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  S.B. No. 1680
 
 
 
 
AN ACT
  relating to certain evidence in a prosecution of fraud or theft
  involving Medicaid or Medicare benefits and to certain criminal
  procedures involving offenses in general.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 38, Code of Criminal Procedure, is
  amended by adding Article 38.46 to read as follows:
         Art. 38.46.  EVIDENCE IN AGGREGATION PROSECUTION FOR FRAUD
  OR THEFT COMMITTED WITH RESPECT TO NUMEROUS MEDICAID OR MEDICARE
  RECIPIENTS. In trials involving an allegation of a continuing
  scheme of fraud or theft that involves Medicaid or Medicare
  benefits and is alleged to have been committed with respect to a
  large class of Medicaid or Medicare recipients in an aggregate
  amount or value, the attorney representing the state is not
  required to prove by direct evidence that each Medicaid or Medicare
  recipient did not consent or effectively consent to a transaction
  in question. It is sufficient if the lack of consent or effective
  consent to a particular transaction or transactions is proven by
  either direct or circumstantial evidence.
         SECTION 2.  Article 39.01, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 39.01.  IN EXAMINING TRIAL. When an examination takes
  place in a criminal action before a magistrate, the state [State] or
  the defendant may have the deposition of any witness taken by any
  officer authorized by this chapter.  The state [State] or the
  defendant may not use the deposition for any purpose unless that
  party first acknowledges that the entire evidence or statement of
  the witness may be used for or against the defendant on the trial of
  the case, subject to all legal objections.  The deposition of a
  witness duly taken before an examining trial or a jury of inquest
  and reduced to writing or recorded and then certified according to
  law, provided that [where] the defendant and the defendant's
  attorney were [was] present when that testimony was taken[,] and
  that the defendant had the privilege afforded of cross-examining
  the witness, or taken at any prior trial of the defendant for the
  same offense, may be used by either the state [State] or the
  defendant in the trial of the defendant's criminal case under the
  following circumstances:
         When oath is made by the party using the deposition that the
  witness resides outside the state [State]; or that since the
  witness's testimony was taken, the witness has died, or has removed
  beyond the limits of the state [State], or has been prevented from
  attending the court through the act or agency of the other party, or
  by the act or agency of any person whose object was to deprive the
  state [State] or the defendant of the benefit of the testimony; or
  that by reason of age or bodily infirmity, that witness cannot
  attend; or that the witness is a Medicaid or Medicare recipient or a
  caregiver or guardian of the recipient, and the recipient's
  Medicaid or Medicare account was charged for a product or service
  that was not provided or rendered to the recipient.  When the
  testimony is sought to be used by the state [State], the oath may be
  made by any credible person.  When sought to be used by the
  defendant, the oath must be made by the defendant in person.
         SECTION 3.  Chapter 39, Code of Criminal Procedure, is
  amended by adding Article 39.026 to read as follows:
         Art. 39.026.  DEPOSITIONS OF MEDICAID OR MEDICARE RECIPIENTS
  OR CAREGIVERS. (a)  In this article:
               (1)  "Caregiver" means a person, including a guardian,
  who is authorized by law, contract, or familial relationship to
  care for a recipient.
               (2)  "Medicaid" means the state Medicaid program.
               (3)  "Medicaid recipient" has the meaning assigned by
  Section 36.001, Human Resources Code.
               (4)  "Medicare" means the federal health insurance
  program that is operated under the Health Insurance for the Aged Act
  (42 U.S.C. Section 1395 et seq.).
               (5)  "Medicare recipient" means an individual on whose
  behalf a person claims or receives a payment under Medicare,
  without regard to whether the individual was eligible for benefits
  under Medicare.
               (6)  "Recipient" means a Medicaid recipient or a
  Medicare recipient.
         (b)  The court may order the attorney representing the state
  to take the deposition of a recipient or caregiver who is the
  alleged victim of or witness to an offense constituting fraud or
  theft that involves Medicaid or Medicare benefits.  Any order under
  this subsection must be issued not later than the 180th day after
  the date on which the state files an application to take the
  deposition under Article 39.02.
         (c)  On the motion of either party, the court may order the
  attorney representing the state to take the deposition of a
  recipient or caregiver by video recording. The person operating
  the video recording device must be available to testify regarding
  the authenticity of the video recording and the taking of the
  deposition in order for the video recording to be admissible.
         (d)  If the court finds that the video recording of the
  deposition is properly authenticated and that requiring the jury to
  view the entire recording would unnecessarily prolong the trial,
  the court may allow a party to offer the entire video recording into
  evidence without requiring the jury to view the entire video
  recording during the trial. This subsection does not preclude the
  attorney representing the state, the defendant, or the defendant's
  attorney from offering into evidence and playing for the jury a
  portion of a video-recorded deposition.
         (e)  The attorney representing the state and the defendant or
  the defendant's attorney, by written agreement filed with the
  court, may extend the deadline for the taking of the deposition.
         (f)  The court shall grant any request by the attorney
  representing the state to extend the deadline for the taking of the
  deposition if a reason for the request is the unavailability,
  health, or well-being of the recipient or caregiver.
         (g)  The Texas Rules of Civil Procedure govern the taking of
  the deposition, except that, to the extent of any conflict with this
  code or applicable court rules adopted for criminal proceedings,
  this code and the rules for criminal proceedings govern. The
  attorney representing the state and the defendant or the
  defendant's attorney may agree to modify the rules applicable to
  the deposition by written agreement filed with the court before the
  taking of the deposition.
         (h)  If a defendant is unavailable to attend a deposition
  because the defendant is confined in a correctional facility, the
  court shall issue any orders or warrants necessary to secure the
  defendant's presence at the deposition. The sheriff of the county
  in which a deposition is to be taken under this subsection shall
  provide a secure location for the taking of the deposition and
  sufficient law enforcement personnel to ensure that the deposition
  is taken safely. The state's application to take a deposition or
  notice of deposition is not required to include the identity of any
  law enforcement agent the sheriff assigns to the deposition under
  this subsection, and the defendant may not object to the taking of
  the deposition based solely on the state's omission of the identity
  of that agent.
         (i)  If a defendant is unavailable to attend a deposition for
  any reason other than confinement in a correctional facility, the
  defendant or the defendant's attorney shall request a continuance
  from the court. The court may grant the continuance if the
  defendant or the defendant's attorney demonstrates good cause for
  the continuance and that the request is not brought for the purpose
  of delay or avoidance. A defendant's failure to attend a deposition
  or request a continuance in accordance with this subsection
  constitutes a waiver of the defendant's right to be present at the
  deposition.
         SECTION 4.  Article 39.12, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 39.12.  PREDICATE TO READ. Depositions taken in
  criminal actions shall not be read unless oath be made that the
  witness resides out of the state [State]; or that since the [his]
  deposition was taken, the witness has died; or that the witness [he]
  has removed beyond the limits of the state [State]; or that the
  witness [he] has been prevented from attending the court through
  the act or agency of the defendant; or by the act or agency of any
  person whose object was to deprive the state or the defendant of the
  benefit of the testimony; or that by reason of age or bodily
  infirmity, the [such] witness cannot attend; or that the witness is
  a Medicaid or Medicare recipient or a caregiver or guardian of the
  recipient, and the recipient's Medicaid or Medicare account was
  charged for a product or service that was not provided or rendered
  to the recipient. When the deposition is sought to be used by the
  state [State], the oath may be made by any credible person. When
  sought to be used by the defendant, the oath shall be made by the
  defendant [him] in person.
         SECTION 5.  The change in law made by this Act applies to a
  criminal proceeding that commences on or after the effective date
  of this Act.  A criminal proceeding that commences before the
  effective date of this Act is covered by the law in effect when the
  proceeding commenced, and the former law is continued in effect for
  that purpose.
         SECTION 6.  This Act takes effect September 1, 2011.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1680 passed the Senate on
  April 14, 2011, by the following vote:  Yeas 30, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1680 passed the House on
  May 7, 2011, by the following vote:  Yeas 116, Nays 0, one present
  not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor