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 and necessary travel expenses 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 and participation in or attendance at
5-21 any postconviction or postadjudication proceeding relating to
5-22 criminally injurious conduct;
5-23 (C) care of a child or dependent [enabling a
5-24 victim, a victim's spouse, or a legal guardian of the victim, but
5-25 not all of them, to continue or engage in gainful employment];
5-26 (D) funeral and burial expenses;
5-27 (E) loss of support to a dependent, consistent
6-1 with Article 56.41(b)(5) [in the event of the death of the victim];
6-2 (F) reasonable and necessary costs of cleaning
6-3 the crime scene; and
6-4 (G) reasonable replacement costs for clothing,
6-5 bedding, or property of the victim seized as evidence or rendered
6-6 unusable as a result of the criminal investigation.
6-7 (10) "Personal injury" means physical or mental harm.
6-8 (11) "Victim" means, except as provided by Subsection
6-9 (c):
6-10 (A) an individual who:
6-11 (i) suffers personal injury or death as a
6-12 result of criminally injurious conduct [directed at the individual]
6-13 or as a result of actions taken by the individual as an intervenor,
6-14 if the conduct or actions occurred in this state; and
6-15 (ii) is a resident of this state, another
6-16 state of the United States, the District of Columbia, the
6-17 Commonwealth of Puerto Rico, or a possession or territory of the
6-18 United States; [or]
6-19 (B) an individual who:
6-20 (i) suffers personal injury or death as a
6-21 result of criminally injurious conduct [directed at the individual]
6-22 or as a result of actions taken by the individual as an intervenor,
6-23 if the conduct or actions occurred in a state or country that does
6-24 not have a crime victims' compensation program that meets the
6-25 requirements of Section 1403(b), Crime Victims Compensation Act of
6-26 1984 (42 U.S.C. Section 10602(b));
6-27 (ii) is a resident of this state; and
7-1 (iii) would be entitled to compensation
7-2 under this subchapter if the criminally injurious conduct or
7-3 actions had occurred in this state; or
7-4 (C) an individual who:
7-5 (i) suffers personal injury or death as a
7-6 result of criminally injurious conduct caused by an act of
7-7 international terrorism as defined by 18 U.S.C. Section 2331
7-8 committed outside of the United States; and
7-9 (ii) is a resident of this state.
7-10 (b) In this subchapter "claimant" does not include a service
7-11 provider.
7-12 [(c) In this subchapter "victim" does not include:]
7-13 [(1) a peace officer;]
7-14 [(2) a firefighter; or]
7-15 [(3) another individual whose employment includes the
7-16 duty to protect the public while acting in the course and scope of
7-17 the individual's employment.]
7-18 Art. 56.34. Compensation. (a) The attorney general shall
7-19 award compensation for pecuniary loss arising from criminally
7-20 injurious conduct if the attorney general is satisfied by a
7-21 preponderance of the evidence that the requirements of this
7-22 subchapter are met.
7-23 (b) The attorney general, shall establish whether, as a
7-24 direct result of criminally injurious conduct, a claimant or victim
7-25 suffered personal injury or death that resulted in a pecuniary loss
7-26 for which the claimant or victim is not compensated from a
7-27 collateral source.
8-1 (c) The attorney general shall award compensation for health
8-2 care services according to the medical fee guidelines prescribed by
8-3 Subtitle A, Title 5, Labor Code.
8-4 (d) The attorney general, a claimant, or a victim is not
8-5 liable for health care service charges in excess of the medical fee
8-6 guidelines. A health care provider shall accept compensation from
8-7 the attorney general as payment in full for the charges unless an
8-8 investigation of the charges by the attorney general determines
8-9 that there is a reasonable health care justification for the
8-10 deviation from the guidelines.
8-11 (e) A claimant or victim is not liable for the balance of
8-12 service charges left as a result of an adjustment of payment for
8-13 the charges under Article 56.58.
8-14 (f) The compensation to victims of crime fund and the
8-15 compensation to victims of crime auxiliary fund are the payers of
8-16 last resort.
8-17 Art. 56.36. Application. (a) An applicant for compensation
8-18 under this subchapter must apply in writing on [in] a form [that
8-19 conforms substantially to that] prescribed by the attorney general.
8-20 (b) An application must be verified and must contain:
8-21 (1) the date on which the criminally injurious conduct
8-22 occurred;
8-23 (2) a description of the nature and circumstances of
8-24 the criminally injurious conduct;
8-25 (3) a complete financial statement, including:
8-26 (A) the cost of medical care or burial expenses
8-27 and the loss of wages or support the claimant or victim has
9-1 incurred or will incur; and
9-2 (B) the extent to which the claimant or victim
9-3 has been indemnified for those expenses from a collateral source;
9-4 (4) if appropriate, a statement indicating the extent
9-5 of a disability resulting from the injury incurred;
9-6 (5) an authorization permitting the attorney general
9-7 to verify the contents of the application; and
9-8 (6) other information the attorney general requires.
9-9 Art. 56.37. Time for Filing. (a) Except as otherwise
9-10 provided by this article, a claimant or victim must file an
9-11 application not later than three years from the date [the first
9-12 anniversary] of the criminally injurious conduct.
9-13 (b) The attorney general may extend the time for filing for
9-14 good cause shown by the claimant or victim.
9-15 (c) If the victim is a child, the application must be filed
9-16 within three years from the date the claimant or victim is made
9-17 aware of the crime but not after the child is 21 years of age.
9-18 [Subsection (a) does not apply to a claimant or victim if:]
9-19 [(1) the victim is a child; or]
9-20 [(2) the claimant or victim is an immediate family
9-21 member or household member of a child who is the victim, and the
9-22 immediate family member or household member, as the direct result
9-23 of the criminally injurious conduct, requires psychological or
9-24 psychiatric counseling.]
9-25 (d) If a claimant or victim presents medically documented
9-26 evidence of a physical or mental incapacity that was incurred by
9-27 the claimant or victim as a result of the criminally injurious
10-1 conduct and that reasonably prevented the claimant or victim from
10-2 filing the application within the limitations period under
10-3 Subsection (a), the period of the incapacity is not included.
10-4 [(e) If the victim is a child, the application must be filed
10-5 within one year from the date the claimant or victim is made aware
10-6 of the crime but not after the child is 19 years of age.]
10-7 Art. 56.41. Approval of Claim. (a) The attorney general
10-8 shall approve an application for compensation under this subchapter
10-9 if the attorney general finds by a preponderance of the evidence
10-10 that grounds for compensation under this subchapter exist.
10-11 (b) The attorney general shall deny an application for
10-12 compensation under this subchapter if:
10-13 (1) the criminally injurious conduct is not reported
10-14 as provided by Article 56.46;
10-15 (2) the application is not made in the manner provided
10-16 by Articles 56.36 and 56.37;
10-17 (3) the claimant or victim knowingly and willingly
10-18 participated in the criminally injurious conduct;
10-19 (4) the claimant or victim is the offender or an
10-20 accomplice of the offender;
10-21 (5) an award of compensation to the claimant or victim
10-22 would benefit the offender or an accomplice of the offender; [or]
10-23 (6) the claimant or victim was incarcerated in a penal
10-24 institution, as defined by Section 1.07, Penal Code, at the time
10-25 the offense was committed; or
10-26 (7) the claimant or victim knowingly or intentionally
10-27 submits false or forged information to the attorney general.
11-1 (c) Except as provided by rules adopted by the attorney
11-2 general to prevent the unjust enrichment of an offender, the
11-3 attorney general may not deny an award otherwise payable to a
11-4 claimant or victim because the claimant or victim:
11-5 (1) is an immediate family member of the offender; or
11-6 (2) resides in the same household as the offender.
11-7 Art. 56.42. Limits on Compensation. (a) Except as
11-8 otherwise provided by this article, awards payable to a victim and
11-9 all other claimants sustaining pecuniary loss because of injury or
11-10 death of that victim may not exceed $50,000 [$25,000] in the
11-11 aggregate.
11-12 (b) In addition to an award payable under Subsection (a),
11-13 the attorney general may award an additional $50,000 [$25,000] for
11-14 extraordinary pecuniary losses, if the personal injury to a victim
11-15 is catastrophic and results in a total and permanent disability to
11-16 the victim, for lost wages and reasonable and necessary costs of:
11-17 (1) making a home or automobile accessible;
11-18 (2) obtaining job training and vocational
11-19 rehabilitation;
11-20 (3) training in the use of special appliances; and
11-21 (4) receiving home health care.
11-22 (c) The attorney general may by rule establish limitations
11-23 on any other pecuniary loss compensated for under this subchapter.
11-24 Art. 56.44. Payments. (a) The attorney general may provide
11-25 for the payment of an award in a lump sum or in installments. The
11-26 attorney general shall provide that the part of an award equal to
11-27 the amount of pecuniary loss accrued to the date of the award be
12-1 paid in a lump sum. Except as provided in Subsection (b), the
12-2 attorney general shall pay the part of an award for allowable
12-3 expense that accrues after the award is made in installments.
12-4 (b) At the request of the claimant or victim, the attorney
12-5 general may provide that an award for future pecuniary loss be paid
12-6 in a lump sum if the attorney general finds that:
12-7 (1) paying the award in a lump sum will promote the
12-8 interests of the claimant or victim; or
12-9 (2) the present value of all future pecuniary loss
12-10 does not exceed $1,000.
12-11 (c) The attorney general may not provide for an award for
12-12 future pecuniary loss payable in installments for a period for
12-13 which the attorney general cannot reasonably determine the future
12-14 pecuniary loss.
12-15 (d) The attorney general may make payments only to an
12-16 individual who is a claimant or a victim or to a provider on the
12-17 individual's behalf.
12-18 Art. 56.45. Denial or Reduction of Award. The attorney
12-19 general may deny or reduce an award otherwise payable:
12-20 (1) if the claimant or victim has not substantially
12-21 cooperated with an appropriate law enforcement agency;
12-22 (2) if the claimant or victim bears a share of the
12-23 responsibility for the act or omission giving rise to the claim
12-24 because of the claimant's or victim's behavior;
12-25 (3) to the extent that pecuniary loss is recouped from
12-26 [another person, including] a collateral source; or
12-27 (4) if the claimant or victim was engaging in an
13-1 activity that at the time of the criminally injurious conduct was
13-2 prohibited by law or a rule made under law.
13-3 Art. 56.46. Reporting of Crime. (a) Except as otherwise
13-4 provided by this article, a claimant or victim may not file an
13-5 application unless the victim reports the criminally injurious
13-6 conduct to the appropriate state or local public safety or law
13-7 enforcement agency within a reasonable period of time, but not so
13-8 late as to interfere with or hamper the investigation and
13-9 prosecution of the crime [not later than 72 hours] after the
13-10 criminally injurious conduct is committed.
13-11 (b) The attorney general may extend the time for reporting
13-12 the criminally injurious conduct if the attorney general determines
13-13 that the extension is justified by extraordinary circumstances.
13-14 (c) Subsection (a) does not apply if the victim is a child.
13-15 Art. 56.47. Reconsideration. (a) The attorney general, on
13-16 the attorney general's own motion or on request of a claimant or
13-17 victim, may reconsider:
13-18 (1) a decision to make or deny an award; or
13-19 (2) the amount of an award.
13-20 (b) At least annually, the attorney general shall reconsider
13-21 each award being paid in installments.
13-22 (c) An order on reconsideration may require a refund of an
13-23 award if:
13-24 (1) the award was obtained by fraud or mistake; or
13-25 (2) newly discovered evidence shows the claimant or
13-26 victim to be ineligible for the award under Article 56.41 or 56.45.
13-27 [(d) The right of reconsideration does not affect the
14-1 finality of an attorney general decision for the purpose of
14-2 judicial review.]
14-3 Art. 56.48. Judicial Review. (a) Not later than the 40th
14-4 [20th] day after the attorney general renders a final decision, a
14-5 claimant or victim may file with the attorney general a notice of
14-6 dissatisfaction with the decision. Not later than the 40th [20th]
14-7 day after the claimant or victim gives notice, the claimant or
14-8 victim shall bring suit in the district court having jurisdiction
14-9 in the county in which:
14-10 (1) the injury or death occurred;
14-11 (2) the victim resided at the time the injury or death
14-12 occurred; or
14-13 (3) if the victim resided out of state at the time of
14-14 the injury or death, in the county where the injury or death
14-15 occurred or in a district court of Travis County.
14-16 (b) While judicial review of a decision by the attorney
14-17 general is pending, the attorney general:
14-18 (1) shall suspend payments to the claimant or victim;
14-19 and
14-20 (2) may not reconsider the award.
14-21 (c) The court shall determine the issues by trial de novo.
14-22 The burden of proof is on the party who filed the notice of
14-23 dissatisfaction.
14-24 (d) A court may award not more than 25 percent of the total
14-25 recovery by the claimant or victim for attorney fees in the event
14-26 of review.
14-27 (e) In computing a period under this article, if the last
15-1 day is a legal holiday or Sunday, the last day is not counted, and
15-2 the time is extended to include the next business day.
15-3 Art. 56.54. Funds. (a) The compensation to victims of
15-4 crime fund and the compensation to victims of crime auxiliary fund
15-5 are in the state treasury.
15-6 (b) Except as provided by Subsections (h) and (i), the [The]
15-7 compensation to victims of crime fund may be used by the attorney
15-8 general only for the payment of compensation to claimants or
15-9 victims under this subchapter, the operation of the Crime Victims'
15-10 Institute created by Chapter 412, Government Code, and other
15-11 expenses in administering this subchapter.
15-12 (c) Except as provided by Subsections (h) and (i), the [The]
15-13 compensation to victims of crime auxiliary fund may be used by the
15-14 attorney general only for the payment of compensation to claimants
15-15 or victims under this subchapter.
15-16 (d) The attorney general may not make compensation payments
15-17 in excess of the amount of money available from the combined funds.
15-18 (e) General revenues may not be used for payments under this
15-19 subchapter.
15-20 (f) The office of the attorney general is authorized to
15-21 accept gifts, grants, and donations to be credited to the
15-22 compensation to victims of crime fund and compensation to victims
15-23 of crime auxiliary fund and shall file annually with the governor
15-24 and the presiding officer of each house of the legislature a
15-25 complete and detailed written report accounting for all gifts,
15-26 grants, and donations received and disbursed, used, or maintained
15-27 by the office for the attorney general that are credited to these
16-1 funds.
16-2 (g) Money in the compensation to victims of crime fund or in
16-3 the compensation to victims of crime auxiliary fund may be used
16-4 only as provided by this subchapter and is not available for any
16-5 other purpose. Section 403.095, Government Code, does not apply to
16-6 the fund.
16-7 (h) An amount of money deposited to the credit of the
16-8 compensation to victims of crime fund not to exceed one-quarter of
16-9 the amount disbursed from that fund in the form of compensation
16-10 payments during a fiscal year shall be carried forward into the
16-11 next succeeding fiscal year and applied toward the amount listed in
16-12 the next succeeding fiscal year's method of financing.
16-13 (i) If the sums available in the compensation to victims of
16-14 crime fund are sufficient in a fiscal year to make all compensation
16-15 payments, the attorney general may retain any portion of the fund
16-16 that was deposited during the fiscal year that was in excess of
16-17 compensation payments made during that fiscal year as an emergency
16-18 reserve for the next fiscal year. Such emergency reserve may not
16-19 exceed $10,000,000. The emergency reserve fund may be used only to
16-20 make compensation awards in claims and for providing emergency
16-21 relief and assistance, including crisis intervention, emergency
16-22 housing, travel, food, or expenses and technical assistance
16-23 expenses incurred in the implementation of this subsection in
16-24 incidents resulting from an act of mass violence or from an act of
16-25 international terrorism as defined by 18 U.S.C. Section 2331,
16-26 occurring in the state or for Texas residents injured or killed in
16-27 an act of terrorism outside of the United States.
17-1 SECTION 2. (a) The changes in law made by this Act apply
17-2 only to an application for compensation for criminally injurious
17-3 conduct occurring on or after the effective date of this Act. For
17-4 purposes of this section, conduct occurs before the effective date
17-5 of this Act if any element of the offense that is included in the
17-6 criminally injurious conduct occurs before that date.
17-7 (b) An application for compensation based on an offense
17-8 committed before the effective date of this Act is covered by the
17-9 law in effect when the offense was committed, and the former law is
17-10 continued in effect for that purpose.
17-11 SECTION 3. This Act takes effect September 1, 1997.
17-12 SECTION 4. The importance of this legislation and the
17-13 crowded condition of the calendars in both houses create an
17-14 emergency and an imperative public necessity that the
17-15 constitutional rule requiring bills to be read on three several
17-16 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3062 was passed by the House on April
29, 1997, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 3062 on May 28, 1997, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 3062 was passed by the Senate, with
amendments, on May 26, 1997, by the following vote: Yeas 31, Nays
0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor