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A BILL TO BE ENTITLED
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AN ACT
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relating to the financial abuse of elderly persons, including |
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requiring financial institutions to report suspected financial |
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abuse of elderly persons; providing a civil penalty; creating |
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criminal offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. This Act shall be known as the Financial Elder |
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Abuse and Exploitation Prevention Act. |
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SECTION 2. Subchapter D, Chapter 32, Penal Code, is amended |
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by adding Section 32.55 to read as follows: |
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Sec. 32.55. FINANCIAL ABUSE OF ELDERLY INDIVIDUAL. (a) In |
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this section: |
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(1) "Elderly individual" has the meaning assigned by |
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Section 22.04. |
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(2) "Financial abuse" means the wrongful or negligent |
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taking, appropriation, obtaining, retention, or use of, or |
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assisting in the wrongful or negligent taking, appropriation, |
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obtaining, retention, or use of, money or other property of another |
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person by any means, including by exerting undue influence. The |
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term includes financial exploitation. |
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(3) "Financial exploitation" means the wrongful or |
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negligent taking, appropriation, obtaining, retention, or use of |
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money or other property of another person by a person who has a |
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relationship of confidence or trust with the other person. |
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Financial exploitation may involve coercion, manipulation, |
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threats, intimidation, misrepresentation, or the exerting of undue |
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influence. The term includes: |
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(A) the breach of a fiduciary relationship, |
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including the misuse of a durable power of attorney or the abuse of |
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guardianship powers, that results in the unauthorized |
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appropriation, sale, or transfer of another person's property; |
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(B) the unauthorized taking of personal assets; |
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(C) the misappropriation, misuse, or |
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unauthorized transfer of another person's money from a personal or |
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a joint account; and |
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(D) the negligent or intentional failure to |
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effectively use another person's income and assets for the |
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necessities required for the person's support and maintenance. |
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(b) For purposes of Subsection (a)(3), a person has a |
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relationship of confidence or trust with another person if the |
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person: |
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(1) is a parent, spouse, adult child, or other |
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relative by blood or marriage of the other person; |
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(2) is a joint tenant or tenant-in-common with the |
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other person; |
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(3) has a legal or fiduciary relationship with the |
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other person; |
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(4) is a financial planner or investment professional |
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who provides services to the other person; or |
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(5) is a paid or unpaid caregiver of the other person. |
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(c) A person commits an offense if the person with criminal |
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negligence engages in the financial abuse of an elderly individual. |
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(d) An offense under this section is: |
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(1) a Class A misdemeanor if the value of the property |
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taken, appropriated, obtained, retained, or used is less than $500; |
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(2) a felony of the third degree if the value of the |
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property taken, appropriated, obtained, retained, or used is $500 |
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or more but less than $5,000; |
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(3) a felony of the second degree if the value of the |
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property taken, appropriated, obtained, retained, or used is $5,000 |
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or more but less than $50,000; and |
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(4) a felony of the first degree if the value of the |
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property taken, appropriated, obtained, retained, or used is |
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$50,000 or more. |
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(e) A person who is subject to prosecution under both this |
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section and another section of this code may be prosecuted under |
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either or both sections. |
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SECTION 3. Section 59.006(a), Finance Code, is amended to |
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read as follows: |
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(a) This section provides the exclusive method for |
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compelled discovery of a record of a financial institution relating |
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to one or more customers but does not create a right of privacy in a |
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record. This section does not apply to and does not require or |
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authorize a financial institution to give a customer notice of: |
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(1) a demand or inquiry from a state or federal |
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government agency authorized by law to conduct an examination of |
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the financial institution; |
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(2) a record request from a state or federal |
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government agency or instrumentality under statutory or |
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administrative authority that provides for, or is accompanied by, a |
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specific mechanism for discovery and protection of a customer |
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record of a financial institution, including a record request from |
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a federal agency subject to the Right to Financial Privacy Act of |
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1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the |
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Internal Revenue Service under Section 1205, Internal Revenue Code |
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of 1986; |
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(3) a record request from or report to a government |
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agency arising out of: |
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(A) the investigation or prosecution of a |
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criminal offense; |
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(B) the investigation of alleged abuse, neglect, |
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or exploitation of an elderly or disabled person or of alleged |
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financial abuse of an elderly person in accordance with Chapter 48, |
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Human Resources Code; or |
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(C) the assessment for or provision of |
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guardianship services under Subchapter E, Chapter 161, Human |
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Resources Code; |
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(4) a record request in connection with a garnishment |
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proceeding in which the financial institution is garnishee and the |
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customer is debtor; |
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(5) a record request by a duly appointed receiver for |
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the customer; |
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(6) an investigative demand or inquiry from a state |
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legislative investigating committee; |
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(7) an investigative demand or inquiry from the |
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attorney general of this state as authorized by law other than the |
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procedural law governing discovery in civil cases; |
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(8) the voluntary use or disclosure of a record by a |
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financial institution subject to other applicable state or federal |
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law; or |
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(9) a record request in connection with an |
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investigation conducted under Section 1054.151, 1054.152, or |
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1102.001, Estates Code. |
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SECTION 4. Subtitle Z, Title 3, Finance Code, is amended by |
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adding Chapter 280 to read as follows: |
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CHAPTER 280. REPORTING OF FINANCIAL ABUSE OF ELDERLY PERSONS |
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Sec. 280.001. DEFINITIONS. In this chapter: |
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(1) "Adult protective services division" means the |
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adult protective services division of the Department of Family and |
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Protective Services. |
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(2) "Elderly person" has the meaning assigned by |
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Section 48.002, Human Resources Code. |
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(3) "Finance commission" means the Finance Commission |
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of Texas. |
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(4) "Financial abuse" has the meaning assigned by |
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Section 32.55, Penal Code. |
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(5) "Financial institution" has the meaning assigned |
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by Section 277.001. |
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(6) "Financial regulatory officials" means the |
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banking commissioner of Texas, the savings and mortgage lending |
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commissioner, and the credit union commissioner. |
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Sec. 280.002. REPORTING FINANCIAL ABUSE OF ELDERLY PERSON. |
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(a) Notwithstanding any other law, if an officer or employee of a |
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financial institution has a good faith belief that financial abuse |
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of an elderly person has occurred or is occurring, the financial |
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institution shall: |
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(1) subject to Subchapter B-1, Chapter 48, Human |
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Resources Code, make a report notifying the adult protective |
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services division of the suspected financial abuse; and |
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(2) notify the appropriate local law enforcement |
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agency with jurisdiction over the municipality or county in which |
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the elderly person resides of the suspected financial abuse for |
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purposes of investigating and determining whether an offense under |
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Section 32.55, Penal Code, or other law has occurred. |
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(b) The report and notification required by Subsection (a) |
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must be made: |
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(1) by telephone or electronic means, not later than |
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24 hours after the financial institution becomes aware of the |
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suspected financial abuse; and |
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(2) in writing, not later than the third business day |
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after the date the financial institution becomes aware of the |
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suspected financial abuse. |
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(c) For purposes of Subsection (a), an officer's or |
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employee's good faith belief must be acquired in connection with |
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the provision of financial services by the financial institution to |
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or on behalf of the elderly person and must be based on: |
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(1) the officer's or employee's observation or |
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knowledge of an incident of suspected financial abuse, if the |
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officer or employee has direct contact with the elderly person; or |
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(2) the presence of information indicating potential |
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financial abuse during a review or approval process performed by |
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the officer or employee in connection with the provision of |
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financial services, if the officer or employee does not have direct |
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contact with the elderly person but reviews or approves the elderly |
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person's financial documents, records, or transactions. |
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(d) Nothing in this section shall be construed to require a |
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financial institution to investigate an allegation of financial |
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abuse made by an elderly person or other person. |
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Sec. 280.003. CONFIDENTIALITY OF INFORMATION. (a) Except |
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as provided by Subsection (b), the following information is |
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confidential and is not subject to disclosure to the public, except |
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under court order: |
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(1) the information contained in a report or |
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notification made under Section 280.002; |
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(2) the name of the financial institution making the |
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report or notification or the identity of the officers or employees |
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described by Section 280.002(a); and |
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(3) information provided by or submitted to a |
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financial institution in connection with an investigation arising |
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out of a report or notification made under Section 280.002. |
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(b) Information that is confidential under Subsection (a) |
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may be disclosed only: |
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(1) to the adult protective services division or |
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another state agency, a law enforcement agency, or the attorney |
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general, in connection with the reporting or notification of or an |
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investigation of suspected financial abuse of the elderly person to |
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whom the information pertains; |
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(2) to, or as authorized by, the elderly person or the |
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guardian of the elderly person, unless the financial institution |
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suspects the guardian of financial abuse of the elderly person; or |
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(3) as part of a civil or criminal action related to |
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the suspected financial abuse of the elderly person. |
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(c) A person commits an offense if the person discloses |
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confidential information in violation of this section. An offense |
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under this subsection is a Class C misdemeanor. |
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Sec. 280.004. IMMUNITY FROM LIABILITY. A financial |
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institution that, or an officer or employee of the institution who, |
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makes a report or notification in good faith under Section 280.002 |
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is immune from any criminal or civil liability arising from: |
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(1) the report or notification; or |
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(2) participation in any judicial proceeding arising |
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from the report or notification. |
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Sec. 280.005. CIVIL PENALTY. (a) A financial institution |
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that fails to make a report or notification in violation of this |
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chapter is liable to this state for a civil penalty in an amount not |
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to exceed $25,000, unless a court finds the violation to be wilful, |
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in which case the amount of the civil penalty may not exceed |
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$100,000. |
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(b) The attorney general may bring an action on behalf of |
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this state to recover a civil penalty under Subsection (a). |
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Sec. 280.006. RULEMAKING. Subject to Section 48.072, Human |
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Resources Code, the finance commission, the Credit Union |
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Commission, and the executive commissioner of the Health and Human |
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Services Commission, after consulting with the financial |
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regulatory officials and the Department of Family and Protective |
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Services, shall jointly adopt rules necessary to implement this |
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chapter, including rules that require each financial institution to |
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implement a training program to: |
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(1) assist the institution's officers and employees in |
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recognizing signs of potential financial abuse of an elderly |
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person; and |
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(2) inform the institution's officers and employees |
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about the reporting and notification requirements of this chapter. |
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SECTION 5. Subchapter A, Chapter 48, Human Resources Code, |
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is amended by adding Section 48.008 to read as follows: |
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Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If |
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cost-effective and feasible, the executive commissioner by rule may |
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consolidate the form and procedures used to submit a report under |
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Sections 48.051 and 48.072. |
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SECTION 6. Chapter 48, Human Resources Code, is amended by |
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adding Subchapter B-1 to read as follows: |
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SUBCHAPTER B-1. FINANCIAL ABUSE OF ELDERLY PERSONS |
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Sec. 48.071. DEFINITIONS. In this subchapter: |
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(1) "Financial abuse" has the meaning assigned by |
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Section 32.55, Penal Code. |
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(2) "Financial institution" and "financial regulatory |
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officials" have the meanings assigned by Section 280.001, Finance |
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Code. |
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Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL ABUSE. |
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(a) The executive commissioner, after consultation with the |
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financial regulatory officials, by rule shall prescribe the form |
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and content of the report required to be made by a financial |
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institution under Section 280.002, Finance Code. A report made by a |
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financial institution under Section 280.002, Finance Code, |
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constitutes a report of suspected financial abuse of an elderly |
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person for purposes of this subchapter. |
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(b) In adopting rules under this section, the executive |
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commissioner shall ensure that a report of suspected financial |
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abuse of an elderly person described by Subsection (a) includes to |
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the extent possible the same information required to be included in |
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a report under Section 48.051(d). |
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(c) A financial institution that makes a report to the |
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department of suspected financial abuse of an elderly person under |
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Section 280.002, Finance Code, in accordance with this section is |
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not required to make an additional report of suspected abuse, |
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neglect, or exploitation under Section 48.051 for the same conduct |
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constituting the financial abuse reported under this section. |
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Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF |
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REPORTS. (a) The executive commissioner by rule shall adopt |
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procedures for the assessment, investigation, and disposition of a |
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report of suspected financial abuse of an elderly person received |
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under Section 280.002, Finance Code, that must be similar to the |
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procedures used for the assessment, investigation, and disposition |
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of a report of abuse, neglect, or exploitation received by the |
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department under this chapter, other than a report received under |
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Subchapter F. |
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(b) The procedures adopted under this section must require: |
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(1) a risk assessment similar to the assessment |
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required under Section 48.004; |
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(2) investigations similar to the investigations |
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required under Subchapter D, including requirements that the |
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department: |
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(A) take action on a report within the time frame |
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and in the manner provided by Section 48.151; |
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(B) perform an interview with the elderly person |
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similar to the interview required by Section 48.152; |
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(C) if appropriate, implement a system to |
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investigate complex cases similar to the system implemented under |
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Section 48.1521; |
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(D) report criminal conduct to appropriate law |
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enforcement agencies similar to the reports under Section 48.1522; |
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and |
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(E) review certain cases involving multiple |
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reports under Section 48.051 and this subchapter similar to the |
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review performed under Section 48.1523; and |
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(3) a determination of services similar to the |
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determination required by Section 48.202. |
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Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The |
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department or another appropriate state agency has the authority to |
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act on or with respect to an allegation of financial abuse of an |
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elderly person under this subchapter to the same extent the |
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department or other agency has the authority to act on or with |
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respect to an allegation of abuse, neglect, or exploitation under |
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Subchapter B. |
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Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an |
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investigation of reported financial abuse of an elderly person, the |
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probate court, as defined by Section 22.007, Estates Code, may |
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authorize entry into the place of residence of an elderly person. |
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(b) A peace officer shall accompany and assist the person |
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making a court-ordered entry under this section if the court |
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determines that action is necessary. |
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Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES |
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PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a |
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person, including a guardian, may not interfere with: |
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(1) an investigation by the department or by another |
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protective services agency of suspected financial abuse of an |
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elderly person; or |
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(2) the provision of protective services to an elderly |
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person. |
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(b) The department or another protective services agency |
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may petition the appropriate court to enjoin any interference with: |
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(1) an investigation of suspected financial abuse of |
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an elderly person under this subchapter; or |
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(2) the provision of protective services, such as |
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removing an elderly person to safer surroundings or safeguarding |
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the elderly person's resources from financial abuse. |
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Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission, |
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the banking commissioner of Texas, the savings and mortgage lending |
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commissioner, the credit union commissioner, and the department |
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shall enter into a memorandum of understanding regarding the |
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reporting and investigation of suspected financial abuse of an |
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elderly person under this subchapter. |
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Sec. 48.078. CONFIDENTIALITY. (a) All files, reports, |
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records, communications, and working papers used or developed by |
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the department or other state agency in an investigation made under |
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this subchapter or in providing services as a result of an |
|
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investigation are confidential and not subject to disclosure under |
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Chapter 552, Government Code. |
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(b) The department or investigating state agency may |
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establish procedures to exchange with another state agency or |
|
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governmental entity information that is necessary for the |
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department, state agency, or governmental entity to properly |
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execute its respective duties and responsibilities to provide |
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services to elderly persons under this chapter or other law. An |
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exchange of information under this subsection does not affect |
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whether the information is subject to disclosure under Chapter 552, |
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Government Code. |
|
|
SECTION 7. Subchapter C, Chapter 48, Human Resources Code, |
|
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is amended by adding Section 48.104 to read as follows: |
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Sec. 48.104. NONAPPLICABILITY. (a) This subchapter does |
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not apply to a report of financial abuse of an elderly person made |
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under Subchapter B-1. |
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(b) The confidentiality of information received or provided |
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by the department in connection with a report of financial abuse of |
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an elderly person made under Subchapter B-1 is governed by Section |
|
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48.078 and by Section 280.003, Finance Code. |
|
|
SECTION 8. Subchapter D, Chapter 48, Human Resources Code, |
|
|
is amended by adding Section 48.1511 to read as follows: |
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|
Sec. 48.1511. NONAPPLICABILITY. This subchapter does not |
|
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apply to an investigation conducted under Subchapter B-1 unless the |
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executive commissioner by rule requires the application of a |
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provision of this subchapter. |
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SECTION 9. This Act takes effect September 1, 2017. |