Texas 2021 - 87th Regular

Texas Senate Bill SB295 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 295
	1	+	By: Perry, et al. S.B. No. 295
	2	+	(Minjarez)
2	3
3	4
	5	+	A BILL TO BE ENTITLED
4	6		AN ACT
5	7		relating to the confidential and privileged communications and
6	8		records of victims of certain sexual assault offenses.
7	9		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	10		SECTION 1. The heading to Subchapter D, Chapter 420,
9	11		Government Code, is amended to read as follows:
10	12		SUBCHAPTER D. CONFIDENTIAL COMMUNICATIONS AND RECORDS
11	13		SECTION 2. The heading to Section 420.071, Government Code,
12	14		is amended to read as follows:
13	15		Sec. 420.071. CONFIDENTIAL COMMUNICATIONS AND RECORDS;
14	16		PRIVILEGE.
15	17		SECTION 3. Section 420.071, Government Code, is amended by
16	18		amending Subsections (a), (b), and (c) and adding Subsection (c-1)
17	19		to read as follows:
18	20		(a) Any [A] communication, including an oral or written
19	21		communication, between an advocate and a survivor[, or a person
20	22		claiming to be a survivor,] that is made in the course of advising,
21	23		counseling, or assisting [providing sexual assault advocacy
22	24		services to] the survivor is confidential [and may not be disclosed
23	25		except as provided by this subchapter].
24	26		(b) Any [A] record created by, provided to, or maintained by
25	27		an advocate is confidential if the record relates to the services
26	28		provided to a survivor or contains [of] the identity, personal
27	29		history, or background information of the [a] survivor or
28	30		information concerning the victimization of the [a] survivor [that
29	31		is created by or provided to an advocate or maintained by a sexual
30	32		assault program is confidential and may not be disclosed except as
31	33		provided by this subchapter].
32	34		(c) In any civil, criminal, administrative, or legislative
33	35		proceeding, subject to Section 420.072, a survivor has a privilege
34	36		to refuse to disclose and to prevent another from disclosing, for
35	37		any purpose, a communication or record that is confidential under
36		-	this section.
	38	+	this section. [A person who receives information from a
	39	+	confidential communication or record as described by this
	40	+	subchapter may not disclose the information except to the extent
	41	+	that disclosure is consistent with the authorized purposes for
	42	+	which the information was obtained.]
37	43		(c-1) Except as provided by this subsection, the
38	44		unauthorized disclosure of a portion of a confidential
39	45		communication or record does not constitute a waiver of the
40	46		privilege provided by Subsection (c). If a portion of a
41	47		confidential communication or record is disclosed, a party to the
42	48		relevant court or administrative proceeding may make a motion
43	49		requesting that the privilege be waived with respect to the
44	50		disclosed portion. The court or administrative hearing officer, as
45	51		applicable, may determine that the privilege has been waived only
46	52		if:
47	53		(1) the disclosed portion is relevant to a disputed
48	54		matter at the proceeding; and
49	55		(2) waiver is necessary for a witness to be able to
50		-	respond to questioning concerning the disclosed portion. [A person
51		-	who receives information from a confidential communication or
52		-	record as described by this subchapter may not disclose the
53		-	information except to the extent that disclosure is consistent with
54		-	the authorized purposes for which the information was obtained.]
	56	+	respond to questioning concerning the disclosed portion.
55	57		SECTION 4. Section 420.072, Government Code, is amended to
56	58		read as follows:
57	59		Sec. 420.072. DISCLOSURE OF CONFIDENTIAL COMMUNICATION OR
58	60		RECORD [EXCEPTIONS]. (a) A communication or[, a] record[, or
59	61		evidence] that is confidential under Section 420.071 [this
60	62		subchapter] may only be disclosed [in court or in an administrative
61	63		proceeding] if:
62	64		(1) the communication or record [proceeding is brought
63	65		by the survivor against an advocate or a sexual assault program or
64	66		is a criminal proceeding or a certification revocation proceeding
65	67		in which disclosure] is relevant to the claims or defense of an
66	68		[the] advocate or sexual assault program in a proceeding brought by
67	69		the survivor against the advocate or program; [or]
68	70		(2) the survivor has waived the privilege established
69	71		under Section 420.071(c) with respect to the communication or
70	72		record;
71	73		(3) the survivor or other appropriate person consents
72	74		in writing to the disclosure as provided by Section 420.073;
73	75		(4) an [or 420.0735, as applicable.
74	76		[(b) A communication, a record, or evidence that is
75	77		confidential under this subchapter may be disclosed only to:
76	78		[(1) medical or law enforcement personnel if the]
77	79		advocate determines that, unless the disclosure is made, there is a
78	80		probability of:
79	81		(A) imminent physical danger to any person; or
80	82		(B) [for whom the communication, record, or
81	83		evidence is relevant or if there is a probability of] immediate
82	84		mental or emotional injury to the survivor;
83	85		(5) [(2) a governmental agency if] the disclosure is
84	86		necessary:
85	87		(A) to comply with:
86	88		(i) Chapter 261, Family Code; or
87	89		(ii) Chapter 48, Human Resources Code; or
88	90		(B) [required or authorized by law;
89	91		[(3) a qualified person to the extent necessary] for a
90	92		management audit, a financial audit, a program evaluation, or
91	93		research, except that a report of the [research,] audit, [or]
92	94		evaluation, or research may not directly or indirectly identify a
93	95		survivor;
	96	+	[(4) a person authorized to receive the disclosure as
	97	+	a result of written consent obtained under Section 420.073 or
	98	+	420.0735;] or
94	99		(6) the disclosure is made to an employee or volunteer
95		-	of the sexual assault program after [(4) a person authorized to
96		-	receive the disclosure as a result of written consent obtained
97		-	under Section 420.073 or 420.0735; or
98		-	[(5)] an advocate or a person under the supervision of
99		-	a counseling supervisor who is participating in the evaluation or
100		-	counseling of or the provision of services to [advocacy for] the
101		-	survivor determines that the disclosure is necessary to facilitate
102		-	the provision of services to the survivor; or
103		-	(7) the communication or record is in the possession,
104		-	custody, or control of the state and a court, after conducting an in
105		-	camera review of the communication or record, determines the
106		-	communication or record is exculpatory, provided that the
107		-	disclosure is limited to the specific portion of the communication
108		-	or record that was determined to be exculpatory in relation to a
109		-	defendant in a criminal case.
	100	+	of the sexual assault program after [(5)] an advocate or a person
	101	+	under the supervision of a counseling supervisor who is
	102	+	participating in the evaluation or counseling of or the provision
	103	+	of services to [advocacy for] the survivor determines that the
	104	+	disclosure is necessary to facilitate the provision of services to
	105	+	the survivor.
110	106		(b) Regardless of whether written consent has been given by
111	107		a parent or legal guardian under Section 420.073(a), a person may
112	108		not disclose a [(c) A] communication or[, a] record[, or evidence]
113	109		that is confidential under Section 420.071 [this subchapter may not
114	110		be disclosed] to a parent or legal guardian of a survivor who is a
115	111		minor or to a guardian appointed under Title 3, Estates Code, of an
116	112		adult survivor, if applicable, if the person [an advocate or a
117	113		sexual assault program] knows or has reason to believe that the
118	114		parent or guardian of the survivor is a suspect or accomplice in the
119	115		sexual assault of the survivor.
120	116		(c) Notwithstanding Subsections (a) and (b), the Texas
121	117		Rules of Evidence govern the disclosure of a communication or
122	118		record that is confidential under Section 420.071 in a criminal or
123	119		civil proceeding by an expert witness who relies on facts or data
124	120		from the communication or record to form the basis of the expert's
125	121		opinion.
126		-	SECTION 5. Section 420.074, Government Code, is amended to
127		-	read as follows:
128		-	Sec. 420.074. DISCLOSURE OF PRIVILEGED COMMUNICATIONS OR
129		-	OTHER INFORMATION IN CRIMINAL PROCEEDING [SUBPOENA]. (a) Subject
130		-	to the provisions [Notwithstanding any other provision] of this
131		-	chapter, not later than the 30th day before the date of the trial, a
132		-	defendant in a criminal proceeding may make a motion for disclosure
133		-	of a communication or record that is privileged under this chapter.
134		-	The motion must include a supporting affidavit showing reasonable
135		-	grounds to believe the privileged communication or record contains
136		-	exculpatory evidence.
137		-	(b) The defendant shall serve the motion on the attorney
138		-	representing the state and the person who holds the privilege with
139		-	regard to the communication or record at issue.
140		-	(c) The court shall order the privileged communication or
141		-	record to be produced for the court under seal and shall examine the
142		-	communication or record in camera if the court finds by a
143		-	preponderance of the evidence that:
144		-	(1) there is a good-faith, specific, and reasonable
145		-	basis for believing that the privileged communication or record is
146		-	relevant, material, and exculpatory upon the issue of guilt for the
147		-	offense charged; and
148		-	(2) the privileged communication or record would not
149		-	be duplicative of other evidence or information available or
150		-	already obtained by the defendant.
151		-	(d) The court [a person] shall disclose to the defendant and
152		-	to the state only the evidence that the court finds to be
153		-	exculpatory on the issue of guilt for the offense charged [a
154		-	communication, a record, or evidence that is confidential under
155		-	this chapter for use in a criminal investigation or proceeding in
156		-	response to a subpoena issued in accordance with law].
	122	+	SECTION 5. Section 420.074, Government Code, is repealed.
157	123		SECTION 6. The change in law made by this Act applies to any
158	124		communication or record described by Section 420.071, Government
159	125		Code, as amended by this Act, regardless of the date the
160	126		communication is made or the record is created.
161	127		SECTION 7. This Act takes effect September 1, 2021.
162		-	______________________________ ______________________________
163		-	President of the Senate Speaker of the House
164		-	I hereby certify that S.B. No. 295 passed the Senate on
165		-	April 19, 2021, by the following vote: Yeas 31, Nays 0;
166		-	May 11, 2021, Senate refused to concur in House amendments and
167		-	requested appointment of Conference Committee; May 14, 2021, House
168		-	granted request of the Senate; May 29, 2021, Senate adopted
169		-	Conference Committee Report by the following vote: Yeas 31,
170		-	Nays 0.
171		-	______________________________
172		-	Secretary of the Senate
173		-	I hereby certify that S.B. No. 295 passed the House, with
174		-	amendments, on May 5, 2021, by the following vote: Yeas 145,
175		-	Nays 0, one present not voting; May 14, 2021, House granted request
176		-	of the Senate for appointment of Conference Committee;
177		-	May 28, 2021, House adopted Conference Committee Report by the
178		-	following vote: Yeas 135, Nays 9, one present not voting.
179		-	______________________________
180		-	Chief Clerk of the House
181		-	Approved:
182		-	______________________________
183		-	Date
184		-	______________________________
185		-	Governor