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.