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                                  * * * * *