SECTION 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.

Source Note: The provisions of this §61.402 adopted to be effective December 15, 2002, 27 TexReg 11513; amended to be effective February 17, 2004, 29 TexReg 1329; amended to be effective May 8, 2005, 30 TexReg 2491; amended to be effective November 14, 2007, 32 TexReg 8117; amended to be effective October 30, 2014, 39 TexReg 8373; amended to be effective July 5, 2016, 41 TexReg 4797