SECTION 61.301. Reducing an Application or Award

(a) To reduce an application or award under Texas Code of Criminal Procedure Article 56.45(a)(2), the OAG may consider the victim's behavior if it was a significant factor in the cause of the personal injury. If the OAG determines that the victim shared a portion of the responsibility for the act or omission that gave rise to the application, the OAG may reduce the award for compensation by 25% or 50%. When an award for compensation is reduced, the reduction applies to each bill, each individual award amount, and the aggregate award amount.

(b) Emergency medical care applications are not subject to Texas Code of Criminal Procedure Article 56.45(a)(2), and therefore this rule does not apply to emergency medical care applications.

(c) When determining whether a victim's behavior is a significant factor in the cause of the personal injury, the OAG will consider the totality of facts and circumstances, including but not limited to:

(1) the victim's ability to have reasonably avoided the incident;

(2) the nature and extent of injuries sustained by the victim;

(3) the nature and extent of injuries sustained by the alleged offender or offenders;

(4) exhibition or use of a deadly weapon;

(5) the relationship, if any, between the victim and offender or offenders, including a history of criminally injurious conduct;

(6) the proportionate responsibility between the parties;

(7) the opinions and conclusion of law enforcement investigators assigned to the case;

(8) the legal opinions and conclusions of prosecutorial agencies regarding the presentation of criminal charges and an assessment of affirmative defenses;

(9) the results of the victim's actions could have been reasonably foreseen by the victim at the time;

(10) there is a causal relationship between the victim's or claimant's conduct; and

(11) the degree of harm that occurred as a result of the criminally injurious conduct and the future harm that may occur if compensation is not awarded.

Source Note: The provisions of this §61.301 adopted to be effective December 15, 2002, 27 TexReg 11513; amended to be effective October 30, 2014, 39 TexReg 8373; amended to be effective August 20, 2017, 42 TexReg 3961