1. (a) Pursuant to Tex. Code Crim. Proc. Art. 56.32(a)(9)(B), the OAG shall determine an award for actual loss of past earnings and the anticipated loss of future earnings.

2. (b) The actual loss of past earnings will be computed by determining the weekly net earnings of the victim multiplied by the disability period. For the first 14 days or less of a personal injury disability period, the OAG may determine the personal injury disability period upon verification of work missed. Verification may be from any source deemed appropriate by the OAG. In this subsection, "disability period" means the length of time that a victim is unable to work as a direct result of the criminally injurious conduct for the following:

   1. (1) personal injury as determined by a physician and consistent with §61.402 (d) of this title; or
   2. (2) mental trauma as determined by a mental health professional licensed to provide care or counseling as defined in §61.101(8) of this title and consistent with §61.402(c) and (d) of this title.
3. (c) If a victim lost past earnings as a result of mental trauma directly caused by the criminally injurious conduct, the mental health professional that regularly treats the victim may submit a written statement to the OAG verifying loss of past earnings for the victim for a maximum period of six months. In order to continue receiving benefits after six months, a victim must submit to an independent medical evaluation and a disability determination by an M.D. or a D.O. with a psychiatric specialty. The evaluation will be provided by the OAG.
4. (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" includes an affidavit from the employer, including the employer's identification number, affirming that the victim was offered employment, but was unable to begin employment as a direct result of a disability caused by the crime, or any other information deemed appropriate by the OAG. In order to continue receiving benefits after six months, a victim must submit to an evaluation and a disability determination from an M.D. or a D.O. with a similar practice specialty. The evaluation will be provided by the OAG.

5. (e) Loss of earnings may be paid to a claimant if the claimant can substantiate in a manner that is acceptable to the OAG that his or her presence is necessary for the following activities relevant to the criminally injurious conduct:

   1. (1) decision-making on behalf of a medically incapacitated adult victim or minor child victim who is unable to make decisions on his or her own behalf; or
   2. (2) transporting a medically incapacitated adult victim or minor child victim to medically indicated services or participation in legal matters relating to the prosecution of the criminally injurious conduct; or
   3. (3) providing care for incapacitated adults or minor children if the attending physician provides a letter stating the care is medically necessary.
6. (f) In computing loss of earnings, the OAG will consider any other income earned subsequent to the crime, and any collateral source under Tex. Code Crim. Proc. Art. 56.32(a)(3).

7. (g) Loss of past earnings may be paid upon verification of the following:

   1. (1) income reported to the Internal Revenue Service, if reporting is required by law;
   2. (2) documentation from the Texas Workforce Commission;
   3. (3) an affidavit from an employer, including the employer's Texas Workforce Commission employer identification number; or
   4. (4) any other source approved by the OAG.

8. (h) The amount of loss of past earnings awarded under Tex. Code Crim. Proc. Art. 56.32(a)(9)(B) is determined by the date of criminally injurious conduct and is limited pursuant to Tex. Code Crim. Proc. Art. 56.42(c) as follows:

   1. (1) On or after January 1, 1980, to on or before August 31, 1989, the maximum amount of an award for loss of earnings is $150.00 per week.
   2. (2) On or after September 1, 1989, to on or before August 31, 1995, the maximum amount of an award for loss of earnings is $200.00 per week.
   3. (3) On or after September 1, 1995, to on or before January 31, 1998, the maximum amount of an award for loss of earnings is $400.00 per week.
   4. (4) On or after February 1, 1998, the maximum amount of an award for loss of earnings is $500.00 per week.

Source Note:The provisions of this §61.402 adopted to be effective December 15, 2002, 27 TexReg 11513.