79R9964 KCR-D
By: Taylor H.B. No. 3376
A BILL TO BE ENTITLED
AN ACT
relating to criminal offenses involving theft and fraud, to the
statutes of limitation for those offenses, and to the effect of the
commission of those offenses on certain license holders and
applicants.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 34.01, Penal Code, is amended by
amending Subdivision (4) and adding Subdivisions (5) and (6) to
read as follows:
(4) "Proceeds" means funds acquired or derived
directly or indirectly from, produced through, or realized through
a criminal activity [an act].
(5) "Conducts" includes:
(A) initiating or concluding a transaction; and
(B) participating in initiating, concluding, or
otherwise conducting a transaction.
(6) "Transaction" includes:
(A) the deposit, withdrawal, transfer, bailment,
loan, pledge, payment, or exchange of currency or a monetary
instrument; and
(B) the electronic, wire, magnetic, or manual
transfer of funds between accounts by, through, or to a financial
institution.
SECTION 2. Section 34.02, Penal Code, is amended by
amending Subsections (a), (b), and (e) and adding Subsections (a-1)
and (f) to read as follows:
(a) A person commits an offense if the person knowingly:
(1) conducts a transaction involving [acquires or
maintains an interest in, receives, conceals, possesses,
transfers, or transports] the proceeds of criminal activity; or
(2) conducts a transaction or offers to conduct[,
supervises, or facilitates] a transaction involving [the proceeds
of criminal activity; or
[(3) invests, expends, or receives, or offers to
invest, expend, or receive, the proceeds of criminal activity or]
funds that the person believes are the proceeds of criminal
activity.
(a-1) Knowledge of the specific nature of the criminal
activity giving rise to the proceeds is not required to establish a
culpable mental state under this section.
(b) For purposes of Subsection (a)(2) [(a)(3) of this
section], a person is presumed to believe that funds are the
proceeds of criminal activity if a peace officer or a person acting
at the direction of a peace officer represents to the person that
the funds are proceeds of criminal activity, regardless of whether
the peace officer or person acting at the peace officer's direction
discloses the person's status as a peace officer or that the person
is acting at the direction of a peace officer.
(e) An offense under this section is:
(1) a state jail felony if the value of the funds
involved in the transaction is less than $3,000;
(2) a felony of the third degree if the value of the
funds involved in the transaction is $3,000 or more but less than
$20,000;
(3) [(2)] a felony of the second degree if the value of
the funds involved in the transaction is $20,000 or more but less
than $100,000; or
(4) [(3)] a felony of the first degree if the value of
the funds involved in the transaction is $100,000 or more.
(f) If separate transactions in violation of this section
are conducted pursuant to one scheme or continuing course of
conduct, the conduct may be considered as one offense and the value
of the funds involved in the transactions aggregated in determining
the classification of the offense.
SECTION 3. Chapter 35, Penal Code, is amended by amending
Sections 35.01 and 35.02 and adding Sections 35.015 and 35.025 to
read as follows:
Sec. 35.01. DEFINITIONS. In this chapter:
(1) "Insurance policy" has the meanings assigned by
Sections 912.001(2) and 1201.001, Insurance Code ["Health care
goods" means a tangible product, device, medicine, or other object
provided in conjunction with a health care service].
(2) ["Health care provider" means a person who renders
health care services or an agent or employee of an organization that
renders or provides a facility and means to render health care
services. The term includes a physician, surgeon, person who may be
selected by an insured or a beneficiary under Article 21.52,
Insurance Code, and person defined as a provider of health care
under Section 152.003, Occupations Code.
[(3) "Health care service" means a service that is
intended to improve or maintain the physical or mental condition of
an individual and that is rendered, directed, or supervised by a
health care provider.
[(4)] "Insurer" has the meaning assigned by Article
1.02, Insurance Code [means a person who engages in the business of
insurance in this state, including:
[(A) an insurer that is not authorized to do
business in this state;
[(B) a health maintenance organization;
[(C) a group hospital service corporation
regulated under Chapter 842, Insurance Code; and
[(D) any person who self-insures and provides
health care benefits to the person's employees].
(3) [(5)] "Statement" means a [an oral or written
communication or a record or] documented representation of fact to
an insurer [evidencing a loss, injury, or expense]. The term
includes computer-generated information.
(4) "Value of the claim" means the total dollar amount
of a claim for payment under an insurance policy or, as applicable,
the value of the claim determined under Section 35.025.
Sec. 35.015. MATERIALITY. (a) A statement is material for
the purposes of this chapter, regardless of the admissibility of
the statement at trial, if the statement could have affected:
(1) the eligibility for coverage or amount of the
payment on a claim for payment under an insurance policy; or
(2) the decision of an insurer whether to issue an
insurance policy.
(b) Whether a statement is material in a given factual
situation is a question of law.
Sec. 35.02. INSURANCE FRAUD. (a) A person commits an
offense if [, with intent to defraud or deceive an insurer,] the
person, in support of a claim for payment under an insurance policy:
(1) recklessly prepares or causes to be prepared [or
presents to an insurer in support of a claim for payment under a
health or property and casualty insurance policy] a statement that:
(A) [the person knows] contains false or
misleading material information; and
(B) is presented to an insurer; or
(2) recklessly presents to or causes to be presented
to an insurer a statement that contains false or misleading
material information [concerning a matter that is material to the
claim, and the matter affects a person's right to a payment or the
amount of payment to which a person is entitled].
(b) A person commits an offense if the person, in support of
an application for an insurance policy:
(1) recklessly prepares or causes to be prepared a
statement that:
(A) contains false or misleading material
information; and
(B) is presented to an insurer; or
(2) recklessly presents or causes to be presented to
an insurer a statement that contains false or misleading material
information [A person commits an offense if, with intent to defraud
or deceive an insurer, the person solicits, offers, pays, or
receives a benefit in connection with the furnishing of health care
goods or services for which a claim for payment is submitted under a
health or property and casualty insurance policy].
(c) [For purposes of Subsection (a), information concerning
a matter that is material to a claim for payment under an insurance
policy includes information concerning:
[(1) whether health care goods or services were
provided;
[(2) whether health care goods or services were
medically necessary under professionally accepted standards;
[(3) the nature of the health care goods or services
provided;
[(4) the date on which health care goods or services
were provided;
[(5) the medical record of goods or services provided;
[(6) the condition treated or diagnosis made;
[(7) the identity and applicable license of the
provider or the recipient of health care goods or services;
[(8) whether property was damaged or lost in the
manner and under the circumstances described in a statement related
to a claim for insurance payment; or
[(9) whether any other claim for insurance payment has
been communicated to any other insurer concerning property damage
or loss to the same property.
[(d)] An offense under Subsection (a) [this section] is:
(1) a Class C misdemeanor if the value of the claim is
less than $20;
(2) a Class B misdemeanor if the value of the claim is
$20 or more but less than $500;
(3) a Class A misdemeanor if the value of the claim is
$500 or more but less than $1,500;
(4) a state jail felony if the value of the claim is
$1,500 or more but less than $20,000;
(5) a felony of the third degree if the value of the
claim is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the
claim is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if:
(A) the value of the claim is $200,000 or more;
or
(B) an act committed in connection with [the
value of the claim is less than $200,000 and] the commission of the
offense places [placed] a person at risk of death or serious bodily
injury.
(d) An offense under Subsection (b) is a state jail felony.
(e) The court shall order a defendant convicted of an
offense under this section to pay restitution, including court
costs and attorney's fees, to an affected insurer.
(f) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
(g) For purposes of Subsection (a), if the actor proves by a
preponderance of the evidence that a portion of the claim for
payment under an insurance policy resulted from a valid loss,
injury, expense, or service covered by the policy, the value of the
claim is equal to the difference between the total claim amount and
the amount of the valid portion of the claim.
(h) If it is shown on the trial of an offense under this
section that the actor submitted a bill for goods or services in
support of a claim for payment under an insurance policy to the
insurer issuing the policy, a rebuttable presumption exists that
the actor caused the claim for payment to be prepared or presented.
Sec. 35.025. VALUE OF CLAIM. (a) Except as provided by
Subsection (b) and subject to Subsection (c), for the purposes of
Section 35.02(c), if the value of a claim is not readily
ascertainable, the value of the claim is:
(1) the fair market value, at the time and place of the
offense, of the property, goods, or services that are the subject of
the claim; or
(2) the cost of replacing the property, goods, or
services that are the subject of the claim within a reasonable time
after the claim.
(b) If property, goods, or services that are the subject of
a claim cannot be reasonably ascertained under Subsection (a), the
property, goods, or services are considered to have a value of $500
or more but less than $1,500.
(c) If the actor proves by a preponderance of the evidence
that a portion of the claim for payment under an insurance policy
resulted from a valid loss, injury, expense, or service covered by
the policy, the value of the claim is equal to the difference
between the total claim amount and the amount of the valid portion
of the claim.
SECTION 4. Section 71.02(a), Penal Code, is amended to read
as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
he commits or conspires to commit one or more of the following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34 or 35;
(11) any offense under Section 37.11(a); or
(12) any offense under Chapter 20A.
SECTION 5. Articles 12.01 and 12.02, Code of Criminal
Procedure, are amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault, if during the investigation
of the offense biological matter is collected and subjected to
forensic DNA testing and the testing results show that the matter
does not match the victim or any other person whose identity is
readily ascertained; or
(C) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which he exercises control in his official capacity;
(C) forgery or the uttering, using or passing of
forged instruments;
(D) injury to a child, elderly individual, or
disabled individual punishable as a felony of the first degree
under Section 22.04, Penal Code;
(E) sexual assault, except as provided by
Subdivision (1) or (5); or
(F) arson;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) securing execution of document by deception;
or
(C) a violation under Sections 153.403(22)-(39),
Tax Code;
(4) five years from the date of the commission of the
offense:
(A) theft, burglary, robbery;
(B) kidnapping;
(C) injury to a child, elderly individual, or
disabled individual that is not punishable as a felony of the first
degree under Section 22.04, Penal Code; [or]
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) ten years from the 18th birthday of the victim of
the offense:
(A) indecency with a child under Section
21.11(a)(1) or (2), Penal Code; or
(B) except as provided by Subdivision (1), sexual
assault under Section 22.011(a)(2), Penal Code, or aggravated
sexual assault under Section 22.021(a)(1)(B), Penal Code; or
(6) three years from the date of the commission of the
offense: all other felonies.
Art. 12.02. MISDEMEANORS. (a) Except as provided by
Subsection (b), an [An] indictment or information for any
misdemeanor may be presented within two years from the date of the
commission of the offense, and not afterward.
(b) An indictment or information for insurance fraud may be
presented within five years from the date of the commission of the
offense, and not afterward.
SECTION 6. Chapter 42, Code of Criminal Procedure, is
amended by adding Article 42.0181 to read as follows:
Art. 42.0181. NOTICE OF THEFT, FRAUD, MONEY LAUNDERING, OR
INSURANCE FRAUD PROVIDED BY CLERK OF COURT. Not later than the
fifth day after the date a person who holds a certificate of
authority, license, or other authority issued by the Texas
Department of Insurance is convicted of or granted deferred
adjudication for an offense under Chapter 31, 32, 34, or 35, Penal
Code, the clerk of the court in which the conviction or order of
deferred adjudication is entered shall provide to the Texas
Department of Insurance written notice of the person's conviction
or deferred adjudication, including the offense on which the
conviction or deferred adjudication was based.
SECTION 7. Section 5(c), Article 42.12, Code of Criminal
Procedure, is amended to read as follows:
(c) On expiration of a community supervision period imposed
under Subsection (a) of this section, if the judge has not proceeded
to adjudication of guilt, the judge shall dismiss the proceedings
against the defendant and discharge him. The judge may dismiss the
proceedings and discharge a defendant, other than a defendant
charged with an offense requiring the defendant to register as a sex
offender under Chapter 62, [as added by Chapter 668, Acts of the
75th Legislature, Regular Session, 1997,] prior to the expiration
of the term of community supervision if in the judge's opinion the
best interest of society and the defendant will be served. The
judge may not dismiss the proceedings and discharge a defendant
charged with an offense requiring the defendant to register under
Chapter 62[, as added by Chapter 668, Acts of the 75th Legislature,
Regular Session, 1997]. Except as provided by Section 12.42(g),
Penal Code, a dismissal and discharge under this section may not be
deemed a conviction for the purposes of disqualifications or
disabilities imposed by law for conviction of an offense. For any
defendant who receives a dismissal and discharge under this
section:
(1) upon conviction of a subsequent offense, the fact
that the defendant had previously received community supervision
with a deferred adjudication of guilt shall be admissible before
the court or jury to be considered on the issue of penalty;
(2) if the defendant is an applicant for a license or
is a licensee under Chapter 42, Human Resources Code, the Texas
Department of Human Services may consider the fact that the
defendant previously has received community supervision with a
deferred adjudication of guilt under this section in issuing,
renewing, denying, or revoking a license under that chapter; [and]
(3) if the defendant is a person who has applied for
registration to provide mental health or medical services for the
rehabilitation of sex offenders, the Interagency Council on Sex
Offender Treatment may consider the fact that the defendant has
received community supervision under this section in issuing,
renewing, denying, or revoking a license or registration issued by
that council; and
(4) if the defendant applies for or holds a
certificate of authority, license, or other authority issued by the
Texas Department of Insurance, the Texas Department of Insurance
may consider the fact that the defendant previously has received
community supervision with a deferred adjudication of guilt under
this section for an offense under Chapter 31, 32, 34, or 35, Penal
Code, in issuing, renewing, denying, or revoking a certificate of
authority, license, or other authority.
SECTION 8. (a) The changes in law made by this Act to
Chapters 34, 35, and 71, Penal Code, apply only to an offense
committed on or after the effective date of this Act. An offense
committed before the effective date of this Act is covered by the
law in effect at the time the offense was committed, and the former
law is continued in effect for that purpose. For purposes of this
section, an offense was committed before the effective date of this
Act if any element of the offense was committed before that date.
(b) The change in law made by Article 12.01, Code of
Criminal Procedure, as amended by this Act, does not apply to an
offense if the prosecution of that offense became barred by
limitation before the effective date of this Act. The prosecution
of that offense remains barred as if this Act had not taken effect.
SECTION 9. This Act takes effect September 1, 2005.