81R33565 GCB-D
By: Nichols S.B. No. 1432
Substitute the following for S.B. No. 1432:
By: Rose C.S.S.B. No. 1432
A BILL TO BE ENTITLED
AN ACT
relating to the investigation, prosecution, and punishment of
criminal Medicaid fraud and certain other offenses related to
Medicaid fraud; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 12.01, Code of Criminal Procedure, as
amended by Chapters 285 (H.B. 716), 593 (H.B. 8), 640 (H.B. 887),
and 841 (H.B. 959), Acts of the 80th Legislature, Regular Session,
2007, is reenacted and amended to read as follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2),
Penal Code, or aggravated sexual assault under Section
22.021(a)(1)(B), Penal Code;
(C) sexual assault, if during the investigation
of the offense biological matter is collected and subjected to
forensic DNA testing and the testing results show that the matter
does not match the victim or any other person whose identity is
readily ascertained;
(D) continuous sexual abuse of young child or
children under Section 21.02, Penal Code;
(E) indecency with a child under Section 21.11,
Penal Code; or
(F) an offense involving leaving the scene of an
accident under Section 550.021, Transportation Code, if the
accident resulted in the death of a person;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,
by an executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee,
beneficiary or settlor of a trust interested in such estate;
(B) theft by a public servant of government
property over which he exercises control in his official capacity;
(C) forgery or the uttering, using or passing of
forged instruments;
(D) injury to an elderly or disabled individual
punishable as a felony of the first degree under Section 22.04,
Penal Code;
(E) sexual assault, except as provided by
Subdivision (1) [or (5)]; or
(F) arson;
(3) seven years from the date of the commission of the
offense:
(A) misapplication of fiduciary property or
property of a financial institution;
(B) securing execution of document by deception;
(C) a violation under Sections 162.403(22)-(39),
Tax Code;
(D) false statement to obtain property or credit
under Section 32.32, Penal Code;
(E) money laundering;
(F) [(D)] credit card or debit card abuse under
Section 32.31, Penal Code;
(G) [(F)] fraudulent use or possession of
identifying information under Section 32.51, Penal Code; or
(H) Medicaid fraud under Section 35A.02, Penal
Code;
(4) five years from the date of the commission of the
offense:
(A) theft or robbery;
(B) except as provided by Subdivision (5),
kidnapping or burglary;
(C) injury to an elderly or disabled individual
that is not punishable as a felony of the first degree under Section
22.04, Penal Code;
(D) abandoning or endangering a child; or
(E) insurance fraud;
(5) if the investigation of the offense shows that the
victim is younger than 17 years of age at the time the offense is
committed, 20 years from the 18th birthday of the victim of one of
the following offenses:
(A) sexual performance by a child under Section
43.25, Penal Code;
(B) aggravated kidnapping under Section
20.04(a)(4), Penal Code, if the defendant committed the offense
with the intent to violate or abuse the victim sexually; or
(C) burglary under Section 30.02, Penal Code, if
the offense is punishable under Subsection (d) of that section and
the defendant committed the offense with the intent to commit an
offense described by Subdivision (1)(B) or (D) of this article or
Paragraph (B) of this subdivision; [or]
(6) [(5)] ten years from the 18th birthday of the
victim of the offense:
[(A) indecency with a child under Section
21.11(a)(1) or (2), Penal Code;
[(B) except as provided by Subdivision (1),
sexual assault under Section 22.011(a)(2), Penal Code, or
aggravated sexual assault under Section 22.021(a)(1)(B), Penal
Code; or
[(C)] injury to a child under Section 22.04,
Penal Code; or
(7) [(6)] three years from the date of the commission
of the offense: all other felonies.
SECTION 2. Subdivision (4), Section 242.002, Health and
Safety Code, is amended to read as follows:
(4) "Department" means the [Texas] Department of Aging
and Disability [Human] Services.
SECTION 3. Subsection (a), Section 250.006, Health and
Safety Code, is amended to read as follows:
(a) A person for whom the facility is entitled to obtain
criminal history record information may not be employed in a
facility if the person has been convicted of an offense listed in
this subsection:
(1) an offense under Chapter 19, Penal Code (criminal
homicide);
(2) an offense under Chapter 20, Penal Code
(kidnapping and unlawful restraint);
(3) an offense under Section 21.02, Penal Code
(continuous sexual abuse of young child or children), or Section
21.11, Penal Code (indecency with a child);
(4) an offense under Section 22.011, Penal Code
(sexual assault);
(5) an offense under Section 22.02, Penal Code
(aggravated assault);
(6) an offense under Section 22.04, Penal Code (injury
to a child, elderly individual, or disabled individual);
(7) an offense under Section 22.041, Penal Code
(abandoning or endangering child);
(8) an offense under Section 22.08, Penal Code (aiding
suicide);
(9) an offense under Section 25.031, Penal Code
(agreement to abduct from custody);
(10) an offense under Section 25.08, Penal Code (sale
or purchase of a child);
(11) an offense under Section 28.02, Penal Code
(arson);
(12) an offense under Section 29.02, Penal Code
(robbery);
(13) an offense under Section 29.03, Penal Code
(aggravated robbery);
(14) an offense under Section 21.08, Penal Code
(indecent exposure);
(15) an offense under Section 21.12, Penal Code
(improper relationship between educator and student);
(16) an offense under Section 21.15, Penal Code
(improper photography or visual recording);
(17) an offense under Section 22.05, Penal Code
(deadly conduct);
(18) an offense under Section 22.021, Penal Code
(aggravated sexual assault);
(19) an offense under Section 22.07, Penal Code
(terroristic threat);
(20) an offense under Section 32.53, Penal Code
(exploitation of child, elderly individual, or disabled
individual);
(21) an offense under Section 33.021, Penal Code
(online solicitation of a minor);
(22) [(21)] an offense under Section 34.02, Penal Code
(money laundering);
(23) [(22)] an offense under Section 35A.02, Penal
Code (Medicaid fraud);
(24) [(23)] an offense under Section 42.09, Penal Code
(cruelty to animals); or
(25) [(24)] a conviction under the laws of another
state, federal law, or the Uniform Code of Military Justice for an
offense containing elements that are substantially similar to the
elements of an offense listed by this subsection.
SECTION 4. Subsections (a-1), (b), (d), (f), and (g),
Section 22.04, Penal Code, are amended to read as follows:
(a-1) A person commits an offense if the person is an owner,
operator, or employee of a group home, nursing facility, assisted
living facility, intermediate care facility for persons with mental
retardation, or other institutional care facility and the person
intentionally, knowingly, recklessly, or with criminal negligence
by omission causes to a child, elderly individual, or disabled
individual who is a resident of that group home or facility:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury;
or
(3) bodily injury[; or
[(4) exploitation].
(b) An omission that causes a condition described by
Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
conduct constituting an offense under this section if:
(1) the actor has a legal or statutory duty to act; or
(2) the actor has assumed care, custody, or control of
a child, elderly individual, or disabled individual.
(d) For purposes of an omission that causes a condition
described by Subsection (a)(1), (2), or (3), the actor has assumed
care, custody, or control if he has by act, words, or course of
conduct acted so as to cause a reasonable person to conclude that he
has accepted responsibility for protection, food, shelter, and
medical care for a child, elderly individual, or disabled
individual. For purposes of an omission that causes a condition
described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
acting during the actor's capacity as owner, operator, or employee
of a group home or facility described by Subsection (a-1) is
considered to have accepted responsibility for protection, food,
shelter, and medical care for the child, elderly individual, or
disabled individual who is a resident of the group home or facility.
(f) An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
is a felony of the third degree when the conduct is committed
intentionally or knowingly. When the conduct is engaged in
recklessly, the offense is a state jail felony.
(g) An offense under Subsection (a) is a state jail felony
when the person acts with criminal negligence. An offense under
Subsection (a-1) is a state jail felony when the person, with
criminal negligence and by omission, causes a condition described
by Subsection (a-1)(1), (2), or (3)[, or (4)].
SECTION 5. Subsection (d), Section 32.46, Penal Code, is
amended to read as follows:
(d) In this section:
(1) "Deception"[, "deception"] has the meaning
assigned by Section 31.01.
(2) "Document" includes electronically stored data or
other information that is retrievable in a readable, perceivable
form.
SECTION 6. Subchapter D, Chapter 32, Penal Code, is amended
by adding Section 32.53 to read as follows:
Sec. 32.53. EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
DISABLED INDIVIDUAL. (a) In this section:
(1) "Child," "elderly individual," and "disabled
individual" have the meanings assigned by Section 22.04.
(2) "Exploitation" means the illegal or improper use
of an individual or of the resources of the individual for monetary
or personal benefit, profit, or gain.
(b) A person commits an offense if the person intentionally,
knowingly, or recklessly causes the exploitation of a child,
elderly individual, or disabled individual.
(c) An offense under this section is a felony of the third
degree.
(d) 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 3.04 does not apply to criminal
episodes prosecuted under both this section and another section of
this code. If a criminal episode is prosecuted under both this
section and another section of this code and sentences are assessed
for convictions under both sections, the sentences shall run
concurrently.
SECTION 7. Section 35A.01, Penal Code, is amended by adding
Subdivision (10) to read as follows:
(10) "High managerial agent" means a director,
officer, or employee who is authorized to act on behalf of a
provider and has duties of such responsibility that the conduct of
the director, officer, or employee reasonably may be assumed to
represent the policy or intent of the provider.
SECTION 8. Section 35A.02, Penal Code, is amended by
amending Subsection (c) and adding Subsection (e) to read as
follows:
(c) If conduct constituting an offense under this section
also constitutes an offense under another section of this code or
another provision of law, the actor may be prosecuted under either
this section or the other section or provision or both this section
and the other section or provision.
(e) The punishment prescribed for an offense under this
section is increased to the punishment prescribed for the next
highest category of offense if it is shown beyond a reasonable doubt
on the trial of the offense that the actor was a provider or high
managerial agent at the time of the offense.
SECTION 9. Subsection (a), Section 71.02, Penal Code, is
amended to read as follows:
(a) A person commits an offense if, with the intent to
establish, maintain, or participate in a combination or in the
profits of a combination or as a member of a criminal street gang,
he commits or conspires to commit one or more of the following:
(1) murder, capital murder, arson, aggravated
robbery, robbery, burglary, theft, aggravated kidnapping,
kidnapping, aggravated assault, aggravated sexual assault, sexual
assault, forgery, deadly conduct, assault punishable as a Class A
misdemeanor, burglary of a motor vehicle, or unauthorized use of a
motor vehicle;
(2) any gambling offense punishable as a Class A
misdemeanor;
(3) promotion of prostitution, aggravated promotion
of prostitution, or compelling prostitution;
(4) unlawful manufacture, transportation, repair, or
sale of firearms or prohibited weapons;
(5) unlawful manufacture, delivery, dispensation, or
distribution of a controlled substance or dangerous drug, or
unlawful possession of a controlled substance or dangerous drug
through forgery, fraud, misrepresentation, or deception;
(6) any unlawful wholesale promotion or possession of
any obscene material or obscene device with the intent to wholesale
promote the same;
(7) any offense under Subchapter B, Chapter 43,
depicting or involving conduct by or directed toward a child
younger than 18 years of age;
(8) any felony offense under Chapter 32;
(9) any offense under Chapter 36;
(10) any offense under Chapter 34, [or] 35, or 35A;
(11) any offense under Section 37.11(a);
(12) any offense under Chapter 20A; or
(13) any offense under Section 37.10.
SECTION 10. Subdivision (4), Subsection (c), Section 22.04,
Penal Code, is repealed.
SECTION 11. The change in law made by this Act applies only
to an offense committed on or after the effective date of this Act.
An offense committed before the effective date of this Act is
covered by the law in effect when the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense occurred before that date.
SECTION 12. This Act takes effect September 1, 2009.