1-1  By:  Harris of Dallas                                   S.B. No. 77
    1-2        (In the Senate - Filed February 17, 1993; February 17, 1993,
    1-3  read first time and referred to Committee on State Affairs;
    1-4  February 24, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 8, Nays 0;
    1-6  February 24, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Harris of Dallas   x                               
   1-10        Rosson             x                               
   1-11        Carriker                                       x   
   1-12        Henderson          x                               
   1-13        Leedom             x                               
   1-14        Lucio              x                               
   1-15        Luna                                           x   
   1-16        Nelson             x                               
   1-17        Patterson          x                               
   1-18        Shelley            x                               
   1-19        Sibley                                         x   
   1-20        West                                           x   
   1-21        Whitmire                                       x   
   1-22  COMMITTEE SUBSTITUTE FOR S.B. No. 77          By:  Harris of Dallas
   1-23                         A BILL TO BE ENTITLED
   1-24                                AN ACT
   1-25  relating to the authority of certain state financial regulatory
   1-26  agencies to enforce laws pertaining to certain institutions and
   1-27  loan and securities transactions that they regulate; providing
   1-28  administrative penalties.
   1-29        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-30        SECTION 1.  Chapter 8, Texas Savings and Loan Act (Article
   1-31  852a, Vernon's Texas Civil Statutes), is amended by adding Section
   1-32  8.14 to read as follows:
   1-33        Sec. 8.14.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
   1-34  (a)  The commissioner may assess an administrative penalty against
   1-35  a person who knowingly and wilfully violates or causes a violation
   1-36  of this Act or a rule adopted under this Act.  The commissioner may
   1-37  order a person who knowingly and wilfully violates or causes a
   1-38  violation of this Act or a rule adopted under this Act to make
   1-39  restitution to an identifiable person injured by the violation.
   1-40        (b)  The amount of the penalty may not exceed $25,000 for
   1-41  each day of violation and for each act of violation.
   1-42        (c)  In determining the amount of a penalty, the commissioner
   1-43  shall consider:
   1-44              (1)  the extent of actual or potential harm to a third
   1-45  party;
   1-46              (2)  the history of previous violations;
   1-47              (3)  the amount necessary to deter future violations;
   1-48              (4)  efforts to correct the violation;
   1-49              (5)  enforcement costs relating to the violation,
   1-50  including investigation costs, witness fees, and deposition
   1-51  expenses; and
   1-52              (6)  any other matters that justice may require.
   1-53        (d)  In determining the amount of restitution, the
   1-54  commissioner shall consider:
   1-55              (1)  the extent of actual harm to the third party in
   1-56  whose favor restitution is ordered; and
   1-57              (2)  any other matters that justice may require.
   1-58        (e)  If after an examination of the facts the commissioner
   1-59  concludes that the person did commit a violation, the commissioner
   1-60  may issue a preliminary report stating the facts on which the
   1-61  commissioner based that conclusion, recommending that an
   1-62  administrative penalty be imposed or a restitution order entered,
   1-63  or both, under this section, and recommending the amount of the
   1-64  proposed penalty or restitution.
   1-65        (f)  The commissioner shall give written notice of the report
   1-66  to the person charged with committing the violation.  The notice
   1-67  must include a brief summary of the facts, a statement of the
   1-68  amount of the recommended penalty or restitution, or both, and a
    2-1  statement of the person's right to an informal review of the
    2-2  occurrence of the violation, the amount of the penalty or
    2-3  restitution, or both the occurrence and the amount.
    2-4        (g)  Not later than the 10th day after the date on which the
    2-5  person charged with committing the violation receives the notice,
    2-6  the person may either give the commissioner written consent to the
    2-7  report, including the recommended amounts, or make a written
    2-8  request for an informal review by the commissioner.
    2-9        (h)  If the person charged with committing the violation
   2-10  consents to the amounts recommended by the commissioner or fails to
   2-11  timely request an informal review, the commissioner shall assess
   2-12  the penalty or enter the restitution order, or both.  The
   2-13  commissioner shall give the person written notice of the
   2-14  commissioner's action.  The person shall pay the required amounts
   2-15  not later than the 30th day after the date on which the person
   2-16  receives the notice.
   2-17        (i)  If the person charged with committing a violation
   2-18  requests an informal review as provided by Subsection (g) of this
   2-19  section, the commissioner shall conduct the review.  The
   2-20  commissioner shall give the person written notice of the results of
   2-21  the review.
   2-22        (j)  Not later than the 10th day after the date on which the
   2-23  person charged with committing the violation receives the notice
   2-24  prescribed by Subsection (i) of this section, the person may make
   2-25  to the commissioner a written request for a hearing.  The hearing
   2-26  must be conducted in accordance with the Administrative Procedure
   2-27  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   2-28  Statutes) and its subsequent amendments.
   2-29        (k)  If after informal review a person who has been ordered
   2-30  to pay a penalty or make restitution, or both, fails to request a
   2-31  formal hearing in a timely manner, the commissioner shall assess
   2-32  the penalty or enter a restitution order, or both.  The
   2-33  commissioner shall give the person written notice of the
   2-34  commissioner's action.  The person shall pay the required amounts
   2-35  not later than the 30th day after the date on which the person
   2-36  receives the notice.
   2-37        (l)  Except as provided by Subsection (m) of this section,
   2-38  not later than the 30th day after the date on which the
   2-39  commissioner issues a final decision after a hearing under
   2-40  Subsection (j) of this section, a person who has been ordered to
   2-41  pay a penalty or make restitution, or both, under this section
   2-42  shall pay the required amount in full.
   2-43        (m)  If the person seeks judicial review of either the fact
   2-44  of the occurrence of a violation or the amount ordered or of both
   2-45  the occurrence and the amount, the person shall send the required
   2-46  amount to the commissioner for placement in an escrow account or
   2-47  post with the commissioner a supersedeas bond in a form approved by
   2-48  the commissioner for the required amount.  The bond must be
   2-49  effective until all judicial review of the order or decision is
   2-50  final.
   2-51        (n)  Failure to forward the money to or to post the bond with
   2-52  the commissioner within the period provided by Subsection (l) or
   2-53  (m) of this section results in a waiver of all legal rights to
   2-54  judicial review.  If the person charged fails to forward the money
   2-55  or post the bond within the period provided by Subsection (h), (k),
   2-56  (l), or (m) of this section, the commissioner may forward the
   2-57  matter to the attorney general for enforcement of the penalty or
   2-58  restitution, or both, and interest as provided by law for legal
   2-59  judgments.  An action to enforce an order under this section must
   2-60  be initiated in a court of competent jurisdiction in Travis County
   2-61  or in the county in which the violation occurred.
   2-62        (o)  Judicial review of an order of the commissioner or
   2-63  review under this section assessing a penalty or ordering
   2-64  restitution, or both, is under the substantial evidence rule.  A
   2-65  suit may be initiated by filing a petition with a district court in
   2-66  Travis County, as provided by Section 19, Administrative Procedure
   2-67  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   2-68  Statutes), and its subsequent amendments.
   2-69        (p)  If a penalty or restitution amount is reduced or not
   2-70  assessed, the commissioner shall remit to the person the
    3-1  appropriate amount plus accrued interest if the penalty or
    3-2  restitution amount has been paid or shall execute a release of the
    3-3  bond if a supersedeas bond has been posted.  The accrued interest
    3-4  on amounts remitted by the commissioner under this subsection shall
    3-5  be paid at a rate equal to the rate provided by law for legal
    3-6  judgments and shall be paid for the period beginning on the date
    3-7  the amount is paid to the commissioner under this section and
    3-8  ending on the date the amount is remitted.
    3-9        (q)  In addition to the administrative penalty or restitution
   3-10  amount, the court may authorize the commissioner to recover from a
   3-11  person who pays an administrative penalty or restitution amount, or
   3-12  both, under this section reasonable expenses incurred in obtaining
   3-13  the ordered amount, including investigation costs, witness fees,
   3-14  and deposition expenses.
   3-15        (r)  A penalty collected under this section shall be
   3-16  deposited to the credit of the general revenue fund.  After an
   3-17  order of restitution becomes final and the restitution amount is
   3-18  paid to the commissioner, the commissioner shall transmit the
   3-19  amount to the party entitled to it.
   3-20        SECTION 2.  Chapter IV, The Texas Banking Code (Article
   3-21  342-401 et seq., Vernon's Texas Civil Statutes), is amended by
   3-22  adding Article 12a to read as follows:
   3-23        Art. 12a.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
   3-24  (a)  The Banking Commissioner may assess an administrative penalty
   3-25  against a person who knowingly and wilfully violates or causes a
   3-26  violation of a provision of this Code or a rule adopted under this
   3-27  Code that relates to a state bank, private bank, or trust company.
   3-28  The Banking Commissioner may order a person who knowingly and
   3-29  wilfully violates or causes a violation of this Code or a rule
   3-30  adopted under this Code that relates to a state bank, private bank,
   3-31  or trust company to make restitution to an identifiable person
   3-32  injured by the violation.
   3-33        (b)  The amount of the penalty may not exceed $25,000 for
   3-34  each day of violation and for each act of violation.
   3-35        (c)  In determining the amount of a penalty, the Banking
   3-36  Commissioner shall consider:
   3-37              (1)  the extent of actual or potential harm to a third
   3-38  party;
   3-39              (2)  the history of previous violations;
   3-40              (3)  the amount necessary to deter future violations;
   3-41              (4)  efforts to correct the violation;
   3-42              (5)  enforcement costs relating to the violation,
   3-43  including investigation costs, witness fees, and deposition
   3-44  expenses; and
   3-45              (6)  any other matters that justice may require.
   3-46        (d)  In determining the amount of restitution, the Banking
   3-47  Commissioner shall consider:
   3-48              (1)  the extent of actual harm to the third party in
   3-49  whose favor restitution is ordered; and
   3-50              (2)  any other matters that justice may require.
   3-51        (e)  If after an examination of the facts the Banking
   3-52  Commissioner  concludes that the person did commit or cause a
   3-53  violation, the Banking Commissioner may issue a preliminary report
   3-54  stating the facts on which the Banking Commissioner based that
   3-55  conclusion, recommending that an administrative penalty be imposed
   3-56  or a restitution order entered, or both, under this article,  and
   3-57  recommending the amount of the proposed penalty or restitution.
   3-58        (f)  The Banking Commissioner shall give written notice of
   3-59  the report to the person charged with committing or causing the
   3-60  violation.  The notice must include a brief summary of the facts, a
   3-61  statement of the amount of the recommended penalty or restitution,
   3-62  or both, and a statement of the person's right to an informal
   3-63  review of the occurrence of the violation, the amount of the
   3-64  penalty or restitution, or both the occurrence and the amount.
   3-65        (g)  Not later than the 10th day after the date on which the
   3-66  person charged with committing or causing the violation receives
   3-67  the notice, the person may either give the Banking Commissioner
   3-68  written consent to the report, including the recommended amounts,
   3-69  or make a written request for an informal review by the Banking
   3-70  Commissioner.
    4-1        (h)  If the person charged with committing or causing the
    4-2  violation consents to the amounts recommended by the Banking
    4-3  Commissioner or fails to timely request an informal review, the
    4-4  Banking Commissioner shall assess the penalty or enter the
    4-5  restitution order, or both.  The Banking Commissioner shall give
    4-6  the person written notice of the Banking Commissioner's action.
    4-7  The person shall pay the required amounts not later than the 30th
    4-8  day after the date on which the person receives the notice.
    4-9        (i)  If the person charged with committing or causing a
   4-10  violation requests an informal review as provided by Subsection (g)
   4-11  of this article, the Banking Commissioner shall conduct the review.
   4-12  The Banking Commissioner shall give the person written notice of
   4-13  the results of the review.
   4-14        (j)  Not later than the 10th day after the date on which the
   4-15  person charged with committing or causing the violation receives
   4-16  the notice prescribed by Subsection (i) of this article, the person
   4-17  may make to the Banking Commissioner a written request for a
   4-18  hearing.  The hearing must be conducted in accordance with the
   4-19  Administrative Procedure and Texas Register Act (Article 6252-13a,
   4-20  Vernon's Texas Civil Statutes) and its subsequent amendments.
   4-21        (k)  If after informal review a person who has been ordered
   4-22  to pay a penalty or make restitution, or both, fails to request a
   4-23  formal hearing in a timely manner, the Banking Commissioner shall
   4-24  assess the penalty or enter a restitution order, or both.  The
   4-25  Banking Commissioner shall give the person written notice of the
   4-26  Banking Commissioner's action.  The person shall pay the required
   4-27  amounts not later than the 30th day after the date on which the
   4-28  person receives the notice.
   4-29        (l)  Except as provided by Subsection (m) of this article,
   4-30  not later than the 30th day after the date on which the Banking
   4-31  Commissioner issues a final decision after a hearing under
   4-32  Subsection (j) of this article, a person who has been ordered to
   4-33  pay a penalty or make restitution, or both, under this article
   4-34  shall pay the required amount in full.
   4-35        (m)  If the person seeks judicial review of either the fact
   4-36  of the occurrence of a violation or the amount ordered or of both
   4-37  the occurrence and the amount, the person shall send the required
   4-38  amount to the Banking Commissioner for placement in an escrow
   4-39  account or post with the Banking Commissioner a supersedeas bond in
   4-40  a form approved by the Banking Commissioner for the required
   4-41  amount.  The bond must be effective until all judicial review of
   4-42  the order or decision is final.
   4-43        (n)  Failure to forward the money to or to post the bond with
   4-44  the Banking Commissioner within the period provided by Subsection
   4-45  (l) or (m) of this article results in a waiver of all legal rights
   4-46  to judicial review.  If the person charged fails to forward the
   4-47  money or post the bond within the period provided by Subsection
   4-48  (h), (k), (l), or (m) of this article, the Banking Commissioner may
   4-49  forward the matter to the attorney general for enforcement of the
   4-50  penalty or restitution, or both, and interest as provided by law
   4-51  for legal judgments.  An action to enforce an order under this
   4-52  article must be initiated in a court of competent jurisdiction in
   4-53  Travis County or in the county in which the violation occurred.
   4-54        (o)  Judicial review of an order of the Banking Commissioner
   4-55  or review under this article assessing a penalty or ordering
   4-56  restitution, or both, is under the substantial evidence rule.  A
   4-57  suit may be initiated by filing a petition with a district court in
   4-58  Travis County, as provided by Section 19, Administrative Procedure
   4-59  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   4-60  Statutes).
   4-61        (p)  If a penalty or restitution amount is reduced or not
   4-62  assessed, the Banking Commissioner shall remit to the person the
   4-63  appropriate amount plus accrued interest if the penalty or
   4-64  restitution amount has been paid or shall execute a release of the
   4-65  bond if a supersedeas bond has been posted.  The accrued interest
   4-66  on amounts remitted by the Banking Commissioner under this
   4-67  subsection shall be paid at a rate equal to the rate provided by
   4-68  law for legal judgments and shall be paid for the period beginning
   4-69  on the date the amount is paid to the Banking Commissioner under
   4-70  this article and ending on the date the amount is remitted.
    5-1        (q)  In addition to the administrative penalty or restitution
    5-2  amount, the court may authorize the Banking Commissioner to recover
    5-3  from a person who pays an administrative penalty or restitution
    5-4  amount, or both, under this article reasonable expenses incurred in
    5-5  obtaining the ordered amount, including investigation costs,
    5-6  witness fees, and deposition expenses.
    5-7        (r)  A penalty collected under this article shall be
    5-8  deposited to the credit of the general revenue fund.  After an
    5-9  order of restitution becomes final and the restitution amount is
   5-10  paid to the Banking Commissioner, the Banking Commissioner shall
   5-11  transmit the amount to the party entitled to it.
   5-12        SECTION 3.  Subchapter C, Chapter 712, Health and Safety
   5-13  Code, is amended by adding Sections 712.049 and 712.050 to read as
   5-14  follows:
   5-15        Sec. 712.049.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
   5-16  (a)  The commissioner may assess an administrative penalty against
   5-17  a person who knowingly and wilfully violates or causes a violation
   5-18  of this chapter or a rule adopted under this chapter.  The
   5-19  commissioner may order a person who knowingly and wilfully violates
   5-20  or causes a violation of this chapter or a rule adopted under this
   5-21  chapter to make restitution to an identifiable person injured by
   5-22  the violation.
   5-23        (b)  The amount of the penalty may not exceed $25,000 for
   5-24  each day of violation and for each act of violation.
   5-25        (c)  In determining the amount of a penalty, the commissioner
   5-26  shall consider:
   5-27              (1)  the extent of actual or potential harm to a third
   5-28  party;
   5-29              (2)  the history of previous violations;
   5-30              (3)  the amount necessary to deter future violations;
   5-31              (4)  efforts to correct the violation;
   5-32              (5)  enforcement costs relating to the violation,
   5-33  including investigation costs, witness fees, and deposition
   5-34  expenses; and
   5-35              (6)  any other matters that justice may require.
   5-36        (d)  In determining the amount of restitution, the
   5-37  commissioner shall consider:
   5-38              (1)  the extent of actual harm to the third party in
   5-39  whose favor restitution is ordered; and
   5-40              (2)  any other matters that justice may require.
   5-41        (e)  If after an examination of the facts the commissioner
   5-42  concludes that the person did commit or cause a violation, the
   5-43  commissioner may issue a preliminary report stating the facts on
   5-44  which the commissioner based that conclusion, recommending that an
   5-45  administrative penalty be imposed or a restitution order entered,
   5-46  or both, under this section, and recommending the amount of the
   5-47  proposed penalty or restitution.
   5-48        (f)  The commissioner shall give written notice of the report
   5-49  to the person charged with committing or causing the violation.
   5-50  The notice must include a brief summary of the facts, a statement
   5-51  of the amount of the recommended penalty or restitution, or both,
   5-52  and a statement of the person's right to an informal review of the
   5-53  occurrence of the violation, the amount of the penalty or
   5-54  restitution, or both the occurrence and the amount.
   5-55        (g)  Not later than the 10th day after the date on which the
   5-56  person charged with committing or causing the violation receives
   5-57  the notice, the person may either give the commissioner written
   5-58  consent to the report, including the recommended amounts, or make a
   5-59  written request for an informal review by the commissioner.
   5-60        (h)  If the person charged with committing or causing the
   5-61  violation consents to the amounts recommended by the commissioner
   5-62  or fails to timely request an informal review, the commissioner
   5-63  shall assess the penalty or enter a restitution order, or both.
   5-64  The commissioner shall give the person written notice of the
   5-65  commissioner's  action.  The person shall pay the required amounts
   5-66  not later than the 30th day after the date on which the person
   5-67  receives the notice.
   5-68        (i)  If the person charged with committing or causing a
   5-69  violation requests an informal review as provided by Subsection
   5-70  (g), the commissioner shall conduct the review.  The commissioner
    6-1  shall give the person written notice of the results of the review.
    6-2        (j)  Not later than the 10th day after the date on which the
    6-3  person charged with committing or causing the violation receives
    6-4  the notice prescribed by Subsection (i), the person may make to the
    6-5  commissioner a written request for a hearing.  The hearing must be
    6-6  conducted in accordance with the Administrative Procedure and Texas
    6-7  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
    6-8        (k)  If after informal review a person who has been ordered
    6-9  to pay a penalty or make restitution, or both, fails to request a
   6-10  formal hearing in a timely manner, the commissioner shall assess
   6-11  the penalty or enter a restitution order, or both.  The
   6-12  commissioner shall give the person written notice of the
   6-13  commissioner's action.  The person shall pay the required amounts
   6-14  not later than the 30th day after the date on which the person
   6-15  receives the notice.
   6-16        (l)  Except as provided by Subsection (m), not later than the
   6-17  30th day after the date on which the commissioner issues a final
   6-18  decision after a hearing under Subsection (j), a person who has
   6-19  been ordered to pay a penalty or make restitution, or both, under
   6-20  this section shall pay the required amounts in full.
   6-21        (m)  If the person seeks judicial review of either the fact
   6-22  of the occurrence of a violation or the amount ordered or of both
   6-23  the occurrence and the amount, the person shall send the required
   6-24  amount to the commissioner for placement in an escrow account or
   6-25  post with the commissioner a supersedeas bond in a form approved by
   6-26  the commissioner for the required amount.  The bond must be
   6-27  effective until all judicial review of the order or decision is
   6-28  final.
   6-29        (n)  Failure to forward the money to or to post the bond with
   6-30  the commissioner within the period provided by Subsection (l) or
   6-31  (m) results in a waiver of all legal rights to judicial review.  If
   6-32  the person charged fails to forward the money or post the bond
   6-33  within the period provided by Subsection (h), (k), (l), or (m), the
   6-34  commissioner may forward the matter to the attorney general for
   6-35  enforcement of the penalty or restitution, or both, and interest as
   6-36  provided by law for legal judgments.  An action to enforce an order
   6-37  under this section must be initiated in a court of competent
   6-38  jurisdiction in Travis County or in the county in which the
   6-39  violation occurred.
   6-40        (o)  Judicial review of an order of the commissioner or
   6-41  review under this section assessing a penalty or ordering
   6-42  restitution, or both, is under the substantial  evidence rule.  A
   6-43  suit may be initiated by filing a petition with a district court in
   6-44  Travis County, as provided by Section 19, Administrative Procedure
   6-45  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   6-46  Statutes).
   6-47        (p)  If a penalty or restitution amount is reduced or not
   6-48  assessed, the commissioner shall remit to the person the
   6-49  appropriate amount plus accrued interest if the penalty or
   6-50  restitution amount has been paid or shall execute a release of the
   6-51  bond if a supersedeas bond has been posted.  The accrued interest
   6-52  on amounts remitted by the commissioner under this subsection shall
   6-53  be paid at a rate equal to the rate provided by law for legal
   6-54  judgments and shall be paid for the period beginning on the date
   6-55  the amount is paid to the commissioner under this section and
   6-56  ending on the date the amount is remitted.
   6-57        (q)  In addition to the administrative penalty or restitution
   6-58  amount, the court may authorize the commissioner to recover from a
   6-59  person who pays an administrative penalty or restitution amount, or
   6-60  both, under this section reasonable expenses incurred in obtaining
   6-61  the ordered amount, including investigation costs, witness fees,
   6-62  and deposition expenses.
   6-63        (r)  A penalty collected under this section shall be
   6-64  deposited to the credit of the general revenue fund.  After an
   6-65  order of restitution becomes final and the restitution amount is
   6-66  paid to the commissioner, the commissioner shall transmit the
   6-67  amount to the party entitled to it.
   6-68        Sec. 712.050.  CEASE AND DESIST ORDERS.  (a)  The
   6-69  commissioner may send written notice of the commissioner's findings
   6-70  and meet with the directors of a cemetery corporation or its
    7-1  trustee to discuss the findings and demand a discontinuance of
    7-2  certain violations and practices if the commissioner determines
    7-3  that the cemetery corporation or trustee or a person acting on
    7-4  behalf of the cemetery corporation or trustee has:
    7-5              (1)  violated this chapter or a rule adopted under this
    7-6  chapter;
    7-7              (2)  committed a breach of trust or of a fiduciary
    7-8  duty;
    7-9              (3)  committed a fraudulent act or other practice in
   7-10  the conduct of the cemetery corporation's business that threatens
   7-11  the solvency of the cemetery corporation;
   7-12              (4)  refused to submit to an examination by the
   7-13  commissioner;
   7-14              (5)  conducted the cemetery corporation's business in
   7-15  an unsafe or unauthorized manner; or
   7-16              (6)  violated a condition of an agreement between the
   7-17  cemetery corporation or trustee and the commissioner.
   7-18        (b)  The notice required by Subsection (a) must be sent to
   7-19  the cemetery corporation or trustee and to the person acting on
   7-20  behalf of the cemetery corporation or trustee whose conduct
   7-21  constitutes the violation or practice.  The notice must contain a
   7-22  time for the meeting at the office of the commissioner concerning
   7-23  the findings.
   7-24        (c)  Not later than the 30th day after the date of the
   7-25  meeting, the commissioner may enter a cease and desist order or may
   7-26  order affirmative action to correct the violation or practice if
   7-27  the commissioner determines the order is necessary.  A copy of the
   7-28  order must be served on the cemetery corporation or trustee and on
   7-29  any other person named in the order.  An order takes effect on the
   7-30  date specified in the order, except that an order may not take
   7-31  effect before the 10th day after the date of its receipt by the
   7-32  cemetery corporation or trustee or other person named in the order
   7-33  unless the commissioner finds that immediate and irreparable harm
   7-34  is threatened to the purchasers or potential purchasers of plots in
   7-35  the cemetery or the general public.  The cemetery corporation or
   7-36  trustee shall certify to the commissioner in writing that each
   7-37  person named in the order and each member of the cemetery
   7-38  corporation's board of directors has read and understood the order.
   7-39        (d)  A cemetery corporation or trustee or other person named
   7-40  in the order may appeal the commissioner's order to the commission
   7-41  by filing a notice of appeal with the commission not later than the
   7-42  10th day after the date of receipt of notice of the order.
   7-43        (e)  On receipt of a timely notice of appeal, the commission
   7-44  shall set a time and place for hearing the appeal of the order and
   7-45  give reasonable notice of the hearing to the party filing the
   7-46  appeal.  Unless otherwise provided by this chapter, the hearing
   7-47  before the commission shall be conducted in accordance with the
   7-48  Administrative Procedure and Texas Register Act (Article 6252-13a,
   7-49  Vernon's Texas Civil Statutes).  If the commission finds that a
   7-50  party filing an appeal has committed one or more of the violations
   7-51  or practices charged by the commissioner and that the order is
   7-52  necessary, the commission shall affirm the order.  If the
   7-53  commission finds otherwise, the commission shall set aside the
   7-54  order.
   7-55        (f)  If a cemetery corporation or trustee or other person
   7-56  named in an order does not comply with a final and effective order
   7-57  entered under this section, the attorney general, if requested by
   7-58  the commissioner, may bring suit in a district court in Travis
   7-59  County against the cemetery corporation or trustee or other person
   7-60  to enjoin violation of the order.
   7-61        (g)  Nothing in this section diminishes the regulatory or
   7-62  enforcement powers of the commissioner or the commission under
   7-63  other provisions of this chapter or other applicable law.  The
   7-64  commissioner is not required to proceed under this section before
   7-65  taking regulatory action under any section of this subchapter or
   7-66  under any other applicable law.
   7-67        (h)  In this section, "commission" means The Finance
   7-68  Commission of Texas.
   7-69        SECTION 4.  Title 79, Revised Statutes (Article 5069-1.01 et
   7-70  seq., Vernon's Texas Civil Statutes), is amended by adding Article
    8-1  2.03A to read as follows:
    8-2        Art. 2.03A.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
    8-3  (a)  The Consumer Credit Commissioner may assess an administrative
    8-4  penalty against a person who knowingly and wilfully violates or
    8-5  causes a violation of this subtitle, Chapter 9 or 15 of this title,
    8-6  or a rule adopted under this subtitle or Chapter 9 or 15 of this
    8-7  title.  The commissioner may order a person who knowingly and
    8-8  wilfully violates or causes a violation of this subtitle, Chapter 9
    8-9  or 15 of this title, or a rule adopted under this subtitle or
   8-10  Chapter 9 or 15 of this title to make restitution to an
   8-11  identifiable person injured by the violation.
   8-12        (b)  The amount of the penalty may not exceed $1,000 for each
   8-13  day of violation and for each act of violation.  The aggregate
   8-14  amount of penalties that may be assessed against a person during
   8-15  one calendar year under this Article may not exceed $5,000 for each
   8-16  business location at which an element of a violation occurred and
   8-17  may not exceed $50,000 if the person committed violations at 11 or
   8-18  more business locations.
   8-19        (c)  In determining the amount of a penalty, the commissioner
   8-20  shall consider:
   8-21              (1)  the seriousness of the violation, including the
   8-22  nature, circumstances, extent, and gravity of the prohibited act;
   8-23              (2)  the extent of actual or potential harm to a third
   8-24  party;
   8-25              (3)  the history of violations during the preceding
   8-26  four years;
   8-27              (4)  the amount necessary to deter future violations;
   8-28              (5)  efforts to correct the violation; and
   8-29              (6)  any other matter that justice may require.
   8-30        (d)  If after an examination of the facts the commissioner
   8-31  concludes that the person did commit a violation, the commissioner
   8-32  may issue a preliminary report stating the facts on which the
   8-33  commissioner based that conclusion, recommending that an
   8-34  administrative penalty be imposed or a restitution order entered,
   8-35  or both, under this Article, and recommending the amount of the
   8-36  proposed penalty or restitution.
   8-37        (e)  The commissioner shall give written notice of the report
   8-38  to the person charged with committing the violation.  The notice
   8-39  must include a brief summary of the facts, a statement of the
   8-40  amount of the recommended penalty or restitution, or both, and a
   8-41  statement of the person's right to an informal review of the
   8-42  occurrence of the violation, the amount of the penalty or
   8-43  restitution, or both the occurrence and the amount.
   8-44        (f)  Not later than the 10th day after the date on which the
   8-45  person charged with committing the violation receives the notice,
   8-46  the person may either give the commissioner written consent to the
   8-47  report, including the recommended amounts, or make a written
   8-48  request for an informal review by the commissioner.
   8-49        (g)  If the person charged with committing the violation
   8-50  consents to the amounts recommended by the commissioner or fails to
   8-51  timely request an informal review, the commissioner shall assess
   8-52  the penalty or enter the restitution order, or both.  The
   8-53  commissioner shall give the person written notice of the
   8-54  commissioner's action.  The person shall pay the required amounts
   8-55  not later than the 30th day after the date on which the person
   8-56  receives the notice.
   8-57        (h)  If the person charged with committing a violation
   8-58  requests an informal review as provided by Subsection (f) of this
   8-59  Article, the commissioner shall conduct the review.  The
   8-60  commissioner shall give the person written notice of the results of
   8-61  the review.
   8-62        (i)  Not later than the 10th day after the date on which the
   8-63  person charged with committing the violation receives the notice
   8-64  prescribed by Subsection (h) of this Article, the person may make
   8-65  to the commissioner a written request for a hearing.  The hearing
   8-66  must be conducted in accordance with the Administrative Procedure
   8-67  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   8-68  Statutes).
   8-69        (j)  If after informal review a person who has been ordered
   8-70  to pay a penalty or make restitution, or both, fails to request a
    9-1  formal hearing in a timely manner, the commissioner shall assess
    9-2  the penalty or enter a restitution order, or both.  The
    9-3  commissioner shall give the person written notice of the
    9-4  commissioner's action.  The person shall pay the required amounts
    9-5  not later than the 30th day after the date on which the person
    9-6  receives the notice.
    9-7        (k)  Except as provided by Subsection (l) of this Article,
    9-8  not later than the 30th day after the date on which the
    9-9  commissioner issues a final decision after a hearing under
   9-10  Subsection (i) of this Article, a person who has been ordered to
   9-11  pay a penalty or make restitution, or both, under this Article
   9-12  shall pay the required amount in full.
   9-13        (l)  If the person seeks judicial review of either the fact
   9-14  of the occurrence of a violation or the amount ordered or of both
   9-15  the occurrence and the amount, the person shall send the required
   9-16  amount to the commissioner for placement in an escrow account or
   9-17  post with the commissioner a supersedeas bond in a form approved by
   9-18  the commissioner for the required amount.  The bond must be
   9-19  effective until all judicial review of the order or decision is
   9-20  final.
   9-21        (m)  Failure to forward the money to or to post the bond with
   9-22  the commissioner within the period provided by Subsection (k) or
   9-23  (l) of this Article results in a waiver of all legal rights to
   9-24  judicial review.  If the person charged fails to forward the money
   9-25  or post the bond within the period provided by Subsection (g), (j),
   9-26  (k), or (l) of this Article, the commissioner may forward the
   9-27  matter to the attorney general for enforcement of the penalty or
   9-28  restitution, or both, and interest as provided by law for legal
   9-29  judgments.  An action to enforce an order under this Article must
   9-30  be initiated in a court of competent jurisdiction in Travis County
   9-31  or in the county in which the violation occurred.
   9-32        (n)  Judicial review of an order of the commissioner or
   9-33  review under this Article assessing a penalty or ordering
   9-34  restitution, or both, is under the substantial evidence rule.  Suit
   9-35  may be initiated by filing a petition with a district court in
   9-36  Travis County, as provided by Section 19, Administrative Procedure
   9-37  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   9-38  Statutes).
   9-39        (o)  If a penalty amount is reduced or not assessed, the
   9-40  commissioner shall remit to the person the appropriate amount plus
   9-41  accrued interest if the penalty or restitution amount has been paid
   9-42  or shall execute a release of the bond if a supersedeas bond has
   9-43  been posted.  The accrued interest on amounts remitted by the
   9-44  commissioner under this subsection shall be paid at a rate equal to
   9-45  the rate provided by law for legal judgments and shall be paid for
   9-46  the period beginning on the date the amount is paid to the
   9-47  commissioner under this Article and ending on the date the amount
   9-48  is remitted.
   9-49        (p)  In addition to the administrative penalty or restitution
   9-50  amount, the court may authorize the commissioner to recover from a
   9-51  person who pays an administrative penalty or restitution amount, or
   9-52  both, under this Article reasonable expenses incurred in obtaining
   9-53  the ordered amount, including investigation costs, witness fees,
   9-54  and deposition expenses.
   9-55        (q)  A penalty collected under this Article shall be
   9-56  deposited to the credit of the general revenue fund.
   9-57        (r)  An administrative penalty or restitution order
   9-58  authorized by this Article is in addition to any other enforcement
   9-59  authority provided by law.
   9-60        SECTION 5.  Section 3, The Securities Act (Article 581-3,
   9-61  Vernon's Texas Civil Statutes), is amended to read as follows:
   9-62        Sec. 3.  ADMINISTRATION AND ENFORCEMENT BY THE SECURITIES
   9-63  COMMISSIONER AND THE ATTORNEY GENERAL AND LOCAL LAW ENFORCEMENT
   9-64  OFFICIALS.  A.  The administration of the provisions of this Act
   9-65  shall be vested in the Securities Commissioner.  It shall be the
   9-66  duty of the Securities Commissioner and the Attorney General to see
   9-67  that its provisions are at all times obeyed and to take such
   9-68  measures and to make such investigations as will prevent or detect
   9-69  the violation of any provision thereof.  The Commissioner shall at
   9-70  once lay before the District or County Attorney of the proper
   10-1  county any evidence which shall come to his knowledge of
   10-2  criminality under this Act.  In the event of the neglect or refusal
   10-3  of such attorney to institute and prosecute such violation, the
   10-4  Commissioner shall submit such evidence to the Attorney General,
   10-5  who is hereby authorized to proceed therein with all the rights,
   10-6  privileges and powers conferred by law upon district or county
   10-7  attorneys, including the power to appear before grand juries and to
   10-8  interrogate witnesses before such grand juries.
   10-9        B.  The remedies provided by this Act are not exclusive, and
  10-10  the Securities Commissioner may seek and enforce as many of the
  10-11  remedies as the Commissioner considers necessary.
  10-12        SECTION 6.  Subsection A, Section 14, The Securities Act
  10-13  (Article 581-14, Vernon's Texas Civil Statutes), is amended to read
  10-14  as follows:
  10-15        A.  The Commissioner may deny, revoke, or suspend a
  10-16  registration, place on probation a dealer, agent, or salesman whose
  10-17  registration has been suspended, or reprimand a person registered
  10-18  under this Act if the person:
  10-19              (1)  has been convicted of a felony, or of any
  10-20  misdemeanor of which fraud is an essential element;
  10-21              (2)  has engaged in any inequitable practice in the
  10-22  sale of securities or in any fraudulent business practice;
  10-23              (3)  in the case of a dealer, is insolvent;
  10-24              (4)  in the case of a dealer, is selling or has sold
  10-25  securities in this state through a salesman other than a registered
  10-26  salesman, or, in the case of a salesman, is selling or has sold
  10-27  securities in this state for a dealer, issuer or controlling person
  10-28  with knowledge that such dealer, issuer or controlling person has
  10-29  not complied with the provisions of this Act;
  10-30              (5)  has violated any of the provisions of this Act or
  10-31  a rule of the Board;
  10-32              (6)  has made any material misrepresentation to the
  10-33  Commissioner or Board in connection with any information deemed
  10-34  necessary by the Commissioner or Board to determine a dealer's
  10-35  financial responsibility or a dealer's or salesman's business
  10-36  repute or qualifications, or has refused to furnish any such
  10-37  information requested by the Commissioner or Board; <or>
  10-38              (7)  has not complied with a condition imposed by the
  10-39  Commissioner under Section 13-D.  Provided, however, that this
  10-40  subdivision shall not apply to any person or company registered as
  10-41  a dealer or salesman on August 23, 1963; or
  10-42              (8)  has failed to pay an administrative penalty
  10-43  assessed under Section 35-3 of this Act.
  10-44        SECTION 7.  The Securities Act (Article 581-1 et seq.,
  10-45  Vernon's Texas Civil Statutes) is amended by adding Section 35-3 to
  10-46  read as follows:
  10-47        Sec. 35-3.  ADMINISTRATIVE PENALTIES.  A.  The commissioner
  10-48  may assess an administrative penalty against a person who knowingly
  10-49  and wilfully violates or causes a violation of this Act or a rule
  10-50  adopted under this Act.
  10-51        B.  The amount of the penalty may not exceed $10,000 for each
  10-52  day of violation and for each act of violation.
  10-53        C.  In determining the amount of a penalty, the commissioner
  10-54  shall consider:
  10-55              (1)  the extent of actual or potential harm to a third
  10-56  party;
  10-57              (2)  the history of previous violations;
  10-58              (3)  the amount necessary to deter future violations;
  10-59              (4)  efforts to correct the violation;
  10-60              (5)  enforcement costs relating to the violation,
  10-61  including investigation costs, witness fees, and deposition
  10-62  expenses; and
  10-63              (6)  any other matters that justice may require.
  10-64        D.  If after an examination of the facts the commissioner
  10-65  concludes that the person did commit a violation, the commissioner
  10-66  may issue a preliminary report stating the facts on which the
  10-67  commissioner based that conclusion, recommending that an
  10-68  administrative penalty be imposed under this section, and
  10-69  recommending the amount of the proposed penalty.
  10-70        E.  The commissioner shall give written notice of the report
   11-1  to the person charged with committing the violation.  The notice
   11-2  must include a brief summary of the facts, a statement of the
   11-3  amount of the recommended penalty, a statement  of the person's
   11-4  right to an informal review of the occurrence of the violation, the
   11-5  amount of the penalty, or both the occurrence and the amount.
   11-6        F.  Not later than the 10th day after the date on which the
   11-7  person charged with committing the violation receives the notice,
   11-8  the person may either give the commissioner written consent to the
   11-9  report, including the recommended amounts, or make a written
  11-10  request for an informal review by the commissioner.
  11-11        G.  If the person charged with committing the violation
  11-12  consents to the amounts recommended by the commissioner or fails to
  11-13  timely request an informal review, the commissioner shall assess
  11-14  the penalty.  The commissioner shall give the person written notice
  11-15  of the commissioner's action.  The person shall pay the required
  11-16  amounts not later than the 30th day after the date on which the
  11-17  person receives the notice.
  11-18        H.  If the person charged with committing a violation
  11-19  requests an informal review as provided by Subsection F of this
  11-20  section, the commissioner shall conduct the review.  The
  11-21  commissioner shall give the person written notice of the results of
  11-22  the review.
  11-23        I.  Not later than the 10th day after the date on which the
  11-24  person charged with committing the violation receives the notice
  11-25  prescribed by Subsection H of this section, the person may make to
  11-26  the commissioner a written request for a hearing.  The hearing must
  11-27  be conducted in accordance with the Administrative Procedure and
  11-28  Texas Register Act (Article 6252-13a, Vernon's Texas Civil
  11-29  Statutes).
  11-30        J.  If after informal review a person who has been ordered to
  11-31  pay a penalty fails to request a formal hearing in a timely manner,
  11-32  the commissioner shall assess the penalty.  The commissioner shall
  11-33  give the person written notice of the commissioner's action.  The
  11-34  person shall pay the required amounts not later than the 30th day
  11-35  after the date on which the person receives the notice.
  11-36        K.  Except as provided by Subsection L of this section, not
  11-37  later than the 30th day after the date on which the commissioner
  11-38  issues a final decision after a hearing under Subsection I of this
  11-39  section, a person who has been ordered to pay a penalty under this
  11-40  section shall pay the required amount in full.
  11-41        L.  If the person seeks judicial review of either the fact of
  11-42  the occurrence of a violation or the amount ordered or of both the
  11-43  occurrence and the amount, the person shall send the required
  11-44  amount of the penalty to the commissioner for placement in an
  11-45  escrow account or post with the commissioner a supersedeas bond in
  11-46  a form approved by the commissioner for the required amount.  The
  11-47  bond must be effective until all judicial review of the order or
  11-48  decision is final.
  11-49        M.  Failure to forward the money to or to post the bond with
  11-50  the commissioner within the period provided by Subsection K or L of
  11-51  this section results in a waiver of all legal rights to judicial
  11-52  review.  If the person charged fails to forward the money or post
  11-53  the bond within the period provided by Subsection G, J, K, or L of
  11-54  this section, the commissioner may forward the matter to the
  11-55  attorney general for enforcement of the penalty and interest as
  11-56  provided by law for legal judgments.  An action to enforce an order
  11-57  under this section must be initiated in a court of competent
  11-58  jurisdiction in Travis County or in the county in which the
  11-59  violation occurred.
  11-60        N.  Judicial review of an order of the commissioner or review
  11-61  under this section assessing a penalty is under the substantial
  11-62  evidence rule.  A suit may be initiated by filing a petition with a
  11-63  district court in Travis County, as provided by Section 19,
  11-64  Administrative Procedure and Texas Register Act (Article 6252-13a,
  11-65  Vernon's Texas Civil Statutes).
  11-66        O.  If a penalty amount is reduced or not assessed, the
  11-67  commissioner shall remit to the person the appropriate amount plus
  11-68  accrued interest if the penalty amount has been paid or shall
  11-69  execute a release of the bond if a supersedeas bond has been
  11-70  posted.  The accrued interest on amounts remitted by the
   12-1  commissioner under this subsection shall be paid at a rate equal to
   12-2  the rate provided by law for legal judgments and shall be paid for
   12-3  the period beginning on the date the amount is paid to the
   12-4  commissioner under this section and ending on the date the amount
   12-5  is remitted.
   12-6        P.  In addition to the administrative penalty, the court may
   12-7  authorize the commissioner to recover from a person who pays an
   12-8  administrative penalty under this section reasonable expenses
   12-9  incurred in obtaining the ordered amount, including investigation
  12-10  costs, witness fees, and deposition expenses.
  12-11        Q.  A penalty collected under this section shall be deposited
  12-12  to the credit of the general revenue fund.
  12-13        SECTION 8.  This Act takes effect September 1, 1993.
  12-14        SECTION 9.  The administrative penalties, restitution orders,
  12-15  and cease and desist orders provided by this Act apply only to
  12-16  violations committed on or after the effective date of this Act.
  12-17  For purposes of this section, a violation is committed on or after
  12-18  the effective date of this Act if each element of the violation
  12-19  occurs on or after that date.
  12-20        SECTION 10.  The importance of this legislation and the
  12-21  crowded condition of the calendars in both houses create an
  12-22  emergency and an imperative public necessity that the
  12-23  constitutional rule requiring bills to be read on three several
  12-24  days in each house be suspended, and this rule is hereby suspended.
  12-25                               * * * * *
  12-26                                                         Austin,
  12-27  Texas
  12-28                                                         February 24,
  12-29  1993
  12-30  Hon. Bob Bullock
  12-31  President of the Senate
  12-32  Sir:
  12-33  We, your Committee on State Affairs to which was referred S.B. No.
  12-34  77, have had the same under consideration, and I am instructed to
  12-35  report it back to the Senate with the recommendation that it do not
  12-36  pass, but that the Committee Substitute adopted in lieu thereof do
  12-37  pass and be printed.
  12-38                                                         Harris of
  12-39  Dallas, Chairman
  12-40                               * * * * *
  12-41                               WITNESSES
  12-42                                                  FOR   AGAINST  ON
  12-43  ___________________________________________________________________
  12-44  Name:  Betty Ressel                                            x
  12-45  Representing:  Comptrollers Office
  12-46  City:  Austin
  12-47  -------------------------------------------------------------------
  12-48  Name:  William Howard Kuntz                                    x
  12-49  Representing:  State Securities Board
  12-50  City:  Austin
  12-51  -------------------------------------------------------------------
  12-52  Name:  Ann Graham                                              x
  12-53  Representing:  Texas Banking Dept.
  12-54  City:  Austin
  12-55  -------------------------------------------------------------------
  12-56  Name:  Karen M. Neeley                                         x
  12-57  Representing:  Independent Bankers Assn of T
  12-58  City:  Austin
  12-59  -------------------------------------------------------------------