Bill not drafted by TLC or Senate E&E.

      Line and page numbers may not match official copy.

      By Hightower                                    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;

2-28                       (E)  workers' compensation;

2-29                       (F)  an employer's wage continuation program, not

2-30     including vacation and sick leave benefits;

 3-1                       (G)  proceeds of an insurance contract payable to

 3-2     or on behalf of the claimant or victim for loss that the claimant

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

 3-4                       (H)  a contract or self-funded program providing

 3-5     [prepaid] hospital and other health care services or benefits [for

 3-6     disability];

 3-7                       (I)  proceeds awarded to the claimant or victim

 3-8     as a result of third-party litigation[; or]

 3-9                       [(J)  proceeds of a life insurance contract

3-10     payable to the claimant or victim].

3-11                 (4)  "Criminally injurious conduct" means conduct that:

3-12                       (A)  occurs or is attempted;

3-13                       (B)  poses a substantial threat of personal

3-14     injury or death;

3-15                       (C)  is punishable by fine, imprisonment, or

3-16     death, or would be punishable by fine, imprisonment, or death if

3-17     the person engaging in the conduct possessed capacity to commit the

3-18     conduct; and

3-19                       (D)  does not arise out of the ownership,

3-20     maintenance, or use of a motor vehicle, aircraft, or water vehicle,

3-21     unless the conduct is intended to cause personal injury or death or

3-22     the conduct is in violation of Texas Transportation Code, Section

3-23     550.021, [Section 38, Uniform Act Regulating Traffic on Highways

3-24     (Article 6701d, Vernon's Texas Civil Statutes)] or one or more of

3-25     the following sections of the Penal Code:

3-26                             (i)  Section 19.04 (manslaughter);

3-27                             (ii)  Section 19.05 (criminally negligent

3-28     homicide);

3-29                             (iii)  Section 22.02 (aggravated assault);

3-30                             (iv)  Section 49.04 (driving while

 4-1     intoxicated);

 4-2                             (v)  Section 49.05 (flying while

 4-3     intoxicated);

 4-4                             (vi)  Section 49.06 (boating while

 4-5     intoxicated);

 4-6                             (vii)  Section 49.07 (intoxication

 4-7     assault); or

 4-8                             (viii)  Section 49.08 (intoxication

 4-9     manslaughter).

4-10                 (5)  "Dependent" means:

4-11                       (A)  a surviving spouse;

4-12                       (B)  a person who is a dependent, within the

4-13     meaning of the Internal Revenue Code, of a [deceased] victim; [or]

4-14     and

4-15                       (C)  a posthumous child of a deceased victim.

4-16                 (6)  "Household member" means an individual who resided

4-17     in the same permanent household as the victim at the time that the

4-18     criminally injurious conduct occurred and who is related by

4-19     consanguinity or affinity to the victim.

4-20                 (7)  "Immediate family member" means an individual who

4-21     is the father, mother, sister, brother, daughter, son, or spouse of

4-22     a victim, including family members who are related by consanguinity

4-23     within the second degree or by affinity within the second degree [a

4-24     stepparent or stepchild].

4-25                 (8)  "Intervenor" means an individual who goes to the

4-26     aid of another and is killed or injured in the good faith effort to

4-27     prevent criminally injurious conduct, to apprehend a person

4-28     reasonably suspected of having engaged in criminally injurious

4-29     conduct, or to aid a peace officer.

4-30                 (9)  "Pecuniary loss" means the amount of expense

 5-1     reasonably and necessarily incurred as a result of personal injury

 5-2     or death for:

 5-3                       (A)  medical, hospital, nursing, or psychiatric

 5-4     care or counseling, or physical therapy;

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

 5-6     loss of future earnings because of a disability resulting from the

 5-7     personal injury, medically indicated services related to the crime,

 5-8     or participation in or attendance at investigative, prosecutorial,

 5-9     and judicial processes carried on by law enforcement agencies,

5-10     prosecutors, and the judiciary;

5-11                       (C)  care of a child or dependent [enabling a

5-12     victim, a victim's spouse, or a legal guardian of the victim, but

5-13     not all of them, to continue or engage in gainful employment];

5-14                       (D)  funeral and burial expenses;

5-15                       (E)  loss of support to a dependent, consistent

5-16     with Article 56.41(b)(5) [in the event of the death of the victim];

5-17                       (F)  reasonable and necessary costs of cleaning

5-18     the crime scene; and

5-19                       (G)  reasonable replacement costs for clothing,

5-20     bedding, or property of the victim seized as evidence or rendered

5-21     unusable as a result of the criminal investigation.

5-22                 (10)  "Personal injury" means physical or mental harm.

5-23                 (11)  "Victim" means[, except as provided by Subsection

5-24     (c)] an individual who:

5-25                       (A)  [an individual who:]

5-26                             [(i)]  suffers personal injury or death as

5-27     a result of criminally injurious conduct [directed at the

5-28     individual] or as a result of actions taken by the individual as an

5-29     intervenor, if the conduct or actions occurred in this state; and

5-30     [(ii)]  is a resident of this state, another state of the United

 6-1     States, the District of Columbia, the Commonwealth of Puerto Rico,

 6-2     or a possession or territory of the United States; [or]

 6-3                       (B)  [an individual who:]

 6-4                             (i)  suffers personal injury or death as a

 6-5     result of criminally injurious conduct [directed at the individual]

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

 6-7     if the conduct or actions occurred in a state or country that does

 6-8     not have a crime victims' compensation program that meets the

 6-9     requirements of Section 1403(b), Crime Victims Compensation Act of

6-10     1984 (42 U.S.C. Section 10602(b));

6-11                             (ii)  is a resident of this state; and

6-12                             (iii)  would be entitled to compensation

6-13     under this subchapter if the criminally injurious conduct or

6-14     actions had occurred in this state; or

6-15                       (C) (i)  suffers personal injury or death as a

6-16     result of criminally injurious conduct caused by an act of

6-17     terrorism, as defined in section 2331 of title 18, United States

6-18     Code, committed outside of the United States; and

6-19                             (ii)  is a resident of this state.

6-20           (b)  In this subchapter "claimant" does not include a service

6-21     provider.

6-22           [(c)  In this subchapter "victim" does not include:]

6-23                 [(1)  a peace officer;]

6-24                 [(2)  a firefighter; or]

6-25                 [(3)  another individual whose employment includes the

6-26     duty to protect the public while acting in the course and scope of

6-27     the individual's employment.]

6-28           Art. 56.34.  Compensation.  (a)  The attorney general shall

6-29     award compensation for pecuniary loss arising from criminally

6-30     injurious conduct if the attorney general is satisfied by a

 7-1     preponderance of the evidence that the requirements of this

 7-2     subchapter are met.

 7-3           (b)  The attorney general shall establish whether, as a

 7-4     direct result of criminally injurious conduct, a claimant or victim

 7-5     suffered personal injury or death that resulted in a pecuniary loss

 7-6     for which the claimant or victim is not compensated from a

 7-7     collateral source.

 7-8           (c)  The attorney general shall award compensation for health

 7-9     care services according to the medical fee guidelines prescribed by

7-10     Subtitle A, Title 5, Labor Code.

7-11           (d)  The attorney general, a claimant, or a victim is not

7-12     liable for health care service charges in excess of the medical fee

7-13     guidelines.  A health care provider shall accept compensation from

7-14     the attorney general as payment in full for the charges unless an

7-15     investigation of the charges by the attorney general determines

7-16     that there is a reasonable health care justification for the

7-17     deviation from the guidelines.

7-18           (e)  A claimant or victim is not liable for the balance of

7-19     service charges left as a result of an adjustment of payment for

7-20     the charges under Article 56.58.

7-21           (f)  The compensation to victims of crime fund and the

7-22     compensation to victims of crime auxiliary fund are the payers of

7-23     last resort.

7-24           Art. 56.36.  Application.  (a)  An applicant for compensation

7-25     under this subchapter must apply in writing on [in] a form [that

7-26     conforms substantially to that] prescribed by the attorney general.

7-27           (b)  An application must be verified and must contain:

7-28                 (1)  the date on which the criminally injurious conduct

7-29     occurred;

7-30                 (2)  a description of the nature and circumstances of

 8-1     the criminally injurious conduct;

 8-2                 (3)  a complete financial statement, including:

 8-3                       (A)  the cost of medical care or burial expenses

 8-4     and the loss of wages or support the claimant or victim has

 8-5     incurred or will incur; and

 8-6                       (B)  the extent to which the claimant or victim

 8-7     has been indemnified for those expenses from a collateral source;

 8-8                 (4)  if appropriate, a statement indicating the extent

 8-9     of a disability resulting from the injury incurred;

8-10                 (5)  an authorization permitting the attorney general

8-11     to verify the contents of the application; and

8-12                 (6)  other information the attorney general requires.

8-13           Art. 56.37.  Time for Filing.  (a)  Except as otherwise

8-14     provided by this article, a claimant or victim must file an

8-15     application not later than three (3) years from the date [the first

8-16     anniversary] of the criminally injurious conduct.

8-17           (b)  The attorney general may extend the time for filing for

8-18     good cause shown by the claimant or victim.

8-19           (c)  If the victim is a child, the application must be filed

8-20     within three (3) years from the date the claimant or victim is made

8-21     aware of the crime but not after the child is 21 years of age.

8-22     [Subsection (a) does not apply to a claimant or victim if:]

8-23                 [(1)  the victim is a child; or]

8-24                 [(2)  the claimant or victim is an immediate family

8-25     member or household member of a child who is the victim, and the

8-26     immediate family member or household member, as the direct result

8-27     of the criminally injurious conduct, requires psychological or

8-28     psychiatric counseling.]

8-29           (d)  If a claimant or victim presents medically documented

8-30     evidence of a physical or mental incapacity that was incurred by

 9-1     the claimant or victim as a result of the criminally injurious

 9-2     conduct and that reasonably prevented the claimant or victim from

 9-3     filing the application within the limitations period under

 9-4     Subsection (a), the period of the incapacity is not included.

 9-5           [(e)  If the victim is a child, the application must be filed

 9-6     within one year from the date the claimant or victim is made aware

 9-7     of the crime but not after the child is 19 years of age.]

 9-8           Art. 56.41.  Approval of Claim.  (a)  The attorney general

 9-9     shall approve an application for compensation under this subchapter

9-10     if the attorney general finds by a preponderance of the evidence

9-11     that grounds for compensation under this subchapter exist.

9-12           (b)  The attorney general shall deny an application for

9-13     compensation under this subchapter if:

9-14                 (1)  the criminally injurious conduct is not reported

9-15     as provided by Article 56.46;

9-16                 (2)  the application is not made in the manner provided

9-17     by Articles 56.36 and 56.37;

9-18                 (3)  the claimant or victim knowingly and willingly

9-19     participated in the criminally injurious conduct;

9-20                 (4)  the claimant or victim is the offender or an

9-21     accomplice of the offender;

9-22                 (5)  an award of compensation to the claimant or victim

9-23     would benefit the offender or an accomplice of the offender; [or]

9-24                 (6)  the claimant or victim was incarcerated in a penal

9-25     institution, as defined by Section 1.07(26), Penal Code, at the

9-26     time the offense was committed; or

9-27                 (7)  the claimant or victim knowingly or intentionally

9-28     submits false or forged information to the attorney general.

9-29           (c)  Except as provided by rules adopted by the attorney

9-30     general to prevent the unjust enrichment of an offender, the

 10-1    attorney general may not deny an award otherwise payable to a

 10-2    claimant or victim because the claimant or victim:

 10-3                (1)  is an immediate family member of the offender; or

 10-4                (2)  resides in the same household as the offender.

 10-5          Art. 56.42.  Limits on Compensation.  (a)  Except as

 10-6    otherwise provided by this article, awards payable to a victim and

 10-7    all other claimants sustaining pecuniary loss because of injury or

 10-8    death of that victim may not exceed $50,000 [$25,000] in the

 10-9    aggregate.

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

10-11    the attorney general may award an additional $50,000 [$25,000] for

10-12    extraordinary pecuniary losses, if the personal injury to a victim

10-13    is catastrophic and results in a total and permanent disability to

10-14    the victim, for lost wages and reasonable and necessary costs of:

10-15                (1)  making a home or automobile accessible;

10-16                (2)  obtaining job training and vocational

10-17    rehabilitation;

10-18                (3)  training in the use of special appliances; and

10-19                (4)  receiving home health care.

10-20          (c)  The attorney general may by rule establish limitations

10-21    on any other pecuniary loss compensated for under this subchapter.

10-22          Art. 56.44.  Payments.  (a)  The attorney general may provide

10-23    for the payment of an award in a lump sum or in installments.  The

10-24    attorney general shall provide that the part of an award equal to

10-25    the amount of pecuniary loss accrued to the date of the award be

10-26    paid in a lump sum.  Except as provided in Subsection (b), the

10-27    attorney general shall pay the part of an award for allowable

10-28    expense that accrues after the award is made in installments.

10-29          (b)  At the request of the claimant or victim, the attorney

10-30    general may provide that an award for future pecuniary loss be paid

 11-1    in a lump sum if the attorney general finds that:

 11-2                (1)  paying the award in a lump sum will promote the

 11-3    interests of the claimant or victim; or

 11-4                (2)  the present value of all future pecuniary loss

 11-5    does not exceed $1,000.

 11-6          (c)  The attorney general may not provide for an award for

 11-7    future pecuniary loss payable in installments for a period for

 11-8    which the attorney general cannot reasonably determine the future

 11-9    pecuniary loss.

11-10          (d)  The attorney general may make payments only to an

11-11    individual who is a claimant or a victim, or to a provider on their

11-12    behalf.

11-13          Art. 56.45.  Denial or Reduction of Award.  The attorney

11-14    general may deny or reduce an award otherwise payable:

11-15                (1)  if the claimant or victim has not substantially

11-16    cooperated with an appropriate law enforcement agency;

11-17                (2)  if the claimant or victim bears a share of the

11-18    responsibility for the act or omission giving rise to the claim

11-19    because of the claimant's or victim's behavior;

11-20                (3)  to the extent that pecuniary loss is recouped from

11-21    [another person, including] a collateral source; or

11-22                (4)  if the claimant or victim was engaging in an

11-23    activity that at the time of the criminally injurious conduct was

11-24    prohibited by law or a rule made under law.

11-25          Art. 56.46.  Reporting of Crime.  (a)  Except as otherwise

11-26    provided by this article, a claimant or victim may not file an

11-27    application unless the victim reports the criminally injurious

11-28    conduct to the appropriate state or local public safety or law

11-29    enforcement agency within a reasonable period of time, but not so

11-30    late as to interfere with or hamper the investigation and

 12-1    prosecution of the crime [not later than 72 hours] after the

 12-2    criminally injurious conduct is committed.

 12-3          (b)  The attorney general may extend the time for reporting

 12-4    the criminally injurious conduct if the attorney general determines

 12-5    that the extension is justified by extraordinary circumstances.

 12-6          (c)  Subsection (a) does not apply if the victim is a child.

 12-7          Art. 56.47.  Reconsideration.  (a)  The attorney general, on

 12-8    the attorney general's own motion or on request of a claimant or

 12-9    victim, may reconsider:

12-10                (1)  a decision to make or deny an award; or

12-11                (2)  the amount of an award.

12-12          (b)  At least annually, the attorney general shall reconsider

12-13    each award being paid in installments.

12-14          (c)  An order on reconsideration may require a refund of an

12-15    award if:

12-16                (1)  the award was obtained by fraud or mistake; or

12-17                (2)  newly discovered evidence shows the claimant or

12-18    victim to be ineligible for the award under Article 56.41 or 56.45.

12-19          [(d)  The right of reconsideration does not affect the

12-20    finality of an attorney general decision for the purpose of

12-21    judicial review.]

12-22          Art. 56.48.  Judicial Review.  (a)  Not later than the 40th

12-23    [20th] day after the attorney general renders a final decision, a

12-24    claimant or victim may file with the attorney general a notice of

12-25    dissatisfaction with the decision.  Not later than the 40th [20th]

12-26    day after the claimant or victim gives notice, the claimant or

12-27    victim shall bring suit in the district court having jurisdiction

12-28    in the county in which:

12-29                (1)  the injury or death occurred;

12-30                (2)  the victim resided at the time the injury or death

 13-1    occurred; or

 13-2                (3)  if the victim resided out of state at the time of

 13-3    the injury or death, in the county where the injury or death

 13-4    occurred or in a district court of Travis County.

 13-5          (b)  While judicial review of a decision by the attorney

 13-6    general is pending, the attorney general:

 13-7                (1)  shall suspend payments to the claimant or victim;

 13-8    and

 13-9                (2)  may not reconsider the award.

13-10          (c)  The court shall determine the issues by trial de novo.

13-11    The burden of proof is on the party who filed the notice of

13-12    dissatisfaction.

13-13          (d)  A court may award not more than 25 percent of the total

13-14    recovery by the claimant or victim for attorney fees in the event

13-15    of review.

13-16          (e)  In computing a period under this article, if the last

13-17    day is a legal holiday or Sunday, the last day is not counted, and

13-18    the time is extended to include the next business day.

13-19          Art. 56.54.  Funds.  (a)  The compensation to victims of

13-20    crime fund and the compensation to victims of crime auxiliary fund

13-21    are in the state treasury.

13-22          (b)  Except as provided by Subsections (i) and (h) of this

13-23    section, the [The] compensation to victims of crime fund may be

13-24    used by the attorney general only for the payment of compensation

13-25    to claimants or victims under this subchapter, the operation of the

13-26    Crime Victims' Institute created at Chapter 412, Government Code,

13-27    and other expenses in administering this subchapter.

13-28          (c)  Except as provided by Subsections (i) and (h) of this

13-29    section, the [The] compensation to victims of crime auxiliary fund

13-30    may be used by the attorney general only for the payment of

 14-1    compensation to claimants or victims under this subchapter.

 14-2          (d)  The attorney general may not make compensation payments

 14-3    in excess of the amount of money available from the combined funds.

 14-4          (e)  General revenues may not be used for payments under this

 14-5    subchapter.

 14-6          (f)  The office of the attorney general is authorized to

 14-7    accept gifts, grants, and donations to be credited to the

 14-8    compensation to victims of crime fund and compensation to victims

 14-9    of crime auxiliary fund and shall file annually with the governor

14-10    and the presiding officer of each house of the legislature a

14-11    complete and detailed written report accounting for all gifts,

14-12    grants, and donations received and disbursed, used, or maintained

14-13    by the office for the attorney general that are credited to these

14-14    funds.

14-15          (g)  Money in the compensation to victims of crime fund or in

14-16    the compensation to victims of crime auxiliary fund may be used

14-17    only as provided by this subchapter and is not available for any

14-18    other purpose.  Section 403.095, Government Code, does not apply to

14-19    the fund.

14-20          (h)  An amount of money deposited to the credit of the

14-21    compensation to victims of crime fund not to exceed one-quarter of

14-22    the amount disbursed from that fund in the form of compensation

14-23    payments during a fiscal year shall be carried forward into the

14-24    next succeeding fiscal year and applied toward the amount listed in

14-25    the next succeeding fiscal year's method of financing.

14-26          (i)  If the sums available in the compensation to victims of

14-27    crime fund are sufficient in a fiscal year to make all compensation

14-28    payments, the attorney general may retain any portion of the Fund

14-29    that was deposited during the fiscal year that was in excess of

14-30    compensation payments made during that fiscal year as an emergency

 15-1    reserve for the next fiscal year.  Such emergency reserve may not

 15-2    exceed $10,000,000.  The emergency reserve fund may be used only to

 15-3    make compensation awards in claims and for providing emergency

 15-4    relief and assistance, including crisis intervention, emergency

 15-5    housing, travel, food, or expenses and technical assistance

 15-6    expenses incurred in the implementation of this subsection in

 15-7    incidents resulting from an act(s) of mass violence or of

 15-8    international terrorism as defined in Section 2331 of title 18,

 15-9    United States Code, occurring in the state or for Texas residents

15-10    injured or killed in an act of terrorism outside of the United

15-11    States.

15-12          SECTION 2.  (a)  The changes in law made by this Act apply

15-13    only to an application for compensation for criminally injurious

15-14    conduct occurring on or after the effective date of this Act.  For

15-15    purposes of this section, conduct occurs before the effective date

15-16    of this Act if any element of the offense that is included in the

15-17    criminally injurious conduct occurs before that date.

15-18          (b)  An application for compensation based on an offense

15-19    committed before the effective date of this Act is covered by the

15-20    law in effect when the offense was committed, and the former law is

15-21    continued in effect for that purpose.

15-22          SECTION 3.  Section 5.86(a), Chapter 76, Acts of the 74th

15-23    Legislature, 1995, are repealed.

15-24          SECTION 4.  EFFECTIVE DATE.  This Act takes effect on

15-25    September 1, 1997.

15-26          SECTION 5.  EMERGENCY.  The importance of this legislation

15-27    and the crowded condition of the calendars in both houses create an

15-28    emergency and an imperative public necessity that the

15-29    constitutional rule requiring bills to be read on three several

15-30    days in each house be suspended, and this rule is hereby suspended,

 16-1    and it is so enacted.