By Pickett                                       H.B. No. 832

      75R4738 BEM-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to requiring escrow agents dealing primarily in real

 1-3     estate transactions to be bonded; providing a civil penalty.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Title 113A, Revised Statutes, is amended by

 1-6     adding Article 6573c to read as follows:

 1-7           Art. 6573c.  SECURITY REQUIREMENT FOR ESCROW AGENTS

 1-8           Sec. 1.  REPORT AND BOND REQUIRED.  (a)  An escrow agent

 1-9     doing business in this state shall file annually with the banking

1-10     commissioner of Texas, not later than April 1, a verified report

1-11     listing the amounts held by the escrow agent in escrow deposits

1-12     relating to real estate transactions during the preceding calendar

1-13     year and satisfactory proof that the escrow agent has purchased a

1-14     properly executed surety bond:

1-15                 (1)  in a form approved by the attorney general;

1-16                 (2)  issued by a carrier admitted in this state;

1-17                 (3)  that is continuous and cancelable by the surety

1-18     only after not less than 90 days' advance notice to the

1-19     commissioner;

1-20                 (4)  that creates an obligation that continues for the

1-21     term of the escrow contracts written while the bond is in force;

1-22                 (5)  conditioned on the performance by the escrow agent

1-23     of obligations created by escrow contracts entered into by the

1-24     escrow agent; and

 2-1                 (6)  in an amount equal to:

 2-2                       (A)  the average amount held in escrow by the

 2-3     escrow agent during the preceding year; or

 2-4                       (B)  $250,000 for an escrow agent that was not in

 2-5     business during the preceding year or did not meet the definition

 2-6     of "escrow agent" during that year.

 2-7           (b)  A bond described by Subsection (a)(6)(B) of this section

 2-8     may not be reduced until the escrow agent's second annual renewal

 2-9     of the bond.

2-10           (c)  A person may recover against a surety bond if the person

2-11     obtains against an escrow agent a judgment assessing damages and

2-12     reasonable attorney's fees based on an act or omission on which the

2-13     bond is conditioned that occurred during the term for which the

2-14     person had an amount of money in escrow with the escrow agent.

2-15           (d)  The liability imposed on a surety is limited to:

2-16                 (1)  the amount of damages incurred because of the

2-17     escrow agent's breach of contract; and

2-18                 (2)  attorney's fees that are incurred in the recovery

2-19     of the judgment and that are reasonable in relation to the work

2-20     performed.

2-21           (e)  The liability of a surety may not exceed the face value

2-22     of the surety bond.  A surety is not liable for successive claims

2-23     in excess of the bond amount regardless of the number of claims

2-24     made against the bond or the number of years the bond remains in

2-25     force.

2-26           (f)  This section does not apply to an attorney or certified

2-27     public accountant licensed in this state who holds money in escrow

 3-1     as an incident to the person's practice.

 3-2           (g)  In this article:

 3-3                 (1)  "Escrow agent" means:

 3-4                       (A)  an entity that receives more than 50 percent

 3-5     of the entity's annual income from escrow-related fees for services

 3-6     related to real estate transactions; or

 3-7                       (B)  an individual who receives more than 50

 3-8     percent of the individual's annual income from escrow-related fees

 3-9     for services related to real estate transactions and who is not

3-10     employed by an entity described by Paragraph (A) of this

3-11     subdivision; and

3-12                 (2)  "Commissioner" means the banking commissioner of

3-13     Texas.

3-14           Sec. 2.  VIOLATIONS; INJUNCTIONS.  (a)  The commissioner

3-15     shall:

3-16                 (1)  notify an escrow agent of a finding by the

3-17     commissioner that the escrow agent is violating or has violated

3-18     this article; and

3-19                 (2)  provide the escrow agent an opportunity to correct

3-20     the violation before the 60th day after the date the commissioner

3-21     discovers the violation.

3-22           (b)  After the notice and an opportunity to comply, the

3-23     attorney general or the appropriate district or county attorney,

3-24     whether at the request of the commissioner or not, may sue to

3-25     recover a civil penalty under Section 3 of this article or for

3-26     appropriate injunctive relief to prevent the continuation of a

3-27     violation of this article.

 4-1           (c)  The commissioner and the party bringing the suit are

 4-2     entitled to recover reasonable expenses incurred in obtaining

 4-3     injunctive relief, civil penalties, or both, including

 4-4     investigation costs, court costs, reasonable attorney's fees,

 4-5     witness fees, and deposition expenses.

 4-6           (d)  Venue may be maintained in Travis County or in a county

 4-7     in which any real estate relating to an escrow agreement entered

 4-8     into by an escrow agent while in violation of this article is

 4-9     located.

4-10           (e)  Not later than the seventh day before the date on which

4-11     a party intends to sue under this section on the party's own

4-12     initiative, the party shall provide to the commissioner notice of

4-13     the suit.

4-14           (f)  The injunctive relief and civil penalty authorized by

4-15     this article are in addition to any other civil, administrative, or

4-16     criminal penalty provided by law.

4-17           Sec. 3.  CIVIL PENALTY.  (a)  An escrow agent that violates

4-18     this article is liable for a civil penalty of not less than $100 or

4-19     more than $1,000 for each day of violation.

4-20           (b)  In determining the amount of the penalty, the court

4-21     shall consider:

4-22                 (1)  the escrow agent's previous violations;

4-23                 (2)  the risk of loss created by the violation to

4-24     parties contracting with the escrow agent; and

4-25                 (3)  the amount necessary to deter future violations.

4-26           (c)  A penalty collected under this article by the attorney

4-27     general shall be deposited to the credit of the general revenue

 5-1     fund.  A penalty collected under this article by a district or

 5-2     county attorney shall be deposited to the credit of the general

 5-3     fund of the county in which the suit was heard.

 5-4           SECTION 2.  This Act takes effect September 1, 1997.

 5-5           SECTION 3.  The importance of this legislation and the

 5-6     crowded condition of the calendars in both houses create an

 5-7     emergency and an imperative public necessity that the

 5-8     constitutional rule requiring bills to be read on three several

 5-9     days in each house be suspended, and this rule is hereby suspended.