By: Paxton, et al. S.B. No. 1573
A BILL TO BE ENTITLED
AN ACT
relating to the reporting of sexual assault and other sex offenses
and to the collection, analysis, tracking, and preservation of
evidence of those offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Articles 21.31(a), (c), and (d), Code of
Criminal Procedure, are amended to read as follows:
(a) A person who is indicted for or who waives indictment
for an offense under Section 21.02, 21.11(a)(1), 22.011, or 22.021,
Penal Code, shall, at the direction of the court on the court's own
motion or on the request of the victim of the reported [alleged]
offense, undergo a standard diagnostic test approved by the United
States Food and Drug Administration for human immunodeficiency
virus (HIV) infection and other sexually transmitted diseases. If
the person refuses to submit voluntarily to the test, the court
shall require the person to submit to the test. On request of the
victim of the reported [alleged] offense, the court shall order the
defendant to undergo the test not later than 48 hours after an
indictment for the offense is presented against the defendant or
the defendant waives indictment. Except as provided by Subsection
(b-1), the court may require a defendant previously required under
this article to undergo a diagnostic test on indictment for an
offense to undergo a subsequent test only after conviction of the
offense. A person performing a test under this subsection shall
make the test results available to the local health authority, and
the local health authority shall be required to make the
notification of the test results to the victim of the reported
[alleged] offense and to the defendant.
(c) The state may not use the fact that a test was performed
on a person under Subsection (a) or use the results of a test
conducted under Subsection (a) in any criminal proceeding arising
out of the reported [alleged] offense.
(d) Testing under this article shall be conducted in
accordance with written infectious disease control protocols
adopted by the Texas Board of Health that clearly establish
procedural guidelines that provide criteria for testing and that
respect the rights of the person accused and any victim of the
reported [alleged] offense.
SECTION 2. Article 38.07, Code of Criminal Procedure, is
amended to read as follows:
Art. 38.07. TESTIMONY IN CORROBORATION OF VICTIM OF SEXUAL
OFFENSE. (a) A conviction under Chapter 21, Section 20A.02(a)(3),
(4), (7), or (8), Section 22.011, or Section 22.021, Penal Code, is
supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the
defendant, of the reported [alleged] offense within one year after
the date on which the reported incident [offense is alleged to have]
occurred.
(b) The requirement that the victim inform another person of
an [alleged] offense as described by Subsection (a) does not apply
if at the time of the [alleged] offense the victim was a person:
(1) 17 years of age or younger;
(2) 65 years of age or older; or
(3) 18 years of age or older who by reason of age or
physical or mental disease, defect, or injury was substantially
unable to satisfy the person's need for food, shelter, medical
care, or protection from harm.
SECTION 3. Article 56A.051(a), Code of Criminal Procedure,
is amended to read as follows:
(a) A victim, guardian of a victim, or close relative of a
deceased victim is entitled to the following rights within the
criminal justice system:
(1) the right to receive from a law enforcement agency
adequate protection from harm and threats of harm arising from
cooperation with prosecution efforts;
(2) the right to have the magistrate consider the
safety of the victim or the victim's family in setting the amount of
bail for the defendant;
(3) if requested, the right to be informed:
(A) by the attorney representing the state of
relevant court proceedings, including appellate proceedings, and
to be informed if those proceedings have been canceled or
rescheduled before the event; and
(B) by an appellate court of the court's
decisions, after the decisions are entered but before the decisions
are made public;
(4) when requested, the right to be informed:
(A) by a peace officer concerning the defendant's
right to bail and the procedures in criminal investigations; and
(B) by the office of the attorney representing
the state concerning the general procedures in the criminal justice
system, including general procedures in guilty plea negotiations
and arrangements, restitution, and the appeals and parole process;
(5) the right to provide pertinent information to a
community supervision and corrections department conducting a
presentencing investigation concerning the impact of the offense on
the victim and the victim's family by testimony, written statement,
or any other manner before any sentencing of the defendant;
(6) the right to receive information regarding
compensation to victims of crime as provided by Chapter 56B,
including information related to the costs that may be compensated
under that chapter and the amount of compensation, eligibility for
compensation, and procedures for application for compensation
under that chapter, the payment for a forensic medical examination
under Article 56A.252 for a victim of a reported [an alleged] sexual
assault, and when requested, to referral to available social
service agencies that may offer additional assistance;
(7) the right to:
(A) be informed, on request, of parole
procedures;
(B) participate in the parole process;
(C) provide to the board for inclusion in the
defendant's file information to be considered by the board before
the parole of any defendant convicted of any offense subject to this
chapter; and
(D) be notified, if requested, of parole
proceedings concerning a defendant in the victim's case and of the
defendant's release;
(8) the right to be provided with a waiting area,
separate or secure from other witnesses, including the defendant
and relatives of the defendant, before testifying in any proceeding
concerning the defendant; if a separate waiting area is not
available, other safeguards should be taken to minimize the
victim's contact with the defendant and the defendant's relatives
and witnesses, before and during court proceedings;
(9) the right to the prompt return of any of the
victim's property that is held by a law enforcement agency or the
attorney representing the state as evidence when the property is no
longer required for that purpose;
(10) the right to have the attorney representing the
state notify the victim's employer, if requested, that the victim's
cooperation and testimony is necessary in a proceeding that may
require the victim to be absent from work for good cause;
(11) the right to request victim-offender mediation
coordinated by the victim services division of the department;
(12) the right to be informed of the uses of a victim
impact statement and the statement's purpose in the criminal
justice system as described by Subchapter D, to complete the victim
impact statement, and to have the victim impact statement
considered:
(A) by the attorney representing the state and
the judge before sentencing or before a plea bargain agreement is
accepted; and
(B) by the board before a defendant is released
on parole;
(13) for a victim of an assault or sexual assault who
is younger than 17 years of age or whose case involves family
violence, as defined by Section 71.004, Family Code, the right to
have the court consider the impact on the victim of a continuance
requested by the defendant; if requested by the attorney
representing the state or by the defendant's attorney, the court
shall state on the record the reason for granting or denying the
continuance; and
(14) if the offense is a capital felony, the right to:
(A) receive by mail from the court a written
explanation of defense-initiated victim outreach if the court has
authorized expenditures for a defense-initiated victim outreach
specialist;
(B) not be contacted by the victim outreach
specialist unless the victim, guardian, or relative has consented
to the contact by providing a written notice to the court; and
(C) designate a victim service provider to
receive all communications from a victim outreach specialist acting
on behalf of any person.
SECTION 4. 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 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. (a) Articles 56A.304(a) and (c), Code of
Criminal Procedure, are amended to read as follows:
(a) The department shall pay the appropriate fees, as set by
attorney general rule, for the forensic portion of a forensic
medical examination conducted under Article 56A.303(a) and for the
evidence collection kit if a physician, sexual assault examiner, or
sexual assault nurse examiner conducts the forensic portion of the
examination within 120 [96] hours after the [alleged] sexual
assault occurred.
(b) 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.
(c) It is the intent of the 87th Legislature, Regular
Session, 2021, that the amendments made by this section be
harmonized with another Act of the 87th Legislature, Regular
Session, 2021, relating to nonsubstantive additions to and
corrections in enacted codes.
SECTION 7. 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 8. Article 56A.351(a), Code of Criminal Procedure,
is amended to read as follows:
(a) Before conducting a forensic medical examination of a
victim who consents to the examination for the collection of
evidence for a [an alleged] sexual assault, the physician or other
medical services personnel conducting the examination shall offer
the victim the opportunity to have an advocate from a sexual assault
program as defined by Section 420.003, Government Code, be present
with the victim during the examination, if the advocate is
available at the time of the examination. The advocate must have
completed a sexual assault training program described by Section
420.011(b), Government Code.
SECTION 9. Article 56A.352(b), Code of Criminal Procedure,
is amended to read as follows:
(b) If a victim reporting [alleging] to have sustained
injuries as the victim of a sexual assault was confined in a penal
institution at the time of the reported [alleged] assault, the
penal institution shall provide, at the victim's request, a
representative to be present with the victim at any forensic
medical examination conducted for the purpose of collecting and
preserving evidence related to the investigation or prosecution of
the reported [alleged] assault. The representative must:
(1) be approved by the penal institution; and
(2) be a:
(A) psychologist;
(B) sociologist;
(C) chaplain;
(D) social worker;
(E) case manager; or
(F) volunteer who has completed a sexual assault
training program described by Section 420.011(b), Government Code.
SECTION 10. Article 56A.401, Code of Criminal Procedure, is
amended to read as follows:
Art. 56A.401. NOTIFICATION OF RIGHTS. At the initial
contact or at the earliest possible time after the initial contact
between a victim of a reported offense and the law enforcement
agency having the responsibility for investigating the offense, the
agency shall provide the victim a written notice containing:
(1) information about the availability of emergency
and medical services, if applicable;
(2) information about the rights of crime victims
under Subchapter B;
(3) notice that the victim has the right to receive
information regarding compensation to victims of crime as provided
by Chapter 56B, including information about:
(A) the costs that may be compensated under that
chapter and the amount of compensation, eligibility for
compensation, and procedures for application for compensation
under that chapter;
(B) the payment for a forensic medical
examination under Article 56A.252 for a victim of a reported [an
alleged] sexual assault; and
(C) referral to available social service
agencies that may offer additional assistance;
(4) the name, address, and phone number of the law
enforcement agency's crime victim liaison;
(5) the name, address, and phone number of the victim
assistance coordinator of the office of the attorney representing
the state; and
(6) the following statement:
"You may call the law enforcement agency's telephone number
for the status of the case and information about victims' rights."
SECTION 11. Article 56A.451(a), Code of Criminal Procedure,
is amended to read as follows:
(a) Not later than the 10th day after the date that an
indictment or information is returned against a defendant for an
offense, the attorney representing the state shall give to each
victim of the offense a written notice containing:
(1) the case number and assigned court for the case;
(2) a brief general statement of each procedural stage
in the processing of a criminal case, including bail, plea
bargaining, parole restitution, and appeal;
(3) suggested steps the victim may take if the victim
is subjected to threats or intimidation;
(4) the name, address, and phone number of the local
victim assistance coordinator; and
(5) notification of:
(A) the rights and procedures under this chapter,
Chapter 56B, and Subchapter B, Chapter 58;
(B) the right to file a victim impact statement
with the office of the attorney representing the state and the
department;
(C) the right to receive information regarding
compensation to victims of crime as provided by Chapter 56B,
including information about:
(i) the costs that may be compensated under
that chapter, eligibility for compensation, and procedures for
application for compensation under that chapter;
(ii) the payment for a forensic medical
examination under Article 56A.252 for a victim of a reported [an
alleged] sexual assault; and
(iii) referral to available social service
agencies that may offer additional assistance; and
(D) the right of a victim, guardian of a victim,
or close relative of a deceased victim, as defined by Section
508.117, Government Code, to appear in person before a member of the
board as provided by Section 508.153, Government Code.
SECTION 12. Section 420.032(a)(3), Government Code, is
amended to read as follows:
(3) "Photo documentation" means video or photographs
of a child [alleged to be the] victim of a sexual assault that are
taken with a colposcope or other magnifying camera during the
forensic portion of a medical examination of the child.
SECTION 13. Sections 420.032(b) and (e), Government Code,
are amended to read as follows:
(b) In a county with a population of three million or more,
the forensic portion of a medical examination of a child [alleged to
be the] victim of a sexual assault must include the production of
photo documentation unless the medical professional examining the
child determines that good cause for refraining from producing
photo documentation exists.
(e) The fact that the medical professional examining the
child did not produce photo documentation in the forensic portion
of a medical examination of a child [alleged to be the] victim of a
sexual assault and the reasons behind the lack of photo
documentation are admissible at the trial of the [alleged] sexual
assault, but the lack of photo documentation will not affect the
admissibility of other evidence in the case.
SECTION 14. Sections 420.034(a) and (c), Government Code,
are amended to read as follows:
(a) For purposes of this section, "evidence" means evidence
collected during the investigation of a [an alleged] sexual assault
or other sex offense, including:
(1) evidence from an evidence collection kit used to
collect and preserve evidence of a sexual assault or other sex
offense; and
(2) other biological evidence of a sexual assault or
other sex offense.
(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 15. 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 December 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 and members of the legislature [department]
identifying the number of sexual assault 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 report must be titled "Statewide Electronic Tracking System
Report".
SECTION 16. 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 identification number of the evidence
collection kit into the statewide electronic tracking system under
Section 420.034.
SECTION 17. 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 18. 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 19. 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 20. Section 323.004(a), Health and Safety Code, is
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).
SECTION 21. 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) "SAFE-ready facility" means a health care facility
designated as a sexual assault forensic exam-ready facility under
Section 323.0015 or a SAFE program, as defined by Section
323.101(3) and designated under Section 323.102.
(5) "Sexual assault examiner," "sexual assault nurse
examiner," and "sexual assault program" have the meanings assigned
by Section 420.003, Government Code.
Sec. 323.052. OPERATION OF SAFE PROGRAM; DESIGNATION OF
SAFE PROGRAM AS SAFE-READY FACILITY. (a) A health facility may
operate a SAFE program only if:
(1) the program meets the minimum standards
established under Section 323.053; and
(2) 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 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 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 the nearest 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 or 323.0052, as applicable;
(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 22. Except as otherwise provided by this Act, 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 23. The change in law made by this Act applies only
to sexual assault evidence and evidence of other sex offenses
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 24. This Act takes effect September 1, 2021.