85R12892 EES-D
By: Johnson of Dallas H.B. No. 3972
A BILL TO BE ENTITLED
AN ACT
relating to the financial exploitation of certain elderly persons.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The Securities Act (Article 581-1 et seq.,
Vernon's Texas Civil Statutes) is amended by adding Section 45 to
read as follows:
Sec. 45. PROTECTION OF ELDERLY PERSONS FROM FINANCIAL
EXPLOITATION. A. In this section:
(1) "Adult protective services division" means the
adult protective services division of the Department of Family and
Protective Services.
(2) "Elderly person" has the meaning assigned by
Section 48.002, Human Resources Code.
(3) "Financial exploitation" means the wrongful or
negligent taking, appropriation, obtaining, retention, or use of
money or other property of another person by a person who has a
relationship of confidence or trust with the other person.
Financial exploitation may involve coercion, manipulation,
threats, intimidation, misrepresentation, or the exerting of undue
influence. The term includes:
(A) the breach of a fiduciary relationship,
including the misuse of a durable power of attorney or the abuse of
guardianship powers, that results in the unauthorized
appropriation, sale, or transfer of another person's property;
(B) the unauthorized taking of personal assets;
(C) the misappropriation, misuse, or
unauthorized transfer of another person's money from a personal or
a joint account; and
(D) the negligent or intentional failure to
effectively use another person's income and assets for the
necessities required for the person's support and maintenance.
(4) "Qualified individual" means an agent, an
investment adviser representative, or a person who serves in a
supervisory, compliance, or legal capacity for a dealer or
investment adviser.
B. If a qualified individual rationally believes that
financial exploitation of an elderly person who is an account
holder with the dealer or investment adviser for whom the qualified
individual is providing services has occurred or is occurring, the
qualified individual:
(1) shall submit a report of the suspected financial
exploitation to the Board in accordance with rules adopted under
Subsection E of this section and the adult protective services
division in accordance with Subchapter B-1, Chapter 48, Human
Resources Code;
(2) may notify a third party that has a legal
relationship with the elderly person of the suspected financial
exploitation, unless the qualified individual suspects the third
party of financial exploitation of the elderly person; and
(3) may place a hold on a disbursement from an account
of the elderly person.
C. A qualified individual who submits a report, makes a
notification, or places a hold on a disbursement from an account
under Subsection B of this section is immune from any civil
liability or disciplinary action resulting from the report,
notification, or hold.
D. To the extent permitted by state or federal law, dealers
and investment advisers shall comply with requests for information
made in accordance with an investigation of suspected financial
exploitation of an elderly person.
E. The Board by rule shall prescribe the form and content of
the report required to be submitted by a qualified individual to the
Board under Subsection B of this section.
SECTION 2. Subchapter A, Chapter 48, Human Resources Code,
is amended by adding Section 48.008 to read as follows:
Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If
cost-effective and feasible and to the extent permitted by law, the
executive commissioner by rule may consolidate the form and
procedures used to submit a report under Sections 48.051 and
48.072.
SECTION 3. Chapter 48, Human Resources Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. FINANCIAL EXPLOITATION OF ELDERLY PERSONS
Sec. 48.071. DEFINITIONS. In this subchapter, "financial
exploitation" and "qualified individual" have the meanings
assigned by Section 45, The Securities Act (Article 581-45,
Vernon's Texas Civil Statutes).
Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL
EXPLOITATION. (a) The executive commissioner, after consultation
with the securities commissioner, by rule shall prescribe the form
and content of the report required to be submitted by a qualified
individual under Subsection B(1), Section 45, The Securities Act
(Article 581-45, Vernon's Texas Civil Statutes). A report
submitted by a qualified individual under Subsection B(1), Section
45, The Securities Act (Article 581-45, Vernon's Texas Civil
Statutes), constitutes a report of suspected financial
exploitation of an elderly person for purposes of this subchapter.
(b) In adopting rules under this section, the executive
commissioner shall ensure that a report of suspected financial
exploitation of an elderly person described by Subsection (a)
includes to the extent possible the same information required to be
included in a report under Section 48.051(d).
(c) A qualified individual who submits a report to the
department of suspected financial exploitation of an elderly person
under Subsection B(1), Section 45, The Securities Act (Article
581-45, Vernon's Texas Civil Statutes), in accordance with this
section is not required to make an additional report of suspected
abuse, neglect, or exploitation under Section 48.051 for the same
conduct constituting the financial exploitation reported under
this section.
Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF
REPORTS. (a) The executive commissioner by rule shall adopt
procedures for the assessment, investigation, and disposition of a
report of suspected financial exploitation of an elderly person
received under Subsection B(1), Section 45, The Securities Act
(Article 581-45, Vernon's Texas Civil Statutes), that must be
similar to the procedures used for the assessment, investigation,
and disposition of a report of abuse, neglect, or exploitation
received by the department under this chapter, other than a report
received under Subchapter F.
(b) The procedures adopted under this section must require:
(1) a risk assessment similar to the assessment
required under Section 48.004;
(2) investigations similar to the investigations
required under Subchapter D, including requirements that the
department:
(A) take action on a report within the time frame
and in the manner provided by Section 48.151;
(B) perform an interview with the elderly person
similar to the interview required by Section 48.152;
(C) if appropriate, implement a system to
investigate complex cases similar to the system implemented under
Section 48.1521;
(D) report criminal conduct to appropriate law
enforcement agencies similar to the reports under Section 48.1522;
and
(E) review certain cases involving multiple
reports under Section 48.051 and this subchapter similar to the
review performed under Section 48.1523; and
(3) a determination of services similar to the
determination required by Section 48.202.
Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The
department or another appropriate state agency has the authority to
act on or with respect to an allegation of financial exploitation of
an elderly person under this subchapter to the same extent the
department or other agency has the authority to act on or with
respect to an allegation of abuse, neglect, or exploitation under
Subchapter B.
Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an
investigation of reported financial exploitation of an elderly
person, the probate court, as defined by Section 22.007, Estates
Code, may authorize entry into the place of residence of an elderly
person.
(b) A peace officer shall accompany and assist the person
making a court-ordered entry under this section if the court
determines that action is necessary.
Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES
PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a
person, including a guardian, may not interfere with:
(1) an investigation by the department or by another
protective services agency of suspected financial exploitation of
an elderly person; or
(2) the provision of protective services to an elderly
person.
(b) The department or another protective services agency
may petition the appropriate court to enjoin any interference with:
(1) an investigation of suspected financial
exploitation of an elderly person under this subchapter; or
(2) the provision of protective services, such as
removing an elderly person to safer surroundings or safeguarding
the elderly person's resources from financial exploitation.
Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission,
the securities commissioner, and the department shall enter into a
memorandum of understanding regarding the reporting and
investigation of suspected financial exploitation of an elderly
person under this subchapter.
Sec. 48.078. CONFIDENTIALITY. (a) All files, reports,
records, communications, and working papers used or developed by
the department or other state agency in an investigation made under
this subchapter or in providing services as a result of an
investigation are confidential and not subject to disclosure under
Chapter 552, Government Code.
(b) The department or investigating state agency may
establish procedures to exchange with another state agency or
governmental entity information that is necessary for the
department, state agency, or governmental entity to properly
execute its respective duties and responsibilities to provide
services to elderly persons under this chapter or other law. An
exchange of information under this subsection does not affect
whether the information is subject to disclosure under Chapter 552,
Government Code.
SECTION 4. Subchapter C, Chapter 48, Human Resources Code,
is amended by adding Section 48.104 to read as follows:
Sec. 48.104. NONAPPLICABILITY. (a) This subchapter does
not apply to a report of financial exploitation of an elderly person
made under Subchapter B-1.
(b) The confidentiality of information received or provided
by the department in connection with a report of financial
exploitation of an elderly person made under Subchapter B-1 is
governed by Section 48.078.
SECTION 5. Subchapter D, Chapter 48, Human Resources Code,
is amended by adding Section 48.1511 to read as follows:
Sec. 48.1511. NONAPPLICABILITY. This subchapter does not
apply to an investigation conducted under Subchapter B-1 unless the
executive commissioner by rule requires the application of a
provision of this subchapter.
SECTION 6. This Act takes effect September 1, 2017.