This website will be unavailable from Thursday, May 30, 2024 at 6:00 p.m. through Monday, June 3, 2024 at 7:00 a.m. due to data center maintenance.

 
 
  H.B. No. 1866
 
 
 
 
AN ACT
  relating to compensation and restitution to crime victims and the
  disposition of unclaimed restitution payments; providing for an
  administrative penalty; authorizing a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Article 56.54, Code of Criminal Procedure, is
  amended by amending Subsections (a), (d), (f), (g), and (l) and
  adding Subsection (m-1) 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.
         (l)  As appropriated by the legislature, the [The] attorney
  general may use the compensation to victims of crime auxiliary fund
  to cover costs incurred by the attorney general in administering
  the address confidentiality program established under Subchapter
  C.
         (m-1)  Notwithstanding Subsection (m), the attorney general
  may not transfer money under that subsection during a fiscal year
  beginning September 1, 2017, or September 1, 2018. This subsection
  expires September 1, 2019.
         SECTION 2.  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 3.  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 4.  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.
         (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) and Chapter 56, Code of Criminal Procedure, 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 5.  The following laws are repealed:
               (1)  Article 56.54(c), Code of Criminal Procedure; and
               (2)  Section 76.013(d), Government Code.
         SECTION 6.  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 7.  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 8.  This Act takes effect September 1, 2017.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 1866 was passed by the House on May 6,
  2017, by the following vote:  Yeas 137, Nays 1, 2 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 1866 was passed by the Senate on May
  23, 2017, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor