SRC-HRD H.B. 9 75(R)BILL ANALYSIS


Senate Research CenterH.B. 9
By: Stiles (Barrientos)
Finance
4-14-97
Engrossed


DIGEST 

The 74 Legislature created the Texas Tomorrow Fund, which is a prepaid
higher education tuition program that allows the purchaser to enter a
contract to prepay the tuition and fees for the purchaser's beneficiary to
attend a public institution of higher education.  At this time, thirteen
other states have prepaid tuition programs; approximately five other
states are preparing to implement similar programs.     

Though the program has been very successful, the Comptroller's office has
identified some areas in which the statute can be improved and updated.
This bill would amend current law to prevent purchasers from using the
Private College Plan as tax shelters, allowing for the prepayment of
tuition and fees for any high school student regardless of age, and would
conform the law to Section 529, Internal Revenue Code. H.B. 9 would also
require states to impose penalties on refunds in certain circumstances,
such as when a refund is requested because the beneficiary does not attend
college.                                                    
PURPOSE

As proposed, H.B. 9 amends existing law to update the prepaid tuition
program and conform with federal requirements.                

RULEMAKING AUTHORITY

Rulemaking authority is granted to the Prepaid Higher Education Tuition
Board under SECTION 5 (Section 54.633(a), Education Code), of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Sections 54.619(d) and (e), Education Code, to require
the Prepaid Higher Education Tuition Board (board), if the beneficiary of
a plan enrolls in an institution of higher education, to pay to the
purchaser, rather than to the beneficiary, the amount by which the
estimated average private tuition and required fees exceeds the tuition
and required fees of the institution. Makes conforming changes. 

SECTION 2. Amends Section 54.621, Education Code, to require the
beneficiary of  a prepaid tuition contract to be younger than 18 years of
age or 18 years of age or older and enrolled in high school at the time
the purchaser enters into the contract.  Requires, notwithstanding Section
54.052(d), the tuition and required fees charged by an institution of
higher education for semester hours and fees that are paid for by a
prepaid tuition contract to be determined as if the beneficiary of that
contract were a resident student.  Deletes text proving that a beneficiary
is considered a resident for purposes of tuition regardless of the
beneficiary's residence on the date of enrollment. 

SECTION 3. Amends Section 54.627, Education Code, to require, except as
provided by Subsection (b), the new beneficiary to meet certain
requirements.  Deletes text requiring the new beneficiary, if the
purchaser is an individual, to be a sibling, step sibling, or half-sibling
of the original beneficiary.  Sets forth provisions applicable if a
purchaser is this state, a local government of this state, or an
organization exempt from taxation under Section 501(a) of the Internal
Revenue Code of 1986 because it is listed in Section 501(c)(3) of that
code that purchases an interest in a prepaid tuition contract as part of a
scholarship program operated by the government or organization. Makes
conforming changes. 
 
SECTION 4. Amends Section 54.632, Education Code, by adding Subsection
(d), to require the board to comply with Section 529 of the Internal
Revenue Code of 1986 in imposing penalties for refunds and excess amounts
payable under Sections 54.619(d) and (e). 

SECTION 5. Amends Section 54.633, Education Code, as follows:

Sec. 54.633.  New heading:  PREPAID HIGHER EDUCATION TUITION SCHOLARSHIPS
FOR STUDENTS.  Authorizes the board or the board of a direct-support
organization established by the board under Subsection (e), to the extent
money is available, to award a prepaid higher education tuition
scholarship to a student who meets economic or academic requirements
adopted by the board by rule, or economic or academic requirements
established by the board of direct-support organization that are
consistent with board rules. Authorizes the board to establish a
direct-support organization under the Texas Non-Profit Corporation Act,
Article 1396-1.01 et seq., V.T.C.S., to purchase and award scholarships
under this section, and establish economic and academic eligibility
requirements consistent with board rules.  Provides the comptroller serves
as executive director of the board of the direct-support organization.
Requires the comptroller serves as executive director of the board of the
direct-support organization.  Sets forth requirements for the comptroller.
Requires the board of the direct-support organization to develop and
implement policies that clearly separate the policy-making
responsibilities of the board of the direct-support organization and the
management responsibilities of the comptroller and the staff of the board
of the direct-support organization.  Authorizes a prepaid tuition contract
to be purchased for scholarship purposes under this section without
identifying a specific beneficiary.  Prohibits the awarding entity, in
awarding a scholarship under this section, from awarding a scholarship
using funds derived from this state or a local government unless the
awarding entity makes certain determinations.  Makes conforming changes. 

SECTION 6. Amends Section 54.636(e), Education Code, to require the board,
in making investments of the assets of the fund, to exercise the judgment
and care, under the circumstances at the time of the investment, that a
person of ordinary prudence, and intelligence would exercise in the
management of the person's own affairs, not for speculation but for making
a permanent disposition of funds, considering the probable income from the
disposition and the probable safety of capital.  Deletes a provision
requiring the board to invest the assets of the fund in accordance with
the Public Investment Act. 

SECTION 7. Amends Section 54.639, Education Code, to provide that money in
the fund is exempt from claims of creditors, including claims of creditors
of a purchaser, beneficiary, or a successor in interest of a purchaser or
beneficiary.   Provides that the rights of a purchaser, beneficiary, or
successor in interest of a purchaser or beneficiary in and under a prepaid
tuition contract and the payment of tuition and required fees for a
beneficiary under a prepaid tuition contract to an institution of higher
education or a private or independent institution of higher education are
exempt from attachment, levy, garnishment, execution, and seizure for the
satisfaction of any debt, judgment, or claim against a purchaser,
beneficiary, or successor in interest of a purchaser or beneficiary.
Provides that a claim or judgment against a purchaser, beneficiary, or a
successor in interest of a purchaser or beneficiary does not impair or
entitle the claim or judgment holder to assert or enforce a lien against
certain rights. 

SECTION 8. Amends Section 54.641(a), Education Code, to require, not later
than January 1 of each year, rather than December 1 of each year, the
board to furnish without charge to each purchaser a statement of certain
amounts paid, numbers of credit hours, and other information. 

SECTION 9. Amends Section 54.643, Education Code, by adding Subsection
(c), to authorize the board, notwithstanding any other provision of this
subchapter, to release information to the Internal Revenue Service and to
any state tax agencies as required by applicable tax law. 

SECTION 10. Amends Chapter 54F, Education Code, by adding Section 54.644,
as follows: 

Sec. 54.644.  TAX EXEMPT STATUS REQUIREMENTS.  Provides that the
provisions of this section are intended to meet the requirements of
Section 529 of the Internal Revenue  code of 1986.  Requires a payment of
an amount due to the fund for a prepaid tuition contract to be made in
cash.  Prohibits a person from making a payment to the fund in excess of
the amounts required to be paid under a prepaid tuition contract.
Requires the board to maintain a separate accounting for each beneficiary.
Prohibits the purchaser of a prepaid tuition contract and the beneficiary
of the contract from controlling or directing the investment of payments
under the contract or any earnings of the fund.  Prohibits the purchaser
of a prepaid tuition and the beneficiary of the contract from using any
interest in the contract as security for a loan or other obligation.
Requires the board to make reports required by the secretary of the United
States Treasury. 

SECTION 11. Repealer:  Section 54.638, Education Code (Request of Rulings
From Internal Revenue Service and Securities Exchange Commission). 

SECTION 12. Emergency clause.
  Effective date: upon passage.