85R7122 EES-F
 
  By: Miles S.B. No. 791
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the financial abuse of elderly persons, including
  requiring financial institutions to report suspected financial
  abuse of elderly persons; providing a civil penalty; creating
  criminal offenses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as the Financial Elder
  Abuse and Exploitation Prevention Act.
         SECTION 2.  Subchapter D, Chapter 32, Penal Code, is amended
  by adding Section 32.55 to read as follows:
         Sec. 32.55.  FINANCIAL ABUSE OF ELDERLY INDIVIDUAL. (a) In
  this section:
               (1)  "Elderly individual" has the meaning assigned by
  Section 22.04.
               (2)  "Financial abuse" means the wrongful or negligent
  taking, appropriation, obtaining, retention, or use of, or
  assisting in the wrongful or negligent taking, appropriation,
  obtaining, retention, or use of, money or other property of another
  person by any means, including by exerting undue influence. The
  term includes financial exploitation.
               (3)  "Financial exploitation" means the wrongful or
  negligent taking, appropriation, obtaining, retention, or use of
  money or other property of another person by a person who has a
  relationship of confidence or trust with the other person.
  Financial exploitation may involve coercion, manipulation,
  threats, intimidation, misrepresentation, or the exerting of undue
  influence. The term includes:
                     (A)  the breach of a fiduciary relationship,
  including the misuse of a durable power of attorney or the abuse of
  guardianship powers, that results in the unauthorized
  appropriation, sale, or transfer of another person's property;
                     (B)  the unauthorized taking of personal assets;
                     (C)  the misappropriation, misuse, or
  unauthorized transfer of another person's money from a personal or
  a joint account; and
                     (D)  the negligent or intentional failure to
  effectively use another person's income and assets for the
  necessities required for the person's support and maintenance.
         (b)  For purposes of Subsection (a)(3), a person has a
  relationship of confidence or trust with another person if the
  person:
               (1)  is a parent, spouse, adult child, or other
  relative by blood or marriage of the other person;
               (2)  is a joint tenant or tenant-in-common with the
  other person;
               (3)  has a legal or fiduciary relationship with the
  other person;
               (4)  is a financial planner or investment professional
  who provides services to the other person; or
               (5)  is a paid or unpaid caregiver of the other person.
         (c)  A person commits an offense if the person with criminal
  negligence engages in the financial abuse of an elderly individual.
         (d)  An offense under this section is:
               (1)  a Class A misdemeanor if the value of the property
  taken, appropriated, obtained, retained, or used is less than $500;
               (2)  a felony of the third degree if the value of the
  property taken, appropriated, obtained, retained, or used is $500
  or more but less than $5,000;
               (3)  a felony of the second degree if the value of the
  property taken, appropriated, obtained, retained, or used is $5,000
  or more but less than $50,000; and
               (4)  a felony of the first degree if the value of the
  property taken, appropriated, obtained, retained, or used is
  $50,000 or more. 
         (e)  A person who is subject to prosecution under both this
  section and another section of this code may be prosecuted under
  either or both sections.
         SECTION 3.  Section 59.006(a), Finance Code, is amended to
  read as follows:
         (a)  This section provides the exclusive method for
  compelled discovery of a record of a financial institution relating
  to one or more customers but does not create a right of privacy in a
  record.  This section does not apply to and does not require or
  authorize a financial institution to give a customer notice of:
               (1)  a demand or inquiry from a state or federal
  government agency authorized by law to conduct an examination of
  the financial institution;
               (2)  a record request from a state or federal
  government agency or instrumentality under statutory or
  administrative authority that provides for, or is accompanied by, a
  specific mechanism for discovery and protection of a customer
  record of a financial institution, including a record request from
  a federal agency subject to the Right to Financial Privacy Act of
  1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
  Internal Revenue Service under Section 1205, Internal Revenue Code
  of 1986;
               (3)  a record request from or report to a government
  agency arising out of:
                     (A)  the investigation or prosecution of a
  criminal offense;
                     (B)  the investigation of alleged abuse, neglect,
  or exploitation of an elderly or disabled person or of alleged
  financial abuse of an elderly person in accordance with Chapter 48,
  Human Resources Code; or
                     (C)  the assessment for or provision of
  guardianship services under Subchapter E, Chapter 161, Human
  Resources Code;
               (4)  a record request in connection with a garnishment
  proceeding in which the financial institution is garnishee and the
  customer is debtor;
               (5)  a record request by a duly appointed receiver for
  the customer;
               (6)  an investigative demand or inquiry from a state
  legislative investigating committee;
               (7)  an investigative demand or inquiry from the
  attorney general of this state as authorized by law other than the
  procedural law governing discovery in civil cases;
               (8)  the voluntary use or disclosure of a record by a
  financial institution subject to other applicable state or federal
  law; or
               (9)  a record request in connection with an
  investigation conducted under Section 1054.151, 1054.152, or
  1102.001, Estates Code.
         SECTION 4.  Subtitle Z, Title 3, Finance Code, is amended by
  adding Chapter 280 to read as follows:
  CHAPTER 280. REPORTING OF FINANCIAL ABUSE OF ELDERLY PERSONS
         Sec. 280.001.  DEFINITIONS. In this chapter:
               (1)  "Adult protective services division" means the
  adult protective services division of the Department of Family and
  Protective Services.
               (2)  "Elderly person" has the meaning assigned by
  Section 48.002, Human Resources Code.
               (3)  "Finance commission" means the Finance Commission
  of Texas.
               (4)  "Financial abuse" has the meaning assigned by
  Section 32.55, Penal Code.
               (5)  "Financial institution" has the meaning assigned
  by Section 277.001.
               (6)  "Financial regulatory officials" means the
  banking commissioner of Texas, the savings and mortgage lending
  commissioner, and the credit union commissioner.
         Sec. 280.002.  REPORTING FINANCIAL ABUSE OF ELDERLY PERSON.
  (a) Notwithstanding any other law, if an officer or employee of a
  financial institution has a good faith belief that financial abuse
  of an elderly person has occurred or is occurring, the financial
  institution shall:
               (1)  subject to Subchapter B-1, Chapter 48, Human
  Resources Code, make a report notifying the adult protective
  services division of the suspected financial abuse; and
               (2)  notify the appropriate local law enforcement
  agency with jurisdiction over the municipality or county in which
  the elderly person resides of the suspected financial abuse for
  purposes of investigating and determining whether an offense under
  Section 32.55, Penal Code, or other law has occurred.
         (b)  The report and notification required by Subsection (a)
  must be made:
               (1)  by telephone or electronic means, not later than
  24 hours after the financial institution becomes aware of the
  suspected financial abuse; and 
               (2)  in writing, not later than the third business day
  after the date the financial institution becomes aware of the
  suspected financial abuse.
         (c)  For purposes of Subsection (a), an officer's or
  employee's good faith belief must be acquired in connection with
  the provision of financial services by the financial institution to
  or on behalf of the elderly person and must be based on:
               (1)  the officer's or employee's observation or
  knowledge of an incident of suspected financial abuse, if the
  officer or employee has direct contact with the elderly person; or
               (2)  the presence of information indicating potential
  financial abuse during a review or approval process performed by
  the officer or employee in connection with the provision of
  financial services, if the officer or employee does not have direct
  contact with the elderly person but reviews or approves the elderly
  person's financial documents, records, or transactions.
         (d)  Nothing in this section shall be construed to require a
  financial institution to investigate an allegation of financial
  abuse made by an elderly person or other person.
         Sec. 280.003.  CONFIDENTIALITY OF INFORMATION. (a) Except
  as provided by Subsection (b), the following information is
  confidential and is not subject to disclosure to the public, except
  under court order:
               (1)  the information contained in a report or
  notification made under Section 280.002;
               (2)  the name of the financial institution making the
  report or notification or the identity of the officers or employees
  described by Section 280.002(a); and
               (3)  information provided by or submitted to a
  financial institution in connection with an investigation arising
  out of a report or notification made under Section 280.002.
         (b)  Information that is confidential under Subsection (a)
  may be disclosed only:
               (1)  to the adult protective services division or
  another state agency, a law enforcement agency, or the attorney
  general, in connection with the reporting or notification of or an
  investigation of suspected financial abuse of the elderly person to
  whom the information pertains;
               (2)  to, or as authorized by, the elderly person or the
  guardian of the elderly person, unless the financial institution
  suspects the guardian of financial abuse of the elderly person; or
               (3)  as part of a civil or criminal action related to
  the suspected financial abuse of the elderly person.
         (c)  A person commits an offense if the person discloses
  confidential information in violation of this section. An offense
  under this subsection is a Class C misdemeanor.
         Sec. 280.004.  IMMUNITY FROM LIABILITY. A financial
  institution that, or an officer or employee of the institution who,
  makes a report or notification in good faith under Section 280.002
  is immune from any criminal or civil liability arising from:
               (1)  the report or notification; or 
               (2)  participation in any judicial proceeding arising
  from the report or notification.
         Sec. 280.005.  CIVIL PENALTY. (a) A financial institution
  that fails to make a report or notification in violation of this
  chapter is liable to this state for a civil penalty in an amount not
  to exceed $25,000, unless a court finds the violation to be wilful,
  in which case the amount of the civil penalty may not exceed
  $100,000.
         (b)  The attorney general may bring an action on behalf of
  this state to recover a civil penalty under Subsection (a).
         Sec. 280.006.  RULEMAKING. Subject to Section 48.072, Human
  Resources Code, the finance commission, the Credit Union
  Commission, and the executive commissioner of the Health and Human
  Services Commission, after consulting with the financial
  regulatory officials and the Department of Family and Protective
  Services, shall jointly adopt rules necessary to implement this
  chapter, including rules that require each financial institution to
  implement a training program to:
               (1)  assist the institution's officers and employees in
  recognizing signs of potential financial abuse of an elderly
  person; and 
               (2)  inform the institution's officers and employees
  about the reporting and notification requirements of this chapter.
         SECTION 5.  Subchapter A, Chapter 48, Human Resources Code,
  is amended by adding Section 48.008 to read as follows:
         Sec. 48.008.  CONSOLIDATION OF CERTAIN REPORTS. If
  cost-effective and feasible, the executive commissioner by rule may
  consolidate the form and procedures used to submit a report under
  Sections 48.051 and 48.072.
         SECTION 6.  Chapter 48, Human Resources Code, is amended by
  adding Subchapter B-1 to read as follows:
  SUBCHAPTER B-1. FINANCIAL ABUSE OF ELDERLY PERSONS
         Sec. 48.071.  DEFINITIONS. In this subchapter:
               (1)  "Financial abuse" has the meaning assigned by
  Section 32.55, Penal Code.
               (2)  "Financial institution" and "financial regulatory
  officials" have the meanings assigned by Section 280.001, Finance
  Code.
         Sec. 48.072.  CERTAIN REPORTS OF SUSPECTED FINANCIAL ABUSE.
  (a) The executive commissioner, after consultation with the
  financial regulatory officials, by rule shall prescribe the form
  and content of the report required to be made by a financial
  institution under Section 280.002, Finance Code. A report made by a
  financial institution under Section 280.002, Finance Code,
  constitutes a report of suspected financial abuse of an elderly
  person for purposes of this subchapter.
         (b)  In adopting rules under this section, the executive
  commissioner shall ensure that a report of suspected financial
  abuse of an elderly person described by Subsection (a) includes to
  the extent possible the same information required to be included in
  a report under Section 48.051(d).
         (c)  A financial institution that makes a report to the
  department of suspected financial abuse of an elderly person under
  Section 280.002, Finance Code, in accordance with this section is
  not required to make an additional report of suspected abuse,
  neglect, or exploitation under Section 48.051 for the same conduct
  constituting the financial abuse reported under this section.
         Sec. 48.073.  ASSESSMENT, INVESTIGATION, AND DISPOSITION OF
  REPORTS. (a) The executive commissioner by rule shall adopt
  procedures for the assessment, investigation, and disposition of a
  report of suspected financial abuse of an elderly person received
  under Section 280.002, Finance Code, that must be similar to the
  procedures used for the assessment, investigation, and disposition
  of a report of abuse, neglect, or exploitation received by the
  department under this chapter, other than a report received under
  Subchapter F.
         (b)  The procedures adopted under this section must require:
               (1)  a risk assessment similar to the assessment
  required under Section 48.004;
               (2)  investigations similar to the investigations
  required under Subchapter D, including requirements that the
  department:
                     (A)  take action on a report within the time frame
  and in the manner provided by Section 48.151;
                     (B)  perform an interview with the elderly person
  similar to the interview required by Section 48.152;
                     (C)  if appropriate, implement a system to
  investigate complex cases similar to the system implemented under
  Section 48.1521;
                     (D)  report criminal conduct to appropriate law
  enforcement agencies similar to the reports under Section 48.1522;
  and
                     (E)  review certain cases involving multiple
  reports under Section 48.051 and this subchapter similar to the
  review performed under Section 48.1523; and
               (3)  a determination of services similar to the
  determination required by Section 48.202.
         Sec. 48.074.  AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The
  department or another appropriate state agency has the authority to
  act on or with respect to an allegation of financial abuse of an
  elderly person under this subchapter to the same extent the
  department or other agency has the authority to act on or with
  respect to an allegation of abuse, neglect, or exploitation under
  Subchapter B.
         Sec. 48.075.  ACCESS TO INVESTIGATION. (a) To implement an
  investigation of reported financial abuse of an elderly person, the
  probate court, as defined by Section 22.007, Estates Code, may
  authorize entry into the place of residence of an elderly person.
         (b)  A peace officer shall accompany and assist the person
  making a court-ordered entry under this section if the court
  determines that action is necessary.
         Sec. 48.076.  INTERFERENCE WITH INVESTIGATION OR SERVICES
  PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a
  person, including a guardian, may not interfere with:
               (1)  an investigation by the department or by another
  protective services agency of suspected financial abuse of an
  elderly person; or
               (2)  the provision of protective services to an elderly
  person.
         (b)  The department or another protective services agency
  may petition the appropriate court to enjoin any interference with:
               (1)  an investigation of suspected financial abuse of
  an elderly person under this subchapter; or
               (2)  the provision of protective services, such as
  removing an elderly person to safer surroundings or safeguarding
  the elderly person's resources from financial abuse.
         Sec. 48.077.  MEMORANDUM OF UNDERSTANDING. The commission,
  the banking commissioner of Texas, the savings and mortgage lending
  commissioner, the credit union commissioner, and the department
  shall enter into a memorandum of understanding regarding the
  reporting and investigation of suspected financial abuse of an
  elderly person under this subchapter.
         Sec. 48.078.  CONFIDENTIALITY.  (a)  All files, reports,
  records, communications, and working papers used or developed by
  the department or other state agency in an investigation made under
  this subchapter or in providing services as a result of an
  investigation are confidential and not subject to disclosure under
  Chapter 552, Government Code.
         (b)  The department or investigating state agency may
  establish procedures to exchange with another state agency or
  governmental entity information that is necessary for the
  department, state agency, or governmental entity to properly
  execute its respective duties and responsibilities to provide
  services to elderly persons under this chapter or other law. An
  exchange of information under this subsection does not affect
  whether the information is subject to disclosure under Chapter 552,
  Government Code.
         SECTION 7.  Subchapter C, Chapter 48, Human Resources Code,
  is amended by adding Section 48.104 to read as follows:
         Sec. 48.104.  NONAPPLICABILITY.  (a)  This subchapter does
  not apply to a report of financial abuse of an elderly person made
  under Subchapter B-1.
         (b)  The confidentiality of information received or provided
  by the department in connection with a report of financial abuse of
  an elderly person made under Subchapter B-1 is governed by Section
  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:
         Sec. 48.1511.  NONAPPLICABILITY. This subchapter does not
  apply to an investigation conducted under Subchapter B-1 unless the
  executive commissioner by rule requires the application of a
  provision of this subchapter.
         SECTION 9.  This Act takes effect September 1, 2017.