74R9971 E
          By Grusendorf                                         H.B. No. 1608
          Substitute the following for H.B. No. 1608:
          By Carona                                         C.S.H.B. No. 1608
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of the sale of checks.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 2, The Sale of Checks Act (Article 489d,
    1-5  Vernon's Texas Civil Statutes), is amended by amending Subsection
    1-6  (g) and adding Subsection (i) to read as follows:
    1-7        (g)  "Commissioner" means the Commissioner of the <State>
    1-8  Banking Department of Texas.
    1-9        (i)  "Commission" means The Finance Commission of Texas.
   1-10        SECTION 2.  Section 4, The Sale of Checks Act (Article 489d,
   1-11  Vernon's Texas Civil Statutes), is amended to read as follows:
   1-12        Sec. 4.  Exemption from Licensing.  (a)  No license to sell
   1-13  checks as aforesaid shall be required hereunder of any of the
   1-14  following:
   1-15              (1) <(a)>  Banks, credit unions, building and loan
   1-16  associations, <and> savings and loan associations, and savings
   1-17  banks whether organized under the laws of this state, another
   1-18  state, or <of> the United States; provided, however, that they do
   1-19  not issue or sell checks, other than traveler's checks, off
   1-20  premises and that they do not issue or sell checks, other than
   1-21  traveler's checks, through agents who are not directly or
   1-22  indirectly owned by them unless the agent is a federally insured
   1-23  bank, credit union, savings and loan association, or savings bank;
   1-24              (2) <(b)  Incorporated telegraph companies insofar as
    2-1  they receive money at any of their respective offices or agencies
    2-2  for immediate transmission by telegraph;>
    2-3              <(c)>  Agents of a licensee, as provided in Section 11;
    2-4              (3)  Escrow or trust fund checks issued by a title
    2-5  company or attorney; or
    2-6              (4) <(d)>  The United States or any department or
    2-7  agency of the United States.
    2-8        (b)  The Commissioner by rule may exempt a person from this
    2-9  Act or reduce the requirements of Sections 7, 8, 9A, 9B, and 9C of
   2-10  this Act if:
   2-11              (1)  the sale of checks is ancillary to the person's
   2-12  business, is limited to commercial contracts in interstate
   2-13  commerce, and the person does not engage in the business of selling
   2-14  checks to the public; and
   2-15              (2)  the Commissioner determines that the exemption or
   2-16  reduced requirement is in the public interest.
   2-17        SECTION 3.  Section 5, The Sale of Checks Act (Article 489d,
   2-18  Vernon's Texas Civil Statutes), is amended to read as follows:
   2-19        Sec. 5.  Qualifications.  (a)  <To qualify for a license
   2-20  hereunder an applicant shall meet the following requirements:>
   2-21              <(a)  The applicant shall have a net worth of at least
   2-22  Five Hundred Thousand Dollars ($500,000), computed according to
   2-23  generally accepted accounting principles.>
   2-24              <(b)>  The financial responsibility, financial
   2-25  condition, and business experience, and character and general
   2-26  fitness of an <the> applicant for a license shall be such as
   2-27  reasonably to warrant the belief that issuance of a license is in
    3-1  the public interest <applicant's business will be conducted
    3-2  honestly, carefully and efficiently>.  To the extent deemed
    3-3  advisable by the Commissioner, the Commissioner may investigate and
    3-4  consider the qualifications of officers and directors of an
    3-5  applicant in determining whether this qualification has been met.
    3-6        (b)  To qualify for a license under this Act an applicant:
    3-7              (1)  must have a net worth of at least Five Hundred
    3-8  Thousand Dollars ($500,000), computed according to generally
    3-9  accepted accounting principles;
   3-10              (2)  must be in a financial condition that will enable
   3-11  the applicant to safely and soundly engage in the business of
   3-12  selling checks;
   3-13              (3)  may not have been convicted of a felony or a crime
   3-14  involving moral turpitude that is reasonably related to an
   3-15  applicant's fitness to hold a license under this Act, regardless of
   3-16  whether the punishment received was a suspended sentence,
   3-17  probation, or nonadjudicated conviction, if the applicant is an
   3-18  individual;
   3-19              (4)  must provide a truthful and complete response to
   3-20  requests for information contained in an application for a license;
   3-21              (5)  may not be indebted to the state for a fee or
   3-22  penalty imposed under this Act or a rule of the commission;
   3-23              (6)  must have good moral character and a reputation as
   3-24  a peaceable, law-abiding citizen in the community where the
   3-25  applicant resides, if the applicant is an individual; and
   3-26              (7)  may not be engaged in an activity or practice that
   3-27  the commissioner finds adversely affects the financial safety and
    4-1  soundness of the applicant.
    4-2        (c)  The commission may adopt rules relating to an
    4-3  application for a license.
    4-4        SECTION 4.  Section 7, The Sale of Checks Act (Article 489d,
    4-5  Vernon's Texas Civil Statutes), is amended to read as follows:
    4-6        Sec. 7.  Accompanying Fee, Statements and Bond.  Each
    4-7  application for a license shall be accompanied by:
    4-8        (a)  An investigation fee in an amount set by the
    4-9  Commissioner that is sufficient to administer this Act <of Five
   4-10  Hundred Dollars ($500)> which shall not be subject to refund but
   4-11  which, if the license be granted, shall constitute the license fee
   4-12  for the first license year or part thereof;
   4-13        (b)  Audited financial statements reasonably satisfactory to
   4-14  the Commissioner;
   4-15        (c)  A surety bond issued by a bonding company or insurance
   4-16  company authorized to do business in this state, in the principal
   4-17  sum of One Hundred Thousand Dollars ($100,000), and, except as
   4-18  provided by this subsection, an additional principal sum of Fifty
   4-19  Thousand Dollars ($50,000) for each location, in excess of one but
   4-20  for not more than the first nine locations, at which the applicant
   4-21  proposes to sell checks in this state.  The maximum amount of a
   4-22  surety bond required under this subsection is Five Hundred Thousand
   4-23  Dollars ($500,000), except the Commissioner, subject to Section 15
   4-24  of this Act, may require a licensee to provide an additional amount
   4-25  over the Five Hundred Thousand Dollars ($500,000) up to a total
   4-26  maximum amount of One Million Dollars ($1,000,000), based on the
   4-27  licensee's financial condition, considered in relation to the
    5-1  dollar volume of the licensee's outstanding checks.  Each<, but in
    5-2  no event shall the bond be required to be in excess of Five Hundred
    5-3  Thousand Dollars ($500,000).  If the bond accompanying the
    5-4  application be in a principal sum of less than Five Hundred
    5-5  Thousand Dollars ($500,000), the> application shall also be
    5-6  accompanied by a list of the locations at which the business is to
    5-7  be conducted.  The bond shall be in form satisfactory to the
    5-8  Commissioner and represents money held in trust for the benefit of
    5-9  check purchasers.  The bond shall run to the state for the benefit
   5-10  of any claimants against the applicant or his agents to secure the
   5-11  faithful performance of the obligations of the applicant and his
   5-12  agents with respect to the receipt, handling, transmission and
   5-13  payment of money in connection with the sale of checks.  The
   5-14  aggregate liability of the surety in no event shall exceed the
   5-15  principal sum of the bond.  If a licensee is in bankruptcy or
   5-16  receivership, claimants against the licensee or the licensee's
   5-17  agents may bring suit directly on the bond for an amount equal to
   5-18  the amount of an unpaid judgment against the licensee or may assert
   5-19  a claim against the bond.  The <Such claimants against the
   5-20  applicant or his agents may themselves bring suit directly on the
   5-21  bond, or the> Attorney General may bring suit in a district court
   5-22  in Travis County on <thereon in> behalf of such claimants, either
   5-23  in one action or successive actions; or
   5-24        (d)  In lieu of such corporate surety bond or bonds, or of
   5-25  any portion of the principal thereof as required by this Section,
   5-26  the applicant may deposit with the Commissioner, or with such banks
   5-27  or trust companies or national banks in this state as such
    6-1  applicant may designate and the Commissioner may approve, cash,
    6-2  certificates of deposit, interest-bearing stocks and bonds, notes,
    6-3  debentures or other obligations of the United States or any agency
    6-4  or instrumentality thereof, or guaranteed by the United States, or
    6-5  of this state, or of a city, county, town, village, school district
    6-6  or instrumentality of this state, or guaranteed by this state, or
    6-7  other similar security devices acceptable to the Commissioner,  to
    6-8  an aggregate amount, based upon principal amount or market value,
    6-9  whichever is lower, of not less than the amount of the required
   6-10  corporate surety bond or portion thereof.  A deposit made with the
   6-11  Commissioner under this subsection shall be held in trust for the
   6-12  benefit of check purchasers.  The deposit shall be <The securities
   6-13  shall be deposited as aforesaid and> held to secure the same
   6-14  obligations as would the surety bond, but the licensee <depositor>
   6-15  shall be entitled to receive all interest and dividends thereon,
   6-16  shall have the right, with the approval of the Commissioner, to
   6-17  substitute other securities for those deposited, and shall be
   6-18  required so to do on written order of the Commissioner made for
   6-19  good cause shown.
   6-20        SECTION 5.  Section 9, The Sale of Checks Act (Article 489d,
   6-21  Vernon's Texas Civil Statutes), is amended to read as follows:
   6-22        Sec. 9.  Obligations of Licensee.  Each person holding a
   6-23  license under this Act shall at all times when the license is in
   6-24  effect:
   6-25              (a)  Maintain the bond or securities in the amount
   6-26  prescribed by Section 7 and if<;>
   6-27              <(b)  If> the licensee does not have on file or deposit
    7-1  a bond or securities, as aforesaid, in the undiminished principal
    7-2  sum of at least Five Hundred Thousand Dollars ($500,000), file
    7-3  quarterly reports with the Commissioner setting forth the locations
    7-4  at which he sells checks in this state not later than the 45th day
    7-5  after the date of the last day of each quarter of the licensee's
    7-6  fiscal year <as of January 1, April 1, July 1, and October 1 in
    7-7  each year, the report for each such date being due on or before the
    7-8  15th day thereafter>;
    7-9                    (1)  Within ten (10) days following the filing of
   7-10  such a report, the principal sum of the bond or securities shall be
   7-11  increased to reflect any increase in the number of locations, and
   7-12  may be decreased to reflect any decrease in the number of
   7-13  locations;
   7-14                    (2)  If the Commissioner shall at any time
   7-15  reasonably determine that the bond or securities aforesaid are
   7-16  insecure, deficient in amount, or exhausted in whole or part, the
   7-17  Commissioner <he> may by written order require the filing of a new
   7-18  or supplemental bond or the deposit of new or additional securities
   7-19  in order to secure compliance with this Act, such order to be
   7-20  complied with within thirty (30) days following service thereof
   7-21  upon the licensee;
   7-22              (b) <(c)>  Maintain a net worth equal to or greater
   7-23  than the amount then currently prescribed by Section 5 for license
   7-24  applicants; and
   7-25              (c) <(d)>  Have on hand permissible investments in an
   7-26  amount equal to the aggregate face amount of all outstanding checks
   7-27  sold in the United States, except traveler's checks, for which the
    8-1  licensee is liable for payment; however, this subsection does not
    8-2  apply to any licensee with a net worth of not less than Five
    8-3  Million Dollars ($5 million) as shown by audited financial
    8-4  statements reasonably satisfactory to the Commissioner; statements
    8-5  filed under Section 9B of this Act may be used to satisfy this
    8-6  requirement.
    8-7        SECTION 6.  Section 9B(a), The Sale of Checks Act (Article
    8-8  489d, Vernon's Texas Civil Statutes), is amended to read as
    8-9  follows:
   8-10        (a)  Each year, on a quarterly basis not later than the 45th
   8-11  day after the date of the last day of each quarter of the
   8-12  licensee's fiscal year <May 15, August 15, November 15, and
   8-13  February 15>, each licensee shall file with the Commissioner an
   8-14  unconsolidated financial statement as of the last day of the
   8-15  preceding quarter, including balance sheet, and required reports
   8-16  regarding maintaining permissible investments pursuant to Section 9
   8-17  for the preceding <calendar> quarter submitted on forms furnished
   8-18  by the Commissioner.  In addition, each licensee is <Each year at
   8-19  least one of these unconsolidated financial statements must have
   8-20  been audited before filing.  Licensees who maintain a corporate
   8-21  surety bond or securities, as described by Section 7(c), in a
   8-22  principal sum of at least Five Hundred Thousand Dollars ($500,000)
   8-23  are> required<, however, only> to file an <the> annual audited
   8-24  unconsolidated financial statement not later than the 120th day
   8-25  after the date of the last day of the licensee's fiscal year.
   8-26        SECTION 7.  Section 9C, The Sale of Checks Act (Article 489d,
   8-27  Vernon's Texas Civil Statutes), is amended to read as follows:
    9-1        Sec. 9C.  Trust Imposed on Sales Proceeds.  Licensees and
    9-2  agents <Agents> of licensees shall hold in trust from the moment of
    9-3  receipt the proceeds of a sale or delivery of the licensee's
    9-4  checks.  An agent of a licensee may not commingle the proceeds with
    9-5  his own property or funds, except to use the funds in the ordinary
    9-6  course of its business for the purpose of making change, if the
    9-7  proceeds are accounted for at the end of each business day.  If any
    9-8  licensee or agent of a licensee commingles any proceeds received
    9-9  from the sale of checks <issued by the licensee> with any other
   9-10  funds or property owned or controlled by the licensee or agent, all
   9-11  commingled proceeds and other property shall be impressed with a
   9-12  trust.  In the case of a licensee, the trust is in favor of the
   9-13  holders of the checks.  In the case of an agent, the trust is in
   9-14  favor of the licensee.  The trust is in an amount equal to the
   9-15  amount of the proceeds <due the licensee> from the sale of checks
   9-16  less the amount of fees paid for <due the agent from> the sale of
   9-17  checks.  In the event that a licensee's license is revoked by the
   9-18  Commissioner pursuant to Section 14, all sales proceeds then held
   9-19  in trust by the licensee and its agents <of that licensee> shall be
   9-20  deemed to have been assigned to the Commissioner for the benefit of
   9-21  holders of the checks.
   9-22        SECTION 8.  The Sale of Checks Act (Article 489d, Vernon's
   9-23  Texas Civil Statutes) is amended by adding Sections 9D and 9E to
   9-24  read as follows:
   9-25        Sec. 9D.  MANDATORY REMITTANCE BY AGENT.  (a)  An agent of a
   9-26  licensee shall remit to the licensee all funds due from the sale of
   9-27  a check within:
   10-1              (1)  10 business days after the date of the sale,
   10-2  unless otherwise ordered by the Commissioner, or a shorter period
   10-3  as the licensee may require; or
   10-4              (2)  a period exceeding 10 business days after the date
   10-5  of the sale if the agent has previously deposited with, and during
   10-6  the period maintains on deposit with, an office of a federally
   10-7  insured bank, savings and loan association, or savings bank located
   10-8  in the United States in an account that is in the sole and
   10-9  exclusive name of the licensee an amount that, for each day by
  10-10  which the period exceeds 10 business days, is not less than the
  10-11  aggregate face amount of checks issued by the licensee that the
  10-12  agent usually sells daily.
  10-13        (b)  The phrase "business day" as used in this section shall
  10-14  not include Saturdays, Sundays, and legal public holidays (as
  10-15  designated in 5 U.S.C.  Section 6103).
  10-16        Sec. 9E.  ADMINISTRATION; RULES.  The Banking Department of
  10-17  Texas shall administer this Act.  The commission may adopt rules
  10-18  necessary for the enforcement and orderly administration of this
  10-19  Act.  A rule adopted under this section may not directly apply to
  10-20  an agent or sub-agent of a licensee.
  10-21        SECTION 9.  Section 13, The Sale of Checks Act (Article 489d,
  10-22  Vernon's Texas Civil Statutes), is amended to read as follows:
  10-23        Sec. 13.  DISCLOSURE OF RESPONSIBILITY.  Every check sold by
  10-24  a licensee, directly or through an agent, shall bear the name and
  10-25  mailing address or telephone number of the licensee clearly
  10-26  imprinted thereon or be accompanied by a written notice delivered
  10-27  to the purchaser at the time of sale containing that information.
   11-1        SECTION 10.  Section 15, The Sale of Checks Act (Article
   11-2  489d, Vernon's Texas Civil Statutes), is amended to read as
   11-3  follows:
   11-4        Sec. 15.  HEARINGS.  No license shall be denied or revoked
   11-5  except after a hearing thereon.  The Commissioner shall give the
   11-6  applicant or licensee at least twenty (20) days written notice of
   11-7  the time and place of such hearing by registered or certified mail
   11-8  addressed to the principal place of business of such applicant or
   11-9  licensee.  Any order of the Commissioner denying or revoking such
  11-10  license shall state the grounds upon which it is based and shall
  11-11  not be effective until twenty (20) days after written notice
  11-12  thereof has been sent by registered or certified mail to the
  11-13  applicant or licensee at such principal place of business, unless
  11-14  the Commissioner finds that an imminent peril to public health,
  11-15  safety, or welfare exists, in which event the Commissioner may make
  11-16  the order effective immediately.  A licensee may seek court review
  11-17  of the Commissioner's findings and order under Chapter 2001,
  11-18  Government Code.
  11-19        SECTION 11.  The Sale of Checks Act (Article 489d, Vernon's
  11-20  Texas Civil Statutes) is amended by adding Section 15A to read as
  11-21  follows:
  11-22        Sec. 15A.  CEASE AND DESIST ORDERS.  (a)  The Commissioner
  11-23  may issue an order to cease and desist from certain violations and
  11-24  practices if the Commissioner determines that a licensee or a
  11-25  person acting on behalf of the licensee has:
  11-26              (1)  violated this Act or a rule adopted under this Act
  11-27  or has violated any other law applicable to the sale of checks or a
   12-1  rule adopted under the other law;
   12-2              (2)  committed a breach of trust or of a fiduciary
   12-3  duty;
   12-4              (3)  committed a fraudulent act;
   12-5              (4)  refused to submit to an examination by the
   12-6  Commissioner;
   12-7              (5)  conducted the licensee's business in an unsafe or
   12-8  unauthorized manner; or
   12-9              (6)  violated a condition of the licensee's license or
  12-10  an agreement between the licensee and the Commissioner.
  12-11        (b)  A copy of the order must be served on the licensee and
  12-12  any other person named in the order.  An order takes effect on the
  12-13  date specified in the order but not before the 10th day after the
  12-14  date of its receipt by the licensee or other person named in the
  12-15  order unless the Commissioner finds that immediate and irreparable
  12-16  harm is threatened to the licensee, purchasers or potential
  12-17  purchasers of checks, or the general public.  The licensee shall
  12-18  certify to the Commissioner in writing that each person named in
  12-19  the order and, if the licensee is a corporation, each member of the
  12-20  licensee's board of directors has read and understood the order.
  12-21        (c)  A licensee or other person named in the order may appeal
  12-22  the Commissioner's order to the commission by filing a notice of
  12-23  appeal with the commission not later than the 10th day after the
  12-24  date of receipt of notice of the order.
  12-25        (d)  On receipt of a timely notice of appeal, the commission
  12-26  shall set a time and place for hearing the appeal of the order and
  12-27  give reasonable notice of the hearing to the party filing the
   13-1  appeal.  Unless otherwise provided by this Act, the hearing before
   13-2  the commission shall be conducted in accordance with Chapter 2001,
   13-3  Government Code.  If the commission finds that a party filing an
   13-4  appeal has committed one or more of the violations or practices
   13-5  charged by the Commissioner and that the order is necessary or in
   13-6  the best interests of purchasers of checks, the commission shall
   13-7  affirm the order.  If the commission finds otherwise, the
   13-8  commission shall set aside the order.  The licensee or other person
   13-9  named in the order may appeal the decision of the commission to a
  13-10  district court in Travis County in accordance with Chapter 2001,
  13-11  Government Code.
  13-12        (e)  If a licensee or other person named in an order does not
  13-13  comply with a final order, the Attorney General, if requested by
  13-14  the Commissioner, may bring suit in a district court in Travis
  13-15  County against the licensee or other person to enjoin violation of
  13-16  the order.
  13-17        (f)  Nothing in this section diminishes the regulatory or
  13-18  enforcement powers of the Commissioner or the commission under
  13-19  other provisions of this Act or other applicable law.  The
  13-20  Commissioner is not required to proceed under this section before
  13-21  taking regulatory action under Section 14 or 16 of this Act or
  13-22  under any other applicable law.
  13-23        SECTION 12.  Section 16(c), The Sale of Checks Act (Article
  13-24  489d, Vernon's Texas Civil Statutes), is amended to read as
  13-25  follows:
  13-26        (c)  If, after notice and a hearing, the Commissioner finds
  13-27  that a person has violated this Act, <or> a rule adopted under this
   14-1  Act, or an order of the Commissioner issued under this Act, the
   14-2  Commissioner may order the person to pay to the Commissioner a
   14-3  civil penalty in the amount that the Commissioner specifies, except
   14-4  that the amount of the civil penalty may not exceed One Thousand
   14-5  Dollars ($1,000) for each violation or, in the case of a continuing
   14-6  violation, One Thousand Dollars ($1,000) for each day that the
   14-7  violation continues.
   14-8        SECTION 13.  The Sale of Checks Act (Article 489d, Vernon's
   14-9  Texas Civil Statutes) is amended by adding Section 18 to read as
  14-10  follows:
  14-11        Sec. 18.  CONFIDENTIAL INFORMATION.  (a)  Except as provided
  14-12  by Subsection (b) of this section, information obtained by the
  14-13  Commissioner or the commission under this Act from a licensee or
  14-14  through an examination and a file or record of the Banking
  14-15  Department of Texas relating to that information is confidential
  14-16  and may not be disclosed if the information:
  14-17              (1)  relates to the financial condition of the
  14-18  licensee; or
  14-19              (2)  is proprietary information of the licensee, as
  14-20  determined by the Commissioner in the Commissioner's sole
  14-21  discretion.
  14-22        (b)  The Commissioner may release confidential information
  14-23  if:
  14-24              (1)  the Commissioner finds that immediate and
  14-25  irreparable harm is threatened to purchasers or potential
  14-26  purchasers of checks or the general public;
  14-27              (2)  the licensee consents to the release or has
   15-1  published the information contained in the release;
   15-2              (3)  the Commissioner finds that release of the
   15-3  information is required for an administrative hearing, in which
   15-4  case the information may be released to the parties to the hearing
   15-5  on order of the hearings officer; or
   15-6              (4)  the Commissioner finds that the release is
   15-7  reasonably necessary for the protection of the public and in the
   15-8  interest of justice, in which case the information may be released
   15-9  only to a representative of an agency, department, or
  15-10  instrumentality of this state, another state, or the federal
  15-11  government.
  15-12        (c)  Before releasing information that the Commissioner
  15-13  determines is not proprietary under Subsection (a)(2) of this
  15-14  section, the Commissioner shall give the licensee notice of the
  15-15  release.
  15-16        SECTION 14.  This Act takes effect September 1, 1995.
  15-17        SECTION 15.  The importance of this legislation and the
  15-18  crowded condition of the calendars in both houses create an
  15-19  emergency and an imperative public necessity that the
  15-20  constitutional rule requiring bills to be read on three several
  15-21  days in each house be suspended, and this rule is hereby suspended.