Texas 2009 - 81st Regular

Texas Senate Bill SB2239 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R5736 SJM-D
2	2	By: Zaffirini S.B. No. 2239
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the forensic medical examination of a sexual assault
8	8	victim who has not reported the assault to a law enforcement agency.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Article 56.02(a), Code of Criminal Procedure, is
11	11	amended to read as follows:
12	12	(a) A victim, guardian of a victim, or close relative of a
13	13	deceased victim is entitled to the following rights within the
14	14	criminal justice system:
15	15	(1) the right to receive from law enforcement agencies
16	16	adequate protection from harm and threats of harm arising from
17	17	cooperation with prosecution efforts;
18	18	(2) the right to have the magistrate take the safety of
19	19	the victim or his family into consideration as an element in fixing
20	20	the amount of bail for the accused;
21	21	(3) the right, if requested, to be informed:
22	22	(A) by the attorney representing the state of
23	23	relevant court proceedings, including appellate proceedings, and
24	24	to be informed if those proceedings have been canceled or
25	25	rescheduled prior to the event; and
26	26	(B) by an appellate court of decisions of the
27	27	court, after the decisions are entered but before the decisions are
28	28	made public;
29	29	(4) the right to be informed, when requested, by a
30	30	peace officer concerning the defendant's right to bail and the
31	31	procedures in criminal investigations and by the district
32	32	attorney's office concerning the general procedures in the criminal
33	33	justice system, including general procedures in guilty plea
34	34	negotiations and arrangements, restitution, and the appeals and
35	35	parole process;
36	36	(5) the right to provide pertinent information to a
37	37	probation department conducting a presentencing investigation
38	38	concerning the impact of the offense on the victim and his family by
39	39	testimony, written statement, or any other manner prior to any
40	40	sentencing of the offender;
41	41	(6) the right to receive information regarding
42	42	compensation to victims of crime as provided by Subchapter B,
43	43	including information related to the costs that may be compensated
44	44	under that subchapter and the amount of compensation, eligibility
45	45	for compensation, and procedures for application for compensation
46	46	under that subchapter, the payment for a medical examination under
47	47	Article 56.06 for a victim of a sexual assault, and when requested,
48	48	to referral to available social service agencies that may offer
49	49	additional assistance;
50	50	(7) the right to be informed, upon request, of parole
51	51	procedures, to participate in the parole process, to be notified,
52	52	if requested, of parole proceedings concerning a defendant in the
53	53	victim's case, to provide to the Board of Pardons and Paroles for
54	54	inclusion in the defendant's file information to be considered by
55	55	the board prior to the parole of any defendant convicted of any
56	56	crime subject to this subchapter, and to be notified, if requested,
57	57	of the defendant's release;
58	58	(8) the right to be provided with a waiting area,
59	59	separate or secure from other witnesses, including the offender and
60	60	relatives of the offender, before testifying in any proceeding
61	61	concerning the offender; if a separate waiting area is not
62	62	available, other safeguards should be taken to minimize the
63	63	victim's contact with the offender and the offender's relatives and
64	64	witnesses, before and during court proceedings;
65	65	(9) the right to prompt return of any property of the
66	66	victim that is held by a law enforcement agency or the attorney for
67	67	the state as evidence when the property is no longer required for
68	68	that purpose;
69	69	(10) the right to have the attorney for the state
70	70	notify the employer of the victim, if requested, of the necessity of
71	71	the victim's cooperation and testimony in a proceeding that may
72	72	necessitate the absence of the victim from work for good cause;
73	73	(11) the right to counseling, on request, regarding
74	74	acquired immune deficiency syndrome (AIDS) and human
75	75	immunodeficiency virus (HIV) infection and testing for acquired
76	76	immune deficiency syndrome (AIDS), human immunodeficiency virus
77	77	(HIV) infection, antibodies to HIV, or infection with any other
78	78	probable causative agent of AIDS, if the offense is an offense under
79	79	Section 21.02, 21.11(a)(1), 22.011, or 22.021, Penal Code;
80	80	(12) the right to request victim-offender mediation
81	81	coordinated by the victim services division of the Texas Department
82	82	of Criminal Justice;
83	83	(13) the right to be informed of the uses of a victim
84	84	impact statement and the statement's purpose in the criminal
85	85	justice system, to complete the victim impact statement, and to
86	86	have the victim impact statement considered:
87	87	(A) by the attorney representing the state and
88	88	the judge before sentencing or before a plea bargain agreement is
89	89	accepted; and
90	90	(B) by the Board of Pardons and Paroles before an
91	91	inmate is released on parole; and
92	92	(14) to the extent [except as] provided by Articles
93	93	56.06 and 56.065 [Article 56.06(a)], for a victim of a sexual
94	94	assault, the right to a forensic medical examination if, within 96
95	95	hours of the sexual assault, the [sexual] assault is reported to a
96	96	law enforcement agency or a forensic medical examination is
97	97	otherwise conducted at a health care facility [within 96 hours of
98	98	the assault].
99	99	SECTION 2. The heading to Article 56.06, Code of Criminal
100	100	Procedure, is amended to read as follows:
101	101	Art. 56.06. MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM
102	102	WHO HAS REPORTED ASSAULT; COSTS.
103	103	SECTION 3. Subchapter A, Chapter 56, Code of Criminal
104	104	Procedure, is amended by adding Article 56.065 to read as follows:
105	105	Art. 56.065. MEDICAL EXAMINATION FOR SEXUAL ASSAULT VICTIM
106	106	WHO HAS NOT REPORTED ASSAULT; COSTS. (a) In this article:
107	107	(1) "Crime laboratory" has the meaning assigned by
108	108	Article 38.35.
109	109	(2) "Department" means the Department of Public
110	110	Safety.
111	111	(3) "Sexual assault examiner" and "sexual assault
112	112	nurse examiner" have the meanings assigned by Section 420.003,
113	113	Government Code.
114	114	(b) This article applies to the following health care
115	115	facilities that provide diagnosis or treatment services to victims
116	116	of sexual assault:
117	117	(1) a general or special hospital licensed under
118	118	Chapter 241, Health and Safety Code;
119	119	(2) a general or special hospital owned by this state;
120	120	(3) an outpatient clinic; and
121	121	(4) a private physician's office.
122	122	(c) Except as provided by Subsection (e), a health care
123	123	facility shall conduct in accordance with Subchapter B, Chapter
124	124	420, Government Code, a forensic medical examination of the victim
125	125	of an alleged sexual assault if:
126	126	(1) the victim arrives at the facility within 96 hours
127	127	after the assault occurred;
128	128	(2) the victim or a legal representative of the victim
129	129	consents to the examination;
130	130	(3) at the time of the examination the victim has not
131	131	reported the assault to a law enforcement agency; and
132	132	(4) a physician determines that it is not detrimental
133	133	to the victim's health to conduct the examination.
134	134	(d) The department shall pay for reasonable costs of the
135	135	forensic portion of the medical examination and for the evidence
136	136	collection kit if a physician, sexual assault examiner, or sexual
137	137	assault nurse examiner conducts the forensic portion of the
138	138	examination within 96 hours after the alleged sexual assault
139	139	occurred. The attorney general shall reimburse the department for
140	140	costs paid under this subsection.
141	141	(e) If a health care facility does not provide diagnosis or
142	142	treatment services to victims of sexual assault, the facility shall
143	143	refer a victim seeking a forensic medical examination under
144	144	Subsection (c) to a health care facility that provides services to
145	145	those victims.
146	146	(f) The department shall develop procedures for the
147	147	transfer of evidence collected under this article to a crime
148	148	laboratory designated by the department. The designated laboratory
149	149	shall preserve the evidence until the earlier of:
150	150	(1) the second anniversary of the date the laboratory
151	151	received the evidence; 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	(g) 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 cost of the forensic portion of the
159	159	medical examination or for the evidence collection kit.
160	160	(h) 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 cost of the forensic portion of an [the] examination requested
207	207	by the agency under Article 56.06, Code of Criminal Procedure; or
208	208	(ii) the Department of Public Safety will
209	209	pay for the reasonable costs of the forensic portion of an
210	210	examination conducted under Article 56.065, Code of Criminal
211	211	Procedure; and
212	212	(B) reimbursement information for the medical
213	213	portion of the examination;
214	214	(5) an explanation that consent for the forensic
215	215	medical examination may be withdrawn at any time during the
216	216	examination;
217	217	(6) the name and telephone number of sexual assault
218	218	crisis centers statewide; and
219	219	(7) information regarding postexposure prophylaxis
220	220	for HIV infection.
221	221	SECTION 6. (a) As soon as practicable after the effective
222	222	date of this Act, the attorney general shall adopt the rules
223	223	required by Article 56.065(h), Code of Criminal Procedure, as added
224	224	by this Act.
225	225	(b) As soon as practicable after the effective date of this
226	226	Act, the Department of Public Safety of the State of Texas shall
227	227	adopt the rules required by Article 56.065(h), Code of Criminal
228	228	Procedure, as added by this Act.
229	229	(c) The change in law made by this Act applies to a forensic
230	230	medical examination of an alleged sexual assault victim that is
231	231	conducted on or after the effective date of this Act. An
232	232	examination that is conducted before the effective date of this Act
233	233	is covered by the law in effect when the examination was conducted,
234	234	and the former law is continued in effect for that purpose.
235	235	SECTION 7. This Act takes effect September 1, 2009.