By: Ellis S.B. No. 1680

(In the Senate - Filed March 11, 2011; March 23, 2011, read first time and referred to Committee on Criminal Justice; April 12, 2011, reported adversely, with favorable Committee Substitute by the following vote: Yeas 7, Nays 0; April 12, 2011, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1680 By: Ellis

A BILL TO BE ENTITLED

AN ACT

relating to certain evidence in a prosecution of fraud or theft involving Medicaid or Medicare benefits and to certain criminal procedures involving offenses in general.

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 that involves Medicaid or Medicare benefits and 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 Medicaid or Medicare 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 then certified according to law, provided that [where] the defendant and the defendant's attorney were [was] present when that testimony was taken[,] and that the defendant 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, including a guardian, 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 federal health insurance program that is operated under 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 under Medicare, without regard to whether the individual was eligible for benefits under Medicare.

(6) "Recipient" means a Medicaid recipient or a Medicare recipient.

(b) The court may 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 that involves Medicaid or Medicare benefits. Any order under this subsection must be issued not later than the 180th day 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 or caregiver 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 a party to offer the entire video recording into evidence without requiring the jury to view the entire video recording during the trial. 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 that 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 agent 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 that agent.

(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 that was 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.

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