Texas 2019 - 86th Regular

Texas House Bill HB1735 Compare Versions

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Version 2 (New)

Old	New		Differences
1		-	H.B. No. 1735
	1	+	By: Howard, et al. (Senate Sponsor - Watson) H.B. No. 1735
	2	+	(In the Senate - Received from the House April 23, 2019;
	3	+	April 29, 2019, read first time and referred to Committee on Higher
	4	+	Education; May 13, 2019, reported adversely, with favorable
	5	+	Committee Substitute by the following vote: Yeas 8, Nays 0;
	6	+	May 13, 2019, sent to printer.)
	7	+	Click here to see the committee vote
	8	+	COMMITTEE SUBSTITUTE FOR H.B. No. 1735 By: Watson
2	9
3	10
	11	+	A BILL TO BE ENTITLED
4	12		AN ACT
5	13		relating to sexual harassment, sexual assault, dating violence, and
6	14		stalking at public and private postsecondary educational
7	15		institutions; providing an administrative penalty.
8	16		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	17		SECTION 1. Chapter 51, Education Code, is amended by adding
10	18		Subchapter E-3 to read as follows:
11	19		SUBCHAPTER E-3. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING
12	20		VIOLENCE, AND STALKING
13	21		Sec. 51.281. DEFINITIONS. In this subchapter:
14	22		(1) "Coordinating board" means the Texas Higher
15	23		Education Coordinating Board.
16	24		(2) "Dating violence," "sexual assault," and
17	25		"stalking" have the meanings assigned by the Jeanne Clery
18	26		Disclosure of Campus Security Policy and Campus Crime Statistics
19	27		Act (20 U.S.C. Section 1092(f)(6)(A)).
20	28		(3) "Postsecondary educational institution" means an
21	29		institution of higher education or a private or independent
22	30		institution of higher education, as those terms are defined by
23	31		Section 61.003.
24	32		(4) "Sexual harassment" means unwelcome, sex-based
25	33		verbal or physical conduct that:
26	34		(A) in the employment context, unreasonably
27	35		interferes with a person's work performance or creates an
28	36		intimidating, hostile, or offensive work environment; or
29	37		(B) in the education context, is sufficiently
30	38		severe, persistent, or pervasive that the conduct interferes with a
31	39		student's ability to participate in or benefit from educational
32	40		programs or activities at a postsecondary educational institution.
33	41		Sec. 51.282. POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT,
34	42		DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational
35	43		institution shall adopt a policy on sexual harassment, sexual
36	44		assault, dating violence, and stalking applicable to each student
37	45		enrolled at and each employee of the institution. The policy must:
38	46		(1) include:
39	47		(A) definitions of prohibited behavior;
40	48		(B) sanctions for violations;
41	49		(C) the protocol for reporting and responding to
42	50		reports of sexual harassment, sexual assault, dating violence, and
43	51		stalking;
44	52		(D) interim measures to protect victims of sexual
45	53		harassment, sexual assault, dating violence, or stalking during the
46	54		pendency of the institution's disciplinary process, including
47	55		protection from retaliation, and any other accommodations
48	56		available to those victims at the institution; and
49	57		(E) a statement regarding:
50	58		(i) the importance of a victim of sexual
51	59		harassment, sexual assault, dating violence, or stalking going to a
52	60		hospital for treatment and preservation of evidence, if applicable,
53	61		as soon as practicable after the incident;
54	62		(ii) the right of a victim of sexual
55	63		harassment, sexual assault, dating violence, or stalking to report
56	64		the incident to the institution and to receive a prompt and
57	65		equitable resolution of the report; and
58	66		(iii) the right of a victim of a crime to
59	67		choose whether to report the crime to law enforcement, to be
60	68		assisted by the institution in reporting the crime to law
61	69		enforcement, or to decline to report the crime to law enforcement;
62	70		and
63	71		(2) be approved by the institution's governing board
64	72		before final adoption by the institution.
65	73		(b) Each postsecondary educational institution shall make
66	74		the institution's sexual harassment, sexual assault, dating
67	75		violence, and stalking policy available to students, faculty, and
68	76		staff members by:
69	77		(1) including the policy in the institution's student
70	78		handbook and personnel handbook; and
71	79		(2) creating and maintaining a web page dedicated
72	80		solely to the policy that is easily accessible through a clearly
73	81		identifiable link on the institution's Internet website home page.
74	82		(c) Each postsecondary educational institution shall
75	83		require each entering freshman or undergraduate transfer student to
76	84		attend an orientation on the institution's sexual harassment,
77	85		sexual assault, dating violence, and stalking policy before or
78	86		during the first semester or term in which the student is enrolled
79	87		at the institution. The institution shall establish the format and
80	88		content of the orientation. The orientation:
81	89		(1) may be provided online; and
82	90		(2) must include the statements described by
83	91		Subsection (a)(1)(E).
84	92		(d) Each postsecondary educational institution shall
85	93		develop and implement a comprehensive prevention and outreach
86	94		program on sexual harassment, sexual assault, dating violence, and
87	95		stalking. The program must:
88	96		(1) address a range of strategies to prevent sexual
89	97		harassment, sexual assault, dating violence, and stalking,
90	98		including a victim empowerment program, a public awareness
91	99		campaign, primary prevention, bystander intervention, and risk
92	100		reduction; and
93	101		(2) include providing to students information
94	102		regarding the protocol for reporting incidents of sexual
95	103		harassment, sexual assault, dating violence, and stalking adopted
96	104		under Subsection (a), including the name, office location, and
97	105		contact information of the institution's Title IX coordinator, by:
98	106		(A) e-mailing the information to each student at
99	107		the beginning of each semester or other academic term; and
100	108		(B) including the information in the orientation
101	109		required under Subsection (c).
102	110		(e) As part of the protocol for responding to reports of
103	111		sexual harassment, sexual assault, dating violence, and stalking
104	112		adopted under Subsection (a), each postsecondary educational
105	113		institution shall:
106	114		(1) to the greatest extent practicable based on the
107	115		number of counselors employed by the institution, ensure that each
108	116		alleged victim or alleged perpetrator of an incident of sexual
109	117		harassment, sexual assault, dating violence, or stalking and any
110	118		other person who reports such an incident are offered counseling
111	119		provided by a counselor who does not provide counseling to any other
112	120		person involved in the incident; and
113	121		(2) notwithstanding any other law, allow an alleged
114	122		victim or alleged perpetrator of an incident of sexual harassment,
115	123		sexual assault, dating violence, or stalking to drop a course in
116	124		which both parties are enrolled without any academic penalty.
117	125		(f) Each biennium, each postsecondary educational
118	126		institution shall review the institution's sexual harassment,
119	127		sexual assault, dating violence, and stalking policy and, with
120	128		approval of the institution's governing board, revise the policy as
121	129		necessary.
122	130		Sec. 51.285. VICTIM REQUEST NOT TO INVESTIGATE. (a) If an
123	131		alleged victim of an incident of sexual harassment, sexual assault,
124	132		dating violence, or stalking reported to a postsecondary
125	133		educational institution requests the institution not to
126	134		investigate the alleged incident, the institution may investigate
127	135		the alleged incident in a manner that complies with the
128	136		confidentiality requirements under Section 51.291. In determining
129	137		whether to investigate the alleged incident, the institution shall
130	138		consider:
131	139		(1) the seriousness of the alleged incident;
132	140		(2) whether the institution has received other reports
133	141		of sexual harassment, sexual assault, dating violence, or stalking
134	142		committed by the alleged perpetrator or perpetrators;
135	143		(3) whether the alleged incident poses a risk of harm
136	144		to others; and
137	145		(4) any other factors the institution determines
138	146		relevant.
139	147		(b) If a postsecondary educational institution decides not
140	148		to investigate an alleged incident of sexual harassment, sexual
141	149		assault, dating violence, or stalking based on the alleged victim's
142	150		request not to investigate, the institution shall take any steps
143	151		the institution determines necessary to protect the health and
144	152		safety of the institution's community in relation to the alleged
145	153		incident.
146	154		(c) A postsecondary educational institution shall inform an
147	155		alleged victim of an incident of sexual harassment, sexual assault,
148	156		dating violence, or stalking who requests the institution not to
149	157		investigate the alleged incident of the institution's decision
150	158		whether to investigate the alleged incident.
151	159		Sec. 51.286. DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS.
152	160		A postsecondary educational institution that initiates a
153	161		disciplinary process concerning an allegation that a student
154	162		enrolled at the institution violated the institution's code of
155	163		conduct by committing sexual harassment, sexual assault, dating
156	164		violence, or stalking shall:
157	165		(1) provide to the student and the alleged victim a
158	166		prompt and equitable opportunity to present witnesses and other
159	167		evidence relevant to the alleged violation during the disciplinary
160	168		process;
161	169		(2) ensure that both the student and the alleged
162	170		victim have reasonable and equitable access to all evidence
163	171		relevant to the alleged violation in the institution's possession,
164	172		including any statements made by the alleged victim or by other
165	173		persons, information stored electronically, written or electronic
166	174		communications, social media posts, or physical evidence, redacted
167	175		as necessary to comply with any applicable federal or state law
168	176		regarding confidentiality; and
169	177		(3) take reasonable steps to protect the student and
170	178		the alleged victim from retaliation and harassment during the
171	179		pendency of the disciplinary process.
172	180		Sec. 51.287. STUDENT WITHDRAWAL OR GRADUATION PENDING
173	181		DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from
174	182		a postsecondary educational institution pending a disciplinary
175	183		charge alleging that the student violated the institution's code of
176	184		conduct by committing sexual harassment, sexual assault, dating
177	185		violence, or stalking, the institution:
178	186		(1) may not end the disciplinary process or issue a
179	187		transcript to the student until the institution makes a final
180	188		determination of responsibility; and
181	189		(2) shall expedite the institution's disciplinary
182	190		process as necessary to accommodate both the student's and the
183	191		alleged victim's interest in a speedy resolution.
184	192		(b) On request by another postsecondary educational
185	193		institution, a postsecondary educational institution shall provide
186	194		to the requesting institution information relating to a
187	195		determination by the institution that a student enrolled at the
188	196		institution violated the institution's code of conduct by
189	197		committing sexual harassment, sexual assault, dating violence, or
190	198		stalking.
191	199		Sec. 51.288. TRAUMA-INFORMED INVESTIGATION TRAINING. Each
192	200		peace officer employed by a postsecondary educational institution
193	201		shall complete training on trauma-informed investigation into
194	202		allegations of sexual harassment, sexual assault, dating violence,
195	203		and stalking.
196	204		Sec. 51.289. MEMORANDA OF UNDERSTANDING REQUIRED. To
197	205		facilitate effective communication and coordination regarding
198	206		allegations of sexual harassment, sexual assault, dating violence,
199	207		and stalking at the institution, a postsecondary educational
200	208		institution shall enter into a memorandum of understanding with one
201	209		or more:
202	210		(1) local law enforcement agencies;
203	211		(2) sexual harassment, sexual assault, dating
204	212		violence, or stalking advocacy groups; and
205	213		(3) hospitals or other medical resource providers.
206	214		Sec. 51.290. RESPONSIBLE AND CONFIDENTIAL EMPLOYEE;
207	215		STUDENT ADVOCATE. (a) Each postsecondary educational institution
208	216		shall:
209	217		(1) designate:
210	218		(A) one or more employees to act as responsible
211	219		employees for purposes of Title IX of the Education Amendments of
212	220		1972 (20 U.S.C. Section 1681 et seq.); and
213	221		(B) one or more employees as persons to whom
214	222		students enrolled at the institution may speak confidentially
215	223		concerning sexual harassment, sexual assault, dating violence, and
216	224		stalking; and
217	225		(2) inform each student enrolled at the institution of
218	226		the responsible and confidential employees designated under
219	227		Subdivision (1).
220	228		(b) A postsecondary educational institution may designate
221	229		one or more students enrolled at the institution as student
222	230		advocates to whom other students enrolled at the institution may
223	231		speak confidentially concerning sexual harassment, sexual assault,
224	232		dating violence, and stalking. The institution shall notify each
225	233		student enrolled at the institution of the student advocates
226	234		designated under this subsection.
227	235		(c) A confidential employee designated under Subsection
228	236		(a)(1)(B) or a student advocate designated under Subsection (b) may
229	237		not disclose any communication made by a student to the employee or
230	238		advocate unless the student consents to the disclosure or the
231	239		employee or advocate is required to make the disclosure under state
232	240		or federal law.
233	241		Sec. 51.291. CONFIDENTIALITY. (a) The protections
234	242		provided by this section apply to:
235	243		(1) an alleged victim of an incident of sexual
236	244		harassment, sexual assault, dating violence, or stalking reported
237	245		to a postsecondary educational institution;
238	246		(2) a person who reports to a postsecondary
239	247		educational institution an incident of sexual harassment, sexual
240	248		assault, dating violence, or stalking, who sought guidance from the
241	249		institution concerning such an incident, or who participated in the
242	250		institution's investigation of such an incident; and
243	251		(3) a person who is alleged in a report made to a
244	252		postsecondary educational institution to have committed or
245	253		assisted in the commission of sexual harassment, sexual assault,
246	254		dating violence, or stalking if, after completing an investigation,
247	255		the institution determines the report to be unsubstantiated or
248	256		without merit.
249	257		(b) Unless waived in writing by the person, the identity of
250	258		a person described by Subsection (a):
251	259		(1) is confidential and not subject to disclosure
252	260		under Chapter 552, Government Code; and
253	261		(2) may be disclosed only to:
254	262		(A) the postsecondary educational institution to
255	263		which the report described by Subsection (a) is made as necessary to
256	264		conduct an investigation of the report;
257	265		(B) a law enforcement officer as necessary to
258	266		conduct a criminal investigation of the report described by
259	267		Subsection (a); or
260	268		(C) a health care provider in an emergency
261	269		situation, as determined necessary by the institution.
262	270		(c) A disclosure under Subsection (b) is not a voluntary
263	271		disclosure for purposes of Section 552.007, Government Code.
264	272		(d) Information regarding an incident of sexual harassment,
265	273		sexual assault, dating violence, or stalking disclosed to a health
266	274		care provider or other medical provider employed by a postsecondary
267	275		educational institution is confidential and may be shared by the
268	276		provider only with the victim's consent. The provider must provide
269	277		aggregate data or other nonidentifying information regarding those
270	278		incidents to the institution's Title IX coordinator.
271	279		Sec. 51.292. COMPLIANCE. (a) If the coordinating board
272	280		determines that a postsecondary educational institution is not in
273	281		substantial compliance with this subchapter, the coordinating
274	282		board may assess an administrative penalty against the institution
275	283		in an amount not to exceed $2 million. In determining the amount of
276	284		the penalty, the coordinating board shall consider the nature of
277	285		the violation and the number of students enrolled at the
278	286		institution.
279	287		(b) If the coordinating board assesses an administrative
280	288		penalty against a postsecondary educational institution under
281	289		Subsection (a), the coordinating board shall provide to the
282	290		institution written notice of the coordinating board's reasons for
283	291		assessing the penalty.
284	292		(c) A postsecondary educational institution assessed an
285	293		administrative penalty under Subsection (a) may appeal the penalty
286	294		in the manner provided by Chapter 2001, Government Code.
287	295		(d) A postsecondary educational institution may not pay an
288	296		administrative penalty assessed under Subsection (a) using state or
289	297		federal money.
290	298		(e) An administrative penalty collected under this section
291	299		shall be deposited to the credit of the sexual assault program fund
292	300		established under Section 420.008, Government Code.
293	301		(f) The coordinating board shall annually submit to the
294	302		governor, the lieutenant governor, the speaker of the house of
295	303		representatives, and the standing legislative committees with
296	304		primary jurisdiction over legislation concerning sexual assault at
297	305		postsecondary educational institutions a report regarding
298	306		compliance with this subchapter, including a summary of the
299	307		postsecondary educational institutions found not to be in
300	308		substantial compliance as provided by this section and any
301	309		penalties assessed under this section during the preceding year.
302	310		Sec. 51.293. EQUAL ACCESS. In implementing the
303	311		requirements under this subchapter, a postsecondary educational
304	312		institution shall, to the greatest extent practicable, ensure equal
305	313		access for students enrolled at or employees of the institution who
306	314		are persons with disabilities. The institution shall make
307	315		reasonable efforts to consult with a disability services office of
308	316		the institution, advocacy groups for people with disabilities, and
309	317		other relevant stakeholders to assist the institution with
310	318		complying with the institution's duties under this section.
311	319		Sec. 51.294. ADVISORY COMMITTEE. (a) The commissioner of
312	320		higher education shall establish an advisory committee to:
313	321		(1) make recommendations to the coordinating board
314	322		regarding rules for adoption under Section 51.295; and
315	323		(2) develop recommended training for responsible and
316	324		confidential employees designated under Section 51.290 and for
317	325		Title IX coordinators at postsecondary educational institutions.
318	326		(b) The advisory committee consists of nine members
319	327		appointed by the commissioner of higher education. Each member
320	328		must be a chief executive officer of a postsecondary educational
321	329		institution or a representative designated by that officer.
322	330		(c) The advisory committee shall annually review and, if
323	331		necessary, update the training recommended under Subsection
324	332		(a)(2).
325	333		Sec. 51.295. RULES. (a) The coordinating board shall adopt
326	334		rules as necessary to implement and enforce this subchapter,
327	335		including rules that:
328	336		(1) define relevant terms; and
329	337		(2) ensure implementation of this subchapter in a
330	338		manner that complies with federal law regarding confidentiality of
331	339		student educational information, including the Family Educational
332	340		Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).
333	341		(b) In adopting rules under this section, the coordinating
334	342		board shall consult with relevant stakeholders.
335	343		SECTION 2. Sections 51.9365(b), (c), and (d), Education
336	344		Code, are transferred to Subchapter E-3, Chapter 51, Education
337	345		Code, as added by this Act, redesignated as Section 51.283,
338	346		Education Code, and amended to read as follows:
339	347		Sec. 51.283. ELECTRONIC REPORTING OPTION. (a) [(b)] Each
340	348		postsecondary educational institution shall provide an option for a
341	349		student enrolled at or an employee of the institution to
342	350		electronically report to the institution an allegation of sexual
343	351		harassment, sexual assault, dating violence, or stalking committed
344	352		against or witnessed by the student or employee, regardless of the
345	353		location at which the alleged offense occurred.
346	354		(b) [(c)] The electronic reporting option provided under
347	355		Subsection (a) [(b)] must:
348	356		(1) enable a student or employee to report the alleged
349	357		offense anonymously; and
350	358		(2) be easily accessible through a clearly
351	359		identifiable link on the postsecondary educational institution's
352	360		Internet website home page.
353	361		(c) [(d)] A protocol for reporting sexual assault adopted
354	362		under Section 51.282 [51.9363] must comply with this section.
355	363		SECTION 3. Sections 51.9366(b), (c), (d), (e), and (f),
356	364		Education Code, are transferred to Subchapter E-3, Chapter 51,
357	365		Education Code, as added by this Act, redesignated as Section
358	366		51.284, Education Code, and amended to read as follows:
359	367		Sec. 51.284. AMNESTY FOR STUDENTS REPORTING CERTAIN
360	368		INCIDENTS. (a) [(b)] A postsecondary educational institution may
361	369		not take any disciplinary action against a student enrolled at the
362	370		institution who in good faith reports to the institution being the
363	371		victim of, or a witness to, an incident of sexual harassment, sexual
364	372		assault, dating violence, or stalking for a violation by the
365	373		student of the institution's code of conduct occurring at or near
366	374		the time of the incident, regardless of the location at which the
367	375		incident occurred or the outcome of the institution's disciplinary
368	376		process regarding the incident, if any.
369	377		(b) [(c)] A postsecondary educational institution may
370	378		investigate to determine whether a report of an incident of sexual
371	379		harassment, sexual assault, dating violence, or stalking was made
372	380		in good faith.
373	381		(c) [(d)] A determination that a student is entitled to
374	382		amnesty under Subsection (a) [(b)] is final and may not be revoked.
375	383		(d) [(e)] Subsection (a) [(b)] does not apply to a student
376	384		who reports the student's own commission or assistance in the
377	385		commission of sexual harassment, sexual assault, dating violence,
378	386		or stalking.
379	387		(e) [(f)] This section may not be construed to limit a
380	388		postsecondary educational institution's ability to provide amnesty
381	389		from application of the institution's policies in circumstances not
382	390		described by Subsection (a) [(b)].
383	391		SECTION 4. The following provisions of the Education Code
384	392		are repealed:
385	393		(1) Section 51.9363;
386	394		(2) the heading to Sections 51.9365 and 51.9366;
387	395		(3) Sections 51.9365(a) and (e); and
388	396		(4) Sections 51.9366(a) and (g).
389	397		SECTION 5. The changes in law made by this Act apply
390	398		beginning August 1, 2020.
391	399		SECTION 6. Not later than September 1, 2021, the Texas
392	400		Higher Education Coordinating Board shall submit its initial report
393	401		required under Section 51.292(f), Education Code, as added by this
394	402		Act.
395	403		SECTION 7. This Act takes effect September 1, 2019.
396		-	______________________________ ______________________________
397		-	President of the Senate Speaker of the House
398		-	I certify that H.B. No. 1735 was passed by the House on April
399		-	17, 2019, by the following vote: Yeas 113, Nays 29, 2 present, not
400		-	voting; that the House refused to concur in Senate amendments to
401		-	H.B. No. 1735 on May 23, 2019, and requested the appointment of a
402		-	conference committee to consider the differences between the two
403		-	houses; and that the House adopted the conference committee report
404		-	on H.B. No. 1735 on May 26, 2019, by the following vote: Yeas 109,
405		-	Nays 30, 1 present, not voting.
406		-	______________________________
407		-	Chief Clerk of the House
408		-	I certify that H.B. No. 1735 was passed by the Senate, with
409		-	amendments, on May 16, 2019, by the following vote: Yeas 31, Nays
410		-	0; at the request of the House, the Senate appointed a conference
411		-	committee to consider the differences between the two houses; and
412		-	that the Senate adopted the conference committee report on H.B. No.
413		-	1735 on May 26, 2019, by the following vote: Yeas 31, Nays 0.
414		-	______________________________
415		-	Secretary of the Senate
416		-	APPROVED: __________________
417		-	Date
418		-	__________________
419		-	Governor
	404	+	* * * * *