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  S.B. No. 688
 
 
 
 
AN ACT
  relating to the investigation, prosecution, and punishment of
  criminal Medicaid fraud and certain other offenses related to
  Medicaid fraud; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 12.01, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 12.01.  FELONIES. Except as provided in Article 12.03,
  felony indictments may be presented within these limits, and not
  afterward:
               (1)  no limitation:
                     (A)  murder and manslaughter;
                     (B)  sexual assault under Section 22.011(a)(2),
  Penal Code, or aggravated sexual assault under Section
  22.021(a)(1)(B), Penal Code;
                     (C)  sexual assault, if during the investigation
  of the offense biological matter is collected and subjected to
  forensic DNA testing and the testing results show that the matter
  does not match the victim or any other person whose identity is
  readily ascertained;
                     (D)  continuous sexual abuse of young child or
  children under Section 21.02, Penal Code;
                     (E)  indecency with a child under Section 21.11,
  Penal Code; or
                     (F)  an offense involving leaving the scene of an
  accident under Section 550.021, Transportation Code, if the
  accident resulted in the death of a person;
               (2)  ten years from the date of the commission of the
  offense:
                     (A)  theft of any estate, real, personal or mixed,
  by an executor, administrator, guardian or trustee, with intent to
  defraud any creditor, heir, legatee, ward, distributee,
  beneficiary or settlor of a trust interested in such estate;
                     (B)  theft by a public servant of government
  property over which he exercises control in his official capacity;
                     (C)  forgery or the uttering, using or passing of
  forged instruments;
                     (D)  injury to an elderly or disabled individual
  punishable as a felony of the first degree under Section 22.04,
  Penal Code;
                     (E)  sexual assault, except as provided by
  Subdivision (1); or
                     (F)  arson;
               (3)  seven years from the date of the commission of the
  offense:
                     (A)  misapplication of fiduciary property or
  property of a financial institution;
                     (B)  securing execution of document by deception;
                     (C)  a felony violation under Chapter 162, Tax
  Code;
                     (D)  false statement to obtain property or credit
  under Section 32.32, Penal Code;
                     (E)  money laundering;
                     (F)  credit card or debit card abuse under Section
  32.31, Penal Code; [or]
                     (G)  fraudulent use or possession of identifying
  information under Section 32.51, Penal Code; or
                     (H)  Medicaid fraud under Section 35A.02, Penal
  Code;
               (4)  five years from the date of the commission of the
  offense:
                     (A)  theft or robbery;
                     (B)  except as provided by Subdivision (5),
  kidnapping or burglary;
                     (C)  injury to an elderly or disabled individual
  that is not punishable as a felony of the first degree under Section
  22.04, Penal Code;
                     (D)  abandoning or endangering a child; or
                     (E)  insurance fraud;
               (5)  if the investigation of the offense shows that the
  victim is younger than 17 years of age at the time the offense is
  committed, 20 years from the 18th birthday of the victim of one of
  the following offenses:
                     (A)  sexual performance by a child under Section
  43.25, Penal Code;
                     (B)  aggravated kidnapping under Section
  20.04(a)(4), Penal Code, if the defendant committed the offense
  with the intent to violate or abuse the victim sexually; or
                     (C)  burglary under Section 30.02, Penal Code, if
  the offense is punishable under Subsection (d) of that section and
  the defendant committed the offense with the intent to commit an
  offense described by Subdivision (1)(B) or (D) of this article or
  Paragraph (B) of this subdivision;
               (6)  ten years from the 18th birthday of the victim of
  the offense:  injury to a child under Section 22.04, Penal Code; or
               (7)  three years from the date of the commission of the
  offense:  all other felonies.
         SECTION 2.  Subdivision (2), Section 1, Article 18.21, Code
  of Criminal Procedure, is amended to read as follows:
               (2)  "Authorized peace officer" means:
                     (A)  a sheriff or a sheriff's deputy;
                     (B)  a constable or deputy constable;
                     (C)  a marshal or police officer of an
  incorporated city;
                     (D)  a ranger or officer commissioned by the
  Public Safety Commission or the director of the Department of
  Public Safety;
                     (E)  an investigator of a prosecutor's office;
                     (F)  a law enforcement agent of the Alcoholic
  Beverage Commission;
                     (G)  a law enforcement officer commissioned by the
  Parks and Wildlife Commission; [or]
                     (H)  an enforcement officer appointed by the
  executive director of the Texas Department of Criminal Justice
  under Section 493.019, Government Code; or
                     (I)  an investigator commissioned by the attorney
  general under Section 402.009, Government Code.
         SECTION 3.  Subsection (a), Section 3, Article 37.07, Code
  of Criminal Procedure, is amended by adding Subdivision (3) to read
  as follows:
               (3)  Regardless of the plea and whether the punishment
  is assessed by the judge or the jury, during the punishment phase of
  the trial of an offense under Section 35A.02, Penal Code, subject to
  the applicable rules of evidence, the state and the defendant may
  offer evidence not offered during the guilt or innocence phase of
  the trial concerning the total pecuniary loss to the Medicaid
  program caused by the defendant's conduct or, if applicable, the
  scheme or continuing course of conduct of which the defendant's
  conduct is part.  Subject to the applicable rules of evidence, an
  employee of the Health and Human Services Commission's office of
  inspector general or the office of attorney general's Medicaid
  fraud control unit may testify concerning the total pecuniary loss
  to the Medicaid program.  An employee who testifies under this
  subdivision is subject to cross-examination.  Evidence offered
  under this subdivision may be considered by the judge or jury in
  ordering or recommending the amount of any restitution to be made to
  the Medicaid program or the appropriate punishment for the
  defendant.
         SECTION 4.  Subsection (g), Section 531.1021, Government
  Code, is amended to read as follows:
         (g)  All information and materials subpoenaed or compiled by
  the office in connection with an audit or investigation or by the
  office of the attorney general in connection with a Medicaid fraud
  investigation are confidential and not subject to disclosure under
  Chapter 552, and not subject to disclosure, discovery, subpoena, or
  other means of legal compulsion for their release to anyone other
  than the office or the attorney general or their [its] employees or
  agents involved in the audit or investigation conducted by the
  office or the attorney general, except that this information may be
  disclosed to [the office of the attorney general,] the state
  auditor's office, [and] law enforcement agencies, and other
  entities as permitted by other law.
         SECTION 5.  Subsections (a-1), (b), (d), (f), and (g),
  Section 22.04, Penal Code, are amended to read as follows:
         (a-1)  A person commits an offense if the person is an owner,
  operator, or employee of a group home, nursing facility, assisted
  living facility, intermediate care facility for persons with mental
  retardation, or other institutional care facility and the person
  intentionally, knowingly, recklessly, or with criminal negligence
  by omission causes to a child, elderly individual, or disabled
  individual who is a resident of that group home or facility:
               (1)  serious bodily injury;
               (2)  serious mental deficiency, impairment, or injury;
  or
               (3)  bodily injury[; or
               [(4)  exploitation].
         (b)  An omission that causes a condition described by
  Subsection (a)(1), (2), or (3) or (a-1)(1), (2), or (3)[, or (4)] is
  conduct constituting an offense under this section if:
               (1)  the actor has a legal or statutory duty to act; or
               (2)  the actor has assumed care, custody, or control of
  a child, elderly individual, or disabled individual.
         (d)  For purposes of an omission that causes a condition
  described by Subsection (a)(1), (2), or (3), the actor has assumed
  care, custody, or control if he has by act, words, or course of
  conduct acted so as to cause a reasonable person to conclude that he
  has accepted responsibility for protection, food, shelter, and
  medical care for a child, elderly individual, or disabled
  individual.  For purposes of an omission that causes a condition
  described by Subsection (a-1)(1), (2), or (3), [or (4),] the actor
  acting during the actor's capacity as owner, operator, or employee
  of a group home or facility described by Subsection (a-1) is
  considered to have accepted responsibility for protection, food,
  shelter, and medical care for the child, elderly individual, or
  disabled individual who is a resident of the group home or facility.
         (f)  An offense under Subsection (a)(3) or (a-1)(3) [or (4)]
  is a felony of the third degree when the conduct is committed
  intentionally or knowingly, except that an offense under Subsection
  (a)(3) is a felony of the second degree when the conduct is
  committed intentionally or knowingly and the victim is a disabled
  individual residing in a center, as defined by Section 555.001,
  Health and Safety Code, or in a facility licensed under Chapter 252,
  Health and Safety Code, and the actor is an employee of the center
  or facility whose employment involved providing direct care for the
  victim.  When the conduct is engaged in recklessly, the offense is a
  state jail felony.
         (g)  An offense under Subsection (a) is a state jail felony
  when the person acts with criminal negligence.  An offense under
  Subsection (a-1) is a state jail felony when the person, with
  criminal negligence and by omission, causes a condition described
  by Subsection (a-1)(1), (2), or (3)[, or (4)].
         SECTION 6.  Subsection (d), Section 32.46, Penal Code, is
  amended to read as follows:
         (d)  In this section:
               (1)  "Deception"[, "deception"] has the meaning
  assigned by Section 31.01.
               (2)  "Document" includes electronically stored data or
  other information that is retrievable in a readable, perceivable
  form.
         SECTION 7.  Subchapter D, Chapter 32, Penal Code, is amended
  by adding Section 32.53 to read as follows:
         Sec. 32.53.  EXPLOITATION OF CHILD, ELDERLY INDIVIDUAL, OR
  DISABLED INDIVIDUAL. (a)  In this section:
               (1)  "Child," "elderly individual," and "disabled
  individual" have the meanings assigned by Section 22.04.
               (2)  "Exploitation" means the illegal or improper use
  of a child, elderly individual, or disabled individual or of the
  resources of a child, elderly individual, or disabled individual
  for monetary or personal benefit, profit, or gain.
         (b)  A person commits an offense if the person intentionally,
  knowingly, or recklessly causes the exploitation of a child,
  elderly individual, or disabled individual.
         (c)  An offense under this section is a felony of the third
  degree.
         (d)  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 3.04 does not apply to criminal
  episodes prosecuted under both this section and another section of
  this code. If a criminal episode is prosecuted under both this
  section and another section of this code and sentences are assessed
  for convictions under both sections, the sentences shall run
  concurrently.
         (e)  With the consent of the appropriate local county or
  district attorney, the attorney general has concurrent
  jurisdiction with that consenting local prosecutor to prosecute an
  offense under this section that involves the Medicaid program.
         SECTION 8.  Section 35A.01, Penal Code, is amended by adding
  Subdivision (10) to read as follows:
               (10)  "High managerial agent" means a director,
  officer, or employee who is authorized to act on behalf of a
  provider and has duties of such responsibility that the conduct of
  the director, officer, or employee reasonably may be assumed to
  represent the policy or intent of the provider.
         SECTION 9.  Section 35A.02, Penal Code, is amended by
  amending Subsections (b) and (c) and adding Subsections (e) and (f)
  to read as follows:
         (b)  An offense under this section is:
               (1)  a Class C misdemeanor if the amount of any payment
  or the value of any monetary or in-kind benefit provided or claim
  for payment made under the Medicaid program, directly or
  indirectly, as a result of the conduct is less than $50;
               (2)  a Class B misdemeanor if the amount of any payment
  or the value of any monetary or in-kind benefit provided or claim
  for payment made under the Medicaid program, directly or
  indirectly, as a result of the conduct is $50 or more but less than
  $500;
               (3)  a Class A misdemeanor if the amount of any payment
  or the value of any monetary or in-kind benefit provided or claim
  for payment made under the Medicaid program, directly or
  indirectly, as a result of the conduct is $500 or more but less than
  $1,500;
               (4)  a state jail felony if:
                     (A)  the amount of any payment or the value of any
  monetary or in-kind benefit provided or claim for payment made
  under the Medicaid program, directly or indirectly, as a result of
  the conduct is $1,500 or more but less than $20,000;
                     (B)  the offense is committed under Subsection
  (a)(11); or
                     (C)  it is shown on the trial of the offense that
  the amount of the payment or value of the benefit described by this
  subsection cannot be reasonably ascertained;
               (5)  a felony of the third degree if:
                     (A)  the amount of any payment or the value of any
  monetary or in-kind benefit provided or claim for payment made
  under the Medicaid program, directly or indirectly, as a result of
  the conduct is $20,000 or more but less than $100,000; or
                     (B)  it is shown on the trial of the offense that
  the defendant submitted more than 25 but fewer than 50 fraudulent
  claims under the Medicaid program and the submission of each claim
  constitutes conduct prohibited by Subsection (a);
               (6)  a felony of the second degree if:
                     (A)  the amount of any payment or the value of any
  monetary or in-kind benefit provided or claim for payment made
  under the Medicaid program, directly or indirectly, as a result of
  the conduct is $100,000 or more but less than $200,000; or
                     (B)  it is shown on the trial of the offense that
  the defendant submitted 50 or more fraudulent claims under the
  Medicaid program and the submission of each claim constitutes
  conduct prohibited by Subsection (a); or
               (7)  a felony of the first degree if the amount of any
  payment or the value of any monetary or in-kind benefit provided or
  claim for payment made under the Medicaid program, directly or
  indirectly, as a result of the conduct is $200,000 or more.
         (c)  If conduct constituting an offense under this section
  also constitutes an offense under another section of this code or
  another provision of law, the actor may be prosecuted under either
  this section or the other section or provision or both this section
  and the other section or provision.
         (e)  The punishment prescribed for an offense under this
  section, other than the punishment prescribed by Subsection (b)(7),
  is increased to the punishment prescribed for the next highest
  category of offense if it is shown beyond a reasonable doubt on the
  trial of the offense that the actor was a provider or high
  managerial agent at the time of the offense.
         (f)  With the consent of the appropriate local county or
  district attorney, the attorney general has concurrent
  jurisdiction with that consenting local prosecutor to prosecute an
  offense under this section that involves the Medicaid program.
         SECTION 10.  Subsection (a), Section 71.02, Penal Code, as
  amended by Chapters 153 (S.B. 2225), 1130 (H.B. 2086), and 1357
  (S.B. 554), Acts of the 81st Legislature, Regular Session, 2009, is
  reenacted and amended to read as follows:
         (a)  A person commits an offense if, with the intent to
  establish, maintain, or participate in a combination or in the
  profits of a combination or as a member of a criminal street gang,
  the person commits or conspires to commit one or more of the
  following:
               (1)  murder, capital murder, arson, aggravated
  robbery, robbery, burglary, theft, aggravated kidnapping,
  kidnapping, aggravated assault, aggravated sexual assault, sexual
  assault, forgery, deadly conduct, assault punishable as a Class A
  misdemeanor, burglary of a motor vehicle, or unauthorized use of a
  motor vehicle;
               (2)  any gambling offense punishable as a Class A
  misdemeanor;
               (3)  promotion of prostitution, aggravated promotion
  of prostitution, or compelling prostitution;
               (4)  unlawful manufacture, transportation, repair, or
  sale of firearms or prohibited weapons;
               (5)  unlawful manufacture, delivery, dispensation, or
  distribution of a controlled substance or dangerous drug, or
  unlawful possession of a controlled substance or dangerous drug
  through forgery, fraud, misrepresentation, or deception;
               (6)  any unlawful wholesale promotion or possession of
  any obscene material or obscene device with the intent to wholesale
  promote the same;
               (7)  any offense under Subchapter B, Chapter 43,
  depicting or involving conduct by or directed toward a child
  younger than 18 years of age;
               (8)  any felony offense under Chapter 32;
               (9)  any offense under Chapter 36;
               (10)  any offense under Chapter 34, [or] 35, or 35A;
               (11)  any offense under Section 37.11(a);
               (12)  any offense under Chapter 20A;
               (13)  any offense under Section 37.10; [or]
               (14)  any offense under Section 38.06, 38.07, 38.09, or
  38.11;
               (15) [(14)]  any offense under Section 42.10; or
               (16) [(14)]  any offense under Section 46.06(a)(1) or
  46.14.
         SECTION 11.  Subdivision (4), Subsection (c), Section 22.04,
  Penal Code, is repealed.
         SECTION 12.  (a)  The changes in law made by this Act to
  Article 37.07, Code of Criminal Procedure, and Sections 22.04,
  32.46, 35A.01, 35A.02, and 71.02, Penal Code, apply only to an
  offense committed on or after the effective date of this Act. An
  offense committed before the effective date of this Act is covered
  by the law in effect when the offense was committed, and the former
  law is continued in effect for that purpose. For purposes of this
  section, an offense was committed before the effective date of this
  Act if any element of the offense occurred before that date.
         (b)  The change in law made by this Act in amending Article
  12.01, Code of Criminal Procedure, does not apply to an offense if
  the prosecution of that offense becomes barred by limitation before
  the effective date of this Act.  The prosecution of that offense
  remains barred as if this Act had not taken effect.
         SECTION 13.  This Act takes effect September 1, 2011.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 688 passed the Senate on
  April 11, 2011, by the following vote:  Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 688 passed the House on
  May 18, 2011, by the following vote:  Yeas 129, Nays 0, two
  present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor