1-1  By:  Barrientos                                        S.B. No. 464
    1-2        (In the Senate - Filed February 24, 1993; February 25, 1993,
    1-3  read first time and referred to Committee on Economic Development;
    1-4  May 6, 1993, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 8, Nays 0; May 6, 1993,
    1-6  sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Parker             x                               
   1-10        Lucio                                         x    
   1-11        Ellis                                         x    
   1-12        Haley              x                               
   1-13        Harris of Dallas   x                               
   1-14        Harris of Tarrant  x                               
   1-15        Leedom             x                               
   1-16        Madla              x                               
   1-17        Rosson             x                               
   1-18        Shapiro                                       x    
   1-19        Wentworth          x                               
   1-20  COMMITTEE SUBSTITUTE FOR S.B. No. 464                   By:  Rosson
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to the regulation of credit unions.
   1-24        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-25        SECTION 1.  Subsections (c), (d), (e), (f), (g), (h), (j),
   1-26  (k), (l), and (m), Section 10.01, Texas Credit Union Act (Article
   1-27  2461-10.01, Vernon's Texas Civil Statutes), are amended to read as
   1-28  follows:
   1-29        (c)  After a suspension order has been served on the credit
   1-30  union, the commissioner shall take possession and control of the
   1-31  books, records, property, assets, and business of the credit union,
   1-32  and the credit union shall cease all operations, except those
   1-33  authorized by the commissioner and conducted under his supervision.
   1-34  Not later than 15 days after the date an order of suspension or
   1-35  conservation is served, the board of directors <shall file a
   1-36  written reply to the order, and> may file a written request in a
   1-37  district court in Travis County for a show cause hearing at which
   1-38  the commissioner must show cause that the commissioner or the
   1-39  conservator should not be ordered to return control of the credit
   1-40  union to its board of directors <to present to the commissioner a
   1-41  plan to continue operations under the control of the board of
   1-42  directors setting out proposed corrective actions>.  The board of
   1-43  directors may as an alternative request a hearing by the commission
   1-44  to review the commissioner's order of suspension or conservation.
   1-45  Such hearing shall be held in accordance with rules adopted by the
   1-46  commission.  A final order resulting from such a hearing may be
   1-47  appealed by the board of directors to the district court in Travis
   1-48  County.  The availability of this alternative shall not prejudice
   1-49  or affect the right of the board of directors to request a show
   1-50  cause hearing under this subsection.  If under an order of
   1-51  suspension, the board of directors may request that a conservator
   1-52  be appointed for the credit union or that the credit union be
   1-53  closed and a liquidating agent be appointed and waive rights to
   1-54  further appeal, in which event the commissioner may immediately
   1-55  appoint a conservator, or order that the credit union be liquidated
   1-56  and appoint a liquidating agent.  If under an order of
   1-57  conservation, the board of directors may consent to the
   1-58  conservatorship and waive rights to further appeals.
   1-59        (d)  If the board of directors <files its reply and> requests
   1-60  a show cause hearing as provided by Subsection (c), the district
   1-61  court <commissioner> shall set and hold the hearing not less than
   1-62  10 nor more than 30 days after the date of receipt of such a
   1-63  request. Before the show cause hearing <The commissioner shall
   1-64  promptly give notice to the credit union of the date, time, and
   1-65  place of the hearing.  Not later than 10 days after the earlier of
   1-66  the date of conclusion of the hearing or the date on which the
   1-67  suspension expires>, the commissioner may <shall> adopt a <the>
   1-68  plan to continue operations under the control of the board of
    2-1  directors presented by the credit union or<,> agree with the credit
    2-2  union on an alternative plan to continue operations under the
    2-3  control of the board of directors or other appropriate measures<,
    2-4  reject the plan to continue operations under the control of the
    2-5  board of directors and issue an order of conservation appointing a
    2-6  conservator, continue a previous order of conservation, or issue an
    2-7  order of liquidation ordering that the credit union be closed,
    2-8  ordering that its affairs and business be liquidated, and
    2-9  appointing a liquidating agent>.  If the board of directors and the
   2-10  commissioner reach an agreement under this subsection, the board of
   2-11  directors shall notify the court that the board waives its right to
   2-12  the show cause hearing.  If the board of directors and the
   2-13  commissioner do not reach an agreement under this subsection, the
   2-14  order of conservation or suspension shall remain in effect pending
   2-15  final adjudication of a show cause hearing.
   2-16        (e)  If the commissioner prevails at the show cause hearing,
   2-17  or at a hearing held by the commission, or a show cause hearing is
   2-18  waived under this section <rejects the credit union's plan to
   2-19  continue operations> and the commissioner determines that it is in
   2-20  the public interest and in the best interest of the members,
   2-21  depositors, and creditors of the credit union to rehabilitate the
   2-22  credit union, he may permit the credit union to operate under his
   2-23  direction and control, and shall continue or issue an order of
   2-24  conservation appointing a conservator to manage the affairs of the
   2-25  credit union.  The commissioner shall serve the order of
   2-26  conservation in the same manner as provided for service of an order
   2-27  of suspension.
   2-28        (f)  Subject to rules adopted by the commission and under the
   2-29  supervision of the commissioner, the conservator may take charge of
   2-30  the books, records, property, assets, and business of the credit
   2-31  union and conduct the business and affairs of the credit union;
   2-32  determine the existence of and the amount of any claims and allow
   2-33  proved claims of security, preference, or priority or disallow
   2-34  claims of security, preference, or priority not proved; repudiate
   2-35  any contract or unexpired lease the conservator considers
   2-36  burdensome to the credit union; sell or assign assets to himself;
   2-37  settle, compromise, or release claims in favor of or against the
   2-38  credit union; and do all other things that may be necessary in
   2-39  connection with the conservation.  The conservator shall take the
   2-40  steps toward the removal of the causes and conditions that have
   2-41  necessitated the order that the commissioner directs.  During the
   2-42  conservatorship, the conservator shall make the reports to the
   2-43  commissioner from time to time that the commissioner requires.  The
   2-44  conservator may take all necessary measures to preserve, protect,
   2-45  and recover the assets or property of the credit union, including
   2-46  claims or causes of action belonging to or that may be asserted by
   2-47  the credit union, may deal with that property in his own name as
   2-48  conservator, and may file, prosecute, or defend against a suit by
   2-49  or against the credit union if the conservator considers this
   2-50  action necessary to protect the interested parties or property
   2-51  affected by the suit.  The commissioner shall document and retain
   2-52  information on the qualifications, recommendations, and fees of a
   2-53  conservator and on insurance held by the conservator for the
   2-54  benefit of the credit union.
   2-55        (g)  The commissioner shall determine what costs are <the
   2-56  cost> incident to the conservatorship.  Those costs are charges
   2-57  <This cost is a charge> against the assets and funds of the credit
   2-58  union to be allowed and paid as the commissioner in writing
   2-59  directs.  The commissioner shall retain detailed documentation of
   2-60  all costs paid under this subsection.
   2-61        (h)  Except as provided by this section, no <No> court may
   2-62  restrain or affect the exercise of the powers or functions of the
   2-63  conservator of a credit union, and no court has jurisdiction over
   2-64  claims against the conservator or the credit union<, until all
   2-65  administrative remedies have been exhausted>.  A suit filed against
   2-66  a credit union or its conservator while a conservatorship order is
   2-67  in effect must be brought in a court of competent jurisdiction in
   2-68  Travis County.  The conservator may file suit in a court of
   2-69  competent jurisdiction in Travis County against any person for the
   2-70  purpose of preserving, protecting, or recovering assets or property
    3-1  of the credit union, including a claim or cause of action belonging
    3-2  to or that may be asserted by the credit union.
    3-3        (j)  If, after final adjudication of a show cause hearing,
    3-4  waiver of the hearing, or final order of the commission, the
    3-5  commissioner makes written findings <determines> that the credit
    3-6  union in conservatorship is not in a condition to continue business
    3-7  and cannot be rehabilitated as provided by this section, he may
    3-8  issue an order of liquidation appointing a liquidating agent.
    3-9        (k)  In a show cause hearing requested under this section,
   3-10  the burden of proof is on the commissioner to show that the
   3-11  commissioner or conservator should not be ordered to return control
   3-12  of the credit union to its board of directors.  If the court
   3-13  decides in favor of the commissioner, the conservatorship or
   3-14  suspension remains in effect during any pending appeal by the board
   3-15  of directors.  If the court decides in favor of the credit union,
   3-16  control of the credit union shall be returned immediately to its
   3-17  board of directors, and control remains with the board during any
   3-18  pending appeal by the commissioner.  An order issued by a district
   3-19  court in a show cause hearing under this section is a final order
   3-20  for the purpose of appeal <If, after a hearing under this section,
   3-21  the board of directors of the credit union is dissatisfied with the
   3-22  decision of the commissioner, the board may appeal to the
   3-23  commission by filing with the commissioner a written appeal,
   3-24  including a duly certified resolution of the board, not later than
   3-25  10 days after the day that the commissioner's order is served.  If
   3-26  an appeal is duly filed, the commissioner shall set a date for a
   3-27  hearing on the appeal not more than 30 days after the date on which
   3-28  the appeal is filed.  The commissioner shall promptly give notice
   3-29  of the date, time, and place of the hearing to the credit union and
   3-30  any other interested party.  The filing of an appeal does not
   3-31  suspend the effect of the order of conservation and this order
   3-32  remains in force pending final disposition of the appeal by the
   3-33  commission.  At the conclusion of the hearing, the commission may
   3-34  reverse the order of the commissioner and adopt and approve the
   3-35  credit union's plan to continue operations, affirm the
   3-36  commissioner's order of conservation, or order that other
   3-37  appropriate action be taken>.
   3-38        (l)  If the board of directors of the credit union does not
   3-39  request a show cause hearing after an <file a reply to the> order
   3-40  of suspension or an order of conservation as required by this
   3-41  section or fails to request and appear at the hearing provided for
   3-42  by this section, the <commissioner may dispose of the matter as he
   3-43  considers appropriate.  The> credit union is presumed to have
   3-44  consented to this action and may not contest it.
   3-45        (m)  The period of suspension and the date and time of a
   3-46  hearing <the hearings> provided for by this section may be extended
   3-47  by written agreement of the parties and the commissioner.
   3-48        SECTION 2.  Section 10.05, Texas Credit Union Act (Article
   3-49  2461-10.05, Vernon's Texas Civil Statutes), is amended to read as
   3-50  follows:
   3-51        Sec. 10.05.  APPOINTMENT OF CONSERVATOR, <OR> LIQUIDATING
   3-52  AGENT, OR LEGAL COUNSEL. The commission shall adopt rules on the
   3-53  selection of a conservator, liquidating agent, or legal counsel for
   3-54  a credit union in conservatorship or liquidation.  The rules must
   3-55  include minimum experience and demonstrated ability requirements
   3-56  for the person appointed.  The commissioner may appoint any person
   3-57  or entity, including the share and deposit guaranty corporation or
   3-58  credit union provided for by Subsection (e) of Section 11.10 of
   3-59  this Act, that meets the requirements imposed by rule to be a
   3-60  conservator or a liquidating agent under this chapter.  The
   3-61  commissioner shall attempt to make the appointment in a manner that
   3-62  imposes a reasonable financial burden on the credit union in
   3-63  conservatorship or liquidation, taking into consideration the size
   3-64  of the credit union and other relevant factors.
   3-65        SECTION 3.  Subsection (c), Section 11.01, Texas Credit Union
   3-66  Act (Article 2461-11.01, Vernon's Texas Civil Statutes), is amended
   3-67  to read as follows:
   3-68        (c)  The Credit Union Commission is subject to Chapter 325,
   3-69  Government Code (Texas Sunset Act).  Unless continued in existence
   3-70  as provided by that chapter, the commission is abolished and this
    4-1  Act expires September 1, 1995 <1997>.
    4-2        SECTION 4.  Subsections (a) and (d), Section 11.02, Texas
    4-3  Credit Union Act (Article 2461-11.02, Vernon's Texas Civil
    4-4  Statutes), are amended to read as follows:
    4-5        (a)  Six members of the commission must be individuals who
    4-6  are currently engaged in the exercise of the duties,
    4-7  responsibilities, rights, and powers of a duly authorized director,
    4-8  officer, or committee member of a credit union that is organized
    4-9  and doing business in this state under this Act or the Federal
   4-10  Credit Union Act and that has its principal office in this state,
   4-11  and who have five years or more of active experience as such a
   4-12  director, officer, or committee member.  No more than one person
   4-13  from a federal credit union may serve on the commission at any
   4-14  time.  Experience as an <a commissioner, deputy commissioner, or>
   4-15  examiner is equivalent to the type of experience required by this
   4-16  subsection.  If a person holding a position in accordance with this
   4-17  subsection ceases to be engaged in the exercise of the duties,
   4-18  responsibilities, rights, and powers prescribed by this subsection
   4-19  for a period exceeding 90 days, the person is ineligible to serve
   4-20  as a member and the person's position on the commission is vacant.
   4-21        (d)  A person currently serving as an officer or board member
   4-22  <chairman, first vice-chairman, president, vice-president,
   4-23  secretary, or treasurer> of a state trade association in the credit
   4-24  union industry that employs paid staff, or an employee or paid
   4-25  consultant of such an organization, may not serve as a member of
   4-26  the commission.
   4-27        SECTION 5.  Section 11.07, Texas Credit Union Act (Article
   4-28  2461-11.07, Vernon's Texas Civil Statutes), is amended by adding
   4-29  Subsection (d) to read as follows:
   4-30        (d)  On request of any person in attendance at a meeting to
   4-31  discuss proposed rules, the commission must supply the person with
   4-32  a written copy of the text of the proposed rule.
   4-33        SECTION 6.  Subsections (b) and (c), Section 11.08, Texas
   4-34  Credit Union Act (Article 2461-11.08, Vernon's Texas Civil
   4-35  Statutes), are amended to read as follows:
   4-36        (b)  The commissioner must have three <at least 5> years'
   4-37  practical experience in the operation of credit unions <within the
   4-38  10 years immediately preceding his appointment>.  The experience
   4-39  may consist of experience in the exercise of the duties,
   4-40  responsibilities, rights, and powers of a duly authorized director,
   4-41  officer, or committee member of a credit union or in the employment
   4-42  of a credit union regulatory agency.
   4-43        (c)  The commissioner may not be:
   4-44              (1)  compensated for serving as an  <a salaried>
   4-45  officer, board member, <salaried> employee, or <salaried>
   4-46  consultant of a trade association in the credit union industry; or
   4-47              (2)  related within the second degree by affinity or
   4-48  consanguinity, as determined under Article 5996h, Revised Statutes,
   4-49  to a person who is a salaried officer, salaried employee, or paid
   4-50  <salaried> consultant of a trade association in the credit union
   4-51  industry.
   4-52        SECTION 7.  (a)  Subsection (i), Section 5.09, Texas Credit
   4-53  Union Act (Article 2461-5.09, Vernon's Texas Civil Statutes), is
   4-54  amended to read as follows:
   4-55        (i)  An order to cease and desist, an order for removal from
   4-56  office, and each copy of a notice, correspondence, or other record
   4-57  relating to an order concerning violations or unsound practices are
   4-58  confidential and may not be revealed to the public except in a
   4-59  lawsuit authorized by this Act or by other lawful order or
   4-60  authority.  However, the commissioner may disclose this information
   4-61  to a share and deposit guaranty corporation or credit union, or a
   4-62  department, agency, or instrumentality of this state or the United
   4-63  States if he determines the disclosure to be necessary or proper
   4-64  for the enforcement of the laws of this state or the United States.
   4-65  The commissioner may also disclose this information to a member if:
   4-66              (1)  the member requests the information in writing
   4-67  fully describing the information sought and the reason for the
   4-68  request;
   4-69              (2)  the commissioner determines that the requested
   4-70  disclosure will not result in harm to the safety and soundness or
    5-1  reputation of the credit union or impair or endanger the rights of
    5-2  any individual; and
    5-3              (3)  if requested by the commissioner, the member
    5-4  agrees not to reveal the information to the public.
    5-5        (b)  Subsection (o), Section 10.01, Texas Credit Union Act
    5-6  (Article 2461-10.01, Vernon's Texas Civil Statutes), is repealed.
    5-7        SECTION 8.  The amendment of Subsection (d), Section 11.02,
    5-8  Texas Credit Union Act (Article 2461-11.02, Vernon's Texas Civil
    5-9  Statutes), shall not apply to any member of the commission who, on
   5-10  the effective date of this Act, has previously been appointed by
   5-11  the governor, with the advice and consent of the senate, and whose
   5-12  term of office has not expired.
   5-13        SECTION 9.  The importance of this legislation and the
   5-14  crowded condition of the calendars in both houses create an
   5-15  emergency and an imperative public necessity that the
   5-16  constitutional rule requiring bills to be read on three several
   5-17  days in each house be suspended, and this rule is hereby suspended,
   5-18  and that this Act take effect and be in force from and after its
   5-19  passage, and it is so enacted.
   5-20                               * * * * *
   5-21                                                         Austin,
   5-22  Texas
   5-23                                                         May 6, 1993
   5-24  Hon. Bob Bullock
   5-25  President of the Senate
   5-26  Sir:
   5-27  We, your Committee on Economic Development to which was referred
   5-28  S.B. No. 464, have had the same under consideration, and I am
   5-29  instructed to report it back to the Senate with the recommendation
   5-30  that it do not pass, but that the Committee Substitute adopted in
   5-31  lieu thereof do pass and be printed.
   5-32                                                         Parker,
   5-33  Chairman
   5-34                               * * * * *
   5-35                               WITNESSES
   5-36                                                  FOR   AGAINST  ON
   5-37  ___________________________________________________________________
   5-38  Name:  John Hale                                               x
   5-39  Representing:  Texas Credit Union Dept.
   5-40  City:  Round Rock
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   5-42  Name:  Karen Brenner                             x
   5-43  Representing:  Self
   5-44  City:  Austin
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   5-46  Name:  Jeff Huffman                                      x
   5-47  Representing:  Texas Credit Union League
   5-48  City:  Dallas
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   5-50  Name:  John Lederer                                      x
   5-51  Representing:  Texas Credit Union League
   5-52  City:  Dallas
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