85R7122 EES-F
By: Thierry H.B. No. 959
A BILL TO BE ENTITLED
AN ACT
relating to the financial abuse of elderly persons, including
requiring financial institutions to report suspected financial
abuse of elderly persons; providing a civil penalty; creating
criminal offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Financial Elder
Abuse and Exploitation Prevention Act.
SECTION 2. Subchapter D, Chapter 32, Penal Code, is amended
by adding Section 32.55 to read as follows:
Sec. 32.55. FINANCIAL ABUSE OF ELDERLY INDIVIDUAL. (a) In
this section:
(1) "Elderly individual" has the meaning assigned by
Section 22.04.
(2) "Financial abuse" means the wrongful or negligent
taking, appropriation, obtaining, retention, or use of, or
assisting in the wrongful or negligent taking, appropriation,
obtaining, retention, or use of, money or other property of another
person by any means, including by exerting undue influence. The
term includes financial exploitation.
(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.
(b) For purposes of Subsection (a)(3), a person has a
relationship of confidence or trust with another person if the
person:
(1) is a parent, spouse, adult child, or other
relative by blood or marriage of the other person;
(2) is a joint tenant or tenant-in-common with the
other person;
(3) has a legal or fiduciary relationship with the
other person;
(4) is a financial planner or investment professional
who provides services to the other person; or
(5) is a paid or unpaid caregiver of the other person.
(c) A person commits an offense if the person with criminal
negligence engages in the financial abuse of an elderly individual.
(d) An offense under this section is:
(1) a Class A misdemeanor if the value of the property
taken, appropriated, obtained, retained, or used is less than $500;
(2) a felony of the third degree if the value of the
property taken, appropriated, obtained, retained, or used is $500
or more but less than $5,000;
(3) a felony of the second degree if the value of the
property taken, appropriated, obtained, retained, or used is $5,000
or more but less than $50,000; and
(4) a felony of the first degree if the value of the
property taken, appropriated, obtained, retained, or used is
$50,000 or more.
(e) A person who is subject to prosecution under both this
section and another section of this code may be prosecuted under
either or both sections.
SECTION 3. Section 59.006(a), Finance Code, is amended to
read as follows:
(a) This section provides the exclusive method for
compelled discovery of a record of a financial institution relating
to one or more customers but does not create a right of privacy in a
record. This section does not apply to and does not require or
authorize a financial institution to give a customer notice of:
(1) a demand or inquiry from a state or federal
government agency authorized by law to conduct an examination of
the financial institution;
(2) a record request from a state or federal
government agency or instrumentality under statutory or
administrative authority that provides for, or is accompanied by, a
specific mechanism for discovery and protection of a customer
record of a financial institution, including a record request from
a federal agency subject to the Right to Financial Privacy Act of
1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
Internal Revenue Service under Section 1205, Internal Revenue Code
of 1986;
(3) a record request from or report to a government
agency arising out of:
(A) the investigation or prosecution of a
criminal offense;
(B) the investigation of alleged abuse, neglect,
or exploitation of an elderly or disabled person or of alleged
financial abuse of an elderly person in accordance with Chapter 48,
Human Resources Code; or
(C) the assessment for or provision of
guardianship services under Subchapter E, Chapter 161, Human
Resources Code;
(4) a record request in connection with a garnishment
proceeding in which the financial institution is garnishee and the
customer is debtor;
(5) a record request by a duly appointed receiver for
the customer;
(6) an investigative demand or inquiry from a state
legislative investigating committee;
(7) an investigative demand or inquiry from the
attorney general of this state as authorized by law other than the
procedural law governing discovery in civil cases;
(8) the voluntary use or disclosure of a record by a
financial institution subject to other applicable state or federal
law; or
(9) a record request in connection with an
investigation conducted under Section 1054.151, 1054.152, or
1102.001, Estates Code.
SECTION 4. Subtitle Z, Title 3, Finance Code, is amended by
adding Chapter 280 to read as follows:
CHAPTER 280. REPORTING OF FINANCIAL ABUSE OF ELDERLY PERSONS
Sec. 280.001. DEFINITIONS. In this chapter:
(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) "Finance commission" means the Finance Commission
of Texas.
(4) "Financial abuse" has the meaning assigned by
Section 32.55, Penal Code.
(5) "Financial institution" has the meaning assigned
by Section 277.001.
(6) "Financial regulatory officials" means the
banking commissioner of Texas, the savings and mortgage lending
commissioner, and the credit union commissioner.
Sec. 280.002. REPORTING FINANCIAL ABUSE OF ELDERLY PERSON.
(a) Notwithstanding any other law, if an officer or employee of a
financial institution has a good faith belief that financial abuse
of an elderly person has occurred or is occurring, the financial
institution shall:
(1) subject to Subchapter B-1, Chapter 48, Human
Resources Code, make a report notifying the adult protective
services division of the suspected financial abuse; and
(2) notify the appropriate local law enforcement
agency with jurisdiction over the municipality or county in which
the elderly person resides of the suspected financial abuse for
purposes of investigating and determining whether an offense under
Section 32.55, Penal Code, or other law has occurred.
(b) The report and notification required by Subsection (a)
must be made:
(1) by telephone or electronic means, not later than
24 hours after the financial institution becomes aware of the
suspected financial abuse; and
(2) in writing, not later than the third business day
after the date the financial institution becomes aware of the
suspected financial abuse.
(c) For purposes of Subsection (a), an officer's or
employee's good faith belief must be acquired in connection with
the provision of financial services by the financial institution to
or on behalf of the elderly person and must be based on:
(1) the officer's or employee's observation or
knowledge of an incident of suspected financial abuse, if the
officer or employee has direct contact with the elderly person; or
(2) the presence of information indicating potential
financial abuse during a review or approval process performed by
the officer or employee in connection with the provision of
financial services, if the officer or employee does not have direct
contact with the elderly person but reviews or approves the elderly
person's financial documents, records, or transactions.
(d) Nothing in this section shall be construed to require a
financial institution to investigate an allegation of financial
abuse made by an elderly person or other person.
Sec. 280.003. CONFIDENTIALITY OF INFORMATION. (a) Except
as provided by Subsection (b), the following information is
confidential and is not subject to disclosure to the public, except
under court order:
(1) the information contained in a report or
notification made under Section 280.002;
(2) the name of the financial institution making the
report or notification or the identity of the officers or employees
described by Section 280.002(a); and
(3) information provided by or submitted to a
financial institution in connection with an investigation arising
out of a report or notification made under Section 280.002.
(b) Information that is confidential under Subsection (a)
may be disclosed only:
(1) to the adult protective services division or
another state agency, a law enforcement agency, or the attorney
general, in connection with the reporting or notification of or an
investigation of suspected financial abuse of the elderly person to
whom the information pertains;
(2) to, or as authorized by, the elderly person or the
guardian of the elderly person, unless the financial institution
suspects the guardian of financial abuse of the elderly person; or
(3) as part of a civil or criminal action related to
the suspected financial abuse of the elderly person.
(c) A person commits an offense if the person discloses
confidential information in violation of this section. An offense
under this subsection is a Class C misdemeanor.
Sec. 280.004. IMMUNITY FROM LIABILITY. A financial
institution that, or an officer or employee of the institution who,
makes a report or notification in good faith under Section 280.002
is immune from any criminal or civil liability arising from:
(1) the report or notification; or
(2) participation in any judicial proceeding arising
from the report or notification.
Sec. 280.005. CIVIL PENALTY. (a) A financial institution
that fails to make a report or notification in violation of this
chapter is liable to this state for a civil penalty in an amount not
to exceed $25,000, unless a court finds the violation to be wilful,
in which case the amount of the civil penalty may not exceed
$100,000.
(b) The attorney general may bring an action on behalf of
this state to recover a civil penalty under Subsection (a).
Sec. 280.006. RULEMAKING. Subject to Section 48.072, Human
Resources Code, the finance commission, the Credit Union
Commission, and the executive commissioner of the Health and Human
Services Commission, after consulting with the financial
regulatory officials and the Department of Family and Protective
Services, shall jointly adopt rules necessary to implement this
chapter, including rules that require each financial institution to
implement a training program to:
(1) assist the institution's officers and employees in
recognizing signs of potential financial abuse of an elderly
person; and
(2) inform the institution's officers and employees
about the reporting and notification requirements of this chapter.
SECTION 5. 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, the executive commissioner by rule may
consolidate the form and procedures used to submit a report under
Sections 48.051 and 48.072.
SECTION 6. Chapter 48, Human Resources Code, is amended by
adding Subchapter B-1 to read as follows:
SUBCHAPTER B-1. FINANCIAL ABUSE OF ELDERLY PERSONS
Sec. 48.071. DEFINITIONS. In this subchapter:
(1) "Financial abuse" has the meaning assigned by
Section 32.55, Penal Code.
(2) "Financial institution" and "financial regulatory
officials" have the meanings assigned by Section 280.001, Finance
Code.
Sec. 48.072. CERTAIN REPORTS OF SUSPECTED FINANCIAL ABUSE.
(a) The executive commissioner, after consultation with the
financial regulatory officials, by rule shall prescribe the form
and content of the report required to be made by a financial
institution under Section 280.002, Finance Code. A report made by a
financial institution under Section 280.002, Finance Code,
constitutes a report of suspected financial abuse 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
abuse 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 financial institution that makes a report to the
department of suspected financial abuse of an elderly person under
Section 280.002, Finance Code, 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 abuse 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 abuse of an elderly person received
under Section 280.002, Finance Code, 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 abuse 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 abuse 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 abuse 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 abuse 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 abuse.
Sec. 48.077. MEMORANDUM OF UNDERSTANDING. The commission,
the banking commissioner of Texas, the savings and mortgage lending
commissioner, the credit union commissioner, and the department
shall enter into a memorandum of understanding regarding the
reporting and investigation of suspected financial abuse 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 7. 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 abuse 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 abuse of
an elderly person made under Subchapter B-1 is governed by Section
48.078 and by Section 280.003, Finance Code.
SECTION 8. 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 9. This Act takes effect September 1, 2017.