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