1-1  By:  Grusendorf (Senate Sponsor - Rosson)             H.B. No. 1608
    1-2        (In the Senate - Received from the House May 4, 1995;
    1-3  May 5, 1995, read first time and referred to Committee on Economic
    1-4  Development; May 23, 1995, reported favorably by the following
    1-5  vote:  Yeas 10, Nays 0; May 23, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to the regulation of the sale of checks.
    1-9        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-10        SECTION 1.  Section 2, The Sale of Checks Act (Article 489d,
   1-11  Vernon's Texas Civil Statutes), is amended by amending Subsection
   1-12  (g) and adding Subsection (i) to read as follows:
   1-13        (g)  "Commissioner" means the Commissioner of the <State>
   1-14  Banking Department of Texas.
   1-15        (i)  "Commission" means The Finance Commission of Texas.
   1-16        SECTION 2.  Section 4, The Sale of Checks Act (Article 489d,
   1-17  Vernon's Texas Civil Statutes), is amended to read as follows:
   1-18        Sec. 4.  Exemption from Licensing.  (a)  No license to sell
   1-19  checks as aforesaid shall be required hereunder of any of the
   1-20  following:
   1-21              (1) <(a)>  Banks, credit unions, building and loan
   1-22  associations, <and> savings and loan associations, and savings
   1-23  banks whether organized under the laws of this state, another
   1-24  state, or <of> the United States; provided, however, that they do
   1-25  not issue or sell checks, other than traveler's checks, off
   1-26  premises and that they do not issue or sell checks, other than
   1-27  traveler's checks, through agents who are not directly or
   1-28  indirectly owned by them unless the agent is a federally insured
   1-29  bank, credit union, savings and loan association, or savings bank;
   1-30              (2) <(b)  Incorporated telegraph companies insofar as
   1-31  they receive money at any of their respective offices or agencies
   1-32  for immediate transmission by telegraph;>
   1-33              <(c)>  Agents of a licensee, as provided in Section 11;
   1-34              (3)  Escrow or trust fund checks issued by a title
   1-35  company or attorney; or
   1-36              (4) <(d)>  The United States or any department or
   1-37  agency of the United States.
   1-38        (b)  The Commissioner by rule may exempt a person from this
   1-39  Act or reduce the requirements of Sections 7, 8, 9A, 9B, and 9C of
   1-40  this Act if:
   1-41              (1)  the sale of checks is ancillary to the person's
   1-42  business, is limited to commercial contracts in interstate
   1-43  commerce, and the person does not engage in the business of selling
   1-44  checks to the public; and
   1-45              (2)  the Commissioner determines that the exemption or
   1-46  reduced requirement is in the public interest.
   1-47        SECTION 3.  Section 5, The Sale of Checks Act (Article 489d,
   1-48  Vernon's Texas Civil Statutes), is amended to read as follows:
   1-49        Sec. 5.  Qualifications.  (a)  <To qualify for a license
   1-50  hereunder an applicant shall meet the following requirements:>
   1-51              <(a)  The applicant shall have a net worth of at least
   1-52  Five Hundred Thousand Dollars ($500,000), computed according to
   1-53  generally accepted accounting principles.>
   1-54              <(b)>  The financial responsibility, financial
   1-55  condition, and business experience, and character and general
   1-56  fitness of an <the> applicant for a license shall be such as
   1-57  reasonably to warrant the belief that issuance of a license is in
   1-58  the public interest <applicant's business will be conducted
   1-59  honestly, carefully and efficiently>.  To the extent deemed
   1-60  advisable by the Commissioner, the Commissioner may investigate and
   1-61  consider the qualifications of officers and directors of an
   1-62  applicant in determining whether this qualification has been met.
   1-63        (b)  To qualify for a license under this Act an applicant:
   1-64              (1)  must have a net worth of at least Five Hundred
   1-65  Thousand Dollars ($500,000), computed according to generally
   1-66  accepted accounting principles;
   1-67              (2)  must be in a financial condition that will enable
   1-68  the applicant to safely and soundly engage in the business of
    2-1  selling checks;
    2-2              (3)  may not have been convicted of a felony or a crime
    2-3  involving moral turpitude that is reasonably related to an
    2-4  applicant's fitness to hold a license under this Act, regardless of
    2-5  whether the punishment received was a suspended sentence,
    2-6  probation, or nonadjudicated conviction, if the applicant is an
    2-7  individual;
    2-8              (4)  must provide a truthful and complete response to
    2-9  requests for information contained in an application for a license;
   2-10              (5)  may not be indebted to the state for a fee or
   2-11  penalty imposed under this Act or a rule of the commission;
   2-12              (6)  must have good moral character and a reputation as
   2-13  a peaceable, law-abiding citizen in the community where the
   2-14  applicant resides, if the applicant is an individual; and
   2-15              (7)  may not be engaged in an activity or practice that
   2-16  the commissioner finds adversely affects the financial safety and
   2-17  soundness of the applicant.
   2-18        (c)  The commission may adopt rules relating to an
   2-19  application for a license.
   2-20        SECTION 4.  Section 7, The Sale of Checks Act (Article 489d,
   2-21  Vernon's Texas Civil Statutes), is amended to read as follows:
   2-22        Sec. 7.  Accompanying Fee, Statements and Bond.  Each
   2-23  application for a license shall be accompanied by:
   2-24        (a)  An investigation fee in an amount set by the
   2-25  Commissioner that is sufficient to administer this Act <of Five
   2-26  Hundred Dollars ($500)> which shall not be subject to refund but
   2-27  which, if the license be granted, shall constitute the license fee
   2-28  for the first license year or part thereof;
   2-29        (b)  Audited financial statements reasonably satisfactory to
   2-30  the Commissioner;
   2-31        (c)  A surety bond issued by a bonding company or insurance
   2-32  company authorized to do business in this state, in the principal
   2-33  sum of One Hundred Thousand Dollars ($100,000), and, except as
   2-34  provided by this subsection, an additional principal sum of Fifty
   2-35  Thousand Dollars ($50,000) for each location, in excess of one but
   2-36  for not more than the first nine locations, at which the applicant
   2-37  proposes to sell checks in this state.  The maximum amount of a
   2-38  surety bond required under this subsection is Five Hundred Thousand
   2-39  Dollars ($500,000), except the Commissioner, subject to Section 15
   2-40  of this Act, may require a licensee to provide an additional amount
   2-41  over the Five Hundred Thousand Dollars ($500,000) up to a total
   2-42  maximum amount of One Million Dollars ($1,000,000), based on the
   2-43  licensee's financial condition, considered in relation to the
   2-44  dollar volume of the licensee's outstanding checks.  Each<, but in
   2-45  no event shall the bond be required to be in excess of Five Hundred
   2-46  Thousand Dollars ($500,000).  If the bond accompanying the
   2-47  application be in a principal sum of less than Five Hundred
   2-48  Thousand Dollars ($500,000), the> application shall also be
   2-49  accompanied by a list of the locations at which the business is to
   2-50  be conducted.  The bond shall be in form satisfactory to the
   2-51  Commissioner and represents money held in trust for the benefit of
   2-52  check purchasers.  The bond shall run to the state for the benefit
   2-53  of any claimants against the applicant or his agents to secure the
   2-54  faithful performance of the obligations of the applicant and his
   2-55  agents with respect to the receipt, handling, transmission and
   2-56  payment of money in connection with the sale of checks.  The
   2-57  aggregate liability of the surety in no event shall exceed the
   2-58  principal sum of the bond.  If a licensee is in bankruptcy or
   2-59  receivership, claimants against the licensee or the licensee's
   2-60  agents may bring suit directly on the bond for an amount equal to
   2-61  the amount of an unpaid judgment against the licensee or may assert
   2-62  a claim against the bond.  The <Such claimants against the
   2-63  applicant or his agents may themselves bring suit directly on the
   2-64  bond, or the> Attorney General may bring suit in a district court
   2-65  in Travis County on <thereon in> behalf of such claimants, either
   2-66  in one action or successive actions; or
   2-67        (d)  In lieu of such corporate surety bond or bonds, or of
   2-68  any portion of the principal thereof as required by this Section,
   2-69  the applicant may deposit with the Commissioner, or with such banks
   2-70  or trust companies or national banks in this state as such
    3-1  applicant may designate and the Commissioner may approve, cash,
    3-2  certificates of deposit, interest-bearing stocks and bonds, notes,
    3-3  debentures or other obligations of the United States or any agency
    3-4  or instrumentality thereof, or guaranteed by the United States, or
    3-5  of this state, or of a city, county, town, village, school district
    3-6  or instrumentality of this state, or guaranteed by this state, or
    3-7  other similar security devices acceptable to the Commissioner,  to
    3-8  an aggregate amount, based upon principal amount or market value,
    3-9  whichever is lower, of not less than the amount of the required
   3-10  corporate surety bond or portion thereof.  A deposit made with the
   3-11  Commissioner under this subsection shall be held in trust for the
   3-12  benefit of check purchasers.  The deposit shall be <The securities
   3-13  shall be deposited as aforesaid and> held to secure the same
   3-14  obligations as would the surety bond, but the licensee <depositor>
   3-15  shall be entitled to receive all interest and dividends thereon,
   3-16  shall have the right, with the approval of the Commissioner, to
   3-17  substitute other securities for those deposited, and shall be
   3-18  required so to do on written order of the Commissioner made for
   3-19  good cause shown.
   3-20        SECTION 5.  Section 9, The Sale of Checks Act (Article 489d,
   3-21  Vernon's Texas Civil Statutes), is amended to read as follows:
   3-22        Sec. 9.  Obligations of Licensee.  Each person holding a
   3-23  license under this Act shall at all times when the license is in
   3-24  effect:
   3-25              (a)  Maintain the bond or securities in the amount
   3-26  prescribed by Section 7 and if<;>
   3-27              <(b)  If> the licensee does not have on file or deposit
   3-28  a bond or securities, as aforesaid, in the undiminished principal
   3-29  sum of at least Five Hundred Thousand Dollars ($500,000), file
   3-30  quarterly reports with the Commissioner setting forth the locations
   3-31  at which he sells checks in this state not later than the 45th day
   3-32  after the date of the last day of each quarter of the licensee's
   3-33  fiscal year <as of January 1, April 1, July 1, and October 1 in
   3-34  each year, the report for each such date being due on or before the
   3-35  15th day thereafter>;
   3-36                    (1)  Within ten (10) days following the filing of
   3-37  such a report, the principal sum of the bond or securities shall be
   3-38  increased to reflect any increase in the number of locations, and
   3-39  may be decreased to reflect any decrease in the number of
   3-40  locations;
   3-41                    (2)  If the Commissioner shall at any time
   3-42  reasonably determine that the bond or securities aforesaid are
   3-43  insecure, deficient in amount, or exhausted in whole or part, the
   3-44  Commissioner <he> may by written order require the filing of a new
   3-45  or supplemental bond or the deposit of new or additional securities
   3-46  in order to secure compliance with this Act, such order to be
   3-47  complied with within thirty (30) days following service thereof
   3-48  upon the licensee;
   3-49              (b) <(c)>  Maintain a net worth equal to or greater
   3-50  than the amount then currently prescribed by Section 5 for license
   3-51  applicants; and
   3-52              (c) <(d)>  Have on hand permissible investments in an
   3-53  amount equal to the aggregate face amount of all outstanding checks
   3-54  sold in the United States, except traveler's checks, for which the
   3-55  licensee is liable for payment; however, this subsection does not
   3-56  apply to any licensee with a net worth of not less than Five
   3-57  Million Dollars ($5 million) as shown by audited financial
   3-58  statements reasonably satisfactory to the Commissioner; statements
   3-59  filed under Section 9B of this Act may be used to satisfy this
   3-60  requirement.
   3-61        SECTION 6.  Section 9B(a), The Sale of Checks Act (Article
   3-62  489d, Vernon's Texas Civil Statutes), is amended to read as
   3-63  follows:
   3-64        (a)  Each year, on a quarterly basis not later than the 45th
   3-65  day after the date of the last day of each quarter of the
   3-66  licensee's fiscal year <May 15, August 15, November 15, and
   3-67  February 15>, each licensee shall file with the Commissioner an
   3-68  unconsolidated financial statement as of the last day of the
   3-69  preceding quarter, including balance sheet, and required reports
   3-70  regarding maintaining permissible investments pursuant to Section 9
    4-1  for the preceding <calendar> quarter submitted on forms furnished
    4-2  by the Commissioner.  In addition, each licensee is <Each year at
    4-3  least one of these unconsolidated financial statements must have
    4-4  been audited before filing.  Licensees who maintain a corporate
    4-5  surety bond or securities, as described by Section 7(c), in a
    4-6  principal sum of at least Five Hundred Thousand Dollars ($500,000)
    4-7  are> required<, however, only> to file an <the> annual audited
    4-8  unconsolidated financial statement not later than the 120th day
    4-9  after the date of the last day of the licensee's fiscal year.
   4-10        SECTION 7.  Section 9C, The Sale of Checks Act (Article 489d,
   4-11  Vernon's Texas Civil Statutes), is amended to read as follows:
   4-12        Sec. 9C.  Trust Imposed on Sales Proceeds.  Licensees and
   4-13  agents <Agents> of licensees shall hold in trust from the moment of
   4-14  receipt the proceeds of a sale or delivery of the licensee's
   4-15  checks.  An agent of a licensee may not commingle the proceeds with
   4-16  his own property or funds, except to use the funds in the ordinary
   4-17  course of its business for the purpose of making change, if the
   4-18  proceeds are accounted for at the end of each business day.  If any
   4-19  licensee or agent of a licensee commingles any proceeds received
   4-20  from the sale of checks <issued by the licensee> with any other
   4-21  funds or property owned or controlled by the licensee or agent, all
   4-22  commingled proceeds and other property shall be impressed with a
   4-23  trust.  In the case of a licensee, the trust is in favor of the
   4-24  holders of the checks.  In the case of an agent, the trust is in
   4-25  favor of the licensee.  The trust is in an amount equal to the
   4-26  amount of the proceeds <due the licensee> from the sale of checks
   4-27  less the amount of fees paid for <due the agent from> the sale of
   4-28  checks.  In the event that a licensee's license is revoked by the
   4-29  Commissioner pursuant to Section 14, all sales proceeds then held
   4-30  in trust by the licensee and its agents <of that licensee> shall be
   4-31  deemed to have been assigned to the Commissioner for the benefit of
   4-32  holders of the checks.
   4-33        SECTION 8.  The Sale of Checks Act (Article 489d, Vernon's
   4-34  Texas Civil Statutes) is amended by adding Sections 9D and 9E to
   4-35  read as follows:
   4-36        Sec. 9D.  MANDATORY REMITTANCE BY AGENT.  (a)  An agent of a
   4-37  licensee shall remit to the licensee all funds due from the sale of
   4-38  a check within:
   4-39              (1)  10 business days after the date of the sale,
   4-40  unless otherwise ordered by the Commissioner, or a shorter period
   4-41  as the licensee may require; or
   4-42              (2)  a period exceeding 10 business days after the date
   4-43  of the sale if the agent has previously deposited with, and during
   4-44  the period maintains on deposit with, an office of a federally
   4-45  insured bank, savings and loan association, or savings bank located
   4-46  in the United States in an account that is in the sole and
   4-47  exclusive name of the licensee an amount that, for each day by
   4-48  which the period exceeds 10 business days, is not less than the
   4-49  aggregate face amount of checks issued by the licensee that the
   4-50  agent usually sells daily.
   4-51        (b)  The phrase "business day" as used in this section shall
   4-52  not include Saturdays, Sundays, and legal public holidays (as
   4-53  designated in 5 U.S.C.  Section 6103).
   4-54        Sec. 9E.  ADMINISTRATION; RULES.  The Banking Department of
   4-55  Texas shall administer this Act.  The commission may adopt rules
   4-56  necessary for the enforcement and orderly administration of this
   4-57  Act.  A rule adopted under this section may not directly apply to
   4-58  an agent or sub-agent of a licensee.
   4-59        SECTION 9.  Section 13, The Sale of Checks Act (Article 489d,
   4-60  Vernon's Texas Civil Statutes), is amended to read as follows:
   4-61        Sec. 13.  DISCLOSURE OF RESPONSIBILITY.  Every check sold by
   4-62  a licensee, directly or through an agent, shall bear the name and
   4-63  mailing address or telephone number of the licensee clearly
   4-64  imprinted thereon or be accompanied by a written notice delivered
   4-65  to the purchaser at the time of sale containing that information.
   4-66        SECTION 10.  Section 15, The Sale of Checks Act (Article
   4-67  489d, Vernon's Texas Civil Statutes), is amended to read as
   4-68  follows:
   4-69        Sec. 15.  HEARINGS.  No license shall be denied or revoked
   4-70  except after a hearing thereon.  The Commissioner shall give the
    5-1  applicant or licensee at least twenty (20) days written notice of
    5-2  the time and place of such hearing by registered or certified mail
    5-3  addressed to the principal place of business of such applicant or
    5-4  licensee.  Any order of the Commissioner denying or revoking such
    5-5  license shall state the grounds upon which it is based and shall
    5-6  not be effective until twenty (20) days after written notice
    5-7  thereof has been sent by registered or certified mail to the
    5-8  applicant or licensee at such principal place of business, unless
    5-9  the Commissioner finds that an imminent peril to public health,
   5-10  safety, or welfare exists, in which event the Commissioner may make
   5-11  the order effective immediately.  A licensee may seek court review
   5-12  of the Commissioner's findings and order under Chapter 2001,
   5-13  Government Code.
   5-14        SECTION 11.  The Sale of Checks Act (Article 489d, Vernon's
   5-15  Texas Civil Statutes) is amended by adding Section 15A to read as
   5-16  follows:
   5-17        Sec. 15A.  CEASE AND DESIST ORDERS.  (a)  The Commissioner
   5-18  may issue an order to cease and desist from certain violations and
   5-19  practices if the Commissioner determines that a licensee or a
   5-20  person acting on behalf of the licensee has:
   5-21              (1)  violated this Act or a rule adopted under this Act
   5-22  or has violated any other law applicable to the sale of checks or a
   5-23  rule adopted under the other law;
   5-24              (2)  committed a breach of trust or of a fiduciary
   5-25  duty;
   5-26              (3)  committed a fraudulent act;
   5-27              (4)  refused to submit to an examination by the
   5-28  Commissioner;
   5-29              (5)  conducted the licensee's business in an unsafe or
   5-30  unauthorized manner; or
   5-31              (6)  violated a condition of the licensee's license or
   5-32  an agreement between the licensee and the Commissioner.
   5-33        (b)  A copy of the order must be served on the licensee and
   5-34  any other person named in the order.  An order takes effect on the
   5-35  date specified in the order but not before the 10th day after the
   5-36  date of its receipt by the licensee or other person named in the
   5-37  order unless the Commissioner finds that immediate and irreparable
   5-38  harm is threatened to the licensee, purchasers or potential
   5-39  purchasers of checks, or the general public.  The licensee shall
   5-40  certify to the Commissioner in writing that each person named in
   5-41  the order and, if the licensee is a corporation, each member of the
   5-42  licensee's board of directors has read and understood the order.
   5-43        (c)  A licensee or other person named in the order may appeal
   5-44  the Commissioner's order to the commission by filing a notice of
   5-45  appeal with the commission not later than the 10th day after the
   5-46  date of receipt of notice of the order.
   5-47        (d)  On receipt of a timely notice of appeal, the commission
   5-48  shall set a time and place for hearing the appeal of the order and
   5-49  give reasonable notice of the hearing to the party filing the
   5-50  appeal.  Unless otherwise provided by this Act, the hearing before
   5-51  the commission shall be conducted in accordance with Chapter 2001,
   5-52  Government Code.  If the commission finds that a party filing an
   5-53  appeal has committed one or more of the violations or practices
   5-54  charged by the Commissioner and that the order is necessary or in
   5-55  the best interests of purchasers of checks, the commission shall
   5-56  affirm the order.  If the commission finds otherwise, the
   5-57  commission shall set aside the order.  The licensee or other person
   5-58  named in the order may appeal the decision of the commission to a
   5-59  district court in Travis County in accordance with Chapter 2001,
   5-60  Government Code.
   5-61        (e)  If a licensee or other person named in an order does not
   5-62  comply with a final order, the Attorney General, if requested by
   5-63  the Commissioner, may bring suit in a district court in Travis
   5-64  County against the licensee or other person to enjoin violation of
   5-65  the order.
   5-66        (f)  Nothing in this section diminishes the regulatory or
   5-67  enforcement powers of the Commissioner or the commission under
   5-68  other provisions of this Act or other applicable law.  The
   5-69  Commissioner is not required to proceed under this section before
   5-70  taking regulatory action under Section 14 or 16 of this Act or
    6-1  under any other applicable law.
    6-2        SECTION 12.  Section 16(c), The Sale of Checks Act (Article
    6-3  489d, Vernon's Texas Civil Statutes), is amended to read as
    6-4  follows:
    6-5        (c)  If, after notice and a hearing, the Commissioner finds
    6-6  that a person has violated this Act, <or> a rule adopted under this
    6-7  Act, or an order of the Commissioner issued under this Act, the
    6-8  Commissioner may order the person to pay to the Commissioner a
    6-9  civil penalty in the amount that the Commissioner specifies, except
   6-10  that the amount of the civil penalty may not exceed One Thousand
   6-11  Dollars ($1,000) for each violation or, in the case of a continuing
   6-12  violation, One Thousand Dollars ($1,000) for each day that the
   6-13  violation continues.
   6-14        SECTION 13.  The Sale of Checks Act (Article 489d, Vernon's
   6-15  Texas Civil Statutes) is amended by adding Section 18 to read as
   6-16  follows:
   6-17        Sec. 18.  CONFIDENTIAL INFORMATION.  (a)  Except as provided
   6-18  by Subsection (b) of this section, information obtained by the
   6-19  Commissioner or the commission under this Act from a licensee or
   6-20  through an examination and a file or record of the Banking
   6-21  Department of Texas relating to that information is confidential
   6-22  and may not be disclosed if the information:
   6-23              (1)  relates to the financial condition of the
   6-24  licensee; or
   6-25              (2)  is proprietary information of the licensee, as
   6-26  determined by the Commissioner in the Commissioner's sole
   6-27  discretion.
   6-28        (b)  The Commissioner may release confidential information
   6-29  if:
   6-30              (1)  the Commissioner finds that immediate and
   6-31  irreparable harm is threatened to purchasers or potential
   6-32  purchasers of checks or the general public;
   6-33              (2)  the licensee consents to the release or has
   6-34  published the information contained in the release;
   6-35              (3)  the Commissioner finds that release of the
   6-36  information is required for an administrative hearing, in which
   6-37  case the information may be released to the parties to the hearing
   6-38  on order of the hearings officer; or
   6-39              (4)  the Commissioner finds that the release is
   6-40  reasonably necessary for the protection of the public and in the
   6-41  interest of justice, in which case the information may be released
   6-42  only to a representative of an agency, department, or
   6-43  instrumentality of this state, another state, or the federal
   6-44  government.
   6-45        (c)  Before releasing information that the Commissioner
   6-46  determines is not proprietary under Subsection (a)(2) of this
   6-47  section, the Commissioner shall give the licensee notice of the
   6-48  release.
   6-49        SECTION 14.  This Act takes effect September 1, 1995.
   6-50        SECTION 15.  The importance of this legislation and the
   6-51  crowded condition of the calendars in both houses create an
   6-52  emergency and an imperative public necessity that the
   6-53  constitutional rule requiring bills to be read on three several
   6-54  days in each house be suspended, and this rule is hereby suspended.
   6-55                               * * * * *