Texas 2017 - 85th Regular

Texas House Bill HB959 Compare Versions

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

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1	1	85R7122 EES-F
2	2	By: Thierry H.B. No. 959
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the financial abuse of elderly persons, including
8	8	requiring financial institutions to report suspected financial
9	9	abuse of elderly persons; providing a civil penalty; creating
10	10	criminal offenses.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. This Act shall be known as the Financial Elder
13	13	Abuse and Exploitation Prevention Act.
14	14	SECTION 2. Subchapter D, Chapter 32, Penal Code, is amended
15	15	by adding Section 32.55 to read as follows:
16	16	Sec. 32.55. FINANCIAL ABUSE OF ELDERLY INDIVIDUAL. (a) In
17	17	this section:
18	18	(1) "Elderly individual" has the meaning assigned by
19	19	Section 22.04.
20	20	(2) "Financial abuse" means the wrongful or negligent
21	21	taking, appropriation, obtaining, retention, or use of, or
22	22	assisting in the wrongful or negligent taking, appropriation,
23	23	obtaining, retention, or use of, money or other property of another
24	24	person by any means, including by exerting undue influence. The
25	25	term includes financial exploitation.
26	26	(3) "Financial exploitation" means the wrongful or
27	27	negligent taking, appropriation, obtaining, retention, or use of
28	28	money or other property of another person by a person who has a
29	29	relationship of confidence or trust with the other person.
30	30	Financial exploitation may involve coercion, manipulation,
31	31	threats, intimidation, misrepresentation, or the exerting of undue
32	32	influence. The term includes:
33	33	(A) the breach of a fiduciary relationship,
34	34	including the misuse of a durable power of attorney or the abuse of
35	35	guardianship powers, that results in the unauthorized
36	36	appropriation, sale, or transfer of another person's property;
37	37	(B) the unauthorized taking of personal assets;
38	38	(C) the misappropriation, misuse, or
39	39	unauthorized transfer of another person's money from a personal or
40	40	a joint account; and
41	41	(D) the negligent or intentional failure to
42	42	effectively use another person's income and assets for the
43	43	necessities required for the person's support and maintenance.
44	44	(b) For purposes of Subsection (a)(3), a person has a
45	45	relationship of confidence or trust with another person if the
46	46	person:
47	47	(1) is a parent, spouse, adult child, or other
48	48	relative by blood or marriage of the other person;
49	49	(2) is a joint tenant or tenant-in-common with the
50	50	other person;
51	51	(3) has a legal or fiduciary relationship with the
52	52	other person;
53	53	(4) is a financial planner or investment professional
54	54	who provides services to the other person; or
55	55	(5) is a paid or unpaid caregiver of the other person.
56	56	(c) A person commits an offense if the person with criminal
57	57	negligence engages in the financial abuse of an elderly individual.
58	58	(d) An offense under this section is:
59	59	(1) a Class A misdemeanor if the value of the property
60	60	taken, appropriated, obtained, retained, or used is less than $500;
61	61	(2) a felony of the third degree if the value of the
62	62	property taken, appropriated, obtained, retained, or used is $500
63	63	or more but less than $5,000;
64	64	(3) a felony of the second degree if the value of the
65	65	property taken, appropriated, obtained, retained, or used is $5,000
66	66	or more but less than $50,000; and
67	67	(4) a felony of the first degree if the value of the
68	68	property taken, appropriated, obtained, retained, or used is
69	69	$50,000 or more.
70	70	(e) A person who is subject to prosecution under both this
71	71	section and another section of this code may be prosecuted under
72	72	either or both sections.
73	73	SECTION 3. Section 59.006(a), Finance Code, is amended to
74	74	read as follows:
75	75	(a) This section provides the exclusive method for
76	76	compelled discovery of a record of a financial institution relating
77	77	to one or more customers but does not create a right of privacy in a
78	78	record. This section does not apply to and does not require or
79	79	authorize a financial institution to give a customer notice of:
80	80	(1) a demand or inquiry from a state or federal
81	81	government agency authorized by law to conduct an examination of
82	82	the financial institution;
83	83	(2) a record request from a state or federal
84	84	government agency or instrumentality under statutory or
85	85	administrative authority that provides for, or is accompanied by, a
86	86	specific mechanism for discovery and protection of a customer
87	87	record of a financial institution, including a record request from
88	88	a federal agency subject to the Right to Financial Privacy Act of
89	89	1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
90	90	Internal Revenue Service under Section 1205, Internal Revenue Code
91	91	of 1986;
92	92	(3) a record request from or report to a government
93	93	agency arising out of:
94	94	(A) the investigation or prosecution of a
95	95	criminal offense;
96	96	(B) the investigation of alleged abuse, neglect,
97	97	or exploitation of an elderly or disabled person or of alleged
98	98	financial abuse of an elderly person in accordance with Chapter 48,
99	99	Human Resources Code; or
100	100	(C) the assessment for or provision of
101	101	guardianship services under Subchapter E, Chapter 161, Human
102	102	Resources Code;
103	103	(4) a record request in connection with a garnishment
104	104	proceeding in which the financial institution is garnishee and the
105	105	customer is debtor;
106	106	(5) a record request by a duly appointed receiver for
107	107	the customer;
108	108	(6) an investigative demand or inquiry from a state
109	109	legislative investigating committee;
110	110	(7) an investigative demand or inquiry from the
111	111	attorney general of this state as authorized by law other than the
112	112	procedural law governing discovery in civil cases;
113	113	(8) the voluntary use or disclosure of a record by a
114	114	financial institution subject to other applicable state or federal
115	115	law; or
116	116	(9) a record request in connection with an
117	117	investigation conducted under Section 1054.151, 1054.152, or
118	118	1102.001, Estates Code.
119	119	SECTION 4. Subtitle Z, Title 3, Finance Code, is amended by
120	120	adding Chapter 280 to read as follows:
121	121	CHAPTER 280. REPORTING OF FINANCIAL ABUSE OF ELDERLY PERSONS
122	122	Sec. 280.001. DEFINITIONS. In this chapter:
123	123	(1) "Adult protective services division" means the
124	124	adult protective services division of the Department of Family and
125	125	Protective Services.
126	126	(2) "Elderly person" has the meaning assigned by
127	127	Section 48.002, Human Resources Code.
128	128	(3) "Finance commission" means the Finance Commission
129	129	of Texas.
130	130	(4) "Financial abuse" has the meaning assigned by
131	131	Section 32.55, Penal Code.
132	132	(5) "Financial institution" has the meaning assigned
133	133	by Section 277.001.
134	134	(6) "Financial regulatory officials" means the
135	135	banking commissioner of Texas, the savings and mortgage lending
136	136	commissioner, and the credit union commissioner.
137	137	Sec. 280.002. REPORTING FINANCIAL ABUSE OF ELDERLY PERSON.
138	138	(a) Notwithstanding any other law, if an officer or employee of a
139	139	financial institution has a good faith belief that financial abuse
140	140	of an elderly person has occurred or is occurring, the financial
141	141	institution shall:
142	142	(1) subject to Subchapter B-1, Chapter 48, Human
143	143	Resources Code, make a report notifying the adult protective
144	144	services division of the suspected financial abuse; and
145	145	(2) notify the appropriate local law enforcement
146	146	agency with jurisdiction over the municipality or county in which
147	147	the elderly person resides of the suspected financial abuse for
148	148	purposes of investigating and determining whether an offense under
149	149	Section 32.55, Penal Code, or other law has occurred.
150	150	(b) The report and notification required by Subsection (a)
151	151	must be made:
152	152	(1) by telephone or electronic means, not later than
153	153	24 hours after the financial institution becomes aware of the
154	154	suspected financial abuse; and
155	155	(2) in writing, not later than the third business day
156	156	after the date the financial institution becomes aware of the
157	157	suspected financial abuse.
158	158	(c) For purposes of Subsection (a), an officer's or
159	159	employee's good faith belief must be acquired in connection with
160	160	the provision of financial services by the financial institution to
161	161	or on behalf of the elderly person and must be based on:
162	162	(1) the officer's or employee's observation or
163	163	knowledge of an incident of suspected financial abuse, if the
164	164	officer or employee has direct contact with the elderly person; or
165	165	(2) the presence of information indicating potential
166	166	financial abuse during a review or approval process performed by
167	167	the officer or employee in connection with the provision of
168	168	financial services, if the officer or employee does not have direct
169	169	contact with the elderly person but reviews or approves the elderly
170	170	person's financial documents, records, or transactions.
171	171	(d) Nothing in this section shall be construed to require a
172	172	financial institution to investigate an allegation of financial
173	173	abuse made by an elderly person or other person.
174	174	Sec. 280.003. CONFIDENTIALITY OF INFORMATION. (a) Except
175	175	as provided by Subsection (b), the following information is
176	176	confidential and is not subject to disclosure to the public, except
177	177	under court order:
178	178	(1) the information contained in a report or
179	179	notification made under Section 280.002;
180	180	(2) the name of the financial institution making the
181	181	report or notification or the identity of the officers or employees
182	182	described by Section 280.002(a); and
183	183	(3) information provided by or submitted to a
184	184	financial institution in connection with an investigation arising
185	185	out of a report or notification made under Section 280.002.
186	186	(b) Information that is confidential under Subsection (a)
187	187	may be disclosed only:
188	188	(1) to the adult protective services division or
189	189	another state agency, a law enforcement agency, or the attorney
190	190	general, in connection with the reporting or notification of or an
191	191	investigation of suspected financial abuse of the elderly person to
192	192	whom the information pertains;
193	193	(2) to, or as authorized by, the elderly person or the
194	194	guardian of the elderly person, unless the financial institution
195	195	suspects the guardian of financial abuse of the elderly person; or
196	196	(3) as part of a civil or criminal action related to
197	197	the suspected financial abuse of the elderly person.
198	198	(c) A person commits an offense if the person discloses
199	199	confidential information in violation of this section. An offense
200	200	under this subsection is a Class C misdemeanor.
201	201	Sec. 280.004. IMMUNITY FROM LIABILITY. A financial
202	202	institution that, or an officer or employee of the institution who,
203	203	makes a report or notification in good faith under Section 280.002
204	204	is immune from any criminal or civil liability arising from:
205	205	(1) the report or notification; or
206	206	(2) participation in any judicial proceeding arising
207	207	from the report or notification.
208	208	Sec. 280.005. CIVIL PENALTY. (a) A financial institution
209	209	that fails to make a report or notification in violation of this
210	210	chapter is liable to this state for a civil penalty in an amount not
211	211	to exceed $25,000, unless a court finds the violation to be wilful,
212	212	in which case the amount of the civil penalty may not exceed
213	213	$100,000.
214	214	(b) The attorney general may bring an action on behalf of
215	215	this state to recover a civil penalty under Subsection (a).
216	216	Sec. 280.006. RULEMAKING. Subject to Section 48.072, Human
217	217	Resources Code, the finance commission, the Credit Union
218	218	Commission, and the executive commissioner of the Health and Human
219	219	Services Commission, after consulting with the financial
220	220	regulatory officials and the Department of Family and Protective
221	221	Services, shall jointly adopt rules necessary to implement this
222	222	chapter, including rules that require each financial institution to
223	223	implement a training program to:
224	224	(1) assist the institution's officers and employees in
225	225	recognizing signs of potential financial abuse of an elderly
226	226	person; and
227	227	(2) inform the institution's officers and employees
228	228	about the reporting and notification requirements of this chapter.
229	229	SECTION 5. Subchapter A, Chapter 48, Human Resources Code,
230	230	is amended by adding Section 48.008 to read as follows:
231	231	Sec. 48.008. CONSOLIDATION OF CERTAIN REPORTS. If
232	232	cost-effective and feasible, the executive commissioner by rule may
233	233	consolidate the form and procedures used to submit a report under
234	234	Sections 48.051 and 48.072.
235	235	SECTION 6. Chapter 48, Human Resources Code, is amended by
236	236	adding Subchapter B-1 to read as follows:
237	237	SUBCHAPTER B-1. FINANCIAL ABUSE OF ELDERLY PERSONS
238	238	Sec. 48.071. DEFINITIONS. In this subchapter:
239	239	(1) "Financial abuse" has the meaning assigned by
240	240	Section 32.55, Penal Code.
241	241	(2) "Financial institution" and "financial regulatory
242	242	officials" have the meanings assigned by Section 280.001, Finance
243	243	Code.
244	244	Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL ABUSE.
245	245	(a) The executive commissioner, after consultation with the
246	246	financial regulatory officials, by rule shall prescribe the form
247	247	and content of the report required to be made by a financial
248	248	institution under Section 280.002, Finance Code. A report made by a
249	249	financial institution under Section 280.002, Finance Code,
250	250	constitutes a report of suspected financial abuse of an elderly
251	251	person for purposes of this subchapter.
252	252	(b) In adopting rules under this section, the executive
253	253	commissioner shall ensure that a report of suspected financial
254	254	abuse of an elderly person described by Subsection (a) includes to
255	255	the extent possible the same information required to be included in
256	256	a report under Section 48.051(d).
257	257	(c) A financial institution that makes a report to the
258	258	department of suspected financial abuse of an elderly person under
259	259	Section 280.002, Finance Code, in accordance with this section is
260	260	not required to make an additional report of suspected abuse,
261	261	neglect, or exploitation under Section 48.051 for the same conduct
262	262	constituting the financial abuse reported under this section.
263	263	Sec. 48.073. ASSESSMENT, INVESTIGATION, AND DISPOSITION OF
264	264	REPORTS. (a) The executive commissioner by rule shall adopt
265	265	procedures for the assessment, investigation, and disposition of a
266	266	report of suspected financial abuse of an elderly person received
267	267	under Section 280.002, Finance Code, that must be similar to the
268	268	procedures used for the assessment, investigation, and disposition
269	269	of a report of abuse, neglect, or exploitation received by the
270	270	department under this chapter, other than a report received under
271	271	Subchapter F.
272	272	(b) The procedures adopted under this section must require:
273	273	(1) a risk assessment similar to the assessment
274	274	required under Section 48.004;
275	275	(2) investigations similar to the investigations
276	276	required under Subchapter D, including requirements that the
277	277	department:
278	278	(A) take action on a report within the time frame
279	279	and in the manner provided by Section 48.151;
280	280	(B) perform an interview with the elderly person
281	281	similar to the interview required by Section 48.152;
282	282	(C) if appropriate, implement a system to
283	283	investigate complex cases similar to the system implemented under
284	284	Section 48.1521;
285	285	(D) report criminal conduct to appropriate law
286	286	enforcement agencies similar to the reports under Section 48.1522;
287	287	and
288	288	(E) review certain cases involving multiple
289	289	reports under Section 48.051 and this subchapter similar to the
290	290	review performed under Section 48.1523; and
291	291	(3) a determination of services similar to the
292	292	determination required by Section 48.202.
293	293	Sec. 48.074. AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The
294	294	department or another appropriate state agency has the authority to
295	295	act on or with respect to an allegation of financial abuse of an
296	296	elderly person under this subchapter to the same extent the
297	297	department or other agency has the authority to act on or with
298	298	respect to an allegation of abuse, neglect, or exploitation under
299	299	Subchapter B.
300	300	Sec. 48.075. ACCESS TO INVESTIGATION. (a) To implement an
301	301	investigation of reported financial abuse of an elderly person, the
302	302	probate court, as defined by Section 22.007, Estates Code, may
303	303	authorize entry into the place of residence of an elderly person.
304	304	(b) A peace officer shall accompany and assist the person
305	305	making a court-ordered entry under this section if the court
306	306	determines that action is necessary.
307	307	Sec. 48.076. INTERFERENCE WITH INVESTIGATION OR SERVICES
308	308	PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a
309	309	person, including a guardian, may not interfere with:
310	310	(1) an investigation by the department or by another
311	311	protective services agency of suspected financial abuse of an
312	312	elderly person; or
313	313	(2) the provision of protective services to an elderly
314	314	person.
315	315	(b) The department or another protective services agency
316	316	may petition the appropriate court to enjoin any interference with:
317	317	(1) an investigation of suspected financial abuse of
318	318	an elderly person under this subchapter; or
319	319	(2) the provision of protective services, such as
320	320	removing an elderly person to safer surroundings or safeguarding
321	321	the elderly person's resources from financial abuse.
322	322	Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission,
323	323	the banking commissioner of Texas, the savings and mortgage lending
324	324	commissioner, the credit union commissioner, and the department
325	325	shall enter into a memorandum of understanding regarding the
326	326	reporting and investigation of suspected financial abuse of an
327	327	elderly person under this subchapter.
328	328	Sec. 48.078. CONFIDENTIALITY. (a) All files, reports,
329	329	records, communications, and working papers used or developed by
330	330	the department or other state agency in an investigation made under
331	331	this subchapter or in providing services as a result of an
332	332	investigation are confidential and not subject to disclosure under
333	333	Chapter 552, Government Code.
334	334	(b) The department or investigating state agency may
335	335	establish procedures to exchange with another state agency or
336	336	governmental entity information that is necessary for the
337	337	department, state agency, or governmental entity to properly
338	338	execute its respective duties and responsibilities to provide
339	339	services to elderly persons under this chapter or other law. An
340	340	exchange of information under this subsection does not affect
341	341	whether the information is subject to disclosure under Chapter 552,
342	342	Government Code.
343	343	SECTION 7. Subchapter C, Chapter 48, Human Resources Code,
344	344	is amended by adding Section 48.104 to read as follows:
345	345	Sec. 48.104. NONAPPLICABILITY. (a) This subchapter does
346	346	not apply to a report of financial abuse of an elderly person made
347	347	under Subchapter B-1.
348	348	(b) The confidentiality of information received or provided
349	349	by the department in connection with a report of financial abuse of
350	350	an elderly person made under Subchapter B-1 is governed by Section
351	351	48.078 and by Section 280.003, Finance Code.
352	352	SECTION 8. Subchapter D, Chapter 48, Human Resources Code,
353	353	is amended by adding Section 48.1511 to read as follows:
354	354	Sec. 48.1511. NONAPPLICABILITY. This subchapter does not
355	355	apply to an investigation conducted under Subchapter B-1 unless the
356	356	executive commissioner by rule requires the application of a
357	357	provision of this subchapter.
358	358	SECTION 9. This Act takes effect September 1, 2017.