85R12428 MAW-F     By: Garcia, Hinojosa S.B. No. 1851       A BILL TO BE ENTITLED   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.  Section 420.071, Government Code, is amended to   read as follows:          Sec. 420.071.  CONFIDENTIAL COMMUNICATIONS AND RECORDS;   PRIVILEGE.  (a)  Any [A] communication, including an oral or written   communication, between an employee or volunteer of a sexual assault   program [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 employee or volunteer of a sexual assault program 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.  [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.]          (d)  This subchapter governs a confidential communication or   record concerning a survivor regardless of when the survivor   received the services of a [an advocate or] sexual assault program.          SECTION 3.  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 a [the   advocate or] sexual assault program in a proceeding brought by the   survivor against the program; [or]                (2)  the privilege is waived with respect to the   communication or record [survivor or other appropriate person   consents in writing to the disclosure] as provided by Section   420.073;                (3)  a court orders the disclosure under Section   420.074;                (4)  an employee or volunteer of a sexual assault   program [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 there is a probability of:                      (A)  imminent physical danger to any person to   [for] whom the communication or [,] record relates; or                      (B)  [, 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; or                (6)  an employee or volunteer of a sexual assault   program, [(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 the survivor,   determines that the disclosure is necessary to facilitate the   provision of services to the survivor, if the disclosure was made   only to an employee or volunteer of the sexual assault program [the   evaluation or counseling of or advocacy for the survivor].          (b)  Notwithstanding a waiver by a parent or legal guardian   under Section 420.073(a), an employee or volunteer of a sexual   assault program 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 if the employee or volunteer [an   advocate or a sexual assault program] knows or has reason to believe   that the parent or legal guardian of the survivor is a suspect in   the sexual assault of the survivor.          SECTION 4.  The heading to Section 420.073, Government Code,   is amended to read as follows:          Sec. 420.073.  WAIVER OF PRIVILEGE [CONSENT FOR RELEASE OF   CERTAIN CONFIDENTIAL INFORMATION].          SECTION 5.  Section 420.073, Government Code, is amended by   amending Subsection (a) and adding Subsection (a-1) to read as   follows:          (a)  The privilege provided by Section 420.071(c) may be   waived only [Consent for the release of confidential information   other than evidence contained in an evidence collection kit must be   in writing and signed] by the survivor, a parent or legal guardian   if the survivor is a minor, a legal guardian if the survivor has   been adjudicated incompetent to manage the survivor's personal   affairs, an attorney ad litem appointed for the survivor, or a   personal representative if the survivor is deceased.  The waiver   [written consent] must:                (1)  be in writing and signed; and                (2)  specify [:                [(1)]  the communication [information] or record for   which privilege is waived [records covered by the release;                [(2)  the reason or purpose for the release; and                [(3)     the person to whom the information is to be   released].          (a-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 Section 420.071(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.           SECTION 6.  Section 420.074, Government Code, is amended to   read as follows:          Sec. 420.074.  DISCLOSURE IN CRIMINAL PROCEEDING   [SUBPOENA]. (a)  Notwithstanding any other provision of this   chapter, a defendant [person shall disclose a communication, a   record, or evidence that is confidential under this chapter for   use] in a criminal [investigation or] proceeding may make a motion   requesting that the court in which the proceeding is pending order   the disclosure of a communication or record that is confidential   under Section 420.071. The motion must be supported by an affidavit   stating reasonable grounds to believe the communication or record   contains exculpatory evidence. The defendant must serve a copy of   the motion on the attorney representing the state and the survivor   who is the subject of the communication or record [in response to a   subpoena issued in accordance with law].          (b)  The court shall order the communication or record   produced for an in camera review by the court if, based on the   defendant's affidavit, the court finds by a preponderance of the   evidence that:                (1)  the defendant has a good faith, specific, and   reasonable belief that the communication or record is relevant,   material, and exculpatory; and                (2)  the communication or record is not cumulative of   other evidence or information available to the defendant.          (c)  The court shall order the communication or record   disclosed to the defendant and the attorney representing the state   if the court determines that, after a review under Subsection (b),   the communication or record is exculpatory.           SECTION 7.   Sections 420.073(b) and (c), Government Code,   are repealed.          SECTION 8.  (a) Except as provided by Subsection (b) of this   section, 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.          (b)  Section 420.074, Government Code, as amended by this   Act, applies only to a criminal proceeding that commences on or   after the effective date of this Act. A criminal proceeding that   commenced before the effective date of this Act is governed by the   law in effect on the date the proceeding commenced, and the former   law is continued in effect for that purpose.          SECTION 9.  This Act takes effect September 1, 2017.