Bill Text: TX HB1735 | 2019-2020 | 86th Legislature | Enrolled
Bill Title: Relating to sexual harassment, sexual assault, dating violence, and stalking at public and private postsecondary educational institutions; providing an administrative penalty.
Spectrum: Bipartisan Bill
Status: (Passed) 2019-06-14 - Effective on 9/1/19 [HB1735 Detail]
Download: Texas-2019-HB1735-Enrolled.html
H.B. No. 1735 |
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relating to sexual harassment, sexual assault, dating violence, and | ||
stalking at public and private postsecondary educational | ||
institutions; providing an administrative penalty. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 51, Education Code, is amended by adding | ||
Subchapter E-3 to read as follows: | ||
SUBCHAPTER E-3. SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING | ||
VIOLENCE, AND STALKING | ||
Sec. 51.281. DEFINITIONS. In this subchapter: | ||
(1) "Coordinating board" means the Texas Higher | ||
Education Coordinating Board. | ||
(2) "Dating violence," "sexual assault," and | ||
"stalking" have the meanings assigned by the Jeanne Clery | ||
Disclosure of Campus Security Policy and Campus Crime Statistics | ||
Act (20 U.S.C. Section 1092(f)(6)(A)). | ||
(3) "Postsecondary educational institution" means an | ||
institution of higher education or a private or independent | ||
institution of higher education, as those terms are defined by | ||
Section 61.003. | ||
(4) "Sexual harassment" means unwelcome, sex-based | ||
verbal or physical conduct that: | ||
(A) in the employment context, unreasonably | ||
interferes with a person's work performance or creates an | ||
intimidating, hostile, or offensive work environment; or | ||
(B) in the education context, is sufficiently | ||
severe, persistent, or pervasive that the conduct interferes with a | ||
student's ability to participate in or benefit from educational | ||
programs or activities at a postsecondary educational institution. | ||
Sec. 51.282. POLICY ON SEXUAL HARASSMENT, SEXUAL ASSAULT, | ||
DATING VIOLENCE, AND STALKING. (a) Each postsecondary educational | ||
institution shall adopt a policy on sexual harassment, sexual | ||
assault, dating violence, and stalking applicable to each student | ||
enrolled at and each employee of the institution. The policy must: | ||
(1) include: | ||
(A) definitions of prohibited behavior; | ||
(B) sanctions for violations; | ||
(C) the protocol for reporting and responding to | ||
reports of sexual harassment, sexual assault, dating violence, and | ||
stalking; | ||
(D) interim measures to protect victims of sexual | ||
harassment, sexual assault, dating violence, or stalking during the | ||
pendency of the institution's disciplinary process, including | ||
protection from retaliation, and any other accommodations | ||
available to those victims at the institution; and | ||
(E) a statement regarding: | ||
(i) the importance of a victim of sexual | ||
harassment, sexual assault, dating violence, or stalking going to a | ||
hospital for treatment and preservation of evidence, if applicable, | ||
as soon as practicable after the incident; | ||
(ii) the right of a victim of sexual | ||
harassment, sexual assault, dating violence, or stalking to report | ||
the incident to the institution and to receive a prompt and | ||
equitable resolution of the report; and | ||
(iii) the right of a victim of a crime to | ||
choose whether to report the crime to law enforcement, to be | ||
assisted by the institution in reporting the crime to law | ||
enforcement, or to decline to report the crime to law enforcement; | ||
and | ||
(2) be approved by the institution's governing board | ||
before final adoption by the institution. | ||
(b) Each postsecondary educational institution shall make | ||
the institution's sexual harassment, sexual assault, dating | ||
violence, and stalking policy available to students, faculty, and | ||
staff members by: | ||
(1) including the policy in the institution's student | ||
handbook and personnel handbook; and | ||
(2) creating and maintaining a web page dedicated | ||
solely to the policy that is easily accessible through a clearly | ||
identifiable link on the institution's Internet website home page. | ||
(c) Each postsecondary educational institution shall | ||
require each entering freshman or undergraduate transfer student to | ||
attend an orientation on the institution's sexual harassment, | ||
sexual assault, dating violence, and stalking policy before or | ||
during the first semester or term in which the student is enrolled | ||
at the institution. The institution shall establish the format and | ||
content of the orientation. The orientation: | ||
(1) may be provided online; and | ||
(2) must include the statements described by | ||
Subsection (a)(1)(E). | ||
(d) Each postsecondary educational institution shall | ||
develop and implement a comprehensive prevention and outreach | ||
program on sexual harassment, sexual assault, dating violence, and | ||
stalking. The program must: | ||
(1) address a range of strategies to prevent sexual | ||
harassment, sexual assault, dating violence, and stalking, | ||
including a victim empowerment program, a public awareness | ||
campaign, primary prevention, bystander intervention, and risk | ||
reduction; and | ||
(2) include providing to students information | ||
regarding the protocol for reporting incidents of sexual | ||
harassment, sexual assault, dating violence, and stalking adopted | ||
under Subsection (a), including the name, office location, and | ||
contact information of the institution's Title IX coordinator, by: | ||
(A) e-mailing the information to each student at | ||
the beginning of each semester or other academic term; and | ||
(B) including the information in the orientation | ||
required under Subsection (c). | ||
(e) As part of the protocol for responding to reports of | ||
sexual harassment, sexual assault, dating violence, and stalking | ||
adopted under Subsection (a), each postsecondary educational | ||
institution shall: | ||
(1) to the greatest extent practicable based on the | ||
number of counselors employed by the institution, ensure that each | ||
alleged victim or alleged perpetrator of an incident of sexual | ||
harassment, sexual assault, dating violence, or stalking and any | ||
other person who reports such an incident are offered counseling | ||
provided by a counselor who does not provide counseling to any other | ||
person involved in the incident; and | ||
(2) notwithstanding any other law, allow an alleged | ||
victim or alleged perpetrator of an incident of sexual harassment, | ||
sexual assault, dating violence, or stalking to drop a course in | ||
which both parties are enrolled without any academic penalty. | ||
(f) Each biennium, each postsecondary educational | ||
institution shall review the institution's sexual harassment, | ||
sexual assault, dating violence, and stalking policy and, with | ||
approval of the institution's governing board, revise the policy as | ||
necessary. | ||
Sec. 51.285. VICTIM REQUEST NOT TO INVESTIGATE. (a) If an | ||
alleged victim of an incident of sexual harassment, sexual assault, | ||
dating violence, or stalking reported to a postsecondary | ||
educational institution requests the institution not to | ||
investigate the alleged incident, the institution may investigate | ||
the alleged incident in a manner that complies with the | ||
confidentiality requirements under Section 51.291. In determining | ||
whether to investigate the alleged incident, the institution shall | ||
consider: | ||
(1) the seriousness of the alleged incident; | ||
(2) whether the institution has received other reports | ||
of sexual harassment, sexual assault, dating violence, or stalking | ||
committed by the alleged perpetrator or perpetrators; | ||
(3) whether the alleged incident poses a risk of harm | ||
to others; and | ||
(4) any other factors the institution determines | ||
relevant. | ||
(b) If a postsecondary educational institution decides not | ||
to investigate an alleged incident of sexual harassment, sexual | ||
assault, dating violence, or stalking based on the alleged victim's | ||
request not to investigate, the institution shall take any steps | ||
the institution determines necessary to protect the health and | ||
safety of the institution's community in relation to the alleged | ||
incident. | ||
(c) A postsecondary educational institution shall inform an | ||
alleged victim of an incident of sexual harassment, sexual assault, | ||
dating violence, or stalking who requests the institution not to | ||
investigate the alleged incident of the institution's decision | ||
whether to investigate the alleged incident. | ||
Sec. 51.286. DISCIPLINARY PROCESS FOR CERTAIN VIOLATIONS. | ||
A postsecondary educational institution that initiates a | ||
disciplinary process concerning an allegation that a student | ||
enrolled at the institution violated the institution's code of | ||
conduct by committing sexual harassment, sexual assault, dating | ||
violence, or stalking shall: | ||
(1) provide to the student and the alleged victim a | ||
prompt and equitable opportunity to present witnesses and other | ||
evidence relevant to the alleged violation during the disciplinary | ||
process; | ||
(2) ensure that both the student and the alleged | ||
victim have reasonable and equitable access to all evidence | ||
relevant to the alleged violation in the institution's possession, | ||
including any statements made by the alleged victim or by other | ||
persons, information stored electronically, written or electronic | ||
communications, social media posts, or physical evidence, redacted | ||
as necessary to comply with any applicable federal or state law | ||
regarding confidentiality; and | ||
(3) take reasonable steps to protect the student and | ||
the alleged victim from retaliation and harassment during the | ||
pendency of the disciplinary process. | ||
Sec. 51.287. STUDENT WITHDRAWAL OR GRADUATION PENDING | ||
DISCIPLINARY CHARGES. (a) If a student withdraws or graduates from | ||
a postsecondary educational institution pending a disciplinary | ||
charge alleging that the student violated the institution's code of | ||
conduct by committing sexual harassment, sexual assault, dating | ||
violence, or stalking, the institution: | ||
(1) may not end the disciplinary process or issue a | ||
transcript to the student until the institution makes a final | ||
determination of responsibility; and | ||
(2) shall expedite the institution's disciplinary | ||
process as necessary to accommodate both the student's and the | ||
alleged victim's interest in a speedy resolution. | ||
(b) On request by another postsecondary educational | ||
institution, a postsecondary educational institution shall provide | ||
to the requesting institution information relating to a | ||
determination by the institution that a student enrolled at the | ||
institution violated the institution's code of conduct by | ||
committing sexual harassment, sexual assault, dating violence, or | ||
stalking. | ||
Sec. 51.288. TRAUMA-INFORMED INVESTIGATION TRAINING. Each | ||
peace officer employed by a postsecondary educational institution | ||
shall complete training on trauma-informed investigation into | ||
allegations of sexual harassment, sexual assault, dating violence, | ||
and stalking. | ||
Sec. 51.289. MEMORANDA OF UNDERSTANDING REQUIRED. To | ||
facilitate effective communication and coordination regarding | ||
allegations of sexual harassment, sexual assault, dating violence, | ||
and stalking at the institution, a postsecondary educational | ||
institution shall enter into a memorandum of understanding with one | ||
or more: | ||
(1) local law enforcement agencies; | ||
(2) sexual harassment, sexual assault, dating | ||
violence, or stalking advocacy groups; and | ||
(3) hospitals or other medical resource providers. | ||
Sec. 51.290. RESPONSIBLE AND CONFIDENTIAL EMPLOYEE; | ||
STUDENT ADVOCATE. (a) Each postsecondary educational institution | ||
shall: | ||
(1) designate: | ||
(A) one or more employees to act as responsible | ||
employees for purposes of Title IX of the Education Amendments of | ||
1972 (20 U.S.C. Section 1681 et seq.); and | ||
(B) one or more employees as persons to whom | ||
students enrolled at the institution may speak confidentially | ||
concerning sexual harassment, sexual assault, dating violence, and | ||
stalking; and | ||
(2) inform each student enrolled at the institution of | ||
the responsible and confidential employees designated under | ||
Subdivision (1). | ||
(b) A postsecondary educational institution may designate | ||
one or more students enrolled at the institution as student | ||
advocates to whom other students enrolled at the institution may | ||
speak confidentially concerning sexual harassment, sexual assault, | ||
dating violence, and stalking. The institution shall notify each | ||
student enrolled at the institution of the student advocates | ||
designated under this subsection. | ||
(c) A confidential employee designated under Subsection | ||
(a)(1)(B) or a student advocate designated under Subsection (b) may | ||
not disclose any communication made by a student to the employee or | ||
advocate unless the student consents to the disclosure or the | ||
employee or advocate is required to make the disclosure under state | ||
or federal law. | ||
Sec. 51.291. CONFIDENTIALITY. (a) The protections | ||
provided by this section apply to: | ||
(1) an alleged victim of an incident of sexual | ||
harassment, sexual assault, dating violence, or stalking reported | ||
to a postsecondary educational institution; | ||
(2) a person who reports to a postsecondary | ||
educational institution an incident of sexual harassment, sexual | ||
assault, dating violence, or stalking, who sought guidance from the | ||
institution concerning such an incident, or who participated in the | ||
institution's investigation of such an incident; and | ||
(3) a person who is alleged in a report made to a | ||
postsecondary educational institution to have committed or | ||
assisted in the commission of sexual harassment, sexual assault, | ||
dating violence, or stalking if, after completing an investigation, | ||
the institution determines the report to be unsubstantiated or | ||
without merit. | ||
(b) Unless waived in writing by the person, the identity of | ||
a person described by Subsection (a): | ||
(1) is confidential and not subject to disclosure | ||
under Chapter 552, Government Code; and | ||
(2) may be disclosed only to: | ||
(A) the postsecondary educational institution to | ||
which the report described by Subsection (a) is made as necessary to | ||
conduct an investigation of the report; | ||
(B) a law enforcement officer as necessary to | ||
conduct a criminal investigation of the report described by | ||
Subsection (a); or | ||
(C) a health care provider in an emergency | ||
situation, as determined necessary by the institution. | ||
(c) A disclosure under Subsection (b) is not a voluntary | ||
disclosure for purposes of Section 552.007, Government Code. | ||
(d) Information regarding an incident of sexual harassment, | ||
sexual assault, dating violence, or stalking disclosed to a health | ||
care provider or other medical provider employed by a postsecondary | ||
educational institution is confidential and may be shared by the | ||
provider only with the victim's consent. The provider must provide | ||
aggregate data or other nonidentifying information regarding those | ||
incidents to the institution's Title IX coordinator. | ||
Sec. 51.292. COMPLIANCE. (a) If the coordinating board | ||
determines that a postsecondary educational institution is not in | ||
substantial compliance with this subchapter, the coordinating | ||
board may assess an administrative penalty against the institution | ||
in an amount not to exceed $2 million. In determining the amount of | ||
the penalty, the coordinating board shall consider the nature of | ||
the violation and the number of students enrolled at the | ||
institution. | ||
(b) If the coordinating board assesses an administrative | ||
penalty against a postsecondary educational institution under | ||
Subsection (a), the coordinating board shall provide to the | ||
institution written notice of the coordinating board's reasons for | ||
assessing the penalty. | ||
(c) A postsecondary educational institution assessed an | ||
administrative penalty under Subsection (a) may appeal the penalty | ||
in the manner provided by Chapter 2001, Government Code. | ||
(d) A postsecondary educational institution may not pay an | ||
administrative penalty assessed under Subsection (a) using state or | ||
federal money. | ||
(e) An administrative penalty collected under this section | ||
shall be deposited to the credit of the sexual assault program fund | ||
established under Section 420.008, Government Code. | ||
(f) The coordinating board shall annually submit to the | ||
governor, the lieutenant governor, the speaker of the house of | ||
representatives, and the standing legislative committees with | ||
primary jurisdiction over legislation concerning sexual assault at | ||
postsecondary educational institutions a report regarding | ||
compliance with this subchapter, including a summary of the | ||
postsecondary educational institutions found not to be in | ||
substantial compliance as provided by this section and any | ||
penalties assessed under this section during the preceding year. | ||
Sec. 51.293. EQUAL ACCESS. In implementing the | ||
requirements under this subchapter, a postsecondary educational | ||
institution shall, to the greatest extent practicable, ensure equal | ||
access for students enrolled at or employees of the institution who | ||
are persons with disabilities. The institution shall make | ||
reasonable efforts to consult with a disability services office of | ||
the institution, advocacy groups for people with disabilities, and | ||
other relevant stakeholders to assist the institution with | ||
complying with the institution's duties under this section. | ||
Sec. 51.294. ADVISORY COMMITTEE. (a) The commissioner of | ||
higher education shall establish an advisory committee to: | ||
(1) make recommendations to the coordinating board | ||
regarding rules for adoption under Section 51.295; and | ||
(2) develop recommended training for responsible and | ||
confidential employees designated under Section 51.290 and for | ||
Title IX coordinators at postsecondary educational institutions. | ||
(b) The advisory committee consists of nine members | ||
appointed by the commissioner of higher education. Each member | ||
must be a chief executive officer of a postsecondary educational | ||
institution or a representative designated by that officer. | ||
(c) The advisory committee shall annually review and, if | ||
necessary, update the training recommended under Subsection | ||
(a)(2). | ||
Sec. 51.295. RULES. (a) The coordinating board shall adopt | ||
rules as necessary to implement and enforce this subchapter, | ||
including rules that: | ||
(1) define relevant terms; and | ||
(2) ensure implementation of this subchapter in a | ||
manner that complies with federal law regarding confidentiality of | ||
student educational information, including the Family Educational | ||
Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g). | ||
(b) In adopting rules under this section, the coordinating | ||
board shall consult with relevant stakeholders. | ||
SECTION 2. Sections 51.9365(b), (c), and (d), Education | ||
Code, are transferred to Subchapter E-3, Chapter 51, Education | ||
Code, as added by this Act, redesignated as Section 51.283, | ||
Education Code, and amended to read as follows: | ||
Sec. 51.283. ELECTRONIC REPORTING OPTION. (a) [ |
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postsecondary educational institution shall provide an option for a | ||
student enrolled at or an employee of the institution to | ||
electronically report to the institution an allegation of sexual | ||
harassment, sexual assault, dating violence, or stalking committed | ||
against or witnessed by the student or employee, regardless of the | ||
location at which the alleged offense occurred. | ||
(b) [ |
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Subsection (a) [ |
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(1) enable a student or employee to report the alleged | ||
offense anonymously; and | ||
(2) be easily accessible through a clearly | ||
identifiable link on the postsecondary educational institution's | ||
Internet website home page. | ||
(c) [ |
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under Section 51.282 [ |
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SECTION 3. Sections 51.9366(b), (c), (d), (e), and (f), | ||
Education Code, are transferred to Subchapter E-3, Chapter 51, | ||
Education Code, as added by this Act, redesignated as Section | ||
51.284, Education Code, and amended to read as follows: | ||
Sec. 51.284. AMNESTY FOR STUDENTS REPORTING CERTAIN | ||
INCIDENTS. (a) [ |
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not take any disciplinary action against a student enrolled at the | ||
institution who in good faith reports to the institution being the | ||
victim of, or a witness to, an incident of sexual harassment, sexual | ||
assault, dating violence, or stalking for a violation by the | ||
student of the institution's code of conduct occurring at or near | ||
the time of the incident, regardless of the location at which the | ||
incident occurred or the outcome of the institution's disciplinary | ||
process regarding the incident, if any. | ||
(b) [ |
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investigate to determine whether a report of an incident of sexual | ||
harassment, sexual assault, dating violence, or stalking was made | ||
in good faith. | ||
(c) [ |
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amnesty under Subsection (a) [ |
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(d) [ |
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who reports the student's own commission or assistance in the | ||
commission of sexual harassment, sexual assault, dating violence, | ||
or stalking. | ||
(e) [ |
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postsecondary educational institution's ability to provide amnesty | ||
from application of the institution's policies in circumstances not | ||
described by Subsection (a) [ |
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SECTION 4. The following provisions of the Education Code | ||
are repealed: | ||
(1) Section 51.9363; | ||
(2) the heading to Sections 51.9365 and 51.9366; | ||
(3) Sections 51.9365(a) and (e); and | ||
(4) Sections 51.9366(a) and (g). | ||
SECTION 5. The changes in law made by this Act apply | ||
beginning August 1, 2020. | ||
SECTION 6. Not later than September 1, 2021, the Texas | ||
Higher Education Coordinating Board shall submit its initial report | ||
required under Section 51.292(f), Education Code, as added by this | ||
Act. | ||
SECTION 7. This Act takes effect September 1, 2019. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 1735 was passed by the House on April | ||
17, 2019, by the following vote: Yeas 113, Nays 29, 2 present, not | ||
voting; that the House refused to concur in Senate amendments to | ||
H.B. No. 1735 on May 23, 2019, and requested the appointment of a | ||
conference committee to consider the differences between the two | ||
houses; and that the House adopted the conference committee report | ||
on H.B. No. 1735 on May 26, 2019, by the following vote: Yeas 109, | ||
Nays 30, 1 present, not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 1735 was passed by the Senate, with | ||
amendments, on May 16, 2019, by the following vote: Yeas 31, Nays | ||
0; at the request of the House, the Senate appointed a conference | ||
committee to consider the differences between the two houses; and | ||
that the Senate adopted the conference committee report on H.B. No. | ||
1735 on May 26, 2019, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: __________________ | ||
Date | ||
__________________ | ||
Governor |