Bill Text: TX HB1866 | 2017-2018 | 85th Legislature | Enrolled
Bill Title: Relating to compensation and restitution to crime victims and the disposition of unclaimed restitution payments; providing for an administrative penalty; authorizing a fee.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2017-06-01 - Effective on 9/1/17 [HB1866 Detail]
Download: Texas-2017-HB1866-Enrolled.html
H.B. No. 1866 |
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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 [ |
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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 [ |
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(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 [ |
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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 | ||
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(g) Money in the compensation to victims of crime fund [ |
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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 [ |
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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 [ |
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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 | ||
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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. [ |
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(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) [ |
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accrued interest under Subsection [ |
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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. [ |
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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 [ |
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(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 |