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A BILL TO BE ENTITLED
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AN ACT
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relating to certain evidence in a prosecution of fraud or theft |
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involving Medicaid or Medicare benefits and to certain criminal |
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procedures involving offenses in general. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 38, Code of Criminal Procedure, is |
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amended by adding Article 38.46 to read as follows: |
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Art. 38.46. EVIDENCE IN AGGREGATION PROSECUTION FOR FRAUD |
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OR THEFT COMMITTED WITH RESPECT TO NUMEROUS MEDICAID OR MEDICARE |
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RECIPIENTS. In trials involving an allegation of a continuing |
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scheme of fraud or theft that involves Medicaid or Medicare |
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benefits and is alleged to have been committed with respect to a |
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large class of Medicaid or Medicare recipients in an aggregate |
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amount or value, the attorney representing the state is not |
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required to prove by direct evidence that each Medicaid or Medicare |
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recipient did not consent or effectively consent to a transaction |
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in question. It is sufficient if the lack of consent or effective |
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consent to a particular transaction or transactions is proven by |
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either direct or circumstantial evidence. |
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SECTION 2. Article 39.01, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 39.01. IN EXAMINING TRIAL. When an examination takes |
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place in a criminal action before a magistrate, the state [State] or |
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the defendant may have the deposition of any witness taken by any |
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officer authorized by this chapter. The state [State] or the |
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defendant may not use the deposition for any purpose unless that |
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party first acknowledges that the entire evidence or statement of |
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the witness may be used for or against the defendant on the trial of |
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the case, subject to all legal objections. The deposition of a |
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witness duly taken before an examining trial or a jury of inquest |
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and reduced to writing or recorded and then certified according to |
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law, provided that [where] the defendant and the defendant's |
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attorney were [was] present when that testimony was taken[,] and |
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that the defendant had the privilege afforded of cross-examining |
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the witness, or taken at any prior trial of the defendant for the |
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same offense, may be used by either the state [State] or the |
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defendant in the trial of the defendant's criminal case under the |
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following circumstances: |
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When oath is made by the party using the deposition that the |
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witness resides outside the state [State]; or that since the |
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witness's testimony was taken, the witness has died, or has removed |
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beyond the limits of the state [State], or has been prevented from |
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attending the court through the act or agency of the other party, or |
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by the act or agency of any person whose object was to deprive the |
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state [State] or the defendant of the benefit of the testimony; or |
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that by reason of age or bodily infirmity, that witness cannot |
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attend; or that the witness is a Medicaid or Medicare recipient or a |
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caregiver or guardian of the recipient, and the recipient's |
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Medicaid or Medicare account was charged for a product or service |
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that was not provided or rendered to the recipient. When the |
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testimony is sought to be used by the state [State], the oath may be |
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made by any credible person. When sought to be used by the |
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defendant, the oath must be made by the defendant in person. |
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SECTION 3. Chapter 39, Code of Criminal Procedure, is |
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amended by adding Article 39.026 to read as follows: |
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Art. 39.026. DEPOSITIONS OF MEDICAID OR MEDICARE RECIPIENTS |
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OR CAREGIVERS. (a) In this article: |
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(1) "Caregiver" means a person, including a guardian, |
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who is authorized by law, contract, or familial relationship to |
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care for a recipient. |
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(2) "Medicaid" means the state Medicaid program. |
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(3) "Medicaid recipient" has the meaning assigned by |
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Section 36.001, Human Resources Code. |
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(4) "Medicare" means the federal health insurance |
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program that is operated under the Health Insurance for the Aged Act |
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(42 U.S.C. Section 1395 et seq.). |
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(5) "Medicare recipient" means an individual on whose |
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behalf a person claims or receives a payment under Medicare, |
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without regard to whether the individual was eligible for benefits |
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under Medicare. |
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(6) "Recipient" means a Medicaid recipient or a |
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Medicare recipient. |
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(b) The court may order the attorney representing the state |
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to take the deposition of a recipient or caregiver who is the |
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alleged victim of or witness to an offense constituting fraud or |
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theft that involves Medicaid or Medicare benefits. Any order under |
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this subsection must be issued not later than the 180th day after |
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the date on which the state files an application to take the |
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deposition under Article 39.02. |
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(c) On the motion of either party, the court may order the |
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attorney representing the state to take the deposition of a |
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recipient or caregiver by video recording. The person operating |
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the video recording device must be available to testify regarding |
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the authenticity of the video recording and the taking of the |
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deposition in order for the video recording to be admissible. |
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(d) If the court finds that the video recording of the |
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deposition is properly authenticated and that requiring the jury to |
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view the entire recording would unnecessarily prolong the trial, |
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the court may allow a party to offer the entire video recording into |
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evidence without requiring the jury to view the entire video |
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recording during the trial. This subsection does not preclude the |
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attorney representing the state, the defendant, or the defendant's |
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attorney from offering into evidence and playing for the jury a |
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portion of a video-recorded deposition. |
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(e) The attorney representing the state and the defendant or |
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the defendant's attorney, by written agreement filed with the |
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court, may extend the deadline for the taking of the deposition. |
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(f) The court shall grant any request by the attorney |
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representing the state to extend the deadline for the taking of the |
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deposition if a reason for the request is the unavailability, |
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health, or well-being of the recipient or caregiver. |
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(g) The Texas Rules of Civil Procedure govern the taking of |
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the deposition, except that, to the extent of any conflict with this |
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code or applicable court rules adopted for criminal proceedings, |
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this code and the rules for criminal proceedings govern. The |
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attorney representing the state and the defendant or the |
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defendant's attorney may agree to modify the rules applicable to |
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the deposition by written agreement filed with the court before the |
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taking of the deposition. |
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(h) If a defendant is unavailable to attend a deposition |
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because the defendant is confined in a correctional facility, the |
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court shall issue any orders or warrants necessary to secure the |
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defendant's presence at the deposition. The sheriff of the county |
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in which a deposition is to be taken under this subsection shall |
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provide a secure location for the taking of the deposition and |
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sufficient law enforcement personnel to ensure that the deposition |
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is taken safely. The state's application to take a deposition or |
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notice of deposition is not required to include the identity of any |
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law enforcement agent the sheriff assigns to the deposition under |
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this subsection, and the defendant may not object to the taking of |
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the deposition based solely on the state's omission of the identity |
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of that agent. |
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(i) If a defendant is unavailable to attend a deposition for |
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any reason other than confinement in a correctional facility, the |
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defendant or the defendant's attorney shall request a continuance |
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from the court. The court may grant the continuance if the |
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defendant or the defendant's attorney demonstrates good cause for |
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the continuance and that the request is not brought for the purpose |
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of delay or avoidance. A defendant's failure to attend a deposition |
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or request a continuance in accordance with this subsection |
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constitutes a waiver of the defendant's right to be present at the |
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deposition. |
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SECTION 4. Article 39.12, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 39.12. PREDICATE TO READ. Depositions taken in |
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criminal actions shall not be read unless oath be made that the |
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witness resides out of the state [State]; or that since the [his] |
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deposition was taken, the witness has died; or that the witness [he] |
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has removed beyond the limits of the state [State]; or that the |
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witness [he] has been prevented from attending the court through |
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the act or agency of the defendant; or by the act or agency of any |
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person whose object was to deprive the state or the defendant of the |
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benefit of the testimony; or that by reason of age or bodily |
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infirmity, the [such] witness cannot attend; or that the witness is |
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a Medicaid or Medicare recipient or a caregiver or guardian of the |
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recipient, and the recipient's Medicaid or Medicare account was |
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charged for a product or service that was not provided or rendered |
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to the recipient. When the deposition is sought to be used by the |
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state [State], the oath may be made by any credible person. When |
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sought to be used by the defendant, the oath shall be made by the |
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defendant [him] in person. |
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SECTION 5. The change in law made by this Act applies to a |
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criminal proceeding that commences on or after the effective date |
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of this Act. A criminal proceeding that commences before the |
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effective date of this Act is covered by the law in effect when the |
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proceeding commenced, and the former law is continued in effect for |
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that purpose. |
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SECTION 6. This Act takes effect September 1, 2011. |