85R12428 MAW-F
By: Garcia, Hinojosa S.B. No. 1851
A BILL TO BE ENTITLED
AN ACT
relating to the confidential and privileged communications and
records of victims of certain sexual assault offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subchapter D, Chapter 420,
Government Code, is amended to read as follows:
SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS AND RECORDS
SECTION 2. Section 420.071, Government Code, is amended to
read as follows:
Sec. 420.071. CONFIDENTIAL COMMUNICATIONS AND RECORDS;
PRIVILEGE. (a) Any [A] communication, including an oral or written
communication, between an employee or volunteer of a sexual assault
program [advocate] and a survivor [, or a person claiming to be a
survivor,] that is made in the course of advising, counseling, or
assisting [providing sexual assault advocacy services to] the
survivor is confidential [and may not be disclosed except as
provided by this subchapter].
(b) Any [A] record created by, provided to, or maintained by
an employee or volunteer of a sexual assault program is
confidential if the record relates to the services provided to a
survivor or contains [of] the identity, personal history, or
background information of the [a] survivor or information
concerning the victimization of the [a] survivor [that is created
by or provided to an advocate or maintained by a sexual assault
program is confidential and may not be disclosed except as provided
by this subchapter].
(c) In any civil, criminal, administrative, or legislative
proceeding, subject to Section 420.072, a survivor has a privilege
to refuse to disclose and to prevent another from disclosing, for
any purpose, a communication or record that is confidential under
this section. [A person who receives information from a
confidential communication or record as described by this
subchapter may not disclose the information except to the extent
that disclosure is consistent with the authorized purposes for
which the information was obtained.]
(d) This subchapter governs a confidential communication or
record concerning a survivor regardless of when the survivor
received the services of a [an advocate or] sexual assault program.
SECTION 3. Section 420.072, Government Code, is amended to
read as follows:
Sec. 420.072. DISCLOSURE OF CONFIDENTIAL COMMUNICATION OR
RECORD [EXCEPTIONS]. (a) A communication or [, a] record [, or
evidence] that is confidential under Section 420.071 [this
subchapter] may only be disclosed [in court or in an administrative
proceeding] if:
(1) the communication or record [proceeding is brought
by the survivor against an advocate or a sexual assault program or
is a criminal proceeding or a certification revocation proceeding
in which disclosure] is relevant to the claims or defense of a [the
advocate or] sexual assault program in a proceeding brought by the
survivor against the program; [or]
(2) the privilege is waived with respect to the
communication or record [survivor or other appropriate person
consents in writing to the disclosure] as provided by Section
420.073;
(3) a court orders the disclosure under Section
420.074;
(4) an employee or volunteer of a sexual assault
program [or 420.0735, as applicable.
[(b) A communication, a record, or evidence that is
confidential under this subchapter may be disclosed only to:
[(1) medical or law enforcement personnel if the
advocate] determines that there is a probability of:
(A) imminent physical danger to any person to
[for] whom the communication or [,] record relates; or
(B) [, or evidence is relevant or if there is a
probability of] immediate mental or emotional injury to the
survivor;
(5) [(2) a governmental agency if the] disclosure is
necessary:
(A) to comply with:
(i) Chapter 261, Family Code; or
(ii) Chapter 48, Human Resources Code; or
(B) [required or authorized by law;
[(3) a qualified person to the extent necessary] for a
management audit, a financial audit, a program evaluation, or
research, except that a report of the [research,] audit, [or]
evaluation, or research may not directly or indirectly identify a
survivor; or
(6) an employee or volunteer of a sexual assault
program, [(4) a person authorized to receive the disclosure as a
result of written consent obtained under Section 420.073 or
420.0735; or
[(5) an advocate] or a person under the supervision of
a counseling supervisor who is participating in the evaluation or
counseling of or the provision of services to the survivor,
determines that the disclosure is necessary to facilitate the
provision of services to the survivor, if the disclosure was made
only to an employee or volunteer of the sexual assault program [the
evaluation or counseling of or advocacy for the survivor].
(b) Notwithstanding a waiver by a parent or legal guardian
under Section 420.073(a), an employee or volunteer of a sexual
assault program may not disclose a [(c) A] communication or [, a]
record [, or evidence] that is confidential under Section 420.071
[this subchapter may not be disclosed] to a parent or legal guardian
of a survivor who is a minor if the employee or volunteer [an
advocate or a sexual assault program] knows or has reason to believe
that the parent or legal guardian of the survivor is a suspect in
the sexual assault of the survivor.
SECTION 4. The heading to Section 420.073, Government Code,
is amended to read as follows:
Sec. 420.073. WAIVER OF PRIVILEGE [CONSENT FOR RELEASE OF
CERTAIN CONFIDENTIAL INFORMATION].
SECTION 5. Section 420.073, Government Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The privilege provided by Section 420.071(c) may be
waived only [Consent for the release of confidential information
other than evidence contained in an evidence collection kit must be
in writing and signed] by the survivor, a parent or legal guardian
if the survivor is a minor, a legal guardian if the survivor has
been adjudicated incompetent to manage the survivor's personal
affairs, an attorney ad litem appointed for the survivor, or a
personal representative if the survivor is deceased. The waiver
[written consent] must:
(1) be in writing and signed; and
(2) specify [:
[(1)] the communication [information] or record for
which privilege is waived [records covered by the release;
[(2) the reason or purpose for the release; and
[(3) the person to whom the information is to be
released].
(a-1) Except as provided by this subsection, the
unauthorized disclosure of a portion of a confidential
communication or record does not constitute a waiver of the
privilege provided by Section 420.071(c). If a portion of a
confidential communication or record is disclosed, a party to the
relevant court or administrative proceeding may make a motion
requesting that the privilege be waived with respect to the
disclosed portion. The court or administrative hearing officer, as
applicable, may determine that the privilege has been waived only
if:
(1) the disclosed portion is relevant to a disputed
matter at the proceeding; and
(2) waiver is necessary for a witness to be able to
respond to questioning concerning the disclosed portion.
SECTION 6. Section 420.074, Government Code, is amended to
read as follows:
Sec. 420.074. DISCLOSURE IN CRIMINAL PROCEEDING
[SUBPOENA]. (a) Notwithstanding any other provision of this
chapter, a defendant [person shall disclose a communication, a
record, or evidence that is confidential under this chapter for
use] in a criminal [investigation or] proceeding may make a motion
requesting that the court in which the proceeding is pending order
the disclosure of a communication or record that is confidential
under Section 420.071. The motion must be supported by an affidavit
stating reasonable grounds to believe the communication or record
contains exculpatory evidence. The defendant must serve a copy of
the motion on the attorney representing the state and the survivor
who is the subject of the communication or record [in response to a
subpoena issued in accordance with law].
(b) The court shall order the communication or record
produced for an in camera review by the court if, based on the
defendant's affidavit, the court finds by a preponderance of the
evidence that:
(1) the defendant has a good faith, specific, and
reasonable belief that the communication or record is relevant,
material, and exculpatory; and
(2) the communication or record is not cumulative of
other evidence or information available to the defendant.
(c) The court shall order the communication or record
disclosed to the defendant and the attorney representing the state
if the court determines that, after a review under Subsection (b),
the communication or record is exculpatory.
SECTION 7. Sections 420.073(b) and (c), Government Code,
are repealed.
SECTION 8. (a) Except as provided by Subsection (b) of this
section, the change in law made by this Act applies to any
communication or record described by Section 420.071, Government
Code, as amended by this Act, regardless of the date the
communication is made or the record is created.
(b) Section 420.074, Government Code, as amended by this
Act, applies only to a criminal proceeding that commences on or
after the effective date of this Act. A criminal proceeding that
commenced before the effective date of this Act is governed by the
law in effect on the date the proceeding commenced, and the former
law is continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2017.