institution's sexual harassment, sexual assault, dating
  violence, and stalking policy available to students, faculty, and
  staff members by:
               (1)  including the policy in the institution's student
  handbook and personnel handbook; and
               (2)  creating and maintaining a web page dedicated
  solely to the policy that is easily accessible through a clearly
  identifiable link on the institution's Internet website home page.
         (c)  Each postsecondary educational institution shall
  require each entering freshman or undergraduate transfer student to
  attend an orientation on the institution's sexual harassment,
  sexual assault, dating violence, and stalking policy before or
  during the first semester or term in which the student is enrolled
  at the institution. The institution shall establish the format and
  content of the orientation.  The orientation:
               (1)  may be provided online; and
               (2)  must include the statements described by
  Subsection (a)(1)(E).
         (d)  Each postsecondary educational institution shall
  develop and implement a comprehensive prevention and outreach
  program on sexual harassment, sexual assault, dating violence, and
  stalking.  The program must:
               (1)  address a range of strategies to prevent sexual
  harassment, sexual assault, dating violence, and stalking,
  including a victim empowerment program, a public awareness
  campaign, primary prevention, bystander intervention, and risk
  reduction; and
               (2)  include providing to students information
  regarding the protocol for reporting incidents of sexual
  harassment, sexual assault, dating violence, and stalking adopted
  under Subsection (a), including the name, office location, and
  contact information of the institution's Title IX coordinator, by:
                     (A)  e-mailing the information to each student at
  the beginning of each semester or other academic term; and
                     (B)  including the information in the orientation
  required under Subsection (c).
         (e)  As part of the protocol for responding to reports of
  sexual harassment, sexual assault, dating violence, and stalking
  adopted under Subsection (a), each postsecondary educational
  institution shall:
               (1)  to the greatest extent practicable based on the
  number of counselors employed by the institution, ensure that each
  alleged victim or alleged perpetrator of an incident of sexual
  harassment, sexual assault, dating violence, or stalking and any
  other person who reports such an incident are offered counseling
  provided by a counselor who does not provide counseling to any other
  person involved in the incident; and
               (2)  notwithstanding any other law, allow an alleged
  victim or alleged perpetrator of an incident of sexual harassment,
  sexual assault, dating violence, or stalking to drop a course in
  which both parties are enrolled without any academic penalty.
         (f)  Each biennium, each postsecondary educational
  institution shall review the institution's sexual harassment,
  sexual assault, dating violence, and stalking policy and, with
  approval of the institution's governing board, revise the policy as
  necessary.
         Sec. 51.285.  VICTIM REQUEST NOT TO INVESTIGATE. (a)  If an
  alleged victim of an incident of sexual harassment, sexual assault,
  dating violence, or stalking reported to a postsecondary
  educational institution requests the institution not to
  investigate the alleged incident, the institution may investigate
  the alleged incident in a manner that complies with the
  confidentiality requirements under Section 51.291.  In determining
  whether to investigate the alleged incident, the institution shall
  consider:
               (1)  the seriousness of the alleged incident;
               (2)  whether the institution has received other reports
  of sexual harassment, sexual assault, dating violence, or stalking
  committed by the alleged perpetrator or perpetrators;
               (3)  whether the alleged incident poses a risk of harm
  to others; and
               (4)  any other factors the institution determines
  relevant.
         (b)  If a postsecondary educational institution decides not
  to investigate an alleged incident of sexual harassment, sexual
  assault, dating violence, or stalking based on the alleged victim's
  request not to investigate, the institution shall take any steps
  the institution determines necessary to protect the health and
  safety of the institution's community in relation to the alleged
  incident.
         (c)  A postsecondary educational institution shall inform an
  alleged victim of an incident of sexual harassment, sexual assault,
  dating violence, or stalking who requests the institution not to
  investigate the alleged incident of the institution's decision
  whether to investigate the alleged incident.
         Sec. 51.286.  DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS.
  A postsecondary educational institution that initiates a
  disciplinary process concerning an allegation that a student
  enrolled at the institution violated the institution's code of
  conduct by committing sexual harassment, sexual assault, dating
  violence, or stalking shall:
               (1)  provide to the student and the alleged victim a
  prompt and equitable opportunity to present witnesses and other
  evidence relevant to the alleged violation during the disciplinary
  process;
               (2)  ensure that both the student and the alleged
  victim have reasonable and equitable access to all evidence
  relevant to the alleged violation in the institution's possession,
  including any statements made by the alleged victim or by other
  persons, information stored electronically, written or electronic
  communications, social media posts, or physical evidence, redacted
  as necessary to comply with any applicable federal or state law
  regarding confidentiality; and
               (3)  take reasonable steps to protect the student and
  the alleged victim from retaliation and harassment during the
  pendency of the disciplinary process.
         Sec. 51.287.  STUDENT WITHDRAWAL OR GRADUATION PENDING
  DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from
  a postsecondary educational institution pending a disciplinary
  charge alleging that the student violated the institution's code of
  conduct by committing sexual harassment, sexual assault, dating
  violence, or stalking, the institution:
               (1)  may not end the disciplinary process or issue a
  transcript to the student until the institution makes a final
  determination of responsibility; and
               (2)  shall expedite the institution's disciplinary
  process as necessary to accommodate both the student's and the
  alleged victim's interest in a speedy resolution.
         (b)  On request by another postsecondary educational
  institution, a postsecondary educational institution shall provide
  to the requesting institution information relating to a
  determination by the institution that a student enrolled at the
  institution violated the institution's code of conduct by
  committing sexual harassment, sexual assault, dating violence, or
  stalking.
         Sec. 51.288.  TRAUMA-INFORMED INVESTIGATION TRAINING. Each
  peace officer employed by a postsecondary educational institution
  shall complete training on trauma-informed investigation into
  allegations of sexual harassment, sexual assault, dating violence,
  and stalking.
         Sec. 51.289.  MEMORANDA OF UNDERSTANDING REQUIRED. To
  facilitate effective communication and coordination regarding
  allegations of sexual harassment, sexual assault, dating violence,
  and stalking at the institution, a postsecondary educational
  institution shall enter into a memorandum of understanding with one
  or more:
               (1)  local law enforcement agencies;
               (2)  sexual harassment, sexual assault, dating
  violence, or stalking advocacy groups; and
               (3)  hospitals or other medical resource providers.
         Sec. 51.290.  RESPONSIBLE AND CONFIDENTIAL EMPLOYEE;
  STUDENT ADVOCATE. (a)  Each postsecondary educational institution
  shall:
               (1)  designate:
                     (A)  one or more employees to act as responsible
  employees for purposes of Title IX of the Education Amendments of
  1972 (20 U.S.C. Section 1681 et seq.); and
                     (B)  one or more employees as persons to whom
  students enrolled at the institution may speak confidentially
  concerning sexual harassment, sexual assault, dating violence, and
  stalking; and
               (2)  inform each student enrolled at the institution of
  the responsible and confidential employees designated under
  Subdivision (1).
         (b)  A postsecondary educational institution may designate
  one or more students enrolled at the institution as student
  advocates to whom other students enrolled at the institution may
  speak confidentially concerning sexual harassment, sexual assault,
  dating violence, and stalking.  The institution shall notify each
  student enrolled at the institution of the student advocates
  designated under this subsection.
         (c)  A confidential employee designated under Subsection
  (a)(1)(B) or a student advocate designated under Subsection (b) may
  not disclose any communication made by a student to the employee or
  advocate unless the student consents to the disclosure or the
  employee or advocate is required to make the disclosure under state
  or federal law.
         Sec. 51.291.  CONFIDENTIALITY. (a)  The protections
  provided by this section apply to:
               (1)  an alleged victim of an incident of sexual
  harassment, sexual assault, dating violence, or stalking reported
  to a postsecondary educational institution;
               (2)  a person who reports to a postsecondary
  educational institution an incident of sexual harassment, sexual
  assault, dating violence, or stalking, who sought guidance from the
  institution concerning such an incident, or who participated in the
  institution's investigation of such an incident; and
               (3)  a person who is alleged in a report made to a
  postsecondary educational institution to have committed or
  assisted in the commission of sexual harassment, sexual assault,
  dating violence, or stalking if, after completing an investigation,
  the institution determines the report to be unsubstantiated or
  without merit.
         (b)  Unless waived in writing by the person, the identity of
  a person described by Subsection (a):
               (1)  is confidential and not subject to disclosure
  under Chapter 552, Government Code; and
               (2)  may be disclosed only to:
                     (A)  the postsecondary educational institution to
  which the report described by Subsection (a) is made as necessary to
  conduct an investigation of the report;
                     (B)  a law enforcement officer as necessary to
  conduct a criminal investigation of the report described by
  Subsection (a); or
                     (C)  a health care provider in an emergency
  situation, as determined necessary by the institution.
         (c)  A disclosure under Subsection (b) is not a voluntary
  disclosure for purposes of Section 552.007, Government Code.
         (d)  Information regarding an incident of sexual harassment,
  sexual assault, dating violence, or stalking disclosed to a health
  care provider or other medical provider employed by a postsecondary
  educational institution is confidential and may be shared by the
  provider only with the victim's consent. The provider must provide
  aggregate data or other nonidentifying information regarding those
  incidents to the institution's Title IX coordinator.
         Sec. 51.292.  COMPLIANCE. (a) If the coordinating board
  determines that a postsecondary educational institution is not in
  substantial compliance with this subchapter, the coordinating
  board may assess an administrative penalty against the institution
  in an amount not to exceed $2 million. In determining the amount of
  the penalty, the coordinating board shall consider the nature of
  the violation and the number of students enrolled at the
  institution.
         (b)  If the coordinating board assesses an administrative
  penalty against a postsecondary educational institution under
  Subsection (a), the coordinating board shall provide to the
  institution written notice of the coordinating board's reasons for
  assessing the penalty.
         (c)  A postsecondary educational institution assessed an
  administrative penalty under Subsection (a) may appeal the penalty
  in the manner provided by Chapter 2001, Government Code.
         (d)  A postsecondary educational institution may not pay an
  administrative penalty assessed under Subsection (a) using state or
  federal money.
         (e)  An administrative penalty collected under this section
  shall be deposited to the credit of the sexual assault program fund
  established under Section 420.008, Government Code.
         (f)  The coordinating board shall annually submit to the
  governor, the lieutenant governor, the speaker of the house of
  representatives, and the standing legislative committees with
  primary jurisdiction over legislation concerning sexual assault at
  postsecondary educational institutions a report regarding
  compliance with this subchapter, including a summary of the
  postsecondary educational institutions found not to be in
  substantial compliance as provided by this section and any
  penalties assessed under this section during the preceding year.
         Sec. 51.293.  EQUAL ACCESS. In implementing the
  requirements under this subchapter, a postsecondary educational
  institution shall, to the greatest extent practicable, ensure equal
  access for students enrolled at or employees of the institution who
  are persons with disabilities. The institution shall make
  reasonable efforts to consult with a disability services office of
  the institution, advocacy groups for people with disabilities, and
  other relevant stakeholders to assist the institution with
  complying with the institution's duties under this section.
         Sec. 51.294.  ADVISORY COMMITTEE. (a) The commissioner of
  higher education shall establish an advisory committee to:
               (1)  make recommendations to the coordinating board
  regarding rules for adoption under Section 51.295; and
               (2)  develop recommended training for responsible and
  confidential employees designated under Section 51.290 and for
  Title IX coordinators at postsecondary educational institutions.
         (b)  The advisory committee consists of nine members
  appointed by the commissioner of higher education.  Each member
  must be a chief executive officer of a postsecondary educational
  institution or a representative designated by that officer.
         (c)  The advisory committee shall annually review and, if
  necessary, update the training recommended under Subsection
  (a)(2).
         Sec. 51.295.  RULES. (a) The coordinating board shall adopt
  rules as necessary to implement and enforce this subchapter,
  including rules that:
               (1)  define relevant terms; and
               (2)  ensure implementation of this subchapter in a
  manner that complies with federal law regarding confidentiality of
  student educational information, including the Family Educational
  Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
         (b)  In adopting rules under this section, the coordinating
  board shall consult with relevant stakeholders.
         SECTION 2.  Sections 51.9365(b), (c), and (d), Education
  Code, are transferred to Subchapter E-3, Chapter 51, Education
  Code, as added by this Act, redesignated as Section 51.283,
  Education Code, and amended to read as follows:
         Sec. 51.283.  ELECTRONIC REPORTING OPTION. (a) [(b)] Each
  postsecondary educational institution shall provide an option for a
  student enrolled at or an employee of the institution to
  electronically report to the institution an allegation of sexual
  harassment, sexual assault, dating violence, or stalking committed
  against or witnessed by the student or employee, regardless of the
  location at which the alleged offense occurred.
         (b) [(c)]  The electronic reporting option provided under
  Subsection (a) [(b)] must:
               (1)  enable a student or employee to report the alleged
  offense anonymously; and
               (2)  be easily accessible through a clearly
  identifiable link on the postsecondary educational institution's
  Internet website home page.
         (c) [(d)]  A protocol for reporting sexual assault adopted
  under Section 51.282 [51.9363] must comply with this section.
         SECTION 3.  Sections 51.9366(b), (c), (d), (e), and (f),
  Education Code, are transferred to Subchapter E-3, Chapter 51,
  Education Code, as added by this Act, redesignated as Section
  51.284, Education Code, and amended to read as follows:
         Sec. 51.284.  AMNESTY FOR STUDENTS REPORTING CERTAIN
  INCIDENTS. (a) [(b)] A postsecondary educational institution may
  not take any disciplinary action against a student enrolled at the
  institution who in good faith reports to the institution being the
  victim of, or a witness to, an incident of sexual harassment, sexual
  assault, dating violence, or stalking for a violation by the
  student of the institution's code of conduct occurring at or near
  the time of the incident, regardless of the location at which the
  incident occurred or the outcome of the institution's disciplinary
  process regarding the incident, if any.
         (b) [(c)]  A postsecondary educational institution may
  investigate to determine whether a report of an incident of sexual
  harassment, sexual assault, dating violence, or stalking was made
  in good faith.
         (c) [(d)]  A determination that a student is entitled to
  amnesty under Subsection (a) [(b)] is final and may not be revoked.
         (d) [(e)]  Subsection (a) [(b)] does not apply to a student
  who reports the student's own commission or assistance in the
  commission of sexual harassment, sexual assault, dating violence,
  or stalking.
         (e) [(f)]  This section may not be construed to limit a
  postsecondary educational institution's ability to provide amnesty
  from application of the institution's policies in circumstances not
  described by Subsection (a) [(b)].
         SECTION 4.  The following provisions of the Education Code
  are repealed:
               (1)  Section 51.9363;
               (2)  the heading to Sections 51.9365 and 51.9366;
               (3)  Sections 51.9365(a) and (e); and
               (4)  Sections 51.9366(a) and (g).
         SECTION 5.  The changes in law made by this Act apply
  beginning August 1, 2020.
         SECTION 6.  Not later than September 1, 2021, the Texas
  Higher Education Coordinating Board shall submit its initial report
  required under Section 51.292(f), Education Code, as added by this
  Act.
         SECTION 7.  This Act takes effect September 1, 2019.
 
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