By: Morrison H.B. No. 3814
A BILL TO BE ENTITLED
AN ACT
relating to a reporting requirement for certain incidents of sexual
harassment, sexual assault, dating violence, or stalking at certain
public and private institutions of higher education; creating a
criminal offense; authorizing administrative penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 51, Education Code, is amended by adding
Subchapter E-2 to read as follows:
SUBCHAPTER E-2. REPORTING INCIDENTS OF SEXUAL HARASSMENT, SEXUAL
ASSAULT, DATING VIOLENCE, AND STALKING
Sec. 51.251. DEFINITIONS. In this subchapter:
(1) "Coordinating board" means the Texas Higher
Education Coordinating Board.
(2) "Dating violence," "sexual assault," and
"stalking" mean dating violence, sexual assault, or stalking, as
applicable, that an institution of higher education is required to
report under the Jeanne Clery Disclosure of Campus Security Policy
and Campus Crime Statistics Act (20 U.S.C. Section 1092(f)).
(3) "Employee of a postsecondary educational
institution" does not include a student enrolled at the
institution.
(4) "Postsecondary educational institution" means an
institution of higher education or a private or independent
institution of higher education, as those terms are defined by
Section 61.003.
(5) "Sexual harassment" means unwelcome, sex-based
verbal or physical conduct that:
(A) in the employment context, unreasonably
interferes with a person's work performance or creates an
intimidating, hostile, or offensive work environment; or
(B) in the education context, is sufficiently
severe, persistent, or pervasive that the conduct interferes with a
student's ability to participate in or benefit from educational
programs or activities at a postsecondary educational institution.
Sec. 51.252. REPORTING REQUIRED FOR CERTAIN INCIDENTS. (a)
An employee of a postsecondary educational institution who, in the
course and scope of employment, witnesses or receives information
regarding the occurrence of an incident that the employee
reasonably believes constitutes sexual harassment, sexual assault,
dating violence, or stalking and is alleged to have been committed
by or against a person who was a student enrolled at or an employee
of the institution at the time of the incident shall promptly report
the incident to the institution's Title IX coordinator or deputy
Title IX coordinator.
(b) Except as provided by Subsection (c), the report must
include all information concerning the incident known to the
reporting person that is relevant to the investigation and, if
applicable, redress of the incident, including whether an alleged
victim has expressed a desire for confidentiality in reporting the
incident.
(c) An employee of a postsecondary educational institution
designated by the institution as a person with whom students may
speak confidentially concerning sexual harassment, sexual assault,
dating violence, or stalking or who receives information regarding
such an incident under circumstances that render the employee's
communications confidential or privileged under other law shall, in
making a report under this section, state only the type of incident
reported and may not include any information that would violate a
student's expectation of privacy. This subsection does not affect
the employee's duty to report an incident under any other law.
(d) Notwithstanding Subsection (a), a person is not
required to make a report under this section concerning:
(1) an incident in which the person was a victim of
sexual harassment, sexual assault, dating violence, or stalking; or
(2) an incident of which the person received
information due to a disclosure made at a sexual harassment, sexual
assault, dating violence, or stalking public awareness event
sponsored by a postsecondary educational institution or by a
student organization affiliated with the institution.
Sec. 51.253. ADMINISTRATIVE REPORTING REQUIREMENTS. (a)
Not less than once every three months, the Title IX coordinator of a
postsecondary educational institution shall submit to the
institution's chief executive officer a written report on the
reports received under Section 51.252, including information
regarding:
(1) the investigation of those reports;
(2) the disposition, if any, of any disciplinary
processes arising from those reports; and
(3) the reports for which the institution determined
not to initiate a disciplinary process, if any.
(b) The Title IX coordinator or deputy Title IX coordinator
of a postsecondary educational institution shall immediately
report to the institution's chief executive officer an incident
reported to the coordinator under Section 51.252 if the coordinator
has cause to believe that the safety of any person is in imminent
danger as a result of the incident.
(c) Subject to Subsection (d), at least once during each
fall or spring semester, the chief executive officer of a
postsecondary educational institution shall submit to the
institution's governing body and post on the institution's Internet
website a report concerning the reports received under Section
51.252. The report:
(1) may not identify any person; and
(2) must include:
(A) the number of reports received under Section
51.252;
(B) the number of investigations conducted as a
result of those reports;
(C) the disposition, if any, of any disciplinary
processes arising from those reports;
(D) the number of those reports for which the
institution determined not to initiate a disciplinary process, if
any; and
(E) any disciplinary actions taken under Section
51.255.
(d) If for any semester a postsecondary educational
institution has fewer than 1,500 enrolled students, the chief
executive officer of the institution shall submit and post a report
required under Subsection (c) for that semester only if more than
five reports were received under Section 51.252 during that
semester.
Sec. 51.254. IMMUNITIES. (a) A person acting in good faith
who reports or assists in the investigation of a report of an
incident described by Section 51.252(a) or who testifies or
otherwise participates in a disciplinary process or judicial
proceeding arising from a report of such an incident:
(1) is immune from civil liability, and from criminal
liability for offenses punishable by fine only, that might
otherwise be incurred or imposed as a result of those actions; and
(2) may not be subjected to any disciplinary action by
the postsecondary educational institution at which the person is
enrolled or employed for any violation by the person of the
institution's code of conduct reasonably related to the incident
for which suspension or expulsion from the institution is not a
possible punishment.
(b) Subsection (a) does not apply to a person who
perpetrates or assists in the perpetration of the incident reported
under Section 51.252.
Sec. 51.255. FAILURE TO REPORT OR FALSE REPORT; OFFENSES.
(a) A person commits an offense if the person:
(1) is required to make a report under Section 51.252
and knowingly fails to make the report; or
(2) with the intent to harm or deceive, knowingly
makes a report under Section 51.252 that is false.
(b) An offense under Subsection (a) is a Class B
misdemeanor, except that the offense is a Class A misdemeanor if it
is shown on the trial of the offense that the actor intended to
conceal the incident that the actor was required to report under
Section 51.252.
(c) A postsecondary educational institution shall terminate
the employment of an employee whom the institution determines in
accordance with the institution's disciplinary procedure to have
committed an offense under Subsection (a).
Sec. 51.256. CONFIDENTIALITY. (a) Unless waived in
writing by the alleged victim, the identity of an alleged victim of
an incident reported under Section 51.252:
(1) is confidential and not subject to disclosure
under Chapter 552, Government Code; and
(2) may be disclosed only to:
(A) employees of the postsecondary educational
institution to which the report is made who are necessary to conduct
an investigation of the report or any related hearings; or
(B) a law enforcement officer as necessary to
conduct a criminal investigation of the report.
(b) A disclosure under Subsection (a) is not a voluntary
disclosure for purposes of Section 552.007, Government Code.
(c) Nothing in this section may be construed as prohibiting
a victim from making a report to a law enforcement agency using the
pseudonym form described by Article 57.02, Code of Criminal
Procedure.
Sec. 51.257. RETALIATION PROHIBITED. (a) A postsecondary
educational institution may not discipline or otherwise
discriminate against an employee who in good faith:
(1) makes a report as required by Section 51.252; or
(2) cooperates with an investigation, a disciplinary
process, or a judicial proceeding relating to a report made by the
employee as required by Section 51.252.
(b) Subsection (a) does not apply to an employee who:
(1) reports an incident described by Section 51.252(a)
perpetrated by the employee; or
(2) cooperates with an investigation, a disciplinary
process, or a judicial proceeding relating to an allegation that
the employee perpetrated an incident described by Section
51.252(a).
Sec. 51.258. COMPLIANCE. (a) The chief executive officer
of each postsecondary educational institution shall annually
certify in writing to the coordinating board that the institution
is in substantial compliance with this subchapter.
(b) If the coordinating board determines that a
postsecondary educational institution is not in substantial
compliance with this subchapter, the coordinating board may assess
an administrative penalty against the institution in an amount not
to exceed $2 million. In determining the amount of the penalty, the
coordinating board shall consider the nature of the violation and
the number of students enrolled at the institution.
(c) If the coordinating board assesses an administrative
penalty against a postsecondary educational institution under
Subsection (b), the coordinating board shall provide to the
institution written notice of the coordinating board's reasons for
assessing the penalty.
(d) A postsecondary educational institution assessed an
administrative penalty under Subsection (b) may appeal the penalty
in the manner provided by Chapter 2001, Government Code.
(e) A postsecondary educational institution may not pay an
administrative penalty assessed under Subsection (b) using state or
federal money.
(f) An administrative penalty collected under this section
shall be deposited to the credit of the sexual assault program fund
established under Section 420.008, Government Code.
(g) The coordinating board shall annually submit to the
governor, the lieutenant governor, the speaker of the house of
representatives, and the standing legislative committees with
primary jurisdiction over legislation concerning sexual assault at
postsecondary educational institutions a report regarding
compliance with this subchapter, including a summary of the
postsecondary educational institutions found not to be in
substantial compliance as provided by this section and any
penalties assessed under this section during the calendar year
preceding the date of the report.
Sec. 51.259. RULES. The coordinating board shall adopt
rules as necessary to implement and enforce this subchapter,
including rules that ensure implementation of this subchapter in a
manner that complies with federal law regarding confidentiality of
student educational information, including the Family Educational
Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g). In
adopting those rules, the coordinating board shall use the
negotiated rulemaking procedures under Chapter 2008, Government
Code, and consult with relevant stakeholders.
Sec. 51.260. TRAINING ADVISORY COMMITTEE. (a) The
commissioner of higher education shall establish an advisory
committee to develop recommended training for persons required to
report certain incidents under Section 51.252 and for Title IX
coordinators and deputy Title IX coordinators at postsecondary
educational institutions.
(b) The advisory committee consists of nine members
appointed by the commissioner of higher education as follows:
(1) eight members who are a chief executive officer of
a postsecondary educational institution or a representative
designated by that officer; and
(2) one member who is a representative of an advocacy
organization for victims of sexual assault or family violence.
(c) Not later than December 1, 2019, the advisory committee
shall develop the recommended training under Subsection (a).
(d) This section expires September 1, 2020.
SECTION 2. Section 61.0331, Education Code, is amended to
read as follows:
Sec. 61.0331. NEGOTIATED RULEMAKING REQUIRED. The board
shall engage institutions of higher education in a negotiated
rulemaking process as described by Chapter 2008, Government Code,
when adopting a policy, procedure, or rule relating to:
(1) an admission policy regarding the common admission
application under Section 51.762, a uniform admission policy under
Section 51.807, graduate and professional admissions under Section
51.843, or the transfer of credit under Section 61.827;
(2) the allocation or distribution of funds, including
financial aid or other trusteed funds under Section 61.07761;
(3) the reevaluation of data requests under Section
51.406; [or]
(4) compliance monitoring under Section 61.035; or
(5) the reporting of certain incidents of sexual
harassment, sexual assault, dating violence, or stalking under
Subchapter E-2, Chapter 51.
SECTION 3. Section 420.008(b), Government Code, is amended
to read as follows:
(b) The fund consists of:
(1) fees collected under:
(A) [(1)] Article 42A.653(a), Code of Criminal
Procedure;
(B) [(2)] Section 508.189, Government Code; and
(C) [(3)] Subchapter B, Chapter 102, Business &
Commerce Code, and deposited under Section 102.054 of that code;
and
(2) administrative penalties collected under Section
51.258, Education Code.
SECTION 4. Sections 51.251-51.259, Education Code, as added
by this Act, and Section 61.0331, Education Code, as amended by this
Act, apply beginning January 1, 2020.
SECTION 5. Not later than January 1, 2021, the Texas Higher
Education Coordinating Board shall submit its initial report
required under Section 51.258(g), Education Code, as added by this
Act.
SECTION 6. (a) Except as provided by Subsections (b) and (c)
of this section, this Act takes effect September 1, 2019.
(b) Section 51.260, Education Code, as added by this Act,
takes effect immediately if this Act receives a vote of two-thirds
of all the members elected to each house, as provided by Section 39,
Article III, Texas Constitution. If this Act does not receive the
vote necessary for immediate effect, Section 51.260, Education
Code, as added by this Act, takes effect September 1, 2019.
(c) Section 51.255(a), Education Code, as added by this Act,
takes effect January 1, 2020.