By Maxey                                        H.B. No. 2722

      75R2893 BEM-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the cashing of certain checks and to the registration

 1-3     of certain persons engaged in a check-cashing business; providing

 1-4     penalties.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  Title 16, Revised Statutes, is amended by adding

 1-7     Articles 352 and 353 to read as follows:

 1-8           Art. 352.  Registration of Check-Cashing Business

 1-9           Sec. 1.  SHORT TITLE.  This article may be cited as the

1-10     "Consumer Check-Cashing Act."

1-11           Sec. 2.  DEFINITIONS.  In this article:

1-12                 (1)  "Check-cashing business" means a person in the

1-13     business of cashing checks for a fee, other than:

1-14                       (A)  a bank, savings and loan association,

1-15     savings bank, or credit union;

1-16                       (B)  a grocery or convenience store; or

1-17                       (C)  a person that cashes checks as an incident

1-18     to another business for a consideration of not more than 50 cents a

1-19     check.

1-20                 (2)  "Check-cashing service" means:

1-21                       (A)  the issuance, redemption, or cashing of a

1-22     two-party or multi-party check or similar negotiable instrument;

1-23                       (B)  the sale, redemption, or cashing of a

1-24     travelers check, money order, or similar negotiable instrument by

 2-1     an agent of the issuer of the instrument that is authorized to do

 2-2     so; or

 2-3                       (C)  the transmittal of money in any form by wire

 2-4     or similar method.

 2-5                 (3)  "Convenience store" means a retail establishment

 2-6     that is primarily engaged in the retail sale of groceries and other

 2-7     products and services, including:

 2-8                       (A)  prepared foods;

 2-9                       (B)  household items and toiletries; and

2-10                       (C)  gasoline and services.

2-11                 (4)  "Finance commission" means the Finance Commission

2-12     of Texas.

2-13                 (5)  "Person" means an individual, corporation,

2-14     association, or other business entity.

2-15           Sec. 3.  REGISTRATION REQUIRED.  A check-cashing business may

2-16     not operate in this state unless the business:

2-17                 (1)  is registered with the finance commission under

2-18     this article; and

2-19                 (2)  operates in accordance with this article and the

2-20     rules adopted under this article.

2-21           Sec. 4.  REGISTRATION.  (a)  To register, a person  must file

2-22     a sworn, written application with the finance commission.  The

2-23     finance commission by rule shall adopt the form of the application.

2-24           (b)  An application for registration must identify:

2-25                 (1)  each officer of the business;

2-26                 (2)  each person that owns or controls more than five

2-27     percent of the business;

 3-1                 (3)  the street address at which the business will be

 3-2     operated; and

 3-3                 (4)  any other information required by the finance

 3-4     commission.

 3-5           (c)  An applicant must comply with bonding or minimum capital

 3-6     requirements established by the finance commission.

 3-7           Sec. 5.  OPERATING REQUIREMENTS.  A check-cashing business

 3-8     shall:

 3-9                 (1)  post a schedule of all fees charged for

3-10     check-cashing services in a manner that is conspicuous to customers

3-11     of the check-cashing business;

3-12                 (2)  issue a receipt for each check-cashing service

3-13     provided that shows:

3-14                       (A)  the amount of the check or other instrument

3-15     with respect to which the service is provided;

3-16                       (B)  the fee charged for the service; and

3-17                       (C)  the date the service is provided; and

3-18                 (3)  post a notice that is conspicuous to the public

3-19     that:

3-20                       (A)  contains the name and address of the finance

3-21     commission; and

3-22                       (B)  advises the public that a person may make a

3-23     complaint to the finance commission about the check-cashing

3-24     business.

3-25           Sec. 6.  MAXIMUM FEE.  A check-cashing business may charge a

3-26     fee for providing a check-cashing service in an amount that is not

3-27     more than the greater of 25 cents or .5 percent of the face value

 4-1     of the instrument being cashed or the amount being wired.

 4-2           Sec. 7.  FINANCE COMMISSION RULES.  (a)  The finance

 4-3     commission shall adopt rules that establish:

 4-4                 (1)  a centralized system for filing of check-cashing

 4-5     business registration documents;

 4-6                 (2)  criteria for refusal, suspension, and revocation

 4-7     of a check-cashing business registration; and

 4-8                 (3)  administrative penalties for violations of this

 4-9     article and rules adopted by the finance commission under this

4-10     article.

4-11           (b)  The finance commission by rule may adopt other

4-12     requirements for the registration and regulation of the

4-13     check-cashing business and may adopt  rules necessary to implement

4-14     this article.

4-15           Sec. 8.  ADMINISTRATIVE PENALTY.  (a)  The finance commission

4-16     may impose an administrative penalty against a person registered

4-17     under this article who violates this article or a rule or order

4-18     adopted under this article.

4-19           (b)  The penalty for a violation may be in an amount not to

4-20     exceed $5,000.  Each day that a violation continues or occurs is a

4-21     separate violation for the purposes of imposing a penalty.

4-22           (c)  The amount of the penalty shall be based on:

4-23                 (1)  the seriousness of the violation, including the

4-24     nature, circumstances, extent, and gravity of any prohibited acts,

4-25     and the hazard or potential hazard created to the health, safety,

4-26     or welfare of the public;

4-27                 (2)  the history of any previous violations;

 5-1                 (3)  the amount necessary to deter future violations;

 5-2                 (4)  efforts to correct the violation; and

 5-3                 (5)  any other matter that justice may require.

 5-4           (d)  If the finance commission determines that a violation

 5-5     has occurred, the finance commission may issue a report that states

 5-6     the facts on which the determination is based.  The finance

 5-7     commission shall make a recommendation on the imposition of a

 5-8     penalty, including a recommendation on the amount of the penalty.

 5-9           (e)  Within 14 days after the date on which the report is

5-10     issued, the finance commission shall give written notice of the

5-11     report to the person who committed the alleged violation.  The

5-12     notice may be given by certified mail.  The notice must include a

5-13     brief summary of the alleged violation and a statement of the

5-14     amount of the recommended penalty and must inform the person that

5-15     the person has a right to a hearing on the occurrence of the

5-16     violation, the amount of the penalty, or both the occurrence of the

5-17     violation and the amount of the penalty.

5-18           (f)  Within 20 days after the date the person receives the

5-19     notice, the person in writing may accept the determination and

5-20     recommended penalty of the finance commission or may make a written

5-21     request for a hearing on the occurrence of the violation, the

5-22     amount of the penalty, or both the occurrence of the violation and

5-23     the amount of the penalty.

5-24           (g)  If the person accepts the determination and recommended

5-25     penalty of the finance commission, the finance commission shall

5-26     issue an order and impose the recommended penalty.

5-27           (h)  If the person requests a hearing or fails to respond

 6-1     timely to the notice, the finance commission shall set a hearing

 6-2     and give notice of the hearing to the person.  The hearing shall be

 6-3     held by an administrative law judge of the State Office of

 6-4     Administrative Hearings.  The administrative law judge shall make

 6-5     findings of fact and conclusions of law and promptly issue to the

 6-6     finance commission a proposal for a decision about the occurrence

 6-7     of the violation and the amount of the penalty.  Based on the

 6-8     findings of fact, conclusions of law, and proposal for a decision,

 6-9     the finance commission by order may find that a violation has

6-10     occurred and impose a penalty or may find that no violation

6-11     occurred.

6-12           (i)  The notice of the finance commission's order given to

6-13     the person under Chapter 2001, Government Code, must include a

6-14     statement of the right of the person to judicial review of the

6-15     order.

6-16           (j)  Within 30 days after the date the finance commission's

6-17     order is final as provided by Section 2001.144, Government Code,

6-18     the person shall:

6-19                 (1)  pay the amount of the penalty;

6-20                 (2)  pay the amount of the penalty and file a petition

6-21     for judicial review contesting the occurrence of the violation, the

6-22     amount of the penalty, or both the occurrence of the violation and

6-23     the amount of the penalty; or

6-24                 (3)  without paying the amount of the penalty, file a

6-25     petition for judicial review contesting the occurrence of the

6-26     violation, the amount of the penalty, or both the occurrence of the

6-27     violation and the amount of the penalty.

 7-1           (k)  Within the 30-day period, a person who acts under

 7-2     Subsection (j)(3) of this section may:

 7-3                 (1)  stay enforcement of the penalty by:

 7-4                       (A)  paying the amount of the penalty to the

 7-5     court for placement in an escrow account; or

 7-6                       (B)  giving to the court a supersedeas bond

 7-7     approved by the court for the amount of the penalty and that is

 7-8     effective until all judicial review of the finance commission's

 7-9     order is final; or

7-10                 (2)  request the court to stay enforcement of the

7-11     penalty by:

7-12                       (A)  filing with the court a sworn affidavit of

7-13     the person stating that the person is financially unable to pay the

7-14     amount of the penalty and is financially unable to give the

7-15     supersedeas bond; and

7-16                       (B)  giving a copy of the affidavit to the

7-17     finance commission by certified mail.

7-18           (l)  If the finance commission receives a copy of an

7-19     affidavit under Subsection (k)(2) of this section, the finance

7-20     commission may file with the court within five days after the date

7-21     the copy is received a contest to the affidavit.  The court shall

7-22     hold a hearing on the facts alleged in the affidavit as soon as

7-23     practicable and shall stay the enforcement of the penalty on

7-24     finding that the alleged facts are true.  The person who files an

7-25     affidavit has the burden of proving that the person is financially

7-26     unable to pay the amount of the penalty and to give a supersedeas

7-27     bond.

 8-1           (m)  If the person does not pay the amount of the penalty and

 8-2     the enforcement of the penalty is not stayed, the finance

 8-3     commission may refer the matter to the attorney general for

 8-4     collection of the penalty.

 8-5           (n)  Judicial review of the order of the finance commission:

 8-6                 (1)  is instituted by filing a petition as provided by

 8-7     Section 2001.176, Government Code; and

 8-8                 (2)  is under the substantial evidence rule.

 8-9           (o)  If the court sustains the occurrence of the violation,

8-10     the court may uphold or reduce the amount of the penalty and order

8-11     the person to pay the full or reduced amount of the penalty.  If

8-12     the court does not sustain the occurrence of the violation, the

8-13     court shall order that no penalty is owed.

8-14           (p)  When the judgment of the court becomes final, the court

8-15     shall proceed under this subsection.  If the person paid the amount

8-16     of the penalty and if that amount is reduced or is not upheld by

8-17     the court, the court shall order that the appropriate amount plus

8-18     accrued interest be remitted to the person.  The rate of interest

8-19     is the rate charged on loans to depository institutions by the New

8-20     York Federal Reserve Bank, and the interest shall be paid for the

8-21     period beginning on the date the penalty was paid and ending on the

8-22     date the penalty is remitted.  If the person gave a supersedeas

8-23     bond and if the amount of the penalty is not upheld by the court,

8-24     the court shall order the release of the bond.  If the person gave

8-25     a supersedeas bond and if the amount of the penalty is reduced, the

8-26     court shall order the release of the bond after the person pays the

8-27     amount.

 9-1           (q)  A penalty collected under this section shall be remitted

 9-2     to the comptroller for deposit in the general revenue fund.

 9-3           (r)  All proceedings under this section are subject to

 9-4     Chapter 2001, Government Code.

 9-5           Art. 353.  Requirement To Cash Government Check

 9-6           Sec. 1.  DEFINITIONS.  In this article:

 9-7                 (1)  "Financial institution" means a state or national

 9-8     bank, state or federal savings and loan association, or state or

 9-9     federal savings bank.

9-10                 (2)  "Government check" means a check issued by this

9-11     state or the United States.

9-12           Sec. 2.  REQUIREMENT TO CASH.  A financial institution shall

9-13     cash a government check and a state or federal credit union shall

9-14     cash a government check presented by a member of the credit union

9-15     if:

9-16                 (1)  the check is presented for cashing by a payee of

9-17     the check;

9-18                 (2)  the check is properly endorsed by each payee of

9-19     the check;

9-20                 (3)  the person who presents the check for cashing

9-21     provides:

9-22                       (A)  a valid driver's license that bears the name

9-23     and address of the person providing the license as identification;

9-24                       (B)  a valid photographic identification card

9-25     issued by a state or federal agency; or

9-26                       (C)  a valid United States passport;

9-27                 (4)  the check and the identification documents

 10-1    required under Subdivision (3) of this section do not bear evidence

 10-2    of forgery, fraud, counterfeiting, alteration, or other tampering;

 10-3    and

 10-4                (5)  the check is for an amount that is less than

 10-5    $2,500.

 10-6          Sec. 3.  ENFORCEMENT.  This article shall be enforced by the

 10-7    official who is responsible for regulating the entity under

 10-8    Subtitle 2, Title 79, Revised Statutes (Article 5069-2.01 et seq.,

 10-9    Vernon's Texas Civil Statutes), as provided by Subsection (l),

10-10    Article 2.01, Title 79, Revised Statutes (Article 5069-2.01,

10-11    Vernon's Texas Civil Statutes).

10-12          Sec. 4.  CIVIL PENALTY.  A financial institution or credit

10-13    union that violates this article or a rule adopted under this

10-14    article is subject to a civil penalty of not more than $500 for

10-15    each violation.  The attorney general shall bring suit to collect

10-16    the penalty.

10-17          Sec. 5.  RULES OF CONSTRUCTION.  This article does not

10-18    prohibit a financial institution or credit union from charging a

10-19    fee for cashing a government check.

10-20          SECTION 2.  This Act takes effect January 1, 1998, except

10-21    that a check-cashing business is not required to be registered

10-22    under Article 352, Revised Statutes, as added by this Act, before

10-23    September 1, 1999.

10-24          SECTION 3.  The importance of this legislation and the

10-25    crowded condition of the calendars in both houses create an

10-26    emergency and an imperative public necessity that the

10-27    constitutional rule requiring bills to be read on three several

 11-1    days in each house be suspended, and this rule is hereby suspended.