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Texas AG Abbott Rules That State Law Permits Prison Officials to Mandate HIV Testing Among State Prisoners

February 5, 2007

Texas Attorney General Greg Abbott (R) on Thursday ruled that state law permits the Texas Board of Criminal Justice to mandate HIV testing among inmates upon entry to state prisons, the Houston Chronicle reports (Babineck, Houston Chronicle, 2/2). The state prison system in August 2006 had proposed a change to its HIV testing policy from saying new inmates "should be tested" upon entering prison to saying they "shall be tested" unless they opt out of testing. State Sen. Rodney Ellis (D) in August 2006 asked Abbott to rule whether current state law allows mandatory HIV testing for prisoners upon entry. Ellis -- who with state Rep. Yvonne Davis (D) sponsored legislation approved last year that requires inmates to be tested for HIV before departing prison -- said if Abbott ruled that current law does not allow mandated entry tests, he would sponsor a bill that would include such a requirement. About 80% of inmates have agreed to take an HIV test upon entering prison since the state began its testing program, and prison system statistics show more than 38,700 inmates received HIV tests in 2005. Of those, 372 tested HIV-positive. Texas law mandates that HIV test results are confidential and that HIV-positive inmates are not separated from HIV-negative inmates. Advocates for mandatory HIV testing upon entry into the prison system say it would help prison officials properly treat HIV-positive people, would provide more accurate data on the spread of the disease and could help officials estimate how many people are becoming HIV-positive in prison. July 2006 statistics show that of 154,000 prisoners in Texas, 2,627 are HIV-positive (Kaiser Daily HIV/AIDS Report, 8/24/06). Abbott's opinion, which leaves the decision regarding mandatory testing up to the Texas Department of Criminal Justice, says that TBCJ is "authorized to adopt a rule or policy requiring mandatory" HIV testing among "incoming offenders in both the institutional division and the state jail division." According to TDCJ spokesperson Jason Clark, there is no indication that the department is planning to make HIV testing among incoming prisoners mandatory anytime soon. Ellis did not comment on Abbott's ruling, the Chronicle reports (Houston Chronicle, 2/2).

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