Texas 2017 - 85th Regular

Texas House Bill HB3972 Compare Versions

Only one version of the bill is available at this time.

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1	1	85R12892 EES-D
2	2	By: Johnson of Dallas H.B. No. 3972
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the financial exploitation of certain elderly persons.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. The Securities Act (Article 581-1 et seq.,
10	10	Vernon's Texas Civil Statutes) is amended by adding Section 45 to
11	11	read as follows:
12	12	Sec. 45. PROTECTION OF ELDERLY PERSONS FROM FINANCIAL
13	13	EXPLOITATION. A. In this section:
14	14	(1) "Adult protective services division" means the
15	15	adult protective services division of the Department of Family and
16	16	Protective Services.
17	17	(2) "Elderly person" has the meaning assigned by
18	18	Section 48.002, Human Resources Code.
19	19	(3) "Financial exploitation" means the wrongful or
20	20	negligent taking, appropriation, obtaining, retention, or use of
21	21	money or other property of another person by a person who has a
22	22	relationship of confidence or trust with the other person.
23	23	Financial exploitation may involve coercion, manipulation,
24	24	threats, intimidation, misrepresentation, or the exerting of undue
25	25	influence. The term includes:
26	26	(A) the breach of a fiduciary relationship,
27	27	including the misuse of a durable power of attorney or the abuse of
28	28	guardianship powers, that results in the unauthorized
29	29	appropriation, sale, or transfer of another person's property;
30	30	(B) the unauthorized taking of personal assets;
31	31	(C) the misappropriation, misuse, or
32	32	unauthorized transfer of another person's money from a personal or
33	33	a joint account; and
34	34	(D) the negligent or intentional failure to
35	35	effectively use another person's income and assets for the
36	36	necessities required for the person's support and maintenance.
37	37	(4) "Qualified individual" means an agent, an
38	38	investment adviser representative, or a person who serves in a
39	39	supervisory, compliance, or legal capacity for a dealer or
40	40	investment adviser.
41	41	B. If a qualified individual rationally believes that
42	42	financial exploitation of an elderly person who is an account
43	43	holder with the dealer or investment adviser for whom the qualified
44	44	individual is providing services has occurred or is occurring, the
45	45	qualified individual:
46	46	(1) shall submit a report of the suspected financial
47	47	exploitation to the Board in accordance with rules adopted under
48	48	Subsection E of this section and the adult protective services
49	49	division in accordance with Subchapter B-1, Chapter 48, Human
50	50	Resources Code;
51	51	(2) may notify a third party that has a legal
52	52	relationship with the elderly person of the suspected financial
53	53	exploitation, unless the qualified individual suspects the third
54	54	party of financial exploitation of the elderly person; and
55	55	(3) may place a hold on a disbursement from an account
56	56	of the elderly person.
57	57	C. A qualified individual who submits a report, makes a
58	58	notification, or places a hold on a disbursement from an account
59	59	under Subsection B of this section is immune from any civil
60	60	liability or disciplinary action resulting from the report,
61	61	notification, or hold.
62	62	D. To the extent permitted by state or federal law, dealers
63	63	and investment advisers shall comply with requests for information
64	64	made in accordance with an investigation of suspected financial
65	65	exploitation of an elderly person.
66	66	E. The Board by rule shall prescribe the form and content of
67	67	the report required to be submitted by a qualified individual to the
68	68	Board under Subsection B of this section.
69	69	SECTION 2. Subchapter A, Chapter 48, Human Resources Code,
70	70	is amended by adding Section 48.008 to read as follows:
71	71	Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If
72	72	cost-effective and feasible and to the extent permitted by law, the
73	73	executive commissioner by rule may consolidate the form and
74	74	procedures used to submit a report under Sections 48.051 and
75	75	48.072.
76	76	SECTION 3. Chapter 48, Human Resources Code, is amended by
77	77	adding Subchapter B-1 to read as follows:
78	78	SUBCHAPTER B-1. FINANCIAL EXPLOITATION OF ELDERLY PERSONS
79	79	Sec. 48.071. DEFINITIONS. In this subchapter, "financial
80	80	exploitation" and "qualified individual" have the meanings
81	81	assigned by Section 45, The Securities Act (Article 581-45,
82	82	Vernon's Texas Civil Statutes).
83	83	Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL
84	84	EXPLOITATION. (a) The executive commissioner, after consultation
85	85	with the securities commissioner, by rule shall prescribe the form
86	86	and content of the report required to be submitted by a qualified
87	87	individual under Subsection B(1), Section 45, The Securities Act
88	88	(Article 581-45, Vernon's Texas Civil Statutes). A report
89	89	submitted by a qualified individual under Subsection B(1), Section
90	90	45, The Securities Act (Article 581-45, Vernon's Texas Civil
91	91	Statutes), constitutes a report of suspected financial
92	92	exploitation of an elderly person for purposes of this subchapter.
93	93	(b) In adopting rules under this section, the executive
94	94	commissioner shall ensure that a report of suspected financial
95	95	exploitation of an elderly person described by Subsection (a)
96	96	includes to the extent possible the same information required to be
97	97	included in a report under Section 48.051(d).
98	98	(c) A qualified individual who submits a report to the
99	99	department of suspected financial exploitation of an elderly person
100	100	under Subsection B(1), Section 45, The Securities Act (Article
101	101	581-45, Vernon's Texas Civil Statutes), in accordance with this
102	102	section is not required to make an additional report of suspected
103	103	abuse, neglect, or exploitation under Section 48.051 for the same
104	104	conduct constituting the financial exploitation reported under
105	105	this section.
106	106	Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF
107	107	REPORTS. (a) The executive commissioner by rule shall adopt
108	108	procedures for the assessment, investigation, and disposition of a
109	109	report of suspected financial exploitation of an elderly person
110	110	received under Subsection B(1), Section 45, The Securities Act
111	111	(Article 581-45, Vernon's Texas Civil Statutes), that must be
112	112	similar to the procedures used for the assessment, investigation,
113	113	and disposition of a report of abuse, neglect, or exploitation
114	114	received by the department under this chapter, other than a report
115	115	received under Subchapter F.
116	116	(b) The procedures adopted under this section must require:
117	117	(1) a risk assessment similar to the assessment
118	118	required under Section 48.004;
119	119	(2) investigations similar to the investigations
120	120	required under Subchapter D, including requirements that the
121	121	department:
122	122	(A) take action on a report within the time frame
123	123	and in the manner provided by Section 48.151;
124	124	(B) perform an interview with the elderly person
125	125	similar to the interview required by Section 48.152;
126	126	(C) if appropriate, implement a system to
127	127	investigate complex cases similar to the system implemented under
128	128	Section 48.1521;
129	129	(D) report criminal conduct to appropriate law
130	130	enforcement agencies similar to the reports under Section 48.1522;
131	131	and
132	132	(E) review certain cases involving multiple
133	133	reports under Section 48.051 and this subchapter similar to the
134	134	review performed under Section 48.1523; and
135	135	(3) a determination of services similar to the
136	136	determination required by Section 48.202.
137	137	Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The
138	138	department or another appropriate state agency has the authority to
139	139	act on or with respect to an allegation of financial exploitation of
140	140	an elderly person under this subchapter to the same extent the
141	141	department or other agency has the authority to act on or with
142	142	respect to an allegation of abuse, neglect, or exploitation under
143	143	Subchapter B.
144	144	Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an
145	145	investigation of reported financial exploitation of an elderly
146	146	person, the probate court, as defined by Section 22.007, Estates
147	147	Code, may authorize entry into the place of residence of an elderly
148	148	person.
149	149	(b) A peace officer shall accompany and assist the person
150	150	making a court-ordered entry under this section if the court
151	151	determines that action is necessary.
152	152	Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES
153	153	PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a
154	154	person, including a guardian, may not interfere with:
155	155	(1) an investigation by the department or by another
156	156	protective services agency of suspected financial exploitation of
157	157	an elderly person; or
158	158	(2) the provision of protective services to an elderly
159	159	person.
160	160	(b) The department or another protective services agency
161	161	may petition the appropriate court to enjoin any interference with:
162	162	(1) an investigation of suspected financial
163	163	exploitation of an elderly person under this subchapter; or
164	164	(2) the provision of protective services, such as
165	165	removing an elderly person to safer surroundings or safeguarding
166	166	the elderly person's resources from financial exploitation.
167	167	Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission,
168	168	the securities commissioner, and the department shall enter into a
169	169	memorandum of understanding regarding the reporting and
170	170	investigation of suspected financial exploitation of an elderly
171	171	person under this subchapter.
172	172	Sec. 48.078. CONFIDENTIALITY. (a) All files, reports,
173	173	records, communications, and working papers used or developed by
174	174	the department or other state agency in an investigation made under
175	175	this subchapter or in providing services as a result of an
176	176	investigation are confidential and not subject to disclosure under
177	177	Chapter 552, Government Code.
178	178	(b) The department or investigating state agency may
179	179	establish procedures to exchange with another state agency or
180	180	governmental entity information that is necessary for the
181	181	department, state agency, or governmental entity to properly
182	182	execute its respective duties and responsibilities to provide
183	183	services to elderly persons under this chapter or other law. An
184	184	exchange of information under this subsection does not affect
185	185	whether the information is subject to disclosure under Chapter 552,
186	186	Government Code.
187	187	SECTION 4. Subchapter C, Chapter 48, Human Resources Code,
188	188	is amended by adding Section 48.104 to read as follows:
189	189	Sec. 48.104. NONAPPLICABILITY. (a) This subchapter does
190	190	not apply to a report of financial exploitation of an elderly person
191	191	made under Subchapter B-1.
192	192	(b) The confidentiality of information received or provided
193	193	by the department in connection with a report of financial
194	194	exploitation of an elderly person made under Subchapter B-1 is
195	195	governed by Section 48.078.
196	196	SECTION 5. Subchapter D, Chapter 48, Human Resources Code,
197	197	is amended by adding Section 48.1511 to read as follows:
198	198	Sec. 48.1511. NONAPPLICABILITY. This subchapter does not
199	199	apply to an investigation conducted under Subchapter B-1 unless the
200	200	executive commissioner by rule requires the application of a
201	201	provision of this subchapter.
202	202	SECTION 6. This Act takes effect September 1, 2017.