By Hightower, Gutierrez, et al.                       H.B. No. 3062

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to comprehensive revisions to Subchapter B, Chapter 56,

 1-3     Code of Criminal Procedure, the Crime Victims' Compensation Act.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Articles 56.32, 56.34, 56.36, 56.37, 56.41,

 1-6     56.42, 56.44, 56,45, 56.46, 56.47, 56.48, and 56.54, Code of

 1-7     Criminal Procedure, are amended to read as follows:

 1-8           Art. 56.32.  Definitions.  (a)  In this subchapter:

 1-9                 (1)  "Child" means an individual younger than 18 years

1-10     of age who:

1-11                       (A)  is not married; or

1-12                       (B)  has not had the disabilities of minority

1-13     removed for general purposes under Chapter 31, Family Code.

1-14                 (2)  "Claimant" means, except as provided by Subsection

1-15     (b), any of the following individuals who is entitled to file or

1-16     has filed a claim for compensation under this subchapter:

1-17                       (A)  an authorized individual acting on behalf of

1-18     a victim;

1-19                       (B)  an individual who legally assumes the

1-20     obligation or who voluntarily pays medical or burial expenses of a

1-21     victim incurred as a result of the criminally injurious conduct of

1-22     another;

1-23                       (C)  a dependent of a victim who died as a result

1-24     of criminally injurious conduct;

 2-1                       (D)  an immediate family member or household

 2-2     member of a victim who[:]

 2-3                             [(i)  is not a dependent of the victim; and]

 2-4                             [(ii)]  requires psychiatric care or

 2-5     counseling as a result of the criminally injurious conduct [of

 2-6     another who injured the victim]; or

 2-7                       (E)  an authorized individual acting on behalf of

 2-8     an individual who is described by Subdivision (C) or (D) and who is

 2-9     a child.

2-10                 (3)  "Collateral source" means any of the following

2-11     sources of benefits or advantages for pecuniary loss that a

2-12     claimant or victim has received or that is readily available to the

2-13     claimant or victim from:

2-14                       (A)  the offender under an order of restitution

2-15     to the claimant or victim imposed by a court as a condition of

2-16     community supervision;

2-17                       (B)  the United States, a federal agency, a state

2-18     or any of its political subdivisions, or an instrumentality of two

2-19     or more states, unless the law providing for the benefits or

2-20     advantages makes them in excess of or secondary to benefits under

2-21     this subchapter;

2-22                       (C)  social security, Medicare, or Medicaid;

2-23                       (D)  another state's or another country's crime

2-24     victims' compensation program [state-required temporary

2-25     nonoccupational disability insurance];

2-26                       (E)  workers' compensation;

2-27                       (F)  an employer's wage continuation program, not

 3-1     including vacation and sick leave benefits;

 3-2                       (G)  proceeds of an insurance contract payable to

 3-3     or on behalf of the claimant or victim for loss that the claimant

 3-4     or victim sustained because of the criminally injurious conduct;

 3-5                       (H)  a contract or self-funded program providing

 3-6     [prepaid] hospital and other health care services or benefits [for

 3-7     disability]; or

 3-8                       (I)  proceeds awarded to the claimant or victim

 3-9     as a result of third-party litigation[; or]

3-10                       [(J)  proceeds of a life insurance contract

3-11     payable to the claimant or victim].

3-12                 (4)  "Criminally injurious conduct" means conduct that:

3-13                       (A)  occurs or is attempted;

3-14                       (B)  poses a substantial threat of personal

3-15     injury or death;

3-16                       (C)  is punishable by fine, imprisonment, or

3-17     death, or would be punishable by fine, imprisonment, or death if

3-18     the person engaging in the conduct possessed capacity to commit the

3-19     conduct; and

3-20                       (D)  does not arise out of the ownership,

3-21     maintenance, or use of a motor vehicle, aircraft, or water vehicle,

3-22     unless the conduct is intended to cause personal injury or death or

3-23     the conduct is in violation of Section 550.021, Transportation Code

3-24     [Section 38, Uniform Act Regulating Traffic on Highways (Article

3-25     6701d, Vernon's Texas Civil Statutes)], or one or more of the

3-26     following sections of the Penal Code:

3-27                             (i)  Section 19.04 (manslaughter);

 4-1                             (ii)  Section 19.05 (criminally negligent

 4-2     homicide);

 4-3                             (iii)  Section 22.02 (aggravated assault);

 4-4                             (iv)  Section 49.04 (driving while

 4-5     intoxicated);

 4-6                             (v)  Section 49.05 (flying while

 4-7     intoxicated);

 4-8                             (vi)  Section 49.06 (boating while

 4-9     intoxicated);

4-10                             (vii)  Section 49.07 (intoxication

4-11     assault); or

4-12                             (viii)  Section 49.08 (intoxication

4-13     manslaughter).

4-14                 (5)  "Dependent" means:

4-15                       (A)  a surviving spouse;

4-16                       (B)  a person who is a dependent, within the

4-17     meaning of the Internal Revenue Code, of a [deceased] victim; and

4-18     [or]

4-19                       (C)  a posthumous child of a deceased victim.

4-20                 (6)  "Household member" means an individual who resided

4-21     in the same permanent household as the victim at the time that the

4-22     criminally injurious conduct occurred and who is related by

4-23     consanguinity or affinity to the victim.

4-24                 (7)  "Immediate family member" means an individual who

4-25     is related to [the father, mother, sister, brother, daughter, son,

4-26     or spouse of] a victim within the second degree by affinity or

4-27     consanguinity [, including a stepparent or stepchild].

 5-1                 (8)  "Intervenor" means an individual who goes to the

 5-2     aid of another and is killed or injured in the good faith effort to

 5-3     prevent criminally injurious conduct, to apprehend a person

 5-4     reasonably suspected of having engaged in criminally injurious

 5-5     conduct, or to aid a peace officer.

 5-6                 (9)  "Pecuniary loss" means the amount of expense

 5-7     reasonably and necessarily incurred as a result of personal injury

 5-8     or death for:

 5-9                       (A)  medical, hospital, nursing, or psychiatric

5-10     care or counseling, or physical therapy;

5-11                       (B)  actual loss of past earnings and anticipated

5-12     loss of future earnings because of:

5-13                             (i)  a disability resulting from the

5-14     personal injury;

5-15                             (ii)  the receipt of medically indicated

5-16     services related  to the disability resulting from the personal

5-17     injury; or

5-18                             (iii)  participation in or attendance at

5-19     investigative, prosecutorial, or judicial processes related to the

5-20     criminally injurious conduct;

5-21                       (C)  care of a child or dependent [enabling a

5-22     victim, a victim's spouse, or a legal guardian of the victim, but

5-23     not all of them, to continue or engage in gainful employment];

5-24                       (D)  funeral and burial expenses;

5-25                       (E)  loss of support to a dependent, consistent

5-26     with Article 56.41(b)(5) [in the event of the death of the victim];

5-27                       (F)  reasonable and necessary costs of cleaning

 6-1     the crime scene; and

 6-2                       (G)  reasonable replacement costs for clothing,

 6-3     bedding, or property of the victim seized as evidence or rendered

 6-4     unusable as a result of the criminal investigation.

 6-5                 (10)  "Personal injury" means physical or mental harm.

 6-6                 (11)  "Victim" means, except as provided by Subsection

 6-7     (c):

 6-8                       (A)  an individual who:

 6-9                             (i)  suffers personal injury or death as a

6-10     result of criminally injurious conduct [directed at the individual]

6-11     or as a result of actions taken by the individual as an intervenor,

6-12     if the conduct or actions occurred in this state; and

6-13                             (ii)  is a resident of this state, another

6-14     state of the United States, the District of Columbia, the

6-15     Commonwealth of Puerto Rico, or a possession or territory of the

6-16     United States; [or]

6-17                       (B)  an individual who:

6-18                             (i)  suffers personal injury or death as a

6-19     result of criminally injurious conduct [directed at the individual]

6-20     or as a result of actions taken by the individual as an intervenor,

6-21     if the conduct or actions occurred in a state or country that does

6-22     not have a crime victims' compensation program that meets the

6-23     requirements of Section 1403(b), Crime Victims Compensation Act of

6-24     1984 (42 U.S.C. Section 10602(b));

6-25                             (ii)  is a resident of this state; and

6-26                             (iii)  would be entitled to compensation

6-27     under this subchapter if the criminally injurious conduct or

 7-1     actions had occurred in this state; or

 7-2                       (C)  an individual who:

 7-3                             (i)  suffers personal injury or death as a

 7-4     result of criminally injurious conduct caused by an act of

 7-5     international terrorism as defined by 18 U.S.C. Section 2331

 7-6     committed outside of the United States; and

 7-7                             (ii)  is a resident of this state.

 7-8           (b)  In this subchapter "claimant" does not include a service

 7-9     provider.

7-10           [(c)  In this subchapter "victim" does not include:]

7-11                 [(1)  a peace officer;]

7-12                 [(2)  a firefighter; or]

7-13                 [(3)  another individual whose employment includes the

7-14     duty to protect the public while acting in the course and scope of

7-15     the individual's employment.]

7-16           Art. 56.34.  Compensation.  (a)  The attorney general shall

7-17     award compensation for pecuniary loss arising from criminally

7-18     injurious conduct if the attorney general is satisfied by a

7-19     preponderance of the evidence that the requirements of this

7-20     subchapter are met.

7-21           (b)  The attorney general, shall establish whether, as a

7-22     direct result of criminally injurious conduct, a claimant or victim

7-23     suffered personal injury or death that resulted in a pecuniary loss

7-24     for which the claimant or victim is not compensated from a

7-25     collateral source.

7-26           (c)  The attorney general shall award compensation for health

7-27     care services according to the medical fee guidelines prescribed by

 8-1     Subtitle A, Title 5, Labor Code.

 8-2           (d)  The attorney general, a claimant, or a victim is not

 8-3     liable for health care service charges in excess of the medical fee

 8-4     guidelines.  A health care provider shall accept compensation from

 8-5     the attorney general as payment in full for the charges unless an

 8-6     investigation of the charges by the attorney general determines

 8-7     that there is a reasonable health care justification for the

 8-8     deviation from the guidelines.

 8-9           (e)  A claimant or victim is not liable for the balance of

8-10     service charges left as a result of an adjustment of payment for

8-11     the charges under Article 56.58.

8-12           (f)  The compensation to victims of crime fund and the

8-13     compensation to victims of crime auxiliary fund are the payers of

8-14     last resort.

8-15           Art. 56.36.  Application.  (a)  An applicant for compensation

8-16     under this subchapter must apply in writing on [in] a form [that

8-17     conforms substantially to that] prescribed by the attorney general.

8-18           (b)  An application must be verified and must contain:

8-19                 (1)  the date on which the criminally injurious conduct

8-20     occurred;

8-21                 (2)  a description of the nature and circumstances of

8-22     the criminally injurious conduct;

8-23                 (3)  a complete financial statement, including:

8-24                       (A)  the cost of medical care or burial expenses

8-25     and the loss of wages or support the claimant or victim has

8-26     incurred or will incur; and

8-27                       (B)  the extent to which the claimant or victim

 9-1     has been indemnified for those expenses from a collateral source;

 9-2                 (4)  if appropriate, a statement indicating the extent

 9-3     of a disability resulting from the injury incurred;

 9-4                 (5)  an authorization permitting the attorney general

 9-5     to verify the contents of the application; and

 9-6                 (6)  other information the attorney general requires.

 9-7           Art. 56.37.  Time for Filing.  (a)  Except as otherwise

 9-8     provided by this article, a claimant or victim must file an

 9-9     application not later than three years from the date [the first

9-10     anniversary] of the criminally injurious conduct.

9-11           (b)  The attorney general may extend the time for filing for

9-12     good cause shown by the claimant or victim.

9-13           (c)  If the victim is a child, the application must be filed

9-14     within three years from the date the claimant or victim is made

9-15     aware of the crime but not after the child is 21 years of age.

9-16     [Subsection (a) does not apply to a claimant or victim if:]

9-17                 [(1)  the victim is a child; or]

9-18                 [(2)  the claimant or victim is an immediate family

9-19     member or household member of a child who is the victim, and the

9-20     immediate family member or household member, as the direct result

9-21     of the criminally injurious conduct, requires psychological or

9-22     psychiatric counseling.]

9-23           (d)  If a claimant or victim presents medically documented

9-24     evidence of a physical or mental incapacity that was incurred by

9-25     the claimant or victim as a result of the criminally injurious

9-26     conduct and that reasonably prevented the claimant or victim from

9-27     filing the application within the limitations period under

 10-1    Subsection (a), the period of the incapacity is not included.

 10-2          [(e)  If the victim is a child, the application must be filed

 10-3    within one year from the date the claimant or victim is made aware

 10-4    of the crime but not after the child is 19 years of age.]

 10-5          Art. 56.41.  Approval of Claim.  (a)  The attorney general

 10-6    shall approve an application for compensation under this subchapter

 10-7    if the attorney general finds by a preponderance of the evidence

 10-8    that grounds for compensation under this subchapter exist.

 10-9          (b)  The attorney general shall deny an application for

10-10    compensation under this subchapter if:

10-11                (1)  the criminally injurious conduct is not reported

10-12    as provided by Article 56.46;

10-13                (2)  the application is not made in the manner provided

10-14    by Articles 56.36 and 56.37;

10-15                (3)  the claimant or victim knowingly and willingly

10-16    participated in the criminally injurious conduct;

10-17                (4)  the claimant or victim is the offender or an

10-18    accomplice of the offender;

10-19                (5)  an award of compensation to the claimant or victim

10-20    would benefit the offender or an accomplice of the offender; [or]

10-21                (6)  the claimant or victim was incarcerated in a penal

10-22    institution, as defined by Section 1.07, Penal Code, at the time

10-23    the offense was committed; or

10-24                (7)  the claimant or victim knowingly or intentionally

10-25    submits false or forged information to the attorney general.

10-26          (c)  Except as provided by rules adopted by the attorney

10-27    general to prevent the unjust enrichment of an offender, the

 11-1    attorney general may not deny an award otherwise payable to a

 11-2    claimant or victim because the claimant or victim:

 11-3                (1)  is an immediate family member of the offender; or

 11-4                (2)  resides in the same household as the offender.

 11-5          Art. 56.42.  Limits on Compensation.  (a)  Except as

 11-6    otherwise provided by this article, awards payable to a victim and

 11-7    all other claimants sustaining pecuniary loss because of injury or

 11-8    death of that victim may not exceed $50,000 [$25,000] in the

 11-9    aggregate.

11-10          (b)  In addition to an award payable under Subsection (a),

11-11    the attorney general may award an additional $50,000 [$25,000] for

11-12    extraordinary pecuniary losses, if the personal injury to a victim

11-13    is catastrophic and results in a total and permanent disability to

11-14    the victim, for lost wages and reasonable and necessary costs of:

11-15                (1)  making a home or automobile accessible;

11-16                (2)  obtaining job training and vocational

11-17    rehabilitation;

11-18                (3)  training in the use of special appliances; and

11-19                (4)  receiving home health care.

11-20          (c)  The attorney general may by rule establish limitations

11-21    on any other pecuniary loss compensated for under this subchapter.

11-22          Art. 56.44.  Payments.  (a)  The attorney general may provide

11-23    for the payment of an award in a lump sum or in installments.  The

11-24    attorney general shall provide that the part of an award equal to

11-25    the amount of pecuniary loss accrued to the date of the award be

11-26    paid in a lump sum.  Except as provided in Subsection (b), the

11-27    attorney general shall pay the part of an award for allowable

 12-1    expense that accrues after the award is made in installments.

 12-2          (b)  At the request of the claimant or victim, the attorney

 12-3    general may provide that an award for future pecuniary loss be paid

 12-4    in a lump sum if the attorney general finds that:

 12-5                (1)  paying the award in a lump sum will promote the

 12-6    interests of the claimant or victim; or

 12-7                (2)  the present value of all future pecuniary loss

 12-8    does not exceed $1,000.

 12-9          (c)  The attorney general may not provide for an award for

12-10    future pecuniary loss payable in installments for a period for

12-11    which the attorney general cannot reasonably determine the future

12-12    pecuniary loss.

12-13          (d)  The attorney general may make payments only to an

12-14    individual who is a claimant or a victim or to a provider on the

12-15    individual's behalf.

12-16          Art. 56.45.  Denial or Reduction of Award.  The attorney

12-17    general may deny or reduce an award otherwise payable:

12-18                (1)  if the claimant or victim has not substantially

12-19    cooperated with an appropriate law enforcement agency;

12-20                (2)  if the claimant or victim bears a share of the

12-21    responsibility for the act or omission giving rise to the claim

12-22    because of the claimant's or victim's behavior;

12-23                (3)  to the extent that pecuniary loss is recouped from

12-24    [another person, including] a collateral source; or

12-25                (4)  if the claimant or victim was engaging in an

12-26    activity that at the time of the criminally injurious conduct was

12-27    prohibited by law or a rule made under law.

 13-1          Art. 56.46.  Reporting of Crime.  (a)  Except as otherwise

 13-2    provided by this article, a claimant or victim may not file an

 13-3    application unless the victim reports the criminally injurious

 13-4    conduct to the appropriate state or local public safety or law

 13-5    enforcement agency within a reasonable period of time, but not so

 13-6    late as to interfere with or hamper the investigation and

 13-7    prosecution of the crime [not later than 72 hours] after the

 13-8    criminally injurious conduct is committed.

 13-9          (b)  The attorney general may extend the time for reporting

13-10    the criminally injurious conduct if the attorney general determines

13-11    that the extension is justified by extraordinary circumstances.

13-12          (c)  Subsection (a) does not apply if the victim is a child.

13-13          Art. 56.47.  Reconsideration.  (a)  The attorney general, on

13-14    the attorney general's own motion or on request of a claimant or

13-15    victim, may reconsider:

13-16                (1)  a decision to make or deny an award; or

13-17                (2)  the amount of an award.

13-18          (b)  At least annually, the attorney general shall reconsider

13-19    each award being paid in installments.

13-20          (c)  An order on reconsideration may require a refund of an

13-21    award if:

13-22                (1)  the award was obtained by fraud or mistake; or

13-23                (2)  newly discovered evidence shows the claimant or

13-24    victim to be ineligible for the award under Article 56.41 or 56.45.

13-25          [(d)  The right of reconsideration does not affect the

13-26    finality of an attorney general decision for the purpose of

13-27    judicial review.]

 14-1          Art. 56.48.  Judicial Review.  (a)  Not later than the 40th

 14-2    [20th] day after the attorney general renders a final decision, a

 14-3    claimant or victim may file with the attorney general a notice of

 14-4    dissatisfaction with the decision.  Not later than the 40th [20th]

 14-5    day after the claimant or victim gives notice, the claimant or

 14-6    victim shall bring suit in the district court having jurisdiction

 14-7    in the county in which:

 14-8                (1)  the injury or death occurred;

 14-9                (2)  the victim resided at the time the injury or death

14-10    occurred; or

14-11                (3)  if the victim resided out of state at the time of

14-12    the injury or death, in the county where the injury or death

14-13    occurred or in a district court of Travis County.

14-14          (b)  While judicial review of a decision by the attorney

14-15    general is pending, the attorney general:

14-16                (1)  shall suspend payments to the claimant or victim;

14-17    and

14-18                (2)  may not reconsider the award.

14-19          (c)  The court shall determine the issues by trial de novo.

14-20    The burden of proof is on the party who filed the notice of

14-21    dissatisfaction.

14-22          (d)  A court may award not more than 25 percent of the total

14-23    recovery by the claimant or victim for attorney fees in the event

14-24    of review.

14-25          (e)  In computing a period under this article, if the last

14-26    day is a legal holiday or Sunday, the last day is not counted, and

14-27    the time is extended to include the next business day.

 15-1          Art. 56.54.  Funds.  (a)  The compensation to victims of

 15-2    crime fund and the compensation to victims of crime auxiliary fund

 15-3    are in the state treasury.

 15-4          (b)  Except as provided by Subsections (h) and (i), the [The]

 15-5    compensation to victims of crime fund may be used by the attorney

 15-6    general only for the payment of compensation to claimants or

 15-7    victims under this subchapter, the operation of the Crime Victims'

 15-8    Institute created by Chapter 412, Government Code, and other

 15-9    expenses in administering this subchapter.

15-10          (c)  Except as provided by Subsections (h) and (i), the [The]

15-11    compensation to victims of crime auxiliary fund may be used by the

15-12    attorney general only for the payment of compensation to claimants

15-13    or victims under this subchapter.

15-14          (d)  The attorney general may not make compensation payments

15-15    in excess of the amount of money available from the combined funds.

15-16          (e)  General revenues may not be used for payments under this

15-17    subchapter.

15-18          (f)  The office of the attorney general is authorized to

15-19    accept gifts, grants, and donations to be credited to the

15-20    compensation to victims of crime fund and compensation to victims

15-21    of crime auxiliary fund and shall file annually with the governor

15-22    and the presiding officer of each house of the legislature a

15-23    complete and detailed written report accounting for all gifts,

15-24    grants, and donations received and disbursed, used, or maintained

15-25    by the office for the attorney general that are credited to these

15-26    funds.

15-27          (g)  Money in the compensation to victims of crime fund or in

 16-1    the compensation to victims of crime auxiliary fund may be used

 16-2    only as provided by this subchapter and is not available for any

 16-3    other purpose.  Section 403.095, Government Code, does not apply to

 16-4    the fund.

 16-5          (h)  An amount of money deposited to the credit of the

 16-6    compensation to victims of crime fund not to exceed one-quarter of

 16-7    the amount disbursed from that fund in the form of compensation

 16-8    payments during a fiscal year shall be carried forward into the

 16-9    next succeeding fiscal year and applied toward the amount listed in

16-10    the next succeeding fiscal year's method of financing.

16-11          (i)  If the sums available in the compensation to victims of

16-12    crime fund are sufficient in a fiscal year to make all compensation

16-13    payments, the attorney general may retain any portion of the fund

16-14    that was deposited during the fiscal year that was in excess of

16-15    compensation payments made during that fiscal year as an emergency

16-16    reserve for the next fiscal year.  Such emergency reserve may not

16-17    exceed $10,000,000.  The emergency reserve fund may be used only to

16-18    make compensation awards in claims and for providing emergency

16-19    relief and assistance, including crisis intervention, emergency

16-20    housing, travel, food, or expenses and technical assistance

16-21    expenses incurred in the implementation of this subsection in

16-22    incidents resulting from an act of mass violence or from an act of

16-23    international terrorism as defined by 18 U.S.C. Section 2331,

16-24    occurring in the state or for Texas residents injured or killed in

16-25    an act of terrorism outside of the United States.

16-26          SECTION 2.  (a)  The changes in law made by this Act apply

16-27    only to an application for compensation for criminally injurious

 17-1    conduct occurring on or after the effective date of this Act.  For

 17-2    purposes of this section, conduct occurs before the effective date

 17-3    of this Act if any element of the offense that is included in the

 17-4    criminally injurious conduct occurs before that date.

 17-5          (b)  An application for compensation based on an offense

 17-6    committed before the effective date of this Act is covered by the

 17-7    law in effect when the offense was committed, and the former law is

 17-8    continued in effect for that purpose.

 17-9          SECTION 3.  This Act takes effect September 1, 1997.

17-10          SECTION 4.  The importance of this legislation and the

17-11    crowded condition of the calendars in both houses create an

17-12    emergency and an imperative public necessity that the

17-13    constitutional rule requiring bills to be read on three several

17-14    days in each house be suspended, and this rule is hereby suspended.