1-1 By: Hightower, Gutierrez, et al. H.B. No. 3062
1-2 (Senate Sponsor - Whitmire)
1-3 (In the Senate - Received from the House April 30, 1997;
1-4 May 1, 1997, read first time and referred to Committee on Criminal
1-5 Justice; May 16, 1997, reported favorably, as amended, by the
1-6 following vote: Yeas 5, Nays 0; May 16, 1997, sent to printer.)
1-7 COMMITTEE AMENDMENT NO. 1 By: West
1-8 Amend HB 3062 as follows:
1-9 (1) Insert at Subdivision (9) of SECTION 1 of the bill
1-10 (Engrossed Printing page 3, line 1) "and necessary travel expenses"
1-11 between "earnings" and "because".
1-12 (2) Add at Subdivision (9) of SECTION 1 of the bill
1-13 (Engrossed Printing page 3, line 9) "and participation in or
1-14 attendance at any post conviction or post adjudication proceeding
1-15 relating to criminally injurious conduct" after "conduct".
1-16 A BILL TO BE ENTITLED
1-17 AN ACT
1-18 relating to comprehensive revisions to Subchapter B, Chapter 56,
1-19 Code of Criminal Procedure, the Crime Victims' Compensation Act.
1-20 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-21 SECTION 1. Articles 56.32, 56.34, 56.36, 56.37, 56.41,
1-22 56.42, 56.44, 56,45, 56.46, 56.47, 56.48, and 56.54, Code of
1-23 Criminal Procedure, are amended to read as follows:
1-24 Art. 56.32. Definitions. (a) In this subchapter:
1-25 (1) "Child" means an individual younger than 18 years
1-26 of age who:
1-27 (A) is not married; or
1-28 (B) has not had the disabilities of minority
1-29 removed for general purposes under Chapter 31, Family Code.
1-30 (2) "Claimant" means, except as provided by Subsection
1-31 (b), any of the following individuals who is entitled to file or
1-32 has filed a claim for compensation under this subchapter:
1-33 (A) an authorized individual acting on behalf of
1-34 a victim;
1-35 (B) an individual who legally assumes the
1-36 obligation or who voluntarily pays medical or burial expenses of a
1-37 victim incurred as a result of the criminally injurious conduct of
1-38 another;
1-39 (C) a dependent of a victim who died as a result
1-40 of criminally injurious conduct;
1-41 (D) an immediate family member or household
1-42 member of a victim who[:]
1-43 [(i) is not a dependent of the victim; and]
1-44 [(ii)] requires psychiatric care or
1-45 counseling as a result of the criminally injurious conduct [of
1-46 another who injured the victim]; or
1-47 (E) an authorized individual acting on behalf of
1-48 an individual who is described by Subdivision (C) or (D) and who is
1-49 a child.
1-50 (3) "Collateral source" means any of the following
1-51 sources of benefits or advantages for pecuniary loss that a
1-52 claimant or victim has received or that is readily available to the
1-53 claimant or victim from:
1-54 (A) the offender under an order of restitution
1-55 to the claimant or victim imposed by a court as a condition of
1-56 community supervision;
1-57 (B) the United States, a federal agency, a state
1-58 or any of its political subdivisions, or an instrumentality of two
1-59 or more states, unless the law providing for the benefits or
1-60 advantages makes them in excess of or secondary to benefits under
1-61 this subchapter;
1-62 (C) social security, Medicare, or Medicaid;
1-63 (D) another state's or another country's crime
1-64 victims' compensation program [state-required temporary
2-1 nonoccupational disability insurance];
2-2 (E) workers' compensation;
2-3 (F) an employer's wage continuation program, not
2-4 including vacation and sick leave benefits;
2-5 (G) proceeds of an insurance contract payable to
2-6 or on behalf of the claimant or victim for loss that the claimant
2-7 or victim sustained because of the criminally injurious conduct;
2-8 (H) a contract or self-funded program providing
2-9 [prepaid] hospital and other health care services or benefits [for
2-10 disability]; or
2-11 (I) proceeds awarded to the claimant or victim
2-12 as a result of third-party litigation[; or]
2-13 [(J) proceeds of a life insurance contract
2-14 payable to the claimant or victim].
2-15 (4) "Criminally injurious conduct" means conduct that:
2-16 (A) occurs or is attempted;
2-17 (B) poses a substantial threat of personal
2-18 injury or death;
2-19 (C) is punishable by fine, imprisonment, or
2-20 death, or would be punishable by fine, imprisonment, or death if
2-21 the person engaging in the conduct possessed capacity to commit the
2-22 conduct; and
2-23 (D) does not arise out of the ownership,
2-24 maintenance, or use of a motor vehicle, aircraft, or water vehicle,
2-25 unless the conduct is intended to cause personal injury or death or
2-26 the conduct is in violation of Section 550.021, Transportation Code
2-27 [Section 38, Uniform Act Regulating Traffic on Highways (Article
2-28 6701d, Vernon's Texas Civil Statutes)], or one or more of the
2-29 following sections of the Penal Code:
2-30 (i) Section 19.04 (manslaughter);
2-31 (ii) Section 19.05 (criminally negligent
2-32 homicide);
2-33 (iii) Section 22.02 (aggravated assault);
2-34 (iv) Section 49.04 (driving while
2-35 intoxicated);
2-36 (v) Section 49.05 (flying while
2-37 intoxicated);
2-38 (vi) Section 49.06 (boating while
2-39 intoxicated);
2-40 (vii) Section 49.07 (intoxication
2-41 assault); or
2-42 (viii) Section 49.08 (intoxication
2-43 manslaughter).
2-44 (5) "Dependent" means:
2-45 (A) a surviving spouse;
2-46 (B) a person who is a dependent, within the
2-47 meaning of the Internal Revenue Code, of a [deceased] victim; and
2-48 [or]
2-49 (C) a posthumous child of a deceased victim.
2-50 (6) "Household member" means an individual who resided
2-51 in the same permanent household as the victim at the time that the
2-52 criminally injurious conduct occurred and who is related by
2-53 consanguinity or affinity to the victim.
2-54 (7) "Immediate family member" means an individual who
2-55 is related to [the father, mother, sister, brother, daughter, son,
2-56 or spouse of] a victim within the second degree by affinity or
2-57 consanguinity [, including a stepparent or stepchild].
2-58 (8) "Intervenor" means an individual who goes to the
2-59 aid of another and is killed or injured in the good faith effort to
2-60 prevent criminally injurious conduct, to apprehend a person
2-61 reasonably suspected of having engaged in criminally injurious
2-62 conduct, or to aid a peace officer.
2-63 (9) "Pecuniary loss" means the amount of expense
2-64 reasonably and necessarily incurred as a result of personal injury
2-65 or death for:
2-66 (A) medical, hospital, nursing, or psychiatric
2-67 care or counseling, or physical therapy;
2-68 (B) actual loss of past earnings and anticipated
2-69 loss of future earnings because of:
3-1 (i) a disability resulting from the
3-2 personal injury;
3-3 (ii) the receipt of medically indicated
3-4 services related to the disability resulting from the personal
3-5 injury; or
3-6 (iii) participation in or attendance at
3-7 investigative, prosecutorial, or judicial processes related to the
3-8 criminally injurious conduct;
3-9 (C) care of a child or dependent [enabling a
3-10 victim, a victim's spouse, or a legal guardian of the victim, but
3-11 not all of them, to continue or engage in gainful employment];
3-12 (D) funeral and burial expenses;
3-13 (E) loss of support to a dependent, consistent
3-14 with Article 56.41(b)(5) [in the event of the death of the victim];
3-15 (F) reasonable and necessary costs of cleaning
3-16 the crime scene; and
3-17 (G) reasonable replacement costs for clothing,
3-18 bedding, or property of the victim seized as evidence or rendered
3-19 unusable as a result of the criminal investigation.
3-20 (10) "Personal injury" means physical or mental harm.
3-21 (11) "Victim" means, except as provided by Subsection
3-22 (c):
3-23 (A) an individual who:
3-24 (i) suffers personal injury or death as a
3-25 result of criminally injurious conduct [directed at the individual]
3-26 or as a result of actions taken by the individual as an intervenor,
3-27 if the conduct or actions occurred in this state; and
3-28 (ii) is a resident of this state, another
3-29 state of the United States, the District of Columbia, the
3-30 Commonwealth of Puerto Rico, or a possession or territory of the
3-31 United States; [or]
3-32 (B) an individual who:
3-33 (i) suffers personal injury or death as a
3-34 result of criminally injurious conduct [directed at the individual]
3-35 or as a result of actions taken by the individual as an intervenor,
3-36 if the conduct or actions occurred in a state or country that does
3-37 not have a crime victims' compensation program that meets the
3-38 requirements of Section 1403(b), Crime Victims Compensation Act of
3-39 1984 (42 U.S.C. Section 10602(b));
3-40 (ii) is a resident of this state; and
3-41 (iii) would be entitled to compensation
3-42 under this subchapter if the criminally injurious conduct or
3-43 actions had occurred in this state; or
3-44 (C) an individual who:
3-45 (i) suffers personal injury or death as a
3-46 result of criminally injurious conduct caused by an act of
3-47 international terrorism as defined by 18 U.S.C. Section 2331
3-48 committed outside of the United States; and
3-49 (ii) is a resident of this state.
3-50 (b) In this subchapter "claimant" does not include a service
3-51 provider.
3-52 [(c) In this subchapter "victim" does not include:]
3-53 [(1) a peace officer;]
3-54 [(2) a firefighter; or]
3-55 [(3) another individual whose employment includes the
3-56 duty to protect the public while acting in the course and scope of
3-57 the individual's employment.]
3-58 Art. 56.34. Compensation. (a) The attorney general shall
3-59 award compensation for pecuniary loss arising from criminally
3-60 injurious conduct if the attorney general is satisfied by a
3-61 preponderance of the evidence that the requirements of this
3-62 subchapter are met.
3-63 (b) The attorney general, shall establish whether, as a
3-64 direct result of criminally injurious conduct, a claimant or victim
3-65 suffered personal injury or death that resulted in a pecuniary loss
3-66 for which the claimant or victim is not compensated from a
3-67 collateral source.
3-68 (c) The attorney general shall award compensation for health
3-69 care services according to the medical fee guidelines prescribed by
4-1 Subtitle A, Title 5, Labor Code.
4-2 (d) The attorney general, a claimant, or a victim is not
4-3 liable for health care service charges in excess of the medical fee
4-4 guidelines. A health care provider shall accept compensation from
4-5 the attorney general as payment in full for the charges unless an
4-6 investigation of the charges by the attorney general determines
4-7 that there is a reasonable health care justification for the
4-8 deviation from the guidelines.
4-9 (e) A claimant or victim is not liable for the balance of
4-10 service charges left as a result of an adjustment of payment for
4-11 the charges under Article 56.58.
4-12 (f) The compensation to victims of crime fund and the
4-13 compensation to victims of crime auxiliary fund are the payers of
4-14 last resort.
4-15 Art. 56.36. Application. (a) An applicant for compensation
4-16 under this subchapter must apply in writing on [in] a form [that
4-17 conforms substantially to that] prescribed by the attorney general.
4-18 (b) An application must be verified and must contain:
4-19 (1) the date on which the criminally injurious conduct
4-20 occurred;
4-21 (2) a description of the nature and circumstances of
4-22 the criminally injurious conduct;
4-23 (3) a complete financial statement, including:
4-24 (A) the cost of medical care or burial expenses
4-25 and the loss of wages or support the claimant or victim has
4-26 incurred or will incur; and
4-27 (B) the extent to which the claimant or victim
4-28 has been indemnified for those expenses from a collateral source;
4-29 (4) if appropriate, a statement indicating the extent
4-30 of a disability resulting from the injury incurred;
4-31 (5) an authorization permitting the attorney general
4-32 to verify the contents of the application; and
4-33 (6) other information the attorney general requires.
4-34 Art. 56.37. Time for Filing. (a) Except as otherwise
4-35 provided by this article, a claimant or victim must file an
4-36 application not later than three years from the date [the first
4-37 anniversary] of the criminally injurious conduct.
4-38 (b) The attorney general may extend the time for filing for
4-39 good cause shown by the claimant or victim.
4-40 (c) If the victim is a child, the application must be filed
4-41 within three years from the date the claimant or victim is made
4-42 aware of the crime but not after the child is 21 years of age.
4-43 [Subsection (a) does not apply to a claimant or victim if:]
4-44 [(1) the victim is a child; or]
4-45 [(2) the claimant or victim is an immediate family
4-46 member or household member of a child who is the victim, and the
4-47 immediate family member or household member, as the direct result
4-48 of the criminally injurious conduct, requires psychological or
4-49 psychiatric counseling.]
4-50 (d) If a claimant or victim presents medically documented
4-51 evidence of a physical or mental incapacity that was incurred by
4-52 the claimant or victim as a result of the criminally injurious
4-53 conduct and that reasonably prevented the claimant or victim from
4-54 filing the application within the limitations period under
4-55 Subsection (a), the period of the incapacity is not included.
4-56 [(e) If the victim is a child, the application must be filed
4-57 within one year from the date the claimant or victim is made aware
4-58 of the crime but not after the child is 19 years of age.]
4-59 Art. 56.41. Approval of Claim. (a) The attorney general
4-60 shall approve an application for compensation under this subchapter
4-61 if the attorney general finds by a preponderance of the evidence
4-62 that grounds for compensation under this subchapter exist.
4-63 (b) The attorney general shall deny an application for
4-64 compensation under this subchapter if:
4-65 (1) the criminally injurious conduct is not reported
4-66 as provided by Article 56.46;
4-67 (2) the application is not made in the manner provided
4-68 by Articles 56.36 and 56.37;
4-69 (3) the claimant or victim knowingly and willingly
5-1 participated in the criminally injurious conduct;
5-2 (4) the claimant or victim is the offender or an
5-3 accomplice of the offender;
5-4 (5) an award of compensation to the claimant or victim
5-5 would benefit the offender or an accomplice of the offender; [or]
5-6 (6) the claimant or victim was incarcerated in a penal
5-7 institution, as defined by Section 1.07, Penal Code, at the time
5-8 the offense was committed; or
5-9 (7) the claimant or victim knowingly or intentionally
5-10 submits false or forged information to the attorney general.
5-11 (c) Except as provided by rules adopted by the attorney
5-12 general to prevent the unjust enrichment of an offender, the
5-13 attorney general may not deny an award otherwise payable to a
5-14 claimant or victim because the claimant or victim:
5-15 (1) is an immediate family member of the offender; or
5-16 (2) resides in the same household as the offender.
5-17 Art. 56.42. Limits on Compensation. (a) Except as
5-18 otherwise provided by this article, awards payable to a victim and
5-19 all other claimants sustaining pecuniary loss because of injury or
5-20 death of that victim may not exceed $50,000 [$25,000] in the
5-21 aggregate.
5-22 (b) In addition to an award payable under Subsection (a),
5-23 the attorney general may award an additional $50,000 [$25,000] for
5-24 extraordinary pecuniary losses, if the personal injury to a victim
5-25 is catastrophic and results in a total and permanent disability to
5-26 the victim, for lost wages and reasonable and necessary costs of:
5-27 (1) making a home or automobile accessible;
5-28 (2) obtaining job training and vocational
5-29 rehabilitation;
5-30 (3) training in the use of special appliances; and
5-31 (4) receiving home health care.
5-32 (c) The attorney general may by rule establish limitations
5-33 on any other pecuniary loss compensated for under this subchapter.
5-34 Art. 56.44. Payments. (a) The attorney general may provide
5-35 for the payment of an award in a lump sum or in installments. The
5-36 attorney general shall provide that the part of an award equal to
5-37 the amount of pecuniary loss accrued to the date of the award be
5-38 paid in a lump sum. Except as provided in Subsection (b), the
5-39 attorney general shall pay the part of an award for allowable
5-40 expense that accrues after the award is made in installments.
5-41 (b) At the request of the claimant or victim, the attorney
5-42 general may provide that an award for future pecuniary loss be paid
5-43 in a lump sum if the attorney general finds that:
5-44 (1) paying the award in a lump sum will promote the
5-45 interests of the claimant or victim; or
5-46 (2) the present value of all future pecuniary loss
5-47 does not exceed $1,000.
5-48 (c) The attorney general may not provide for an award for
5-49 future pecuniary loss payable in installments for a period for
5-50 which the attorney general cannot reasonably determine the future
5-51 pecuniary loss.
5-52 (d) The attorney general may make payments only to an
5-53 individual who is a claimant or a victim or to a provider on the
5-54 individual's behalf.
5-55 Art. 56.45. Denial or Reduction of Award. The attorney
5-56 general may deny or reduce an award otherwise payable:
5-57 (1) if the claimant or victim has not substantially
5-58 cooperated with an appropriate law enforcement agency;
5-59 (2) if the claimant or victim bears a share of the
5-60 responsibility for the act or omission giving rise to the claim
5-61 because of the claimant's or victim's behavior;
5-62 (3) to the extent that pecuniary loss is recouped from
5-63 [another person, including] a collateral source; or
5-64 (4) if the claimant or victim was engaging in an
5-65 activity that at the time of the criminally injurious conduct was
5-66 prohibited by law or a rule made under law.
5-67 Art. 56.46. Reporting of Crime. (a) Except as otherwise
5-68 provided by this article, a claimant or victim may not file an
5-69 application unless the victim reports the criminally injurious
6-1 conduct to the appropriate state or local public safety or law
6-2 enforcement agency within a reasonable period of time, but not so
6-3 late as to interfere with or hamper the investigation and
6-4 prosecution of the crime [not later than 72 hours] after the
6-5 criminally injurious conduct is committed.
6-6 (b) The attorney general may extend the time for reporting
6-7 the criminally injurious conduct if the attorney general determines
6-8 that the extension is justified by extraordinary circumstances.
6-9 (c) Subsection (a) does not apply if the victim is a child.
6-10 Art. 56.47. Reconsideration. (a) The attorney general, on
6-11 the attorney general's own motion or on request of a claimant or
6-12 victim, may reconsider:
6-13 (1) a decision to make or deny an award; or
6-14 (2) the amount of an award.
6-15 (b) At least annually, the attorney general shall reconsider
6-16 each award being paid in installments.
6-17 (c) An order on reconsideration may require a refund of an
6-18 award if:
6-19 (1) the award was obtained by fraud or mistake; or
6-20 (2) newly discovered evidence shows the claimant or
6-21 victim to be ineligible for the award under Article 56.41 or 56.45.
6-22 [(d) The right of reconsideration does not affect the
6-23 finality of an attorney general decision for the purpose of
6-24 judicial review.]
6-25 Art. 56.48. Judicial Review. (a) Not later than the 40th
6-26 [20th] day after the attorney general renders a final decision, a
6-27 claimant or victim may file with the attorney general a notice of
6-28 dissatisfaction with the decision. Not later than the 40th [20th]
6-29 day after the claimant or victim gives notice, the claimant or
6-30 victim shall bring suit in the district court having jurisdiction
6-31 in the county in which:
6-32 (1) the injury or death occurred;
6-33 (2) the victim resided at the time the injury or death
6-34 occurred; or
6-35 (3) if the victim resided out of state at the time of
6-36 the injury or death, in the county where the injury or death
6-37 occurred or in a district court of Travis County.
6-38 (b) While judicial review of a decision by the attorney
6-39 general is pending, the attorney general:
6-40 (1) shall suspend payments to the claimant or victim;
6-41 and
6-42 (2) may not reconsider the award.
6-43 (c) The court shall determine the issues by trial de novo.
6-44 The burden of proof is on the party who filed the notice of
6-45 dissatisfaction.
6-46 (d) A court may award not more than 25 percent of the total
6-47 recovery by the claimant or victim for attorney fees in the event
6-48 of review.
6-49 (e) In computing a period under this article, if the last
6-50 day is a legal holiday or Sunday, the last day is not counted, and
6-51 the time is extended to include the next business day.
6-52 Art. 56.54. Funds. (a) The compensation to victims of
6-53 crime fund and the compensation to victims of crime auxiliary fund
6-54 are in the state treasury.
6-55 (b) Except as provided by Subsections (h) and (i), the [The]
6-56 compensation to victims of crime fund may be used by the attorney
6-57 general only for the payment of compensation to claimants or
6-58 victims under this subchapter, the operation of the Crime Victims'
6-59 Institute created by Chapter 412, Government Code, and other
6-60 expenses in administering this subchapter.
6-61 (c) Except as provided by Subsections (h) and (i), the [The]
6-62 compensation to victims of crime auxiliary fund may be used by the
6-63 attorney general only for the payment of compensation to claimants
6-64 or victims under this subchapter.
6-65 (d) The attorney general may not make compensation payments
6-66 in excess of the amount of money available from the combined funds.
6-67 (e) General revenues may not be used for payments under this
6-68 subchapter.
6-69 (f) The office of the attorney general is authorized to
7-1 accept gifts, grants, and donations to be credited to the
7-2 compensation to victims of crime fund and compensation to victims
7-3 of crime auxiliary fund and shall file annually with the governor
7-4 and the presiding officer of each house of the legislature a
7-5 complete and detailed written report accounting for all gifts,
7-6 grants, and donations received and disbursed, used, or maintained
7-7 by the office for the attorney general that are credited to these
7-8 funds.
7-9 (g) Money in the compensation to victims of crime fund or in
7-10 the compensation to victims of crime auxiliary fund may be used
7-11 only as provided by this subchapter and is not available for any
7-12 other purpose. Section 403.095, Government Code, does not apply to
7-13 the fund.
7-14 (h) An amount of money deposited to the credit of the
7-15 compensation to victims of crime fund not to exceed one-quarter of
7-16 the amount disbursed from that fund in the form of compensation
7-17 payments during a fiscal year shall be carried forward into the
7-18 next succeeding fiscal year and applied toward the amount listed in
7-19 the next succeeding fiscal year's method of financing.
7-20 (i) If the sums available in the compensation to victims of
7-21 crime fund are sufficient in a fiscal year to make all compensation
7-22 payments, the attorney general may retain any portion of the fund
7-23 that was deposited during the fiscal year that was in excess of
7-24 compensation payments made during that fiscal year as an emergency
7-25 reserve for the next fiscal year. Such emergency reserve may not
7-26 exceed $10,000,000. The emergency reserve fund may be used only to
7-27 make compensation awards in claims and for providing emergency
7-28 relief and assistance, including crisis intervention, emergency
7-29 housing, travel, food, or expenses and technical assistance
7-30 expenses incurred in the implementation of this subsection in
7-31 incidents resulting from an act of mass violence or from an act of
7-32 international terrorism as defined by 18 U.S.C. Section 2331,
7-33 occurring in the state or for Texas residents injured or killed in
7-34 an act of terrorism outside of the United States.
7-35 SECTION 2. (a) The changes in law made by this Act apply
7-36 only to an application for compensation for criminally injurious
7-37 conduct occurring on or after the effective date of this Act. For
7-38 purposes of this section, conduct occurs before the effective date
7-39 of this Act if any element of the offense that is included in the
7-40 criminally injurious conduct occurs before that date.
7-41 (b) An application for compensation based on an offense
7-42 committed before the effective date of this Act is covered by the
7-43 law in effect when the offense was committed, and the former law is
7-44 continued in effect for that purpose.
7-45 SECTION 3. This Act takes effect September 1, 1997.
7-46 SECTION 4. The importance of this legislation and the
7-47 crowded condition of the calendars in both houses create an
7-48 emergency and an imperative public necessity that the
7-49 constitutional rule requiring bills to be read on three several
7-50 days in each house be suspended, and this rule is hereby suspended.
7-51 * * * * *