S.B. No. 295
AN ACT
relating to the confidential and privileged communications and
records of victims of certain sexual assault offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subchapter D, Chapter 420,
Government Code, is amended to read as follows:
SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS AND RECORDS
SECTION 2. The heading to Section 420.071, Government Code,
is amended to read as follows:
Sec. 420.071. CONFIDENTIAL COMMUNICATIONS AND RECORDS;
PRIVILEGE.
SECTION 3. Section 420.071, Government Code, is amended by
amending Subsections (a), (b), and (c) and adding Subsection (c-1)
to read as follows:
(a) Any [A] communication, including an oral or written
communication, between an advocate and a survivor[, or a person
claiming to be a survivor,] that is made in the course of advising,
counseling, or assisting [providing sexual assault advocacy
services to] the survivor is confidential [and may not be disclosed
except as provided by this subchapter].
(b) Any [A] record created by, provided to, or maintained by
an advocate is confidential if the record relates to the services
provided to a survivor or contains [of] the identity, personal
history, or background information of the [a] survivor or
information concerning the victimization of the [a] survivor [that
is created by or provided to an advocate or maintained by a sexual
assault program is confidential and may not be disclosed except as
provided by this subchapter].
(c) In any civil, criminal, administrative, or legislative
proceeding, subject to Section 420.072, a survivor has a privilege
to refuse to disclose and to prevent another from disclosing, for
any purpose, a communication or record that is confidential under
this section.
(c-1) Except as provided by this subsection, the
unauthorized disclosure of a portion of a confidential
communication or record does not constitute a waiver of the
privilege provided by Subsection (c). If a portion of a
confidential communication or record is disclosed, a party to the
relevant court or administrative proceeding may make a motion
requesting that the privilege be waived with respect to the
disclosed portion. The court or administrative hearing officer, as
applicable, may determine that the privilege has been waived only
if:
(1) the disclosed portion is relevant to a disputed
matter at the proceeding; and
(2) waiver is necessary for a witness to be able to
respond to questioning concerning the disclosed portion. [A person
who receives information from a confidential communication or
record as described by this subchapter may not disclose the
information except to the extent that disclosure is consistent with
the authorized purposes for which the information was obtained.]
SECTION 4. Section 420.072, Government Code, is amended to
read as follows:
Sec. 420.072. DISCLOSURE OF CONFIDENTIAL COMMUNICATION OR
RECORD [EXCEPTIONS]. (a) A communication or[, a] record[, or
evidence] that is confidential under Section 420.071 [this
subchapter] may only be disclosed [in court or in an administrative
proceeding] if:
(1) the communication or record [proceeding is brought
by the survivor against an advocate or a sexual assault program or
is a criminal proceeding or a certification revocation proceeding
in which disclosure] is relevant to the claims or defense of an
[the] advocate or sexual assault program in a proceeding brought by
the survivor against the advocate or program; [or]
(2) the survivor has waived the privilege established
under Section 420.071(c) with respect to the communication or
record;
(3) the survivor or other appropriate person consents
in writing to the disclosure as provided by Section 420.073;
(4) an [or 420.0735, as applicable.
[(b) A communication, a record, or evidence that is
confidential under this subchapter may be disclosed only to:
[(1) medical or law enforcement personnel if the]
advocate determines that, unless the disclosure is made, there is a
probability of:
(A) imminent physical danger to any person; or
(B) [for whom the communication, record, or
evidence is relevant or if there is a probability of] immediate
mental or emotional injury to the survivor;
(5) [(2) a governmental agency if] the disclosure is
necessary:
(A) to comply with:
(i) Chapter 261, Family Code; or
(ii) Chapter 48, Human Resources Code; or
(B) [required or authorized by law;
[(3) a qualified person to the extent necessary] for a
management audit, a financial audit, a program evaluation, or
research, except that a report of the [research,] audit, [or]
evaluation, or research may not directly or indirectly identify a
survivor;
(6) the disclosure is made to an employee or volunteer
of the sexual assault program after [(4) a person authorized to
receive the disclosure as a result of written consent obtained
under Section 420.073 or 420.0735; or
[(5)] an advocate or a person under the supervision of
a counseling supervisor who is participating in the evaluation or
counseling of or the provision of services to [advocacy for] the
survivor determines that the disclosure is necessary to facilitate
the provision of services to the survivor; or
(7) the communication or record is in the possession,
custody, or control of the state and a court, after conducting an in
camera review of the communication or record, determines the
communication or record is exculpatory, provided that the
disclosure is limited to the specific portion of the communication
or record that was determined to be exculpatory in relation to a
defendant in a criminal case.
(b) Regardless of whether written consent has been given by
a parent or legal guardian under Section 420.073(a), a person may
not disclose a [(c) A] communication or[, a] record[, or evidence]
that is confidential under Section 420.071 [this subchapter may not
be disclosed] to a parent or legal guardian of a survivor who is a
minor or to a guardian appointed under Title 3, Estates Code, of an
adult survivor, if applicable, if the person [an advocate or a
sexual assault program] knows or has reason to believe that the
parent or guardian of the survivor is a suspect or accomplice in the
sexual assault of the survivor.
(c) Notwithstanding Subsections (a) and (b), the Texas
Rules of Evidence govern the disclosure of a communication or
record that is confidential under Section 420.071 in a criminal or
civil proceeding by an expert witness who relies on facts or data
from the communication or record to form the basis of the expert's
opinion.
SECTION 5. Section 420.074, Government Code, is amended to
read as follows:
Sec. 420.074. DISCLOSURE OF PRIVILEGED COMMUNICATIONS OR
OTHER INFORMATION IN CRIMINAL PROCEEDING [SUBPOENA]. (a) Subject
to the provisions [Notwithstanding any other provision] of this
chapter, not later than the 30th day before the date of the trial, a
defendant in a criminal proceeding may make a motion for disclosure
of a communication or record that is privileged under this chapter.
The motion must include a supporting affidavit showing reasonable
grounds to believe the privileged communication or record contains
exculpatory evidence.
(b) The defendant shall serve the motion on the attorney
representing the state and the person who holds the privilege with
regard to the communication or record at issue.
(c) The court shall order the privileged communication or
record to be produced for the court under seal and shall examine the
communication or record in camera if the court finds by a
preponderance of the evidence that:
(1) there is a good-faith, specific, and reasonable
basis for believing that the privileged communication or record is
relevant, material, and exculpatory upon the issue of guilt for the
offense charged; and
(2) the privileged communication or record would not
be duplicative of other evidence or information available or
already obtained by the defendant.
(d) The court [a person] shall disclose to the defendant and
to the state only the evidence that the court finds to be
exculpatory on the issue of guilt for the offense charged [a
communication, a record, or evidence that is confidential under
this chapter for use in a criminal investigation or proceeding in
response to a subpoena issued in accordance with law].
SECTION 6. The change in law made by this Act applies to any
communication or record described by Section 420.071, Government
Code, as amended by this Act, regardless of the date the
communication is made or the record is created.
SECTION 7. This Act takes effect September 1, 2021.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 295 passed the Senate on
April 19, 2021, by the following vote: Yeas 31, Nays 0;
May 11, 2021, Senate refused to concur in House amendments and
requested appointment of Conference Committee; May 14, 2021, House
granted request of the Senate; May 29, 2021, Senate adopted
Conference Committee Report by the following vote: Yeas 31,
Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 295 passed the House, with
amendments, on May 5, 2021, by the following vote: Yeas 145,
Nays 0, one present not voting; May 14, 2021, House granted request
of the Senate for appointment of Conference Committee;
May 28, 2021, House adopted Conference Committee Report by the
following vote: Yeas 135, Nays 9, one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor