Bill not drafted by TLC or Senate E&E.
Line and page numbers may not match official copy.
By: Whitmire S.B. No. 1156
A BILL TO BE ENTITLED
AN ACT
1-1 relating to comprehensive revisions to Subchapter B, Chapter 56,
1-2 Code of Criminal Procedure, the Crime Victims' Compensation Act,
1-3 and making an appropriation.
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 of Subchapter
1-7 B, Chapter 56, Code of Criminal Procedure, are amended to read as
1-8 follows:
1-9 Art. 56.32. Definitions. (a) In this subchapter:
1-10 (1) "Child" means an individual younger than 18 years
1-11 of age who:
1-12 (A) is not married; or
1-13 (B) has not had the disabilities of minority
1-14 removed for general purposes under Chapter 31, Family Code.
1-15 (2) "Claimant" means, except as provided by Subsection
1-16 (b), any of the following individuals who is entitled to file or
1-17 has filed a claim for compensation under this subchapter:
1-18 (A) an authorized individual acting on behalf of
1-19 a victim;
1-20 (B) an individual who legally assumes the
1-21 obligation or who voluntarily pays medical or burial expenses of a
1-22 victim incurred as a result of the criminally injurious conduct of
1-23 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
3-1 disability insurance] another state's or another country's crime
3-2 victims' compensation program;
3-3 (E) workers' compensation;
3-4 (F) an employer's wage continuation program, not
3-5 including vacation and sick leave benefits;
3-6 (G) proceeds of an insurance contract payable to
3-7 or on behalf of the claimant or victim for loss that the claimant
3-8 or victim sustained because of the criminally injurious conduct;
3-9 (H) a contract or self-funded program providing
3-10 [prepaid] hospital and other health care services or benefits [for
3-11 disability];
3-12 (I) proceeds awarded to the claimant or victim
3-13 as a result of third-party litigation[; or]
3-14 [(J) proceeds of a life insurance contract
3-15 payable to the claimant or victim].
3-16 (4) "Criminally injurious conduct" means conduct that:
3-17 (A) occurs or is attempted;
3-18 (B) poses a substantial threat of personal
3-19 injury or death;
3-20 (C) is punishable by fine, imprisonment, or
3-21 death, or would be punishable by fine, imprisonment, or death if
3-22 the person engaging in the conduct possessed capacity to commit the
3-23 conduct; and
3-24 (D) does not arise out of the ownership,
3-25 maintenance, or use of a motor vehicle, aircraft, or water vehicle,
4-1 unless the conduct is intended to cause personal injury or death or
4-2 the conduct is in violation of Texas Transportation Code, Section
4-3 550.021, [Section 38, Uniform Act Regulating Traffic on Highways
4-4 (Article 6701d, Vernon's Texas Civil Statutes)] or one or more of
4-5 the following sections of the Penal Code:
4-6 (i) Section 19.04 (manslaughter);
4-7 (ii) Section 19.05 (criminally negligent
4-8 homicide);
4-9 (iii) Section 22.02 (aggravated assault);
4-10 (iv) Section 49.04 (driving while
4-11 intoxicated);
4-12 (v) Section 49.05 (flying while
4-13 intoxicated);
4-14 (vi) Section 49.06 (boating while
4-15 intoxicated);
4-16 (vii) Section 49.07 (intoxication
4-17 assault); or
4-18 (viii) Section 49.08 (intoxication
4-19 manslaughter).
4-20 (5) "Dependent" means:
4-21 (A) a surviving spouse;
4-22 (B) a person who is a dependent, within the
4-23 meaning of the Internal Revenue Code, of a [deceased] victim; [or]
4-24 and
4-25 (C) a posthumous child of a deceased victim.
5-1 (6) "Household member" means an individual who resided
5-2 in the same permanent household as the victim at the time that the
5-3 criminally injurious conduct occurred and who is related by
5-4 consanguinity or affinity to the victim.
5-5 (7) "Immediate family member" means an individual who
5-6 is the father, mother, sister, brother, daughter, son, or spouse of
5-7 a victim, including family members who are related by consanquinity
5-8 within the second degree or by affinity within the second degree [a
5-9 stepparent or stepchild].
5-10 (8) "Intervenor" means an individual who goes to the
5-11 aid of another and is killed or injured in the good faith effort to
5-12 prevent criminally injurious conduct, to apprehend a person
5-13 reasonably suspected of having engaged in criminally injurious
5-14 conduct, or to aid a peace officer.
5-15 (9) "Pecuniary loss" means the amount of expense
5-16 reasonably and necessarily incurred as a result of personal injury
5-17 or death for:
5-18 (A) medical, hospital, nursing, or psychiatric
5-19 care or counseling, or physical therapy;
5-20 (B) actual loss of past earnings and anticipated
5-21 loss of future earnings because of a disability resulting from the
5-22 personal injury, medically indicated services related to the crime,
5-23 or participation in or attendance at investigative, prosecutorial,
5-24 and judicial processes carried on by law enforcement agencies,
5-25 prosecutors, and the judiciary;
6-1 (C) care of a child or dependent [enabling a
6-2 victim, a victim's spouse, or a legal guardian of the victim, but
6-3 not all of them, to continue or engage in gainful employment];
6-4 (D) funeral and burial expenses;
6-5 (E) loss of support to a dependent, consistent
6-6 with Article 56.41(b)(5) [in the event of the death of the victim];
6-7 (F) reasonable and necessary costs of cleaning
6-8 the crime scene; and
6-9 (G) reasonable replacement costs for clothing,
6-10 bedding, or property of the victim seized as evidence or rendered
6-11 unusable as a result of the criminal investigation.
6-12 (10) "Personal injury" means physical or mental harm.
6-13 (11) "Victim" means[, except as provided by Subsection
6-14 (c)] an individual who:
6-15 (A) [an individual who:]
6-16 [(i)] suffers personal injury or death as
6-17 a result of criminally injurious conduct [directed at the
6-18 individual] or as a result of actions taken by the individual as an
6-19 intervenor, if the conduct or actions occurred in this state; and
6-20 [(ii)] is a resident of this state, another state of the United
6-21 States, the District of Columbia, the Commonwealth of Puerto Rico,
6-22 or a possession or territory of the United States; [or]
6-23 (B) [an individual who:]
6-24 (i) suffers personal injury or death as a
6-25 result of criminally injurious conduct [directed at the individual]
7-1 or as a result of actions taken by the individual as an intervenor,
7-2 if the conduct or actions occurred in a state or country that does
7-3 not have a crime victims' compensation program or that meets the
7-4 requirements of Section 1403(b), Crime Victims Compensation Act of
7-5 1984 (42 U.S.C. Section 10602(b));
7-6 (ii) is a resident of this state; and
7-7 (iii) would be entitled to compensation
7-8 under this subchapter if the criminally injurious conduct or
7-9 actions had occurred in this state; or
7-10 (C)(i) suffers personal injury or death as a
7-11 result of criminally injurious conduct caused by an act of
7-12 terrorism, as defined in section 2331 of title 18, United States
7-13 Code, committed outside of the United States; and
7-14 (ii) is a resident of this state.
7-15 (b) In this subchapter "claimant" does not include a service
7-16 provider.
7-17 [(c) In this subchapter "victim" does not include:]
7-18 [(1) a peace officer;]
7-19 [(2) a firefighter; or]
7-20 [(3) another individual whose employment includes the
7-21 duty to protect the public while acting in the course and scope of
7-22 the individual's employment.]
7-23 Art. 56.34. Compensation. (a) The attorney general shall
7-24 award compensation for pecuniary loss arising from criminally
7-25 injurious conduct if the attorney general is satisfied by a
8-1 preponderance of the evidence that the requirements of this
8-2 subchapter are met.
8-3 (b) The attorney general shall establish whether, as a
8-4 direct result of criminally injurious conduct, a claimant or victim
8-5 suffered personal injury or death that resulted in a pecuniary loss
8-6 for which the claimant or victim is not compensated from a
8-7 collateral source.
8-8 (c) The attorney general shall award compensation for health
8-9 care services according to the medical fee guidelines prescribed by
8-10 Subtitle A, Title 5, Labor Code.
8-11 (d) The attorney general, a claimant, or a victim is not
8-12 liable for health care service charges in excess of the medical fee
8-13 guidelines. A health care provider shall accept compensation from
8-14 the attorney general as payment in full for the charges unless an
8-15 investigation of the charges by the attorney general determines
8-16 that there is a reasonable health care justification for the
8-17 deviation from the guidelines.
8-18 (e) A claimant or victim is not liable for the balance of
8-19 service charges left as a result of an adjustment of payment for
8-20 the charges under Article 56.58.
8-21 (f) The compensation to victims of crime fund and the
8-22 compensation to victims of crime auxiliary fund are the payers of
8-23 last resort.
8-24 Art. 56.36. Application. (a) An applicant for compensation
8-25 under this subchapter must apply in writing on [in] a form [that
9-1 conforms substantially to that] prescribed by the attorney general.
9-2 (b) An application must be verified and must contain:
9-3 (1) the date on which the criminally injurious conduct
9-4 occurred;
9-5 (2) a description of the nature and circumstances of
9-6 the criminally injurious conduct;
9-7 (3) a complete financial statement, including:
9-8 (A) the cost of medical care or burial expenses
9-9 and the loss of wages or support the claimant or victim has
9-10 incurred or will incur; and
9-11 (B) the extent to which the claimant or victim
9-12 has been indemnified for those expenses from a collateral source;
9-13 (4) if appropriate, a statement indicating the extent
9-14 of a disability resulting from the injury incurred;
9-15 (5) an authorization permitting the attorney general
9-16 to verify the contents of the application; and
9-17 (6) other information the attorney general requires.
9-18 Art. 56.37. Time for Filing. (a) Except as otherwise
9-19 provided by this article, a claimant or victim must file an
9-20 application not later than three (3) years from the date [the first
9-21 anniversary] of the criminally injurious conduct.
9-22 (b) The attorney general may extend the time for filing for
9-23 good cause shown by the claimant or victim.
9-24 (c) If the victim is a child, the application must be filed
9-25 within three (3) years from the date the claimant or victim is made
10-1 aware of the crime but not after the child is 21 years of age.
10-2 [Subsection (a) does not apply to a claimant or victim if:]
10-3 [(1) the victim is a child; or]
10-4 [(2) the claimant or victim is an immediate family
10-5 member or household member of a child who is the victim, and the
10-6 immediate family member or household member, as the direct result
10-7 of the criminally injurious conduct, requires psychological or
10-8 psychiatric counseling.]
10-9 (d) If a claimant or victim presents medically documented
10-10 evidence of a physical or mental incapacity that was incurred by
10-11 the claimant or victim as a result of the criminally injurious
10-12 conduct and that reasonably prevented the claimant or victim from
10-13 filing the application within the limitations period under
10-14 Subsection (a), the period of the incapacity is not included.
10-15 [(e) If the victim is a child, the application must be filed
10-16 within one year from the date the claimant or victim is made aware
10-17 of the crime but not after the child is 19 years of age.]
10-18 Art. 56.41. Approval of Claim. (a) The attorney general
10-19 shall approve an application for compensation under this subchapter
10-20 if the attorney general finds by a preponderance of the evidence
10-21 that grounds for compensation under this subchapter exist.
10-22 (b) The attorney general shall deny an application for
10-23 compensation under this subchapter if:
10-24 (1) the criminally injurious conduct is not reported
10-25 as provided by Article 56.46;
11-1 (2) the application is not made in the manner provided
11-2 by Articles 56.36 and 56.37;
11-3 (3) the claimant or victim knowingly and willingly
11-4 participated in the criminally injurious conduct;
11-5 (4) the claimant or victim is the offender or an
11-6 accomplice of the offender;
11-7 (5) an award of compensation to the claimant or victim
11-8 would benefit the offender or an accomplice of the offender; [or]
11-9 (6) the claimant or victim was incarcerated in a penal
11-10 institution, as defined by Section 1.07(26), Penal Code, at the
11-11 time the offense was committed; or
11-12 (7) the claimant or victim knowingly or intentionally
11-13 submits false or forged information to the attorney general.
11-14 (c) Except as provided by rules adopted by the attorney
11-15 general to prevent the unjust enrichment of an offender, the
11-16 attorney general may not deny an award otherwise payable to a
11-17 claimant or victim because the claimant or victim:
11-18 (1) is an immediate family member of the offender; or
11-19 (2) resides in the same household as the offender.
11-20 Art. 56.42. Limits on Compensation. (a) Except as
11-21 otherwise provided by this article, awards payable to a victim and
11-22 all other claimants sustaining pecuniary loss because of injury or
11-23 death of that victim may not exceed $50,000 [$25,000] in the
11-24 aggregate.
11-25 (b) In addition to an award payable under Subsection (a),
12-1 the attorney general may award an additional $50,000 [$25,000] for
12-2 extraordinary pecuniary losses, if the personal injury to a victim
12-3 is catastrophic and results in a total and permanent disability to
12-4 the victim, for lost wages and reasonable and necessary costs of:
12-5 (1) making a home or automobile accessible;
12-6 (2) obtaining job training and vocational
12-7 rehabilitation;
12-8 (3) training in the use of special appliances; and
12-9 (4) receiving home health care.
12-10 (c) The attorney general may by rule establish limitations
12-11 on any other pecuniary loss compensated for under this subchapter.
12-12 Art. 56.44. Payments. (a) The attorney general may provide
12-13 for the payment of an award in a lump sum or in installments. The
12-14 attorney general shall provide that the part of an award equal to
12-15 the amount of pecuniary loss accrued to the date of the award be
12-16 paid in a lump sum. Except as provided in Subsection (b), the
12-17 attorney general shall pay the part of an award for allowable
12-18 expense that accrues after the award is made in installments.
12-19 (b) At the request of the claimant or victim, the attorney
12-20 general may provide that an award for future pecuniary loss be paid
12-21 in a lump sum if the attorney general finds that:
12-22 (1) paying the award in a lump sum will promote the
12-23 interests of the claimant or victim; or
12-24 (2) the present value of all future pecuniary loss
12-25 does not exceed $1,000.
13-1 (c) The attorney general may not provide for an award for
13-2 future pecuniary loss payable in installments for a period for
13-3 which the attorney general cannot reasonably determine the future
13-4 pecuniary loss.
13-5 (d) The attorney general may make payments only to an
13-6 individual who is a claimant or a victim, or to a provider on their
13-7 behalf.
13-8 Art. 56.45. Denial or Reduction of Award.
13-9 The attorney general may deny or reduce an award otherwise
13-10 payable:
13-11 (1) if the claimant or victim has not substantially
13-12 cooperated with an appropriate law enforcement agency;
13-13 (2) if the claimant or victim bears a share of the
13-14 responsibility for the act or omission giving rise to the claim
13-15 because of the claimant's or victim's behavior;
13-16 (3) to the extent that pecuniary loss is recouped from
13-17 [another person, including] a collateral source; or
13-18 (4) if the claimant or victim was engaging in an
13-19 activity that at the time of the criminally injurious conduct was
13-20 prohibited by law or a rule made under law.
13-21 Art. 56.46. Reporting of Crime. (a) Except as otherwise
13-22 provided by this article, a claimant or victim may not file an
13-23 application unless the victim reports the criminally injurious
13-24 conduct to the appropriate state or local public safety or law
13-25 enforcement agency within a reasonable period of time, but not so
14-1 late as to interfere with or hamper the investigation and
14-2 prosecution of the crime [not later than 72 hours] after the
14-3 criminally injurious conduct is committed.
14-4 (b) The attorney general may extend the time for reporting
14-5 the criminally injurious conduct if the attorney general determines
14-6 that the extension is justified by extraordinary circumstances.
14-7 (c) Subsection (a) does not apply if the victim is a child.
14-8 Art. 56.47. Reconsideration. (a) The attorney general, on
14-9 the attorney general's own motion or on request of a claimant or
14-10 victim, may reconsider:
14-11 (1) a decision to make or deny an award; or
14-12 (2) the amount of an award.
14-13 (b) At least annually, the attorney general shall reconsider
14-14 each award being paid in installments.
14-15 (c) An order on reconsideration may require a refund of an
14-16 award if:
14-17 (1) the award was obtained by fraud or mistake; or
14-18 (2) newly discovered evidence shows the claimant or
14-19 victim to be ineligible for the award under Article 56.41 or 56.45.
14-20 [(d) The right of reconsideration does not affect the
14-21 finality of an attorney general decision for the purpose of
14-22 judicial review.]
14-23 Art. 56.48. Judicial Review. (a) Not later than the 40th
14-24 [20th] day after the attorney general renders a final decision, a
14-25 claimant or victim may file with the attorney general a notice of
15-1 dissatisfaction with the decision. Not later than the 40th [20th]
15-2 day after the claimant or victim gives notice, the claimant or
15-3 victim shall bring suit in the district court having jurisdiction
15-4 in the county in which:
15-5 (1) the injury or death occurred;
15-6 (2) the victim resided at the time the injury or death
15-7 occurred; or
15-8 (3) if the victim resided out of state at the time of
15-9 the injury or death, in the county where the injury or death
15-10 occurred or in a district court of Travis County.
15-11 (b) While judicial review of a decision by the attorney
15-12 general is pending, the attorney general:
15-13 (1) shall suspend payments to the claimant or victim;
15-14 and
15-15 (2) may not reconsider the award.
15-16 (c) The court shall determine the issues by trial de novo.
15-17 The burden of proof is on the party who filed the notice of
15-18 dissatisfaction.
15-19 (d) A court may award not more than 25 percent of the total
15-20 recovery by the claimant or victim for attorney fees in the event
15-21 of review.
15-22 (e) In computing a period under this article, if the last
15-23 day is a legal holiday or Sunday, the last day is not counted, and
15-24 the time is extended to include the next business day.
15-25 Art. 56.54. Funds. (a) The compensation to victims of
16-1 crime fund and the compensation to victims of crime auxiliary fund
16-2 are in the state treasury.
16-3 (b) Except as provided by Subsections (i) and (h) of this
16-4 section, the [The] compensation to victims of crime fund may be
16-5 used by the attorney general only for the payment of compensation
16-6 to claimants or victims under this subchapter, the operation of the
16-7 Crime Victims' Institute created at Chapter 412, Government Code,
16-8 and other expenses in administering this subchapter.
16-9 (c) Except as provided by Subsections (i) and (h) of this
16-10 section, the [The] compensation to victims of crime auxiliary fund
16-11 may be used by the attorney general only for the payment of
16-12 compensation to claimants or victims under this subchapter.
16-13 (d) The attorney general may not make compensation payments
16-14 in excess of the amount of money available from the combined funds.
16-15 (e) General revenues may not be used for payments under this
16-16 subchapter.
16-17 (f) The office of the attorney general is authorized to
16-18 accept gifts, grants, and donations to be credited to the
16-19 compensation to victims of crime fund and compensation to victims
16-20 of crime auxiliary fund and shall file annually with the governor
16-21 and the presiding officer of each house of the legislature a
16-22 complete and detailed written report accounting for all gifts,
16-23 grants, and donations received and disbursed, used, or maintained
16-24 by the office for the attorney general that are credited to these
16-25 funds.
17-1 (g) Money in the compensation to victims of crime fund or in
17-2 the compensation to victims of crime auxiliary fund may be used
17-3 only as provided by this subchapter and is not available for any
17-4 other purpose. Section 403.095, Government Code, does not apply to
17-5 the fund.
17-6 (h) An amount of money deposited to the credit of the
17-7 compensation to victims of crime fund not to exceed one-quarter of
17-8 the amount disbursed from that fund in the form of compensation
17-9 payments during a fiscal year shall be carried forward into the
17-10 next succeeding fiscal year and applied toward the amount listed in
17-11 the next succeeding fiscal year's method of financing.
17-12 (i) If the sums available in the compensation to victims of
17-13 crime fund are sufficient in a fiscal year to make all compensation
17-14 payments, the attorney general may retain any portion of the Fund
17-15 that was deposited during the fiscal year that was in excess of
17-16 compensation payments made during that fiscal year as an emergency
17-17 reserve for the next fiscal year. Such emergency reserve may not
17-18 exceed $10,000,000. The emergency reserve fund may be used only to
17-19 make compensation awards in claims and for providing emergency
17-20 relief and assistance, including crisis intervention, emergency
17-21 housing, travel, food, or expenses and technical assistance
17-22 expenses incurred in the implementation of this subsection in
17-23 incidents resulting from an act(s) of mass violence or of
17-24 international terrorism as defined in Section 2331 of title 18,
17-25 United States Code, occurring in the state or for Texas residents
18-1 injured or killed in an act of terrorism outside of the United
18-2 States.
18-3 SECTION 2. (a) The changes in law made by this Act apply
18-4 only to an application for compensation for criminally injurious
18-5 conduct occurring on or after the effective date of this Act. For
18-6 purposes of this section, conduct occurs before the effective date
18-7 of this Act if any element of the offense that is included in the
18-8 criminally injurious conduct occurs before that date.
18-9 (b) An application for compensation based on an offense
18-10 committed before the effective date of this Act is covered by the
18-11 law in effect when the offense was committed, and the former law is
18-12 continued in effect for that purpose.
18-13 SECTION 3. Section 5.86(a), Chapter 76, Acts of the 74th
18-14 Legislature, 1995, are repealed.
18-15 SECTION 4. EFFECTIVE DATE. This Act takes effect on
18-16 September 1, 1997.
18-17 SECTION 5. The importance of this legislation and the
18-18 crowded condition of the calendars in both houses create an
18-19 emergency and an imperative public necessity that the
18-20 constitutional rule requiring bills to be read on three several
18-21 days in each house be suspended, and this rule is hereby suspended,
18-22 and it is so enacted.