87R11641 AJZ-D
By: Nelson S.B. No. 1299
A BILL TO BE ENTITLED
AN ACT
relating to the reporting of sexual assault and other sex offenses,
to the emergency services and care provided to victims of those
offenses, and to the processes associated with preserving and
analyzing the evidence of those offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter F, Chapter 56A, Code of Criminal
Procedure, is amended by adding Article 56A.2506 to read as
follows:
Art. 56A.2506. DEFINITION. In this subchapter, "reported
sexual assault" means a sexual assault that has been reported to a
law enforcement agency.
SECTION 2. Article 56A.251, Code of Criminal Procedure, is
amended to conform to Section 3, Chapter 1037 (H.B. 616), Acts of
the 86th Legislature, Regular Session, 2019, and is further amended
to read as follows:
Art. 56A.251. REQUEST FOR FORENSIC MEDICAL EXAMINATION.
(a) If [Except as provided by Subsection (b), if] a sexual assault
is reported to a law enforcement agency within 120 [96] hours after
the assault, the law enforcement agency, with the consent of the
victim of the reported [alleged] assault, a person authorized to
act on behalf of the victim, or an employee of the Department of
Family and Protective Services, shall request a forensic medical
examination of the victim for use in the investigation or
prosecution of the offense.
(b) If a sexual assault is not reported within the period
described by Subsection (a) and the victim is a minor as defined by
Section 101.003, Family Code, on receiving the consent described by
Subsection (a) or the consent described by Section 32.003 or
32.005, Family Code, a law enforcement agency shall request a
forensic medical examination of the victim for use in the
investigation or prosecution of the offense [A law enforcement
agency may decline to request a forensic medical examination under
Subsection (a) only if:
[(1) the person reporting the sexual assault has made
one or more false reports of sexual assault to any law enforcement
agency; and
[(2) there is no other evidence to corroborate the
current allegations of sexual assault].
(c) If a sexual assault is not reported within the period
described by Subsection (a) and the victim is not a minor as defined
by Section 101.003, Family Code, on receiving the consent described
by Subsection (a), [that subsection] a law enforcement agency may
request a forensic medical examination of a victim of a reported [an
alleged] sexual assault for use in the investigation or prosecution
of the offense if:
(1) based on the circumstances of the reported
assault, the agency believes a forensic medical examination would
further that investigation or prosecution; or
(2) after a medical evaluation by a physician, sexual
assault examiner, or sexual assault nurse examiner, the physician
or examiner notifies the agency that a forensic medical examination
should be conducted [as considered appropriate by the agency].
(d) If a sexual assault is reported to a law enforcement
agency as provided by Subsection (a), (b), or (c), the law
enforcement agency shall document, in the form and manner required
by the attorney general, whether the agency requested a forensic
medical examination. The law enforcement agency shall:
(1) provide the documentation of the agency's decision
regarding a request for a forensic medical examination to:
(A) the health care facility and the physician,
sexual assault examiner, or sexual assault nurse examiner, as
applicable, who provides services to the victim that are related to
the sexual assault; and
(B) the victim or the person who consented to the
forensic medical examination on behalf of the victim; and
(2) maintain the documentation of the agency's
decision in accordance with the agency's record retention policies.
SECTION 3. Article 56A.254, Code of Criminal Procedure, is
amended to read as follows:
Art. 56A.254. PAYMENT OF COSTS FOR CERTAIN MEDICAL CARE.
The attorney general may make a payment to or on behalf of an
individual for the reasonable costs incurred for medical care
provided in accordance with Sections [Section] 323.004, 323.053,
and 323.054, Health and Safety Code.
SECTION 4. Article 56A.302, Code of Criminal Procedure, is
amended to read as follows:
Art. 56A.302. APPLICABILITY. This subchapter applies to
the following health care facilities that provide diagnosis or
treatment services to victims of sexual assault:
(1) a general or special hospital licensed under
Chapter 241, Health and Safety Code;
(2) a general or special hospital owned by this state;
(3) an outpatient clinic; [and]
(4) a private physician's office; and
(5) a health facility, as defined by Section 323.051,
Health and Safety Code, that operates a SAFE program under Section
323.052, Health and Safety Code.
SECTION 5. Article 56A.303, Code of Criminal Procedure, is
amended to conform to Section 4, Chapter 1037 (H.B. 616), Acts of
the 86th Legislature, Regular Session, 2019, and is further amended
to read as follows:
Art. 56A.303. FORENSIC MEDICAL EXAMINATION. (a) In
accordance with Subchapter B, Chapter 420, Government Code, and
except as provided by Subsection (b), a health care facility shall
conduct a forensic medical examination of a victim of a [an alleged]
sexual assault if:
(1) the victim arrives at the facility within 120 [96]
hours after the assault occurred;
(2) the victim consents to the examination; and
(3) at the time of the examination the victim has not
reported the assault to a law enforcement agency.
(b) If a health care facility does not provide diagnosis or
treatment services to victims of sexual assault, the facility shall
refer a victim of a [an alleged] sexual assault who seeks a forensic
medical examination under Subsection (a) to a health care facility
that provides services to those victims.
(c) A victim of a [an alleged] sexual assault may not be
required to participate in the investigation or prosecution of an
offense as a condition of receiving a forensic medical examination
under this article.
SECTION 6. Article 56A.304, Code of Criminal Procedure, is
amended to conform to Sections 4 and 8, Chapter 1037 (H.B. 616),
Acts of the 86th Legislature, Regular Session, 2019, and is further
amended to read as follows:
Art. 56A.304. PAYMENT OF FEES RELATED TO EXAMINATION. (a)
On application to the [The department shall pay the appropriate
fees, as set by] attorney general [rule], a health care facility
that provides [for the forensic portion of] a forensic medical
examination to a sexual assault survivor in accordance with this
subchapter, or the [conducted under Article 56A.303(a) and for the
evidence collection kit if a physician,] sexual assault examiner
[,] or sexual assault nurse examiner who conducts that [the
forensic portion of the] examination, as applicable, within 120
[96] hours after the [alleged] sexual assault occurred is entitled
to be reimbursed in an amount set by attorney general rule for:
(1) the reasonable costs of the forensic portion of
that examination; and
(2) the evidence collection kit.
(b) The application under Subsection (a) must be in the form
and manner prescribed by the attorney general and must include:
(1) certification that the examination was conducted
in accordance with the requirements of Article 56A.303(a); and
(2) a complete and itemized bill of the reasonable
costs of the forensic portion of the examination [attorney general
shall reimburse the department for fees paid under Subsection (a)].
(c) A health care facility or a sexual assault examiner or
sexual assault nurse examiner, as applicable, who applies for
reimbursement under Subsection (a) shall accept reimbursement from
the attorney general as payment for the costs unless:
(1) the health care facility or sexual assault
examiner or sexual assault nurse examiner, as applicable:
(A) requests, in writing, additional
reimbursement from the attorney general; and
(B) provides documentation in support of the
additional reimbursement, as reasonably requested by the attorney
general; and
(2) the attorney general determines that there is a
reasonable justification for additional reimbursement.
(d) A health care facility is not entitled to reimbursement
under this article unless the forensic medical examination was
conducted at the facility by a physician, sexual assault examiner,
or sexual assault nurse examiner.
(e) On request, the attorney general may provide training to
a health care facility regarding the process for applying for
reimbursement under this article.
(f) A victim of a [an alleged] sexual assault may not be
required to pay for:
(1) the forensic portion of the forensic medical
examination; or
(2) the evidence collection kit.
SECTION 7. Article 56A.305, Code of Criminal Procedure, is
amended to read as follows:
Art. 56A.305. PAYMENT OF COSTS FOR CERTAIN MEDICAL CARE.
The attorney general may make a payment to or on behalf of an
individual for the reasonable costs incurred for medical care
provided in accordance with Sections [Section] 323.004, 323.053,
and 323.054, Health and Safety Code.
SECTION 8. Article 56A.307, Code of Criminal Procedure, is
amended to read as follows:
Art. 56A.307. PROCEDURES FOR SUBMISSION OR COLLECTION OF
ADDITIONAL EVIDENCE. The department, consistent with Chapter 420,
Government Code, may develop procedures regarding the submission or
collection of additional evidence of a [an alleged] sexual assault
other than through a forensic medical examination as described by
Article 56A.303(a).
SECTION 9. Section 420.003(1-a), Government Code, is
amended to read as follows:
(1-a) "Active criminal case" means a case:
(A) in which:
(i) a sexual assault or other sex offense
has been reported to a law enforcement agency; [and]
(ii) physical evidence of the offense has
been submitted to the agency or an accredited crime laboratory
under this chapter for analysis; and
(iii) the agency documents that an offense
has been committed and reported; and
(B) for which:
(i) the statute of limitations has not run
with respect to the prosecution of the offense; or
(ii) a DNA profile was obtained that is
eligible under Section 420.043 for comparison with DNA profiles in
the state database or CODIS DNA database.
SECTION 10. Section 420.034(c), Government Code, is amended
to read as follows:
(c) The tracking system must:
(1) include all evidence collected in relation to a
sexual assault or other sex offense, regardless of whether evidence
of the offense is collected in relation to an individual who is
alive or deceased;
(2) track the location and status of each item of
evidence through the criminal justice process, including the
initial collection of the item of evidence in a forensic medical
examination, receipt and storage of the item of evidence at a law
enforcement agency, receipt and analysis of the item of evidence at
an accredited crime laboratory, and storage and destruction of the
item of evidence after the item is analyzed;
(3) [(2)] allow a facility or entity performing a
forensic medical examination of a survivor, law enforcement agency,
accredited crime laboratory, prosecutor, or other entity providing
a chain of custody for an item of evidence to update and track the
status and location of the item; and
(4) [(3)] allow a survivor to anonymously track or
receive updates regarding the status and location of each item of
evidence collected in relation to the offense.
SECTION 11. Section 420.045, Government Code, is
transferred to Section 420.034, Government Code, redesignated as
Subsection (h) of that section, and amended to read as follows:
(h) Not later than October 1 of each year, the department
[Sec. 420.045. REPORT OF UNANALYZED EVIDENCE OF SEXUAL ASSAULT OR
OTHER SEX OFFENSE. Each law enforcement agency and public
accredited crime laboratory] shall submit [a quarterly report] to
the governor a report [department] identifying the number of
evidence collection kits that have [the law enforcement agency has]
not yet been submitted for laboratory analysis or for which the
[crime] laboratory analysis has not yet been completed [an
analysis], as applicable. The annual report must be titled
"Statewide Electronic Tracking System Report" and must be posted on
the department's publicly accessible Internet website.
SECTION 12. Section 420.035(a), Government Code, as added
by Chapter 408 (H.B. 8), Acts of the 86th Legislature, Regular
Session, 2019, is amended to read as follows:
(a) If a health care facility or other entity that performs
a medical examination to collect evidence of a sexual assault or
other sex offense receives signed, written consent to release the
evidence as provided by Section 420.0735, the facility or entity
shall:
(1) promptly notify any law enforcement agency
investigating the [alleged] offense; and
(2) not later than 24 hours after the conclusion of the
examination, enter the evidence collection kit identifier into the
statewide electronic tracking system under Section 420.034.
SECTION 13. Section 420.046, Government Code, is amended to
read as follows:
Sec. 420.046. NONCOMPLIANCE. Failure to comply with the
requirements of Subchapter B or this subchapter may be used to
determine eligibility for receiving grant funds from the
department, the office of the governor, or another state agency.
SECTION 14. The heading to Chapter 323, Health and Safety
Code, is amended to read as follows:
CHAPTER 323. EMERGENCY SERVICES AND FORENSIC EXAMINATION PROGRAMS
FOR SURVIVORS OF SEXUAL ASSAULT
SECTION 15. Chapter 323, Health and Safety Code, is amended
by designating Sections 323.001 through 323.008 as Subchapter A and
adding a subchapter heading to read as follows:
SUBCHAPTER A. EMERGENCY SERVICES FOR SURVIVORS
OF SEXUAL ASSAULT
SECTION 16. Section 323.001, Health and Safety Code, is
amended to read as follows:
Sec. 323.001. DEFINITIONS. In this subchapter [chapter]:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Department" means the Department of State Health
Services.
(3) "Health care facility" means a general or special
hospital licensed under Chapter 241, a general or special hospital
owned by this state, or a freestanding emergency medical care
facility licensed under Chapter 254.
(3-a) "SAFE-ready facility" means a health care
facility designated as a sexual assault forensic exam-ready
facility under Section 323.0015.
(4) "Sexual assault" means any act as described by
Section 22.011 or 22.021, Penal Code.
(4-a) "Sexual assault forensic examiner" means a
certified sexual assault nurse examiner or a physician with
specialized training on conducting a forensic medical examination.
(5) "Sexual assault survivor" means an individual who
is a victim of a sexual assault, regardless of whether a report is
made or a conviction is obtained in the incident.
SECTION 17. Sections 323.004(a) and (a-1), Health and
Safety Code, are amended to read as follows:
(a) Except as otherwise provided by Subsection (a-2), after
a sexual assault survivor arrives at a health care facility
following a [an alleged] sexual assault, the facility shall
provide care to the survivor in accordance with Subsection (b).
(a-1) A facility that is not a SAFE-ready facility shall
inform the sexual assault survivor that:
(1) the facility is not a SAFE-ready facility and
provide to the survivor the name and location of nearby [the
closest] SAFE-ready facilities [facility] and the information form
required by Section 323.0051; and
(2) the survivor is entitled, at the survivor's
option:
(A) to receive the care described by Subsection
(b) at that facility, subject to Subsection (b-1); or
(B) to be stabilized and to be referred or
transferred to and receive the care described by Subsection (b) at a
SAFE-ready facility.
SECTION 18. Section 323.005(a), Health and Safety Code, as
amended by Chapters 408 (H.B. 8), 469 (H.B. 4173), and 1037 (H.B.
616), Acts of the 86th Legislature, Regular Session, 2019, is
reenacted and further amended to conform to Chapter 469 (H.B.
4173), Acts of the 86th Legislature, Regular Session, 2019, to read
as follows:
(a) The commission [department] shall develop a standard
information form for sexual assault survivors that must include:
(1) a detailed explanation of the forensic medical
examination required to be provided by law, including a statement
that photographs may be taken of the genitalia;
(2) information regarding treatment of sexually
transmitted infections and pregnancy, including:
(A) generally accepted medical procedures;
(B) appropriate medications; and
(C) any contraindications of the medications
prescribed for treating sexually transmitted infections and
preventing pregnancy;
(3) information regarding drug-facilitated sexual
assault, including the necessity for an immediate urine test for
sexual assault survivors who may have been involuntarily drugged;
(4) information regarding crime victims compensation,
including:
(A) a statement that public agencies are
responsible for paying for the forensic portion of an examination
conducted under Subchapter F or G, Chapter 56A [Article 56.06 or
56.065], Code of Criminal Procedure, and for the evidence
collection kit used in connection with the examination and that the
health care facility or provider, as applicable, is responsible for
seeking reimbursement for those costs; and
(B) information regarding the reimbursement of
the survivor for the medical portion of the examination;
(5) an explanation that consent for the forensic
medical examination may be withdrawn at any time during the
examination;
(6) the name and telephone number of sexual assault
crisis centers statewide; and
(7) information regarding postexposure prophylaxis
for HIV infection.
SECTION 19. Section 323.0051(a), Health and Safety Code, is
amended to read as follows:
(a) The commission [department] shall develop a standard
information form for sexual assault survivors who arrive at a
health care facility that is not a SAFE-ready facility. The
information form must include:
(1) information regarding the benefits of a forensic
medical examination conducted by a sexual assault forensic
examiner;
(2) the Internet website address to the commission's
[department's] list of SAFE-ready facilities that includes the
facilities' physical addresses as required by Section 323.008;
(3) the following statements:
(A) "As a survivor of sexual assault, you have
the right to receive a forensic medical examination at this
hospital emergency room if you are requesting the examination not
later than 120 hours after the assault.";
(B) "A report to law enforcement is not required,
but if you make a report, law enforcement must first authorize the
examination."; and
(C) "Call 1-800-656-HOPE to be connected to a
rape crisis center for free and confidential assistance."; and
(4) information on the procedure for submitting a
complaint against the health care facility.
SECTION 20. Section 323.0052(a), Health and Safety Code, is
amended to conform to Chapter 469 (H.B. 4173), Acts of the 86th
Legislature, Regular Session, 2019, and further amended to read as
follows:
(a) The commission [department] shall develop a standard
information form that, as described by Subsection (b), is to be
provided to sexual assault survivors who have not given signed,
written consent to a health care facility to release the evidence as
provided by Section 420.0735, Government Code. The form must
include the following information:
(1) the Department of Public Safety's policy regarding
storage of evidence of a sexual assault or other sex offense that is
collected under Subchapter G, Chapter 56A [Article 56.065], Code of
Criminal Procedure, including:
(A) a statement that the evidence will be stored
until the fifth anniversary of the date on which the evidence was
collected before the evidence becomes eligible for destruction; and
(B) the department's procedures regarding the
notification of the survivor before a planned destruction of the
evidence;
(2) a statement that the survivor may request the
release of the evidence to a law enforcement agency and report a
sexual assault or other sex offense to the agency at any time;
(3) the name, phone number, and e-mail address of the
law enforcement agency with jurisdiction over the offense; and
(4) the name and phone number of a local rape crisis
center.
SECTION 21. Section 323.008, Health and Safety Code, is
amended to read as follows:
Sec. 323.008. DATA PUBLICATION. The commission
[department] shall post on the commission's [department's] Internet
website a list of all hospitals and other health facilities that are
designated as SAFE-ready facilities under this chapter and the
facilities' physical addresses. The commission [department] shall
update the list annually. To the extent possible, the commission
[department] shall collect the data required by this section as
part of a survey required by the commission [department] under
other law.
SECTION 22. Chapter 323, Health and Safety Code, is amended
by adding Subchapter B to read as follows:
SUBCHAPTER B. SEXUAL ASSAULT FORENSIC EXAMINATION PROGRAMS
Sec. 323.051. DEFINITIONS. In this subchapter:
(1) "Health facility" means a health facility licensed
under Subtitle B, Title 4.
(2) "Physician" means a physician licensed under
Subtitle B, Title 3, Occupations Code.
(3) "SAFE program" means a program that meets the
requirements prescribed by Section 323.052.
(4) "Sexual assault examiner," "sexual assault nurse
examiner," and "sexual assault program" have the meanings assigned
by Section 420.003, Government Code.
(5) "Sexual assault forensic examiner" means a
certified sexual assault nurse examiner or a physician with
specialized training on conducting a forensic medical examination.
Sec. 323.052. OPERATION OF SAFE PROGRAM; DESIGNATION OF
HEALTH FACILITY OPERATING SAFE PROGRAM AS SAFE-READY FACILITY. (a)
A health facility may operate a SAFE program only if:
(1) the facility operates the program on its premises;
(2) the program meets the minimum standards
established under Section 323.053; and
(3) the facility provides forensic medical
examinations to sexual assault survivors in accordance with Section
323.054.
(b) The Health and Human Services Commission shall
designate a health facility operating a SAFE program described by
Subsection (a) as a SAFE-ready facility under Section 323.0015 if
the facility notifies the commission that the facility employs or
contracts with a sexual assault forensic examiner or uses a
telemedicine system of sexual assault forensic examiners to provide
consultation to a licensed nurse or physician during a sexual
assault forensic medical examination.
Sec. 323.053. MINIMUM STANDARDS FOR SAFE PROGRAMS. A SAFE
program must:
(1) operate under the active oversight of a medical
director who is a physician licensed by and in good standing with
the Texas Medical Board;
(2) provide medical treatment under a physician's
order, standing medical order, standing delegation order, or other
order or protocol as defined by Texas Medical Board rules;
(3) employ or contract with a sexual assault examiner
or a sexual assault nurse examiner;
(4) provide access to a sexual assault program
advocate, as required by Subchapter H, Chapter 56A, Code of
Criminal Procedure;
(5) ensure a sexual assault survivor has access to a
private treatment room;
(6) if indicated by a survivor's history or on a
survivor's request, provide:
(A) HIV testing and prophylactic medication to
the survivor or a referral for the testing and medication; and
(B) counseling and prophylactic medications for
exposure to sexually transmitted infections and pregnancy;
(7) provide to survivors the name and telephone number
of a nearby sexual assault program that provides to survivors the
minimum services described by Subchapter A, Chapter 420, Government
Code;
(8) provide to survivors the information form required
by Section 323.005, 323.0051, or 323.0052, as applicable, and
orally communicate the information regarding crime victims
compensation under Section 323.005(a)(4);
(9) collaborate with any sexual assault program that
provides services to survivors in the county;
(10) continually engage in efforts to improve the
quality of the program;
(11) maintain capacity for immediate triage or have
agreements with other health facilities to assure that a survivor
receives the appropriate level of care indicated for the survivor's
medical and mental health needs;
(12) prioritize the safety and well-being of
survivors;
(13) provide a trauma-informed approach in the
forensic medical care provided to survivors; and
(14) collaborate with:
(A) law enforcement agencies and attorneys
representing the state with jurisdiction in the county;
(B) any available local sexual assault response
team; and
(C) other interested persons in the community.
Sec. 323.054. FORENSIC MEDICAL EXAMINATION BY SAFE PROGRAM;
INFORMED CONSENT. (a) A SAFE program shall provide to a sexual
assault survivor under the care of the program a forensic medical
examination in accordance with Subchapter B, Chapter 420,
Government Code, if the examination has been requested by a law
enforcement agency under Subchapter F, Chapter 56A, Code of
Criminal Procedure, or if the examination is performed in
accordance with Subchapter G, Chapter 56A, Code of Criminal
Procedure.
(b) Only a sexual assault examiner or a sexual assault nurse
examiner may perform a forensic medical examination under a SAFE
program.
(c) A sexual assault examiner or sexual assault nurse
examiner employed by or under contract with a SAFE program must
obtain a sexual assault survivor's informed, written consent before
performing a forensic medical examination or providing medical
treatment to the survivor.
(d) A sexual assault survivor who receives a forensic
medical examination from a sexual assault examiner or sexual
assault nurse examiner employed by or under contract with a SAFE
program may not be required to:
(1) participate in the investigation or prosecution of
an offense as a prerequisite to receiving the forensic medical
examination or medical treatment; or
(2) pay for the costs of the forensic portion of the
forensic medical examination or for the evidence collection kit.
SECTION 23. Section 420.042(b), Government Code, is
repealed.
SECTION 24. The changes in law made by this Act to Section
420.034(c), Government Code, and to Section 420.035(a), Government
Code, as added by Chapter 408 (H.B. 8), Acts of the 86th
Legislature, Regular Session, 2019, apply only to evidence of a
sexual assault or other sex offense collected on or after the
effective date of this Act. Evidence collected before the
effective date of this Act is governed by the law in effect on the
date the evidence was collected, and the former law is continued in
effect for that purpose.
SECTION 25. To the extent of any conflict, this Act prevails
over another Act of the 87th Legislature, Regular Session, 2021,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 26. This Act takes effect September 1, 2021.