PMWJ H.B. 2270 75(R)BILL ANALYSIS


JUDICIAL AFFAIRS
H.B. 2270
By: Thompson
4-2-97
Committee Report (Amended)



BACKGROUND 

 Legal issues concerning trust funds deposited with county clerks and
district clerks more and more commonly arise in litigation.  Larger and
larger sums are being deposited with the clerks into the registry of the
court.  Some statutes offer no direction for investment or accounting of
the funds while others require limitations that cannot be followed.  For
example, if the clerk receives $550,000 to be invested for a minor,
current law requires investment with a financial institution insured by
the FDIC; due to the $100,000 insured limitation, the clerk must divide
the money into six FDIC institutions for investment (in a smaller county,
this may be an impossible task). 
 There are no clear statutory directives for clerks in handling interplead
funds, which may total millions of dollars, other than to deposit the
funds into the county depository which may or may not earn interest. 
 The legislative committees of the County and District Clerks Association
worked with the legislative committees of the County Judges and
Commissioners Associations, the County Auditors Association and the County
Treasurers Association to resolve some of these issues and draft
legislation to clarify and modernize Chapter 117 of the Local Government
Code and other related statutes regarding court trust funds. 


PURPOSE

 As proposed, House Bill 2270 changes "trust fund" to "registry fund."  It
also defines the types of money and accounts deposited in the registry.
It allows the registry account to earn interest upon written election by
the clerk to the commissioners court.  HB 2270 clarifies the method of
compensation to the county for accounting and administrative expenses.  It
defines the types of investments to be used by the clerk.  It clarifies
that the clerk is the custodian of the funds and not the trustee for a
beneficiary.  Finally, HB 2270 requires annual continuing education for
clerks and minimum hours concerning registry funds.   


RULEMAKING AUTHORITY

 It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 


SECTION BY SECTION ANALYSIS

 SECTION 1 amends Tex. Local Gov't Code ' 117.001, Definitions, to add
definitions for "clerk," "registry funds," "separate account," and
"special account." 

 SECTION 2 amends Tex. Local Gov't Code ' 117.002, Transfer of Unclaimed
Funds to State Treasurer, to add an exception for cash bail bonds. 

 SECTION 3 amends Tex. Local Gov't Code ' 117.021(a) and 117.021(c).
 Subsec. (a) is amended to provide that banks that apply to or contract
with counties for special accounts must be federally insured.  New
language authorizes the county clerk to include a provision in the
contract that special account funds earn interest; notice of the  clerk's
election that an account earn interest must be made in writing to the
commissioners court not later than the 30th day before the county gives
notice for applications to be the depository for a special account. 
 Subsec. (c) is amended to clarify that the clerks who hold funds and
determine the amount of the application guarantee include both the county
clerk and district clerk.  "Trust funds" is changed to "registry funds." 

 SECTION 4 amends Tex. Local Gov't Code ' 117.022.  The section heading,
"Notice Not Required," is changed to "Notice;"  "trust funds" is changed
to "registry funds."  The section is amended to require that the county
give notice that the county will accept applications to serve as the
depository for registry funds.  New language clarifies that the funds are
held by the county clerk and the district clerk. 

 SECTION 5 amends Tex. Local Gov't Code ' 117.023(a) to change "trust
funds" to "registry funds" and to clarify that the funds are held by the
county clerk and the district clerk. 

 SECTION 6 amends Tex. Local Gov't Code ' 117.025.
 Subsec. (a) is amended to allow a county to select more than one bank as
the depository for registry funds. 
 In Subsec. (b), "trust funds" is changed to "registry funds."
 New Subsec. (c) requires the depository to provide security for registry
funds. 

 SECTION 7 amends Tex. Local Gov't Code ' 117.026(a) to allow a county to
select more than one bank as the depository for registry funds, to require
that the bank be federally insured, and to change "trust funds" to
"registry funds." 

 SECTION 8 amends Tex. Local Gov't Code ' 117.027 to clarify that funds
are deposited into the "registry of the court" instead of the "clerk's
court." 

 SECTION 9 adds Section 117.028, Application of County Depository Law, to
the Local Government Code to apply the provisions of Chapter 116, relating
to county depositories, to a depository selected under Chapter 117 unless
expressly stated otherwise in this chapter. 

 SECTION 10 amends Tex. Local Gov't Code ' 117.052.  The heading is
amended to change "trust funds" to "registry funds." 
 Subsec. (a) is amended to clarify that money is deposited in the
"registry of the court" instead of "in court."  For clarification, "a
county or district clerk" is changed to "a county clerk or a district
clerk." 
 Subsec. (b) is amended to to require funds to be deposited in a
depository, if one is selected, as a "special account" instead of a "trust
fund account." 
 New Subsec. (c) makes the clerk responsible for funds deposited into the
registry fund and lists the sources of registry fund deposits. 

 SECTION 11 adds Section 117.0521, Custodianship,  to the Local Government
Code, which provides that the district or county clerk acts only as a
custodian of registry funds, special accounts or separate accounts and is
not a trustee for the beneficial owner. 

 SECTION 12 amends Tex. Local Gov't Code ' 117.053, Withdrawal of Funds.
 Subsec. (a) is amended to change "trust funds" to "funds in a special
account."  For clarification, "the county and district clerks" is changed
to "the county clerk and the district clerks." 
 Subsec. (b) is amended to change "trust funds" to "special account
funds."  New language clarifies that the court ordering payment must be
"of proper jurisdiction." Additional language is added to clarify that a
court order is not necessary to pay an appeal bond or funds deposited
under Tex. Probate Code ' 887. 
 Current Subsec. (c), relating to the release of funds in time deposits,
is repealed and new Subsec. (c) directs the clerk to transfer any registry
funds into a separate account on the order of a court or as directed by
Tex. Probate Code ' 887.  The separate account may be deposited in
interest-bearing deposits in federally-insured financial institutions, US
treasury  bills, inter-local investment pools, or qualified no-load money
market mutual funds. 

 SECTION 13 amends Tex. Local Gov't Code ' 117.054.  The heading is
changed from "County Expenses Paid from Interest on Time Deposits" to
"County Expenses Paid from Interest." Current Sec. 117.054, providing for
county administrative expenses to be paid from the interest on accounts,
is replaced.  New language allows 10% of the interest earned on a special
or separate account to be paid the county general fund and 90% of the
interest earned on a special or separate account to be credited to the
account. 

 SECTION 14 amends Tex. Local Gov't Code ' 117.055, County Expenses Paid
from Fees. 
 Subsec. (a) is amended to change "trust funds" to "registry funds."
Subsec. (a) currently authorizes the county to collect fees for handling
such funds and to set the amount of the fee (up to $50).  The amended
Subsec. (a) allows the county to collect fees for handling registry funds
that are deposited in accounts that do not earn interest and sets the fee
at 5% of the amount withdrawn up to $50.  Current language providing that
the handling fee is in addition to any fees the district clerk collects is
deleted. 
 Subsec. (b) is amended to provide that the fee collected under this
section shall be deposited in the county general fund instead of directing
the county treasurer to deposit the fee. 

 SECTION 15 amends Tex. Local Gov't Code ' 117.057.
 Subsec. (a) is amended to change "the county and district clerks' trust
funds" to "the county clerk's and the district clerks' registry funds." 
 Subsec. (b) is amended to shorten the time a depository has to file a new
bond from 15 days to 5 days. 

 SECTION 16 amends Tex. Local Gov't Code ' 117.058.  The heading is
amended to change "Trust Funds" to "Registry Funds." 
 Subsec. (a) is unchanged.
 Subsec. (b) is amended to change "trust funds" to "registry funds" and to
change "the county or district clerk" to "the county clerk or the district
clerk." 
 Subsec. (c) is amended to change "trust fund" to "registry fund" and to
require that each check must be signed according to the procedure
established by the county auditor instead of the current requirement that
each check be submitted to the county auditor for countersignature. 
 Subsec. (d), requiring the county auditor to countersign checks only on
evidence of a court order, is deleted. 

 SECTION 17 amends Tex. Local Gov't Code ' 117.081, Liability of County
and District Clerks, to change "trust funds" to "registry funds," to
change "a county or district clerk" to "a county clerk or a district
clerk," and to change "safe" to "secure." 

 SECTION 18 amends Tex. Local Gov't Code ' 117.083 to change "trust funds"
to "registry funds" and to change "the county or district clerk" to "the
county clerk or the district clerk." 

 SECTION 19 amends Tex. Local Gov't Code ' 117.084.  The heading is
changed from "Failure of a Depository To Pay Check on Presentment" to
"Depository To Pay Check on Presentment."  Current language subjecting a
depository to a 10% penalty for failure to pay a check is changed to
require the depository to pay a check drawn on a special or separate
account if the funds are in the possession of the depository. 

 SECTION 20 amends Tex. Local Gov't Code ' 117.121(a) to add an exception
for appeal bonds from the requirement that money be paid from the registry
fund only on a court's order. 

 SECTION 21 amends Tex. Property Code ' 142.004.  The heading is changed
from "Investment in Insured Financial Institutions" to "Investment of
Funds." 
 Subsec. (a), relating to investments of money recovered on behalf of a
minor or incapacitated person, is amended to provide that such funds may
be invested by a next friend in an interest-bearing time deposit in a
federally insured financial institution or by the court  clerk, acting
under a court order, in an interest-bearing deposit in a federally insured
financial institution, in US treasury bills, in inter-local investment
pools, or in qualified no-load money market mutual funds. 
 New Subsec. (d) provides that interest earned on moneys invested by the
court clerk shall be paid as directed by Chapter 117. 

 SECTION 22 amends Tex. Gov't Code ' 51.605(c) to provide that the
continuing education requirement for clerks is an annual, instead of
biennial, requirement and adds that three hours must be devoted to
registry funds. 

 SECTION 23 amends Tex. Gov't Code ' 2256.004 to add registry funds to the
list of funds to which Chapter 2256 of the Government Code (Public Funds
Investment) does not apply. 

 SECTION 24 repeals Sections 117.051 (authorization to deposit trust funds
in time deposits) and 117.082 (Offenses Related to Clerk's Performance of
Office) of the Local Government Code. 

 SECTION 25.  Effective date.  Application of act.

 SECTION 26.  Emergency clause. 


EXPLANATION OF AMENDMENTS

 Committee Amendment No. 1 adds a new Section 117.003 to the Local
Government Code to require the clerk to comply with federal tax law
regarding funds deposited into an interest-bearing account. 
 Committee Amendment No. 2 modifies the amended language in Local Gov't
Code ' 117.021(a) (in Section 3 of the bill) to change the clerk's
election to contract for interest-bearing accounts to the clerk's request
and approval by the commissioners' court. 
 Committee Amendment No. 3 changes the amended language in Local Gov't
Code ' 117.121(a) from "except that an appeal bond shall be paid without a
written order on the receipt of a mandate or a dismissal" to "except that
the clerk may make a payment without court order for unpaid court costs
from a cash bond deposited in connection with an appeal after the
appellate court issues its mandate in such appeal if the costs remain
unpaid for 45 days after the mandate is issued."