1-1 By: Harris of Tarrant, Moncrief, Zaffirini S.B. No. 209
1-2 (In the Senate - Filed January 29, 1993; February 1, 1993,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; March 19, 1993, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 8, Nays 0;
1-6 March 19, 1993, sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 209 By: Moncrief
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the crime victims compensation fund; providing civil
1-22 and administrative penalties.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. The Crime Victims Compensation Act (Article
1-25 8309-1, Vernon's Texas Civil Statutes) is amended by adding Section
1-26 5 to read as follows:
1-27 Sec. 5. UTILIZATION REVIEW. (a) The attorney general may
1-28 adopt rules under which the attorney general may conduct or
1-29 contract for a utilization review of applications for benefits or
1-30 claims for pecuniary loss relating to psychological, psychiatric,
1-31 or other mental health services.
1-32 (b) In this section, "utilization review" means a system for
1-33 prospective, concurrent, or retrospective review of the necessity
1-34 and appropriateness of services being provided or proposed to be
1-35 provided to a victim.
1-36 SECTION 2. Subsection (a), Section 9, Crime Victims
1-37 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes),
1-38 is amended to read as follows:
1-39 (a) The attorney general on the attorney general's own
1-40 motion or on request of the claimant may reconsider a decision
1-41 making or denying an award or determining its amount. The attorney
1-42 general shall reconsider at least annually every award being paid
1-43 in installments. An order on reconsideration of an award shall not
1-44 require refund of amounts previously paid unless the award was paid
1-45 by mistake or obtained by fraud.
1-46 SECTION 3. The Crime Victims Compensation Act (Article
1-47 8309-1, Vernon's Texas Civil Statutes) is amended by adding
1-48 Sections 10A, 10B, and 10C to read as follows:
1-49 Sec. 10A. PUBLIC LETTER OF REPRIMAND. (a) The attorney
1-50 general may issue a letter of reprimand against a person if the
1-51 attorney general finds that the person has filed or has caused to
1-52 be filed under this Act an application for benefits or claim for
1-53 pecuniary loss that contains a statement or representation that the
1-54 person knows to be false.
1-55 (b) The attorney general must give the person notice of the
1-56 proposed action before issuing the letter.
1-57 (c) A proposal to issue a letter of reprimand is considered
1-58 a contested case for purposes of the Administrative Procedure and
1-59 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
1-60 Statutes) and its subsequent amendments.
1-61 (d) A letter of reprimand issued under this section is
1-62 public information.
1-63 Sec. 10B. CIVIL PENALTY. (a) A person is subject to a
1-64 civil penalty of not less than $2,500 or more than $25,000 for each
1-65 application for benefits or claim for pecuniary loss that the
1-66 person files or causes to be filed under this Act that contains a
1-67 statement or representation that the person knows to be false.
1-68 (b) The attorney general shall institute and conduct the
2-1 suit authorized by this section in the name of this state.
2-2 (c) A civil penalty recovered under this section shall be
2-3 deposited to the credit of the Compensation to Victims of Crime
2-4 Fund.
2-5 (d) The civil penalty authorized by this section is in
2-6 addition to any other civil, administrative, or criminal penalty
2-7 provided by law.
2-8 (e) In addition to the civil penalty authorized by this
2-9 section, the attorney general may recover all expenses incurred by
2-10 the attorney general in the investigation, institution, and
2-11 prosecution of the suit including investigative costs, witness
2-12 fees, attorney fees, and deposition expenses.
2-13 Sec. 10C. ADMINISTRATIVE PENALTY. (a) A person who
2-14 presents or causes to be presented to the attorney general an
2-15 application for benefits or claim for pecuniary loss that contains
2-16 a statement or representation the person knows to be false is
2-17 liable to the attorney general for:
2-18 (1) the amount paid because of the false application
2-19 for benefits or claim for pecuniary loss and interest on that
2-20 amount determined at the rate provided by law for legal judgments
2-21 and accruing from the date on which the payment was made;
2-22 (2) payment of an administrative penalty not to exceed
2-23 twice the amount paid because of the false application for benefits
2-24 or claim for pecuniary loss; and
2-25 (3) payment of an administrative penalty of not more
2-26 than $10,000 for each item or service for which payment was
2-27 claimed.
2-28 (b) In determining the amount of the penalty to be assessed
2-29 under Subdivision (3) of Subsection (a) of this section, the
2-30 attorney general shall consider:
2-31 (1) the seriousness of the violation;
2-32 (2) whether the person had previously submitted a
2-33 false application for benefits or claim for pecuniary loss; and
2-34 (3) the amount necessary to deter the person from
2-35 submitting future false applications for benefits or claims for
2-36 pecuniary loss.
2-37 (c) If the attorney general determines that a violation has
2-38 occurred, the attorney general may issue a report that states the
2-39 facts on which the determination is made and the attorney general's
2-40 recommendation on the imposition of a penalty, including a
2-41 recommendation on the amount of the penalty.
2-42 (d) The attorney general shall give written notice of the
2-43 report to the person. The notice may be given by certified mail.
2-44 The notice must include a brief summary of the alleged violation
2-45 and a statement of the amount of the recommended penalty and must
2-46 inform the person that the person has a right to a hearing on the
2-47 occurrence of the violation, the amount of the penalty, or both the
2-48 occurrence of the violation and the amount of the penalty.
2-49 (e) Within 20 days after the date the person receives the
2-50 notice, the person in writing may accept the determination and
2-51 recommended penalty of the attorney general or may make a written
2-52 request for a hearing on the occurrence of the violation, the
2-53 amount of the penalty, or both the occurrence of the violation and
2-54 the amount of the penalty.
2-55 (f) If the person accepts the determination and recommended
2-56 penalty of the attorney general, the attorney general by order
2-57 shall approve the determination and impose the recommended penalty.
2-58 (g) If the person requests a hearing or fails to respond
2-59 timely to the notice, the attorney general shall set a hearing and
2-60 give notice of the hearing to the person. The administrative law
2-61 judge shall make findings of fact and conclusions of law and
2-62 promptly issue to the attorney general a proposal for a decision
2-63 about the occurrence of the violation and the amount of a proposed
2-64 penalty. According to the findings of fact, conclusions of law,
2-65 and proposal for a decision, the attorney general by order may find
2-66 that a violation has occurred and impose a penalty or may find that
2-67 no violation occurred.
2-68 (h) The notice of the attorney general's order given to the
2-69 person under the Administrative Procedure and Texas Register Act
2-70 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
3-1 subsequent amendments must include a statement of the right of the
3-2 person to judicial review of the order.
3-3 (i) Within 30 days after the date the attorney general's
3-4 order is final as provided by Subsection (c) of Section 16,
3-5 Administrative Procedure and Texas Register Act (Article 6252-13a,
3-6 Vernon's Texas Civil Statutes), and its subsequent amendments, the
3-7 person shall:
3-8 (1) pay the amount of the penalty;
3-9 (2) pay the amount of the penalty and file a petition
3-10 for judicial review contesting the occurrence of the violation, the
3-11 amount of the penalty, or both the occurrence of the violation and
3-12 the amount of the penalty; or
3-13 (3) without paying the amount of the penalty, file a
3-14 petition for judicial review contesting the occurrence of the
3-15 violation, the amount of the penalty, or both the occurrence of the
3-16 violation and the amount of the penalty.
3-17 (j) Within the 30-day period, a person who acts under
3-18 Subdivision (3) of Subsection (i) of this section may:
3-19 (1) stay enforcement of the penalty by:
3-20 (A) paying the amount of the penalty to the
3-21 court for placement in an escrow account; or
3-22 (B) giving to the court a supersedeas bond
3-23 approved by the court for the amount of the penalty and that is
3-24 effective until all judicial review of the attorney general's order
3-25 is final; or
3-26 (2) request the court to stay enforcement of the
3-27 penalty by:
3-28 (A) filing with the court a sworn affidavit of
3-29 the person stating that the person is financially unable to pay the
3-30 amount of the penalty and is financially unable to give the
3-31 supersedeas bond; and
3-32 (B) giving a copy of the affidavit to the
3-33 attorney general by certified mail.
3-34 (k) On receipt by the attorney general of a copy of an
3-35 affidavit under Subdivision (2) of Subsection (j) of this section,
3-36 the attorney general may file, with the court within five days
3-37 after the date the copy is received, a contest to the affidavit.
3-38 The court shall hold a hearing on the facts alleged in the
3-39 affidavit as soon as practicable and shall stay the enforcement of
3-40 the penalty on finding that the alleged facts are true. The person
3-41 who files an affidavit has the burden of proving that the person is
3-42 financially unable to pay the amount of the penalty and to give a
3-43 supersedeas bond.
3-44 (l) If the person does not pay the amount of the penalty and
3-45 the enforcement of the penalty is not stayed, the attorney general
3-46 may file suit for collection of the amount of the penalty.
3-47 (m) Judicial review of the order of the attorney general:
3-48 (1) is instituted by filing a petition as provided by
3-49 Section 19, Administrative Procedure and Texas Register Act
3-50 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
3-51 subsequent amendments; and
3-52 (2) is under the substantial evidence rule.
3-53 (n) If the court sustains the occurrence of the violation,
3-54 the court may uphold or reduce the amount of the penalty and order
3-55 the person to pay the full or reduced amount of the penalty. If
3-56 the court does not sustain the occurrence of the violation, the
3-57 court shall order that no penalty is owed.
3-58 (o) When the judgment of the court becomes final, the court
3-59 shall proceed under this subsection. If the person paid the amount
3-60 of the penalty and if that amount is reduced or is not upheld by
3-61 the court, the court shall order that the appropriate amount plus
3-62 accrued interest be remitted to the person. The rate of the
3-63 interest is the rate charged on loans to depository institutions by
3-64 the New York Federal Reserve Bank, and the interest shall be paid
3-65 for the period beginning on the date the penalty was paid and
3-66 ending on the date the penalty is remitted. If the person gave a
3-67 supersedeas bond and if the amount of the penalty is not upheld by
3-68 the court, the court shall order the release of the bond. If the
3-69 person gave a supersedeas bond and if the amount of the penalty is
3-70 reduced, the court shall order the release of the bond after the
4-1 person pays the amount.
4-2 (p) A penalty collected under this section shall be sent to
4-3 the comptroller and deposited to the credit of the Compensation to
4-4 Victims of Crime Fund.
4-5 (q) All proceedings under this section are subject to the
4-6 Administrative Procedure and Texas Register Act (Article 6252-13a,
4-7 Vernon's Texas Civil Statutes) and its subsequent amendments.
4-8 (r) In addition to the administrative penalty authorized by
4-9 this section, the attorney general may recover all expenses
4-10 incurred by the attorney general in the investigation, institution,
4-11 and prosecution of the suit including investigative costs, witness
4-12 fees, attorney's fees, and deposition expenses.
4-13 SECTION 4. Sections 10A, 10B, and 10C, Crime Victims
4-14 Compensation Act (Article 8309-1, Vernon's Texas Civil Statutes),
4-15 as added by Section 3 of this Act, apply only to an application for
4-16 benefits or claim for pecuniary loss that is filed on or after the
4-17 effective date of this Act. An application for benefits or claim
4-18 for pecuniary loss that is filed before the effective date of this
4-19 Act is governed by the law in effect when the application for
4-20 benefits or claim for pecuniary loss was filed, and that law is
4-21 continued in effect for that purpose.
4-22 SECTION 5. The importance of this legislation and the
4-23 crowded condition of the calendars in both houses create an
4-24 emergency and an imperative public necessity that the
4-25 constitutional rule requiring bills to be read on three several
4-26 days in each house be suspended, and this rule is hereby suspended,
4-27 and that this Act take effect and be in force from and after its
4-28 passage, and it is so enacted.
4-29 * * * * *
4-30 Austin,
4-31 Texas
4-32 March 19, 1993
4-33 Hon. Bob Bullock
4-34 President of the Senate
4-35 Sir:
4-36 We, your Committee on Health and Human Services to which was
4-37 referred S.B. No. 209, have had the same under consideration, and I
4-38 am instructed to report it back to the Senate with the
4-39 recommendation that it do not pass, but that the Committee
4-40 Substitute adopted in lieu thereof do pass and be printed.
4-41 Zaffirini,
4-42 Chair
4-43 * * * * *
4-44 WITNESSES
4-45 FOR AGAINST ON
4-46 ___________________________________________________________________
4-47 Name: Dan Morales x
4-48 Representing: State of Texas
4-49 City: Austin
4-50 -------------------------------------------------------------------
4-51 Name: Dr. Charles Arnold x
4-52 Representing: Self
4-53 City: San Antonio
4-54 -------------------------------------------------------------------
4-55 Name: David F. Briones, M.D. x
4-56 Representing: TSPP & TMA
4-57 City: El Paso
4-58 -------------------------------------------------------------------
4-59 Name: Ben Marroquin x
4-60 Representing: MHMR
4-61 City: Austin
4-62 -------------------------------------------------------------------
4-63 Name: Mina Epps x
4-64 Representing: A.G.'s office
4-65 City: Austin
4-66 -------------------------------------------------------------------
4-67 FOR AGAINST ON
4-68 ___________________________________________________________________
4-69 Name: Richard H. Anderson x
4-70 Representing: A.G.'s office
5-1 City: Austin
5-2 -------------------------------------------------------------------
5-3 Name: Don Cavness x
5-4 Representing: Tx Psychological Asson.
5-5 City: Austin
5-6 -------------------------------------------------------------------
5-7 Name: Nancy Sims x
5-8 Representing: Tx Business Group on Health
5-9 City: Houston
5-10 -------------------------------------------------------------------
5-11 Name: Marcia Baum x
5-12 Representing: NASW
5-13 City: Austin
5-14 -------------------------------------------------------------------
5-15 Name: Christine Devall x
5-16 Representing: Mental Health Assn
5-17 City: Austin
5-18 -------------------------------------------------------------------
5-19 Name: Kevin O'Hanlon x
5-20 Representing: TEA
5-21 City: Austin
5-22 -------------------------------------------------------------------
5-23 Name: Lisa McGiffert x
5-24 Representing: Consumers Union
5-25 City: Austin
5-26 -------------------------------------------------------------------