§ 81.102 — TESTS; CRIMINAL PENALTY.

Texas § 81.102

• Jurisdiction: Texas
• Code HS: Health and Safety Code

Text

Sec. 81.102. TESTS; CRIMINAL PENALTY. (a) A person may not require another person to undergo a medical procedure or test designed to determine or help determine if a person has AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS unless:
(1) the medical procedure or test is required under Subsection (d), under Section 81.050 , or under Article 21.31 , Code of Criminal Procedure;
(2) the medical procedure or test is required under Section 81.090 , and no objection has been made under Section 81.090 (l);
(3) the medical procedure or test is authorized under Chapter 545 , Insurance Code;
(4) a medical procedure is to be performed on the person that could expose health care personnel to AIDS or HIV infection, according to department rules defining the conditions that constitute possible exposure to AIDS or HIV infection, and there is sufficient time to receive the test result before the procedure is conducted; or
(5) the medical procedure or test is necessary:
(A) as a bona fide occupational qualification and there is not a less discriminatory means of satisfying the occupational qualification;
(B) to screen blood, blood products, body fluids, organs, or tissues to determine suitability for donation;
(C) in relation to a particular person under this chapter;
(D) to manage accidental exposure to blood or other body fluids, but only if the test is conducted under written infectious disease control protocols adopted by the health care agency or facility;
(E) to test residents and clients of residential facilities of the department or the Department of Aging and Disability Services, but only if:
(i) the test result would change the medical or social management of the person tested or others who associated with that person; and
(ii) the test is conducted in accordance with guidelines adopted by the residential facility or rules of the appropriate department; or
(F) to test residents and clients of residential facilities of the Texas Juvenile Justice Department, but only if:
(i) the test result would change the medical or social management of the person tested or others who associate with that person; and
(ii) the test is conducted in accordance with guidelines adopted by the Texas Juvenile Justice Department.
(b) An employer who alleges that a test is necessary as a bona fide occupational qualification has the burden of proving that allegation.
(c) Protocols adopted under Subsection (a)(5)(D) must clearly establish procedural guidelines with criteria for testing that respect the rights of the person with the infection and the person who may be exposed to that infection. The protocols may not require the person who may have been exposed to be tested and must ensure the confidentiality of the person with the infection in accordance with this chapter.
(d) The executive commissioner may adopt emergency rules for mandatory testing for HIV infection if the commissioner files a certificate of necessity with the executive commissioner that contains supportive findings of medical and scientific fact and that declares a sudden and imminent threat to public health. The rules must provide for:
(1) the narrowest application of HIV testing necessary for the protection of the public health;
(2) procedures and guidelines to be followed by an affected entity or state agency that clearly specify the need and justification for the testing, specify methods to be used to assure confidentiality, and delineate responsibility and authority for carrying out the recommended actions;
(3) counseling of persons with seropositive test results; and
(4) confidentiality regarding persons tested and their test results.
(e) This section does not create a duty to test for AIDS and related disorders or a cause of action for failure to test for AIDS and related disorders.
(f) A person who requires a medical procedure or test in violation of this section commits an offense. An offense under this subsection is a Class A misdemeanor.

Legislative History

Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 23, 24, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 805, Sec. 2, eff. Sept. 1, 1995. Amended by: Acts 2005, 79th Leg., Ch. 728 (H.B. 2018 ), Sec. 11.126, eff. September 1, 2005. Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219 ), Sec. 3.0239, eff. April 2, 2015.