74(R) SB 1049 House Committee Report

BILL ANALYSIS

S.B. 1049
By: Whitmire (Place)
May 17, 1995
Committee Report (Unamended)

BACKGROUND

In 1979, the legislature created the Texas Crime Victims'
Compensation Fund and established guidelines for the reimbursement
of certain expenses to victims of violent crime who are unable to
recover those losses from insurance or other sources.

PURPOSE

As proposed, S.B. 1049 sets forth regulations regarding
compensation for health care services for certain claimants or
victims of criminal acts, including expanding the benefits
available to victims of violent crime; provides civil and
administrative penalties.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is granted
to the attorney general in SECTION 1 (Article 56.42(c), Code of
Criminal Procedure) of this bill.

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 56B, Code of Criminal Procedure, as
follows:

Art. 56.31. SHORT TITLE: Crime Victims' Compensation Act.

Art. 56.311. LEGISLATIVE FINDINGS. Sets forth legislative
findings.

Art. 56.32. DEFINITIONS. (a) Defines "household member."
Redefines "child," "claimant," "collateral source,"
"criminally injurious conduct," "dependent," "immediate family
member," "intervenor," "pecuniary loss," "personal injury,"
and "victim."

(b) Provides that "claimant" does not include a service
provider.

(c) Provides that "victim" does not include a peace officer,
a firefighter, or another individual whose employment
includes the duty to protect the public while acting in the
course and scope of the individual's employment.
Art. 56.33. ADMINISTRATION; RULES. Requires the attorney
general to include among the rules adopted, rules relating to
the review of health care services subject to compensation.
Makes a nonsubstantive change.

Art. 56.34. COMPENSATION. (a) Makes no changes.

(b) Requires the attorney general to establish whether, as
a direct result of criminally injurious conduct a claimant
or a victim suffered personal injury or death that resulted
in a pecuniary loss for which the claimant or victim is not
compensated from a collateral source.

(c) Requires the attorney general to award compensation for
health care services according to the medical fee guidelines
prescribed by Title 5A, Labor Code.

(d) Provides that the attorney general, a claimant, or a
victim is not liable for health care service charges in
excess of the medical fee guidelines. Requires a health
care provider to accept compensation from the attorney
general as payment in full for the charges in excess of the
guidelines, unless an investigation of the charges by the
attorney general determines that there is a health care
justification for the deviation from the guidelines.

(e) Provides that a claimant or victim is not liable for the
balance of service charges left as a result of an adjustment
of payment for the charges under Article 56.58. Makes
conforming changes.
Art. 56.35. TYPES OF ASSISTANCE. Makes conforming changes.

Art. 56.36. APPLICATION. Makes conforming changes.

Art. 56.37. TIME FOR FILING. Makes conforming changes.

Art. 56.38. REVIEW; VERIFICATION. Requires a law enforcement
agency, on request by the attorney general and within 14
business days after the date of the request, to release to the
attorney general all reports for the purpose of allowing the
attorney general to determine whether a claimant or victim
qualified for an award and the extent of that qualification.
Makes conforming changes.

Art. 56.385. REVIEW OF HEALTH CARE SERVICES. (a) Authorizes
the attorney general to review the actual or proposed health
care services for which a claimant or victim seeks
compensation in an application filed under Article 56.36.

(b) Prohibits the attorney general from compensating a
claimant or victim for health care services that the
attorney general determines are not medically necessary.

(c) Provides that the attorney general, a claimant, or a
victim is not liable for a charge that is not medically
necessary.

Art. 56.39. MENTAL OR PHYSICAL EXAMINATION; AUTOPSY. Makes
conforming changes.

Art. 56.40. HEARINGS. Makes conforming changes.

Art. 56.41. APPROVAL OF CLAIM. Requires the attorney general
to approve an application for compensation if the attorney
general finds by a preponderance of the evidence that grounds
for compensation exist. Makes conforming changes.

Art. 56.42. LIMITS ON COMPENSATION. (a) Created from
existing Subsection (b). Provides that except as otherwise
provided by this article, awards may not exceed $25,000.
Deletes existing Subsection (a) setting forth circumstances
under which a claimant is not entitled to compensation for
pecuniary loss.

(b) Authorizes the attorney general to award an additional
$25,000 for extraordinary pecuniary losses, in addition to
an award payable under Subsection (a), if the personal
injury to a victim is catastrophic and results in a total
and permanent disability to the victim for lost wages and
certain readjustments or rehabilitation costs regarding the
disability.

(c) Authorizes the attorney general, by rule, to establish
limitations on any other pecuniary loss compensated for
under this subchapter.
Art. 56.43. ATTORNEY FEES. Makes conforming changes.

Art. 56.44. PAYMENTS. Authorizes the attorney general to
make payments only to an individual who is a claimant or
victim. Makes conforming changes.

Art. 56.45. DENIAL OR REDUCTION OF AWARD. Authorizes the
attorney general to deny or reduce an award otherwise payable
if the claimant or victim was engaging in an activity that at
the time of the criminally injurious conduct is prohibited by
law or a rule made under law. Makes conforming changes.

Art. 56.46. REPORTING OF CRIME. Makes conforming changes.

Art. 56.47. RECONSIDERATION. Authorizes an order on
reconsideration to require a refund of an award if the newly
discovered evidence shows the claimant or victim to be
ineligible for the award under Article 56.41 or 56.45.

Art. 56.48. JUDICIAL REVIEW. Requires a suit requesting
judicial review to be brought in the county where the injury
or death occurred if the victim resided out of state at the
time of the injury or death. Provides that the burden of
proof is on the party who filed the notice of dissatisfaction,
rather than on the claimant. Authorizes the court to award
not more than 25 percent of the total recovery by the claimant
or victim in attorney fees in the event of a review, rather
than additional attorney fees. Makes conforming changes.

Art. 56.49. EXEMPTION; ASSIGNABILITY. Makes no changes.

Art. 56.50. EMERGENCY AWARD. Makes conforming changes.

Art. 56.51. SUBROGATION. Makes a conforming change.

Art. 56.52. NOTICE OF PRIVATE ACTION. Makes conforming
changes.

Art. 56.53. ANNUAL REPORT. Requires the attorney general to
file the report within 100 days, rather than 60, after the end
of the fiscal year.

Art. 56.54. FUNDS. Provides that Section 403.095, Government
Code, does not apply to the victims of crime auxiliary fund.
Makes conforming changes.

Art. 56.55. COURT COSTS. Makes conforming changes.

Art. 56.56. DEPOSIT AND REMITTANCE OF COURT COSTS. Makes
conforming changes.

Art. 56.57. DEPOSIT BY COMPTROLLER; AUDIT. Makes conforming
changes.

Art. 56.58. ADJUSTMENT OF AWARDS AND PAYMENTS. (a) Created
from existing text.

(b) Provides that if the attorney general establishes a
policy to adjust awards, the attorney general, the claimant,
or the victim is not liable for the amount of charges
incurred in excess of the adjusted amount for the service
upon which the adjustment payment is based.

(c) Provides that a service provider who accepts a payment
that has been adjusted by a policy agrees to accept the
adjusted payment in full for the services and is barred from
legal action against the claimant or victim for collection.
Art. 56.59. ATTORNEY GENERAL SUPERVISION OF COLLECTION OF
COSTS; FAILURE TO COMPLY. Makes conforming changes.

Art. 56.60. PUBLIC NOTICE. Requires each local law
enforcement agency to inform a claimant or victim of
criminally injurious conduct of the provisions of this
subchapter and provide application forms, rather than only a
victim who desires assistance.

Art. 56.61. COMPENSATION FOR CERTAIN CRIMINALLY INJURIOUS
CONDUCT PROHIBITED. Makes no changes.

Art. 56.62. PUBLIC LETTER OF REPRIMAND. (a) Authorizes the
attorney general to issue a letter of reprimand against an
individual if the attorney general finds that the person has
filed an application for benefits or claim for pecuniary loss
that contains a statement or representation that the person
knows to be false.

(b) Requires the attorney general to give the person notice
of the proposed action before issuing the letter.

(c) Authorizes a person to challenge the denial of
compensation and the issuance of a letter of reprimand in a
hearing under the Administrative Procedure Act.

(d) Provides that a letter of reprimand is public
information.
Art. 56.63. CIVIL PENALTY. (a) Subjects a person to a civil
penalty between $2,500 and $25,000 for each application for
benefits or claim for pecuniary loss that is filed by the
person or is filed as a result of the person's conduct.

(b) Requires the attorney general to institute and conduct
the suit authorized by this section on behalf of the state.

(d) Provides that the civil penalty authorized by this
section is in addition to any other civil, administrative,
or criminal penalty provided by law.

(e) Authorizes the attorney general to recover all expenses
incurred by the attorney general in the investigation,
institution, and prosecution of the suit.

Art. 56.64. ADMINISTRATIVE PENALTY. (a) Sets forth amounts
for which a person is liable to the attorney general if a
person who presents to the attorney general or engages in
conduct that results in the presentation to the attorney
general of an application for compensation that contains a
statement or representation the person knows to be false.

(b) Sets forth conditions the attorney general is required
to consider in determining the amount of the penalty to be
assessed under Subsection (a)(3).

(c) Authorizes the attorney general to issue a report that
states the fact on which a determination of a violation is
made and the attorney general's recommendation on the
imposition of a penalty.

(d) Requires the attorney general to give written notice of
the report to the person. Sets forth requirements for the
notice.

(e) Authorizes the person to accept the determination and
recommended penalty or make a request for a hearing on the
occurrence, the amount, or both, not later than 20 days
after the person receives the notice.

(f) Requires the attorney general, by order, to approve the
determination and impose the recommended penalty if the
person accepts the determination and penalty.

(g) Requires the attorney general to set a hearing and give
notice to the person if the person requests a hearing or
fails to respond to the notice. Requires the administrative
law judge to make findings of facts and conclusions of law
and issue a proposal for a decision. Authorizes the
attorney general, by order, to find that a violation has
occurred and impose a penalty or find that a violation has
not occurred based on the findings of fact.

(h) Requires the notice of the attorney general's order to
include a statement of the right of the person to judicial
review.

(i) Requires the person to take certain actions within 30
days after the attorney general's order is final.

(j) Authorizes a person who acts under Subsection (i)(3) to
stay the enforcement of the penalty or request the court to
stay enforcement of the penalty by following certain
procedures within the 30-day period.

(k) Authorizes the attorney general to file within five days
after the copy of an affidavit under Subsection (j)(2) is
received, a contest to the affidavit. Requires the court to
hold a hearing on the facts alleged in the affidavit as soon
as practicable and to stay the enforcement of the penalty on
finding the alleged facts are true. Provides that the person
who files an affidavit has the burden of proving that the
person is financially unable to pay the amount of the
penalty or to give a supersedeas bond.

(l) Authorizes the attorney general to file suit for
collection of the penalty if the person does not pay the
amount and the enforcement is not stayed.

(m) Sets forth criteria regarding judicial review of the
attorney general's order.

(n) Authorizes the court to order the person to pay the full
or reduced amount of the penalty if the court upholds the
finding that a violation occurred. Requires the court to
order that no penalty is owed if the court does not sustain
the order that no penalty is owed.

(o) Requires the court to order that the appropriate amount
plus accrued interest be remitted to the person if the
person paid an amount that is reduced or not upheld by the
court. Sets forth the method for computing the rate of
interest. Requires the court to order the release of the
supersedeas bond if a person gave a supersedeas bond and the
penalty is not upheld by the court. Requires the court to
order the release of the supersedeas bond if the amount of
penalty is reduced after the person pays the amount.

(p) Requires a penalty collected to be sent to the
comptroller and deposited to the credit of the compensation
to victims of crime fund.

(q) Subjects all proceedings under this section to Chapter
2001, Government Code.

(r) Authorizes the attorney general to recover all expenses
incurred by the attorney general in the investigation,
institution, and prosecution of the suit, in addition to the
administrative penalty.
SECTION 2. Makes application of this Act prospective regarding
compensation for criminally injurious conduct.

SECTION 3. Repealer: Acts of the 73rd Legislature, 1993, Chapter
780, Sections 5 and 6 and Chapter 983, Sections 1, 3, and 4
(relating to the reenactment of a crime for commercial purposes -provisions requiring the victim of a crime to be the first one
compensated-Utilization Review-Public Letter of Reprimand, Civil
Penalty, and Administrative Penalty-Prospective clause, relating to
filing claims for pecuniary loss).

SECTION 4. Effective date: September 1, 1995.

SECTION 5. Emergency clause.

SUMMARY OF COMMITTEE ACTION

SB 1049 was considered by the full committee in a formal meeting on
May 17, 1995. SB 1049 was reported favorably without amendment,
with the recommendation that it do pass and be printed, by a record
vote of 7 ayes, 0 nays, 0 pnv, and 2 absent.