S.B. No. 209
AN ACT
1-1 relating to the crime victims compensation fund; providing civil
1-2 and administrative penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. The Crime Victims Compensation Act (Article
1-5 8309-1, Vernon's Texas Civil Statutes) is amended by adding Section
1-6 5 to read as follows:
1-7 Sec. 5. UTILIZATION REVIEW. (a) The attorney general may
1-8 adopt rules under which the attorney general may conduct or
1-9 contract for a utilization review of applications for benefits or
1-10 claims for pecuniary loss relating to psychological, psychiatric,
1-11 or other mental health services.
1-12 (b) In this section, "utilization review" means a system for
1-13 prospective, concurrent, or retrospective review of the necessity
1-14 and appropriateness of services being provided or proposed to be
1-15 provided to a victim.
1-16 SECTION 2. Subsection (a), Section 9, Crime Victims
1-17 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes),
1-18 is amended to read as follows:
1-19 (a) The attorney general on the attorney general's own
1-20 motion or on request of the claimant may reconsider a decision
1-21 making or denying an award or determining its amount. The attorney
1-22 general shall reconsider at least annually every award being paid
1-23 in installments. An order on reconsideration of an award shall not
1-24 require refund of amounts previously paid unless the award was paid
2-1 by mistake or obtained by fraud.
2-2 SECTION 3. The Crime Victims Compensation Act (Article
2-3 8309-1, Vernon's Texas Civil Statutes) is amended by adding
2-4 Sections 10A, 10B, and 10C to read as follows:
2-5 Sec. 10A. PUBLIC LETTER OF REPRIMAND. (a) The attorney
2-6 general may issue a letter of reprimand against a person if the
2-7 attorney general finds that the person has filed or has caused to
2-8 be filed under this Act an application for benefits or claim for
2-9 pecuniary loss that contains a statement or representation that the
2-10 person knows to be false.
2-11 (b) The attorney general must give the person notice of the
2-12 proposed action before issuing the letter.
2-13 (c) A proposal to issue a letter of reprimand is considered
2-14 a contested case for purposes of the Administrative Procedure and
2-15 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
2-16 Statutes) and its subsequent amendments.
2-17 (d) A letter of reprimand issued under this section is
2-18 public information.
2-19 Sec. 10B. CIVIL PENALTY. (a) A person is subject to a
2-20 civil penalty of not less than $2,500 or more than $25,000 for each
2-21 application for benefits or claim for pecuniary loss that the
2-22 person files or causes to be filed under this Act that contains a
2-23 statement or representation that the person knows to be false.
2-24 (b) The attorney general shall institute and conduct the
2-25 suit authorized by this section in the name of this state.
2-26 (c) A civil penalty recovered under this section shall be
2-27 deposited to the credit of the Compensation to Victims of Crime
3-1 Fund.
3-2 (d) The civil penalty authorized by this section is in
3-3 addition to any other civil, administrative, or criminal penalty
3-4 provided by law.
3-5 (e) In addition to the civil penalty authorized by this
3-6 section, the attorney general may recover all expenses incurred by
3-7 the attorney general in the investigation, institution, and
3-8 prosecution of the suit including investigative costs, witness
3-9 fees, attorney fees, and deposition expenses.
3-10 Sec. 10C. ADMINISTRATIVE PENALTY. (a) A person who
3-11 presents or causes to be presented to the attorney general an
3-12 application for benefits or claim for pecuniary loss that contains
3-13 a statement or representation the person knows to be false is
3-14 liable to the attorney general for:
3-15 (1) the amount paid because of the false application
3-16 for benefits or claim for pecuniary loss and interest on that
3-17 amount determined at the rate provided by law for legal judgments
3-18 and accruing from the date on which the payment was made;
3-19 (2) payment of an administrative penalty not to exceed
3-20 twice the amount paid because of the false application for benefits
3-21 or claim for pecuniary loss; and
3-22 (3) payment of an administrative penalty of not more
3-23 than $10,000 for each item or service for which payment was
3-24 claimed.
3-25 (b) In determining the amount of the penalty to be assessed
3-26 under Subdivision (3) of Subsection (a) of this section, the
3-27 attorney general shall consider:
4-1 (1) the seriousness of the violation;
4-2 (2) whether the person had previously submitted a
4-3 false application for benefits or claim for pecuniary loss; and
4-4 (3) the amount necessary to deter the person from
4-5 submitting future false applications for benefits or claims for
4-6 pecuniary loss.
4-7 (c) If the attorney general determines that a violation has
4-8 occurred, the attorney general may issue a report that states the
4-9 facts on which the determination is made and the attorney general's
4-10 recommendation on the imposition of a penalty, including a
4-11 recommendation on the amount of the penalty.
4-12 (d) The attorney general shall give written notice of the
4-13 report to the person. The notice may be given by certified mail.
4-14 The notice must include a brief summary of the alleged violation
4-15 and a statement of the amount of the recommended penalty and must
4-16 inform the person that the person has a right to a hearing on the
4-17 occurrence of the violation, the amount of the penalty, or both the
4-18 occurrence of the violation and the amount of the penalty.
4-19 (e) Within 20 days after the date the person receives the
4-20 notice, the person in writing may accept the determination and
4-21 recommended penalty of the attorney general or may make a written
4-22 request for a hearing on the occurrence of the violation, the
4-23 amount of the penalty, or both the occurrence of the violation and
4-24 the amount of the penalty.
4-25 (f) If the person accepts the determination and recommended
4-26 penalty of the attorney general, the attorney general by order
4-27 shall approve the determination and impose the recommended penalty.
5-1 (g) If the person requests a hearing or fails to respond
5-2 timely to the notice, the attorney general shall set a hearing and
5-3 give notice of the hearing to the person. The administrative law
5-4 judge shall make findings of fact and conclusions of law and
5-5 promptly issue to the attorney general a proposal for a decision
5-6 about the occurrence of the violation and the amount of a proposed
5-7 penalty. According to the findings of fact, conclusions of law,
5-8 and proposal for a decision, the attorney general by order may find
5-9 that a violation has occurred and impose a penalty or may find that
5-10 no violation occurred.
5-11 (h) The notice of the attorney general's order given to the
5-12 person under the Administrative Procedure and Texas Register Act
5-13 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
5-14 subsequent amendments must include a statement of the right of the
5-15 person to judicial review of the order.
5-16 (i) Within 30 days after the date the attorney general's
5-17 order is final as provided by Subsection (c) of Section 16,
5-18 Administrative Procedure and Texas Register Act (Article 6252-13a,
5-19 Vernon's Texas Civil Statutes), and its subsequent amendments, the
5-20 person shall:
5-21 (1) pay the amount of the penalty;
5-22 (2) pay the amount of the penalty and file a petition
5-23 for judicial review contesting the occurrence of the violation, the
5-24 amount of the penalty, or both the occurrence of the violation and
5-25 the amount of the penalty; or
5-26 (3) without paying the amount of the penalty, file a
5-27 petition for judicial review contesting the occurrence of the
6-1 violation, the amount of the penalty, or both the occurrence of the
6-2 violation and the amount of the penalty.
6-3 (j) Within the 30-day period, a person who acts under
6-4 Subdivision (3) of Subsection (i) of this section may:
6-5 (1) stay enforcement of the penalty by:
6-6 (A) paying the amount of the penalty to the
6-7 court for placement in an escrow account; or
6-8 (B) giving to the court a supersedeas bond
6-9 approved by the court for the amount of the penalty and that is
6-10 effective until all judicial review of the attorney general's order
6-11 is final; or
6-12 (2) request the court to stay enforcement of the
6-13 penalty by:
6-14 (A) filing with the court a sworn affidavit of
6-15 the person stating that the person is financially unable to pay the
6-16 amount of the penalty and is financially unable to give the
6-17 supersedeas bond; and
6-18 (B) giving a copy of the affidavit to the
6-19 attorney general by certified mail.
6-20 (k) On receipt by the attorney general of a copy of an
6-21 affidavit under Subdivision (2) of Subsection (j) of this section,
6-22 the attorney general may file, with the court within five days
6-23 after the date the copy is received, a contest to the affidavit.
6-24 The court shall hold a hearing on the facts alleged in the
6-25 affidavit as soon as practicable and shall stay the enforcement of
6-26 the penalty on finding that the alleged facts are true. The person
6-27 who files an affidavit has the burden of proving that the person is
7-1 financially unable to pay the amount of the penalty and to give a
7-2 supersedeas bond.
7-3 (l) If the person does not pay the amount of the penalty and
7-4 the enforcement of the penalty is not stayed, the attorney general
7-5 may file suit for collection of the amount of the penalty.
7-6 (m) Judicial review of the order of the attorney general:
7-7 (1) is instituted by filing a petition as provided by
7-8 Section 19, Administrative Procedure and Texas Register Act
7-9 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
7-10 subsequent amendments; and
7-11 (2) is under the substantial evidence rule.
7-12 (n) If the court sustains the occurrence of the violation,
7-13 the court may uphold or reduce the amount of the penalty and order
7-14 the person to pay the full or reduced amount of the penalty. If
7-15 the court does not sustain the occurrence of the violation, the
7-16 court shall order that no penalty is owed.
7-17 (o) When the judgment of the court becomes final, the court
7-18 shall proceed under this subsection. If the person paid the amount
7-19 of the penalty and if that amount is reduced or is not upheld by
7-20 the court, the court shall order that the appropriate amount plus
7-21 accrued interest be remitted to the person. The rate of the
7-22 interest is the rate charged on loans to depository institutions by
7-23 the New York Federal Reserve Bank, and the interest shall be paid
7-24 for the period beginning on the date the penalty was paid and
7-25 ending on the date the penalty is remitted. If the person gave a
7-26 supersedeas bond and if the amount of the penalty is not upheld by
7-27 the court, the court shall order the release of the bond. If the
8-1 person gave a supersedeas bond and if the amount of the penalty is
8-2 reduced, the court shall order the release of the bond after the
8-3 person pays the amount.
8-4 (p) A penalty collected under this section shall be sent to
8-5 the comptroller and deposited to the credit of the Compensation to
8-6 Victims of Crime Fund.
8-7 (q) All proceedings under this section are subject to the
8-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
8-9 Vernon's Texas Civil Statutes) and its subsequent amendments.
8-10 (r) In addition to the administrative penalty authorized by
8-11 this section, the attorney general may recover all expenses
8-12 incurred by the attorney general in the investigation, institution,
8-13 and prosecution of the suit including investigative costs, witness
8-14 fees, attorney fees, and deposition expenses.
8-15 SECTION 4. Sections 10A, 10B, and 10C, Crime Victims
8-16 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes),
8-17 as added by Section 3 of this Act, apply only to an application for
8-18 benefits or claim for pecuniary loss that is filed on or after the
8-19 effective date of this Act. An application for benefits or claim
8-20 for pecuniary loss that is filed before the effective date of this
8-21 Act is governed by the law in effect when the application for
8-22 benefits or claim for pecuniary loss was filed, and that law is
8-23 continued in effect for that purpose.
8-24 SECTION 5. The importance of this legislation and the
8-25 crowded condition of the calendars in both houses create an
8-26 emergency and an imperative public necessity that the
8-27 constitutional rule requiring bills to be read on three several
9-1 days in each house be suspended, and this rule is hereby suspended,
9-2 and that this Act take effect and be in force from and after its
9-3 passage, and it is so enacted.