SECTION 61.407. Additional Compensation for Extraordinary Pecuniary Losses

(a) Compensation for extraordinary pecuniary losses are available to victims of criminally injurious conduct which occurred after September 1, 1995. Losses associated with subsection (g)(6), (7), and (8) of this section are only available for victims of criminally injurious conduct which occurred after September 1, 2001.

(b) Pursuant to Texas Code of Criminal Procedure Article 56.42(b), the OAG may only award an additional amount to be used for actual extraordinary pecuniary losses if the personal injury to a victim is catastrophic and results in a total and permanent disability to the victim. Claims for extraordinary pecuniary losses are governed by the statute and rules in effect on the date of the criminally injurious conduct.

(c) Once the OAG determines that a victim is eligible for additional compensation, the OAG may approve payment of expenses from either the victim's initial compensation amount or from the additional compensation amount, as determined appropriate by the OAG. The additional compensation for extraordinary pecuniary losses is available for the actual, reasonable and necessary costs incurred as a result of the criminally injurious conduct occurring on or after September 1, 1995, as follows:

(1) An award for additional compensation for extraordinary pecuniary losses arising from criminally injurious conduct that occurred between September 1, 1995 and August 31, 1997, shall not exceed $25,000.

(2) An award for additional compensation for extraordinary pecuniary losses arising from criminally injurious conduct that occurred between September 1, 1997 and August 31, 2001, shall not exceed $50,000.

(3) An award for additional compensation for extraordinary pecuniary losses arising from criminally injurious conduct that occurred on or after September 1, 2001, shall not exceed $75,000.

(d) Lost wages under this section has the same meaning as loss of earnings in this chapter. Loss of earnings under this section will be computed, as follows:

(1) By determining the weekly net earnings of a victim at the time of the criminally injurious conduct and multiplying the victim's net earnings by the number of weeks the victim continues to incur a loss of earnings; and

(2) 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).

(e) Lost wages 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.

(f) Lost wages available under Texas Code of Criminal Procedure Article 56.42(b) are determined by the date of criminally injurious conduct and are 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.

(g) The additional compensation for extraordinary pecuniary losses shall be used only for the specific costs articulated in Texas Code of Criminal Procedure Article 56.42(b). Compensation may be made to replace lost wages and the following reasonable and necessary extraordinary pecuniary losses for expenses incurred as follows:

(1) Making a home accessible, including the actual, reasonable and necessary physical or structural modifications to a residence that are necessary to maintain an optimal level of independence in the activities of daily living. This includes, but is not limited to, modifications for ingress and egress to the home, modifying a kitchen, bedroom, or bathroom to accommodate the victim's physical limitations resulting from the criminal injury. The legal owner of the residence must submit to the OAG verification of ownership and written permission to modify the dwelling.

(2) Making an automobile accessible, including equipping a personal vehicle with reasonable and necessary equipment to allow the victim to control or to enter the vehicle to maintain an optimal level of independence in the activities of daily living. Modification of a vehicle is limited to one time per two year period unless good cause exists.

(3) Expenses for job training or vocational rehabilitation may be compensated if the service provider is licensed. Job training or vocational rehabilitation should be based upon a referral by one of the health care service providers treating the victim's injuries that resulted in the disability. All other collateral sources for job training and vocational rehabilitation must be utilized. Itemized bills must indicate the dates of service and the nature of the services provided. Semi-annual reviews of these conditions shall be conducted to assure continued compliance within the predicted length of rehabilitation.

(4) Training in the use of special appliances necessary due to the victim's physical limitations.

(5) Home health care expenses may be paid for services provided by health care service providers upon submission by the victim or claimant to the OAG of an itemized bill. Home health care service providers must be licensed, certified or registered within the state in which services are being provided. Itemized bills must indicate the dates of service and the nature of the services provided.

(6) Durable medical equipment, including those items that can withstand repeated use, are primarily used to serve a medical purpose, are generally not useful to a person in the absence of illness, injury or disease, and are appropriate for use in the victim's home or workplace or to assist with activities of daily living.

(7) Rehabilitation technology, including those therapeutic devices or systems, deemed appropriate by the OAG, which help the victim attain maximum function and an optimal level of independence in the activities of daily living.

(8) Long-term medical expenses are:

(A) incurred for medically indicated treatment which are considered reasonable and necessary and the expense occurs after 12 months of total and permanent disability or after the victim has reached maximum medical improvement, whichever is sooner; and

(B) medical, as defined by §61.101(a)(9) of this chapter (relating to Definitions), expenses which are a direct result of the criminally injurious conduct include, but are not limited to: medications, supplies, surgery, and surgery related expenses necessary to sustain or achieve the highest possible quality of life; or

(C) other expenses resulting from medically indicated treatment related to the criminally injurious conduct in which the OAG finds good cause for an expense to be covered as a long-term medical expense which is either:

(i) prior to the 12 month period of total and permanent disability; or

(ii) outside of the services listed in this section.

Source Note: The provisions of this §61.407 adopted to be effective December 15, 2002, 27 TexReg 11513; 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; amended to be effective August 20, 2017, 42 TexReg 3961