1-1 By: Whitmire S.B. No. 1156
1-2 (In the Senate - Filed March 11, 1997; March 17, 1997, read
1-3 first time and referred to Committee on Criminal Justice;
1-4 April 10, 1997, reported favorably, as amended, by the following
1-5 vote: Yeas 7, Nays 0; April 10, 1997, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Whitmire
1-7 Amend S.B. No. 1156 by striking from the bill caption on page 1,
1-8 line 13, "and making an appropriation".
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to comprehensive revisions to Subchapter B, Chapter 56,
1-12 Code of Criminal Procedure, the Crime Victims' Compensation Act,
1-13 and making an appropriation.
1-14 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-15 SECTION 1. Articles 56.32, 56.34, 56.36, 56.37, 56.41,
1-16 56.42, 56.44, 56.45, 56.46, 56.47, 56.48, and 56.54, Code of
1-17 Criminal Procedure, are amended to read as follows:
1-18 Art. 56.32. Definitions. (a) In this subchapter:
1-19 (1) "Child" means an individual younger than 18 years
1-20 of age who:
1-21 (A) is not married; or
1-22 (B) has not had the disabilities of minority
1-23 removed for general purposes under Chapter 31, Family Code.
1-24 (2) "Claimant" means, except as provided by Subsection
1-25 (b), any of the following individuals who is entitled to file or
1-26 has filed a claim for compensation under this subchapter:
1-27 (A) an authorized individual acting on behalf of
1-28 a victim;
1-29 (B) an individual who legally assumes the
1-30 obligation or who voluntarily pays medical or burial expenses of a
1-31 victim incurred as a result of the criminally injurious conduct of
1-32 another;
1-33 (C) a dependent of a victim who died as a result
1-34 of criminally injurious conduct;
1-35 (D) an immediate family member or household
1-36 member of a victim who[:]
1-37 [(i) is not a dependent of the victim; and]
1-38 [(ii)] requires psychiatric care or
1-39 counseling as a result of the criminally injurious conduct [of
1-40 another who injured the victim]; or
1-41 (E) an authorized individual acting on behalf of
1-42 an individual who is described by Subdivision (C) or (D) and who is
1-43 a child.
1-44 (3) "Collateral source" means any of the following
1-45 sources of benefits or advantages for pecuniary loss that a
1-46 claimant or victim has received or that is readily available to the
1-47 claimant or victim from:
1-48 (A) the offender under an order of restitution
1-49 to the claimant or victim imposed by a court as a condition of
1-50 community supervision;
1-51 (B) the United States, a federal agency, a state
1-52 or any of its political subdivisions, or an instrumentality of two
1-53 or more states, unless the law providing for the benefits or
1-54 advantages makes them in excess of or secondary to benefits under
1-55 this subchapter;
1-56 (C) social security, Medicare, or Medicaid;
1-57 (D) another state's or another country's crime
1-58 victims' compensation program [state-required temporary
1-59 nonoccupational disability insurance];
1-60 (E) workers' compensation;
1-61 (F) an employer's wage continuation program, not
1-62 including vacation and sick leave benefits;
1-63 (G) proceeds of an insurance contract payable to
1-64 or on behalf of the claimant or victim for loss that the claimant
2-1 or victim sustained because of the criminally injurious conduct;
2-2 (H) a contract or self-funded program providing
2-3 [prepaid] hospital and other health care services or benefits [for
2-4 disability]; or
2-5 (I) proceeds awarded to the claimant or victim
2-6 as a result of third-party litigation[; or]
2-7 [(J) proceeds of a life insurance contract
2-8 payable to the claimant or victim].
2-9 (4) "Criminally injurious conduct" means conduct that:
2-10 (A) occurs or is attempted;
2-11 (B) poses a substantial threat of personal
2-12 injury or death;
2-13 (C) is punishable by fine, imprisonment, or
2-14 death, or would be punishable by fine, imprisonment, or death if
2-15 the person engaging in the conduct possessed capacity to commit the
2-16 conduct; and
2-17 (D) does not arise out of the ownership,
2-18 maintenance, or use of a motor vehicle, aircraft, or water vehicle,
2-19 unless the conduct is intended to cause personal injury or death or
2-20 the conduct is in violation of Section 550.021, Transportation Code
2-21 [Section 38, Uniform Act Regulating Traffic on Highways (Article
2-22 6701d, Vernon's Texas Civil Statutes)], or one or more of the
2-23 following sections of the Penal Code:
2-24 (i) Section 19.04 (manslaughter);
2-25 (ii) Section 19.05 (criminally negligent
2-26 homicide);
2-27 (iii) Section 22.02 (aggravated assault);
2-28 (iv) Section 49.04 (driving while
2-29 intoxicated);
2-30 (v) Section 49.05 (flying while
2-31 intoxicated);
2-32 (vi) Section 49.06 (boating while
2-33 intoxicated);
2-34 (vii) Section 49.07 (intoxication
2-35 assault); or
2-36 (viii) Section 49.08 (intoxication
2-37 manslaughter).
2-38 (5) "Dependent" means:
2-39 (A) a surviving spouse;
2-40 (B) a person who is a dependent, within the
2-41 meaning of the Internal Revenue Code, of a [deceased] victim; and
2-42 [or]
2-43 (C) a posthumous child of a deceased victim.
2-44 (6) "Household member" means an individual who resided
2-45 in the same permanent household as the victim at the time that the
2-46 criminally injurious conduct occurred and who is related by
2-47 consanguinity or affinity to the victim.
2-48 (7) "Immediate family member" means an individual who
2-49 is the father, mother, sister, brother, daughter, son, or spouse of
2-50 a victim, including family members who are related by consanquinity
2-51 within the second degree or by affinity within the second degree [a
2-52 stepparent or stepchild].
2-53 (8) "Intervenor" means an individual who goes to the
2-54 aid of another and is killed or injured in the good faith effort to
2-55 prevent criminally injurious conduct, to apprehend a person
2-56 reasonably suspected of having engaged in criminally injurious
2-57 conduct, or to aid a peace officer.
2-58 (9) "Pecuniary loss" means the amount of expense
2-59 reasonably and necessarily incurred as a result of personal injury
2-60 or death for:
2-61 (A) medical, hospital, nursing, or psychiatric
2-62 care or counseling, or physical therapy;
2-63 (B) actual loss of past earnings and anticipated
2-64 loss of future earnings because of a disability resulting from the
2-65 personal injury, medically indicated services related to the crime,
2-66 or participation in or attendance at investigative, prosecutorial,
2-67 and judicial processes carried on by law enforcement agencies,
2-68 prosecutors, and the judiciary;
2-69 (C) care of a child or dependent [enabling a
3-1 victim, a victim's spouse, or a legal guardian of the victim, but
3-2 not all of them, to continue or engage in gainful employment];
3-3 (D) funeral and burial expenses;
3-4 (E) loss of support to a dependent, consistent
3-5 with Article 56.41(b)(5) [in the event of the death of the victim];
3-6 (F) reasonable and necessary costs of cleaning
3-7 the crime scene; and
3-8 (G) reasonable replacement costs for clothing,
3-9 bedding, or property of the victim seized as evidence or rendered
3-10 unusable as a result of the criminal investigation.
3-11 (10) "Personal injury" means physical or mental harm.
3-12 (11) "Victim" means an individual who[, except as
3-13 provided by Subsection (c)]:
3-14 (A) [an individual who:]
3-15 [(i)] suffers personal injury or death as
3-16 a result of criminally injurious conduct [directed at the
3-17 individual] or as a result of actions taken by the individual as an
3-18 intervenor, if the conduct or actions occurred in this state[;] and
3-19 the individual [(ii)] is a resident of this state, another state of
3-20 the United States, the District of Columbia, the Commonwealth of
3-21 Puerto Rico, or a possession or territory of the United States;
3-22 [or]
3-23 (B) [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 a state or country that does
3-28 not have a crime victims' compensation program that meets the
3-29 requirements of Section 1403(b), Crime Victims Compensation Act of
3-30 1984 (42 U.S.C. Section 10602(b));
3-31 (ii) is a resident of this state; and
3-32 (iii) would be entitled to compensation
3-33 under this subchapter if the criminally injurious conduct or
3-34 actions had occurred in this state; or
3-35 (C)(i) suffers personal injury or death as a
3-36 result of criminally injurious conduct caused by an act of
3-37 terrorism, as defined in 18 U.S.C. Section 2331, committed outside
3-38 of the United States; and
3-39 (ii) is a resident of this state.
3-40 (b) In this subchapter "claimant" does not include a service
3-41 provider.
3-42 [(c) In this subchapter "victim" does not include:]
3-43 [(1) a peace officer;]
3-44 [(2) a firefighter; or]
3-45 [(3) another individual whose employment includes the
3-46 duty to protect the public while acting in the course and scope of
3-47 the individual's employment.]
3-48 Art. 56.34. Compensation. (a) The attorney general shall
3-49 award compensation for pecuniary loss arising from criminally
3-50 injurious conduct if the attorney general is satisfied by a
3-51 preponderance of the evidence that the requirements of this
3-52 subchapter are met.
3-53 (b) The attorney general shall establish whether, as a
3-54 direct result of criminally injurious conduct, a claimant or victim
3-55 suffered personal injury or death that resulted in a pecuniary loss
3-56 for which the claimant or victim is not compensated from a
3-57 collateral source.
3-58 (c) The attorney general shall award compensation for health
3-59 care services according to the medical fee guidelines prescribed by
3-60 Subtitle A, Title 5, Labor Code.
3-61 (d) The attorney general, a claimant, or a victim is not
3-62 liable for health care service charges in excess of the medical fee
3-63 guidelines. A health care provider shall accept compensation from
3-64 the attorney general as payment in full for the charges unless an
3-65 investigation of the charges by the attorney general determines
3-66 that there is a reasonable health care justification for the
3-67 deviation from the guidelines.
3-68 (e) A claimant or victim is not liable for the balance of
3-69 service charges left as a result of an adjustment of payment for
4-1 the charges under Article 56.58.
4-2 (f) The compensation to victims of crime fund and the
4-3 compensation to victims of crime auxiliary fund are the payers of
4-4 last resort.
4-5 Art. 56.36. Application. (a) An applicant for compensation
4-6 under this subchapter must apply in writing on [in] a form [that
4-7 conforms substantially to that] prescribed by the attorney general.
4-8 (b) An application must be verified and must contain:
4-9 (1) the date on which the criminally injurious conduct
4-10 occurred;
4-11 (2) a description of the nature and circumstances of
4-12 the criminally injurious conduct;
4-13 (3) a complete financial statement, including:
4-14 (A) the cost of medical care or burial expenses
4-15 and the loss of wages or support the claimant or victim has
4-16 incurred or will incur; and
4-17 (B) the extent to which the claimant or victim
4-18 has been indemnified for those expenses from a collateral source;
4-19 (4) if appropriate, a statement indicating the extent
4-20 of a disability resulting from the injury incurred;
4-21 (5) an authorization permitting the attorney general
4-22 to verify the contents of the application; and
4-23 (6) other information the attorney general requires.
4-24 Art. 56.37. Time for Filing. (a) Except as otherwise
4-25 provided by this article, a claimant or victim must file an
4-26 application not later than three years after the date [the first
4-27 anniversary] of the criminally injurious conduct.
4-28 (b) The attorney general may extend the time for filing for
4-29 good cause shown by the claimant or victim.
4-30 (c) If the victim is a child, the application must be filed
4-31 within three years after the date the claimant or victim is made
4-32 aware of the crime but not after the child is 21 years of age.
4-33 [Subsection (a) does not apply to a claimant or victim if:]
4-34 [(1) the victim is a child; or]
4-35 [(2) the claimant or victim is an immediate family
4-36 member or household member of a child who is the victim, and the
4-37 immediate family member or household member, as the direct result
4-38 of the criminally injurious conduct, requires psychological or
4-39 psychiatric counseling.]
4-40 (d) If a claimant or victim presents medically documented
4-41 evidence of a physical or mental incapacity that was incurred by
4-42 the claimant or victim as a result of the criminally injurious
4-43 conduct and that reasonably prevented the claimant or victim from
4-44 filing the application within the limitations period under
4-45 Subsection (a), the period of the incapacity is not included.
4-46 [(e) If the victim is a child, the application must be filed
4-47 within one year from the date the claimant or victim is made aware
4-48 of the crime but not after the child is 19 years of age.]
4-49 Art. 56.41. Approval of Claim. (a) The attorney general
4-50 shall approve an application for compensation under this subchapter
4-51 if the attorney general finds by a preponderance of the evidence
4-52 that grounds for compensation under this subchapter exist.
4-53 (b) The attorney general shall deny an application for
4-54 compensation under this subchapter if:
4-55 (1) the criminally injurious conduct is not reported
4-56 as provided by Article 56.46;
4-57 (2) the application is not made in the manner provided
4-58 by Articles 56.36 and 56.37;
4-59 (3) the claimant or victim knowingly and willingly
4-60 participated in the criminally injurious conduct;
4-61 (4) the claimant or victim is the offender or an
4-62 accomplice of the offender;
4-63 (5) an award of compensation to the claimant or victim
4-64 would benefit the offender or an accomplice of the offender; [or]
4-65 (6) the claimant or victim was incarcerated in a penal
4-66 institution, as defined by Section 1.07(26), Penal Code, at the
4-67 time the offense was committed; or
4-68 (7) the claimant or victim knowingly or intentionally
4-69 submits false or forged information to the attorney general.
5-1 (c) Except as provided by rules adopted by the attorney
5-2 general to prevent the unjust enrichment of an offender, the
5-3 attorney general may not deny an award otherwise payable to a
5-4 claimant or victim because the claimant or victim:
5-5 (1) is an immediate family member of the offender; or
5-6 (2) resides in the same household as the offender.
5-7 Art. 56.42. Limits on Compensation. (a) Except as
5-8 otherwise provided by this article, awards payable to a victim and
5-9 all other claimants sustaining pecuniary loss because of injury or
5-10 death of that victim may not exceed $50,000 [$25,000] in the
5-11 aggregate.
5-12 (b) In addition to an award payable under Subsection (a),
5-13 the attorney general may award an additional $50,000 [$25,000] for
5-14 extraordinary pecuniary losses, if the personal injury to a victim
5-15 is catastrophic and results in a total and permanent disability to
5-16 the victim, for lost wages and reasonable and necessary costs of:
5-17 (1) making a home or automobile accessible;
5-18 (2) obtaining job training and vocational
5-19 rehabilitation;
5-20 (3) training in the use of special appliances; and
5-21 (4) receiving home health care.
5-22 (c) The attorney general may by rule establish limitations
5-23 on any other pecuniary loss compensated for under this subchapter.
5-24 Art. 56.44. Payments. (a) The attorney general may provide
5-25 for the payment of an award in a lump sum or in installments. The
5-26 attorney general shall provide that the part of an award equal to
5-27 the amount of pecuniary loss accrued to the date of the award be
5-28 paid in a lump sum. Except as provided in Subsection (b), the
5-29 attorney general shall pay the part of an award for allowable
5-30 expense that accrues after the award is made in installments.
5-31 (b) At the request of the claimant or victim, the attorney
5-32 general may provide that an award for future pecuniary loss be paid
5-33 in a lump sum if the attorney general finds that:
5-34 (1) paying the award in a lump sum will promote the
5-35 interests of the claimant or victim; or
5-36 (2) the present value of all future pecuniary loss
5-37 does not exceed $1,000.
5-38 (c) The attorney general may not provide for an award for
5-39 future pecuniary loss payable in installments for a period for
5-40 which the attorney general cannot reasonably determine the future
5-41 pecuniary loss.
5-42 (d) The attorney general may make payments only to an
5-43 individual who is a claimant or a victim or to a provider on the
5-44 individual's behalf.
5-45 Art. 56.45. Denial or Reduction of Award. The attorney
5-46 general may deny or reduce an award otherwise payable:
5-47 (1) if the claimant or victim has not substantially
5-48 cooperated with an appropriate law enforcement agency;
5-49 (2) if the claimant or victim bears a share of the
5-50 responsibility for the act or omission giving rise to the claim
5-51 because of the claimant's or victim's behavior;
5-52 (3) to the extent that pecuniary loss is recouped from
5-53 [another person, including] a collateral source; or
5-54 (4) if the claimant or victim was engaging in an
5-55 activity that at the time of the criminally injurious conduct was
5-56 prohibited by law or a rule made under law.
5-57 Art. 56.46. Reporting of Crime. (a) Except as otherwise
5-58 provided by this article, a claimant or victim may not file an
5-59 application unless the victim reports the criminally injurious
5-60 conduct to the appropriate state or local public safety or law
5-61 enforcement agency within a reasonable period of time, but not so
5-62 late as to interfere with or hamper the investigation and
5-63 prosecution of the crime, [not later than 72 hours] after the
5-64 criminally injurious conduct is committed.
5-65 (b) The attorney general may extend the time for reporting
5-66 the criminally injurious conduct if the attorney general determines
5-67 that the extension is justified by extraordinary circumstances.
5-68 (c) Subsection (a) does not apply if the victim is a child.
5-69 Art. 56.47. Reconsideration. (a) The attorney general, on
6-1 the attorney general's own motion or on request of a claimant or
6-2 victim, may reconsider:
6-3 (1) a decision to make or deny an award; or
6-4 (2) the amount of an award.
6-5 (b) At least annually, the attorney general shall reconsider
6-6 each award being paid in installments.
6-7 (c) An order on reconsideration may require a refund of an
6-8 award if:
6-9 (1) the award was obtained by fraud or mistake; or
6-10 (2) newly discovered evidence shows the claimant or
6-11 victim to be ineligible for the award under Article 56.41 or 56.45.
6-12 [(d) The right of reconsideration does not affect the
6-13 finality of an attorney general decision for the purpose of
6-14 judicial review.]
6-15 Art. 56.48. Judicial Review. (a) Not later than the 40th
6-16 [20th] day after the attorney general renders a final decision, a
6-17 claimant or victim may file with the attorney general a notice of
6-18 dissatisfaction with the decision. Not later than the 40th [20th]
6-19 day after the claimant or victim gives notice, the claimant or
6-20 victim shall bring suit in the district court having jurisdiction
6-21 in the county in which:
6-22 (1) the injury or death occurred;
6-23 (2) the victim resided at the time the injury or death
6-24 occurred; or
6-25 (3) if the victim resided out of state at the time of
6-26 the injury or death, in the county where the injury or death
6-27 occurred or in a district court of Travis County.
6-28 (b) While judicial review of a decision by the attorney
6-29 general is pending, the attorney general:
6-30 (1) shall suspend payments to the claimant or victim;
6-31 and
6-32 (2) may not reconsider the award.
6-33 (c) The court shall determine the issues by trial de novo.
6-34 The burden of proof is on the party who filed the notice of
6-35 dissatisfaction.
6-36 (d) A court may award not more than 25 percent of the total
6-37 recovery by the claimant or victim for attorney fees in the event
6-38 of review.
6-39 (e) In computing a period under this article, if the last
6-40 day is a legal holiday or Sunday, the last day is not counted, and
6-41 the time is extended to include the next business day.
6-42 Art. 56.54. Funds. (a) The compensation to victims of
6-43 crime fund and the compensation to victims of crime auxiliary fund
6-44 are in the state treasury.
6-45 (b) Except as provided by Subsections (h) and (i) of this
6-46 section, the [The] compensation to victims of crime fund may be
6-47 used by the attorney general only for the payment of compensation
6-48 to claimants or victims under this subchapter, the operation of the
6-49 Crime Victims' Institute created under Chapter 412, Government
6-50 Code, and other expenses in administering this subchapter.
6-51 (c) Except as provided by Subsections (h) and (i) of this
6-52 section, the [The] compensation to victims of crime auxiliary fund
6-53 may be used by the attorney general only for the payment of
6-54 compensation to claimants or victims under this subchapter.
6-55 (d) The attorney general may not make compensation payments
6-56 in excess of the amount of money available from the combined funds.
6-57 (e) General revenues may not be used for payments under this
6-58 subchapter.
6-59 (f) The office of the attorney general is authorized to
6-60 accept gifts, grants, and donations to be credited to the
6-61 compensation to victims of crime fund and compensation to victims
6-62 of crime auxiliary fund and shall file annually with the governor
6-63 and the presiding officer of each house of the legislature a
6-64 complete and detailed written report accounting for all gifts,
6-65 grants, and donations received and disbursed, used, or maintained
6-66 by the office for the attorney general that are credited to these
6-67 funds.
6-68 (g) Money in the compensation to victims of crime fund or in
6-69 the compensation to victims of crime auxiliary fund may be used
7-1 only as provided by this subchapter and is not available for any
7-2 other purpose. Section 403.095, Government Code, does not apply to
7-3 the fund.
7-4 (h) An amount of money deposited to the credit of the
7-5 compensation to victims of crime fund not to exceed one-quarter of
7-6 the amount disbursed from that fund in the form of compensation
7-7 payments during a fiscal year shall be carried forward into the
7-8 next succeeding fiscal year and applied toward the amount listed in
7-9 the next succeeding fiscal year's method of financing.
7-10 (i) If the sums available in the compensation to victims of
7-11 crime fund are sufficient in a fiscal year to make all compensation
7-12 payments, the attorney general may retain any portion of the fund
7-13 that was deposited during the fiscal year that was in excess of
7-14 compensation payments made during that fiscal year as an emergency
7-15 reserve for the next fiscal year. Such emergency reserve may not
7-16 exceed $10 million. The emergency reserve fund may be used only to
7-17 make compensation awards in claims and for providing emergency
7-18 relief and assistance, including crisis intervention, emergency
7-19 housing, travel, food, or expenses and technical assistance
7-20 expenses incurred in the implementation of this subsection in
7-21 incidents resulting from an act or acts of mass violence or of
7-22 international terrorism as defined in 18 U.S.C. Section 2331,
7-23 occurring in this state or for Texas residents injured or killed in
7-24 an act of terrorism outside the United States.
7-25 SECTION 2. (a) The changes in law made by this Act apply
7-26 only to an application for compensation for criminally injurious
7-27 conduct occurring on or after the effective date of this Act. For
7-28 purposes of this section, conduct occurs before the effective date
7-29 of this Act if any element of the offense that is included in the
7-30 criminally injurious conduct occurs before that date.
7-31 (b) An application for compensation based on an offense
7-32 committed before the effective date of this Act is covered by the
7-33 law in effect when the offense was committed, and the former law is
7-34 continued in effect for that purpose.
7-35 SECTION 3. Subsection (a), Section 5.86, Chapter 76, Acts of
7-36 the 74th Legislature, 1995, is repealed.
7-37 SECTION 4. This Act takes effect September 1, 1997.
7-38 SECTION 5. The importance of this legislation and the
7-39 crowded condition of the calendars in both houses create an
7-40 emergency and an imperative public necessity that the
7-41 constitutional rule requiring bills to be read on three several
7-42 days in each house be suspended, and this rule is hereby suspended.
7-43 * * * * *