Texas 2011 - 82nd Regular

Texas Senate Bill SB1680 Compare Versions

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1	1	By: Ellis S.B. No. 1680
2	2	(Murphy)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain evidence in a prosecution of fraud or theft
8	8	involving Medicaid or Medicare benefits and to certain criminal
9	9	procedures involving offenses in general.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 38, Code of Criminal Procedure, is
12	12	amended by adding Article 38.46 to read as follows:
13	13	Art. 38.46. EVIDENCE IN AGGREGATION PROSECUTION FOR FRAUD
14	14	OR THEFT COMMITTED WITH RESPECT TO NUMEROUS MEDICAID OR MEDICARE
15	15	RECIPIENTS. In trials involving an allegation of a continuing
16	16	scheme of fraud or theft that involves Medicaid or Medicare
17	17	benefits and is alleged to have been committed with respect to a
18	18	large class of Medicaid or Medicare recipients in an aggregate
19	19	amount or value, the attorney representing the state is not
20	20	required to prove by direct evidence that each Medicaid or Medicare
21	21	recipient did not consent or effectively consent to a transaction
22	22	in question. It is sufficient if the lack of consent or effective
23	23	consent to a particular transaction or transactions is proven by
24	24	either direct or circumstantial evidence.
25	25	SECTION 2. Article 39.01, Code of Criminal Procedure, is
26	26	amended to read as follows:
27	27	Art. 39.01. IN EXAMINING TRIAL. When an examination takes
28	28	place in a criminal action before a magistrate, the state [State] or
29	29	the defendant may have the deposition of any witness taken by any
30	30	officer authorized by this chapter. The state [State] or the
31	31	defendant may not use the deposition for any purpose unless that
32	32	party first acknowledges that the entire evidence or statement of
33	33	the witness may be used for or against the defendant on the trial of
34	34	the case, subject to all legal objections. The deposition of a
35	35	witness duly taken before an examining trial or a jury of inquest
36	36	and reduced to writing or recorded and then certified according to
37	37	law, provided that [where] the defendant and the defendant's
38	38	attorney were [was] present when that testimony was taken[,] and
39	39	that the defendant had the privilege afforded of cross-examining
40	40	the witness, or taken at any prior trial of the defendant for the
41	41	same offense, may be used by either the state [State] or the
42	42	defendant in the trial of the defendant's criminal case under the
43	43	following circumstances:
44	44	When oath is made by the party using the deposition that the
45	45	witness resides outside the state [State]; or that since the
46	46	witness's testimony was taken, the witness has died, or has removed
47	47	beyond the limits of the state [State], or has been prevented from
48	48	attending the court through the act or agency of the other party, or
49	49	by the act or agency of any person whose object was to deprive the
50	50	state [State] or the defendant of the benefit of the testimony; or
51	51	that by reason of age or bodily infirmity, that witness cannot
52	52	attend; or that the witness is a Medicaid or Medicare recipient or a
53	53	caregiver or guardian of the recipient, and the recipient's
54	54	Medicaid or Medicare account was charged for a product or service
55	55	that was not provided or rendered to the recipient. When the
56	56	testimony is sought to be used by the state [State], the oath may be
57	57	made by any credible person. When sought to be used by the
58	58	defendant, the oath must be made by the defendant in person.
59	59	SECTION 3. Chapter 39, Code of Criminal Procedure, is
60	60	amended by adding Article 39.026 to read as follows:
61	61	Art. 39.026. DEPOSITIONS OF MEDICAID OR MEDICARE RECIPIENTS
62	62	OR CAREGIVERS. (a) In this article:
63	63	(1) "Caregiver" means a person, including a guardian,
64	64	who is authorized by law, contract, or familial relationship to
65	65	care for a recipient.
66	66	(2) "Medicaid" means the state Medicaid program.
67	67	(3) "Medicaid recipient" has the meaning assigned by
68	68	Section 36.001, Human Resources Code.
69	69	(4) "Medicare" means the federal health insurance
70	70	program that is operated under the Health Insurance for the Aged Act
71	71	(42 U.S.C. Section 1395 et seq.).
72	72	(5) "Medicare recipient" means an individual on whose
73	73	behalf a person claims or receives a payment under Medicare,
74	74	without regard to whether the individual was eligible for benefits
75	75	under Medicare.
76	76	(6) "Recipient" means a Medicaid recipient or a
77	77	Medicare recipient.
78	78	(b) The court may order the attorney representing the state
79	79	to take the deposition of a recipient or caregiver who is the
80	80	alleged victim of or witness to an offense constituting fraud or
81	81	theft that involves Medicaid or Medicare benefits. Any order under
82	82	this subsection must be issued not later than the 180th day after
83	83	the date on which the state files an application to take the
84	84	deposition under Article 39.02.
85	85	(c) On the motion of either party, the court may order the
86	86	attorney representing the state to take the deposition of a
87	87	recipient or caregiver by video recording. The person operating
88	88	the video recording device must be available to testify regarding
89	89	the authenticity of the video recording and the taking of the
90	90	deposition in order for the video recording to be admissible.
91	91	(d) If the court finds that the video recording of the
92	92	deposition is properly authenticated and that requiring the jury to
93	93	view the entire recording would unnecessarily prolong the trial,
94	94	the court may allow a party to offer the entire video recording into
95	95	evidence without requiring the jury to view the entire video
96	96	recording during the trial. This subsection does not preclude the
97	97	attorney representing the state, the defendant, or the defendant's
98	98	attorney from offering into evidence and playing for the jury a
99	99	portion of a video-recorded deposition.
100	100	(e) The attorney representing the state and the defendant or
101	101	the defendant's attorney, by written agreement filed with the
102	102	court, may extend the deadline for the taking of the deposition.
103	103	(f) The court shall grant any request by the attorney
104	104	representing the state to extend the deadline for the taking of the
105	105	deposition if a reason for the request is the unavailability,
106	106	health, or well-being of the recipient or caregiver.
107	107	(g) The Texas Rules of Civil Procedure govern the taking of
108	108	the deposition, except that, to the extent of any conflict with this
109	109	code or applicable court rules adopted for criminal proceedings,
110	110	this code and the rules for criminal proceedings govern. The
111	111	attorney representing the state and the defendant or the
112	112	defendant's attorney may agree to modify the rules applicable to
113	113	the deposition by written agreement filed with the court before the
114	114	taking of the deposition.
115	115	(h) If a defendant is unavailable to attend a deposition
116	116	because the defendant is confined in a correctional facility, the
117	117	court shall issue any orders or warrants necessary to secure the
118	118	defendant's presence at the deposition. The sheriff of the county
119	119	in which a deposition is to be taken under this subsection shall
120	120	provide a secure location for the taking of the deposition and
121	121	sufficient law enforcement personnel to ensure that the deposition
122	122	is taken safely. The state's application to take a deposition or
123	123	notice of deposition is not required to include the identity of any
124	124	law enforcement agent the sheriff assigns to the deposition under
125	125	this subsection, and the defendant may not object to the taking of
126	126	the deposition based solely on the state's omission of the identity
127	127	of that agent.
128	128	(i) If a defendant is unavailable to attend a deposition for
129	129	any reason other than confinement in a correctional facility, the
130	130	defendant or the defendant's attorney shall request a continuance
131	131	from the court. The court may grant the continuance if the
132	132	defendant or the defendant's attorney demonstrates good cause for
133	133	the continuance and that the request is not brought for the purpose
134	134	of delay or avoidance. A defendant's failure to attend a deposition
135	135	or request a continuance in accordance with this subsection
136	136	constitutes a waiver of the defendant's right to be present at the
137	137	deposition.
138	138	SECTION 4. Article 39.12, Code of Criminal Procedure, is
139	139	amended to read as follows:
140	140	Art. 39.12. PREDICATE TO READ. Depositions taken in
141	141	criminal actions shall not be read unless oath be made that the
142	142	witness resides out of the state [State]; or that since the [his]
143	143	deposition was taken, the witness has died; or that the witness [he]
144	144	has removed beyond the limits of the state [State]; or that the
145	145	witness [he] has been prevented from attending the court through
146	146	the act or agency of the defendant; or by the act or agency of any
147	147	person whose object was to deprive the state or the defendant of the
148	148	benefit of the testimony; or that by reason of age or bodily
149	149	infirmity, the [such] witness cannot attend; or that the witness is
150	150	a Medicaid or Medicare recipient or a caregiver or guardian of the
151	151	recipient, and the recipient's Medicaid or Medicare account was
152	152	charged for a product or service that was not provided or rendered
153	153	to the recipient. When the deposition is sought to be used by the
154	154	state [State], the oath may be made by any credible person. When
155	155	sought to be used by the defendant, the oath shall be made by the
156	156	defendant [him] in person.
157	157	SECTION 5. The change in law made by this Act applies to a
158	158	criminal proceeding that commences on or after the effective date
159	159	of this Act. A criminal proceeding that commences before the
160	160	effective date of this Act is covered by the law in effect when the
161	161	proceeding commenced, and the former law is continued in effect for
162	162	that purpose.
163	163	SECTION 6. This Act takes effect September 1, 2011.