By Hightower, 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 and making an appropriation.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Articles 56.32, 56.34, 56.36, 56.37, 56.41,
1-7 56.42, 56.44, 56.45, 56.46, 56.47, 56.48, and 56.54 of Subchapter
1-8 B, Chapter 56, Code of Criminal Procedure, are amended to read as
1-9 follows:
1-10 Art. 56.32. Definitions. (a) In this subchapter:
1-11 (1) "Child" means an individual younger than 18 years
1-12 of age who:
1-13 (A) is not married; or
1-14 (B) has not had the disabilities of minority
1-15 removed for general purposes under Chapter 31, Family Code.
1-16 (2) "Claimant" means, except as provided by Subsection
1-17 (b), any of the following individuals who is entitled to file or
1-18 has filed a claim for compensation under this subchapter:
1-19 (A) an authorized individual acting on behalf of
1-20 a victim;
1-21 (B) an individual who legally assumes the
1-22 obligation or who voluntarily pays medical or burial expenses of a
1-23 victim incurred as a result of the criminally injurious conduct of
1-24 another;
2-1 (C) a dependent of a victim who died as a result
2-2 of criminally injurious conduct;
2-3 (D) an immediate family member or household
2-4 member of a victim who[:]
2-5 [(i) is not a dependent of the victim; and]
2-6 [(ii)] requires psychiatric care or
2-7 counseling as a result of the criminally injurious conduct [of
2-8 another who injured the victim]; or
2-9 (E) an authorized individual acting on behalf of
2-10 an individual who is described by Subdivision (C) or (D) and who is
2-11 a child.
2-12 (3) "Collateral source" means any of the following
2-13 sources of benefits or advantages for pecuniary loss that a
2-14 claimant or victim has received or that is readily available to the
2-15 claimant or victim from:
2-16 (A) the offender under an order of restitution
2-17 to the claimant or victim imposed by a court as a condition of
2-18 community supervision;
2-19 (B) the United States, a federal agency, a state
2-20 or any of its political subdivisions, or an instrumentality of two
2-21 or more states, unless the law providing for the benefits or
2-22 advantages makes them in excess of or secondary to benefits under
2-23 this subchapter;
2-24 (C) social security, Medicare, or Medicaid;
2-25 (D) [state-required temporary nonoccupational
2-26 disability insurance] another state's or another country's crime
2-27 victims' compensation program;
3-1 (E) workers' compensation;
3-2 (F) an employer's wage continuation program, not
3-3 including vacation and sick leave benefits;
3-4 (G) proceeds of an insurance contract payable to
3-5 or on behalf of the claimant or victim for loss that the claimant
3-6 or victim sustained because of the criminally injurious conduct;
3-7 (H) a contract or self-funded program providing
3-8 [prepaid] hospital and other health care services or benefits [for
3-9 disability];
3-10 (I) proceeds awarded to the claimant or victim
3-11 as a result of third-party litigation[; or]
3-12 [(J) proceeds of a life insurance contract
3-13 payable to the claimant or victim].
3-14 (4) "Criminally injurious conduct" means conduct that:
3-15 (A) occurs or is attempted;
3-16 (B) poses a substantial threat of personal
3-17 injury or death;
3-18 (C) is punishable by fine, imprisonment, or
3-19 death, or would be punishable by fine, imprisonment, or death if
3-20 the person engaging in the conduct possessed capacity to commit the
3-21 conduct; and
3-22 (D) does not arise out of the ownership,
3-23 maintenance, or use of a motor vehicle, aircraft, or water vehicle,
3-24 unless the conduct is intended to cause personal injury or death or
3-25 the conduct is in violation of Texas Transportation Code, Section
3-26 550.021, [Section 38, Uniform Act Regulating Traffic on Highways
3-27 (Article 6701d, Vernon's Texas Civil Statutes)] or one or more of
4-1 the following sections of the Penal Code:
4-2 (i) Section 19.04 (manslaughter);
4-3 (ii) Section 19.05 (criminally negligent
4-4 homicide);
4-5 (iii) Section 22.02 (aggravated assault);
4-6 (iv) Section 49.04 (driving while
4-7 intoxicated);
4-8 (v) Section 49.05 (flying while
4-9 intoxicated);
4-10 (vi) Section 49.06 (boating while
4-11 intoxicated);
4-12 (vii) Section 49.07 (intoxication
4-13 assault); or
4-14 (viii) Section 49.08 (intoxication
4-15 manslaughter).
4-16 (5) "Dependent" means:
4-17 (A) a surviving spouse;
4-18 (B) a person who is a dependent, within the
4-19 meaning of the Internal Revenue Code, of a [deceased] victim; [or]
4-20 and
4-21 (C) a posthumous child of a deceased victim.
4-22 (6) "Household member" means an individual who resided
4-23 in the same permanent household as the victim at the time that the
4-24 criminally injurious conduct occurred and who is related by
4-25 consanguinity or affinity to the victim.
4-26 (7) "Immediate family member" means an individual who
4-27 is the father, mother, sister, brother, daughter, son, or spouse of
5-1 a victim, including family members who are related by consanguinity
5-2 within the second degree or by affinity within the second degree [a
5-3 stepparent or stepchild].
5-4 (8) "Intervenor" means an individual who goes to the
5-5 aid of another and is killed or injured in the good faith effort to
5-6 prevent criminally injurious conduct, to apprehend a person
5-7 reasonably suspected of having engaged in criminally injurious
5-8 conduct, or to aid a peace officer.
5-9 (9) "Pecuniary loss" means the amount of expense
5-10 reasonably and necessarily incurred as a result of personal injury
5-11 or death for:
5-12 (A) medical, hospital, nursing, or psychiatric
5-13 care or counseling, or physical therapy;
5-14 (B) actual loss of past earnings and anticipated
5-15 loss of future earnings because of a disability resulting from the
5-16 personal injury, medically indicated services related to the crime,
5-17 or participation in or attendance at investigative, prosecutorial,
5-18 and judicial processes carried on by law enforcement agencies,
5-19 prosecutors, and the judiciary;
5-20 (C) care of a child or dependent [enabling a
5-21 victim, a victim's spouse, or a legal guardian of the victim, but
5-22 not all of them, to continue or engage in gainful employment];
5-23 (D) funeral and burial expenses;
5-24 (E) loss of support to a dependent, consistent
5-25 with Article 56.41(b)(5) [in the event of the death of the victim];
5-26 (F) reasonable and necessary costs of cleaning
5-27 the crime scene; and
6-1 (G) reasonable replacement costs for clothing,
6-2 bedding, or property of the victim seized as evidence or rendered
6-3 unusable as a result of the criminal investigation.
6-4 (10) "Personal injury" means physical or mental harm.
6-5 (11) "Victim" means[, except as provided by Subsection
6-6 (c)] an individual who:
6-7 (A) [an individual who:]
6-8 [(i)] suffers personal injury or death as
6-9 a result of criminally injurious conduct [directed at the
6-10 individual] or as a result of actions taken by the individual as an
6-11 intervenor, if the conduct or actions occurred in this state; and
6-12 [(ii)] is a resident of this state, another state of the United
6-13 States, the District of Columbia, the Commonwealth of Puerto Rico,
6-14 or a possession or territory of the United States; [or]
6-15 (B) [an individual who:]
6-16 (i) suffers personal injury or death as a
6-17 result of criminally injurious conduct [directed at the individual]
6-18 or as a result of actions taken by the individual as an intervenor,
6-19 if the conduct or actions occurred in a state or country that does
6-20 not have a crime victims' compensation program that meets the
6-21 requirements of Section 1403(b), Crime Victims Compensation Act of
6-22 1984 (42 U.S.C. Section 10602(b));
6-23 (ii) is a resident of this state; and
6-24 (iii) would be entitled to compensation
6-25 under this subchapter if the criminally injurious conduct or
6-26 actions had occurred in this state; or
6-27 (C)(i) suffers personal injury or death as a
7-1 result of criminally injurious conduct caused by an act of
7-2 terrorism, as defined in section 2331 of title 18, United States
7-3 Code, committed outside of the United States; and
7-4 (ii) is a resident of this state.
7-5 (b) In this subchapter "claimant" does not include a service
7-6 provider.
7-7 [(c) In this subchapter "victim" does not include:]
7-8 [(1) a peace officer;]
7-9 [(2) a firefighter; or]
7-10 [(3) another individual whose employment includes the
7-11 duty to protect the public while acting in the course and scope of
7-12 the individual's employment.]
7-13 Art. 56.34. Compensation. (a) The attorney general shall
7-14 award compensation for pecuniary loss arising from criminally
7-15 injurious conduct if the attorney general is satisfied by a
7-16 preponderance of the evidence that the requirements of this
7-17 subchapter are met.
7-18 (b) The attorney general shall establish whether, as a
7-19 direct result of criminally injurious conduct, a claimant or victim
7-20 suffered personal injury or death that resulted in a pecuniary loss
7-21 for which the claimant or victim is not compensated from a
7-22 collateral source.
7-23 (c) The attorney general shall award compensation for health
7-24 care services according to the medical fee guidelines prescribed by
7-25 Subtitle A, Title 5, Labor Code.
7-26 (d) The attorney general, a claimant, or a victim is not
7-27 liable for health care service charges in excess of the medical fee
8-1 guidelines. A health care provider shall accept compensation from
8-2 the attorney general as payment in full for the charges unless an
8-3 investigation of the charges by the attorney general determines
8-4 that there is a reasonable health care justification for the
8-5 deviation from the guidelines.
8-6 (e) A claimant or victim is not liable for the balance of
8-7 service charges left as a result of an adjustment of payment for
8-8 the charges under Article 56.58.
8-9 (f) The compensation to victims of crime fund and the
8-10 compensation to victims of crime auxiliary fund are the payers of
8-11 last resort.
8-12 Art. 56.36. Application. (a) An applicant for compensation
8-13 under this subchapter must apply in writing on [in] a form [that
8-14 conforms substantially to that] prescribed by the attorney general.
8-15 (b) An application must be verified and must contain:
8-16 (1) the date on which the criminally injurious conduct
8-17 occurred;
8-18 (2) a description of the nature and circumstances of
8-19 the criminally injurious conduct;
8-20 (3) a complete financial statement, including:
8-21 (A) the cost of medical care or burial expenses
8-22 and the loss of wages or support the claimant or victim has
8-23 incurred or will incur; and
8-24 (B) the extent to which the claimant or victim
8-25 has been indemnified for those expenses from a collateral source;
8-26 (4) if appropriate, a statement indicating the extent
8-27 of a disability resulting from the injury incurred;
9-1 (5) an authorization permitting the attorney general
9-2 to verify the contents of the application; and
9-3 (6) other information the attorney general requires.
9-4 Art. 56.37. Time for Filing. (a) Except as otherwise
9-5 provided by this article, a claimant or victim must file an
9-6 application not later than three (3) years from the date [the first
9-7 anniversary] of the criminally injurious conduct.
9-8 (b) The attorney general may extend the time for filing for
9-9 good cause shown by the claimant or victim.
9-10 (c) If the victim is a child, the application must be filed
9-11 within three (3) years from the date the claimant or victim is made
9-12 aware of the crime but not after the child is 21 years of age.
9-13 [Subsection (a) does not apply to a claimant or victim if:]
9-14 [(1) the victim is a child; or]
9-15 [(2) the claimant or victim is an immediate family
9-16 member or household member of a child who is the victim, and the
9-17 immediate family member or household member, as the direct result
9-18 of the criminally injurious conduct, requires psychological or
9-19 psychiatric counseling.]
9-20 (d) If a claimant or victim presents medically documented
9-21 evidence of a physical or mental incapacity that was incurred by
9-22 the claimant or victim as a result of the criminally injurious
9-23 conduct and that reasonably prevented the claimant or victim from
9-24 filing the application within the limitations period under
9-25 Subsection (a), the period of the incapacity is not included.
9-26 [(e) If the victim is a child, the application must be filed
9-27 within one year from the date the claimant or victim is made aware
10-1 of the crime but not after the child is 19 years of age.]
10-2 Art. 56.41. Approval of Claim. (a) The attorney general
10-3 shall approve an application for compensation under this subchapter
10-4 if the attorney general finds by a preponderance of the evidence
10-5 that grounds for compensation under this subchapter exist.
10-6 (b) The attorney general shall deny an application for
10-7 compensation under this subchapter if:
10-8 (1) the criminally injurious conduct is not reported
10-9 as provided by Article 56.46;
10-10 (2) the application is not made in the manner provided
10-11 by Articles 56.36 and 56.37;
10-12 (3) the claimant or victim knowingly and willingly
10-13 participated in the criminally injurious conduct;
10-14 (4) the claimant or victim is the offender or an
10-15 accomplice of the offender;
10-16 (5) an award of compensation to the claimant or victim
10-17 would benefit the offender or an accomplice of the offender; [or]
10-18 (6) the claimant or victim was incarcerated in a penal
10-19 institution, as defined by Section 1.07(26), Penal Code, at the
10-20 time the offense was committed; or
10-21 (7) the claimant or victim knowingly or intentionally
10-22 submits false or forged information to the attorney general.
10-23 (c) Except as provided by rules adopted by the attorney
10-24 general to prevent the unjust enrichment of an offender, the
10-25 attorney general may not deny an award otherwise payable to a
10-26 claimant or victim because the claimant or victim:
10-27 (1) is an immediate family member of the offender; or
11-1 (2) resides in the same household as the offender.
11-2 Art. 56.42. Limits on Compensation. (a) Except as
11-3 otherwise provided by this article, awards payable to a victim and
11-4 all other claimants sustaining pecuniary loss because of injury or
11-5 death of that victim may not exceed $50,000 [$25,000] in the
11-6 aggregate.
11-7 (b) In addition to an award payable under Subsection (a),
11-8 the attorney general may award an additional $50,000 [$25,000] for
11-9 extraordinary pecuniary losses, if the personal injury to a victim
11-10 is catastrophic and results in a total and permanent disability to
11-11 the victim, for lost wages and reasonable and necessary costs of:
11-12 (1) making a home or automobile accessible;
11-13 (2) obtaining job training and vocational
11-14 rehabilitation;
11-15 (3) training in the use of special appliances; and
11-16 (4) receiving home health care.
11-17 (c) The attorney general may by rule establish limitations
11-18 on any other pecuniary loss compensated for under this subchapter.
11-19 Art. 56.44. Payments. (a) The attorney general may provide
11-20 for the payment of an award in a lump sum or in installments. The
11-21 attorney general shall provide that the part of an award equal to
11-22 the amount of pecuniary loss accrued to the date of the award be
11-23 paid in a lump sum. Except as provided in Subsection (b), the
11-24 attorney general shall pay the part of an award for allowable
11-25 expense that accrues after the award is made in installments.
11-26 (b) At the request of the claimant or victim, the attorney
11-27 general may provide that an award for future pecuniary loss be paid
12-1 in a lump sum if the attorney general finds that:
12-2 (1) paying the award in a lump sum will promote the
12-3 interests of the claimant or victim; or
12-4 (2) the present value of all future pecuniary loss
12-5 does not exceed $1,000.
12-6 (c) The attorney general may not provide for an award for
12-7 future pecuniary loss payable in installments for a period for
12-8 which the attorney general cannot reasonably determine the future
12-9 pecuniary loss.
12-10 (d) The attorney general may make payments only to an
12-11 individual who is a claimant or a victim, or to a provider on their
12-12 behalf.
12-13 Art. 56.45. Denial or Reduction of Award. The attorney
12-14 general may deny or reduce an award otherwise payable:
12-15 (1) if the claimant or victim has not substantially
12-16 cooperated with an appropriate law enforcement agency;
12-17 (2) if the claimant or victim bears a share of the
12-18 responsibility for the act or omission giving rise to the claim
12-19 because of the claimant's or victim's behavior;
12-20 (3) to the extent that pecuniary loss is recouped from
12-21 [another person, including] a collateral source; or
12-22 (4) if the claimant or victim was engaging in an
12-23 activity that at the time of the criminally injurious conduct was
12-24 prohibited by law or a rule made under law.
12-25 Art. 56.46. Reporting of Crime. (a) Except as otherwise
12-26 provided by this article, a claimant or victim may not file an
12-27 application unless the victim reports the criminally injurious
13-1 conduct to the appropriate state or local public safety or law
13-2 enforcement agency within a reasonable period of time, but not so
13-3 late as to interfere with or hamper the investigation and
13-4 prosecution of the crime [not later than 72 hours] after the
13-5 criminally injurious conduct is committed.
13-6 (b) The attorney general may extend the time for reporting
13-7 the criminally injurious conduct if the attorney general determines
13-8 that the extension is justified by extraordinary circumstances.
13-9 (c) Subsection (a) does not apply if the victim is a child.
13-10 Art. 56.47. Reconsideration. (a) The attorney general, on
13-11 the attorney general's own motion or on request of a claimant or
13-12 victim, may reconsider:
13-13 (1) a decision to make or deny an award; or
13-14 (2) the amount of an award.
13-15 (b) At least annually, the attorney general shall reconsider
13-16 each award being paid in installments.
13-17 (c) An order on reconsideration may require a refund of an
13-18 award if:
13-19 (1) the award was obtained by fraud or mistake; or
13-20 (2) newly discovered evidence shows the claimant or
13-21 victim to be ineligible for the award under Article 56.41 or 56.45.
13-22 [(d) The right of reconsideration does not affect the
13-23 finality of an attorney general decision for the purpose of
13-24 judicial review.]
13-25 Art. 56.48. Judicial Review. (a) Not later than the 40th
13-26 [20th] day after the attorney general renders a final decision, a
13-27 claimant or victim may file with the attorney general a notice of
14-1 dissatisfaction with the decision. Not later than the 40th [20th]
14-2 day after the claimant or victim gives notice, the claimant or
14-3 victim shall bring suit in the district court having jurisdiction
14-4 in the county in which:
14-5 (1) the injury or death occurred;
14-6 (2) the victim resided at the time the injury or death
14-7 occurred; or
14-8 (3) if the victim resided out of state at the time of
14-9 the injury or death, in the county where the injury or death
14-10 occurred or in a district court of Travis County.
14-11 (b) While judicial review of a decision by the attorney
14-12 general is pending, the attorney general:
14-13 (1) shall suspend payments to the claimant or victim;
14-14 and
14-15 (2) may not reconsider the award.
14-16 (c) The court shall determine the issues by trial de novo.
14-17 The burden of proof is on the party who filed the notice of
14-18 dissatisfaction.
14-19 (d) A court may award not more than 25 percent of the total
14-20 recovery by the claimant or victim for attorney fees in the event
14-21 of review.
14-22 (e) In computing a period under this article, if the last
14-23 day is a legal holiday or Sunday, the last day is not counted, and
14-24 the time is extended to include the next business day.
14-25 Art. 56.54. Funds. (a) The compensation to victims of
14-26 crime fund and the compensation to victims of crime auxiliary fund
14-27 are in the state treasury.
15-1 (b) Except as provided by Subsections (i) and (h) of this
15-2 section, the [The] compensation to victims of crime fund may be
15-3 used by the attorney general only for the payment of compensation
15-4 to claimants or victims under this subchapter, the operation of the
15-5 Crime Victims' Institute created at Chapter 412, Government Code,
15-6 and other expenses in administering this subchapter.
15-7 (c) Except as provided by Subsections (i) and (h) of this
15-8 section, the [The] compensation to victims of crime auxiliary fund
15-9 may be used by the attorney general only for the payment of
15-10 compensation to claimants or victims under this subchapter.
15-11 (d) The attorney general may not make compensation payments
15-12 in excess of the amount of money available from the combined funds.
15-13 (e) General revenues may not be used for payments under this
15-14 subchapter.
15-15 (f) The office of the attorney general is authorized to
15-16 accept gifts, grants, and donations to be credited to the
15-17 compensation to victims of crime fund and compensation to victims
15-18 of crime auxiliary fund and shall file annually with the governor
15-19 and the presiding officer of each house of the legislature a
15-20 complete and detailed written report accounting for all gifts,
15-21 grants, and donations received and disbursed, used, or maintained
15-22 by the office for the attorney general that are credited to these
15-23 funds.
15-24 (g) Money in the compensation to victims of crime fund or in
15-25 the compensation to victims of crime auxiliary fund may be used
15-26 only as provided by this subchapter and is not available for any
15-27 other purpose. Section 403.095, Government Code, does not apply to
16-1 the fund.
16-2 (h) An amount of money deposited to the credit of the
16-3 compensation to victims of crime fund not to exceed one-quarter of
16-4 the amount disbursed from that fund in the form of compensation
16-5 payments during a fiscal year shall be carried forward into the
16-6 next succeeding fiscal year and applied toward the amount listed in
16-7 the next succeeding fiscal year's method of financing.
16-8 (i) If the sums available in the compensation to victims of
16-9 crime fund are sufficient in a fiscal year to make all compensation
16-10 payments, the attorney general may retain any portion of the Fund
16-11 that was deposited during the fiscal year that was in excess of
16-12 compensation payments made during that fiscal year as an emergency
16-13 reserve for the next fiscal year. Such emergency reserve may not
16-14 exceed $10,000,000. The emergency reserve fund may be used only to
16-15 make compensation awards in claims and for providing emergency
16-16 relief and assistance, including crisis intervention, emergency
16-17 housing, travel, food, or expenses and technical assistance
16-18 expenses incurred in the implementation of this subsection in
16-19 incidents resulting from an act(s) of mass violence or of
16-20 international terrorism as defined in Section 2331 of title 18,
16-21 United States Code, occurring in the state or for Texas residents
16-22 injured or killed in an act of terrorism outside of the United
16-23 States.
16-24 SECTION 2. (a) The changes in law made by this Act apply
16-25 only to an application for compensation for criminally injurious
16-26 conduct occurring on or after the effective date of this Act. For
16-27 purposes of this section, conduct occurs before the effective date
17-1 of this Act if any element of the offense that is included in the
17-2 criminally injurious conduct occurs before that date.
17-3 (b) An application for compensation based on an offense
17-4 committed before the effective date of this Act is covered by the
17-5 law in effect when the offense was committed, and the former law is
17-6 continued in effect for that purpose.
17-7 SECTION 3. Section 5.86(a), Chapter 76, Acts of the 74th
17-8 Legislature, 1995, are repealed.
17-9 SECTION 4. EFFECTIVE DATE. This Act takes effect on
17-10 September 1, 1997.
17-11 SECTION 5. EMERGENCY. The importance of this legislation
17-12 and the crowded condition of the calendars in both houses create an
17-13 emergency and an imperative public necessity that the
17-14 constitutional rule requiring bills to be read on three several
17-15 days in each house be suspended, and this rule is hereby suspended,
17-16 and it is so enacted.
17-17 COMMITTEE AMENDMENT NO. 1
17-18 Amend H.B. 3062 to read as follows:
17-19 On Page 1, line 4, strike from the bill caption ", and making
17-20 an appropriation".
17-21 Dunnam