Texas 2009 - 81st Regular

Texas House Bill HB2626 Compare Versions

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1	1	H.B. No. 2626
2	2
3	3
4	4	AN ACT
5	5	relating to the forensic medical examination of a sexual assault
6	6	victim who has not reported the assault to a law enforcement agency.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. Article 56.02(a), Code of Criminal Procedure, is
9	9	amended to read as follows:
10	10	(a) A victim, guardian of a victim, or close relative of a
11	11	deceased victim is entitled to the following rights within the
12	12	criminal justice system:
13	13	(1) the right to receive from law enforcement agencies
14	14	adequate protection from harm and threats of harm arising from
15	15	cooperation with prosecution efforts;
16	16	(2) the right to have the magistrate take the safety of
17	17	the victim or his family into consideration as an element in fixing
18	18	the amount of bail for the accused;
19	19	(3) the right, if requested, to be informed:
20	20	(A) by the attorney representing the state of
21	21	relevant court proceedings, including appellate proceedings, and
22	22	to be informed if those proceedings have been canceled or
23	23	rescheduled prior to the event; and
24	24	(B) by an appellate court of decisions of the
25	25	court, after the decisions are entered but before the decisions are
26	26	made public;
27	27	(4) the right to be informed, when requested, by a
28	28	peace officer concerning the defendant's right to bail and the
29	29	procedures in criminal investigations and by the district
30	30	attorney's office concerning the general procedures in the criminal
31	31	justice system, including general procedures in guilty plea
32	32	negotiations and arrangements, restitution, and the appeals and
33	33	parole process;
34	34	(5) the right to provide pertinent information to a
35	35	probation department conducting a presentencing investigation
36	36	concerning the impact of the offense on the victim and his family by
37	37	testimony, written statement, or any other manner prior to any
38	38	sentencing of the offender;
39	39	(6) the right to receive information regarding
40	40	compensation to victims of crime as provided by Subchapter B,
41	41	including information related to the costs that may be compensated
42	42	under that subchapter and the amount of compensation, eligibility
43	43	for compensation, and procedures for application for compensation
44	44	under that subchapter, the payment for a medical examination under
45	45	Article 56.06 for a victim of a sexual assault, and when requested,
46	46	to referral to available social service agencies that may offer
47	47	additional assistance;
48	48	(7) the right to be informed, upon request, of parole
49	49	procedures, to participate in the parole process, to be notified,
50	50	if requested, of parole proceedings concerning a defendant in the
51	51	victim's case, to provide to the Board of Pardons and Paroles for
52	52	inclusion in the defendant's file information to be considered by
53	53	the board prior to the parole of any defendant convicted of any
54	54	crime subject to this subchapter, and to be notified, if requested,
55	55	of the defendant's release;
56	56	(8) the right to be provided with a waiting area,
57	57	separate or secure from other witnesses, including the offender and
58	58	relatives of the offender, before testifying in any proceeding
59	59	concerning the offender; if a separate waiting area is not
60	60	available, other safeguards should be taken to minimize the
61	61	victim's contact with the offender and the offender's relatives and
62	62	witnesses, before and during court proceedings;
63	63	(9) the right to prompt return of any property of the
64	64	victim that is held by a law enforcement agency or the attorney for
65	65	the state as evidence when the property is no longer required for
66	66	that purpose;
67	67	(10) the right to have the attorney for the state
68	68	notify the employer of the victim, if requested, of the necessity of
69	69	the victim's cooperation and testimony in a proceeding that may
70	70	necessitate the absence of the victim from work for good cause;
71	71	(11) the right to counseling, on request, regarding
72	72	acquired immune deficiency syndrome (AIDS) and human
73	73	immunodeficiency virus (HIV) infection and testing for acquired
74	74	immune deficiency syndrome (AIDS), human immunodeficiency virus
75	75	(HIV) infection, antibodies to HIV, or infection with any other
76	76	probable causative agent of AIDS, if the offense is an offense under
77	77	Section 21.02, 21.11(a)(1), 22.011, or 22.021, Penal Code;
78	78	(12) the right to request victim-offender mediation
79	79	coordinated by the victim services division of the Texas Department
80	80	of Criminal Justice;
81	81	(13) the right to be informed of the uses of a victim
82	82	impact statement and the statement's purpose in the criminal
83	83	justice system, to complete the victim impact statement, and to
84	84	have the victim impact statement considered:
85	85	(A) by the attorney representing the state and
86	86	the judge before sentencing or before a plea bargain agreement is
87	87	accepted; and
88	88	(B) by the Board of Pardons and Paroles before an
89	89	inmate is released on parole; and
90	90	(14) to the extent [except as] provided by Articles
91	91	56.06 and 56.065 [Article 56.06(a)], for a victim of a sexual
92	92	assault, the right to a forensic medical examination if, within 96
93	93	hours of the sexual assault, the [sexual] assault is reported to a
94	94	law enforcement agency or a forensic medical examination is
95	95	otherwise conducted at a health care facility [within 96 hours of
96	96	the assault].
97	97	SECTION 2. The heading to Article 56.06, Code of Criminal
98	98	Procedure, is amended to read as follows:
99	99	Art. 56.06. MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM
100	100	WHO HAS REPORTED ASSAULT; COSTS.
101	101	SECTION 3. Subchapter A, Chapter 56, Code of Criminal
102	102	Procedure, is amended by adding Article 56.065 to read as follows:
103	103	Art. 56.065. MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM
104	104	WHO HAS NOT REPORTED ASSAULT; COSTS. (a) In this article:
105	105	(1) "Crime laboratory" has the meaning assigned by
106	106	Article 38.35.
107	107	(2) "Department" means the Department of Public
108	108	Safety.
109	109	(3) "Sexual assault examiner" and "sexual assault
110	110	nurse examiner" have the meanings assigned by Section 420.003,
111	111	Government Code.
112	112	(b) This article applies to the following health care
113	113	facilities that provide diagnosis or treatment services to victims
114	114	of sexual assault:
115	115	(1) a general or special hospital licensed under
116	116	Chapter 241, Health and Safety Code;
117	117	(2) a general or special hospital owned by this state;
118	118	(3) an outpatient clinic; and
119	119	(4) a private physician's office.
120	120	(c) In accordance with Subchapter B, Chapter 420,
121	121	Government Code, and except as provided by Subsection (e), a health
122	122	care facility shall conduct a forensic medical examination of the
123	123	victim of an alleged sexual assault if:
124	124	(1) the victim arrives at the facility within 96 hours
125	125	after the assault occurred;
126	126	(2) the victim consents to the examination; and
127	127	(3) at the time of the examination the victim has not
128	128	reported the assault to a law enforcement agency.
129	129	(d) The department shall pay the appropriate fees, as set by
130	130	attorney general rule, for the forensic portion of the medical
131	131	examination and for the evidence collection kit if a physician,
132	132	sexual assault examiner, or sexual assault nurse examiner conducts
133	133	the forensic portion of the examination within 96 hours after the
134	134	alleged sexual assault occurred. The attorney general shall
135	135	reimburse the department for fees paid under this subsection.
136	136	(e) If a health care facility does not provide diagnosis or
137	137	treatment services to victims of sexual assault, the facility shall
138	138	refer a victim seeking a forensic medical examination under
139	139	Subsection (c) to a health care facility that provides services to
140	140	those victims.
141	141	(f) The department may develop procedures regarding the
142	142	submission or collection of additional evidence of the alleged
143	143	sexual assault other than through an examination as described by
144	144	this article.
145	145	(g) The department shall develop procedures for the
146	146	transfer and preservation of evidence collected under this article
147	147	to a crime laboratory or other suitable location designated by the
148	148	public safety director of the department. The receiving entity
149	149	shall preserve the evidence until the earlier of:
150	150	(1) the second anniversary of the date the evidence
151	151	was collected; or
152	152	(2) the date the victim or a legal representative of
153	153	the victim signs a written consent to release the evidence.
154	154	(h) The victim may not be required to:
155	155	(1) participate in the investigation or prosecution of
156	156	an offense as a condition of receiving a forensic medical
157	157	examination under this article; or
158	158	(2) pay for the forensic portion of the medical
159	159	examination or for the evidence collection kit.
160	160	(i) The attorney general and the department each shall adopt
161	161	rules as necessary to implement this article.
162	162	SECTION 4. Section 323.004(b), Health and Safety Code, is
163	163	amended to read as follows:
164	164	(b) A health care facility providing care to a sexual
165	165	assault survivor shall provide the survivor with:
166	166	(1) a forensic medical examination in accordance with
167	167	Subchapter B, Chapter 420, Government Code, if the examination has
168	168	been requested [approved] by a law enforcement agency under Article
169	169	56.06, Code of Criminal Procedure, or is conducted under Article
170	170	56.065, Code of Criminal Procedure;
171	171	(2) a private area, if available, to wait or speak with
172	172	the appropriate medical, legal, or sexual assault crisis center
173	173	staff or volunteer until a physician, nurse, or physician assistant
174	174	is able to treat the survivor;
175	175	(3) access to a sexual assault program advocate, if
176	176	available, as provided by Article 56.045, Code of Criminal
177	177	Procedure;
178	178	(4) the information form required by Section 323.005;
179	179	(5) a private treatment room, if available;
180	180	(6) if indicated by the history of contact, access to
181	181	appropriate prophylaxis for exposure to sexually transmitted
182	182	infections; and
183	183	(7) the name and telephone number of the nearest
184	184	sexual assault crisis center.
185	185	SECTION 5. Section 323.005(a), Health and Safety Code, is
186	186	amended to read as follows:
187	187	(a) The department shall develop a standard information
188	188	form for sexual assault survivors that must include:
189	189	(1) a detailed explanation of the forensic medical
190	190	examination required to be provided by law, including a statement
191	191	that photographs may be taken of the genitalia;
192	192	(2) information regarding treatment of sexually
193	193	transmitted infections and pregnancy, including:
194	194	(A) generally accepted medical procedures;
195	195	(B) appropriate medications; and
196	196	(C) any contraindications of the medications
197	197	prescribed for treating sexually transmitted infections and
198	198	preventing pregnancy;
199	199	(3) information regarding drug-facilitated sexual
200	200	assault, including the necessity for an immediate urine test for
201	201	sexual assault survivors who may have been involuntarily drugged;
202	202	(4) information regarding crime victims compensation,
203	203	including:
204	204	(A) a statement that:
205	205	(i) a law enforcement agency will pay for
206	206	the forensic portion of an [the] examination requested by the
207	207	agency under Article 56.06, Code of Criminal Procedure, and for the
208	208	evidence collection kit; or
209	209	(ii) the Department of Public Safety will
210	210	pay the appropriate fees for the forensic portion of an examination
211	211	conducted under Article 56.065, Code of Criminal Procedure, and for
212	212	the evidence collection kit; and
213	213	(B) reimbursement information for the medical
214	214	portion of the examination;
215	215	(5) an explanation that consent for the forensic
216	216	medical examination may be withdrawn at any time during the
217	217	examination;
218	218	(6) the name and telephone number of sexual assault
219	219	crisis centers statewide; and
220	220	(7) information regarding postexposure prophylaxis
221	221	for HIV infection.
222	222	SECTION 6. (a) As soon as practicable after the effective
223	223	date of this Act, the attorney general shall adopt the rules
224	224	required by Article 56.065(i), Code of Criminal Procedure, as added
225	225	by this Act.
226	226	(b) As soon as practicable after the effective date of this
227	227	Act, the Department of Public Safety of the State of Texas shall
228	228	adopt the rules required by Article 56.065(i), Code of Criminal
229	229	Procedure, as added by this Act.
230	230	(c) The change in law made by this Act applies to a forensic
231	231	medical examination of an alleged sexual assault victim that is
232	232	conducted on or after the effective date of this Act. An
233	233	examination that is conducted before the effective date of this Act
234	234	is covered by the law in effect when the examination was conducted,
235	235	and the former law is continued in effect for that purpose.
236	236	SECTION 7. This Act takes effect immediately if it receives
237	237	a vote of two-thirds of all the members elected to each house, as
238	238	provided by Section 39, Article III, Texas Constitution. If this
239	239	Act does not receive the vote necessary for immediate effect, this
240	240	Act takes effect September 1, 2009.
241	241	______________________________ ______________________________
242	242	President of the Senate Speaker of the House
243	243	I certify that H.B. No. 2626 was passed by the House on April
244	244	22, 2009, by the following vote: Yeas 147, Nays 0, 1 present, not
245	245	voting; that the House refused to concur in Senate amendments to
246	246	H.B. No. 2626 on May 14, 2009, and requested the appointment of a
247	247	conference committee to consider the differences between the two
248	248	houses; and that the House adopted the conference committee report
249	249	on H.B. No. 2626 on May 27, 2009, by the following vote: Yeas 142,
250	250	Nays 0, 2 present, not voting.
251	251	______________________________
252	252	Chief Clerk of the House
253	253	I certify that H.B. No. 2626 was passed by the Senate, with
254	254	amendments, on May 5, 2009, by the following vote: Yeas 29, Nays 0;
255	255	at the request of the House, the Senate appointed a conference
256	256	committee to consider the differences between the two houses; and
257	257	that the Senate adopted the conference committee report on H.B. No.
258	258	2626 on May 30, 2009, by the following vote: Yeas 31, Nays 0.
259	259	______________________________
260	260	Secretary of the Senate
261	261	APPROVED: __________________
262	262	Date
263	263	__________________
264	264	Governor