By: Ellis S.B. No. 1680
(Murphy)
A BILL TO BE ENTITLED
AN ACT
relating to certain evidence in a prosecution of fraud or theft
involving Medicaid or Medicare benefits and to certain criminal
procedures involving offenses in general.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 38, Code of Criminal Procedure, is
amended by adding Article 38.46 to read as follows:
Art. 38.46. EVIDENCE IN AGGREGATION PROSECUTION FOR FRAUD
OR THEFT COMMITTED WITH RESPECT TO NUMEROUS MEDICAID OR MEDICARE
RECIPIENTS. In trials involving an allegation of a continuing
scheme of fraud or theft that involves Medicaid or Medicare
benefits and is alleged to have been committed with respect to a
large class of Medicaid or Medicare recipients in an aggregate
amount or value, the attorney representing the state is not
required to prove by direct evidence that each Medicaid or Medicare
recipient did not consent or effectively consent to a transaction
in question. It is sufficient if the lack of consent or effective
consent to a particular transaction or transactions is proven by
either direct or circumstantial evidence.
SECTION 2. Article 39.01, Code of Criminal Procedure, is
amended to read as follows:
Art. 39.01. IN EXAMINING TRIAL. When an examination takes
place in a criminal action before a magistrate, the state [State] or
the defendant may have the deposition of any witness taken by any
officer authorized by this chapter. The state [State] or the
defendant may not use the deposition for any purpose unless that
party first acknowledges that the entire evidence or statement of
the witness may be used for or against the defendant on the trial of
the case, subject to all legal objections. The deposition of a
witness duly taken before an examining trial or a jury of inquest
and reduced to writing or recorded and then certified according to
law, provided that [where] the defendant and the defendant's
attorney were [was] present when that testimony was taken[,] and
that the defendant had the privilege afforded of cross-examining
the witness, or taken at any prior trial of the defendant for the
same offense, may be used by either the state [State] or the
defendant in the trial of the defendant's criminal case under the
following circumstances:
When oath is made by the party using the deposition that the
witness resides outside the state [State]; or that since the
witness's testimony was taken, the witness has died, or has removed
beyond the limits of the state [State], or has been prevented from
attending the court through the act or agency of the other party, or
by the act or agency of any person whose object was to deprive the
state [State] or the defendant of the benefit of the testimony; or
that by reason of age or bodily infirmity, that witness cannot
attend; or that the witness is a Medicaid or Medicare recipient or a
caregiver or guardian of the recipient, and the recipient's
Medicaid or Medicare account was charged for a product or service
that was not provided or rendered to the recipient. When the
testimony is sought to be used by the state [State], the oath may be
made by any credible person. When sought to be used by the
defendant, the oath must be made by the defendant in person.
SECTION 3. Chapter 39, Code of Criminal Procedure, is
amended by adding Article 39.026 to read as follows:
Art. 39.026. DEPOSITIONS OF MEDICAID OR MEDICARE RECIPIENTS
OR CAREGIVERS. (a) In this article:
(1) "Caregiver" means a person, including a guardian,
who is authorized by law, contract, or familial relationship to
care for a recipient.
(2) "Medicaid" means the state Medicaid program.
(3) "Medicaid recipient" has the meaning assigned by
Section 36.001, Human Resources Code.
(4) "Medicare" means the federal health insurance
program that is operated under the Health Insurance for the Aged Act
(42 U.S.C. Section 1395 et seq.).
(5) "Medicare recipient" means an individual on whose
behalf a person claims or receives a payment under Medicare,
without regard to whether the individual was eligible for benefits
under Medicare.
(6) "Recipient" means a Medicaid recipient or a
Medicare recipient.
(b) The court may order the attorney representing the state
to take the deposition of a recipient or caregiver who is the
alleged victim of or witness to an offense constituting fraud or
theft that involves Medicaid or Medicare benefits. Any order under
this subsection must be issued not later than the 180th day after
the date on which the state files an application to take the
deposition under Article 39.02.
(c) On the motion of either party, the court may order the
attorney representing the state to take the deposition of a
recipient or caregiver by video recording. The person operating
the video recording device must be available to testify regarding
the authenticity of the video recording and the taking of the
deposition in order for the video recording to be admissible.
(d) If the court finds that the video recording of the
deposition is properly authenticated and that requiring the jury to
view the entire recording would unnecessarily prolong the trial,
the court may allow a party to offer the entire video recording into
evidence without requiring the jury to view the entire video
recording during the trial. This subsection does not preclude the
attorney representing the state, the defendant, or the defendant's
attorney from offering into evidence and playing for the jury a
portion of a video-recorded deposition.
(e) The attorney representing the state and the defendant or
the defendant's attorney, by written agreement filed with the
court, may extend the deadline for the taking of the deposition.
(f) The court shall grant any request by the attorney
representing the state to extend the deadline for the taking of the
deposition if a reason for the request is the unavailability,
health, or well-being of the recipient or caregiver.
(g) The Texas Rules of Civil Procedure govern the taking of
the deposition, except that, to the extent of any conflict with this
code or applicable court rules adopted for criminal proceedings,
this code and the rules for criminal proceedings govern. The
attorney representing the state and the defendant or the
defendant's attorney may agree to modify the rules applicable to
the deposition by written agreement filed with the court before the
taking of the deposition.
(h) If a defendant is unavailable to attend a deposition
because the defendant is confined in a correctional facility, the
court shall issue any orders or warrants necessary to secure the
defendant's presence at the deposition. The sheriff of the county
in which a deposition is to be taken under this subsection shall
provide a secure location for the taking of the deposition and
sufficient law enforcement personnel to ensure that the deposition
is taken safely. The state's application to take a deposition or
notice of deposition is not required to include the identity of any
law enforcement agent the sheriff assigns to the deposition under
this subsection, and the defendant may not object to the taking of
the deposition based solely on the state's omission of the identity
of that agent.
(i) If a defendant is unavailable to attend a deposition for
any reason other than confinement in a correctional facility, the
defendant or the defendant's attorney shall request a continuance
from the court. The court may grant the continuance if the
defendant or the defendant's attorney demonstrates good cause for
the continuance and that the request is not brought for the purpose
of delay or avoidance. A defendant's failure to attend a deposition
or request a continuance in accordance with this subsection
constitutes a waiver of the defendant's right to be present at the
deposition.
SECTION 4. Article 39.12, Code of Criminal Procedure, is
amended to read as follows:
Art. 39.12. PREDICATE TO READ. Depositions taken in
criminal actions shall not be read unless oath be made that the
witness resides out of the state [State]; or that since the [his]
deposition was taken, the witness has died; or that the witness [he]
has removed beyond the limits of the state [State]; or that the
witness [he] has been prevented from attending the court through
the act or agency of the defendant; or by the act or agency of any
person whose object was to deprive the state or the defendant of the
benefit of the testimony; or that by reason of age or bodily
infirmity, the [such] witness cannot attend; or that the witness is
a Medicaid or Medicare recipient or a caregiver or guardian of the
recipient, and the recipient's Medicaid or Medicare account was
charged for a product or service that was not provided or rendered
to the recipient. When the deposition is sought to be used by the
state [State], the oath may be made by any credible person. When
sought to be used by the defendant, the oath shall be made by the
defendant [him] in person.
SECTION 5. The change in law made by this Act applies to a
criminal proceeding that commences on or after the effective date
of this Act. A criminal proceeding that commences before the
effective date of this Act is covered by the law in effect when the
proceeding commenced, and the former law is continued in effect for
that purpose.
SECTION 6. This Act takes effect September 1, 2011.