85R9874 AJA-F
By: Campbell S.B. No. 2060
A BILL TO BE ENTITLED
AN ACT
relating to compensation and restitution to crime victims and the
disposition of unclaimed restitution payments; providing for an
administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 56.34(f), Code of Criminal Procedure, is
amended to read as follows:
(f) The compensation to victims of crime fund is [and the
compensation to victims of crime auxiliary fund are] the payer
[payers] of last resort.
SECTION 2. Articles 56.54(a), (d), (f), and (g), Code of
Criminal Procedure, are amended to read as follows:
(a) The compensation to victims of crime fund is [and the
compensation to victims of crime auxiliary fund are] in the state
treasury.
(d) The attorney general may not make compensation payments
in excess of the amount of money available in the compensation to
victims of crime fund [from the combined funds].
(f) The office of the attorney general is authorized to
accept gifts, grants, and donations to be credited to the
compensation to victims of crime fund [and compensation to victims
of crime auxiliary fund] and shall file annually with the governor
and the presiding officer of each house of the legislature a
complete and detailed written report accounting for all gifts,
grants, and donations received and disbursed, used, or maintained
by the office for the attorney general that are credited to the fund
[these funds].
(g) Money in the compensation to victims of crime fund [or
in the compensation to victims of crime auxiliary fund] may be used
only as provided by this subchapter and is not available for any
other purpose. Section 403.095, Government Code, does not apply to
the fund.
SECTION 3. Section 76.013, Government Code, is amended by
amending Subsections (a), (b), and (c) and adding Subsections
(b-1), (b-2), and (b-3) to read as follows:
(a) If a judge requires a defendant to make restitution to a
victim of the defendant's offense, and a restitution payment is
received by a department from the defendant for transmittal to a
victim of the offense, the department [that receives the payment
for disbursement to the victim] shall immediately deposit the
payment in an interest-bearing account in the county treasury as
required by Section 140.003(f), Local Government Code.
(b) If a department receives an initial restitution payment
[is received by a department], the department shall immediately
[shall] notify the victim [of that fact] by certified mail, mailed
to the last known address of the victim, that the restitution
payment has been received and shall inform the victim of how a claim
for payment of restitution can be made. [If a victim then makes a
claim for payment, the department promptly shall remit the payment
to the victim. A department is obligated to make a good faith
effort to locate and notify a victim that an unclaimed payment
exists. The department satisfies the good faith requirement under
this subsection by sending to the victim by certified mail on any
one occasion during the period the defendant is required to make
payments a notice that the victim is entitled to an unclaimed
payment. Not earlier than the fifth anniversary of the date on
which the department mails notice under this subsection, if the
victim has not made a claim for payment, the department shall
transfer from the interest-bearing account to the comptroller all
payments received. After making an initial transfer of payments to
the comptroller under this subsection, the department, not later
than the 121st day after the date the department receives a
subsequent payment, shall transfer the subsequent payment to the
comptroller. The department shall deduct five percent of the
payment or subsequent payment as a collection fee and deduct any
interest accrued on the payment or subsequent payment before
transferring the payment to the comptroller under this subsection.
The comptroller shall deposit the payment in the state treasury to
the credit of the compensation to victims of crime auxiliary fund.]
(b-1) If a victim makes a claim for payment of restitution
with the department, the department shall promptly remit to the
victim all restitution payments received by the department from the
defendant for transmittal to the victim.
(b-2) If a victim who is entitled to restitution does not
make a claim for payment before the fifth anniversary of the date
the department receives the initial restitution payment or if,
after the victim makes a claim for payment, the department is unable
to locate the victim for a period of five years after the date the
department last made a payment to the victim, any unclaimed
restitution payments being held by the department for payment to
the victim are presumed abandoned. The department shall report and
deliver to the comptroller all unclaimed restitution payments
presumed abandoned under this section, less a collection fee of one
and one-half percent, in the manner provided by Chapter 77,
Property Code.
(b-3) If on March 1 a department is not holding unclaimed
restitution payments that are presumed abandoned under this
section, the department shall file a property report under Section
77.051, Property Code, that certifies that the department is not
holding any unclaimed restitution payments that are presumed
abandoned under this section.
(c) The collection fee under Subsection (b-2) [(b)] and the
accrued interest under Subsection [Subsections] (a) [and (b)] shall
be deposited in the special fund of the county treasury provided by
Section 509.011 to be used for the same purposes for which state aid
may be used under that section. [The department has a maximum of
121 days after the five-year expiration date to transfer the funds
to the comptroller's office. Failure to comply with the 121-day
deadline will result in a five percent collection fee penalty
calculated from the total deposit and all interest attributable to
the unclaimed funds.]
SECTION 4. Section 508.322, Government Code, is amended by
amending Subsection (e) and adding Subsection (f) to read as
follows:
(e) If a victim who is entitled to restitution does not make
a claim for payment before the fifth anniversary of the date the
department receives the initial restitution payment or if, after
the victim makes a claim for payment, the department is unable to
locate the victim for a period of five years after the date the
department last made a payment to the victim, any unclaimed
restitution payments being held by the department for payment to
the victim are presumed abandoned. The department shall report and
deliver to the comptroller all unclaimed restitution payments
presumed abandoned under this section in the manner provided by
Chapter 77, Property Code [Money that remains unclaimed shall be
transferred to the compensation to victims of crime auxiliary fund
on the fifth anniversary of the date the money was deposited to the
credit of the releasee restitution fund].
(f) If on March 1 a department is not holding unclaimed
restitution payments that are presumed abandoned under this
section, the department shall file a property report under Section
77.051, Property Code, that certifies that the department is not
holding any unclaimed restitution payments that are presumed
abandoned under this section.
SECTION 5. Title 6, Property Code, is amended by adding
Chapter 77 to read as follows:
CHAPTER 77. REPORT, DELIVERY, AND CLAIMS PROCESS FOR
UNCLAIMED RESTITUTION PAYMENTS
SUBCHAPTER A. APPLICABILITY
Sec. 77.001. APPLICABILITY. This chapter applies to
unclaimed restitution payments that are presumed abandoned under
Section 76.013 or 508.322, Government Code.
SUBCHAPTER B. PROPERTY REPORT
Sec. 77.051. PROPERTY REPORT. (a) Notwithstanding the
confidentiality provisions of Chapters 57, 57A, 57B, and 57D, Code
of Criminal Procedure, each holder who on March 1 holds an unclaimed
restitution payment that is presumed abandoned under Section 76.013
or 508.322, Government Code, shall file a property report with the
comptroller on or before the following July 1. The comptroller may
prescribe the form to be used for the report required by this
section and may require the report to be filed electronically.
(b) The property report must include, if known by the
holder:
(1) the name, social security number, driver's license
or state identification number, e-mail address, and last known
address of the victim who, from the records of the holder, is
entitled to the unclaimed restitution payment;
(2) the cause number of the case in which a judge
ordered a defendant to pay restitution to the victim, the amount of
restitution ordered, and the balance owed to the victim;
(3) the date of the last transaction with the victim
concerning the restitution payments; and
(4) other information that the comptroller requires to
be disclosed as necessary for the administration of this chapter.
(c) A holder who is required by Subsection (a) to file a
report in any year shall file a report each successive year
thereafter. If a person required to file a report under this
subsection is not holding any restitution payments that are
presumed abandoned under Section 76.013 or 508.322, Government
Code, the person shall certify that the person is not holding any
restitution payments that are presumed abandoned under those
sections.
Sec. 77.052. NOTICE BY HOLDER REQUIRED. A holder who on
March 1 holds an unclaimed restitution payment that is presumed
abandoned under Section 76.013 or 508.322, Government Code, shall,
on or before the following May 1, mail to the last known address of
the victim entitled to the unclaimed restitution payment written
notice stating that:
(1) the holder is holding the restitution payment to
which the victim is entitled; and
(2) the holder may be required to deliver the
restitution payment to the comptroller on or before July 1 if the
victim does not claim the restitution payment.
Sec. 77.053. SIGNED STATEMENT. (a) The person preparing a
property report required by this chapter shall provide with each
copy of the report a statement signed by the holder's chief fiscal
officer, as designated by the holder. The signature required by
this section may be in an electronic or other form prescribed by the
comptroller and shall have the same effect as an original
signature.
(b) The statement must include the following sentence:
"This report contains a full and complete list of all
restitution payments held by the undersigned that, from the
knowledge and records of the undersigned, are abandoned under the
laws of the State of Texas."
Sec. 77.054. CONFIDENTIALITY OF PROPERTY REPORT. (a) The
property report filed with the comptroller under Section 77.051 is
confidential and is not subject to disclosure under Chapter 552,
Government Code.
(b) The social security number, driver's license or state
identification number, and address of a victim are confidential and
are not subject to disclosure under Chapter 552, Government Code.
For the purposes of this subsection, the victim's address includes
information that identifies a victim's place of residence or post
office box but does not include the city or county in which the
victim resides.
Sec. 77.055. EXCEPTION TO LIABILITY. (a) It is an
exception to the application of Section 552.352, Government Code,
that the comptroller or an officer or employee of the comptroller's
office published or disclosed information in reliance on the report
filed with the comptroller under Section 77.051.
(b) The comptroller or an officer or employee of the
comptroller's office is immune from any civil liability for
publishing or disclosing confidential information under this
section if the comptroller, officer, or employee published or
disclosed the information in reliance on the report filed with the
comptroller under Section 77.051.
SUBCHAPTER C. NOTICE BY COMPTROLLER
Sec. 77.101. NOTICE. The comptroller may use one or more
methods as necessary to provide the most efficient and effective
notice to victims that the comptroller is holding unclaimed
restitution payments that are subject to this chapter.
Sec. 77.102. PUBLICATION. Notwithstanding Section 77.054,
the comptroller may publish on the Internet information regarding
unclaimed restitution payments received by the comptroller, except
that the comptroller may not publish information that identifies a
person as a victim or information that identifies a victim's
address. For the purposes of this subsection, the victim's address
includes information that identifies a victim's place of residence
or post office box but does not include the city or county in which
the victim resides.
SUBCHAPTER D. DELIVERY
Sec. 77.151. DELIVERY OF PROPERTY TO COMPTROLLER. Each
holder who on March 1 holds an unclaimed restitution payment that is
presumed abandoned under Section 76.013 or 508.322, Government
Code, shall deliver the property to the comptroller on or before the
following July 1 accompanied by the report required to be filed
under Section 77.051.
Sec. 77.152. RESPONSIBILITY AFTER DELIVERY. (a) If an
unclaimed restitution payment that is presumed abandoned under
Section 76.013 or 508.322, Government Code, is reported and
delivered to the comptroller, the state shall assume custody of the
payment and responsibility for its safekeeping.
(b) A holder who delivers an unclaimed restitution payment
to the comptroller in compliance with this chapter is relieved of
all liability to the extent of the value of the payment delivered
for any claim then existing, that may arise after delivery to the
comptroller, or that may be made with respect to the payment.
(c) If the holder delivers an unclaimed restitution payment
to the comptroller in good faith and, after delivery, a person
claims the property from the holder, the attorney general shall, on
written notice of the claim, defend the holder against the claim,
and the holder shall be indemnified against any liability on the
claim.
SUBCHAPTER E. CLAIM FOR DELIVERED PROPERTY
Sec. 77.201. CLAIM FILED WITH COMPTROLLER. (a) The
comptroller shall review the validity of each claim for an
unclaimed restitution payment filed under this section.
(b) If the comptroller determines a claim for an unclaimed
restitution payment is valid, the comptroller shall approve the
claim. If a claim is approved under this section, the comptroller
shall pay the claim.
(c) All claims to which this section applies must be filed
in accordance with the procedures, contain the information, and be
on forms prescribed by the comptroller.
(d) On receipt of a claim form and all necessary
documentation as may be appropriate under the circumstances, the
comptroller may approve the claim of:
(1) the victim;
(2) if the victim died testate:
(A) the appropriate legal beneficiaries of the
victim as provided by the last will and testament of the victim that
has been accepted into probate or filed as a muniment of title; or
(B) the executor of the victim's last will and
testament who holds current letters testamentary;
(3) if the victim died intestate or is deceased and
presumed intestate:
(A) the legal heirs of the victim as provided by
Chapter 201, Estates Code; or
(B) the court-appointed administrator of the
victim's estate, on behalf of the legal heirs of the victim;
(4) the legal heirs of the victim as established by an
affidavit of heirship order signed by a judge of the county probate
court or by a county judge;
(5) if the victim is a minor child or an adult who has
been adjudged incompetent by a court of law, the parent or legal
guardian of the child or adult;
(6) if the victim is a trust:
(A) the trustee, on behalf of the trust; or
(B) the beneficiaries of the trust, if the trust
is dissolved;
(7) if the victim is a corporation:
(A) the president or chair of the board of
directors of the corporation, on behalf of the corporation;
(B) any person who has been delegated legal
authority to act on behalf of the corporation by the president or
board of directors of the corporation; or
(C) a receiver appointed for the corporation;
(8) if the victim is a corporation that has been
dissolved, liquidated, or otherwise terminated:
(A) the surviving shareholders of the
corporation in proportion to their ownership of the corporation at
the time of dissolution, liquidation, or termination;
(B) the corporation's bankruptcy trustee; or
(C) a receiver appointed for the corporation;
(9) if the victim is a state agency, the comptroller;
or
(10) any other person that is entitled to receive the
unclaimed restitution payment under other law or comptroller
policy.
(e) Except as provided by Subsections (f) and (g), the
comptroller may not approve the claim of or pay a claim to the
following persons:
(1) a creditor, a judgment creditor, a lienholder, or
an assignee of the victim or of any other person entitled to receive
an unclaimed restitution payment under this section;
(2) a receiver, if the receiver is appointed at the
request of a person the comptroller may not pay under Subdivision
(1);
(3) a person attempting to make a claim on behalf of a
trust or corporation that has previously been dissolved or
terminated, if it appears the trust or corporation was revived for
the purpose of making a claim under this section and the person
submitting the claim was not an authorized representative of the
corporation or trust at the time of the dissolution or termination;
or
(4) a person holding a power of attorney, if the person
holding a power of attorney is a person the comptroller may not pay
under this subsection.
(f) The comptroller may approve a claim for child support
arrearages owed by the victim and reflected in a child support lien
notice that complies with Section 157.313, Family Code. A claim
under this subsection may be submitted by the lienholder or the
attorney general on behalf of the lienholder.
(g) The comptroller may approve a claim for debts owed by
the victim to the state or any state agency. A claim under this
subsection may be submitted by the attorney general or the
comptroller on behalf of the state or state agency.
Sec. 77.202. CLAIMS NOT ASSIGNABLE. Notwithstanding
Section 9.406(f), Business & Commerce Code, an interest in a claim
under this chapter may not be assigned.
Sec. 77.203. CLAIM FILED WITH HOLDER. (a) If a claim for an
unclaimed restitution payment is filed with a holder under this
section and the holder determines in good faith that the claim is
valid, the holder may pay the amount of the claim.
(b) The comptroller may reimburse the holder for a valid
claim paid under this section.
(c) The request from a holder for reimbursement must be
filed in accordance with procedures and on forms prescribed by the
comptroller and may not exceed the amount previously reported and
delivered by the holder to the comptroller.
(d) The comptroller may not reimburse a holder for a claim
paid to a person the comptroller is not permitted to pay under
Section 77.201(e).
(e) The liability of the comptroller to reimburse a holder
under this section is limited to the extent of the property
delivered under this chapter and remaining in the possession of the
comptroller at the time a holder requests reimbursement.
Sec. 77.204. APPEAL. (a) A person aggrieved by the
decision of a claim filed under this chapter may appeal the decision
before the 61st day after the day on which it was rendered.
(b) If a claim has not been decided before the 91st day after
the day on which it was filed, the claimant may appeal within the
60-day period beginning on the 91st day after the day of filing.
(c) An appeal under this section must be made by filing suit
against the state in a district court in Travis County.
(d) A court shall try an action filed under this section de
novo and shall apply the rules of practice of the court.
Sec. 77.205. LIMITATION OF LIABILITY. The liability of the
state is limited to the extent of the property delivered under this
chapter and remaining in the possession of the comptroller at the
time a suit is filed.
Sec. 77.206. FEE FOR RECOVERY. (a) A person who informs a
potential claimant that the claimant may be entitled to claim
property under this chapter may not contract for or receive from the
claimant for services an amount that exceeds 10 percent of the value
of the property recovered.
(b) A person who receives a fee for recovery from a claimant
that exceeds 10 percent of the value of the property recovered is
liable to the claimant for the amount of the fee plus attorney's
fees and expenses.
SUBCHAPTER F. UNCLAIMED PAYMENTS
Sec. 77.251. UNCLAIMED RESTITUTION PAYMENTS. (a) The
comptroller shall maintain a record that documents unclaimed
restitution payments received under this chapter.
(b) The comptroller shall deposit all unclaimed restitution
payments to the credit of the compensation to victims of crime
auxiliary fund in the state treasury.
(c) Income or interest derived from unclaimed restitution
payments deposited in the fund shall remain in the compensation to
victims of crime auxiliary fund.
Sec. 77.252. USE OF MONEY. (a) Except as provided by
Subsection (b), money in the compensation to victims of crime
auxiliary fund may only be used to pay claims as provided by this
chapter and is not available for any other purpose. Section
403.095, Government Code, does not apply to the fund.
(b) The legislature may appropriate money in the
compensation to victims of crime auxiliary fund to cover costs
incurred by the comptroller in administering this chapter.
Sec. 77.253. EXCESS CLAIMS. The comptroller may pay a claim
under this chapter that is more than the money available in the
compensation to victims of crime auxiliary fund using funds
appropriated by the legislature for paying claims under this title.
SUBCHAPTER G. ENFORCEMENT
Sec. 77.301. RULES. The comptroller may adopt rules
necessary to carry out this chapter.
Sec. 77.302. EXAMINATION OF RECORDS. (a) To enforce this
chapter and to determine whether reports have been made as required
by this chapter, the comptroller, the attorney general, or an
authorized agent of either, may, at any reasonable time and place,
examine the books and records of any holder.
(b) The comptroller, the attorney general, or an agent of
either may not make public any information obtained by an
examination made under this section and may not disclose that
information except in the course of a judicial proceeding,
authorized by this chapter, in which the state is a party or under
an agreement with another state allowing joint audits or the
exchange of information obtained under this section.
Sec. 77.303. AUTHORITY TO TAKE TESTIMONY AND ISSUE
ADMINISTRATIVE SUBPOENAS. (a) In addition to the authority to
examine granted by Section 77.302, to enforce this chapter and to
determine whether reports have been made as required by this
chapter, the comptroller, or the comptroller's designee, may take
testimony, administer oaths, and issue subpoenas to compel any
person, at a time and place reasonable under the circumstances, to
appear and give testimony, and to produce relevant books, records,
documents, or other data, in whatever form, for audit, inspection,
and copying.
(b) A person authorized to serve process under the Texas
Rules of Civil Procedure may serve a subpoena issued under
Subsection (a). The person shall serve the subpoena in accordance
with the Texas Rules of Civil Procedure.
Sec. 77.304. ENFORCEMENT OF SUBPOENAS. (a) If the person
to whom a subpoena is directed under Section 77.303 fails to comply
with the subpoena, or fails to file a motion to quash or otherwise
demand a pre-compliance review of the subpoena, within the return
date specified in the subpoena, the attorney general shall, on the
request of the comptroller, bring suit to enforce the subpoena. The
suit may be brought in a state district court where service may be
obtained on the person refusing to testify or produce records.
(b) A court that determines that the subpoena was issued in
good faith shall order compliance with the subpoena. The court may
apply penalties for civil and criminal contempt otherwise available
at law where a person refuses to comply with the court's order.
Sec. 77.305. VENUE FOR PRE-COMPLIANCE REVIEW. A person
receiving a subpoena under this chapter may, before the return date
specified in the subpoena, petition a district court in Travis
County for an order to modify or quash the subpoena.
Sec. 77.306. ASSISTANCE IN ENFORCEMENT. If the comptroller
or attorney general requests, any state agency, county clerk,
district clerk, county attorney, or district attorney shall assist
the comptroller or attorney general in enforcing this chapter.
Sec. 77.307. PENALTY. A penalty equal to five percent of
the value of the unclaimed restitution payment due shall be imposed
on a holder who fails to pay or deliver the payment within the time
prescribed by this chapter. If a holder fails to pay or deliver an
unclaimed restitution payment before the 121st day after the date
the payment is due, an additional penalty equal to five percent of
the value of the payment due shall be imposed.
Sec. 77.308. WAIVER OR ABATEMENT OF PENALTY. The
comptroller may waive any penalty or interest imposed under this
chapter.
SECTION 6. The following laws are repealed:
(1) Articles 56.54(c), (l), and (m), Code of Criminal
Procedure; and
(2) Section 76.013(d), Government Code.
SECTION 7. As soon as is practicable after the effective
date of this Act, but not later than January 1, 2018, the office of
the attorney general and the comptroller of public accounts shall
establish a plan for the identification and transfer of records,
property, and unspent appropriations of the attorney general that
are used for the purpose of managing the compensation to victims of
crime auxiliary fund.
SECTION 8. As soon as is practicable after the effective
date of this Act, but not later than March 1, 2018, a department
that prior to the effective date of this Act had previously
transferred payments to the comptroller under Section 76.013 or
508.322, Government Code, shall provide to the comptroller the
information required under Section 77.051(b), Property Code, as
added by this Act, for each victim for whom the department
previously transferred a payment to the comptroller.
SECTION 9. This Act takes effect September 1, 2017.