By:  Barrientos                                        S.B. No. 464
       73R4303 LJD-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of credit unions.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Sections 10.01(c), (d), (e), (f), (g), (h), (j),
    1-5  (k), (l), (m), and (o), Texas Credit Union Act (Article 2461-10.01,
    1-6  Vernon's Texas Civil Statutes), are amended to read as follows:
    1-7        (c)  After a suspension order has been served on the credit
    1-8  union, the commissioner shall take possession and control of the
    1-9  books, records, property, assets, and business of the credit union,
   1-10  and the credit union shall cease all operations, except those
   1-11  authorized by the commissioner and conducted under his supervision.
   1-12  Not later than 15 days after the date an order of suspension or
   1-13  conservation is served, the board of directors <shall file a
   1-14  written reply to the order, and> may file a written request in a
   1-15  district court in Travis County for a show cause hearing at which
   1-16  the commissioner must show cause that the commissioner or the
   1-17  conservator should not be ordered to return control of the credit
   1-18  union to its board of directors <to present to the commissioner a
   1-19  plan to continue operations under the control of the board of
   1-20  directors setting out proposed corrective actions>.  If under an
   1-21  order of suspension, the board of directors may request that a
   1-22  conservator be appointed for the credit union or that the credit
   1-23  union be closed and a liquidating agent be appointed and waive
   1-24  rights to further appeal, in which event the commissioner may
    2-1  immediately appoint a conservator, or order that the credit union
    2-2  be liquidated and appoint a liquidating agent.  If under an order
    2-3  of conservation, the board of directors may consent to the
    2-4  conservatorship and waive rights to further appeals.
    2-5        (d)  If the board of directors <files its reply and> requests
    2-6  a show cause hearing as provided by Subsection (c), the district
    2-7  court <commissioner> shall set and hold the hearing not less than
    2-8  10 nor more than 30 days after the date of receipt of such a
    2-9  request.   The commissioner shall promptly give notice to the
   2-10  credit union of the date, time, and place of the hearing.  Before
   2-11  the show cause hearing <Not later than 10 days after the earlier of
   2-12  the date of conclusion of the hearing or the date on which the
   2-13  suspension expires>, the commissioner may <shall> adopt a <the>
   2-14  plan to continue operations under the control of the board of
   2-15  directors presented by the credit union or<,> agree with the credit
   2-16  union on an alternative plan to continue operations under the
   2-17  control of the board of directors or other appropriate measures<,
   2-18  reject the plan to continue operations under the control of the
   2-19  board of directors and issue an order of conservation appointing a
   2-20  conservator, continue a previous order of conservation, or issue an
   2-21  order of liquidation ordering that the credit union be closed,
   2-22  ordering that its affairs and business be liquidated, and
   2-23  appointing a liquidating agent>.  If the board of directors and the
   2-24  commissioner reach an agreement under this subsection, the board of
   2-25  directors shall notify the court that the board waives its right to
   2-26  the show cause hearing.
   2-27        (e)  If the commissioner prevails at the show cause hearing
    3-1  or a show cause hearing is waived under this section <rejects the
    3-2  credit union's plan to continue operations> and the commissioner
    3-3  determines that it is in the public interest and in the best
    3-4  interest of the members, depositors, and creditors of the credit
    3-5  union to rehabilitate the credit union, he may permit the credit
    3-6  union to operate under his direction and control, and shall
    3-7  continue or issue an order of conservation appointing a conservator
    3-8  to manage the affairs of the credit union.  The commissioner shall
    3-9  serve the order of conservation in the same manner as provided for
   3-10  service of an order of suspension.
   3-11        (f)  Subject to rules adopted by the commission and under the
   3-12  supervision of the commissioner, the conservator may take charge of
   3-13  the books, records, property, assets, and business of the credit
   3-14  union and conduct the business and affairs of the credit union;
   3-15  determine the existence of and the amount of any claims and allow
   3-16  proved claims of security, preference, or priority or disallow
   3-17  claims of security, preference, or priority not proved; repudiate
   3-18  any contract or unexpired lease the conservator considers
   3-19  burdensome to the credit union; sell or assign assets to himself;
   3-20  settle, compromise, or release claims in favor of or against the
   3-21  credit union; and do all other things that may be necessary in
   3-22  connection with the conservation.  The conservator shall take the
   3-23  steps toward the removal of the causes and conditions that have
   3-24  necessitated the order that the commissioner directs.  During the
   3-25  conservatorship, the conservator shall make the reports to the
   3-26  commissioner from time to time that the commissioner requires.  The
   3-27  conservator may take all necessary measures to preserve, protect,
    4-1  and recover the assets or property of the credit union, including
    4-2  claims or causes of action belonging to or that may be asserted by
    4-3  the credit union, may deal with that property in his own name as
    4-4  conservator, and may file, prosecute, or defend against a suit by
    4-5  or against the credit union if the conservator considers this
    4-6  action necessary to protect the interested parties or property
    4-7  affected by the suit.  The commissioner shall document and retain
    4-8  information on the qualifications, recommendations, and fees of an
    4-9  independent conservator and on negligence, fidelity, or other
   4-10  professional insurance held by the conservator.
   4-11        (g)  The commissioner shall determine what costs are <the
   4-12  cost> incident to the conservatorship.  Those costs are charges
   4-13  <This cost is a charge> against the assets and funds of the credit
   4-14  union to be allowed and paid as the commissioner in writing
   4-15  directs.  The commissioner shall retain detailed documentation of
   4-16  all costs paid under this subsection.
   4-17        (h)  Except as provided by this section, no <No> court may
   4-18  restrain or affect the exercise of the powers or functions of the
   4-19  conservator of a credit union, and no court has jurisdiction over
   4-20  claims against the conservator or the credit union<, until all
   4-21  administrative remedies have been exhausted>.  A suit filed against
   4-22  a credit union or its conservator while a conservatorship order is
   4-23  in effect must be brought in a court of competent jurisdiction in
   4-24  Travis County.  The conservator may file suit in a court of
   4-25  competent jurisdiction in Travis County against any person for the
   4-26  purpose of preserving, protecting, or recovering assets or property
   4-27  of the credit union, including a claim or cause of action belonging
    5-1  to or that may be asserted by the credit union.
    5-2        (j)  If, after final adjudication of a show cause hearing or
    5-3  waiver of the hearing, the commissioner makes written findings
    5-4  <determines> that the credit union in conservatorship is not in a
    5-5  condition to continue business and cannot be rehabilitated as
    5-6  provided by this section, he may issue an order of liquidation
    5-7  appointing a liquidating agent.
    5-8        (k)  In a show cause hearing requested under this section,
    5-9  the burden of proof is on the commissioner to show by clear and
   5-10  convincing evidence that the commissioner or conservator should not
   5-11  be ordered to return control of the credit union to its board of
   5-12  directors.  If the court decides in favor of the commissioner, the
   5-13  conservatorship or suspension remains in effect during any pending
   5-14  appeal by the board of directors.  If the court decides in favor of
   5-15  the credit union, control of the credit union shall be returned
   5-16  immediately to its board of directors, and control remains with the
   5-17  board during any pending appeal by the commissioner.  An order
   5-18  issued by a district court in a show cause hearing under this
   5-19  section is a final order for the purpose of appeal <If, after a
   5-20  hearing under this section, the board of directors of the credit
   5-21  union is dissatisfied with the decision of the commissioner, the
   5-22  board may appeal to the commission by filing with the commissioner
   5-23  a written appeal, including a duly certified resolution of the
   5-24  board, not later than 10 days after the day that the commissioner's
   5-25  order is served.  If an appeal is duly filed, the commissioner
   5-26  shall set a date for a hearing on the appeal not more than 30 days
   5-27  after the date on which the appeal is filed.  The commissioner
    6-1  shall promptly give notice of the date, time, and place of the
    6-2  hearing to the credit union and any other interested party.  The
    6-3  filing of an appeal does not suspend the effect of the order of
    6-4  conservation and this order remains in force pending final
    6-5  disposition of the appeal by the commission.  At the conclusion of
    6-6  the hearing, the commission may reverse the order of the
    6-7  commissioner and adopt and approve the credit union's plan to
    6-8  continue operations, affirm the commissioner's order of
    6-9  conservation, or order that other appropriate action be taken>.
   6-10        (l)  If the board of directors of the credit union does not
   6-11  request a show cause hearing after an <file a reply to the> order
   6-12  of suspension or an order of conservation as required by this
   6-13  section or fails to request and appear at the hearing provided for
   6-14  by this section, the <commissioner may dispose of the matter as he
   6-15  considers appropriate.  The> credit union is presumed to have
   6-16  consented to this action and may not contest it.
   6-17        (m)  The period of suspension and the date and time of a
   6-18  hearing <the hearings> provided for by this section may be extended
   6-19  by written agreement of the parties and the commissioner.
   6-20        (o)  Orders of suspension, orders of conservation, and copies
   6-21  of all notices and correspondence relating to those orders are
   6-22  confidential and may not be publicized or revealed to the public by
   6-23  the department or its agents except in related legal proceedings,
   6-24  including a show cause hearing, or as otherwise authorized by law.
   6-25  This subsection does not restrict an affected credit union or its
   6-26  agents subject to an order from disclosing the action or the basis
   6-27  of the action.
    7-1        SECTION 2.  The change in law made by this Act applies only
    7-2  to an order of suspension or conservatorship made by the credit
    7-3  union commissioner on or after the effective date of this Act.  An
    7-4  order of suspension or conservatorship made by the credit union
    7-5  commissioner before the effective date of this Act is governed by
    7-6  the law in effect at the time of the order, and the prior law is
    7-7  continued in effect for this purpose.
    7-8        SECTION 3.  The importance of this legislation and the
    7-9  crowded condition of the calendars in both houses create an
   7-10  emergency and an imperative public necessity that the
   7-11  constitutional rule requiring bills to be read on three several
   7-12  days in each house be suspended, and this rule is hereby suspended,
   7-13  and that this Act take effect and be in force from and after its
   7-14  passage, and it is so enacted.