1 Tex. Admin. Code § 61.402 - Loss of Earnings
(a) Pursuant to
Texas Code of Criminal Procedure Article 56.32(a)(9)(B) and (I), the OAG shall
determine an award for actual loss of past earnings, the anticipated loss of
future earnings and bereavement leave. Loss of earnings may be paid to victims
who suffer a disability period as defined in §
61.101(a)(2) of
this chapter (relating to Definitions), or to victims or claimants attending
individual appointments, executions, or funerals and memorials as outlined in
subsections (e), (i) and (j) of this section. The victim or claimant must
submit information to the OAG in the manner prescribed in §
61.404 of this subchapter (relating
to Travel Expenses).
(b) The actual
loss of past earnings will be computed by determining the weekly net earnings
of the victim on the date of the criminally injurious conduct multiplied by the
disability period. The OAG may determine the initial disability period upon
verification of work missed up to fourteen calendar days after the criminally
injurious conduct. Verification may be from any source deemed appropriate by
the OAG.
(c) If a victim's loss of
past or anticipated earnings is a result of a disability period lasting more
than fourteen calendar days directly caused by the criminally injurious
conduct, the M.D. or D.O. who regularly treats the victim must submit a written
statement and any other documentation requested by the OAG in order to verify
loss of past or anticipated earnings.
(d) If a victim was unemployed at the time of
the criminally injurious conduct and claims a loss of anticipated earnings, the
victim or claimant must provide the OAG with a sufficient showing that the
victim would have had earnings had the victim not suffered injury or death as a
direct result of the criminally injurious conduct. "Sufficient showing" may
include a written statement from the employer that the victim was offered
employment, but did not begin employment, or any other information deemed
appropriate by the OAG.
(e) Loss of
earnings may be paid to a claimant, consistent with the rest of this section,
if the expense is reasonably and necessarily incurred as a result of the
victim's personal injury or death for:
(1)
the victim's disability period resulting from the personal injury;
(2) the receipt of medically indicated
services related to the victim's disability period resulting from the personal
injury; or
(3) the participation in
or attendance at investigative, prosecutorial, or judicial processes related to
the criminally injurious conduct and participation in or attendance at any
post-conviction or post-adjudication proceeding relating to the criminally
injurious conduct.
(f)
In computing loss of earnings, the OAG will consider any other income earned
subsequent to the crime, and any collateral source under Texas Code of Criminal
Procedure Article 56.32(a)(3).
(g)
Loss of past earnings may be paid upon verification of one of the following:
(1) income reported to the Internal Revenue
Service;
(2) documentation from the
Texas Workforce Commission;
(3) an
affidavit from an employer, including the employer's Texas Workforce Commission
employer identification number; or
(4) any other source approved by the
OAG.
(h) The loss of
earnings available under Texas Code of Criminal Procedure Article
56.32(a)(9)(B) is determined by the date of criminally injurious conduct and is
limited pursuant to Texas Code of Criminal Procedure Article 56.42(c) as
follows:
(1) Between January 1, 1980 and
August 31, 1989, the maximum amount of an award for loss of earnings is $150
per week.
(2) Between September 1,
1989 and August 31, 1995, the maximum amount of an award for loss of earnings
is $200 per week.
(3) Between
September 1, 1995 and January 31, 1998, the maximum amount of an award for loss
of earnings is $400 per week.
(4)
Between February 1, 1998 and July 14, 2016, the maximum amount of an award for
loss of earnings is $500 per week.
(5) On or after July 15, 2016, the maximum
amount of an award for loss of earnings is $700 per week.
(i) Loss of earnings may be paid to a
household member, as defined in Texas Code of Criminal Procedure Article
56.32(a)(6), or immediate family member, as defined in Texas Code of Criminal
Procedure Article 56.32(a)(7), if it can be substantiated in a manner that is
acceptable to the OAG that bereavement leave was taken from work in connection
with the death of a victim who died on or after September 1, 2003.
(j) Loss of earnings available to a victim or
claimant to attend an execution under Texas Code of Criminal Procedure Article
56.32(a)(9)(B)(iii) is limited to three consecutive days per proceeding and
cannot exceed the limits described in subsection (h) of this section. The OAG
may extend this limit upon good cause shown.
(k) The amount of loss of earnings awarded
under Texas Code of Criminal Procedure Article 56.32(a)(9)(I) for bereavement
leave is determined by the date of the criminally injurious conduct, and is
limited to ten work days of lost earnings, not to exceed:
(1) $1000 for criminally injurious conduct
before July 15, 2016; or
(2) $1400
for criminally injurious conduct on or after July 15, 2016.
(l) Loss of earnings may be paid
to a claimant if it can be substantiated in a manner that is acceptable to the
OAG that the claimant traveled to witness an execution, if the cost was
incurred on or after June 21, 2003.
(m) Reimbursements for loss of earnings are
limited to reimbursement for the actual loss of earnings due to individual
medical, investigative, or court appointments, including judicial proceedings,
but not to exceed four hours of work time, unless evidence presented by the
victim or claimant or an investigation by the OAG indicates that the
appointment exceeded four hours.
(n) At the discretion of the OAG, an award
for loss of earnings due to a disability period may require review and
application of the requirements provided in the "Official Disability
Guidelines" adopted by the Texas Department of Insurance.
Notes
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