1-1 By: Whitmire S.B. No. 1049
1-2 (In the Senate - Filed March 8, 1995; March 9, 1995, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 5, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 5, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1049 By: Whitmire
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the Crime Victims' Compensation Act; providing civil
1-11 and administrative penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter B, Chapter 56, Code of Criminal
1-14 Procedure, is amended to read as follows:
1-15 SUBCHAPTER B. CRIME VICTIMS' COMPENSATION
1-16 Art. 56.31. SHORT TITLE. This subchapter may be cited as
1-17 the Crime Victims' Compensation Act.
1-18 Art. 56.311. LEGISLATIVE FINDINGS AND INTENT. The
1-19 legislature recognizes that many innocent individuals suffer
1-20 personal injury or death as a result of criminal acts. Crime
1-21 victims and persons who intervene to prevent criminal acts often
1-22 suffer disabilities, incur financial burdens, or become dependent
1-23 on public assistance. The legislature finds that there is a need
1-24 for the compensation of victims of crime and those who suffer
1-25 personal injury or death in the prevention of crime or in the
1-26 apprehension of criminals. It is the legislature's intent that the
1-27 compensation of innocent victims of violent crime encourage greater
1-28 public cooperation in the successful apprehension and prosecution
1-29 of criminals.
1-30 Art. 56.32. DEFINITIONS. (a) In this subchapter:
1-31 (1) "Child" means an individual younger than 18 <17>
1-32 years of age who:
1-33 (A) is not married; or
1-34 (B) has not had the disabilities of minority
1-35 removed for general purposes under Chapter 31, Family Code.
1-36 (2) "Claimant" means, except as provided by Subsection
1-37 (b), any of the following individuals who is entitled to file or
1-38 has filed a claim for compensation under this subchapter:
1-39 (A) <a victim or> an authorized individual
1-40 <person> acting on behalf of a victim;
1-41 (B) an individual who legally assumes the
1-42 obligation or who voluntarily pays medical or burial expenses of a
1-43 victim incurred as a result of the criminally injurious conduct of
1-44 another;
1-45 (C) a dependent of a victim who died as a result
1-46 of criminally injurious conduct;
1-47 (D) an immediate family member or household
1-48 member of a victim who:
1-49 (i) is not a dependent of the victim; and
1-50 (ii) requires psychiatric care or
1-51 counseling as a result of the criminally injurious conduct of
1-52 another who injured the victim; or
1-53 (E) an authorized individual acting on behalf of
1-54 an individual who is described by Subdivision (C) or (D) and who is
1-55 a child.
1-56 (3) "Collateral source" means any of the following
1-57 sources of benefits or advantages for pecuniary loss that a
1-58 claimant or victim has received or that is readily available to the
1-59 claimant or victim:
1-60 (A) the offender under an order of restitution
1-61 to the claimant or victim imposed by a court as a condition of
1-62 community supervision <probation>;
1-63 (B) the United States, a federal agency, a state
1-64 or any of its political subdivisions, or an instrumentality of two
1-65 or more states, unless the law providing for the benefits or
1-66 advantages makes them in excess of or secondary to benefits under
1-67 this subchapter;
1-68 (C) social security, Medicare, or Medicaid;
2-1 (D) state-required temporary nonoccupational
2-2 disability insurance;
2-3 (E) workers' compensation;
2-4 (F) an employer's wage continuation program;
2-5 (G) proceeds of an insurance contract payable to
2-6 or on behalf of the claimant or victim for loss that the claimant
2-7 or victim sustained because of the criminally injurious conduct;
2-8 (H) a contract providing prepaid hospital and
2-9 other health care services or benefits for disability;
2-10 (I) proceeds awarded to the claimant or victim
2-11 as a result of third-party litigation; or
2-12 (J) proceeds of a life insurance contract
2-13 payable to the claimant or victim.
2-14 (4) "Criminally injurious conduct" means conduct that:
2-15 (A) occurs or is attempted;
2-16 (B) poses a substantial threat of personal
2-17 injury or death;
2-18 (C) is punishable by fine, imprisonment, or
2-19 death, or would be punishable by fine, imprisonment, or death if
2-20 the person engaging in the conduct possessed capacity to commit the
2-21 conduct; and
2-22 (D) does not arise out of the ownership,
2-23 maintenance, or use of a motor vehicle, aircraft, or water vehicle,
2-24 unless the conduct is intended to cause personal injury or death or
2-25 the conduct is in violation of Section 38, Uniform Act Regulating
2-26 Traffic on Highways (Article 6701d, Vernon's Texas Civil Statutes),
2-27 or one or more of the following sections of the Penal Code:
2-28 (i) Section 19.04 (manslaughter);
2-29 (ii) Section 19.05 (criminally negligent
2-30 homicide);
2-31 (iii) Section 22.02 (aggravated assault);
2-32 (iv) Section 49.04 (driving while
2-33 intoxicated);
2-34 (v) Section 49.05 (flying while
2-35 intoxicated);
2-36 (vi) Section 49.06 (boating while
2-37 intoxicated);
2-38 (vii) Section 49.07 (intoxication
2-39 assault); or
2-40 (viii) Section 49.08 (intoxication
2-41 manslaughter) <Article 6701l-1, Revised Statutes>.
2-42 (5) "Dependent" means:
2-43 (A) a surviving spouse;
2-44 (B) a person who is a dependent, within the
2-45 meaning of the <Section 152,> Internal Revenue Code <of 1986 (26
2-46 U.S.C. Section 152)>, of a deceased victim; or
2-47 (C) a posthumous child of a deceased victim.
2-48 (6) "Household member" means an individual who resided
2-49 in the same permanent household as the victim at the time that the
2-50 criminally injurious conduct occurred.
2-51 (7) "Immediate family member" means an individual
2-52 who<:>
2-53 <(A)> is the father, mother, sister, brother,
2-54 daughter, son, or spouse of a victim, including a stepparent or
2-55 stepchild<; and>
2-56 <(B) resided in the same permanent household as
2-57 the victim at the time that the criminally injurious conduct
2-58 occurred>.
2-59 (8) <(7)> "Intervenor" means an individual who goes to
2-60 the aid of another and is killed or injured in the good faith
2-61 effort to prevent criminally injurious conduct, to apprehend a
2-62 person reasonably suspected of having engaged in criminally
2-63 injurious conduct, or to aid a peace <police> officer. <The term
2-64 does not include a peace officer, firefighter, lifeguard, or
2-65 individual whose employment includes the duty to protect the public
2-66 safety acting within the course and scope of the individual's
2-67 employment.>
2-68 (9) <(8)> "Pecuniary loss" means the amount of expense
2-69 reasonably and necessarily incurred<:>
2-70 <(A)> as a result of personal injury or death
3-1 for:
3-2 (A) <(i)> medical, hospital, nursing, or
3-3 psychiatric care or counseling, or physical therapy;
3-4 (B) <(ii)> actual loss of past earnings and
3-5 anticipated loss of future earnings because of a disability
3-6 resulting from the personal injury; <and>
3-7 (C) <(iii)> care of a <minor> child or dependent
3-8 enabling a victim, <or> a victim's spouse, or a legal guardian of
3-9 the victim, but not all <both> of them, to continue or engage in
3-10 gainful employment;
3-11 (D) <(B) as a result of death for:>
3-12 <(i)> funeral and burial expenses;
3-13 (E) <(ii)> loss of support to a dependent in the
3-14 event of the death of the victim;
3-15 (F) reasonable and necessary costs of cleaning
3-16 the crime scene; and
3-17 (G) reasonable replacement costs for clothing,
3-18 bedding, or property of the victim seized as evidence or rendered
3-19 unusable as a result of the criminal investigation <and>
3-20 <(iii) care of a minor child enabling the
3-21 surviving spouse of a victim to engage in lawful employment.>
3-22 <(C) "Pecuniary loss" does not include health
3-23 care service charges in excess of the fee guidelines established by
3-24 the Texas Workers' Compensation Act (Article 8308-8.21 et seq.,
3-25 Vernon's Texas Civil Statutes). Neither the office of the attorney
3-26 general, victims, nor claimants shall be responsible for health
3-27 care service charges in excess of the fee guidelines unless a
3-28 review of the health care services determines that there is a
3-29 reasonable health care justification for the deviation>.
3-30 (10) <(9)> "Personal injury" means physical or mental
3-31 harm <to a victim>.
3-32 (11) <(10)> "Victim" means, except as provided by
3-33 Subsection (c):
3-34 (A) an individual who:
3-35 (i) suffers personal injury or death as a
3-36 result of criminally injurious conduct directed at the individual
3-37 or as a result of actions taken by the individual as an intervenor,
3-38 if the conduct or actions occurred<;>
3-39 <(ii) at the time of the criminally
3-40 injurious conduct, is> in this state; and
3-41 (ii) <(iii)> is a resident of this state,
3-42 another state of the United States, the District of Columbia, the
3-43 Commonwealth of Puerto Rico, or a possession or territory of the
3-44 United States; or
3-45 (B) an individual who:
3-46 (i) suffers personal injury or death as a
3-47 result of criminally injurious conduct directed at the individual
3-48 or as a result of actions taken by the individual as an intervenor,
3-49 if the conduct or actions occurred<;>
3-50 <(ii) at the time of the criminally
3-51 injurious conduct, is> in a state that does not have a crime
3-52 victims' compensation program that meets the requirements of
3-53 Section 1403(b), Crime Victims Compensation Act of 1984 (42 U.S.C.
3-54 Section 10602(b));
3-55 (ii) <(iii) at the time of the criminally
3-56 injurious conduct,> is a resident of this state; and
3-57 (iii) <(iv)> would be entitled to
3-58 compensation under this subchapter if the criminally injurious
3-59 conduct or actions had occurred in this state<;>
3-60 <(C) an intervenor;>
3-61 <(D) a dependent of a deceased victim;>
3-62 <(E) an immediate family member of a deceased
3-63 victim who is not a dependent of the victim and who requires
3-64 psychiatric care or counseling as a direct result of the criminally
3-65 injurious conduct;>
3-66 <(F) an individual who:>
3-67 <(i) is not an immediate family member or
3-68 a dependent, but who resided in the same permanent household as a
3-69 deceased victim in a relationship with the victim within the second
3-70 degree of consanguinity; and>
4-1 <(ii) requires psychiatric care or
4-2 counseling as a direct result of the criminally injurious conduct;>
4-3 <(G) in the event of a death, a person who
4-4 legally assumes the obligation or who voluntarily pays the medical
4-5 or burial expenses incurred as a direct result of the criminally
4-6 injurious conduct; or>
4-7 <(H) an immediate family member of a victim who
4-8 is a child and who requires psychological or psychiatric counseling
4-9 as a direct result of the criminally injurious conduct>.
4-10 (b) In this subchapter "claimant" does not include a service
4-11 provider.
4-12 (c) In this subchapter "victim" does not include:
4-13 (1) a peace officer;
4-14 (2) a firefighter; or
4-15 (3) another individual whose employment includes the
4-16 duty to protect the public while acting in the course and scope of
4-17 the individual's employment.
4-18 Art. 56.33. ADMINISTRATION; RULES. (a) The attorney
4-19 general shall adopt rules consistent with this subchapter governing
4-20 its administration, including rules relating to the method of
4-21 filing claims and the proof of entitlement to compensation and the
4-22 review of health care services subject to compensation under this
4-23 chapter. Subchapters A and B, Chapter 2001, Government Code,
4-24 except Sections 2001.004(3) and 2001.005, apply to the attorney
4-25 general.
4-26 (b) The attorney general may delegate <designate> a power,
4-27 duty, or responsibility given to the attorney general under this
4-28 subchapter to a person in the attorney general's office.
4-29 Art. 56.34. COMPENSATION. (a) The attorney general shall
4-30 award compensation for pecuniary loss arising from criminally
4-31 injurious conduct if the attorney general is satisfied by a
4-32 preponderance of the evidence that the requirements of this
4-33 subchapter are met.
4-34 (b) The attorney general shall establish whether, as a
4-35 direct result of criminally injurious conduct, a claimant or victim
4-36 suffered personal injury or death that resulted in a pecuniary loss
4-37 for which the claimant or victim is not compensated from a
4-38 collateral source.
4-39 (c) The attorney general shall award compensation for health
4-40 care services according to the medical fee guidelines prescribed by
4-41 Subtitle A, Title 5, Labor Code.
4-42 (d) The attorney general, a claimant, or a victim is not
4-43 liable for health care service charges in excess of the medical fee
4-44 guidelines. A health care provider shall accept compensation from
4-45 the attorney general as payment in full for the charges unless an
4-46 investigation of the charges by the attorney general determines
4-47 that there is a reasonable health care justification for the
4-48 deviation from the guidelines.
4-49 (e) A claimant or victim is not liable for the balance of
4-50 service charges left as a result of an adjustment of payment for
4-51 the charges under Article 56.58.
4-52 Art. 56.35. TYPES OF ASSISTANCE. If the attorney general
4-53 approves an application for compensation under Article <Section>
4-54 56.41 <of this code>, the attorney general shall determine what
4-55 type of state assistance will best aid the claimant or victim. The
4-56 attorney general may do one or more of the following:
4-57 (1) authorize cash payment or payments to or on behalf
4-58 of a claimant or victim for pecuniary loss;
4-59 (2) refer a claimant or victim to a state agency for
4-60 vocational or other rehabilitative services; or
4-61 (3) provide counseling services for a claimant or
4-62 victim or contract with a private entity to provide counseling
4-63 services.
4-64 Art. 56.36. APPLICATION. (a) An applicant for compensation
4-65 under this subchapter must apply in writing in a form that conforms
4-66 substantially to that prescribed by the attorney general.
4-67 (b) An application must be verified and must contain:
4-68 (1) the date on which the criminally injurious conduct
4-69 occurred;
4-70 (2) a description of the nature and circumstances of
5-1 the criminally injurious conduct;
5-2 (3) a complete financial statement, including:
5-3 (A) the cost of medical care or burial expenses
5-4 and the loss of wages or support the claimant or victim has
5-5 incurred or will incur; and
5-6 (B) the extent to which the claimant or victim
5-7 has been indemnified for those expenses from a collateral source;
5-8 (4) if appropriate, a statement indicating the extent
5-9 of a disability resulting from the injury incurred;
5-10 (5) an authorization permitting the attorney general
5-11 to verify the contents of the application; and
5-12 (6) other information the attorney general requires.
5-13 Art. 56.37. TIME FOR FILING. (a) Except as otherwise
5-14 provided by this article <section>, a claimant or victim must file
5-15 an application not later than the first anniversary of the
5-16 criminally injurious conduct.
5-17 (b) The attorney general may extend the time for filing for
5-18 good cause shown by the claimant or victim.
5-19 (c) Subsection (a) <of this section> does not apply to a
5-20 claimant or victim if:
5-21 (1) the victim <claimant> is a child <who is the
5-22 victim>; or
5-23 (2) the claimant or victim is an immediate family
5-24 member or household member of a child who is the victim, and the
5-25 immediate family member or household member, as the direct result
5-26 of the criminally injurious conduct, requires psychological or
5-27 psychiatric counseling.
5-28 (d) If a claimant or victim presents medically documented
5-29 evidence of a physical incapacity that was incurred by the claimant
5-30 or victim as a result of the criminally injurious conduct and that
5-31 reasonably prevented the claimant or victim from filing the
5-32 application within the limitations period under Subsection (a) <of
5-33 this section>, the period of the incapacity is not included.
5-34 (e) If the victim is a child, the application must be filed
5-35 within one year from the date the claimant or victim is made aware
5-36 of the crime but not after the child is 19 <18> years of age.
5-37 Art. 56.38. REVIEW; VERIFICATION. (a) The attorney general
5-38 shall appoint a clerk to review each application for compensation
5-39 under Article <Section> 56.36 <of this code> to ensure the
5-40 application is complete. If an application is not complete, the
5-41 clerk shall return it to the claimant or victim and give a brief
5-42 statement showing the additional information required. Not later
5-43 than the 30th day after receiving a returned application, a
5-44 claimant or victim may:
5-45 (1) supply the additional information; or
5-46 (2) appeal the action to the attorney general, who
5-47 shall review the application to determine whether it is complete.
5-48 (b) The attorney general may investigate an application.
5-49 (c) Incident to the attorney general's review, verification,
5-50 and hearing duties under this subchapter, the attorney general may:
5-51 (1) <request from prosecuting attorneys and law
5-52 enforcement officers investigations and information to enable the
5-53 attorney general to determine whether and the extent to which a
5-54 claimant qualifies for an award;>
5-55 <(2)> subpoena witnesses and administer oaths to
5-56 determine whether and the extent to which a claimant or victim
5-57 qualifies for an award; and
5-58 (2) <(3)> order a claimant or victim to submit to a
5-59 mental or physical examination by a physician or psychologist or
5-60 order an autopsy of a deceased victim as provided by Article
5-61 <Section> 56.39 <of this code>, if the mental, physical, or
5-62 emotional condition of a claimant or victim is material to a claim.
5-63 (d) On request by the attorney general and not later than
5-64 the 14th business day after the date of the request, a law
5-65 enforcement agency shall release to the attorney general all
5-66 reports, including witness statements and criminal history record
5-67 information, for the purpose of allowing the attorney general to
5-68 determine whether a claimant or victim qualifies for an award and
5-69 the extent of the qualification.
5-70 Art. 56.385. REVIEW OF HEALTH CARE SERVICES. (a) The
6-1 attorney general may review the actual or proposed health care
6-2 services for which a claimant or victim seeks compensation in an
6-3 application filed under Article 56.36.
6-4 (b) The attorney general may not compensate a claimant or
6-5 victim for health care services that the attorney general
6-6 determines are not medically necessary.
6-7 (c) The attorney general, a claimant, or a victim is not
6-8 liable for a charge that is not medically necessary.
6-9 Art. 56.39. MENTAL OR PHYSICAL EXAMINATION; AUTOPSY.
6-10 (a) An order for a mental or physical examination or an autopsy as
6-11 provided by Article <Section> 56.38(c)(3) <of this code> may be
6-12 made for good cause shown on notice to the individual to be
6-13 examined and to all persons who have appeared.
6-14 (b) An order shall:
6-15 (1) specify the time, place, manner, conditions, and
6-16 scope of the examination or autopsy;
6-17 (2) specify the person by whom the examination or
6-18 autopsy is to be made; and
6-19 (3) require the person making the examination or
6-20 autopsy to file with the attorney general a detailed written report
6-21 of the examination or autopsy.
6-22 (c) A report shall set out the findings of the person making
6-23 the examination or autopsy, including:
6-24 (1) the results of any tests made; and
6-25 (2) diagnoses, prognoses, and other conclusions and
6-26 reports of earlier examinations of the same conditions.
6-27 (d) On request of the individual examined, the attorney
6-28 general shall furnish the individual with a copy of the report. If
6-29 the victim is deceased, the attorney general on request shall
6-30 furnish the claimant with a copy of the report.
6-31 (e) A physician or psychologist making an examination or
6-32 autopsy under this article <section> shall be compensated from
6-33 funds appropriated for the administration of this subchapter.
6-34 Art. 56.40. HEARINGS. (a) The attorney general shall
6-35 determine whether a hearing on an application for compensation
6-36 under this subchapter is necessary.
6-37 (b) If the attorney general determines that a hearing is not
6-38 necessary, the attorney general may approve the application in
6-39 accordance with the provisions of Article <Section> 56.41 <of this
6-40 code>.
6-41 (c) If the attorney general determines that a hearing is
6-42 necessary or if the claimant or victim requests a hearing, the
6-43 attorney general shall consider the application at a hearing at a
6-44 time and place of the attorney general's choosing. The attorney
6-45 general shall notify all interested persons not less than 10 days
6-46 before the date of the hearing.
6-47 (d) At the hearing the attorney general shall:
6-48 (1) review the application for assistance and the
6-49 report prepared under Article <Section> 56.39 <of this code> and
6-50 any other evidence obtained as a result of the attorney general's
6-51 investigation; and
6-52 (2) receive other evidence that the attorney general
6-53 finds necessary or desirable to evaluate the application properly.
6-54 (e) The attorney general may appoint hearing officers to
6-55 conduct hearings or prehearing conferences under this subchapter.
6-56 (f) A hearing or prehearing conference is open to the public
6-57 unless in a particular case the hearing officer or attorney general
6-58 determines that the hearing or prehearing conference or a part of
6-59 it should be held in private because a criminal suspect has not
6-60 been apprehended or because it is in the interest of the claimant
6-61 or victim.
6-62 (g) The attorney general may suspend the proceedings pending
6-63 disposition of a criminal prosecution that has been commenced or is
6-64 imminent, but may make an emergency award under Article <Section>
6-65 56.50 <of this code>.
6-66 (h) Subchapters C through H, Chapter 2001, Government Code,
6-67 do not apply to the attorney general or the attorney general's
6-68 orders and decisions.
6-69 Art. 56.41. APPROVAL OF CLAIM. (a) The attorney general
6-70 shall approve an application for compensation under this subchapter
7-1 if the attorney general finds by a preponderance of the evidence
7-2 that grounds for compensation under this subchapter exist.
7-3 (b) The attorney general shall deny an application for
7-4 compensation under this subchapter if:
7-5 (1) the criminally injurious conduct is not reported
7-6 as provided by Article <Section> 56.46 <of this code>;
7-7 (2) the application is not made in the manner provided
7-8 by Articles <Sections> 56.36 and 56.37 <of this code>;
7-9 (3) the claimant or victim <or individual whose injury
7-10 or death gives rise to the application> knowingly and willingly
7-11 participated in the criminally injurious conduct;
7-12 (4) the claimant or victim is the offender or an
7-13 accomplice of the offender;
7-14 (5) an award of compensation to the claimant or victim
7-15 would benefit the offender or an accomplice of the offender; or
7-16 (6) the claimant or victim was incarcerated in a penal
7-17 institution, as defined by Section 1.07(26), Penal Code, at the
7-18 time the offense was committed.
7-19 (c) Except as provided by rules adopted by the attorney
7-20 general to prevent the unjust enrichment of an offender, the
7-21 attorney general may not deny an award otherwise payable to a
7-22 claimant or victim because the claimant or victim:
7-23 (1) is an immediate family member of the offender; or
7-24 (2) resides in the same household as the offender.
7-25 Art. 56.42. LIMITS ON COMPENSATION. (a) Except as
7-26 otherwise provided by this article, awards <A claimant is not
7-27 entitled to compensation for pecuniary loss under this subchapter:>
7-28 <(1) in excess of $200 a week for:>
7-29 <(A) actual loss of past earnings or anticipated
7-30 loss of future earnings; or>
7-31 <(B) loss of support to a dependent;>
7-32 <(2) for actual loss of past earnings or anticipated
7-33 loss of future earnings if the victim is an accomplice of the
7-34 offender;>
7-35 <(3) for loss of support to a dependent after the date
7-36 the dependence would have ended if the victim had survived;>
7-37 <(4) for care of a minor child in excess of:>
7-38 <(A) $50 a week for one child;>
7-39 <(B) $100 a week for two children; or>
7-40 <(C) $125 a week for three or more children;>
7-41 <(5) for loss of support to a dependent or care of a
7-42 minor child as a result of death, if the expense is otherwise
7-43 compensated for as a pecuniary loss for personal injury; or>
7-44 <(6) for loss attributable to pain and suffering.>
7-45 <(b) Awards> payable to a victim and all other claimants
7-46 sustaining pecuniary loss because of injury or death of that victim
7-47 may not exceed $25,000 in the aggregate.
7-48 (b) In addition to an award payable under Subsection (a),
7-49 the attorney general may award an additional $25,000 for
7-50 extraordinary pecuniary losses, if the personal injury to a victim
7-51 is catastrophic and results in a total and permanent disability to
7-52 the victim, for lost wages and reasonable and necessary costs of:
7-53 (1) making a home or automobile accessible;
7-54 (2) obtaining job training and vocational
7-55 rehabilitation;
7-56 (3) training in the use of special appliances; and
7-57 (4) receiving home health care.
7-58 (c) The attorney general may by rule establish limitations
7-59 on any other pecuniary loss compensated for under this subchapter.
7-60 Art. 56.43. ATTORNEY FEES. (a) As part of an order, the
7-61 attorney general shall determine and award reasonable attorney's
7-62 fees, commensurate with legal services rendered, to be paid by the
7-63 state to the attorney representing the claimant or victim.
7-64 Attorney fees shall not exceed 25 percent of the amount the
7-65 attorney assisted the claimant or victim in obtaining. Where there
7-66 is no dispute of the attorney general's determination of the amount
7-67 of the award due to the claimant or victim and where no hearing is
7-68 held, the attorney fee shall be the lesser of either 25 percent of
7-69 the amount the attorney assisted the claimant or victim in
7-70 obtaining or $300.
8-1 (b) Attorney fees may be denied on a finding that the claim
8-2 or appeal is frivolous.
8-3 (c) An award of attorney fees is in addition to an award of
8-4 compensation.
8-5 (d) An attorney may not contract for or receive an amount
8-6 larger than that allowed under this article <section>.
8-7 (e) Attorney fees may not be paid to an attorney of a
8-8 claimant or victim unless an award is made to the claimant or
8-9 victim.
8-10 Art. 56.44. PAYMENTS. (a) The attorney general may provide
8-11 for the payment of an award in a lump sum or in installments. The
8-12 attorney general shall provide that the part of an award equal to
8-13 the amount of pecuniary loss accrued to the date of the award be
8-14 paid in a lump sum. Except as provided in Subsection (b) <of this
8-15 section>, the attorney general shall pay the part of an award for
8-16 allowable expense that accrues after the award is made in
8-17 installments.
8-18 (b) At the request of the claimant or victim, the attorney
8-19 general may provide that an award for future pecuniary loss be paid
8-20 in a lump sum if the attorney general finds that:
8-21 (1) paying the award in a lump sum will promote the
8-22 interests of the claimant or victim; or
8-23 (2) the present value of all future pecuniary loss
8-24 does not exceed $1,000.
8-25 (c) The attorney general may not provide for an award for
8-26 future pecuniary loss payable in installments for a period for
8-27 which the attorney general cannot reasonably determine the future
8-28 pecuniary loss.
8-29 (d) The attorney general may make payments only to an
8-30 individual who is a claimant or a victim.
8-31 Art. 56.45. DENIAL OR REDUCTION OF AWARD. The attorney
8-32 general may deny or reduce an award otherwise payable:
8-33 (1) if the claimant or victim has not substantially
8-34 cooperated with an appropriate law enforcement agency;
8-35 (2) if the claimant or victim bears a share of the
8-36 responsibility for the act or omission giving rise to the claim
8-37 because of the claimant's or victim's behavior <at the time of the
8-38 act or omission>; <or>
8-39 (3) to the extent that pecuniary loss is recouped from
8-40 another person, including a collateral source; or
8-41 (4) if the claimant or victim was engaging in an
8-42 activity that at the time of the criminally injurious conduct was
8-43 prohibited by law or a rule made under law.
8-44 Art. 56.46. REPORTING OF CRIME. (a) Except as otherwise
8-45 provided by this article <section>, a claimant or victim may not
8-46 file an application unless the victim reports the criminally
8-47 injurious conduct to the appropriate state or local public safety
8-48 or law enforcement agency not later than 72 hours after the
8-49 criminally injurious conduct is committed.
8-50 (b) The attorney general may extend the time for reporting
8-51 the criminally injurious conduct if the attorney general determines
8-52 that the extension is justified by extraordinary circumstances.
8-53 (c) Subsection (a) <of this section> does not apply if the
8-54 victim is a child.
8-55 Art. 56.47. RECONSIDERATION. (a) The attorney general, on
8-56 the attorney general's own motion or on request of a claimant or
8-57 victim, may reconsider:
8-58 (1) a decision to make or deny an award; or
8-59 (2) the amount of an award.
8-60 (b) At least annually, the attorney general shall reconsider
8-61 each award being paid in installments.
8-62 (c) An order on reconsideration may <not> require a refund
8-63 of an <amounts previously paid unless the> award if:
8-64 (1) the award was obtained by fraud or mistake; or
8-65 (2) newly discovered evidence shows the claimant or
8-66 victim to be ineligible for the award under Article 56.41 or 56.45.
8-67 (d) The right of reconsideration does not affect the
8-68 finality of an attorney general decision for the purpose of
8-69 judicial review.
8-70 Art. 56.48. JUDICIAL REVIEW. (a) Not later than the 20th
9-1 day after the attorney general renders a final decision, a claimant
9-2 or victim may file with the attorney general a notice of
9-3 dissatisfaction with the decision. Not later than the 20th day
9-4 after the claimant or victim gives notice, the claimant or victim
9-5 shall bring suit in the district court having jurisdiction in the
9-6 county in which:
9-7 (1) the injury or death occurred; <or>
9-8 (2) the victim resided at the time the injury or death
9-9 occurred; or
9-10 (3) if the victim resided out of state at the time of
9-11 the injury or death, the injury or death occurred.
9-12 (b) While judicial review of a decision by the attorney
9-13 general is pending, the attorney general:
9-14 (1) shall suspend payments to the claimant or victim;
9-15 and
9-16 (2) may not reconsider the award.
9-17 (c) The court shall determine the issues by trial de novo.
9-18 The burden of proof is on the party who filed the notice of
9-19 dissatisfaction <claimant>.
9-20 (d) A court may award not more than 25 percent of the total
9-21 recovery by the claimant or victim for <additional> attorney fees
9-22 <to a claim> in the event of review.
9-23 (e) In computing a period under this article <section>, if
9-24 the last day is a legal holiday or Sunday, the last day is not
9-25 counted, and the time is extended to include the next business day.
9-26 Art. 56.49. EXEMPTION; ASSIGNABILITY. (a) An award is not
9-27 subject to execution, attachment, garnishment, or other process,
9-28 except that an award is not exempt from a claim of a creditor to
9-29 the extent that the creditor provided products, services, or
9-30 accommodations, the costs of which are included in the award.
9-31 (b) An assignment or agreement to assign a right to benefits
9-32 for loss accruing in the future is unenforceable except:
9-33 (1) an assignment of a right to benefits for loss of
9-34 earnings is enforceable to secure payment of alimony, maintenance,
9-35 or child support; and
9-36 (2) an assignment of a right to benefits is
9-37 enforceable to the extent that the benefits are for the cost of
9-38 products, services, or accommodations:
9-39 (A) made necessary by the injury or death on
9-40 which the claim is based; and
9-41 (B) provided or to be provided by the assignee.
9-42 Art. 56.50. EMERGENCY AWARD. (a) The attorney general may
9-43 make an emergency award if, before acting on an application for
9-44 compensation under this subchapter, it appears likely that:
9-45 (1) a final award will be made; and
9-46 (2) the claimant or victim will suffer undue hardship
9-47 if immediate economic relief is not obtained.
9-48 (b) An emergency award may not exceed $1,500.
9-49 (c) The amount of an emergency award shall be:
9-50 (1) deducted from the final award; or
9-51 (2) repaid by and recoverable from the claimant or
9-52 victim to the extent the emergency award exceeds the final award.
9-53 Art. 56.51. SUBROGATION. If compensation is awarded under
9-54 this subchapter, the state is subrogated to all the claimant's or
9-55 victim's rights to receive or recover benefits for pecuniary loss
9-56 to the extent compensation is awarded from a collateral source.
9-57 Art. 56.52. NOTICE OF PRIVATE ACTION. (a) Before a
9-58 claimant or victim may bring an action to recover damages related
9-59 to criminally injurious conduct for which compensation under this
9-60 subchapter is claimed or awarded, the claimant or victim must give
9-61 the attorney general written notice of the proposed action. After
9-62 receiving the notice, the attorney general shall promptly:
9-63 (1) join in the action as a party plaintiff to recover
9-64 benefits awarded;
9-65 (2) require the claimant or victim to bring the action
9-66 in the claimant's or victim's name as a trustee on behalf of the
9-67 state to recover benefits awarded; or
9-68 (3) reserve the attorney general's rights and do
9-69 neither in the proposed action.
9-70 (b) If the claimant or victim brings the action as trustee
10-1 and recovers compensation awarded by the attorney general, the
10-2 claimant or victim may deduct from the benefits recovered on behalf
10-3 of the state the reasonable expenses of the suit, including
10-4 attorney fees, expended in pursuing the recovery for the state.
10-5 The claimant or victim must justify this deduction in writing to
10-6 the attorney general on a form provided by the attorney general.
10-7 (c) A claimant or victim shall not settle or resolve any
10-8 such action without written authorization to do so from the
10-9 attorney general. No third party or agents, insurers, or attorneys
10-10 for third parties shall participate in the settlement or resolution
10-11 of such an action if they actually know, or should know, that the
10-12 claimant or victim has received moneys from the fund and is subject
10-13 to the subrogation provisions of this article <section>. Any
10-14 attempt by such third party, or agents, insurers, or attorneys of
10-15 third parties to settle an action is void and shall result in no
10-16 release from liability to the fund for any rights subrogated
10-17 pursuant to this article <section>. All such agents, insurers, and
10-18 attorneys are personally liable to the fund for any moneys paid to
10-19 a claimant or victim in violation of this subsection, up to the
10-20 full amount of the fund's right to reimbursement. A claimant,
10-21 victim, third party, or any agents, attorneys, or insurers of third
10-22 parties who knowingly or intentionally fail to comply with the
10-23 requirements of this chapter commits a Class B misdemeanor.
10-24 (d) A person adjudged guilty of a Class B misdemeanor shall
10-25 be punished by:
10-26 (1) a fine not to exceed $500;
10-27 (2) confinement in jail for a term not to exceed 180
10-28 days; or
10-29 (3) both such fine and imprisonment.
10-30 Art. 56.53. ANNUAL REPORT. Annually, the attorney general
10-31 shall report to the governor and the legislature on the attorney
10-32 general's activities, including a statistical summary of claims and
10-33 awards made and denied. The reporting period is the state fiscal
10-34 year. The attorney general shall file the report not later than
10-35 the 100th <60th> day after the end of the fiscal year.
10-36 Art. 56.54. FUNDS. (a) The compensation to victims of
10-37 crime fund and the compensation to victims of crime auxiliary fund
10-38 are in the state treasury.
10-39 (b) The compensation to victims of crime fund may be used by
10-40 the attorney general only for the payment of compensation to
10-41 claimants or victims under this subchapter and other expenses in
10-42 administering this subchapter.
10-43 (c) The compensation to victims of crime auxiliary fund may
10-44 be used by the attorney general only for the payment of
10-45 compensation to claimants or victims under this subchapter.
10-46 (d) The attorney general may not make compensation payments
10-47 in excess of the amount of money available from the combined funds.
10-48 (e) General revenues may not be used for payments under this
10-49 subchapter.
10-50 (f) The office of the attorney general is authorized to
10-51 accept gifts, grants, and donations to be credited to the
10-52 compensation to victims of crime fund and compensation to victims
10-53 of crime auxiliary fund and shall file annually with the governor
10-54 and the presiding officer of each house of the legislature a
10-55 complete and detailed written report accounting for all gifts,
10-56 grants, and donations received and disbursed, used, or maintained
10-57 by the office for the attorney general that are credited to these
10-58 funds.
10-59 (g) Money in the compensation to victims of crime fund or in
10-60 the compensation to victims of crime auxiliary fund may be used
10-61 only as provided by this subchapter and is not available for any
10-62 other purpose. Section 403.095, Government Code, does not apply to
10-63 the fund.
10-64 Art. 56.55. COURT COSTS. (a) A person shall pay:
10-65 (1) $45 as a court cost on conviction of a felony;
10-66 (2) $35 as a court cost on conviction of a violation
10-67 of a municipal ordinance punishable by a fine of more than $200 or
10-68 on conviction of a misdemeanor punishable by imprisonment or by a
10-69 fine of more than $500; or
10-70 (3) $15 as a court cost on conviction of a violation
11-1 of a municipal ordinance punishable by a fine of not more than $200
11-2 or on conviction of a misdemeanor punishable by a fine of not more
11-3 than $500, other than a conviction of a misdemeanor offense or a
11-4 violation of a municipal ordinance relating to pedestrians and the
11-5 parking of motor vehicles.
11-6 (b) The court shall assess and make a reasonable effort to
11-7 collect the cost due under this article <section> whether any other
11-8 court cost is assessed or collected.
11-9 (c) In this article <section>, a person is considered to
11-10 have been convicted if:
11-11 (1) a sentence is imposed;
11-12 (2) the defendant receives probation or deferred
11-13 adjudication; or
11-14 (3) the court defers final disposition of the case.
11-15 (d) Court costs under this article <section> are collected
11-16 in the same manner as other fines or costs.
11-17 Art. 56.56. DEPOSIT AND REMITTANCE OF COURT COSTS. (a) The
11-18 officer collecting the costs in a municipal court case shall keep
11-19 separate records of the funds collected as costs under Article
11-20 <Section> 56.55 <of this code> and shall deposit the funds in the
11-21 municipal treasury. The officer collecting the costs in a justice,
11-22 county, or district court case shall keep separate records of the
11-23 funds collected as costs under Article <Section> 56.55 <of this
11-24 code> and shall deposit the funds in the county treasury.
11-25 (b) The custodian of a municipal or county treasury shall:
11-26 (1) keep records of the amount of funds on deposit
11-27 collected under Article <Section> 56.55 <of this code>; and
11-28 (2) send to the comptroller before the last day of the
11-29 first month following each calendar quarter the funds collected
11-30 during the preceding quarter.
11-31 (c) A municipality or county may retain 10 percent of the
11-32 funds collected under Article <Section> 56.55 <of this code> as a
11-33 collection fee if the custodian of the treasury:
11-34 (1) keeps records of the amount of funds on deposit
11-35 collected under Article <Section> 56.55 <of this code>; and
11-36 (2) sends to the comptroller the funds within the
11-37 period prescribed by Subsection (b)(2) <of this section>.
11-38 (d) If no funds due as costs under Article <Section> 56.55
11-39 <of this code> are collected by a custodian of a municipal or
11-40 county treasury in a quarter, the custodian shall file the report
11-41 required for the quarter in the regular manner and must state that
11-42 no funds were collected.
11-43 Art. 56.57. DEPOSIT BY COMPTROLLER; AUDIT. (a) The
11-44 comptroller shall deposit the funds received under Article
11-45 <Section> 56.56 <of this code> and all other moneys credited to the
11-46 fund by any other provision of law in the compensation to victims
11-47 of crime fund.
11-48 (b) Funds collected are subject to audit by the comptroller.
11-49 Funds spent are subject to audit by the state auditor.
11-50 Art. 56.58. ADJUSTMENT OF AWARDS AND PAYMENTS. (a) The
11-51 attorney general shall establish a policy to adjust awards and
11-52 payments so that the total amount of awards granted in each
11-53 calendar year does not exceed the amount of money credited to the
11-54 fund during that year.
11-55 (b) If the attorney general establishes a policy to adjust
11-56 awards under Subsection (a), the attorney general, the claimant, or
11-57 the victim is not liable for the amount of charges incurred in
11-58 excess of the adjusted amount for the service on which the adjusted
11-59 payment is determined.
11-60 (c) A service provider who accepts a payment that has been
11-61 adjusted by a policy established under Subsection (a) agrees to
11-62 accept the adjusted payment as payment in full for the service and
11-63 is barred from legal action against the claimant or victim for
11-64 collection.
11-65 Art. 56.59. ATTORNEY GENERAL SUPERVISION OF COLLECTION OF
11-66 COSTS; FAILURE TO COMPLY. (a) If the attorney general has reason
11-67 to believe that a court has not been assessing costs due under
11-68 Article <Section> 56.55 <of this code> or has not been making a
11-69 reasonable effort to collect those costs, the attorney general
11-70 shall send a warning letter to the court or the governing body of
12-1 the governmental unit in which the court is located.
12-2 (b) Within 60 days after receipt of a warning letter, the
12-3 court or governing body shall respond in writing to the attorney
12-4 general, specifically referring to the charges in the warning
12-5 letter.
12-6 (c) If the court or governing body does not respond or if
12-7 the attorney general considers the response inadequate, the
12-8 attorney general may request the comptroller to audit the records
12-9 of:
12-10 (1) the court;
12-11 (2) the officer charged with collecting the costs; or
12-12 (3) the treasury of the governmental unit in which the
12-13 court is located.
12-14 (d) The comptroller shall give the attorney general the
12-15 results of the audit.
12-16 (e) If, using the results of the audit and other evidence
12-17 available, the attorney general finds that a court is not assessing
12-18 costs due under Article <Section> 56.55 <of this code> or is not
12-19 making a reasonable effort to collect those costs, the attorney
12-20 general may:
12-21 (1) refuse to award compensation under this subchapter
12-22 to residents of the jurisdiction served by the court; or
12-23 (2) notify the State Commission on Judicial Conduct of
12-24 the findings.
12-25 (f) The failure, refusal, or neglect of a judicial officer
12-26 to comply with a requirement of Article <Section> 56.55 <of this
12-27 code>:
12-28 (1) constitutes official misconduct; and
12-29 (2) is grounds for removal from office.
12-30 Art. 56.60. PUBLIC NOTICE. (a) A hospital licensed under
12-31 the laws of this state shall display prominently in its emergency
12-32 room posters giving notification of the existence and general
12-33 provisions of this subchapter. The attorney general shall set
12-34 standards for the location of the display and shall provide
12-35 posters, application forms, and general information regarding this
12-36 subchapter to each hospital and physician licensed to practice in
12-37 this state.
12-38 (b) Each local law enforcement agency shall inform a
12-39 claimant or victim of criminally injurious conduct of the
12-40 provisions of this subchapter and make <provide> application forms
12-41 available <to a victim who desires assistance>. The attorney
12-42 general shall provide application forms and all other documents
12-43 that local law enforcement agencies may require to comply with this
12-44 article <section>. The attorney general shall set standards to be
12-45 followed by local law enforcement agencies for this purpose and may
12-46 require them to file with the attorney general a description of the
12-47 procedures adopted by each agency to comply.
12-48 Art. 56.61. COMPENSATION FOR CERTAIN CRIMINALLY INJURIOUS
12-49 CONDUCT PROHIBITED. The attorney general may not award
12-50 compensation for economic loss arising from criminally injurious
12-51 conduct that occurred before January 1, 1980.
12-52 Art. 56.62. PUBLIC LETTER OF REPRIMAND. (a) The attorney
12-53 general may issue a letter of reprimand against an individual if
12-54 the attorney general finds that the person has filed or has caused
12-55 to be filed under this subchapter an application for benefits or
12-56 claim for pecuniary loss that contains a statement or
12-57 representation that the person knows to be false.
12-58 (b) The attorney general must give the person notice of the
12-59 proposed action before issuing the letter.
12-60 (c) A person may challenge the denial of compensation and
12-61 the issuance of a letter of reprimand in a contested case hearing
12-62 under Chapter 2001, Government Code (Administrative Procedure Act).
12-63 (d) A letter of reprimand issued under this article is
12-64 public information.
12-65 Art. 56.63. CIVIL PENALTY. (a) A person is subject to a
12-66 civil penalty of not less than $2,500 or more than $25,000 for each
12-67 application for compensation that:
12-68 (1) is filed under this subchapter by the person or is
12-69 filed under this subchapter as a result of conduct of the person;
12-70 and
13-1 (2) contains a material statement or representation
13-2 that the person knows to be false.
13-3 (b) The attorney general shall institute and conduct the
13-4 suit to collect the civil penalty authorized by this article on
13-5 behalf of the state.
13-6 (c) A civil penalty recovered under this article shall be
13-7 deposited to the credit of the compensation to victims of crime
13-8 fund.
13-9 (d) The civil penalty authorized by this article is in
13-10 addition to any other civil, administrative, or criminal penalty
13-11 provided by law.
13-12 (e) In addition to the civil penalty authorized by this
13-13 article, the attorney general may recover expenses incurred by the
13-14 attorney general in the investigation, institution, and prosecution
13-15 of the suit, including investigative costs, witness fees,
13-16 attorney's fees, and deposition expenses.
13-17 Art. 56.64. ADMINISTRATIVE PENALTY. (a) A person who
13-18 presents to the attorney general under this subchapter, or engages
13-19 in conduct that results in the presentation to the attorney general
13-20 under this subchapter of, an application for compensation under
13-21 this subchapter that contains a statement or representation the
13-22 person knows to be false is liable to the attorney general for:
13-23 (1) the amount paid in reliance on the application and
13-24 interest on that amount determined at the rate provided by law for
13-25 legal judgments and accruing from the date on which the payment was
13-26 made;
13-27 (2) payment of an administrative penalty not to exceed
13-28 twice the amount paid because of the false application for benefits
13-29 or claim for pecuniary loss; and
13-30 (3) payment of an administrative penalty of not more
13-31 than $10,000 for each item or service for which payment was
13-32 claimed.
13-33 (b) In determining the amount of the penalty to be assessed
13-34 under Subsection (a)(3), the attorney general shall consider:
13-35 (1) the seriousness of the violation;
13-36 (2) whether the person has previously submitted a
13-37 false application for benefits or a claim for pecuniary loss; and
13-38 (3) the amount necessary to deter the person from
13-39 submitting future false applications for benefits or claims for
13-40 pecuniary loss.
13-41 (c) If the attorney general determines that a violation has
13-42 occurred, the attorney general may issue a report that states the
13-43 facts on which the determination is made and the attorney general's
13-44 recommendation on the imposition of a penalty, including a
13-45 recommendation on the amount of the penalty.
13-46 (d) The attorney general shall give written notice of the
13-47 report to the person. Notice under this subsection may be given by
13-48 certified mail and must:
13-49 (1) include a brief summary of the alleged violation;
13-50 (2) include a statement of the amount of the
13-51 recommended penalty; and
13-52 (3) inform the person of the right to a hearing on:
13-53 (A) the occurrence of the violation;
13-54 (B) the amount of the penalty; or
13-55 (C) both the occurrence of the violation and the
13-56 amount of the penalty.
13-57 (e) Not later than the 20th day after the date the person
13-58 receives the notice, the person, in writing, may:
13-59 (1) accept the attorney general's determination and
13-60 recommended penalty; or
13-61 (2) request in writing a hearing on:
13-62 (A) the occurrence of the violation;
13-63 (B) the amount of the penalty; or
13-64 (C) both the occurrence of the violation and the
13-65 amount of the penalty.
13-66 (f) If the person accepts the determination and recommended
13-67 penalty of the attorney general, the attorney general by order
13-68 shall approve the determination and impose the recommended penalty.
13-69 (g) If the person requests a hearing as provided by
13-70 Subsection (e) or fails to respond to the notice in a timely
14-1 manner, the attorney general shall set a contested case hearing
14-2 under Chapter 2001, Government Code (Administrative Procedure Act),
14-3 and notify the person of the hearing. The administrative law judge
14-4 shall make findings of facts and conclusions of law and promptly
14-5 issue to the attorney general a proposal for a decision regarding
14-6 the occurrence of the violation and the amount of a proposed
14-7 penalty. Based on the findings of fact, conclusions of law, and
14-8 proposal for a decision, the attorney general by order may:
14-9 (1) find that a violation has occurred and impose a
14-10 penalty; or
14-11 (2) find that a violation has not occurred.
14-12 (h) Notice of the attorney general's order given to the
14-13 person under Chapter 2001, Government Code, must include a
14-14 statement of the right of the person to judicial review of the
14-15 order.
14-16 (i) Not later than the 30th day after the date that the
14-17 attorney general's order is final under Section 2001.144,
14-18 Government Code, the person shall:
14-19 (1) pay the amount of the penalty;
14-20 (2) pay the amount of the penalty and file a petition
14-21 for judicial review contesting:
14-22 (A) the occurrence of the violation;
14-23 (B) the amount of the penalty; or
14-24 (C) the occurrence of the violation and the
14-25 amount of the penalty; or
14-26 (3) without paying the amount of the penalty, file a
14-27 petition for judicial review contesting:
14-28 (A) the occurrence of the violation;
14-29 (B) the amount of the penalty; or
14-30 (C) the occurrence of the violation and the
14-31 amount of the penalty.
14-32 (j) Within the 30-day period, a person who acts under
14-33 Subsection (i)(3) may:
14-34 (1) stay enforcement of the penalty by:
14-35 (A) paying the amount of the penalty to the
14-36 court for placement in an escrow account; or
14-37 (B) giving to the court a supersedeas bond that
14-38 is approved by the court for the amount of the penalty and that is
14-39 effective until all judicial review of the attorney general's order
14-40 is final; or
14-41 (2) request the court to stay enforcement of the
14-42 penalty by:
14-43 (A) filing with the court a sworn affidavit of
14-44 the person stating that the person is financially unable to pay the
14-45 amount of the penalty or to give the supersedeas bond; and
14-46 (B) delivering a copy of the affidavit to the
14-47 attorney general by certified mail.
14-48 (k) On receipt by the attorney general of a copy of an
14-49 affidavit under Subsection (j)(2), the attorney general may file
14-50 with the court, not later than the fifth day after the date the
14-51 copy is received, a contest to the affidavit. The court shall hold
14-52 a hearing on the facts alleged in the affidavit as soon as
14-53 practicable and shall stay the enforcement of the penalty on
14-54 finding that the alleged facts are true. A person who files an
14-55 affidavit under Subsection (j)(2) has the burden of proving that
14-56 the person is financially unable to pay the amount of the penalty
14-57 or to give a supersedeas bond.
14-58 (l) If the person does not pay the amount of the penalty and
14-59 the enforcement of the penalty is not stayed, the attorney general
14-60 may file suit for collection of the amount of the penalty.
14-61 (m) Judicial review of the order of the attorney general:
14-62 (1) is instituted by filing a petition as provided by
14-63 Section 2001.176, Government Code; and
14-64 (2) is governed by the substantial evidence rule.
14-65 (n) If the court upholds the finding that a violation
14-66 occurred, the court may order the person to pay the full or reduced
14-67 amount of the penalty. If the court does not uphold the finding,
14-68 the court shall order that no penalty is owed.
14-69 (o) If the person paid the amount of the penalty and if that
14-70 amount is reduced or is not upheld by the court, the court shall
15-1 order that the appropriate amount plus accrued interest be remitted
15-2 to the person. The rate of the interest is the rate charged on
15-3 loans to depository institutions by the New York Federal Reserve
15-4 Bank, and the interest shall be paid for the period beginning on
15-5 the date the penalty was paid and ending on the date the penalty is
15-6 remitted. If the person gave a supersedeas bond and if the amount
15-7 of the penalty is not upheld by the court, the court shall order
15-8 the release of the bond. If the person gave a supersedeas bond and
15-9 if the amount of the penalty is reduced, the court shall order the
15-10 release of the bond after the person pays the amount.
15-11 (p) A penalty collected under this article shall be sent to
15-12 the comptroller and deposited to the credit of the compensation to
15-13 victims of crime fund.
15-14 (q) All proceedings under this article are subject to
15-15 Chapter 2001, Government Code.
15-16 (r) In addition to the administrative penalty authorized by
15-17 this article, the attorney general may recover all expenses
15-18 incurred by the attorney general in the investigation, institution,
15-19 and prosecution of the suit, including investigative costs, witness
15-20 fees, attorney's fees, and deposition expenses.
15-21 SECTION 2. (a) The change in law made by this Act applies
15-22 only to an application for compensation for criminally injurious
15-23 conduct occurring on or after the effective date of this Act. For
15-24 purposes of this section, conduct occurs before the effective date
15-25 of this Act if any element of the offense that is included in the
15-26 criminally injurious conduct occurs before that date.
15-27 (b) An application for compensation based on an offense
15-28 committed before the effective date of this Act is covered by the
15-29 law in effect when the offense was committed, and the former law is
15-30 continued in effect for that purpose.
15-31 SECTION 3. Sections 5 and 6, Chapter 780, and Sections 1, 3,
15-32 and 4, Chapter 983, Acts of the 73rd Legislature, 1993, are
15-33 repealed.
15-34 SECTION 4. This Act takes effect September 1, 1995.
15-35 SECTION 5. The importance of this legislation and the
15-36 crowded condition of the calendars in both houses create an
15-37 emergency and an imperative public necessity that the
15-38 constitutional rule requiring bills to be read on three several
15-39 days in each house be suspended, and this rule is hereby suspended.
15-40 * * * * *