Bill Text: TX SB1680 | 2011-2012 | 82nd Legislature | Enrolled
Bill Title: Relating to certain evidence in a prosecution of fraud or theft involving Medicaid or Medicare benefits and to certain criminal procedures involving offenses in general.
Spectrum: Bipartisan Bill
Status: (Passed) 2011-05-20 - Effective on 9/1/11 [SB1680 Detail]
Download: Texas-2011-SB1680-Enrolled.html
S.B. No. 1680 |
|
||
relating to certain evidence in a prosecution of fraud or theft | ||
involving Medicaid or Medicare benefits and to certain criminal | ||
procedures involving offenses in general. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Chapter 38, Code of Criminal Procedure, is | ||
amended by adding Article 38.46 to read as follows: | ||
Art. 38.46. EVIDENCE IN AGGREGATION PROSECUTION FOR FRAUD | ||
OR THEFT COMMITTED WITH RESPECT TO NUMEROUS MEDICAID OR MEDICARE | ||
RECIPIENTS. In trials involving an allegation of a continuing | ||
scheme of fraud or theft that involves Medicaid or Medicare | ||
benefits and is alleged to have been committed with respect to a | ||
large class of Medicaid or Medicare recipients in an aggregate | ||
amount or value, the attorney representing the state is not | ||
required to prove by direct evidence that each Medicaid or Medicare | ||
recipient did not consent or effectively consent to a transaction | ||
in question. It is sufficient if the lack of consent or effective | ||
consent to a particular transaction or transactions is proven by | ||
either direct or circumstantial evidence. | ||
SECTION 2. Article 39.01, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 39.01. IN EXAMINING TRIAL. When an examination takes | ||
place in a criminal action before a magistrate, the state [ |
||
the defendant may have the deposition of any witness taken by any | ||
officer authorized by this chapter. The state [ |
||
defendant may not use the deposition for any purpose unless that | ||
party first acknowledges that the entire evidence or statement of | ||
the witness may be used for or against the defendant on the trial of | ||
the case, subject to all legal objections. The deposition of a | ||
witness duly taken before an examining trial or a jury of inquest | ||
and reduced to writing or recorded and then certified according to | ||
law, provided that [ |
||
attorney were [ |
||
that the defendant had the privilege afforded of cross-examining | ||
the witness, or taken at any prior trial of the defendant for the | ||
same offense, may be used by either the state [ |
||
defendant in the trial of the defendant's criminal case under the | ||
following circumstances: | ||
When oath is made by the party using the deposition that the | ||
witness resides outside the state [ |
||
witness's testimony was taken, the witness has died, or has removed | ||
beyond the limits of the state [ |
||
attending the court through the act or agency of the other party, or | ||
by the act or agency of any person whose object was to deprive the | ||
state [ |
||
that by reason of age or bodily infirmity, that witness cannot | ||
attend; or that the witness is a Medicaid or Medicare recipient or a | ||
caregiver or guardian of the recipient, and the recipient's | ||
Medicaid or Medicare account was charged for a product or service | ||
that was not provided or rendered to the recipient. When the | ||
testimony is sought to be used by the state [ |
||
made by any credible person. When sought to be used by the | ||
defendant, the oath must be made by the defendant in person. | ||
SECTION 3. Chapter 39, Code of Criminal Procedure, is | ||
amended by adding Article 39.026 to read as follows: | ||
Art. 39.026. DEPOSITIONS OF MEDICAID OR MEDICARE RECIPIENTS | ||
OR CAREGIVERS. (a) In this article: | ||
(1) "Caregiver" means a person, including a guardian, | ||
who is authorized by law, contract, or familial relationship to | ||
care for a recipient. | ||
(2) "Medicaid" means the state Medicaid program. | ||
(3) "Medicaid recipient" has the meaning assigned by | ||
Section 36.001, Human Resources Code. | ||
(4) "Medicare" means the federal health insurance | ||
program that is operated under the Health Insurance for the Aged Act | ||
(42 U.S.C. Section 1395 et seq.). | ||
(5) "Medicare recipient" means an individual on whose | ||
behalf a person claims or receives a payment under Medicare, | ||
without regard to whether the individual was eligible for benefits | ||
under Medicare. | ||
(6) "Recipient" means a Medicaid recipient or a | ||
Medicare recipient. | ||
(b) The court may order the attorney representing the state | ||
to take the deposition of a recipient or caregiver who is the | ||
alleged victim of or witness to an offense constituting fraud or | ||
theft that involves Medicaid or Medicare benefits. Any order under | ||
this subsection must be issued not later than the 180th day after | ||
the date on which the state files an application to take the | ||
deposition under Article 39.02. | ||
(c) On the motion of either party, the court may order the | ||
attorney representing the state to take the deposition of a | ||
recipient or caregiver by video recording. The person operating | ||
the video recording device must be available to testify regarding | ||
the authenticity of the video recording and the taking of the | ||
deposition in order for the video recording to be admissible. | ||
(d) If the court finds that the video recording of the | ||
deposition is properly authenticated and that requiring the jury to | ||
view the entire recording would unnecessarily prolong the trial, | ||
the court may allow a party to offer the entire video recording into | ||
evidence without requiring the jury to view the entire video | ||
recording during the trial. This subsection does not preclude the | ||
attorney representing the state, the defendant, or the defendant's | ||
attorney from offering into evidence and playing for the jury a | ||
portion of a video-recorded deposition. | ||
(e) The attorney representing the state and the defendant or | ||
the defendant's attorney, by written agreement filed with the | ||
court, may extend the deadline for the taking of the deposition. | ||
(f) The court shall grant any request by the attorney | ||
representing the state to extend the deadline for the taking of the | ||
deposition if a reason for the request is the unavailability, | ||
health, or well-being of the recipient or caregiver. | ||
(g) The Texas Rules of Civil Procedure govern the taking of | ||
the deposition, except that, to the extent of any conflict with this | ||
code or applicable court rules adopted for criminal proceedings, | ||
this code and the rules for criminal proceedings govern. The | ||
attorney representing the state and the defendant or the | ||
defendant's attorney may agree to modify the rules applicable to | ||
the deposition by written agreement filed with the court before the | ||
taking of the deposition. | ||
(h) If a defendant is unavailable to attend a deposition | ||
because the defendant is confined in a correctional facility, the | ||
court shall issue any orders or warrants necessary to secure the | ||
defendant's presence at the deposition. The sheriff of the county | ||
in which a deposition is to be taken under this subsection shall | ||
provide a secure location for the taking of the deposition and | ||
sufficient law enforcement personnel to ensure that the deposition | ||
is taken safely. The state's application to take a deposition or | ||
notice of deposition is not required to include the identity of any | ||
law enforcement agent the sheriff assigns to the deposition under | ||
this subsection, and the defendant may not object to the taking of | ||
the deposition based solely on the state's omission of the identity | ||
of that agent. | ||
(i) If a defendant is unavailable to attend a deposition for | ||
any reason other than confinement in a correctional facility, the | ||
defendant or the defendant's attorney shall request a continuance | ||
from the court. The court may grant the continuance if the | ||
defendant or the defendant's attorney demonstrates good cause for | ||
the continuance and that the request is not brought for the purpose | ||
of delay or avoidance. A defendant's failure to attend a deposition | ||
or request a continuance in accordance with this subsection | ||
constitutes a waiver of the defendant's right to be present at the | ||
deposition. | ||
SECTION 4. Article 39.12, Code of Criminal Procedure, is | ||
amended to read as follows: | ||
Art. 39.12. PREDICATE TO READ. Depositions taken in | ||
criminal actions shall not be read unless oath be made that the | ||
witness resides out of the state [ |
||
deposition was taken, the witness has died; or that the witness [ |
||
has removed beyond the limits of the state [ |
||
witness [ |
||
the act or agency of the defendant; or by the act or agency of any | ||
person whose object was to deprive the state or the defendant of the | ||
benefit of the testimony; or that by reason of age or bodily | ||
infirmity, the [ |
||
a Medicaid or Medicare recipient or a caregiver or guardian of the | ||
recipient, and the recipient's Medicaid or Medicare account was | ||
charged for a product or service that was not provided or rendered | ||
to the recipient. When the deposition is sought to be used by the | ||
state [ |
||
sought to be used by the defendant, the oath shall be made by the | ||
defendant [ |
||
SECTION 5. The change in law made by this Act applies to a | ||
criminal proceeding that commences on or after the effective date | ||
of this Act. A criminal proceeding that commences before the | ||
effective date of this Act is covered by the law in effect when the | ||
proceeding commenced, and the former law is continued in effect for | ||
that purpose. | ||
SECTION 6. This Act takes effect September 1, 2011. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I hereby certify that S.B. No. 1680 passed the Senate on | ||
April 14, 2011, by the following vote: Yeas 30, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
I hereby certify that S.B. No. 1680 passed the House on | ||
May 7, 2011, by the following vote: Yeas 116, Nays 0, one present | ||
not voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
Approved: | ||
______________________________ | ||
Date | ||
______________________________ | ||
Governor |