Texas 2017 - 85th Regular

Texas Senate Bill SB1851 Compare Versions

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

Old	New	Differences
1	1	85R12428 MAW-F
2	2	By: Garcia, Hinojosa S.B. No. 1851
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the confidential and privileged communications and
8	8	records of victims of certain sexual assault offenses.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. The heading to Subchapter D, Chapter 420,
11	11	Government Code, is amended to read as follows:
12	12	SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS AND RECORDS
13	13	SECTION 2. Section 420.071, Government Code, is amended to
14	14	read as follows:
15	15	Sec. 420.071. CONFIDENTIAL COMMUNICATIONS AND RECORDS;
16	16	PRIVILEGE. (a) Any [A] communication, including an oral or written
17	17	communication, between an employee or volunteer of a sexual assault
18	18	program [advocate] and a survivor [, or a person claiming to be a
19	19	survivor,] that is made in the course of advising, counseling, or
20	20	assisting [providing sexual assault advocacy services to] the
21	21	survivor is confidential [and may not be disclosed except as
22	22	provided by this subchapter].
23	23	(b) Any [A] record created by, provided to, or maintained by
24	24	an employee or volunteer of a sexual assault program is
25	25	confidential if the record relates to the services provided to a
26	26	survivor or contains [of] the identity, personal history, or
27	27	background information of the [a] survivor or information
28	28	concerning the victimization of the [a] survivor [that is created
29	29	by or provided to an advocate or maintained by a sexual assault
30	30	program is confidential and may not be disclosed except as provided
31	31	by this subchapter].
32	32	(c) In any civil, criminal, administrative, or legislative
33	33	proceeding, subject to Section 420.072, a survivor has a privilege
34	34	to refuse to disclose and to prevent another from disclosing, for
35	35	any purpose, a communication or record that is confidential under
36	36	this section. [A person who receives information from a
37	37	confidential communication or record as described by this
38	38	subchapter may not disclose the information except to the extent
39	39	that disclosure is consistent with the authorized purposes for
40	40	which the information was obtained.]
41	41	(d) This subchapter governs a confidential communication or
42	42	record concerning a survivor regardless of when the survivor
43	43	received the services of a [an advocate or] sexual assault program.
44	44	SECTION 3. Section 420.072, Government Code, is amended to
45	45	read as follows:
46	46	Sec. 420.072. DISCLOSURE OF CONFIDENTIAL COMMUNICATION OR
47	47	RECORD [EXCEPTIONS]. (a) A communication or [, a] record [, or
48	48	evidence] that is confidential under Section 420.071 [this
49	49	subchapter] may only be disclosed [in court or in an administrative
50	50	proceeding] if:
51	51	(1) the communication or record [proceeding is brought
52	52	by the survivor against an advocate or a sexual assault program or
53	53	is a criminal proceeding or a certification revocation proceeding
54	54	in which disclosure] is relevant to the claims or defense of a [the
55	55	advocate or] sexual assault program in a proceeding brought by the
56	56	survivor against the program; [or]
57	57	(2) the privilege is waived with respect to the
58	58	communication or record [survivor or other appropriate person
59	59	consents in writing to the disclosure] as provided by Section
60	60	420.073;
61	61	(3) a court orders the disclosure under Section
62	62	420.074;
63	63	(4) an employee or volunteer of a sexual assault
64	64	program [or 420.0735, as applicable.
65	65	[(b) A communication, a record, or evidence that is
66	66	confidential under this subchapter may be disclosed only to:
67	67	[(1) medical or law enforcement personnel if the
68	68	advocate] determines that there is a probability of:
69	69	(A) imminent physical danger to any person to
70	70	[for] whom the communication or [,] record relates; or
71	71	(B) [, or evidence is relevant or if there is a
72	72	probability of] immediate mental or emotional injury to the
73	73	survivor;
74	74	(5) [(2) a governmental agency if the] disclosure is
75	75	necessary:
76	76	(A) to comply with:
77	77	(i) Chapter 261, Family Code; or
78	78	(ii) Chapter 48, Human Resources Code; or
79	79	(B) [required or authorized by law;
80	80	[(3) a qualified person to the extent necessary] for a
81	81	management audit, a financial audit, a program evaluation, or
82	82	research, except that a report of the [research,] audit, [or]
83	83	evaluation, or research may not directly or indirectly identify a
84	84	survivor; or
85	85	(6) an employee or volunteer of a sexual assault
86	86	program, [(4) a person authorized to receive the disclosure as a
87	87	result of written consent obtained under Section 420.073 or
88	88	420.0735; or
89	89	[(5) an advocate] or a person under the supervision of
90	90	a counseling supervisor who is participating in the evaluation or
91	91	counseling of or the provision of services to the survivor,
92	92	determines that the disclosure is necessary to facilitate the
93	93	provision of services to the survivor, if the disclosure was made
94	94	only to an employee or volunteer of the sexual assault program [the
95	95	evaluation or counseling of or advocacy for the survivor].
96	96	(b) Notwithstanding a waiver by a parent or legal guardian
97	97	under Section 420.073(a), an employee or volunteer of a sexual
98	98	assault program may not disclose a [(c) A] communication or [, a]
99	99	record [, or evidence] that is confidential under Section 420.071
100	100	[this subchapter may not be disclosed] to a parent or legal guardian
101	101	of a survivor who is a minor if the employee or volunteer [an
102	102	advocate or a sexual assault program] knows or has reason to believe
103	103	that the parent or legal guardian of the survivor is a suspect in
104	104	the sexual assault of the survivor.
105	105	SECTION 4. The heading to Section 420.073, Government Code,
106	106	is amended to read as follows:
107	107	Sec. 420.073. WAIVER OF PRIVILEGE [CONSENT FOR RELEASE OF
108	108	CERTAIN CONFIDENTIAL INFORMATION].
109	109	SECTION 5. Section 420.073, Government Code, is amended by
110	110	amending Subsection (a) and adding Subsection (a-1) to read as
111	111	follows:
112	112	(a) The privilege provided by Section 420.071(c) may be
113	113	waived only [Consent for the release of confidential information
114	114	other than evidence contained in an evidence collection kit must be
115	115	in writing and signed] by the survivor, a parent or legal guardian
116	116	if the survivor is a minor, a legal guardian if the survivor has
117	117	been adjudicated incompetent to manage the survivor's personal
118	118	affairs, an attorney ad litem appointed for the survivor, or a
119	119	personal representative if the survivor is deceased. The waiver
120	120	[written consent] must:
121	121	(1) be in writing and signed; and
122	122	(2) specify [:
123	123	[(1)] the communication [information] or record for
124	124	which privilege is waived [records covered by the release;
125	125	[(2) the reason or purpose for the release; and
126	126	[(3) the person to whom the information is to be
127	127	released].
128	128	(a-1) Except as provided by this subsection, the
129	129	unauthorized disclosure of a portion of a confidential
130	130	communication or record does not constitute a waiver of the
131	131	privilege provided by Section 420.071(c). If a portion of a
132	132	confidential communication or record is disclosed, a party to the
133	133	relevant court or administrative proceeding may make a motion
134	134	requesting that the privilege be waived with respect to the
135	135	disclosed portion. The court or administrative hearing officer, as
136	136	applicable, may determine that the privilege has been waived only
137	137	if:
138	138	(1) the disclosed portion is relevant to a disputed
139	139	matter at the proceeding; and
140	140	(2) waiver is necessary for a witness to be able to
141	141	respond to questioning concerning the disclosed portion.
142	142	SECTION 6. Section 420.074, Government Code, is amended to
143	143	read as follows:
144	144	Sec. 420.074. DISCLOSURE IN CRIMINAL PROCEEDING
145	145	[SUBPOENA]. (a) Notwithstanding any other provision of this
146	146	chapter, a defendant [person shall disclose a communication, a
147	147	record, or evidence that is confidential under this chapter for
148	148	use] in a criminal [investigation or] proceeding may make a motion
149	149	requesting that the court in which the proceeding is pending order
150	150	the disclosure of a communication or record that is confidential
151	151	under Section 420.071. The motion must be supported by an affidavit
152	152	stating reasonable grounds to believe the communication or record
153	153	contains exculpatory evidence. The defendant must serve a copy of
154	154	the motion on the attorney representing the state and the survivor
155	155	who is the subject of the communication or record [in response to a
156	156	subpoena issued in accordance with law].
157	157	(b) The court shall order the communication or record
158	158	produced for an in camera review by the court if, based on the
159	159	defendant's affidavit, the court finds by a preponderance of the
160	160	evidence that:
161	161	(1) the defendant has a good faith, specific, and
162	162	reasonable belief that the communication or record is relevant,
163	163	material, and exculpatory; and
164	164	(2) the communication or record is not cumulative of
165	165	other evidence or information available to the defendant.
166	166	(c) The court shall order the communication or record
167	167	disclosed to the defendant and the attorney representing the state
168	168	if the court determines that, after a review under Subsection (b),
169	169	the communication or record is exculpatory.
170	170	SECTION 7. Sections 420.073(b) and (c), Government Code,
171	171	are repealed.
172	172	SECTION 8. (a) Except as provided by Subsection (b) of this
173	173	section, the change in law made by this Act applies to any
174	174	communication or record described by Section 420.071, Government
175	175	Code, as amended by this Act, regardless of the date the
176	176	communication is made or the record is created.
177	177	(b) Section 420.074, Government Code, as amended by this
178	178	Act, applies only to a criminal proceeding that commences on or
179	179	after the effective date of this Act. A criminal proceeding that
180	180	commenced before the effective date of this Act is governed by the
181	181	law in effect on the date the proceeding commenced, and the former
182	182	law is continued in effect for that purpose.
183	183	SECTION 9. This Act takes effect September 1, 2017.