85R12892 EES-D     By: Johnson of Dallas H.B. No. 3972       A BILL TO BE ENTITLED   AN ACT   relating to the financial exploitation of certain elderly persons.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  The Securities Act (Article 581-1 et seq.,   Vernon's Texas Civil Statutes) is amended by adding Section 45 to   read as follows:          Sec. 45.  PROTECTION OF ELDERLY PERSONS FROM FINANCIAL   EXPLOITATION. A. In this section:                (1)  "Adult protective services division" means the   adult protective services division of the Department of Family and   Protective Services.                 (2)  "Elderly person" has the meaning assigned by   Section 48.002, Human Resources Code.                (3)  "Financial exploitation" means the wrongful or   negligent taking, appropriation, obtaining, retention, or use of   money or other property of another person by a person who has a   relationship of confidence or trust with the other person.   Financial exploitation may involve coercion, manipulation,   threats, intimidation, misrepresentation, or the exerting of undue   influence. The term includes:                      (A)  the breach of a fiduciary relationship,   including the misuse of a durable power of attorney or the abuse of   guardianship powers, that results in the unauthorized   appropriation, sale, or transfer of another person's property;                      (B)  the unauthorized taking of personal assets;                      (C)  the misappropriation, misuse, or   unauthorized transfer of another person's money from a personal or   a joint account; and                      (D)  the negligent or intentional failure to   effectively use another person's income and assets for the   necessities required for the person's support and maintenance.                (4)  "Qualified individual" means an agent, an   investment adviser representative, or a person who serves in a   supervisory, compliance, or legal capacity for a dealer or   investment adviser.           B.  If a qualified individual rationally believes that   financial exploitation of an elderly person who is an account   holder with the dealer or investment adviser for whom the qualified   individual is providing services has occurred or is occurring, the   qualified individual:                (1)  shall submit a report of the suspected financial   exploitation to the Board in accordance with rules adopted under   Subsection E of this section and the adult protective services   division in accordance with Subchapter B-1, Chapter 48, Human   Resources Code;                (2)  may notify a third party that has a legal   relationship with the elderly person of the suspected financial   exploitation, unless the qualified individual suspects the third   party of financial exploitation of the elderly person; and                (3)  may place a hold on a disbursement from an account   of the elderly person.          C.  A qualified individual who submits a report, makes a   notification, or places a hold on a disbursement from an account   under Subsection B of this section is immune from any civil   liability or disciplinary action resulting from the report,   notification, or hold.          D.  To the extent permitted by state or federal law, dealers   and investment advisers shall comply with requests for information   made in accordance with an investigation of suspected financial   exploitation of an elderly person.          E.  The Board by rule shall prescribe the form and content of   the report required to be submitted by a qualified individual to the   Board under Subsection B of this section.          SECTION 2.  Subchapter A, Chapter 48, Human Resources Code,   is amended by adding Section 48.008 to read as follows:          Sec. 48.008.  CONSOLIDATION OF CERTAIN REPORTS. If   cost-effective and feasible and to the extent permitted by law, the   executive commissioner by rule may consolidate the form and   procedures used to submit a report under Sections 48.051 and   48.072.          SECTION 3.  Chapter 48, Human Resources Code, is amended by   adding Subchapter B-1 to read as follows:   SUBCHAPTER B-1. FINANCIAL EXPLOITATION OF ELDERLY PERSONS          Sec. 48.071.  DEFINITIONS. In this subchapter, "financial   exploitation" and "qualified individual" have the meanings   assigned by Section 45, The Securities Act (Article 581-45,   Vernon's Texas Civil Statutes).          Sec. 48.072.  CERTAIN REPORTS OF SUSPECTED FINANCIAL   EXPLOITATION. (a) The executive commissioner, after consultation   with the securities commissioner, by rule shall prescribe the form   and content of the report required to be submitted by a qualified   individual under Subsection B(1), Section 45, The Securities Act   (Article 581-45, Vernon's Texas Civil Statutes). A report   submitted by a qualified individual under Subsection B(1), Section   45, The Securities Act (Article 581-45, Vernon's Texas Civil   Statutes), constitutes a report of suspected financial   exploitation of an elderly person for purposes of this subchapter.          (b)  In adopting rules under this section, the executive   commissioner shall ensure that a report of suspected financial   exploitation of an elderly person described by Subsection (a)   includes to the extent possible the same information required to be   included in a report under Section 48.051(d).          (c)  A qualified individual who submits a report to the   department of suspected financial exploitation of an elderly person   under Subsection B(1), Section 45, The Securities Act (Article   581-45, Vernon's Texas Civil Statutes), in accordance with this   section is not required to make an additional report of suspected   abuse, neglect, or exploitation under Section 48.051 for the same   conduct constituting the financial exploitation reported under   this section.          Sec. 48.073.  ASSESSMENT, INVESTIGATION, AND DISPOSITION OF   REPORTS. (a) The executive commissioner by rule shall adopt   procedures for the assessment, investigation, and disposition of a   report of suspected financial exploitation of an elderly person   received under Subsection B(1), Section 45, The Securities Act   (Article 581-45, Vernon's Texas Civil Statutes), that must be   similar to the procedures used for the assessment, investigation,   and disposition of a report of abuse, neglect, or exploitation   received by the department under this chapter, other than a report   received under Subchapter F.          (b)  The procedures adopted under this section must require:                (1)  a risk assessment similar to the assessment   required under Section 48.004;                (2)  investigations similar to the investigations   required under Subchapter D, including requirements that the   department:                      (A)  take action on a report within the time frame   and in the manner provided by Section 48.151;                      (B)  perform an interview with the elderly person   similar to the interview required by Section 48.152;                      (C)  if appropriate, implement a system to   investigate complex cases similar to the system implemented under   Section 48.1521;                      (D)  report criminal conduct to appropriate law   enforcement agencies similar to the reports under Section 48.1522;   and                      (E)  review certain cases involving multiple   reports under Section 48.051 and this subchapter similar to the   review performed under Section 48.1523; and                (3)  a determination of services similar to the   determination required by Section 48.202.          Sec. 48.074.  AUTHORITY OF DEPARTMENT OR OTHER AGENCY. The   department or another appropriate state agency has the authority to   act on or with respect to an allegation of financial exploitation of   an elderly person under this subchapter to the same extent the   department or other agency has the authority to act on or with   respect to an allegation of abuse, neglect, or exploitation under   Subchapter B.          Sec. 48.075.  ACCESS TO INVESTIGATION. (a) To implement an   investigation of reported financial exploitation of an elderly   person, the probate court, as defined by Section 22.007, Estates   Code, may authorize entry into the place of residence of an elderly   person.          (b)  A peace officer shall accompany and assist the person   making a court-ordered entry under this section if the court   determines that action is necessary.          Sec. 48.076.  INTERFERENCE WITH INVESTIGATION OR SERVICES   PROHIBITED. (a) Notwithstanding Section 1151.001, Estates Code, a   person, including a guardian, may not interfere with:                (1)  an investigation by the department or by another   protective services agency of suspected financial exploitation of   an elderly person; or                (2)  the provision of protective services to an elderly   person.          (b)  The department or another protective services agency   may petition the appropriate court to enjoin any interference with:                (1)  an investigation of suspected financial   exploitation of an elderly person under this subchapter; or                (2)  the provision of protective services, such as   removing an elderly person to safer surroundings or safeguarding   the elderly person's resources from financial exploitation.          Sec. 48.077.  MEMORANDUM OF UNDERSTANDING. The commission,   the securities commissioner, and the department shall enter into a   memorandum of understanding regarding the reporting and   investigation of suspected financial exploitation of an elderly   person under this subchapter.          Sec. 48.078.  CONFIDENTIALITY.  (a)  All files, reports,   records, communications, and working papers used or developed by   the department or other state agency in an investigation made under   this subchapter or in providing services as a result of an   investigation are confidential and not subject to disclosure under   Chapter 552, Government Code.          (b)  The department or investigating state agency may   establish procedures to exchange with another state agency or   governmental entity information that is necessary for the   department, state agency, or governmental entity to properly   execute its respective duties and responsibilities to provide   services to elderly persons under this chapter or other law. An   exchange of information under this subsection does not affect   whether the information is subject to disclosure under Chapter 552,   Government Code.          SECTION 4.  Subchapter C, Chapter 48, Human Resources Code,   is amended by adding Section 48.104 to read as follows:          Sec. 48.104.  NONAPPLICABILITY.  (a)  This subchapter does   not apply to a report of financial exploitation of an elderly person   made under Subchapter B-1.          (b)  The confidentiality of information received or provided   by the department in connection with a report of financial   exploitation of an elderly person made under Subchapter B-1 is   governed by Section 48.078.          SECTION 5.  Subchapter D, Chapter 48, Human Resources Code,   is amended by adding Section 48.1511 to read as follows:          Sec. 48.1511.  NONAPPLICABILITY. This subchapter does not   apply to an investigation conducted under Subchapter B-1 unless the   executive commissioner by rule requires the application of a   provision of this subchapter.          SECTION 6.  This Act takes effect September 1, 2017.