Texas 2011 - 82nd Regular

Texas House Bill HB3375 Compare Versions

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1	1	82R14810 MAW-F
2	2	By: Murphy, Zedler H.B. No. 3375
3	3	Substitute the following for H.B. No. 3375:
4	4	By: Zedler C.S.H.B. No. 3375
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to certain evidence in a prosecution of fraud or theft
10	10	involving Medicaid or Medicare benefits and to certain criminal
11	11	procedures involving offenses in general.
12	12	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	13	SECTION 1. Chapter 38, Code of Criminal Procedure, is
14	14	amended by adding Article 38.46 to read as follows:
15	15	Art. 38.46. EVIDENCE IN AGGREGATION PROSECUTION FOR FRAUD
16	16	OR THEFT COMMITTED WITH RESPECT TO NUMEROUS MEDICAID OR MEDICARE
17	17	RECIPIENTS. In trials involving an allegation of a continuing
18	18	scheme of fraud or theft that involves Medicaid or Medicare
19	19	benefits and is alleged to have been committed with respect to a
20	20	large class of Medicaid or Medicare recipients in an aggregate
21	21	amount or value, the attorney representing the state is not
22	22	required to prove by direct evidence that each Medicaid or Medicare
23	23	recipient did not consent or effectively consent to a transaction
24	24	in question. It is sufficient if the lack of consent or effective
25	25	consent to a particular transaction or transactions is proven by
26	26	either direct or circumstantial evidence.
27	27	SECTION 2. Article 39.01, Code of Criminal Procedure, is
28	28	amended to read as follows:
29	29	Art. 39.01. IN EXAMINING TRIAL. When an examination takes
30	30	place in a criminal action before a magistrate, the state [State] or
31	31	the defendant may have the deposition of any witness taken by any
32	32	officer authorized by this chapter. The state [State] or the
33	33	defendant may not use the deposition for any purpose unless that
34	34	party first acknowledges that the entire evidence or statement of
35	35	the witness may be used for or against the defendant on the trial of
36	36	the case, subject to all legal objections. The deposition of a
37	37	witness duly taken before an examining trial or a jury of inquest
38	38	and reduced to writing or recorded and then certified according to
39	39	law, provided that [where] the defendant and the defendant's
40	40	attorney were [was] present when that testimony was taken[,] and
41	41	that the defendant had the privilege afforded of cross-examining
42	42	the witness, or taken at any prior trial of the defendant for the
43	43	same offense, may be used by either the state [State] or the
44	44	defendant in the trial of the defendant's criminal case under the
45	45	following circumstances:
46	46	When oath is made by the party using the deposition that the
47	47	witness resides outside the state [State]; or that since the
48	48	witness's testimony was taken, the witness has died, or has removed
49	49	beyond the limits of the state [State], or has been prevented from
50	50	attending the court through the act or agency of the other party, or
51	51	by the act or agency of any person whose object was to deprive the
52	52	state [State] or the defendant of the benefit of the testimony; or
53	53	that by reason of age or bodily infirmity, that witness cannot
54	54	attend; or that the witness is a Medicaid or Medicare recipient or a
55	55	caregiver or guardian of the recipient, and the recipient's
56	56	Medicaid or Medicare account was charged for a product or service
57	57	that was not provided or rendered to the recipient. When the
58	58	testimony is sought to be used by the state [State], the oath may be
59	59	made by any credible person. When sought to be used by the
60	60	defendant, the oath must be made by the defendant in person.
61	61	SECTION 3. Chapter 39, Code of Criminal Procedure, is
62	62	amended by adding Article 39.026 to read as follows:
63	63	Art. 39.026. DEPOSITIONS OF MEDICAID OR MEDICARE RECIPIENTS
64	64	OR CAREGIVERS. (a) In this article:
65	65	(1) "Caregiver" means a person, including a guardian,
66	66	who is authorized by law, contract, or familial relationship to
67	67	care for a recipient.
68	68	(2) "Medicaid" means the state Medicaid program.
69	69	(3) "Medicaid recipient" has the meaning assigned by
70	70	Section 36.001, Human Resources Code.
71	71	(4) "Medicare" means the federal health insurance
72	72	program that is operated under the Health Insurance for the Aged Act
73	73	(42 U.S.C. Section 1395 et seq.).
74	74	(5) "Medicare recipient" means an individual on whose
75	75	behalf a person claims or receives a payment under Medicare,
76	76	without regard to whether the individual was eligible for benefits
77	77	under Medicare.
78	78	(6) "Recipient" means a Medicaid recipient or a
79	79	Medicare recipient.
80	80	(b) The court may order the attorney representing the state
81	81	to take the deposition of a recipient or caregiver who is the
82	82	alleged victim of or witness to an offense constituting fraud or
83	83	theft that involves Medicaid or Medicare benefits. Any order under
84	84	this subsection must be issued not later than the 180th day after
85	85	the date on which the state files an application to take the
86	86	deposition under Article 39.02.
87	87	(c) On the motion of either party, the court may order the
88	88	attorney representing the state to take the deposition of a
89	89	recipient or caregiver by video recording. The person operating
90	90	the video recording device must be available to testify regarding
91	91	the authenticity of the video recording and the taking of the
92	92	deposition in order for the video recording to be admissible.
93	93	(d) If the court finds that the video recording of the
94	94	deposition is properly authenticated and that requiring the jury to
95	95	view the entire recording would unnecessarily prolong the trial,
96	96	the court may allow a party to offer the entire video recording into
97	97	evidence without requiring the jury to view the entire video
98	98	recording during the trial. This subsection does not preclude the
99	99	attorney representing the state, the defendant, or the defendant's
100	100	attorney from offering into evidence and playing for the jury a
101	101	portion of a video-recorded deposition.
102	102	(e) The attorney representing the state and the defendant or
103	103	the defendant's attorney, by written agreement filed with the
104	104	court, may extend the deadline for the taking of the deposition.
105	105	(f) The court shall grant any request by the attorney
106	106	representing the state to extend the deadline for the taking of the
107	107	deposition if a reason for the request is the unavailability,
108	108	health, or well-being of the recipient or caregiver.
109	109	(g) The Texas Rules of Civil Procedure govern the taking of
110	110	the deposition, except that, to the extent of any conflict with this
111	111	code or applicable court rules adopted for criminal proceedings,
112	112	this code and the rules for criminal proceedings govern. The
113	113	attorney representing the state and the defendant or the
114	114	defendant's attorney may agree to modify the rules applicable to
115	115	the deposition by written agreement filed with the court before the
116	116	taking of the deposition.
117	117	(h) If a defendant is unavailable to attend a deposition
118	118	because the defendant is confined in a correctional facility, the
119	119	court shall issue any orders or warrants necessary to secure the
120	120	defendant's presence at the deposition. The sheriff of the county
121	121	in which a deposition is to be taken under this subsection shall
122	122	provide a secure location for the taking of the deposition and
123	123	sufficient law enforcement personnel to ensure the deposition is
124	124	taken safely. The state's application to take a deposition or
125	125	notice of deposition is not required to include the identity of any
126	126	law enforcement agent the sheriff assigns to the deposition under
127	127	this subsection, and the defendant may not object to the taking of
128	128	the deposition based solely on the state's omission of the identity
129	129	of that agent.
130	130	(i) If a defendant is unavailable to attend a deposition for
131	131	any reason other than confinement in a correctional facility, the
132	132	defendant or the defendant's attorney shall request a continuance
133	133	from the court. The court may grant the continuance if the
134	134	defendant or the defendant's attorney demonstrates good cause for
135	135	the continuance and that the request is not brought for the purpose
136	136	of delay or avoidance. A defendant's failure to attend a deposition
137	137	or request a continuance in accordance with this subsection
138	138	constitutes a waiver of the defendant's right to be present at the
139	139	deposition.
140	140	SECTION 4. Article 39.12, Code of Criminal Procedure, is
141	141	amended to read as follows:
142	142	Art. 39.12. PREDICATE TO READ. Depositions taken in
143	143	criminal actions shall not be read unless oath be made that the
144	144	witness resides out of the state [State]; or that since the [his]
145	145	deposition was taken, the witness has died; or that the witness [he]
146	146	has removed beyond the limits of the state [State]; or that the
147	147	witness [he] has been prevented from attending the court through
148	148	the act or agency of the defendant; or by the act or agency of any
149	149	person whose object was to deprive the state or the defendant of the
150	150	benefit of the testimony; or that by reason of age or bodily
151	151	infirmity, the [such] witness cannot attend; or that the witness is
152	152	a Medicaid or Medicare recipient or a caregiver or guardian of the
153	153	recipient, and the recipient's Medicaid or Medicare account was
154	154	charged for a product or service that was not provided or rendered
155	155	to the recipient. When the deposition is sought to be used by the
156	156	state [State], the oath may be made by any credible person. When
157	157	sought to be used by the defendant, the oath shall be made by the
158	158	defendant [him] in person.
159	159	SECTION 5. The change in law made by this Act applies to a
160	160	criminal proceeding that commences on or after the effective date
161	161	of this Act. A criminal proceeding that commences before the
162	162	effective date of this Act is covered by the law in effect when the
163	163	proceeding commenced, and the former law is continued in effect for
164	164	that purpose.
165	165	SECTION 6. This Act takes effect September 1, 2011.