85R23071 AJA-D     By: Geren H.B. No. 1866     Substitute the following for H.B. No. 1866:     By:  Moody C.S.H.B. No. 1866       A BILL TO BE ENTITLED   AN ACT   relating to compensation and restitution to crime victims and the   disposition of unclaimed restitution payments; providing for an   administrative penalty; 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.