By Marchant                                     H.B. No. 2799

      75R8566 SKB-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to investment practices of governmental entities.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 2256.002, Government Code, is amended by

 1-5     amending Subdivisions (2) and (8), adding a new Subdivision (10),

 1-6     and renumbering existing Subdivisions (10)-(12) as Subdivisions

 1-7     (11)-(13) to read as follows:

 1-8                 (2)  "Book value" means the original acquisition cost

 1-9     [face or par value] of an investment plus [accrued interest] or

1-10     minus the accrued amortization or accretion.

1-11                 (8)  "Market value" means the current face or par value

1-12     of an investment multiplied by the net selling price of the

1-13     security as quoted by a recognized market pricing source [premium

1-14     or discount] quoted on the valuation date.

1-15                 (10)  "Qualified representative" means a person who

1-16     holds a position with a business organization that is stated on a

1-17     written instrument, who is authorized by the business organization

1-18     to execute the written instrument on behalf of the business

1-19     organization, and who is one of the following:

1-20                       (A)  for a business organization doing business

1-21     that is regulated by or registered with a securities commission, a

1-22     dealer representative who is registered under the rules of the

1-23     National Association of Securities Dealers;

1-24                       (B)  for a state or federal bank, a savings bank,

 2-1     or a state or federal credit union, a member of the loan committee

 2-2     for the bank or branch of the bank or a person authorized by

 2-3     corporate resolution to act on behalf of and bind the banking

 2-4     institution; or

 2-5                       (C)  for an investment pool, the person

 2-6     authorized by the elected official or board with authority to

 2-7     administer the activities of the investment pool to sign the

 2-8     written instrument on behalf of the investment pool.

 2-9                 (11)  "School district" means a public school district.

2-10                 (12) [(11)]  "Separately invested asset" means an

2-11     account or fund of a state agency or local government that is not

2-12     invested in a pooled fund group.

2-13                 (13) [(12)]  "State agency" means an office,

2-14     department, commission, board, or other agency that is part of any

2-15     branch of state government, an institution of higher education, and

2-16     any nonprofit corporation acting on behalf of any of those

2-17     entities.

2-18           SECTION 2.  Section 2256.004, Government Code, is amended to

2-19     read as follows:

2-20           Sec. 2256.004.  APPLICABILITY.  This subchapter does not

2-21     apply to:

2-22                 (1)  a public retirement system as defined by Section

2-23     802.001;

2-24                 (2)  state funds invested as authorized by Section

2-25     404.024;

2-26                 (3)  an institution of higher education having total

2-27     endowments of at least $95 million in book value on May 1, 1995;

 3-1     [or]

 3-2                 (4)  funds invested by the Veterans' Land Board as

 3-3     authorized by Chapter 161, 162, or 164, Natural Resources Code; or

 3-4                 (5)  a deferred compensation plan that qualifies under

 3-5     either Section 401(k) or 457 of the Internal Revenue Code of 1986

 3-6     (26 U.S.C.  Section 1 et seq.), as amended.

 3-7           SECTION 3.  Section 2256.005, Government Code, is amended to

 3-8     read as follows:

 3-9           Sec. 2256.005.  INVESTMENT POLICIES; INVESTMENT STRATEGIES;

3-10     INVESTMENT OFFICER.  (a)  The governing body of an investing entity

3-11     shall adopt by rule, order, ordinance, or resolution, as

3-12     appropriate, a written investment policy regarding the investment

3-13     of its funds and funds under its control.

3-14           (b)  The investment policies must:

3-15                 (1)  be written;

3-16                 (2)  primarily emphasize safety of principal and

3-17     liquidity;

3-18                 (3)  address investment diversification, yield, and

3-19     maturity and the quality and capability of investment management;

3-20     and

3-21                 (4)  include:

3-22                       (A)  a list of the types of authorized

3-23     investments in which the investing entity's funds may be invested;

3-24                       (B)  the maximum allowable stated maturity of any

3-25     individual investment owned by the entity; [and]

3-26                       (C)  for pooled fund groups, the maximum

3-27     [average] dollar-weighted average maturity allowed based on the

 4-1     stated maturity date for the portfolio;

 4-2                       (D)  a requirement for comparative review of

 4-3     alternative investments to ensure that a fair market price is

 4-4     received on the purchase or sale of any security; and

 4-5                       (E)  a requirement for settlement of all

 4-6     transactions, except investment pool funds and mutual funds, on a

 4-7     delivery versus payment basis.

 4-8           (c)  The investment policies may provide that bids for

 4-9     certificates of deposit be solicited:

4-10                 (1)  orally;

4-11                 (2)  in writing;

4-12                 (3)  electronically; or

4-13                 (4)  in any combination of those methods.

4-14           (d)  As an integral part of an investment policy, the

4-15     governing body shall adopt a separate written investment strategy

4-16     for each of the funds or group of funds under its control.  Each

4-17     investment strategy must describe the investment objectives for the

4-18     particular fund using the following priorities in order of

4-19     importance:

4-20                 (1)  understanding of the suitability of the investment

4-21     to the financial requirements of the entity;

4-22                 (2)  preservation and safety of principal;

4-23                 (3)  liquidity;

4-24                 (4)  marketability of the investment if the need arises

4-25     to liquidate the investment before maturity;

4-26                 (5)  diversification of the investment portfolio; and

4-27                 (6)  yield.

 5-1           (e)  The governing body of an investing entity shall review

 5-2     its investment policy and investment strategies not less than

 5-3     annually.  The governing body shall adopt a written instrument by

 5-4     rule, order, ordinance, or resolution stating that it has reviewed

 5-5     the investment policy and investment strategies and that the

 5-6     written instrument so adopted shall record any changes made to

 5-7     either the investment policy or investment strategies.

 5-8           (f)  An investing entity may not invest its operating funds

 5-9     in authorized investments unless the investments comply with the

5-10     specific conditions related to that authorized investment and have

5-11     a final stated maturity within three years after the date of

5-12     purchase.  An investing entity may not invest its funds for debt

5-13     service in authorized investments unless the investments comply

5-14     with the specific conditions related to that authorized investment

5-15     and the final stated maturities of the investments do not exceed

5-16     the dates on which the funds must be available for debt service.

5-17     An investing entity may not invest its funds from bond proceeds and

5-18     related reserve funds in authorized investments unless the

5-19     investments comply with the specific conditions related to that

5-20     authorized investment and the investments are consistent with a

5-21     letter of advice from bond counsel, the investing entity's No

5-22     Arbitrage Certificate, and the investing entity's stated investment

5-23     policy.

5-24           (g)  Each investing entity shall designate, by rule, order,

5-25     ordinance, or resolution, as appropriate, one or more officers or

5-26     employees of the state agency, local government, or investment pool

5-27     as investment officer to be responsible for the investment of its

 6-1     funds[.  Unless otherwise authorized by law, a person may not

 6-2     deposit, withdraw, invest, transfer, or manage in any other manner

 6-3     funds of a state agency, local government, or investment pool

 6-4     without express written authority of the governing body, chief

 6-5     executive officer, or chief financial officer of the state agency,

 6-6     local government, or investment pool,] consistent with the

 6-7     investment policy adopted by the entity.  Authority granted to a

 6-8     person to [deposit, withdraw,] invest[, transfer, or manage] an

 6-9     entity's funds is effective until rescinded by the investing entity

6-10     or until termination of the person's employment by the investing

6-11     entity.  In the administration of the duties of an investment

6-12     officer, the person designated as investment officer shall exercise

6-13     the judgment and care, under prevailing circumstances, that a

6-14     prudent person would exercise in the management of the person's own

6-15     affairs.  Unless authorized by law, a person may not deposit,

6-16     withdraw, transfer, or manage in any other manner the funds of the

6-17     county.

6-18           (h) [(g)]  Subsection (g) [(f)] does not apply to a state

6-19     agency, local government, or investment pool for which an officer

6-20     of the entity is assigned by law the function of investing its

6-21     funds.

6-22           (i) [(h)]  An officer or employee of a commission created

6-23     under Chapter 391, Local Government Code, is ineligible to be

6-24     designated as an investment officer under Subsection (g) for any

6-25     investing entity other than for that commission [(f)].

6-26           (j) [(i)]  An investment officer of an entity who has a

6-27     personal business relationship with a business organization

 7-1     offering to engage in an investment transaction with [an entity

 7-2     seeking to sell an investment to] the entity shall file a statement

 7-3     disclosing that personal business interest.  An investment officer

 7-4     who is related within the second degree by affinity or

 7-5     consanguinity, as determined under Chapter 573, to an individual

 7-6     seeking to sell an investment to the investment officer's entity

 7-7     shall file a statement disclosing that relationship.  A statement

 7-8     required under this subsection must be filed with the Texas Ethics

 7-9     Commission and the governing body of the entity.  For purposes of

7-10     this subsection, an investment officer has a personal business

7-11     relationship with a business organization if:

7-12                 (1)  the investment officer owns 10 percent or more of

7-13     the voting stock or shares of the business organization or owns

7-14     $5,000 or more of the fair market value of the business

7-15     organization;

7-16                 (2)  funds received by the investment officer from the

7-17     business organization exceed 10 percent of the investment officer's

7-18     gross income for the previous year; or

7-19                 (3)  the investment officer has acquired from the

7-20     business organization during the previous year investments with a

7-21     book value of $2,500 or more for the personal account of the

7-22     investment officer.

7-23           (k) [(j)]  The governing body of an investing entity may

7-24     specify in its investment policy that any investment authorized by

7-25     this chapter is not suitable.

7-26           (l) [(k)]  A written copy of the investment policy shall be

7-27     presented to any person offering to engage in an investment

 8-1     transaction with an investing entity [seeking to sell to the entity

 8-2     an authorized investment].  For purposes of this subsection, a

 8-3     business organization includes investment pools.  Nothing in this

 8-4     subsection relieves the investing entity of the responsibility for

 8-5     monitoring the investments made by the investing entity to

 8-6     determine that they are in compliance with the investment policy.

 8-7     The qualified representative [registered principal] of the business

 8-8     organization offering to engage in an investment  transaction with

 8-9     an investing entity [seeking to sell an authorized investment]

8-10     shall execute a written instrument in a form acceptable to the

8-11     investing entity and the business organization substantially to the

8-12     effect that the business organization [registered principal] has:

8-13                 (1)  received and [thoroughly] reviewed the investment

8-14     policy of the entity; and

8-15                 (2)  acknowledged that the business organization has

8-16     implemented reasonable procedures and controls in an effort to

8-17     preclude [imprudent investment activities arising out of]

8-18     investment transactions conducted between the entity and the

8-19     organization that are not authorized by the entity's investment

8-20     policy, except to the extent that this authorization is dependent

8-21     on the portfolio over which the business organization has no

8-22     control or knowledge.

8-23           (m) [(l)]  The investment officer of an entity may not

8-24     acquire or otherwise obtain any authorized investment described in

8-25     the investment policy of the investing entity [buy any securities]

8-26     from a person who has not delivered to the entity the [an]

8-27     instrument required [in substantially the form provided] by

 9-1     Subsection (l) [(k)].

 9-2           (n) [(m)]  An investing entity, in conjunction with its

 9-3     annual financial audit, shall perform a compliance audit of

 9-4     management controls on investments and adherence to the entity's

 9-5     established investment policies.  State agencies shall report the

 9-6     results of the audit performed under this subsection to the state

 9-7     auditor.  The state auditor shall compile the results of reports

 9-8     received under this subsection and annually report those results to

 9-9     the legislative audit committee.

9-10           SECTION 4.  Section 2256.007, Government Code, is amended by

9-11     adding Subsection (d) to read as follows:

9-12           (d)  An investment officer shall attend a training session

9-13     not less than once in a two-year period and may receive training

9-14     from any independent source approved by the governing body of the

9-15     state agency.  The investment officer shall prepare a report on

9-16     this subchapter and deliver the report to the governing body of the

9-17     state agency not later than the 180th day after the last day of

9-18     each regular session of the legislature.

9-19           SECTION 5.  Section 2256.008(a), Government Code, is amended

9-20     to read as follows:

9-21           (a)  The treasurer, the chief financial officer if the

9-22     treasurer is not the chief financial officer, and the investment

9-23     officer of a local government shall:

9-24                 (1)  attend at least one training session relating to

9-25     the treasurer's or officer's responsibilities under this subchapter

9-26     [chapter] within 12 months after taking office or assuming duties;

9-27     and

 10-1                (2)  attend an investment training session not less

 10-2    than once in a two-year period and receive not less than 10 hours

 10-3    of instruction relating to investment responsibilities under this

 10-4    subchapter from an independent source approved by the governing

 10-5    body of the local government.

 10-6          SECTION 6.  Section 2256.010, Government Code, is amended to

 10-7    read as follows:

 10-8          Sec. 2256.010.  AUTHORIZED INVESTMENTS:  CERTIFICATES OF

 10-9    DEPOSIT AND SHARE CERTIFICATES.  A certificate of deposit is an

10-10    authorized investment under this subchapter if the certificate is

10-11    issued by a state or national bank domiciled in this state, a

10-12    savings bank [and loan association] domiciled in this state, or a

10-13    state or federal credit union domiciled in this state and is:

10-14                (1)  guaranteed or insured by the Federal Deposit

10-15    Insurance Corporation or its successor or the National Credit Union

10-16    Share Insurance Fund or its successor;

10-17                (2)  secured by obligations that are described by

10-18    Section 2256.009(a), including mortgage backed securities directly

10-19    issued by a federal agency or instrumentality that have a market

10-20    value of not less than the principal amount of the certificates,

10-21    but excluding those mortgage backed securities of the nature

10-22    described by Section 2256.009(b); or

10-23                (3)  secured in any other manner and amount provided by

10-24    law for deposits of the investing entity.

10-25          SECTION 7.  Section 2256.014(a), Government Code, is amended

10-26    to read as follows:

10-27          (a)  A no-load money market mutual fund is an authorized

 11-1    investment under this subchapter if the mutual fund:

 11-2                (1)  is registered with and regulated by the Securities

 11-3    and Exchange Commission;

 11-4                (2)  provides the investing entity with a prospectus

 11-5    and other information required by the Securities Exchange Act of

 11-6    1934 (15 U.S.C. Section 78a et seq.) or the Investment Company Act

 11-7    of 1940 (15 U.S.C. Section 80a-1 et seq.);

 11-8                (3)  has a dollar-weighted average stated maturity of

 11-9    90 days or fewer; and

11-10                (4) [(3)]  includes in its investment objectives the

11-11    maintenance of a stable net asset value of $1 for each share.

11-12          SECTION 8.  The heading to Section 2256.015, Government Code,

11-13    is amended to read as follows:

11-14          Sec. 2256.015.  AUTHORIZED INVESTMENTS FOR STATE AGENCIES:

11-15    GUARANTEED INVESTMENT CONTRACTS.

11-16          SECTION 9.  Section 2256.016, Government Code, is amended by

11-17    adding Subsections (f), (g), and (h) to read as follows:

11-18          (f)  To be eligible to receive funds from and invest funds on

11-19    behalf of an entity under this chapter, a public funds investment

11-20    pool created to function as a money market mutual fund must mark

11-21    its portfolio to market daily, and to the extent reasonably

11-22    possible, stabilize at a $1 net asset value.  If the ratio of the

11-23    market value of the portfolio divided by the book value of the

11-24    portfolio is less than 0.995 or greater than 1.005, portfolio

11-25    holdings shall be sold as necessary to maintain the ratio between

11-26    0.995 and 1.005.

11-27          (g)  To be eligible to receive funds from and invest funds on

 12-1    behalf of an entity under this chapter, a public funds investment

 12-2    pool must have an advisory board composed:

 12-3                (1)  equally of participants in the pool and other

 12-4    persons who do not have a business relationship with the pool and

 12-5    are qualified to advise the pool, for a public funds investment

 12-6    pool created under Chapter 791 and managed by a state agency; or

 12-7                (2)  of participants in the pool and other persons who

 12-8    do not have a business relationship with the pool and are qualified

 12-9    to advise the pool, for other investment pools.

12-10          (h)  To maintain eligibility to receive funds from and invest

12-11    funds on behalf of an entity under this chapter, an investment pool

12-12    must be continuously rated no lower than AAA or AAA-m or at an

12-13    equivalent rating by at least one nationally recognized rating

12-14    service.

12-15          SECTION 10.  Section 2256.017, Government Code, is amended to

12-16    read as follows:

12-17          Sec. 2256.017.  EXISTING INVESTMENTS [PORTFOLIO OF CERTAIN

12-18    INVESTMENT POOLS].  An entity is not required to liquidate

12-19    investments that were  authorized investments at the time of

12-20    purchase  [A public funds investment pool created to function as a

12-21    money market mutual fund must mark its portfolio to market daily

12-22    and, to the extent reasonably possible, stabilize at a $1 net asset

12-23    value.  If the ratio of the market value of the portfolio divided

12-24    by the book value of the portfolio is less than 0.995 or greater

12-25    than 1.005, portfolio holdings shall be sold as necessary to

12-26    maintain the ratio between 0.995 and 1.005].

12-27          SECTION 11.  Section 2256.023, Government Code, is amended by

 13-1    amending Subsection (b) and adding Subsection (d) to read as

 13-2    follows:

 13-3          (b)  The report must:

 13-4                (1)  describe in detail the investment position of the

 13-5    entity on the date of the report;

 13-6                (2)  be prepared jointly by all investment officers of

 13-7    the entity;

 13-8                (3)  be signed by each investment officer of the

 13-9    entity;

13-10                (4)  contain a summary statement, prepared in

13-11    compliance with generally accepted accounting principles, of each

13-12    pooled fund group that states the fully accrued income for the

13-13    reporting period:

13-14                      (A)  beginning market value for the reporting

13-15    period;

13-16                      (B)  additions and changes to the market value

13-17    during the period; and

13-18                      (C)  ending market value for the period;

13-19                (5)  state the book value and market value of each

13-20    separately invested asset at the beginning and end of the reporting

13-21    period by the type of asset and fund type invested;

13-22                (6)  state the maturity date of each separately

13-23    invested asset that has a maturity date;

13-24                (7)  state the account or fund or pooled group fund in

13-25    the state agency or local government for which each individual

13-26    investment was acquired; and

13-27                (8)  state the compliance of the investment portfolio

 14-1    of the state agency or local government as it relates to:

 14-2                      (A)  the investment strategy expressed in the

 14-3    agency's or local government's investment policy; and

 14-4                      (B)  relevant provisions of this chapter.

 14-5          (d)  If an entity invests in other than money market mutual

 14-6    funds, investment pools or accounts offered by its depository bank

 14-7    in the form of certificates of deposit, or money market accounts or

 14-8    similar accounts, the reports prepared by the investment officers

 14-9    under this subsection shall be formally reviewed at least annually

14-10    by an independent auditor, and the result of the review shall be

14-11    reported to the governing body by that auditor.

14-12          SECTION 12.  Subchapter A, Chapter 2256, Government Code, is

14-13    amended by adding Sections 2256.025-2256.027 to read as follows:

14-14          Sec. 2256.025.  SELECTION OF AUTHORIZED BROKERS.  The

14-15    governing body of an entity subject to this subchapter or the

14-16    designated investment committee of the entity shall, at least

14-17    annually, review, revise, and adopt a list of qualified brokers

14-18    that are authorized to engage in investment transactions with the

14-19    entity.

14-20          Sec. 2256.026.  COLLATERALIZATION OF DEPOSITORY ACCOUNTS.

14-21    Collateral pledged by an entity's depository bank to secure the

14-22    public funds of an entity that have been deposited in the bank must

14-23    qualify as an authorized investment for that type of entity unless

14-24    the governing body of that entity authorizes the use of other

14-25    assets as collateral by order, rule, ordinance, or resolution.

14-26          Sec. 2256.027.  STATUTORY COMPLIANCE.  All investments made

14-27    by entities must comply with this subchapter and all federal,

 15-1    state, and local statutes, rules, or regulations.

 15-2          SECTION 13.  Sections 2256.018 and 2256.019, Government Code,

 15-3    are repealed.

 15-4          SECTION 14.  This Act takes effect September 1, 1997, and

 15-5    applies only to investment activities of a governmental entity

 15-6    subject to Chapter 2256, Government Code, that occur on or after

 15-7    that date.

 15-8          SECTION 15.  The importance of this legislation and the

 15-9    crowded condition of the calendars in both houses create an

15-10    emergency and an imperative public necessity that the

15-11    constitutional rule requiring bills to be read on three several

15-12    days in each house be suspended, and this rule is hereby suspended.