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A BILL TO BE ENTITLED
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AN ACT
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relating to the investigation, prosecution, and punishment of |
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criminal Medicaid fraud and certain other offenses related to |
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Medicaid fraud; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Article 12.01, Code of Criminal Procedure, is |
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amended to read as follows: |
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Art. 12.01. FELONIES. Except as provided in Article 12.03, |
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felony indictments may be presented within these limits, and not |
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afterward: |
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(1) no limitation: |
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(A) murder and manslaughter; |
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(B) sexual assault under Section 22.011(a)(2), |
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Penal Code, or aggravated sexual assault under Section |
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22.021(a)(1)(B), Penal Code; |
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(C) sexual assault, if during the investigation |
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of the offense biological matter is collected and subjected to |
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forensic DNA testing and the testing results show that the matter |
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does not match the victim or any other person whose identity is |
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readily ascertained; |
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(D) continuous sexual abuse of young child or |
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children under Section 21.02, Penal Code; |
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(E) indecency with a child under Section 21.11, |
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Penal Code; or |
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(F) an offense involving leaving the scene of an |
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accident under Section 550.021, Transportation Code, if the |
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accident resulted in the death of a person; |
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(2) ten years from the date of the commission of the |
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offense: |
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(A) theft of any estate, real, personal or mixed, |
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by an executor, administrator, guardian or trustee, with intent to |
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defraud any creditor, heir, legatee, ward, distributee, |
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beneficiary or settlor of a trust interested in such estate; |
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(B) theft by a public servant of government |
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property over which he exercises control in his official capacity; |
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(C) forgery or the uttering, using or passing of |
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forged instruments; |
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(D) injury to an elderly or disabled individual |
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punishable as a felony of the first degree under Section 22.04, |
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Penal Code; |
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(E) sexual assault, except as provided by |
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Subdivision (1); or |
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(F) arson; |
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(3) seven years from the date of the commission of the |
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offense: |
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(A) misapplication of fiduciary property or |
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property of a financial institution; |
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(B) securing execution of document by deception; |
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(C) a felony violation under Chapter 162, Tax |
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Code; |
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(D) false statement to obtain property or credit |
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under Section 32.32, Penal Code; |
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(E) money laundering; |
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(F) credit card or debit card abuse under Section |
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32.31, Penal Code; [or] |
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(G) fraudulent use or possession of identifying |
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information under Section 32.51, Penal Code; or |
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(H) Medicaid fraud under Section 35A.02, Penal |
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Code; |
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(4) five years from the date of the commission of the |
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offense: |
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(A) theft or robbery; |
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(B) except as provided by Subdivision (5), |
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kidnapping or burglary; |
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(C) injury to an elderly or disabled individual |
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that is not punishable as a felony of the first degree under Section |
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22.04, Penal Code; |
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(D) abandoning or endangering a child; or |
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(E) insurance fraud; |
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(5) if the investigation of the offense shows that the |
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victim is younger than 17 years of age at the time the offense is |
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committed, 20 years from the 18th birthday of the victim of one of |
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the following offenses: |
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(A) sexual performance by a child under Section |
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43.25, Penal Code; |
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(B) aggravated kidnapping under Section |
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20.04(a)(4), Penal Code, if the defendant committed the offense |
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with the intent to violate or abuse the victim sexually; or |
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(C) burglary under Section 30.02, Penal Code, if |
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the offense is punishable under Subsection (d) of that section and |
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the defendant committed the offense with the intent to commit an |
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offense described by Subdivision (1)(B) or (D) of this article or |
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Paragraph (B) of this subdivision; |
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(6) ten years from the 18th birthday of the victim of |
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the offense: injury to a child under Section 22.04, Penal Code; or |
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(7) three years from the date of the commission of the |
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offense: all other felonies. |
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SECTION 2. Subdivision (2), Section 1, Article 18.21, Code |
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of Criminal Procedure, is amended to read as follows: |
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(2) "Authorized peace officer" means: |
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(A) a sheriff or a sheriff's deputy; |
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(B) a constable or deputy constable; |
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(C) a marshal or police officer of an |
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incorporated city; |
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(D) a ranger or officer commissioned by the |
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Public Safety Commission or the director of the Department of |
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Public Safety; |
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(E) an investigator of a prosecutor's office; |
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(F) a law enforcement agent of the Alcoholic |
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Beverage Commission; |
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(G) a law enforcement officer commissioned by the |
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Parks and Wildlife Commission; [or] |
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(H) an enforcement officer appointed by the |
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executive director of the Texas Department of Criminal Justice |
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under Section 493.019, Government Code; or |
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(I) an investigator commissioned by the attorney |
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general under Section 402.009, Government Code. |
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SECTION 3. Subsection (a), Section 3, Article 37.07, Code |
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of Criminal Procedure, is amended by adding Subdivision (3) to read |
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as follows: |
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(3) Regardless of the plea and whether the punishment |
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is assessed by the judge or the jury, during the punishment phase of |
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the trial of an offense under Section 35A.02, Penal Code, subject to |
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the applicable rules of evidence the state and the defendant may |
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offer evidence not offered during the guilt or innocence phase of |
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the trial concerning the total pecuniary loss to the Medicaid |
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program caused by the defendant's conduct or, if applicable, the |
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scheme or continuing course of conduct of which the defendant's |
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conduct is part. Subject to the applicable rules of evidence, an |
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employee of the Health and Human Services Commission's office of |
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inspector general or the office of attorney general's Medicaid |
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fraud control unit may testify concerning the total pecuniary loss |
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to the Medicaid program. An employee who testifies under this |
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subdivision is subject to cross-examination. Evidence offered |
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under this subdivision may be considered by the judge or jury in |
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ordering or recommending the amount of any restitution to be made to |
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the Medicaid program or the appropriate punishment for the |
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defendant. |
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SECTION 4. Subsection (g), Section 531.1021, Government |
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Code, is amended to read as follows: |
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(g) All information and materials subpoenaed or compiled by |
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the office in connection with an audit or investigation or by the |
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office of the attorney general in connection with a Medicaid fraud |
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investigation are confidential and not subject to disclosure under |
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Chapter 552, and not subject to disclosure, discovery, subpoena, or |
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other means of legal compulsion for their release to anyone other |
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than the office or the attorney general or their [its] employees or |
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agents involved in the audit or investigation conducted by the |
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office or the attorney general, except that this information may be |
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disclosed to [the office of the attorney general,] the state |
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auditor's office, [and] law enforcement agencies, and other |
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entities as permitted by other law. |
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SECTION 5. Subsections (a-1), (b), (d), (f), and (g), |
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Section 22.04, Penal Code, are amended to read as follows: |
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(a-1) A person commits an offense if the person is an owner, |
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operator, or employee of a group home, nursing facility, assisted |
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living facility, intermediate care facility for persons with mental |
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retardation, or other institutional care facility and the person |
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intentionally, knowingly, recklessly, or with criminal negligence |
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by omission causes to a child, elderly individual, or disabled |
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individual who is a resident of that group home or facility: |
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(1) serious bodily injury; |
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(2) serious mental deficiency, impairment, or injury; |
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or |
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(3) bodily injury[; or
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[(4) exploitation]. |
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(b) An omission that causes a condition described by |
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Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is |
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conduct constituting an offense under this section if: |
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(1) the actor has a legal or statutory duty to act; or |
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(2) the actor has assumed care, custody, or control of |
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a child, elderly individual, or disabled individual. |
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(d) For purposes of an omission that causes a condition |
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described by Subsection (a)(1), (2), or (3), the actor has assumed |
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care, custody, or control if he has by act, words, or course of |
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conduct acted so as to cause a reasonable person to conclude that he |
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has accepted responsibility for protection, food, shelter, and |
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medical care for a child, elderly individual, or disabled |
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individual. For purposes of an omission that causes a condition |
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described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor |
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acting during the actor's capacity as owner, operator, or employee |
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of a group home or facility described by Subsection (a-1) is |
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considered to have accepted responsibility for protection, food, |
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shelter, and medical care for the child, elderly individual, or |
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disabled individual who is a resident of the group home or facility. |
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(f) An offense under Subsection (a)(3) or (a-1)(3) [or (4)] |
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is a felony of the third degree when the conduct is committed |
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intentionally or knowingly, except that an offense under Subsection |
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(a)(3) is a felony of the second degree when the conduct is |
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committed intentionally or knowingly and the victim is a disabled |
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individual residing in a center, as defined by Section 555.001, |
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Health and Safety Code, or in a facility licensed under Chapter 252, |
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Health and Safety Code, and the actor is an employee of the center |
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or facility whose employment involved providing direct care for the |
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victim. When the conduct is engaged in recklessly, the offense is a |
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state jail felony. |
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(g) An offense under Subsection (a) is a state jail felony |
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when the person acts with criminal negligence. An offense under |
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Subsection (a-1) is a state jail felony when the person, with |
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criminal negligence and by omission, causes a condition described |
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by Subsection (a-1)(1), (2), or (3)[, or (4)]. |
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SECTION 6. Subsection (d), Section 32.46, Penal Code, is |
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amended to read as follows: |
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(d) In this section: |
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(1) "Deception"[, "deception"] has the meaning |
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assigned by Section 31.01. |
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(2) "Document" includes electronically stored data or |
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other information that is retrievable in a readable, perceivable |
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form. |
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SECTION 7. Subchapter D, Chapter 32, Penal Code, is amended |
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by adding Section 32.53 to read as follows: |
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Sec. 32.53. EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR |
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DISABLED INDIVIDUAL. (a) In this section: |
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(1) "Child," "elderly individual," and "disabled |
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individual" have the meanings assigned by Section 22.04. |
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(2) "Exploitation" means the illegal or improper use |
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of a child, elderly individual, or disabled individual or of the |
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resources of a child, elderly individual, or disabled individual |
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for monetary or personal benefit, profit, or gain. |
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(b) A person commits an offense if the person intentionally, |
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knowingly, or recklessly causes the exploitation of a child, |
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elderly individual, or disabled individual. |
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(c) An offense under this section is a felony of the third |
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degree. |
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(d) A person who is subject to prosecution under both this |
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section and another section of this code may be prosecuted under |
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either or both sections. Section 3.04 does not apply to criminal |
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episodes prosecuted under both this section and another section of |
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this code. If a criminal episode is prosecuted under both this |
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section and another section of this code and sentences are assessed |
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for convictions under both sections, the sentences shall run |
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concurrently. |
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(e) With the consent of the appropriate local county or |
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district attorney, the attorney general has concurrent |
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jurisdiction with that consenting local prosecutor to prosecute an |
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offense under this section that involves the Medicaid program. |
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SECTION 8. Section 35A.01, Penal Code, is amended by adding |
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Subdivision (10) to read as follows: |
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(10) "High managerial agent" means a director, |
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officer, or employee who is authorized to act on behalf of a |
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provider and has duties of such responsibility that the conduct of |
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the director, officer, or employee reasonably may be assumed to |
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represent the policy or intent of the provider. |
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SECTION 9. Section 35A.02, Penal Code, is amended by |
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amending Subsections (b) and (c) and adding Subsections (e) and (f) |
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to read as follows: |
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(b) An offense under this section is: |
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(1) a Class C misdemeanor if the amount of any payment |
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or the value of any monetary or in-kind benefit provided or claim |
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for payment made under the Medicaid program, directly or |
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indirectly, as a result of the conduct is less than $50; |
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(2) a Class B misdemeanor if the amount of any payment |
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or the value of any monetary or in-kind benefit provided or claim |
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for payment made under the Medicaid program, directly or |
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indirectly, as a result of the conduct is $50 or more but less than |
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$500; |
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(3) a Class A misdemeanor if the amount of any payment |
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or the value of any monetary or in-kind benefit provided or claim |
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for payment made under the Medicaid program, directly or |
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indirectly, as a result of the conduct is $500 or more but less than |
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$1,500; |
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(4) a state jail felony if: |
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(A) the amount of any payment or the value of any |
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monetary or in-kind benefit provided or claim for payment made |
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under the Medicaid program, directly or indirectly, as a result of |
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the conduct is $1,500 or more but less than $20,000; |
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(B) the offense is committed under Subsection |
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(a)(11); or |
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(C) it is shown on the trial of the offense that |
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the amount of the payment or value of the benefit described by this |
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subsection cannot be reasonably ascertained; |
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(5) a felony of the third degree if: |
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(A) the amount of any payment or the value of any |
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monetary or in-kind benefit provided or claim for payment made |
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under the Medicaid program, directly or indirectly, as a result of |
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the conduct is $20,000 or more but less than $100,000; or |
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(B) it is shown on the trial of the offense that |
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the defendant submitted more than 25 but fewer than 50 fraudulent |
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claims under the Medicaid program and the submission of each claim |
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constitutes conduct prohibited by Subsection (a); |
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(6) a felony of the second degree if: |
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(A) the amount of any payment or the value of any |
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monetary or in-kind benefit provided or claim for payment made |
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under the Medicaid program, directly or indirectly, as a result of |
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the conduct is $100,000 or more but less than $200,000; or |
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(B) it is shown on the trial of the offense that |
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the defendant submitted 50 or more fraudulent claims under the |
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Medicaid program and the submission of each claim constitutes |
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conduct prohibited by Subsection (a); or |
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(7) a felony of the first degree if the amount of any |
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payment or the value of any monetary or in-kind benefit provided or |
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claim for payment made under the Medicaid program, directly or |
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indirectly, as a result of the conduct is $200,000 or more. |
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(c) If conduct constituting an offense under this section |
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also constitutes an offense under another section of this code or |
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another provision of law, the actor may be prosecuted under either |
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this section or the other section or provision or both this section |
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and the other section or provision. |
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(e) The punishment prescribed for an offense under this |
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section, other than the punishment prescribed by Subsection (b)(7), |
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is increased to the punishment prescribed for the next highest |
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category of offense if it is shown beyond a reasonable doubt on the |
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trial of the offense that the actor was a provider or high |
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managerial agent at the time of the offense. |
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(f) With the consent of the appropriate local county or |
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district attorney, the attorney general has concurrent |
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jurisdiction with that consenting local prosecutor to prosecute an |
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offense under this section that involves the Medicaid program. |
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SECTION 10. Subsection (a), Section 71.02, Penal Code, as |
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amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357 |
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(S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is |
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reenacted and amended to read as follows: |
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(a) A person commits an offense if, with the intent to |
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establish, maintain, or participate in a combination or in the |
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profits of a combination or as a member of a criminal street gang, |
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the person commits or conspires to commit one or more of the |
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following: |
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(1) murder, capital murder, arson, aggravated |
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robbery, robbery, burglary, theft, aggravated kidnapping, |
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kidnapping, aggravated assault, aggravated sexual assault, sexual |
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assault, forgery, deadly conduct, assault punishable as a Class A |
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misdemeanor, burglary of a motor vehicle, or unauthorized use of a |
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motor vehicle; |
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(2) any gambling offense punishable as a Class A |
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misdemeanor; |
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(3) promotion of prostitution, aggravated promotion |
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of prostitution, or compelling prostitution; |
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(4) unlawful manufacture, transportation, repair, or |
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sale of firearms or prohibited weapons; |
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(5) unlawful manufacture, delivery, dispensation, or |
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distribution of a controlled substance or dangerous drug, or |
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unlawful possession of a controlled substance or dangerous drug |
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through forgery, fraud, misrepresentation, or deception; |
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(6) any unlawful wholesale promotion or possession of |
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any obscene material or obscene device with the intent to wholesale |
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promote the same; |
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(7) any offense under Subchapter B, Chapter 43, |
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depicting or involving conduct by or directed toward a child |
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younger than 18 years of age; |
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(8) any felony offense under Chapter 32; |
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(9) any offense under Chapter 36; |
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(10) any offense under Chapter 34, [or] 35, or 35A; |
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(11) any offense under Section 37.11(a); |
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(12) any offense under Chapter 20A; |
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(13) any offense under Section 37.10; [or] |
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(14) any offense under Section 38.06, 38.07, 38.09, or |
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38.11; |
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(15) [(14)] any offense under Section 42.10; or |
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(16) [(14)] any offense under Section 46.06(a)(1) or |
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46.14. |
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SECTION 11. Subdivision (4), Subsection (c), Section 22.04, |
|
Penal Code, is repealed. |
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SECTION 12. (a) The changes in law made by this Act to |
|
Article 37.07, Code of Criminal Procedure, and Sections 22.04, |
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32.46, 35A.01, 35A.02, and 71.02, Penal Code, apply only to an |
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offense committed on or after the effective date of this Act. An |
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offense committed before the effective date of this Act is covered |
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by the law in effect when the offense was committed, and the former |
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law is continued in effect for that purpose. For purposes of this |
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section, an offense was committed before the effective date of this |
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Act if any element of the offense occurred before that date. |
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(b) The change in law made by this Act in amending Article |
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12.01, Code of Criminal Procedure, does not apply to an offense if |
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the prosecution of that offense becomes barred by limitation before |
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the effective date of this Act. The prosecution of that offense |
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remains barred as if this Act had not taken effect. |
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SECTION 13. This Act takes effect September 1, 2011. |