Texas 2009 - 81st Regular

Texas Senate Bill SB1432 Compare Versions

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1	1	81R33565 GCB-D
2	2	By: Nichols S.B. No. 1432
3	3	Substitute the following for S.B. No. 1432:
4	4	By: Rose C.S.S.B. No. 1432
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to the investigation, prosecution, and punishment of
10	10	criminal Medicaid fraud and certain other offenses related to
11	11	Medicaid fraud; providing penalties.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Article 12.01, Code of Criminal Procedure, as
14	14	amended by Chapters 285 (H.B. 716), 593 (H.B. 8), 640 (H.B. 887),
15	15	and 841 (H.B. 959), Acts of the 80th Legislature, Regular Session,
16	16	2007, is reenacted and amended to read as follows:
17	17	Art. 12.01. FELONIES. Except as provided in Article 12.03,
18	18	felony indictments may be presented within these limits, and not
19	19	afterward:
20	20	(1) no limitation:
21	21	(A) murder and manslaughter;
22	22	(B) sexual assault under Section 22.011(a)(2),
23	23	Penal Code, or aggravated sexual assault under Section
24	24	22.021(a)(1)(B), Penal Code;
25	25	(C) sexual assault, if during the investigation
26	26	of the offense biological matter is collected and subjected to
27	27	forensic DNA testing and the testing results show that the matter
28	28	does not match the victim or any other person whose identity is
29	29	readily ascertained;
30	30	(D) continuous sexual abuse of young child or
31	31	children under Section 21.02, Penal Code;
32	32	(E) indecency with a child under Section 21.11,
33	33	Penal Code; or
34	34	(F) an offense involving leaving the scene of an
35	35	accident under Section 550.021, Transportation Code, if the
36	36	accident resulted in the death of a person;
37	37	(2) ten years from the date of the commission of the
38	38	offense:
39	39	(A) theft of any estate, real, personal or mixed,
40	40	by an executor, administrator, guardian or trustee, with intent to
41	41	defraud any creditor, heir, legatee, ward, distributee,
42	42	beneficiary or settlor of a trust interested in such estate;
43	43	(B) theft by a public servant of government
44	44	property over which he exercises control in his official capacity;
45	45	(C) forgery or the uttering, using or passing of
46	46	forged instruments;
47	47	(D) injury to an elderly or disabled individual
48	48	punishable as a felony of the first degree under Section 22.04,
49	49	Penal Code;
50	50	(E) sexual assault, except as provided by
51	51	Subdivision (1) [or (5)]; or
52	52	(F) arson;
53	53	(3) seven years from the date of the commission of the
54	54	offense:
55	55	(A) misapplication of fiduciary property or
56	56	property of a financial institution;
57	57	(B) securing execution of document by deception;
58	58	(C) a violation under Sections 162.403(22)-(39),
59	59	Tax Code;
60	60	(D) false statement to obtain property or credit
61	61	under Section 32.32, Penal Code;
62	62	(E) money laundering;
63	63	(F) [(D)] credit card or debit card abuse under
64	64	Section 32.31, Penal Code;
65	65	(G) [(F)] fraudulent use or possession of
66	66	identifying information under Section 32.51, Penal Code; or
67	67	(H) Medicaid fraud under Section 35A.02, Penal
68	68	Code;
69	69	(4) five years from the date of the commission of the
70	70	offense:
71	71	(A) theft or robbery;
72	72	(B) except as provided by Subdivision (5),
73	73	kidnapping or burglary;
74	74	(C) injury to an elderly or disabled individual
75	75	that is not punishable as a felony of the first degree under Section
76	76	22.04, Penal Code;
77	77	(D) abandoning or endangering a child; or
78	78	(E) insurance fraud;
79	79	(5) if the investigation of the offense shows that the
80	80	victim is younger than 17 years of age at the time the offense is
81	81	committed, 20 years from the 18th birthday of the victim of one of
82	82	the following offenses:
83	83	(A) sexual performance by a child under Section
84	84	43.25, Penal Code;
85	85	(B) aggravated kidnapping under Section
86	86	20.04(a)(4), Penal Code, if the defendant committed the offense
87	87	with the intent to violate or abuse the victim sexually; or
88	88	(C) burglary under Section 30.02, Penal Code, if
89	89	the offense is punishable under Subsection (d) of that section and
90	90	the defendant committed the offense with the intent to commit an
91	91	offense described by Subdivision (1)(B) or (D) of this article or
92	92	Paragraph (B) of this subdivision; [or]
93	93	(6) [(5)] ten years from the 18th birthday of the
94	94	victim of the offense:
95	95	[(A) indecency with a child under Section
96	96	21.11(a)(1) or (2), Penal Code;
97	97	[(B) except as provided by Subdivision (1),
98	98	sexual assault under Section 22.011(a)(2), Penal Code, or
99	99	aggravated sexual assault under Section 22.021(a)(1)(B), Penal
100	100	Code; or
101	101	[(C)] injury to a child under Section 22.04,
102	102	Penal Code; or
103	103	(7) [(6)] three years from the date of the commission
104	104	of the offense: all other felonies.
105	105	SECTION 2. Subdivision (4), Section 242.002, Health and
106	106	Safety Code, is amended to read as follows:
107	107	(4) "Department" means the [Texas] Department of Aging
108	108	and Disability [Human] Services.
109	109	SECTION 3. Subsection (a), Section 250.006, Health and
110	110	Safety Code, is amended to read as follows:
111	111	(a) A person for whom the facility is entitled to obtain
112	112	criminal history record information may not be employed in a
113	113	facility if the person has been convicted of an offense listed in
114	114	this subsection:
115	115	(1) an offense under Chapter 19, Penal Code (criminal
116	116	homicide);
117	117	(2) an offense under Chapter 20, Penal Code
118	118	(kidnapping and unlawful restraint);
119	119	(3) an offense under Section 21.02, Penal Code
120	120	(continuous sexual abuse of young child or children), or Section
121	121	21.11, Penal Code (indecency with a child);
122	122	(4) an offense under Section 22.011, Penal Code
123	123	(sexual assault);
124	124	(5) an offense under Section 22.02, Penal Code
125	125	(aggravated assault);
126	126	(6) an offense under Section 22.04, Penal Code (injury
127	127	to a child, elderly individual, or disabled individual);
128	128	(7) an offense under Section 22.041, Penal Code
129	129	(abandoning or endangering child);
130	130	(8) an offense under Section 22.08, Penal Code (aiding
131	131	suicide);
132	132	(9) an offense under Section 25.031, Penal Code
133	133	(agreement to abduct from custody);
134	134	(10) an offense under Section 25.08, Penal Code (sale
135	135	or purchase of a child);
136	136	(11) an offense under Section 28.02, Penal Code
137	137	(arson);
138	138	(12) an offense under Section 29.02, Penal Code
139	139	(robbery);
140	140	(13) an offense under Section 29.03, Penal Code
141	141	(aggravated robbery);
142	142	(14) an offense under Section 21.08, Penal Code
143	143	(indecent exposure);
144	144	(15) an offense under Section 21.12, Penal Code
145	145	(improper relationship between educator and student);
146	146	(16) an offense under Section 21.15, Penal Code
147	147	(improper photography or visual recording);
148	148	(17) an offense under Section 22.05, Penal Code
149	149	(deadly conduct);
150	150	(18) an offense under Section 22.021, Penal Code
151	151	(aggravated sexual assault);
152	152	(19) an offense under Section 22.07, Penal Code
153	153	(terroristic threat);
154	154	(20) an offense under Section 32.53, Penal Code
155	155	(exploitation of child, elderly individual, or disabled
156	156	individual);
157	157	(21) an offense under Section 33.021, Penal Code
158	158	(online solicitation of a minor);
159	159	(22) [(21)] an offense under Section 34.02, Penal Code
160	160	(money laundering);
161	161	(23) [(22)] an offense under Section 35A.02, Penal
162	162	Code (Medicaid fraud);
163	163	(24) [(23)] an offense under Section 42.09, Penal Code
164	164	(cruelty to animals); or
165	165	(25) [(24)] a conviction under the laws of another
166	166	state, federal law, or the Uniform Code of Military Justice for an
167	167	offense containing elements that are substantially similar to the
168	168	elements of an offense listed by this subsection.
169	169	SECTION 4. Subsections (a-1), (b), (d), (f), and (g),
170	170	Section 22.04, Penal Code, are amended to read as follows:
171	171	(a-1) A person commits an offense if the person is an owner,
172	172	operator, or employee of a group home, nursing facility, assisted
173	173	living facility, intermediate care facility for persons with mental
174	174	retardation, or other institutional care facility and the person
175	175	intentionally, knowingly, recklessly, or with criminal negligence
176	176	by omission causes to a child, elderly individual, or disabled
177	177	individual who is a resident of that group home or facility:
178	178	(1) serious bodily injury;
179	179	(2) serious mental deficiency, impairment, or injury;
180	180	or
181	181	(3) bodily injury[; or
182	182	[(4) exploitation].
183	183	(b) An omission that causes a condition described by
184	184	Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
185	185	conduct constituting an offense under this section if:
186	186	(1) the actor has a legal or statutory duty to act; or
187	187	(2) the actor has assumed care, custody, or control of
188	188	a child, elderly individual, or disabled individual.
189	189	(d) For purposes of an omission that causes a condition
190	190	described by Subsection (a)(1), (2), or (3), the actor has assumed
191	191	care, custody, or control if he has by act, words, or course of
192	192	conduct acted so as to cause a reasonable person to conclude that he
193	193	has accepted responsibility for protection, food, shelter, and
194	194	medical care for a child, elderly individual, or disabled
195	195	individual. For purposes of an omission that causes a condition
196	196	described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
197	197	acting during the actor's capacity as owner, operator, or employee
198	198	of a group home or facility described by Subsection (a-1) is
199	199	considered to have accepted responsibility for protection, food,
200	200	shelter, and medical care for the child, elderly individual, or
201	201	disabled individual who is a resident of the group home or facility.
202	202	(f) An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
203	203	is a felony of the third degree when the conduct is committed
204	204	intentionally or knowingly. When the conduct is engaged in
205	205	recklessly, the offense is a state jail felony.
206	206	(g) An offense under Subsection (a) is a state jail felony
207	207	when the person acts with criminal negligence. An offense under
208	208	Subsection (a-1) is a state jail felony when the person, with
209	209	criminal negligence and by omission, causes a condition described
210	210	by Subsection (a-1)(1), (2), or (3)[, or (4)].
211	211	SECTION 5. Subsection (d), Section 32.46, Penal Code, is
212	212	amended to read as follows:
213	213	(d) In this section:
214	214	(1) "Deception"[, "deception"] has the meaning
215	215	assigned by Section 31.01.
216	216	(2) "Document" includes electronically stored data or
217	217	other information that is retrievable in a readable, perceivable
218	218	form.
219	219	SECTION 6. Subchapter D, Chapter 32, Penal Code, is amended
220	220	by adding Section 32.53 to read as follows:
221	221	Sec. 32.53. EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
222	222	DISABLED INDIVIDUAL. (a) In this section:
223	223	(1) "Child," "elderly individual," and "disabled
224	224	individual" have the meanings assigned by Section 22.04.
225	225	(2) "Exploitation" means the illegal or improper use
226	226	of an individual or of the resources of the individual for monetary
227	227	or personal benefit, profit, or gain.
228	228	(b) A person commits an offense if the person intentionally,
229	229	knowingly, or recklessly causes the exploitation of a child,
230	230	elderly individual, or disabled individual.
231	231	(c) An offense under this section is a felony of the third
232	232	degree.
233	233	(d) A person who is subject to prosecution under both this
234	234	section and another section of this code may be prosecuted under
235	235	either or both sections. Section 3.04 does not apply to criminal
236	236	episodes prosecuted under both this section and another section of
237	237	this code. If a criminal episode is prosecuted under both this
238	238	section and another section of this code and sentences are assessed
239	239	for convictions under both sections, the sentences shall run
240	240	concurrently.
241	241	SECTION 7. Section 35A.01, Penal Code, is amended by adding
242	242	Subdivision (10) to read as follows:
243	243	(10) "High managerial agent" means a director,
244	244	officer, or employee who is authorized to act on behalf of a
245	245	provider and has duties of such responsibility that the conduct of
246	246	the director, officer, or employee reasonably may be assumed to
247	247	represent the policy or intent of the provider.
248	248	SECTION 8. Section 35A.02, Penal Code, is amended by
249	249	amending Subsection (c) and adding Subsection (e) to read as
250	250	follows:
251	251	(c) If conduct constituting an offense under this section
252	252	also constitutes an offense under another section of this code or
253	253	another provision of law, the actor may be prosecuted under either
254	254	this section or the other section or provision or both this section
255	255	and the other section or provision.
256	256	(e) The punishment prescribed for an offense under this
257	257	section is increased to the punishment prescribed for the next
258	258	highest category of offense if it is shown beyond a reasonable doubt
259	259	on the trial of the offense that the actor was a provider or high
260	260	managerial agent at the time of the offense.
261	261	SECTION 9. Subsection (a), Section 71.02, Penal Code, is
262	262	amended to read as follows:
263	263	(a) A person commits an offense if, with the intent to
264	264	establish, maintain, or participate in a combination or in the
265	265	profits of a combination or as a member of a criminal street gang,
266	266	he commits or conspires to commit one or more of the following:
267	267	(1) murder, capital murder, arson, aggravated
268	268	robbery, robbery, burglary, theft, aggravated kidnapping,
269	269	kidnapping, aggravated assault, aggravated sexual assault, sexual
270	270	assault, forgery, deadly conduct, assault punishable as a Class A
271	271	misdemeanor, burglary of a motor vehicle, or unauthorized use of a
272	272	motor vehicle;
273	273	(2) any gambling offense punishable as a Class A
274	274	misdemeanor;
275	275	(3) promotion of prostitution, aggravated promotion
276	276	of prostitution, or compelling prostitution;
277	277	(4) unlawful manufacture, transportation, repair, or
278	278	sale of firearms or prohibited weapons;
279	279	(5) unlawful manufacture, delivery, dispensation, or
280	280	distribution of a controlled substance or dangerous drug, or
281	281	unlawful possession of a controlled substance or dangerous drug
282	282	through forgery, fraud, misrepresentation, or deception;
283	283	(6) any unlawful wholesale promotion or possession of
284	284	any obscene material or obscene device with the intent to wholesale
285	285	promote the same;
286	286	(7) any offense under Subchapter B, Chapter 43,
287	287	depicting or involving conduct by or directed toward a child
288	288	younger than 18 years of age;
289	289	(8) any felony offense under Chapter 32;
290	290	(9) any offense under Chapter 36;
291	291	(10) any offense under Chapter 34, [or] 35, or 35A;
292	292	(11) any offense under Section 37.11(a);
293	293	(12) any offense under Chapter 20A; or
294	294	(13) any offense under Section 37.10.
295	295	SECTION 10. Subdivision (4), Subsection (c), Section 22.04,
296	296	Penal Code, is repealed.
297	297	SECTION 11. The change in law made by this Act applies only
298	298	to an offense committed on or after the effective date of this Act.
299	299	An offense committed before the effective date of this Act is
300	300	covered by the law in effect when the offense was committed, and the
301	301	former law is continued in effect for that purpose. For purposes of
302	302	this section, an offense was committed before the effective date of
303	303	this Act if any element of the offense occurred before that date.
304	304	SECTION 12. This Act takes effect September 1, 2009.