AN ACT
1-1 relating to nonsubstantive additions to and corrections in enacted
1-2 codes, including the nonsubstantive codification of various laws
1-3 omitted from enacted codes, and to conforming codifications enacted
1-4 by the 75th Legislature to other Acts of that legislature.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1. GENERAL PROVISIONS
1-7 SECTION 1.01. This Act is enacted as part of the state's
1-8 continuing statutory revision program under Chapter 323, Government
1-9 Code. This Act is a revision for purposes of Section 43, Article
1-10 III, Texas Constitution, and has the purposes of:
1-11 (1) codifying without substantive change various
1-12 statutes that were omitted from enacted codes;
1-13 (2) conforming codifications enacted by the 75th
1-14 Legislature to other Acts of that legislature that amended the laws
1-15 codified or added new law to subject matter codified;
1-16 (3) making necessary corrections to enacted
1-17 codifications; and
1-18 (4) renumbering titles, chapters, and sections of
1-19 codes that duplicate title, chapter, or section numbers.
1-20 SECTION 1.02. (a) The repeal of a statute by this Act does
1-21 not affect an amendment, revision, or reenactment of the statute by
1-22 the 76th Legislature, Regular Session, 1999. The amendment,
1-23 revision, or reenactment is preserved and given effect as part of
1-24 the code provision that revised the statute so amended, revised, or
2-1 reenacted.
2-2 (b) If any provision of this Act conflicts with a statute
2-3 enacted by the 76th Legislature, Regular Session, 1999, the statute
2-4 controls.
2-5 SECTION 1.03. (a) A transition or saving provision of a law
2-6 codified by this Act applies to the codified law to the same extent
2-7 as it applied to the original law.
2-8 (b) The repeal of a transition or saving provision by this
2-9 Act does not affect the application of the provision to the
2-10 codified law.
2-11 (c) In this section, "transition provision" includes any
2-12 temporary provision providing for a special situation in the
2-13 transition period between the existing law and the establishment or
2-14 implementation of the new law.
2-15 ARTICLE 2. CHANGES RELATING TO ALCOHOLIC BEVERAGE CODE
2-16 SECTION 2.01. Section 106.115, Alcoholic Beverage Code, as
2-17 amended by Chapters 577 and 1013, Acts of the 75th Legislature,
2-18 Regular Session, 1997, is amended and reenacted to read as follows:
2-19 Sec. 106.115. ATTENDANCE AT ALCOHOL AWARENESS COURSE;
2-20 LICENSE SUSPENSION. (a) On conviction of a minor of an offense
2-21 under Section 106.02, 106.025, 106.04, 106.041, 106.05, or 106.07
2-22 the court, in addition to assessing a fine as provided by those
2-23 sections, shall require a defendant who has not been previously
2-24 convicted of an offense under one of those sections to attend an
2-25 alcohol awareness program approved by the Texas Commission on
2-26 Alcohol and Drug Abuse. If the defendant has been previously
3-1 convicted once or more of an offense under one or more of those
3-2 sections, the court may require the defendant to attend the alcohol
3-3 awareness course. If the defendant is younger than 18 years of
3-4 age, the court may require the parent or guardian of the defendant
3-5 to attend the program with the defendant. The Texas Commission on
3-6 Alcohol and Drug Abuse:
3-7 (1) is responsible for the administration of the
3-8 certification of approved alcohol awareness programs;
3-9 (2) may charge a nonrefundable application fee for:
3-10 (A) initial certification of the approval; or
3-11 (B) renewal of the certification;
3-12 (3) shall adopt rules regarding alcohol awareness
3-13 programs approved under this section; and
3-14 (4) shall monitor, coordinate, and provide training to
3-15 a person who provides an alcohol awareness program.
3-16 [(b) If the defendant resides in a rural or other area in
3-17 which access to an alcohol awareness program is not readily
3-18 available, the court shall require the defendant to perform eight
3-19 to 12 hours of community service instead of participating in an
3-20 alcohol awareness program.]
3-21 (b) When requested, an alcohol awareness program may be
3-22 taught in languages other than English.
3-23 (c) The court shall require the defendant to present to the
3-24 court, within 90 days of the date of final conviction, evidence in
3-25 the form prescribed by the court that the defendant, as ordered by
3-26 the court, has satisfactorily completed an alcohol awareness
4-1 program or performed the required hours of community service. For
4-2 good cause the court may extend this period by not more than 90
4-3 days. If the defendant presents the required evidence within the
4-4 prescribed period, the court may reduce the assessed fine to an
4-5 amount equal to no less than one-half of the amount of the initial
4-6 fine.
4-7 (d) If the defendant does not present the required evidence
4-8 within the prescribed period, the court shall order the Department
4-9 of Public Safety to suspend the defendant's driver's license or
4-10 permit for a period not to exceed six months or, if the defendant
4-11 does not have a license or permit, to deny the issuance of a
4-12 license or permit to the defendant for that period.
4-13 (e) The Department of Public Safety shall send notice of the
4-14 suspension or prohibition order issued under Subsection (d) by
4-15 certified mail, return receipt requested, to the defendant. The
4-16 notice must include the date of the suspension or prohibition
4-17 order, the reason for the suspension or prohibition, and the period
4-18 covered by the suspension or prohibition.
4-19 ARTICLE 3. CHANGES RELATING TO CODE OF
4-20 CRIMINAL PROCEDURE
4-21 SECTION 3.01. Subsection (c), Article 2.121, Code of
4-22 Criminal Procedure, is amended to correct references to read as
4-23 follows:
4-24 (c) A railroad peace officer may not issue a traffic
4-25 citation for a violation of Chapter 521, Transportation Code [173,
4-26 Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b,
5-1 Vernon's Texas Civil Statutes)], or Subtitle C, Title 7,
5-2 Transportation Code [the Uniform Act Regulating Traffic on Highways
5-3 (Article 6701d, Vernon's Texas Civil Statutes)].
5-4 SECTION 3.02. Subsection (g), Article 14.03, Code of
5-5 Criminal Procedure, is amended to correct a reference to read as
5-6 follows:
5-7 (g) A peace officer [who is] listed in Subdivision (1), (2),
5-8 (3), or (4), Article 2.12, who is licensed under Chapter 415,
5-9 Government Code, and is outside of the officer's jurisdiction may
5-10 arrest without a warrant a person who commits any offense within
5-11 the officer's presence or view, except that an officer who is
5-12 outside the officer's jurisdiction may arrest a person for a
5-13 violation of Subtitle C, Title 7, Transportation Code, [the Uniform
5-14 Act Regulating Traffic on Highways (Article 6701d, Vernon's Texas
5-15 Civil Statutes)] only if the officer is listed in Subdivision (4),
5-16 Article 2.12. A peace officer making an arrest under this
5-17 subsection shall as soon as practicable after making the arrest
5-18 notify a law enforcement agency having jurisdiction where the
5-19 arrest was made. The law enforcement agency shall then take
5-20 custody of the person committing the offense and take the person
5-21 before a magistrate in compliance with Article 14.06.
5-22 SECTION 3.03. Article 42.111, Code of Criminal Procedure, is
5-23 amended to correct references to read as follows:
5-24 Art. 42.111. DEFERRAL OF PROCEEDINGS IN CASES APPEALED TO
5-25 COUNTY COURT. If a defendant convicted of a misdemeanor punishable
5-26 by fine only appeals the conviction to a county court, on the trial
6-1 in county court the defendant may enter a plea of guilty or nolo
6-2 contendere to the offense. If the defendant enters a plea of
6-3 guilty or nolo contendere, the court may defer further proceedings
6-4 without entering an adjudication of guilt in the same manner as
6-5 provided for the deferral of proceedings in justice court or
6-6 municipal court under Article 45.54 of this code. This article
6-7 does not apply to a misdemeanor case disposed of under Subchapter
6-8 B, Chapter 543, Transportation Code [by Section 143A, Uniform Act
6-9 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
6-10 Statutes)], or a serious traffic violation as defined in Section
6-11 522.003 of that code [3(26), Texas Commercial Driver's License Act
6-12 (Article 6687b-2, Revised Statutes)].
6-13 SECTION 3.04. Subsections (g), (h), (i), (j), (k), and (m),
6-14 Section 13, Article 42.12, Code of Criminal Procedure, are amended
6-15 to correct references to read as follows:
6-16 (g) A jury that recommends community supervision for a
6-17 person convicted of an offense under Sections 49.04-49.08, Penal
6-18 Code, may recommend that any driver's license issued to the
6-19 defendant under Chapter 521, Transportation Code [173, Acts of the
6-20 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
6-21 Texas Civil Statutes)], not be suspended.
6-22 (h) If a person convicted of an offense under Sections
6-23 49.04-49.08, Penal Code, is placed on community supervision, the
6-24 judge shall require, as a condition of the community supervision,
6-25 that the defendant attend and successfully complete before the
6-26 181st day after the day community supervision is granted an
7-1 educational program jointly approved by the Texas Commission on
7-2 Alcohol and Drug Abuse, the Department of Public Safety, the
7-3 Traffic Safety Section of the Texas Department of Transportation,
7-4 and the community justice assistance division of the Texas
7-5 Department of Criminal Justice designed to rehabilitate persons who
7-6 have driven while intoxicated. The Texas Commission on Alcohol and
7-7 Drug Abuse shall publish the jointly approved rules and shall
7-8 monitor, coordinate, and provide training to persons providing the
7-9 educational programs. The Texas Commission on Alcohol and Drug
7-10 Abuse is responsible for the administration of the certification of
7-11 approved educational programs and may charge a nonrefundable
7-12 application fee for the initial certification of approval and for
7-13 renewal of a certificate. The judge may waive the educational
7-14 program requirement or may grant an extension of time to
7-15 successfully complete the program that expires not later than one
7-16 year after the beginning date of the person's community supervision
7-17 [probation], however, if the defendant by a motion in writing shows
7-18 good cause. In determining good cause, the judge may consider but
7-19 is not limited to: the defendant's school and work schedule, the
7-20 defendant's health, the distance that the defendant must travel to
7-21 attend an educational program, and the fact that the defendant
7-22 resides out of state, has no valid driver's license, or does not
7-23 have access to transportation. The judge shall set out the finding
7-24 of good cause for waiver in the judgment. If a defendant is
7-25 required, as a condition of community supervision, to attend an
7-26 educational program or if the court waives the educational program
8-1 requirement, the court clerk shall immediately report that fact to
8-2 the Department of Public Safety, on a form prescribed by the
8-3 department, for inclusion in the person's driving record. If the
8-4 court grants an extension of time in which the person may complete
8-5 the program, the court clerk shall immediately report that fact to
8-6 the Department of Public Safety on a form prescribed by the
8-7 department. The report must include the beginning date of the
8-8 person's community supervision. Upon the successful completion of
8-9 the educational program, the person shall give notice to the
8-10 community supervision and corrections department. The department
8-11 shall then forward the notice to the court clerk. The court clerk
8-12 shall then report the date of successful completion of the
8-13 educational program to the Department of Public Safety for
8-14 inclusion in the defendant's driving record. If the department
8-15 does not receive notice that a defendant required to complete an
8-16 educational program has successfully completed the program within
8-17 the period required by this section, as shown on department
8-18 records, the department shall revoke the defendant's driver's
8-19 license, permit, or privilege or prohibit the person from obtaining
8-20 a license or permit, as provided by Sections 521.344(e) and (f),
8-21 Transportation Code [Section 24(g)(2), Chapter 173, Acts of the
8-22 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
8-23 Texas Civil Statutes)]. The department may not reinstate a license
8-24 suspended under this subsection unless the person whose license was
8-25 suspended makes application to the department for reinstatement of
8-26 the person's license and pays to the department a reinstatement fee
9-1 of $50. The department shall remit all fees collected under this
9-2 subsection to the comptroller for deposit in the general revenue
9-3 fund. This subsection does not apply to a defendant if a jury
9-4 recommends community supervision for the defendant and also
9-5 recommends that the defendant's driver's license not be suspended.
9-6 (i) If a person convicted of an offense under Sections
9-7 49.04-49.08, Penal Code, is placed on community supervision, the
9-8 court may require as a condition of community supervision that the
9-9 defendant have a device installed, on the motor vehicle owned by
9-10 the defendant or on the vehicle most regularly driven by the
9-11 defendant, that uses a deep-lung breath analysis mechanism to make
9-12 impractical the operation of the motor vehicle if ethyl alcohol is
9-13 detected in the breath of the operator and that the defendant not
9-14 operate any motor vehicle that is not equipped with that device.
9-15 If the person is convicted of an offense under Sections
9-16 49.04-49.06, Penal Code, and punished under Section 49.09(a) or
9-17 (b), Penal Code, or of a second or subsequent offense under Section
9-18 49.07 or 49.08, Penal Code, and the person after conviction of
9-19 either offense is placed on community supervision, the court shall
9-20 require as a condition of community supervision that the defendant
9-21 have the device installed on the appropriate vehicle and that the
9-22 defendant not operate any motor vehicle unless the vehicle is
9-23 equipped with that device. Before placing on community supervision
9-24 a person convicted of an offense under Sections 49.04-49.08, Penal
9-25 Code, the court shall determine from criminal history record
9-26 information maintained by the Department of Public Safety whether
10-1 the person has one or more previous convictions under Sections
10-2 49.04-49.08, Penal Code, or has one previous conviction under
10-3 Sections 49.04-49.07, Penal Code, or one previous conviction under
10-4 Section 49.08, Penal Code. If the court determines that the person
10-5 has one or more such previous convictions, the court shall require
10-6 as a condition of community supervision that the defendant have
10-7 that device installed on the motor vehicle owned by the defendant
10-8 or on the vehicle most regularly driven by the defendant and that
10-9 the defendant not operate any motor vehicle unless the vehicle is
10-10 equipped with the device described in this subsection. The court
10-11 shall require the defendant to obtain the device at the defendant's
10-12 own cost before the 30th day after the date of conviction unless
10-13 the court finds that to do so would not be in the best interest of
10-14 justice and enters its findings on record. The court shall require
10-15 the defendant to provide evidence to the court within the 30-day
10-16 period that the device has been installed on the appropriate
10-17 vehicle and order the device to remain installed on that vehicle
10-18 for a period not less than 50 percent of the supervision period.
10-19 If the court determines the offender is unable to pay for the
10-20 device, the court may impose a reasonable payment schedule not to
10-21 exceed twice the period of the court's order. The Department of
10-22 Public Safety shall approve devices for use under this subsection.
10-23 Section 521.247, Transportation Code, applies [The provisions of
10-24 Section 23A(f), Chapter 173, Acts of the 47th Legislature, Regular
10-25 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes),
10-26 apply] to the approval of a device under this subsection and the
11-1 consequences of that approval. Notwithstanding the provisions of
11-2 this section, if a person is required to operate a motor vehicle in
11-3 the course and scope of the person's employment and if the vehicle
11-4 is owned by the employer, the person may operate that vehicle
11-5 without installation of an approved ignition interlock device if
11-6 the employer has been notified of that driving privilege
11-7 restriction and if proof of that notification is with the vehicle.
11-8 This employment exemption does not apply, however, if the business
11-9 entity that owns the vehicle is owned or controlled by the person
11-10 whose driving privilege has been restricted.
11-11 (j) The judge shall require a defendant who is punished
11-12 under Section 49.09, Penal Code, as a condition of community
11-13 supervision, to attend and successfully complete an educational
11-14 program for repeat offenders approved by the Texas Commission on
11-15 Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug
11-16 Abuse shall adopt rules and shall monitor, coordinate, and provide
11-17 training to persons providing the educational programs. The Texas
11-18 Commission on Alcohol and Drug Abuse is responsible for the
11-19 administration of the certification of approved educational
11-20 programs and may charge a nonrefundable application fee for initial
11-21 certification of approval or for renewal of the certification. The
11-22 judge may waive the educational program requirement only if the
11-23 defendant by a motion in writing shows good cause. In determining
11-24 good cause, the judge may consider the defendant's school and work
11-25 schedule, the defendant's health, the distance that the defendant
11-26 must travel to attend an educational program, and whether the
12-1 defendant resides out of state or does not have access to
12-2 transportation. The judge shall set out the finding of good cause
12-3 in the judgment. If a defendant is required, as a condition of
12-4 community supervision, to attend an educational program, the court
12-5 clerk shall immediately report that fact to the Department of
12-6 Public Safety, on a form prescribed by the department, for
12-7 inclusion in the defendant's driving record. The report must
12-8 include the beginning date of the defendant's community
12-9 supervision. On the successful completion of the educational
12-10 program for repeat offenders, the defendant shall give notice to
12-11 the community supervision and corrections department. The
12-12 community supervision and corrections department shall then forward
12-13 the notice to the court clerk. The court clerk shall then report
12-14 the date of successful completion of the educational program to the
12-15 Department of Public Safety for inclusion in the defendant's
12-16 driving record. If the Department of Public Safety does not
12-17 receive notice that a defendant required to complete an educational
12-18 program has successfully completed the program for repeat offenders
12-19 within the period required by the judge, as shown on department
12-20 records, the department shall revoke the defendant's driver's
12-21 license, permit, or privilege or prohibit the defendant from
12-22 obtaining a license or permit, as provided by Sections 521.344(e)
12-23 and (f), Transportation Code [Section 24(g)(2), Chapter 173, Acts
12-24 of the 47th Legislature, Regular Session, 1941 (Article 6687b,
12-25 Vernon's Texas Civil Statutes)].
12-26 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
13-1 Code [Section 24(g), Chapter 173, Acts of the 47th Legislature,
13-2 Regular Session, 1941 (Article 6687b, Vernon's Texas Civil
13-3 Statutes)], if the judge, under Subsection (h) or (j) of this
13-4 section, permits or requires a defendant punished under Section
13-5 49.09, Penal Code, to attend an educational program as a condition
13-6 of community supervision, or waives the required attendance for
13-7 such a program, and the defendant has previously been required to
13-8 attend such a program, or the required attendance at the program
13-9 had been waived, the judge nonetheless shall order the suspension
13-10 of the driver's license, permit, or operating privilege of that
13-11 person for a period determined by the judge according to the
13-12 following schedule:
13-13 (1) not less than 90 days or more than 365 days, if
13-14 the defendant is convicted under Sections 49.04-49.08, Penal Code;
13-15 or
13-16 (2) not less than 180 days or more than two years, if
13-17 the defendant is punished under Section 49.09, Penal Code.
13-18 (m) If a judge revokes the community supervision of a
13-19 defendant for an offense under Section 49.04, Penal Code, or an
13-20 offense involving the operation of a motor vehicle under Section
13-21 49.07, Penal Code, and the driver's license or privilege to operate
13-22 a motor vehicle has not previously been ordered by the judge to be
13-23 suspended, or if the suspension was previously probated, the judge
13-24 shall suspend the license or privilege for a period provided under
13-25 Subchapter O, Chapter 521, Transportation Code [Section 24, Chapter
13-26 173, Acts of the 47th Legislature, Regular Session, 1941 (Article
14-1 6687b, Vernon's Texas Civil Statutes)]. The suspension shall be
14-2 reported to the Department of Public Safety as provided under
14-3 Section 521.347, Transportation Code [25, Chapter 173, Acts of the
14-4 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
14-5 Texas Civil Statutes)].
14-6 SECTION 3.05. Article 45.06, Code of Criminal Procedure, is
14-7 amended to correct references to read as follows:
14-8 Art. 45.06. FINES AND SPECIAL EXPENSES. The governing body
14-9 of each incorporated city, town or village shall by ordinance
14-10 prescribe such rules, not inconsistent with any law of this State,
14-11 as may be proper to enforce, by execution against the property of
14-12 the defendant, or imprisonment of the defendant, the collection of
14-13 all fines imposed by such court, and shall also have power to adopt
14-14 such rules and regulations concerning the practice and procedure in
14-15 such court as said governing body may deem proper, not inconsistent
14-16 with any law of this State. All such fines; a special expense, not
14-17 to exceed $25 for the issuance and service of a warrant of arrest
14-18 for an offense under Section 38.10, Penal Code, or under Section
14-19 543.009, Transportation Code [149, Uniform Act Regulating Traffic
14-20 on Highways (Article 6701d, Vernon's Texas Civil Statutes)]; and
14-21 the special expenses described in Article 17.04 dealing with the
14-22 requisites of a personal bond and a special expense for the
14-23 issuance and service of a warrant of arrest, after due notice, not
14-24 to exceed $25, shall be paid into the city treasury for the use and
14-25 benefit of the city, town or village. The governing body of each
14-26 incorporated city, town or village may by ordinance authorize a
15-1 municipal court to collect a special expense for services performed
15-2 in cases in which the laws of this State require that the case be
15-3 dismissed because of actions by or on behalf of the defendant which
15-4 were subsequent to the date of the alleged offense. Such actions
15-5 are limited to compliance with Sections 543.102-543.104,
15-6 Transportation Code [the provisions of Subsection (a), Section
15-7 143A, Uniform Act Regulating Traffic on Highways (Article 6701d,
15-8 Vernon's Texas Civil Statutes)]. Such special expense shall not
15-9 exceed the actual expenses incurred for the services or $10,
15-10 whichever is less.
15-11 SECTION 3.06. Subdivisions (1), (2), and (3), Article 45.54,
15-12 Code of Criminal Procedure, are amended to correct references to
15-13 read as follows:
15-14 (1) On a plea of guilty or nolo contendere by a
15-15 defendant or on a finding of guilt in a misdemeanor case punishable
15-16 by fine only and payment of all court costs, the justice may defer
15-17 further proceedings without entering an adjudication of guilt and
15-18 place the defendant on probation for a period not to exceed 180
15-19 days. This article does not apply to a misdemeanor case disposed
15-20 of under Subchapter B, Chapter 543, Transportation Code [by Section
15-21 143A, Uniform Act Regulating Traffic on Highways (Article 6701d,
15-22 Vernon's Texas Civil Statutes)], or a serious traffic violation as
15-23 defined in Section 522.003 of that code [3(26), Texas Commercial
15-24 Driver's License Act (Article 6687b-2, Revised Statutes)].
15-25 (2) During the deferral period, the justice shall
15-26 require the defendant to successfully complete a Texas [Central]
16-1 Education Agency-approved driving safety course, if the offense
16-2 alleged is an offense involving the operation of a motor vehicle,
16-3 other than a commercial motor vehicle, as defined in Section
16-4 522.003, Transportation Code [Subdivision (6), Section 3, Texas
16-5 Commercial Driver's License Act (Article 6687b-2, Revised
16-6 Statutes)], and the defendant:
16-7 (A) has completed an approved driving safety
16-8 course within the preceding 12 months; or
16-9 (B) is a first-time offender who elects deferred
16-10 adjudication.
16-11 (3) During said deferral period, the justice may
16-12 require the defendant to:
16-13 (a) post a bond in the amount of the fine
16-14 assessed to secure payment of the fine;
16-15 (b) pay restitution to the victim of the offense
16-16 in an amount not to exceed the fine assessed;
16-17 (c) submit to professional counseling;
16-18 (d) comply with any other reasonable condition;
16-19 and
16-20 (e) require the defendant to successfully
16-21 complete a Texas [Central] Education Agency approved driving safety
16-22 course, if:
16-23 (1) the offense alleged is an offense
16-24 involving the operation of a motor vehicle, other than a commercial
16-25 motor vehicle, as defined in Section 522.003, Transportation Code
16-26 [Subdivision (6), Section 3, Texas Commercial Driver's License Act
17-1 (Article 6687b-2, Revised Statutes)]; and
17-2 (2) the defendant has not completed an
17-3 approved driving safety course within the preceding 12 months.
17-4 SECTION 3.07. Article 47.01, Code of Criminal Procedure, is
17-5 amended to correct a reference to read as follows:
17-6 Art. 47.01. SUBJECT TO ORDER OF COURT. An officer who comes
17-7 into custody of property alleged to have been stolen must hold it
17-8 subject to the order of the proper court, except that if the
17-9 officer recovers, within 14 days from the date it was reported
17-10 stolen, property which is subject to Chapter 501, Transportation
17-11 Code [the Certificate of Title Act (Article 6687-1, Vernon's Texas
17-12 Civil Statutes)], [then] the officer need not hold the property
17-13 subject to the order of the proper court but may release the
17-14 property to the owner, as shown on the certificate of title.
17-15 SECTION 3.08. Article 55.06, Code of Criminal Procedure, is
17-16 amended to correct references to read as follows:
17-17 Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. A person
17-18 may not use the provisions of this chapter to expunge records
17-19 relating to the suspension or revocation of a driver's license,
17-20 permit, or privilege to operate a motor vehicle except as provided
17-21 in Section 524.015, Transportation Code [5(d), Article 6687b-1,
17-22 Revised Statutes], or Section 724.048 of that code [2(r), Chapter
17-23 434, Acts of the 61st Legislature, Regular Session, 1969 (Article
17-24 6701l-5, Vernon's Texas Civil Statutes)].
17-25 SECTION 3.09. Subdivision (3), Article 59.01, Code of
17-26 Criminal Procedure, is amended to correct a reference to read as
18-1 follows:
18-2 (3) "Crime of violence" means:
18-3 (A) any criminal offense defined in the Penal
18-4 Code or in a federal criminal law that results in a personal injury
18-5 to a victim; or
18-6 (B) an act that is not an offense under the
18-7 Penal Code involving the operation of a motor vehicle, aircraft, or
18-8 water vehicle that results in injury or death sustained in an
18-9 accident caused by a driver in violation of Section 550.021,
18-10 Transportation Code [38, Uniform Act Regulating Traffic on Highways
18-11 (Article 6701d, Vernon's Texas Civil Statutes)].
18-12 SECTION 3.10. Article 62.001(3), Code of Criminal Procedure
18-13 (formerly Section 79.001(3), Human Resources Code, redesignated as
18-14 Article 62.001(3) by Chapter 1427, Acts of the 75th Legislature,
18-15 Regular Session, 1997), is redesignated as Article 63.001(3), Code
18-16 of Criminal Procedure, and amended and reenacted to conform to
18-17 Chapters 51 and 1427, Acts of the 75th Legislature, Regular
18-18 Session, 1997, to read as follows:
18-19 (3) "Missing child" means a child whose whereabouts
18-20 are unknown to the child's legal custodian, the circumstances of
18-21 whose absence indicate that:
18-22 (A) the child did not voluntarily leave the care
18-23 and control of the custodian, and the taking of the child was not
18-24 authorized by law;
18-25 (B) the child voluntarily left the care and
18-26 control of his legal custodian without the custodian's consent and
19-1 without intent to return; or
19-2 (C) the child was taken or retained in violation
19-3 of the [express] terms of a court order [or judgment governing
19-4 custody of] for possession of or access to the child.
19-5 SECTION 3.11. Article 62.009(a), Code of Criminal Procedure
19-6 (formerly Section 79.008(a), Human Resources Code, redesignated as
19-7 Article 62.009(a) by Chapter 1427, Acts of the 75th Legislature,
19-8 Regular Session, 1997), is redesignated as Article 63.009(a), Code
19-9 of Criminal Procedure, and amended and reenacted to conform to
19-10 Chapters 51 and 771, Acts of the 75th Legislature, Regular Session,
19-11 1997, to read as follows:
19-12 (a) Local law enforcement agencies, on receiving a report of
19-13 a missing child or a missing person, shall:
19-14 (1) if the subject of the report is a child and the
19-15 well-being of the child is in danger, immediately start an
19-16 investigation in order to determine the present location of the
19-17 child;
19-18 (2) if the subject of the report is a person other
19-19 than a child or if the subject of the report is a child whose
19-20 well-being is not considered to be in danger, start an
19-21 investigation with due diligence in order to determine the present
19-22 location of the person;
19-23 (3) immediately enter the name of the child or person
19-24 into the clearinghouse and the national crime information center
19-25 missing person file if the child or person meets the center's
19-26 criteria, with all available identifying features such as dental
20-1 records, fingerprints, other physical characteristics, and a
20-2 description of the clothing worn when last seen, and all available
20-3 information describing any person reasonably believed to have taken
20-4 or retained the missing child or missing person; and
20-5 [(4) on determining the location of a child under
20-6 Subdivision (1) or (2), other than a child who is subject to the
20-7 continuing jurisdiction of a district court, an officer may take
20-8 possession of the child and shall deliver or arrange for the
20-9 delivery of the child to a person entitled to possession of the
20-10 child. If the person entitled to possession of the child is not
20-11 immediately available, the law enforcement officer shall deliver
20-12 the child to the Department of Protective and Regulatory Services.]
20-13 (4) inform the person who filed the report of the
20-14 missing child or missing person that the information will be
20-15 entered into the clearinghouse and the national crime information
20-16 center missing person file.
20-17 SECTION 3.12. Article 62.009, Code of Criminal Procedure
20-18 (formerly Section 79.008, Human Resources Code, redesignated as
20-19 Article 62.009 by Chapter 1427, Acts of the 75th Legislature,
20-20 Regular Session, 1997), is redesignated as Article 63.009, Code of
20-21 Criminal Procedure, and amended to conform to Chapter 51, Acts of
20-22 the 75th Legislature, Regular Session, 1997, by adding Subsection
20-23 (g) to read as follows:
20-24 (g) On determining the location of a child under Subsection
20-25 (a)(1) or (2), other than a child who is subject to the continuing
20-26 jurisdiction of a district court, an officer may take possession of
21-1 the child and shall deliver or arrange for the delivery of the
21-2 child to a person entitled to possession of the child. If the
21-3 person entitled to possession of the child is not immediately
21-4 available, the law enforcement officer shall deliver the child to
21-5 the Department of Protective and Regulatory Services.
21-6 ARTICLE 4. CHANGES RELATING TO EDUCATION CODE
21-7 SECTION 4.01. Section 29.153(g), Education Code, is amended
21-8 to properly reflect the name of the agency to which the section
21-9 refers to read as follows:
21-10 (g) If a school district contracts with a private entity for
21-11 the operation of the district's prekindergarten program, the
21-12 program must at a minimum comply with the applicable child-care
21-13 licensing standards adopted by the [Texas] Department of Protective
21-14 and Regulatory [Human] Services under Section 42.042, Human
21-15 Resources Code.
21-16 SECTION 4.02. (a) Section 51.751(b), Education Code, is
21-17 amended to conform to Section 7.10, Chapter 347, Acts of the 73rd
21-18 Legislature, Regular Session, 1993, to read as follows:
21-19 (b) The center shall examine the efficiency of the public
21-20 school system and the effectiveness of instructional methods and
21-21 curricular programs and[. The center shall] promote the use of
21-22 successful methods and programs. The center shall monitor and
21-23 evaluate the implementation of the accountability system under
21-24 Chapter 39 and provide annual progress reports to the governor,
21-25 Legislative Budget Board, and commissioner of education.
21-26 (b) Section 7.10, Chapter 347, Acts of the 73rd Legislature,
22-1 Regular Session, 1993, is repealed.
22-2 SECTION 4.03. Sections 51.927(e)-(k), Education Code, as
22-3 amended by Chapters 627 and 1142, Acts of the 75th Legislature,
22-4 Regular Session, 1997, are reenacted and amended to read as
22-5 follows:
22-6 (e) Before entering into a contract for energy conservation
22-7 measures, the board shall require the provider of the energy
22-8 conservation measures to file with the board a payment and
22-9 performance bond that is in an amount the board finds reasonable
22-10 and necessary to protect the interests of the institution and is
22-11 conditioned on the faithful execution of the terms of the contract.
22-12 (f) The board may enter into a contract for a period of more
22-13 than one year for energy conservation measures with an entity if
22-14 the board finds that the amount the institution would spend on the
22-15 energy conservation measures will not exceed the amount to be saved
22-16 in energy and operating costs over 10 years from the date of
22-17 installation. If the term of a contract for energy conservation
22-18 measures exceeds one year, the board's contractual obligation in
22-19 any year during the term of the contract beginning after the final
22-20 date of installation may not exceed the total energy and operating
22-21 cost savings, including but not limited to electrical, gas, or
22-22 other utility cost savings and operating cost savings resulting
22-23 from automatic monitoring and control, as determined by the board
22-24 in this subsection, divided by the number of years in the contract
22-25 term beginning after the final date of installation. The board
22-26 shall consider all costs of the energy conservation measures,
23-1 including costs of design, engineering, installation, maintenance,
23-2 repairs, and debt service.
23-3 (g) A contract for energy conservation measures may be a
23-4 lease/purchase contract, with a term not to exceed 10 years after
23-5 the final date of installation, that meets federal tax requirements
23-6 for tax-free municipal leasing or long-term financing. The
23-7 contract shall contain provisions pursuant to which the provider of
23-8 the energy conservation measures guarantees the amount of the
23-9 savings to be realized by the institution of higher education under
23-10 the contract. The Master Equipment Lease Purchase Program operated
23-11 by the Texas Public Finance Authority may be utilized by an
23-12 institution to fund a contract for energy conservation measures so
23-13 long as the costs of the energy conservation measures, including
23-14 costs of design, engineering, installation, maintenance, repairs,
23-15 and anticipated debt service requirements of the Master Equipment
23-16 Lease Purchase Program, do not exceed the total energy and
23-17 operating cost savings, as described in Subsection (f) [(e)],
23-18 beginning after the final date of installation.
23-19 (h) A contract under this section may be let under
23-20 competitive sealed proposal procedures. Notice of the request for
23-21 proposals shall be given in the manner provided for in Chapter
23-22 2156, Government Code. The Texas Higher Education Coordinating
23-23 Board, in consultation with the State Energy Conservation Office
23-24 and the Texas Energy Coordination Council, shall establish
23-25 guidelines and an approval process for contracts awarded under this
23-26 section. The State Energy Conservation Office and the Texas Energy
24-1 Coordination Council shall review the selected proposal before a
24-2 contract is awarded. The State Energy Conservation Office may
24-3 provide a cost-benefit analysis of the proposals and analysis of
24-4 the guaranteed savings projected by offerors and may charge a fee
24-5 for this service. The contract shall be awarded to the
24-6 responsible offeror whose proposal, following negotiations, is
24-7 determined by the institution to be the most advantageous to the
24-8 institution considering the guaranteed savings and other evaluation
24-9 factors set forth in the request for proposals, except that if the
24-10 institution finds that no offer is acceptable, it shall refuse all
24-11 offers.
24-12 (i) In accordance with regulations adopted by the
24-13 institution, the institution may conduct discussions with offerors
24-14 who submit proposals and who are determined to be reasonably
24-15 qualified for the award of the contract. Offerors shall be treated
24-16 fairly and equally with respect to any opportunity for discussion
24-17 and revision of proposals. To obtain the best final offers, the
24-18 institution may allow proposal revisions after submissions and
24-19 before the award of the contract.
24-20 (j) If provided in a request for proposals under Subsection
24-21 (h) [(g) of this section], proposals shall be opened in a manner
24-22 that avoids disclosure of the contents to competing offerors and
24-23 keeps the proposals secret during negotiations. All proposals are
24-24 open for public inspection after a contract is awarded unless the
24-25 information is excepted from disclosure under Chapter 552,
24-26 Government Code.
25-1 (k) The legislature shall base an institution's
25-2 appropriation for energy costs during a fiscal year on the sum of:
25-3 (1) the institution's estimated energy costs for that
25-4 fiscal year; and
25-5 (2) if a contract under this section is in effect, the
25-6 institution's estimated net savings resulting from the contract
25-7 during the contract term, divided by the number of years in the
25-8 contract term.
25-9 ARTICLE 5. CHANGES RELATING TO ELECTION CODE
25-10 SECTION 5.01. Section 13.146(b), Election Code, is amended
25-11 to be consistent with the terminology used elsewhere in the code in
25-12 similar contexts, to read as follows:
25-13 (b) If the applicant fails to submit [deliver] a response to
25-14 the registrar in accordance with Section 15.053, the registrar
25-15 shall enter the applicant's name on the suspense list.
25-16 SECTION 5.02. Section 14.023(b), Election Code, is amended
25-17 to be consistent with the terminology used elsewhere in the code in
25-18 similar contexts, to read as follows:
25-19 (b) If the voter fails to submit [deliver] a response to the
25-20 registrar in accordance with Section 15.053, the voter's name
25-21 remains on the suspense list.
25-22 SECTION 5.03. Section 15.021(a), Election Code, is amended
25-23 to be consistent with the terminology used elsewhere in the code in
25-24 similar contexts, to read as follows:
25-25 (a) If a voter discovers incorrect information on the
25-26 voter's registration certificate or if any of the information
26-1 becomes incorrect because of a change in circumstances, the voter
26-2 shall promptly submit [deliver] to the registrar a written, signed
26-3 notice of the incorrect information and the corresponding
26-4 correction.
26-5 SECTION 5.04. Section 15.052(a), Election Code, is amended
26-6 to be consistent with the terminology used elsewhere in the code in
26-7 similar contexts, to read as follows:
26-8 (a) The officially prescribed form for a confirmation notice
26-9 must include:
26-10 (1) a statement that, if the voter fails to submit
26-11 [deliver] to the registrar a written, signed response confirming
26-12 the voter's current residence on or before the 30th day after the
26-13 date the confirmation notice is mailed:
26-14 (A) the voter is subject to submission of a
26-15 statement of residence before the voter may be accepted for voting
26-16 in an election held after that deadline; or
26-17 (B) for a notice delivered under Section 14.023,
26-18 the voter will remain subject to submission of a statement of
26-19 residence before the voter may be accepted for voting in an
26-20 election; and
26-21 (2) a warning that the voter's registration is subject
26-22 to cancellation if the voter fails to confirm the voter's current
26-23 residence either by notifying the registrar in writing or voting on
26-24 a statement of residence before November 30 following the second
26-25 general election for state and county officers that occurs after
26-26 the date the confirmation notice is mailed.
27-1 SECTION 5.05. Section 15.053(a), Election Code, is amended
27-2 to be consistent with the terminology used elsewhere in the code in
27-3 similar contexts, to read as follows:
27-4 (a) Not later than the 30th day after the date a
27-5 confirmation notice is mailed, the voter shall submit [deliver] to
27-6 the registrar a written, signed response to the notice that
27-7 confirms the voter's current residence.
27-8 SECTION 5.06. Section 15.081(a), Election Code, is amended
27-9 to be consistent with the terminology used elsewhere in the code in
27-10 similar contexts, to read as follows:
27-11 (a) The registrar shall maintain a suspense list containing
27-12 the name of each voter who fails to submit [deliver] a response to
27-13 the registrar in accordance with Section 15.053 or whose renewal
27-14 certificate is returned to the registrar in accordance with
27-15 Subchapter B, Chapter 14.
27-16 SECTION 5.07. Section 16.0921(b), Election Code, is amended
27-17 to be consistent with the terminology used elsewhere in the code in
27-18 similar contexts, to read as follows:
27-19 (b) If the voter fails to submit [deliver] a response to the
27-20 registrar in accordance with Section 15.053, the registrar shall
27-21 enter the voter's name on the suspense list.
27-22 SECTION 5.08. Section 31.002(a), Election Code, is amended
27-23 to conform to changes made by Chapter 304, Acts of the 72nd
27-24 Legislature, Regular Session, 1991, to read as follows:
27-25 (a) The secretary of state shall prescribe the design and
27-26 content, consistent with this code, of the forms necessary for the
28-1 administration of this code other than Title 15. The design and
28-2 content must enhance the ability of a person to understand the
28-3 applicable requirements and to physically furnish the required
28-4 information in the space provided.
28-5 SECTION 5.09. Section 52.068(a), Election Code, is amended
28-6 to be consistent with the terminology used elsewhere in the code in
28-7 similar contexts, to read as follows:
28-8 (a) If no candidate's name is to appear on the ballot for a
28-9 particular office to be voted on at an election in which write-in
28-10 votes for the office are permitted by law, the authority
28-11 responsible for having the official ballot prepared shall have the
28-12 office title printed on the ballot and shall provide a space for a
28-13 write-in vote as required by this code. However, in an election in
28-14 which write-in votes may be counted only for names appearing on a
28-15 list of write-in candidates, if no candidate's name is to appear on
28-16 the ballot or the list of write-in candidates for a particular
28-17 office, the office title is not printed on the ballot.
28-18 SECTION 5.10. Section 101.004(j), Election Code, is amended
28-19 to be consistent with the terminology used elsewhere in the code in
28-20 similar contexts, to read as follows:
28-21 (j) If the early voting clerk determines that an application
28-22 that is submitted before the time prescribed by Subsection (e)(1)
28-23 does not contain the information that is required for registration
28-24 under Title 2, the clerk shall notify the applicant of that fact.
28-25 If the applicant submits the missing information before the time
28-26 prescribed by Subsection (e)(1), the applicant is entitled to
29-1 receive a full ballot to be voted by mail under this chapter. If
29-2 the applicant submits the missing information after the time
29-3 prescribed by Subsection (e)(1), the applicant is entitled to
29-4 receive a full ballot to be voted by mail for the next election
29-5 that occurs:
29-6 (1) in the same calendar year; and
29-7 (2) at least 30 days after the date the information is
29-8 submitted.
29-9 SECTION 5.11. Section 105.002(a), Election Code, as added by
29-10 Section 45, Chapter 1349, Acts of the 75th Legislature, Regular
29-11 Session, 1997, is amended to be consistent with the terminology
29-12 used elsewhere in the code in similar contexts, to read as follows:
29-13 (a) The secretary of state shall prescribe procedures to
29-14 allow a voter to apply for and cast a state write-in ballot before
29-15 the time a voter may receive a regular ballot to be voted by mail
29-16 if the voter:
29-17 (1) is a member of the armed forces of the United
29-18 States or the spouse or a dependent of a member;
29-19 (2) is unable to cast a ballot on election day or
29-20 during the regular period for early voting because of a military
29-21 contingency; and
29-22 (3) makes an application on an official [a] federal
29-23 postcard application form that:
29-24 (A) indicates that the person desires a state
29-25 write-in ballot; and
29-26 (B) contains the information that is required
30-1 for registration under Title 2.
30-2 SECTION 5.12. The heading of Section 171.023, Election Code,
30-3 is amended to conform to the changes in terminology made by Chapter
30-4 864, Acts of the 75th Legislature, Regular Session, 1997, to read
30-5 as follows:
30-6 Sec. 171.023. RESIDENCE OF PRECINCT CHAIR [CHAIRMAN].
30-7 SECTION 5.13. Section 172.021(c), Election Code, is amended
30-8 to be consistent with the terminology used elsewhere in the code in
30-9 similar contexts, to read as follows:
30-10 (c) An application filed by mail is considered to be filed
30-11 at the time of its receipt by the appropriate authority.
30-12 SECTION 5.14. Section 174.022(d), Election Code, is amended
30-13 to be consistent with the terminology used elsewhere in the code in
30-14 similar contexts, to read as follows:
30-15 (d) The place [location] selected for a precinct convention
30-16 must meet the same requirements for access by elderly and
30-17 physically handicapped persons as a polling place under Section
30-18 43.034(a) unless the state executive committee for a political
30-19 party issues an order that the places [locations] for precinct
30-20 conventions for that political party are [do] not required [have]
30-21 to meet the same requirements as a polling place under Section
30-22 43.034(a). The order must be entered in the minutes of the state
30-23 executive committee not later than the 30th day [30 days] before
30-24 the date precinct conventions are to be held.
30-25 SECTION 5.15. The heading of Subchapter B, Chapter 251,
30-26 Election Code, is amended to be consistent with terminology used
31-1 elsewhere in the code in similar contexts, to read as follows:
31-2 SUBCHAPTER B. DUTIES OF [THE] COMMISSION
31-3 SECTION 5.16. Section 253.157(a), Election Code, as amended
31-4 by Section 2, Chapter 552, Acts of the 75th Legislature, Regular
31-5 Session, 1997, is amended to reconcile the amendment to Subsection
31-6 (a) by Section 5, Chapter 479, Acts of the 75th Legislature,
31-7 Regular Session, 1997, to read as follows:
31-8 (a) A judicial candidate or officeholder or a
31-9 specific-purpose committee for supporting or opposing a judicial
31-10 candidate may not accept a political contribution in excess of $50
31-11 from a person if:
31-12 (1) the person is a law firm, a member of a law firm,
31-13 or a general-purpose committee established or controlled by a law
31-14 firm; and
31-15 (2) the contribution when aggregated with all
31-16 political contributions accepted by the candidate, officeholder, or
31-17 committee from the law firm, other members of the law firm, or
31-18 [from] a general-purpose committee established or controlled by the
31-19 law firm in connection with the election would exceed six times the
31-20 applicable contribution limit under Section 253.155.
31-21 SECTION 5.17. Sections 255.006(a), (b), and (c), Election
31-22 Code, are amended to be consistent with the terminology used
31-23 elsewhere in the code in similar contexts, to read as follows:
31-24 (a) A person commits an offense if the person knowingly
31-25 enters into a contract or other agreement to print, publish, or
31-26 broadcast political advertising with the intent to represent to an
32-1 ordinary and prudent person that a candidate holds a public office
32-2 that the candidate does not hold at the time the agreement is made.
32-3 (b) A person commits an offense if the person knowingly
32-4 represents in a campaign communication that a candidate holds a
32-5 public office that the candidate does not hold at the time the
32-6 representation is made.
32-7 (c) For purposes of this section, a person represents that a
32-8 candidate holds a public office that the candidate does not hold
32-9 if:
32-10 (1) the candidate does not hold the office that the
32-11 candidate seeks; and
32-12 (2) the political advertising or campaign
32-13 communication states the public office sought but does not use the
32-14 word "for" to clarify that the candidate does not hold that office.
32-15 ARTICLE 6. CHANGES RELATING TO FAMILY CODE
32-16 SECTION 6.01. (a) Section 2.009(c), Family Code, is amended
32-17 to conform to Chapter 698, Acts of the 75th Legislature, Regular
32-18 Session, 1997, to read as follows:
32-19 (c) On the proper execution of the application, the clerk
32-20 shall:
32-21 (1) prepare the license;
32-22 (2) enter on [record on the reverse side of] the
32-23 license the names of the licensees, the date that the license is
32-24 issued, and, if applicable, the name of the person appointed to act
32-25 as proxy for an absent applicant, if any;
32-26 (3) record the time at which the license was issued;
33-1 and
33-2 (4) distribute to each applicant printed materials
33-3 about acquired immune deficiency syndrome (AIDS) and human
33-4 immunodeficiency virus (HIV) and note on the license that the
33-5 distribution was made.
33-6 (b) Chapter 698, Acts of the 75th Legislature, Regular
33-7 Session, 1997, is repealed.
33-8 SECTION 6.02. Section 32.101, Family Code, is amended to
33-9 conform to Section 4, Chapter 123, Acts of the 74th Legislature,
33-10 Regular Session, 1995, by adding Subsection (f) to read as follows:
33-11 (f) Consent to immunization must meet the requirements of
33-12 Section 32.002(a).
33-13 SECTION 6.03. Section 6.404(c), Family Code, is amended to
33-14 correct a reference to read as follows:
33-15 (c) The statement prescribed by Subsection (a) is not
33-16 required for:
33-17 (1) a pleading in which citation on all respondents
33-18 entitled to service of citation is requested, issued, and given by
33-19 publication;
33-20 (2) a motion or pleading that seeks a protective order
33-21 as provided by Title 4 [Chapter 71]; or
33-22 (3) a special appearance under Rule 120a, Texas Rules
33-23 of Civil Procedure.
33-24 SECTION 6.04. Section 6.405, Family Code, is amended to
33-25 correct a reference to read as follows:
33-26 Sec. 6.405. PROTECTIVE ORDER. (a) The petition in a suit
34-1 for dissolution of a marriage must state whether a protective order
34-2 under Title 4 [Chapter 71] is in effect or if an application for a
34-3 protective order is pending with regard to the parties to the suit.
34-4 (b) The petitioner shall attach to the petition a copy of
34-5 each protective order issued under Title 4 [Chapter 71] in which
34-6 one of the parties to the suit was the applicant and the other
34-7 party was the respondent without regard to the date of the order.
34-8 If a copy of the protective order is not available at the time of
34-9 filing, the petition must state that a copy of the order will be
34-10 filed with the court before any hearing.
34-11 SECTION 6.05. Section 8.002, Family Code, is amended to
34-12 correct a reference to read as follows:
34-13 Sec. 8.002. ELIGIBILITY FOR MAINTENANCE. In a suit for
34-14 dissolution of a marriage or in a proceeding for maintenance in a
34-15 court with personal jurisdiction over both former spouses following
34-16 the dissolution of their marriage by a court that lacked personal
34-17 jurisdiction over an absent spouse, the court may order maintenance
34-18 for either spouse only if:
34-19 (1) the spouse from whom maintenance is requested was
34-20 convicted of or received deferred adjudication for a criminal
34-21 offense that also constitutes an act of family violence under Title
34-22 4 [Chapter 71] and the offense occurred:
34-23 (A) within two years before the date on which a
34-24 suit for dissolution of the marriage is filed; or
34-25 (B) while the suit is pending; or
34-26 (2) the duration of the marriage was 10 years or
35-1 longer, the spouse seeking maintenance lacks sufficient property,
35-2 including property distributed to the spouse under this code, to
35-3 provide for the spouse's minimum reasonable needs, as limited by
35-4 Section 8.005, and the spouse seeking maintenance:
35-5 (A) is unable to support himself or herself
35-6 through appropriate employment because of an incapacitating
35-7 physical or mental disability;
35-8 (B) is the custodian of a child who requires
35-9 substantial care and personal supervision because a physical or
35-10 mental disability makes it necessary, taking into consideration the
35-11 needs of the child, that the spouse not be employed outside the
35-12 home; or
35-13 (C) clearly lacks earning ability in the labor
35-14 market adequate to provide support for the spouse's minimum
35-15 reasonable needs, as limited by Section 8.005.
35-16 SECTION 6.06. Section 45.106(a), Family Code, is amended to
35-17 correct a reference to read as follows:
35-18 (a) A person whose name is changed under Section 6.706
35-19 [3.64] or 45.105 may apply to the clerk of the court ordering the
35-20 name change for a change of name certificate.
35-21 SECTION 6.07. Section 51.12, Family Code, as amended by
35-22 Chapters 772 and 1374, Acts of the 75th Legislature, Regular
35-23 Session, 1997, is amended and reenacted to read as follows:
35-24 Sec. 51.12. PLACE AND CONDITIONS OF DETENTION. (a) Except
35-25 as provided by Subsection (h), a child may be detained only in a:
35-26 (1) juvenile processing office in compliance with
36-1 Section 52.025;
36-2 (2) place of nonsecure custody in compliance with
36-3 Section 52.027;
36-4 (3) certified juvenile detention facility that
36-5 complies with the requirements of Subsection (f); or
36-6 (4) secure detention facility as provided by
36-7 Subsection (j) [(i)].
36-8 (b) The proper authorities in each county shall provide a
36-9 suitable place of detention for children who are parties to
36-10 proceedings under this title, but the juvenile court shall control
36-11 the conditions and terms of detention and detention supervision and
36-12 shall permit visitation with the child at all reasonable times.
36-13 (c) In each county, each judge of the juvenile court and the
36-14 members of the juvenile board shall personally inspect the juvenile
36-15 pre-adjudication secure detention facilities and any public or
36-16 private juvenile secure correctional facilities used for
36-17 post-adjudication confinement that are located in the county and
36-18 operated under authority of the juvenile board at least annually
36-19 and shall certify in writing to the authorities responsible for
36-20 operating and giving financial support to the facilities and to the
36-21 Texas Juvenile Probation Commission that they are suitable or
36-22 unsuitable for the detention of children in accordance with:
36-23 (1) the requirements of Subsections (a), (f), and (g);
36-24 and
36-25 (2) minimum professional standards for the detention
36-26 of children in pre-adjudication or post-adjudication secure
37-1 confinement promulgated by the Texas Juvenile Probation Commission
37-2 or, at the election of the juvenile board, the current standards
37-3 promulgated by the American Correctional Association.
37-4 (d) Except as provided by Subsection (j) [(i)], a child may
37-5 not be placed in a facility that has not been certified under
37-6 Subsection (c) as suitable for the detention of children and
37-7 registered under Subsection (i) [of this section]. Except as
37-8 provided by Subsection (j) [(i)], a child detained in a facility
37-9 that has not been certified under Subsection (c) as suitable for
37-10 the detention of children or that has not been registered under
37-11 Subsection (i) [of this section] shall be entitled to immediate
37-12 release from custody in that facility.
37-13 (e) If there is no certified place of detention in the
37-14 county in which the petition is filed, the designated place of
37-15 detention may be in another county.
37-16 (f) A child detained in a building that contains a jail,
37-17 lockup, or other place of secure confinement, including an alcohol
37-18 or other drug treatment facility, shall be separated by sight and
37-19 sound from adults detained in the same building. Children and
37-20 adults are separated by sight and sound only if they are unable to
37-21 see each other and conversation between them is not possible. The
37-22 separation must extend to all areas of the facility, including
37-23 sally ports and passageways, and those areas used for admission,
37-24 counseling, sleeping, toileting, showering, dining, recreational,
37-25 educational, or vocational activities, and health care. The
37-26 separation may be accomplished through architectural design.
38-1 (g) Except for a child detained in a juvenile processing
38-2 office, a place of nonsecure custody, or a secure detention
38-3 facility as provided by Subsection (j) [(i)], a child detained in a
38-4 building that contains a jail or lockup may not have any contact
38-5 with:
38-6 (1) part-time or full-time security staff, including
38-7 management, who have contact with adults detained in the same
38-8 building; or
38-9 (2) direct-care staff who have contact with adults
38-10 detained in the same building.
38-11 (h) This section does not apply to a person:
38-12 (1) after transfer to criminal court for prosecution
38-13 under Section 54.02; or
38-14 (2) who is at least 18 years of age and who has been
38-15 taken into custody after having:
38-16 (A) escaped from a juvenile facility; or
38-17 (B) violated a condition of probation or of
38-18 release under supervision of the Texas Youth Commission.
38-19 (i) Except for a facility operated or certified by the Texas
38-20 Youth Commission, a governmental unit or private entity that
38-21 operates or contracts for the operation of a juvenile
38-22 pre-adjudication secure detention facility or a juvenile
38-23 post-adjudication secure correctional facility in this state shall:
38-24 (1) register the facility annually with the Texas
38-25 Juvenile Probation Commission; and
38-26 (2) adhere to all applicable minimum standards for the
39-1 facility.
39-2 (j) [(i)] After being taken into custody, a child may be
39-3 detained in a secure detention facility until the child is released
39-4 under Section 53.01, 53.012, or 53.02 or until a detention hearing
39-5 is held under Section 54.01(a), regardless of whether the facility
39-6 has been certified under Subsection (c), if:
39-7 (1) a certified juvenile detention facility is not
39-8 available in the county in which the child is taken into custody;
39-9 (2) the detention facility complies with:
39-10 (A) the short-term detention standards adopted
39-11 by the Texas Juvenile Probation Commission; and
39-12 (B) the requirements of Subsection (f); and
39-13 (3) the detention facility has been designated by the
39-14 county juvenile board for the county in which the facility is
39-15 located.
39-16 (k) [(j)] If a child who is detained under Subsection (j)
39-17 [(i)] is not released from detention at the conclusion of the
39-18 detention hearing for a reason stated in Section 54.01(e), the
39-19 child may be detained after the hearing only in a certified
39-20 juvenile detention facility.
39-21 SECTION 6.08. Section 52.02(a), Family Code, is amended to
39-22 correct a reference to read as follows:
39-23 (a) Except as provided by Subsection (c), a person taking a
39-24 child into custody, without unnecessary delay and without first
39-25 taking the child to any place other than a juvenile processing
39-26 office designated under Section 52.025, shall do one of the
40-1 following:
40-2 (1) release the child to a parent, guardian, custodian
40-3 of the child, or other responsible adult upon that person's promise
40-4 to bring the child before the juvenile court as requested by the
40-5 court;
40-6 (2) bring the child before the office or official
40-7 designated by the juvenile court if there is probable cause to
40-8 believe that the child engaged in delinquent conduct or conduct
40-9 indicating a need for supervision;
40-10 (3) bring the child to a detention facility designated
40-11 by the juvenile court;
40-12 (4) bring the child to a secure detention facility as
40-13 provided by Section 51.12(j) [51.12(i)];
40-14 (5) bring the child to a medical facility if the child
40-15 is believed to suffer from a serious physical condition or illness
40-16 that requires prompt treatment; or
40-17 (6) dispose of the case under Section 52.03.
40-18 SECTION 6.09. Section 52.026(b), Family Code, is amended to
40-19 correct a reference to read as follows:
40-20 (b) If the juvenile detention facility is located outside
40-21 the county in which the child is taken into custody, it shall be
40-22 the duty of the sheriff of that county to transport the child to
40-23 the appropriate juvenile detention facility unless the child is:
40-24 (1) detained in a secure detention facility under
40-25 Section 51.12(j) [51.12(i)]; or
40-26 (2) released to the parent, guardian, or custodian of
41-1 the child.
41-2 SECTION 6.10. (a) Chapter 84, Family Code, is amended to
41-3 conform to Section 4, Chapter 752, Acts of the 75th Legislature,
41-4 Regular Session, 1997, by adding Section 84.005 to read as follows:
41-5 Sec. 84.005. LEGISLATIVE CONTINUANCE. If a proceeding for
41-6 which a legislative continuance is sought under Section 30.003,
41-7 Civil Practice and Remedies Code, includes an application for a
41-8 protective order, the continuance is discretionary with the court.
41-9 (b) Section 4, Chapter 752, Acts of the 75th Legislature,
41-10 Regular Session, 1997, is repealed.
41-11 SECTION 6.11. Section 102.0085(a), Family Code, is amended
41-12 to correct a reference to read as follows:
41-13 (a) A party to a proceeding brought under this title
41-14 [chapter and Chapters 151, 153, 154, 156, 160, and 161] shall
41-15 include in the first pleading filed by the party in the proceeding
41-16 the following statement:
41-17 "I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS
41-18 TO PROMOTE THE AMICABLE AND NONJUDICIAL SETTLEMENT OF
41-19 DISPUTES INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF
41-20 ALTERNATIVE DISPUTE RESOLUTION METHODS, INCLUDING
41-21 MEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE
41-22 RESOLUTION IS AN ALTERNATIVE TO AND NOT A SUBSTITUTE
41-23 FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS
41-24 NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL
41-25 ATTEMPT IN GOOD FAITH TO RESOLVE BEFORE FINAL TRIAL
41-26 CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTE
42-1 RESOLUTION WITHOUT THE NECESSITY OF COURT
42-2 INTERVENTION."
42-3 SECTION 6.12. Section 102.009(a), Family Code, as amended by
42-4 Section 1, Chapter 561, Acts of the 75th Legislature, Regular
42-5 Session, 1997, and Section 1, Chapter 599, Acts of the 75th
42-6 Legislature, Regular Session, 1997, is reenacted and amended to
42-7 read as follows:
42-8 (a) Except as provided by Subsection (b), the following are
42-9 entitled to service of citation on the filing of a petition in an
42-10 original suit:
42-11 (1) a managing conservator;
42-12 (2) a possessory conservator;
42-13 (3) a person having possession of or access to the
42-14 child under an order;
42-15 (4) a person required by law or by order to provide
42-16 for the support of the child;
42-17 (5) a guardian of the person of the child;
42-18 (6) a guardian of the estate of the child;
42-19 (7) each parent as to whom the parent-child
42-20 relationship has not been terminated or process has not been waived
42-21 under Chapter 161;
42-22 (8) an alleged father, unless there is attached to the
42-23 petition an affidavit of waiver of interest in a child executed by
42-24 the alleged father as provided by Chapter 161 or unless the
42-25 petitioner has complied with the provisions of Section
42-26 161.002(b)(2) or (b)(3);
43-1 (9) a man who has filed a notice of intent to claim
43-2 paternity as provided by Subchapter D, Chapter 160; [and]
43-3 (10) the Department of Protective and Regulatory
43-4 Services, if the petition requests that the department be appointed
43-5 as managing conservator of the child; and[.]
43-6 (11) [(10)] the attorney general, if the petition
43-7 requests the termination of the parent-child relationship and the
43-8 Title IV-D agency has filed with the court a notice of assignment
43-9 under Chapter 231 with respect to the support rights of the child.
43-10 SECTION 6.13. Section 102.012(b), Family Code, is amended to
43-11 correct a reference to read as follows:
43-12 (b) The court's authority to resolve all issues in
43-13 controversy between the parties may be restricted because the court
43-14 lacks:
43-15 (1) the required personal jurisdiction over a
43-16 nonresident party;
43-17 (2) the required jurisdiction under Chapter 152; or
43-18 (3) the required jurisdiction under Chapter 159 [157].
43-19 SECTION 6.14. Section 103.001(a), Family Code, is amended to
43-20 correct a reference to read as follows:
43-21 (a) Except as otherwise provided by this title, an original
43-22 suit shall be filed in the county where the child resides, unless:
43-23 (1) another court has continuing exclusive
43-24 jurisdiction under Chapter 155; or
43-25 (2) venue is fixed in a suit for dissolution of a
43-26 marriage under Subchapter D, Chapter 6 [Chapter 3].
44-1 SECTION 6.15. Section 107.0135, Family Code, is amended to
44-2 correct a reference to read as follows:
44-3 Sec. 107.0135. Appointment of Attorney ad Litem Not
44-4 Required; Certain Cases. A court is not required under this
44-5 chapter [section] to appoint an attorney ad litem in a proceeding
44-6 in which:
44-7 (1) a suit for the dissolution of a marriage is
44-8 uncontested; or
44-9 (2) the issues of possession of and access to a child
44-10 are agreed to by both parents.
44-11 SECTION 6.16. Section 108.003(a), Family Code, is amended to
44-12 correct a reference to read as follows:
44-13 (a) The clerk of a court that renders a decree of adoption
44-14 shall, not later than the 10th day of the first month after the
44-15 month in which the adoption is rendered, transmit to the central
44-16 registry of the bureau of vital statistics certified report of
44-17 adoption that includes:
44-18 (1) the name of the adopted child after adoption as
44-19 shown in the adoption order;
44-20 (2) the birth date of the adopted child;
44-21 (3) the docket number of the adoption suit;
44-22 (4) the identity of the court rendering the adoption;
44-23 (5) the date of the adoption order;
44-24 (6) the name and address of each parent, guardian,
44-25 managing conservator, or other person whose consent to adoption was
44-26 required or waived under Chapter 162 [159], or whose parental
45-1 rights were terminated in the adoption suit;
45-2 (7) the identity of the licensed child placing agency,
45-3 if any, through which the adopted child was placed for adoption;
45-4 and
45-5 (8) the identity, address, and telephone number of the
45-6 registry through which the adopted child may register as an
45-7 adoptee.
45-8 SECTION 6.17. Section 109.002(b), Family Code, is amended to
45-9 correct a reference to read as follows:
45-10 (b) An appeal may be taken by any party to a suit from a
45-11 final order rendered under this title [subtitle].
45-12 SECTION 6.18. (a) Subchapter A, Chapter 151, Family Code,
45-13 is amended to conform to Section 3(b), Chapter 1225, Acts of the
45-14 75th Legislature, Regular Session, 1997, by adding Section 151.005
45-15 to read as follows:
45-16 Sec. 151.005. LIMITATION ON STATE AGENCY ACTION. A state
45-17 agency may not adopt rules or policies or take any other action
45-18 that violates the fundamental right and duty of a parent to direct
45-19 the upbringing of the parent's child.
45-20 (b) Section 3(b), Chapter 1225, Acts of the 75th
45-21 Legislature, Regular Session, 1997, is repealed.
45-22 SECTION 6.19. Section 155.001(a), Family Code, is amended to
45-23 correct a reference to read as follows:
45-24 (a) Except as otherwise provided by this section, a court
45-25 acquires continuing, exclusive jurisdiction over the matters
45-26 provided for by this title [subtitle] in connection with a child on
46-1 the rendition of a final order.
46-2 SECTION 6.20. Section 155.002, Family Code, is amended to
46-3 correct a reference to read as follows:
46-4 Sec. 155.002. RETAINING CONTINUING, EXCLUSIVE JURISDICTION.
46-5 Except as otherwise provided by this subchapter, a court with
46-6 continuing, exclusive jurisdiction retains jurisdiction of the
46-7 parties and matters provided by this title [subtitle].
46-8 SECTION 6.21. Section 156.301, Family Code, is amended to
46-9 correct a reference to read as follows:
46-10 Sec. 156.301. GROUNDS FOR MODIFICATION OF POSSESSION AND
46-11 ACCESS. The court may modify an order that sets the terms and
46-12 conditions for possession of or access to a child or that
46-13 prescribes the relative rights, privileges, duties, and powers of
46-14 conservators if:
46-15 (1) the circumstances of the child or a person
46-16 affected by the order have materially and substantially changed
46-17 since the date of the rendition of the order;
46-18 (2) the order has become unworkable or inappropriate
46-19 under existing circumstances;
46-20 (3) the notice of change of a conservator's residence
46-21 required by Chapter 105 [153] was not given or there was a change
46-22 in a conservator's residence to a place outside this state; or
46-23 (4) a conservator has repeatedly failed to give notice
46-24 of an inability to exercise possessory rights.
46-25 SECTION 6.22. Section 156.402(a), Family Code, is amended to
46-26 correct a reference to read as follows:
47-1 (a) The court may consider the child support guidelines in
47-2 Chapter 154 [153] to determine whether there has been a material or
47-3 substantial change of circumstances under this chapter that
47-4 warrants a modification of an existing child support order if the
47-5 modification is in the best interest of the child.
47-6 SECTION 6.23. Section 156.406, Family Code, is amended to
47-7 correct a reference to read as follows:
47-8 Sec. 156.406. USE OF GUIDELINES FOR CHILDREN IN MORE THAN
47-9 ONE HOUSEHOLD. In applying the child support guidelines in a suit
47-10 under this subchapter, if the obligor has the duty to support
47-11 children in more than one household, the court shall apply the
47-12 percentage guidelines for multiple families in Chapter 154 [153].
47-13 SECTION 6.24. Section 157.003(a), Family Code, is amended to
47-14 correct a reference to read as follows:
47-15 (a) A party requesting enforcement may join in the same
47-16 proceeding any claim and remedy provided for in this chapter, other
47-17 provisions of this title [subtitle], or other rules of law.
47-18 SECTION 6.25. Section 157.165, Family Code, is amended to
47-19 correct a reference to read as follows:
47-20 Sec. 157.165. PROBATION OF CONTEMPT ORDER. The court may
47-21 place the respondent on community supervision and suspend
47-22 commitment if the court finds that the respondent is in contempt of
47-23 court for failure or refusal to obey an order rendered as provided
47-24 in this title [subtitle].
47-25 SECTION 6.26. Section 201.1085, Family Code, as added by
47-26 Section 62, Chapter 1022, Acts of the 75th Legislature, Regular
48-1 Session, 1997, is repealed because it is substantively identical to
48-2 Section 201.1085, Family Code, as added by Section 3, Chapter 600,
48-3 Acts of the 75th Legislature, Regular Session, 1997.
48-4 SECTION 6.27. Section 231.002(e), Family Code, as relettered
48-5 by Section 1, Chapter 874, Acts of the 75th Legislature, Regular
48-6 Session, 1997, and amended by Section 68, Chapter 911, Acts of the
48-7 75th Legislature, Regular Session, 1997; Section 231.002(e), Family
48-8 Code, as added by Section 68, Chapter 911, Acts of the 75th
48-9 Legislature, Regular Session, 1997; and Section 231.002(f), Family
48-10 Code, are relettered and amended to correct a reference to read as
48-11 follows:
48-12 (e) The Title IV-D agency may take the following
48-13 administrative actions with respect to the location of a parent,
48-14 the determination of parentage, and the establishment,
48-15 modification, and enforcement of child support and medical support
48-16 orders required by 42 U.S.C. Section 666(c), without obtaining an
48-17 order from any other judicial or administrative tribunal:
48-18 (1) issue an administrative subpoena, as provided by
48-19 Section 231.303, to obtain financial or other information;
48-20 (2) order genetic testing for parentage determination,
48-21 as provided by Chapter 233;
48-22 (3) order income withholding, as provided by Chapter
48-23 233, and issue an administrative writ of withholding, as provided
48-24 by Chapter 158; and
48-25 (4) take any action with respect to execution,
48-26 collection, and release of a judgment or lien for child support
49-1 necessary to satisfy the judgment or lien, as provided by Chapter
49-2 157.
49-3 (f) [(e)] The Title IV-D agency shall recognize and enforce
49-4 the authority of the Title IV-D agency of another state to take
49-5 actions similar to the actions listed in Subsection (e) [(d)].
49-6 (g) [(f)] The Title IV-D agency shall develop and use
49-7 procedures for the administrative enforcement of interstate cases
49-8 meeting the requirements of 42 U.S.C. Section 666(a)(14) under
49-9 which the agency:
49-10 (1) shall respond within five business days to a
49-11 request made by another state for assistance in a Title IV-D case;
49-12 and
49-13 (2) may, by electronic or other means, transmit to
49-14 another state a request for assistance in a Title IV-D case.
49-15 SECTION 6.28. Section 231.302(b), Family Code, as amended by
49-16 Section 20, Chapter 420, Acts of the 75th Legislature, Regular
49-17 Session, 1997, and Section 77, Chapter 911, Acts of the 75th
49-18 Legislature, Regular Session, 1997, is reenacted to read as
49-19 follows:
49-20 (b) A government agency, private company, institution, or
49-21 other entity shall provide the information requested under
49-22 Subsection (a) and shall, subject to safeguards on privacy and
49-23 information security, provide the information in the most efficient
49-24 and expeditious manner available, including electronic or automated
49-25 transfer and interface. Any individual or entity disclosing
49-26 information under this section in response to a request from a
50-1 Title IV-D agency may not be held liable in any civil action or
50-2 proceeding to any person for the disclosure of information under
50-3 this subsection.
50-4 SECTION 6.29. Section 261.101(b), Family Code, as amended by
50-5 Section 1, Chapter 162, and Section 65, Chapter 1022, Acts of the
50-6 75th Legislature, Regular Session, 1997, is amended and reenacted
50-7 to read as follows:
50-8 (b) If a professional has cause to believe that a child has
50-9 been abused or neglected or may be abused or neglected or that a
50-10 child is a victim of an offense under Section 21.11, Penal Code,
50-11 [and that the professional has cause to believe that the child has
50-12 been abused as defined by Section 261.001,] the professional shall
50-13 make a report not later than the 48th hour after the hour the
50-14 professional first suspects that the child has been or may be
50-15 abused or neglected or is a victim of an offense under Section
50-16 21.11, Penal Code. A professional may not delegate to or rely on
50-17 another person to make the report. In this subsection,
50-18 "professional" means an individual who is licensed or certified by
50-19 the state or who is an employee of a facility licensed, certified,
50-20 or operated by the state and who, in the normal course of official
50-21 duties or duties for which a license or certification is required,
50-22 has direct contact with children. The term includes teachers,
50-23 nurses, doctors, day-care employees, employees of a clinic or
50-24 health care facility that provides reproductive services, juvenile
50-25 probation officers, and juvenile detention or correctional
50-26 officers.
51-1 SECTION 6.30. Section 261.107, Family Code, as amended by
51-2 Section 2, Chapter 575, and Section 68, Chapter 1022, Acts of the
51-3 75th Legislature, Regular Session, 1997, is reenacted to read as
51-4 follows:
51-5 Sec. 261.107. FALSE REPORT; PENALTY. (a) A person commits
51-6 an offense if the person knowingly or intentionally makes a report
51-7 as provided in this chapter that the person knows is false or lacks
51-8 factual foundation. An offense under this section is a Class A
51-9 misdemeanor unless it is shown on the trial of the offense that the
51-10 person has previously been convicted under this section, in which
51-11 case the offense is a state jail felony.
51-12 (b) A finding by a court in a suit affecting the
51-13 parent-child relationship that a report made under this chapter
51-14 before or during the suit was false or lacking factual foundation
51-15 may be grounds for the court to modify an order providing for
51-16 possession of or access to the child who was the subject of the
51-17 report by restricting further access to the child by the person who
51-18 made the report.
51-19 (c) The appropriate county prosecuting attorney shall be
51-20 responsible for the prosecution of an offense under this section.
51-21 SECTION 6.31. (a) Section 262.201(c), Family Code, as
51-22 amended by Section 5, Chapter 600; Section 1, Chapter 603; Section
51-23 77, Chapter 1022; and Section 3, Chapter 752, Acts of the 75th
51-24 Legislature, Regular Session, 1997, is reenacted and amended to
51-25 correct references to read as follows:
51-26 (c) If the court finds sufficient evidence to satisfy a
52-1 person of ordinary prudence and caution that there is a continuing
52-2 danger to the physical health or safety of the child and for the
52-3 child to remain in the home is contrary to the welfare of the
52-4 child, the court shall issue an appropriate temporary order under
52-5 Chapter 105 and inform each parent in open court that parental and
52-6 custodial rights and duties may be subject to restriction or to
52-7 termination unless the parent or parents are willing and able to
52-8 provide the child with a safe environment. If the court finds that
52-9 the child requires protection from family violence by a member of
52-10 the child's family or household, the court shall render a
52-11 protective order under Title 4 [Chapter 71] for the child. In this
52-12 subsection, "family violence" has the meaning assigned by Section
52-13 71.004 [71.01].
52-14 (b) Subsection (e), Section 262.201, Family Code, as added
52-15 by Section 21, Chapter 575, Acts of the 75th Legislature, Regular
52-16 Session, 1997, is relettered as Subsection (f), Section 262.201,
52-17 Family Code.
52-18 ARTICLE 7. CHANGES RELATING TO FINANCE CODE
52-19 PART 1. CHANGES RELATING TO CREDIT UNIONS
52-20 PART 2. CHANGES RELATING TO TRUST COMPANIES
52-21 PART 3. CHANGES RELATING TO CREDIT
52-22 PART 4. CODIFICATION OF CERTAIN ARTICLES
52-23 PART 5. OTHER CHANGES RELATING TO FINANCE CODE
52-24 PART 6. CROSS-REFERENCE CHANGES
52-25 PART 1. CHANGES RELATING TO CREDIT UNIONS
52-26 SECTION 7.01. (a) Section 122.005, Finance Code, is amended
53-1 to conform to Sections 1 and 17, Chapter 338, Acts of the 75th
53-2 Legislature, Regular Session, 1997, to read as follows:
53-3 Sec. 122.005. PROCEDURE FOR CERTAIN APPROVALS. (a) This
53-4 section applies to a request for approval by the commissioner of:
53-5 (1) an application for incorporation under this
53-6 subchapter;
53-7 (2) a request for approval of an amendment to a credit
53-8 union's articles of incorporation under Section 122.011, including
53-9 an amendment to expand the credit union's field of membership; and
53-10 (3) a merger or consolidation under Subchapter D.
53-11 (b) Before approving a request to which this section
53-12 applies, the commissioner shall submit notice of the request to the
53-13 secretary of state for publication in the Texas Register. The
53-14 commission by rule shall provide for other appropriate public
53-15 notice of the request. The commissioner may waive the requirements
53-16 of this subsection or permit delayed public notice on a
53-17 determination that waiver or delay is in the public interest. If
53-18 the requirements of this subsection are waived, the information
53-19 that would be contained in a public notice becomes public
53-20 information under Chapter 552, Government Code, on the 35th day
53-21 after the date the request is made.
53-22 (c) Before making a determination on a request to which this
53-23 section applies, the commissioner must accept comment from any
53-24 interested party that wishes to comment. This comment may be in
53-25 the form of written testimony or may be provided at a meeting with
53-26 the commissioner held for the purpose of receiving the comment.
54-1 This meeting shall be held if requested by any interested party.
54-2 The commissioner may hold the meeting regardless of whether an
54-3 interested party requests the meeting. The commission may
54-4 establish reasonable rules governing the circumstances and conduct
54-5 of the meeting. Chapter 2001, Government Code, does not apply to
54-6 the meeting. Not later than the 60th day after the date the notice
54-7 is published in the Texas Register, or if the notice is not
54-8 published, after the date the request is received, the commissioner
54-9 shall approve or disapprove the application. [NOTICE OF
54-10 APPLICATION; HEARING. The commission by rule shall establish:]
54-11 [(1) procedures for giving notice of an application to
54-12 incorporate; and]
54-13 [(2) conditions under which a hearing may be
54-14 available.]
54-15 (b) Sections 122.006(b) and (c), Finance Code, are amended
54-16 to conform to Section 1, Chapter 338, Acts of the 75th Legislature,
54-17 Regular Session, 1997, to read as follows:
54-18 (b) In addition to the findings under Subsection (a) and in
54-19 accordance with commission rules, the commissioner shall consider
54-20 the effect of overlapping fields of membership on the applicant
54-21 credit union and existing state or federal credit unions doing
54-22 business in this state. The commissioner may consider the
54-23 availability and adequacy of financial services in the local
54-24 community and the effect that the incorporation of the credit union
54-25 would have on the local community. As a condition of approval of
54-26 the application, the commissioner may require the applicant credit
55-1 union to limit or eliminate overlaps, in accordance with the rules,
55-2 to achieve the purposes of this subtitle and promote the welfare
55-3 and stability of those credit unions.
55-4 (c) The [Not later than the 90th day after the date an
55-5 application is filed or the date a hearing on the application is
55-6 held, whichever is later, the] commissioner by written order shall
55-7 state the findings required by Subsection (a) and approve or deny
55-8 the application.
55-9 (c) Sections 1 and 17, Chapter 338, Acts of the 75th
55-10 Legislature, Regular Session, 1997, are repealed.
55-11 SECTION 7.02. (a) Section 122.011(b), Finance Code, is
55-12 amended to conform to Section 2, Chapter 338, Acts of the 75th
55-13 Legislature, Regular Session, 1997, to read as follows:
55-14 (b) The commissioner in writing shall approve or disapprove
55-15 an amendment [not later than the 60th day after the date of
55-16 submission, the date of required publication in the department's
55-17 newsletter, or the date of a hearing on the amendment, whichever is
55-18 latest].
55-19 (b) Section 2, Chapter 338, Acts of the 75th Legislature,
55-20 Regular Session, 1997, is repealed.
55-21 SECTION 7.03. (a) Subchapter D, Chapter 122, Finance Code,
55-22 is amended to conform to Section 3, Chapter 338, Acts of the 75th
55-23 Legislature, Regular Session, 1997, by adding Sections 122.1531 and
55-24 122.156 to read as follows:
55-25 Sec. 122.1531. CONSIDERATIONS IN DETERMINATION. In
55-26 determining whether to approve or disapprove the merger or
56-1 consolidation, the commissioner shall consider the availability and
56-2 adequacy of financial services in the local community and the
56-3 effect that the merger or consolidation would have on the local
56-4 community. The commission by rule shall establish other
56-5 appropriate criteria that the commissioner must consider in making
56-6 the determination.
56-7 Sec. 122.156. RULES TO ADDRESS CERTAIN PROCEDURES. The
56-8 rules adopted under this subchapter must specify in detail the
56-9 procedures that:
56-10 (1) a credit union must follow to obtain commissioner
56-11 approval of a merger or consolidation; and
56-12 (2) the commissioner must follow in approving or
56-13 disapproving the merger or consolidation.
56-14 (b) Section 3, Chapter 338, Acts of the 75th Legislature,
56-15 Regular Session, 1997, is repealed.
56-16 SECTION 7.04. (a) Section 15.104, Finance Code, is amended
56-17 to conform to Section 4, Chapter 338, Acts of the 75th Legislature,
56-18 Regular Session, 1997, to read as follows:
56-19 Sec. 15.104. FISCAL REPORT. (a) The [During January of
56-20 each year, the] department shall annually prepare [file with the
56-21 governor and the presiding officer of each house of the
56-22 legislature] a complete and detailed written report accounting for
56-23 all money received and disbursed by the department during the
56-24 preceding year.
56-25 (b) The report must meet the reporting requirements
56-26 applicable to financial reporting provided by the General
57-1 Appropriations Act.
57-2 (b) Section 15.212, Finance Code, is amended to conform to
57-3 Section 4, Chapter 338, Acts of the 75th Legislature, Regular
57-4 Session, 1997, to read as follows:
57-5 Sec. 15.212. SUNSET PROVISION. The Credit Union Commission
57-6 is subject to Chapter 325, Government Code (Texas Sunset Act).
57-7 Unless continued in existence as provided by that chapter, the
57-8 commission is abolished [and this chapter and Subtitle D, Title 3,
57-9 expire] September 1, 2009 [1997].
57-10 (c) Section 4, Chapter 338, Acts of the 75th Legislature,
57-11 Regular Session, 1997, is repealed.
57-12 SECTION 7.05. (a) Section 15.001, Finance Code, is amended
57-13 to conform to Section 5, Chapter 338, Acts of the 75th Legislature,
57-14 Regular Session, 1997, to read as follows:
57-15 Sec. 15.001. DEFINITIONS. (a) In this chapter, "trade
57-16 association" means a nonprofit, cooperative, and voluntarily joined
57-17 association of business or professional competitors designed to
57-18 assist its members and its industry or profession in dealing with
57-19 mutual business or professional problems and in promoting their
57-20 common interest.
57-21 (b) The definitions provided by Section 121.002 apply to
57-22 this chapter.
57-23 (b) Section 15.202(b), Finance Code, is amended to conform
57-24 to Section 5, Chapter 338, Acts of the 75th Legislature, Regular
57-25 Session, 1997, to read as follows:
57-26 (b) A commission member may not be:
58-1 (1) an officer, [or] employee, or paid consultant of a
58-2 [state] trade association representing or affiliated with a
58-3 financial institution group or an entity affiliated with financial
58-4 institutions [in the credit union industry]; [or]
58-5 (2) a spouse of an officer, manager, or paid
58-6 consultant of a trade association representing or affiliated with a
58-7 financial institution group or an entity affiliated with financial
58-8 institutions; or
58-9 (3) a person who is required to register as a lobbyist
58-10 under Chapter 305, Government Code, because of the person's
58-11 activities for compensation on behalf of a profession related to
58-12 the operation of the commission.
58-13 (c) Section 15.203(a), Finance Code, is amended to conform
58-14 to Section 5, Chapter 338, Acts of the 75th Legislature, Regular
58-15 Session, 1997, to read as follows:
58-16 (a) Four [Six] commission members must be individuals who:
58-17 (1) have five years or more of active experience as a
58-18 director, officer, or committee member of a credit union that:
58-19 (A) is organized and doing business in this
58-20 state under Subtitle D, Title 3, or the Federal Credit Union Act
58-21 (12 U.S.C. Section 1751 et seq.); and
58-22 (B) has its principal office in this state; and
58-23 (2) are engaged in exercising the powers and duties of
58-24 a director, officer, or committee member of such a credit union.
58-25 (d) Section 15.204(a), Finance Code, is amended to conform
58-26 to Section 5, Chapter 338, Acts of the 75th Legislature, Regular
59-1 Session, 1997, to read as follows:
59-2 (a) Five [Three] commission members must be representatives
59-3 of the public. A person is not eligible for appointment as a
59-4 public member of the commission if the person or the person's
59-5 spouse [who, at the time of appointment or while serving on the
59-6 commission]:
59-7 (1) is employed by or participates [are not engaged]
59-8 in managing or directing:
59-9 (A) a financial institution; or
59-10 (B) an organization, other than a financial
59-11 institution, regulated by or receiving money from a financial
59-12 institution regulatory agency; [and]
59-13 (2) has [do not have], other than as a member or
59-14 customer, a financial interest in:
59-15 (A) a financial institution; or
59-16 (B) an organization, other than a financial
59-17 institution, regulated by or receiving money from a financial
59-18 institution regulatory agency; or
59-19 (3) uses or receives a substantial amount of tangible
59-20 goods, services, or money from the department, other than
59-21 compensation or reimbursement authorized by law for commission
59-22 membership, attendance, or expenses.
59-23 (e) Section 15.305, Finance Code, is amended to conform to
59-24 Section 5, Chapter 338, Acts of the 75th Legislature, Regular
59-25 Session, 1997, to read as follows:
59-26 Sec. 15.305. GENERAL COUNSEL. A person who is required to
60-1 register as a lobbyist under Chapter 305, Government Code, because
60-2 of the person's activities for compensation on behalf of a
60-3 profession related to the operation of the commission, may not
60-4 serve as general counsel to the commission.
60-5 (f) Subchapter D, Chapter 15, Finance Code, is amended to
60-6 conform to Section 5, Chapter 338, Acts of the 75th Legislature,
60-7 Regular Session, 1997, by adding Section 15.311 to read as follows:
60-8 Sec. 15.311. QUALIFICATIONS OF EMPLOYEES. A person may not
60-9 be an employee of the department who is exempt from the state's
60-10 position classification plan or is compensated at or above the
60-11 amount prescribed by the General Appropriations Act for step 1,
60-12 salary group 17, of the position classification salary schedule, if
60-13 the person is:
60-14 (1) an officer, employee, or paid consultant of a
60-15 trade association representing or affiliated with a financial
60-16 institution group or an entity affiliated with financial
60-17 institutions; or
60-18 (2) a spouse of an officer, manager, or paid
60-19 consultant of a trade association representing or affiliated with a
60-20 financial institution group or an entity affiliated with financial
60-21 institutions.
60-22 (g) Section 5, Chapter 338, Acts of the 75th Legislature,
60-23 Regular Session, 1997, is repealed.
60-24 SECTION 7.06. (a) Section 15.201(c), Finance Code, is
60-25 amended to conform to Section 6, Chapter 338, Acts of the 75th
60-26 Legislature, Regular Session, 1997, to read as follows:
61-1 (c) An appointment to the commission must be made without
61-2 regard to the race, color, creed, disability, sex, religion, age,
61-3 or national origin of the appointee.
61-4 (b) Section 6, Chapter 338, Acts of the 75th Legislature,
61-5 Regular Session, 1997, is repealed.
61-6 SECTION 7.07. (a) Subchapter C, Chapter 15, Finance Code,
61-7 is amended to conform to Section 7, Chapter 338, Acts of the 75th
61-8 Legislature, Regular Session, 1997, by adding Section 15.2041 to
61-9 read as follows:
61-10 Sec. 15.2041. TRAINING PROGRAM. (a) To be eligible to take
61-11 office as a member of the commission, a person appointed to the
61-12 commission must complete at least one course of a training program
61-13 that complies with this section. A commission member must complete
61-14 a training program that complies with Subsection (b) not later than
61-15 the 180th day after the date on which the person takes office.
61-16 (b) A training program established under this section must
61-17 provide information to the member regarding:
61-18 (1) the enabling legislation that created the
61-19 department and its policy-making body to which the member is
61-20 appointed to serve;
61-21 (2) the programs operated by the department;
61-22 (3) the role and functions of the department;
61-23 (4) the rules of the commission with an emphasis on
61-24 the rules that relate to disciplinary and investigatory authority;
61-25 (5) the current budget for the department;
61-26 (6) the results of the most recent formal audit of the
62-1 department;
62-2 (7) the requirements of the:
62-3 (A) open meetings law, Chapter 551, Government
62-4 Code;
62-5 (B) open records law, Chapter 552, Government
62-6 Code; and
62-7 (C) administrative procedure law, Chapter 2001,
62-8 Government Code;
62-9 (8) the requirements of the conflict of interest laws
62-10 and other laws relating to public officials;
62-11 (9) any applicable ethics policies adopted by the
62-12 department or the Texas Ethics Commission; and
62-13 (10) the basic principles and responsibilities of
62-14 credit union management.
62-15 (c) A person appointed to the commission is entitled to
62-16 reimbursement for travel expenses incurred in attending the
62-17 training program, as provided by the General Appropriations Act and
62-18 as if the person were a member of the commission.
62-19 (b) Section 7, Chapter 338, Acts of the 75th Legislature,
62-20 Regular Session, 1997, is repealed.
62-21 SECTION 7.08. (a) Section 15.205, Finance Code, is amended
62-22 to conform to Section 8, Chapter 338, Acts of the 75th Legislature,
62-23 Regular Session, 1997, to read as follows:
62-24 Sec. 15.205. VACANCIES. The office of a commission member
62-25 becomes vacant:
62-26 (1) on the death, resignation, or removal of the
63-1 member; or
63-2 (2) if the member ceases to have the qualifications
63-3 required for service as a member[; or]
63-4 [(3) on January 1 if the member has failed to attend
63-5 more than half of the meetings of the commission held during the
63-6 preceding calendar year, excluding a meeting held before the member
63-7 assumed office].
63-8 (b) Section 15.206, Finance Code, is amended to conform to
63-9 Section 8, Chapter 338, Acts of the 75th Legislature, Regular
63-10 Session, 1997, to read as follows:
63-11 Sec. 15.206. REMOVAL. (a) A ground for removal of a
63-12 commission member by the governor exists if a member:
63-13 (1) neglects the member's duty;
63-14 (2) is incompetent; or
63-15 (3) commits fraudulent or criminal conduct[; or]
63-16 [(4) is a person required to register as a lobbyist
63-17 under Chapter 305, Government Code].
63-18 (b) It is grounds for removal from the commission if a
63-19 member:
63-20 (1) does not have at the time of appointment the
63-21 applicable qualifications required by Sections 15.202, 15.203, and
63-22 15.204;
63-23 (2) does not maintain during service on the commission
63-24 the applicable qualifications required by Sections 15.202, 15.203,
63-25 and 15.204;
63-26 (3) violates a prohibition established by Section
64-1 15.202, 15.203, or 15.204;
64-2 (4) cannot because of illness or disability discharge
64-3 the member's duties for a substantial part of the term for which
64-4 the member is appointed; or
64-5 (5) is absent from more than half of the regularly
64-6 scheduled commission meetings that the member is eligible to attend
64-7 during a calendar year.
64-8 (c) The validity of an action of the commission is not
64-9 affected by the fact that it was taken when a ground for removal of
64-10 a commission member existed.
64-11 (d) If the commissioner has knowledge that a potential
64-12 ground for removal exists, the commissioner shall notify the
64-13 presiding officer of the commission of the potential ground. The
64-14 presiding officer shall then notify the governor and the attorney
64-15 general that a potential ground for removal exists. If the
64-16 potential ground for removal involves the presiding officer, the
64-17 commissioner shall notify the next highest officer of the
64-18 commission, who shall notify the governor and the attorney general
64-19 that a potential ground for removal exists.
64-20 (c) Section 8, Chapter 338, Acts of the 75th Legislature,
64-21 Regular Session, 1997, is repealed.
64-22 SECTION 7.09. (a) Section 15.208, Finance Code, is amended
64-23 to conform to Section 9, Chapter 338, Acts of the 75th Legislature,
64-24 Regular Session, 1997, to read as follows:
64-25 Sec. 15.208. MATTER IN WHICH COMMISSION MEMBER HAS PERSONAL
64-26 INTEREST. (a) A commission member may not act on a matter under
65-1 the commission's consideration that directly affects [and
65-2 specifically relates to] a credit union of which the member is an
65-3 officer, director, or member.
65-4 (b) The commission shall adopt rules relating to recusal of
65-5 members, requiring that a member who has a personal or private
65-6 interest in a measure, proposal, or decision pending before the
65-7 commission shall publicly disclose the fact to the commission at a
65-8 meeting held in compliance with Chapter 551, Government Code. The
65-9 member may not vote or otherwise participate in the decision. The
65-10 disclosure shall be entered into the minutes of the meeting.
65-11 (b) Section 15.209, Finance Code, is amended to conform to
65-12 Section 9, Chapter 338, Acts of the 75th Legislature, Regular
65-13 Session, 1997, by adding Subsection (d) to read as follows:
65-14 (d) The commission is subject to the:
65-15 (1) open meetings law, Chapter 551, Government Code;
65-16 and
65-17 (2) administrative procedure law, Chapter 2001,
65-18 Government Code.
65-19 (c) Section 15.210, Finance Code, is amended to conform to
65-20 Section 9, Chapter 338, Acts of the 75th Legislature, Regular
65-21 Session, 1997, to read as follows:
65-22 Sec. 15.210. PRESIDING OFFICER. The governor shall
65-23 designate a member of the commission as presiding officer of the
65-24 commission to serve in that capacity at the will of the governor.
65-25 [OFFICERS. (a) The commission annually shall elect a chairman and
65-26 vice chairman from its members.]
66-1 [(b) The chairman presides at each meeting of the
66-2 commission, and the vice chairman presides in the absence of the
66-3 chairman. If both the chairman and the vice chairman are absent
66-4 from a meeting, the most senior commission member attending the
66-5 meeting presides.]
66-6 (d) Section 9, Chapter 338, Acts of the 75th Legislature,
66-7 Regular Session, 1997, is repealed.
66-8 SECTION 7.10. (a) Subchapter E, Chapter 15, Finance Code,
66-9 is amended to conform to Sections 10, 11, and 12, Chapter 338, Acts
66-10 of the 75th Legislature, Regular Session, 1997, by adding Sections
66-11 15.4021, 15.4022, and 15.4023 to read as follows:
66-12 Sec. 15.4021. RECEIPT OF PUBLIC COMMENTS; NOTICE OF
66-13 COMMISSION ACTIVITIES. (a) The commission shall develop and
66-14 implement policies that provide the public with a reasonable
66-15 opportunity to appear before the commission and to speak on any
66-16 issue under the jurisdiction of the department.
66-17 (b) The commission shall adopt rules providing for public
66-18 notice of department activities.
66-19 Sec. 15.4022. RULES RELATING TO COMPETITIVE BIDDING AND
66-20 ADVERTISING. (a) The commission may not adopt rules restricting
66-21 competitive bidding or advertising by a credit union except to
66-22 prohibit false, misleading, or deceptive practices.
66-23 (b) In its rules to prohibit false, misleading, or deceptive
66-24 practices, the commission may not include a rule that:
66-25 (1) restricts the use of any medium for advertising;
66-26 (2) relates to the size or duration of an
67-1 advertisement by the credit union; or
67-2 (3) restricts the credit union's advertisement under a
67-3 trade name.
67-4 Sec. 15.4023. SEPARATION OF RESPONSIBILITIES. The
67-5 commission shall develop and implement policies that clearly
67-6 separate the policy-making responsibilities of the commission and
67-7 the management responsibilities of the commissioner and the staff
67-8 of the department.
67-9 (b) Sections 10, 11, and 12, Chapter 338, Acts of the 75th
67-10 Legislature, Regular Session, 1997, are repealed.
67-11 SECTION 7.11. (a) Subchapter D, Chapter 15, Finance Code,
67-12 is amended to conform to Section 13, Chapter 338, Acts of the 75th
67-13 Legislature, Regular Session, 1997, by adding Section 15.312 to
67-14 read as follows:
67-15 Sec. 15.312. INFORMATION PROVIDED TO MEMBERS AND EMPLOYEES.
67-16 The commissioner or the commissioner's designee shall provide to
67-17 members of the commission and to department employees, as often as
67-18 necessary, information regarding their qualification for office or
67-19 employment under this chapter and their responsibilities under
67-20 applicable laws relating to standards of conduct for state officers
67-21 or employees.
67-22 (b) Section 15.408, Finance Code, is amended to conform to
67-23 Section 13, Chapter 338, Acts of the 75th Legislature, Regular
67-24 Session, 1997, to read as follows:
67-25 Sec. 15.408. COLLECTION OF MONEY. The commissioner shall
67-26 collect all supervision fees, charges, and revenues required to be
68-1 paid by a credit union under Section 15.402(c). All money paid to
68-2 the department under this chapter and Subtitle D, Title 3, is
68-3 subject to Subchapter F, Chapter 404, Government Code.
68-4 (c) Section 15.409, Finance Code, is amended to conform to
68-5 Section 13, Chapter 338, Acts of the 75th Legislature, Regular
68-6 Session, 1997, by amending Subsections (a), (b), (d), and (e) and
68-7 adding Subsections (f) and (g) to read as follows:
68-8 (a) The commissioner shall [supervise]:
68-9 (1) supervise the preparation of public interest
68-10 information describing [regarding]:
68-11 (A) [regulatory] functions of the department;
68-12 (B) procedures for filing and resolving
68-13 complaints; and
68-14 (C) other matters of general interest relating
68-15 to credit unions; and
68-16 (2) make the information prepared under Subdivision
68-17 (1) available [the dissemination] to the public and appropriate
68-18 state agencies [of information prepared under Subdivision (1)].
68-19 (b) The commissioner shall supervise the establishment and
68-20 maintenance of files regarding each written complaint [complaints]
68-21 filed with the department that the department has authority to
68-22 resolve [relating to a credit union regulated by the department].
68-23 (d) The department [commissioner] shall provide to a person
68-24 filing a complaint and the persons complained about the
68-25 department's policies and procedures concerning complaint
68-26 investigation and resolution [notify each complainant of the
69-1 procedures and remedies available for resolving a complaint].
69-2 (e) At least quarterly until final disposition of any
69-3 written complaint that is filed with the department [commission],
69-4 the department [commissioner] shall notify the parties to the
69-5 complaint of its status unless the notice would jeopardize an
69-6 undercover investigation.
69-7 (f) The department shall keep information about each
69-8 complaint filed with the department. The information must include:
69-9 (1) the date the complaint is received;
69-10 (2) the name of the complainant;
69-11 (3) the subject matter of the complaint;
69-12 (4) a record of all persons contacted in relation to
69-13 the complaint;
69-14 (5) a summary of the results of the review or
69-15 investigation of the complaint; and
69-16 (6) for a complaint that the department closed without
69-17 taking action, an explanation of the reason the complaint was
69-18 closed without action.
69-19 (g) The commission by rule shall establish methods by which
69-20 consumers and service recipients are notified of the name, mailing
69-21 address, and telephone number of the department for the purpose of
69-22 directing complaints to the department. The commission may provide
69-23 for that notification:
69-24 (1) on each registration form, application, or written
69-25 contract for services of a credit union regulated under this
69-26 chapter and Subtitle D, Title 3;
70-1 (2) on a sign prominently displayed in the place of
70-2 business of each credit union regulated under this chapter and
70-3 Subtitle D, Title 3; or
70-4 (3) in a bill for service provided by a credit union
70-5 regulated under this chapter and Subtitle D, Title 3.
70-6 (d) Subchapter E, Chapter 15, Finance Code, is amended to
70-7 conform to Section 13, Chapter 338, Acts of the 75th Legislature,
70-8 Regular Session, 1997, by adding Section 15.4091 to read as
70-9 follows:
70-10 Sec. 15.4091. ACCESS TO DEPARTMENT FACILITIES, PROGRAMS, AND
70-11 SERVICES. (a) The department shall comply with federal and state
70-12 laws related to program and facility accessibility.
70-13 (b) The commissioner shall prepare and maintain a written
70-14 plan that describes how a person who does not speak English can be
70-15 provided reasonable access to the department's programs and
70-16 services.
70-17 (e) Section 13, Chapter 338, Acts of the 75th Legislature,
70-18 Regular Session, 1997, is repealed.
70-19 SECTION 7.12. (a) Section 15.309, Finance Code, is amended
70-20 to conform to Section 14, Chapter 338, Acts of the 75th
70-21 Legislature, Regular Session, 1997, to read as follows:
70-22 Sec. 15.309. INTRA-AGENCY CAREER LADDER. (a) The
70-23 commissioner or a person designated by the commissioner shall
70-24 develop an intra-agency career ladder program that addresses
70-25 opportunities for mobility and advancement for employees within the
70-26 department.
71-1 (b) The program must require [include] intra-agency posting
71-2 of all non-entry-level positions concurrently with [for at least 10
71-3 days before] public posting.
71-4 (b) Section 15.310(a), Finance Code, is amended to conform
71-5 to Section 14, Chapter 338, Acts of the 75th Legislature, Regular
71-6 Session, 1997, to read as follows:
71-7 (a) The commissioner or a person designated by the
71-8 commissioner shall develop a system of annual performance
71-9 evaluations that are based on documented employee performance
71-10 [measurable job tasks].
71-11 (c) Section 14, Chapter 338, Acts of the 75th Legislature,
71-12 Regular Session, 1997, is repealed.
71-13 SECTION 7.13. (a) Subchapter D, Chapter 15, Finance Code,
71-14 is amended to conform to Section 15, Chapter 338, Acts of the 75th
71-15 Legislature, Regular Session, 1997, by adding Section 15.313 to
71-16 read as follows:
71-17 Sec. 15.313. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
71-18 commissioner or a person designated by the commissioner shall
71-19 prepare and maintain a written policy statement to assure
71-20 implementation of a program of equal employment opportunity under
71-21 which all personnel transactions are made without regard to race,
71-22 color, disability, sex, religion, age, or national origin. The
71-23 policy statement must include:
71-24 (1) personnel policies, including policies relating to
71-25 recruitment, evaluation, selection, appointment, training, and
71-26 promotion of personnel that comply with requirements of Chapter 21,
72-1 Labor Code;
72-2 (2) a comprehensive analysis of the department
72-3 workforce that meets federal and state law, including rules and
72-4 regulations, and instructions adopted directly from that law;
72-5 (3) procedures by which a determination can be made
72-6 about the extent of underuse in the department workforce of all
72-7 persons for whom federal or state laws, including rules and
72-8 regulations, and instructions adopted directly from that law,
72-9 encourage a more equitable balance; and
72-10 (4) reasonable methods to appropriately address those
72-11 areas of underuse.
72-12 (b) A policy statement prepared under Subsection (a) must:
72-13 (1) cover an annual period;
72-14 (2) be updated annually and reviewed by the Commission
72-15 on Human Rights for compliance with Subsection (a)(1); and
72-16 (3) be filed with the governor's office.
72-17 (c) The governor's office shall deliver a biennial report to
72-18 the legislature based on the information received under Subsection
72-19 (b). The report may be made separately or as a part of other
72-20 biennial reports made to the legislature.
72-21 (b) Section 15, Chapter 338, Acts of the 75th Legislature,
72-22 Regular Session, 1997, is repealed.
72-23 SECTION 7.14. (a) Section 121.005, Finance Code, is amended
72-24 to conform to Section 16, Chapter 338, Acts of the 75th
72-25 Legislature, Regular Session, 1997, by adding Subsection (c) to
72-26 read as follows:
73-1 (c) This section does not apply to a meeting under Section
73-2 122.005.
73-3 (b) Chapter 121, Finance Code, is amended to conform to
73-4 Section 16, Chapter 338, Acts of the 75th Legislature, Regular
73-5 Session, 1997, by adding Section 121.006 to read as follows:
73-6 Sec. 121.006. PROCEDURE AND RULES APPLICABLE TO CERTAIN
73-7 PROCEEDINGS. (a) If the commission proposes to suspend or revoke
73-8 a credit union's certificate of incorporation, the credit union is
73-9 entitled to a hearing conducted by the State Office of
73-10 Administrative Hearings.
73-11 (b) A proceeding for a disciplinary action is governed by
73-12 Chapter 2001, Government Code. Rules of practice adopted by the
73-13 commission under Section 2001.004, Government Code, applicable to a
73-14 proceeding for a disciplinary action may not conflict with rules
73-15 adopted by the State Office of Administrative Hearings.
73-16 (c) Section 16, Chapter 338, Acts of the 75th Legislature,
73-17 Regular Session, 1997, is repealed.
73-18 SECTION 7.15. Chapter 121, Finance Code, is amended to more
73-19 closely conform to the law from which it was derived by adding
73-20 Section 121.0011 to read as follows:
73-21 Sec. 121.0011. POLICY. The purposes of this subtitle are to
73-22 safeguard the public interest, to promote public confidence in
73-23 credit unions doing business in this state, to provide for the
73-24 protection of the interests, shares, and deposits of credit unions,
73-25 to delegate to the department rulemaking and discretionary
73-26 authority that may be necessary to assure that credit unions
74-1 operating under this subtitle may be sufficiently flexible and
74-2 readily responsive to changes in economic conditions and practices,
74-3 to maintain sound credit union growth and financial integrity,
74-4 fiscal responsibility, and independent judgment in the management
74-5 of the business affairs of credit unions, to permit credit unions
74-6 to effectively provide a full array of financial and financially
74-7 related services, to provide effective supervision and regulation
74-8 of credit unions and their fields of membership, and to clarify and
74-9 modernize the law governing the credit unions doing business in
74-10 this state. This subtitle is the public policy of this state and
74-11 necessary to the public welfare.
74-12 PART 2. CHANGES RELATING TO TRUST COMPANIES
74-13 SECTION 7.16. (a) Title 3, Finance Code, is amended to
74-14 codify Section 1, Chapter 769, Acts of the 75th Legislature,
74-15 Regular Session, 1997 (Article 342a-1.001 et seq., Vernon's Texas
74-16 Civil Statutes), by adding Subtitle F to read as follows:
74-17 SUBTITLE F. TRUST COMPANIES
74-18 CHAPTER 181. GENERAL PROVISIONS
74-19 SUBCHAPTER A. GENERAL PROVISIONS
74-20 Sec. 181.001. SHORT TITLE. This subtitle may be cited as
74-21 the Texas Trust Company Act.
74-22 Sec. 181.002. DEFINITIONS. (a) In this subtitle:
74-23 (1) "Account" means the client relationship
74-24 established with a trust company involving the transfer of funds or
74-25 property to the trust company, including a relationship in which
74-26 the trust company acts as trustee, executor, administrator,
75-1 guardian, custodian, conservator, receiver, registrar, or agent.
75-2 (2) "Affiliate" means a company that directly or
75-3 indirectly controls, is controlled by, or is under common control
75-4 with a state trust company or other company.
75-5 (3) "Bank" means a state or national bank.
75-6 (4) "Banking commissioner" means the banking
75-7 commissioner of Texas or a person designated by the banking
75-8 commissioner and acting under the banking commissioner's direction
75-9 and authority.
75-10 (5) "Board" means the board of directors, managers, or
75-11 managing participants of, or a person or group of persons acting in
75-12 a comparable capacity for, a state trust company or other entity.
75-13 (6) "Branch" means a location of a state trust
75-14 company, other than the trust company's home office, at which the
75-15 state trust company engages in the trust business.
75-16 (7) "Capital" means:
75-17 (A) the sum of:
75-18 (i) the par value of all shares or
75-19 participation shares of a state trust company having a par value
75-20 that have been issued;
75-21 (ii) the consideration set by the board in
75-22 the manner provided by the Texas Business Corporation Act for all
75-23 shares or participation shares of the state trust company without
75-24 par value that have been issued, except the part of that
75-25 consideration that:
75-26 (a) has been actually
76-1 received;
76-2 (b) is less than all of
76-3 that consideration; and
76-4 (c) the board, by
76-5 resolution adopted not later than the 60th day after the date of
76-6 issuance of those shares, has allocated to surplus with the prior
76-7 approval of the banking commissioner; and
76-8 (iii) an amount not included in
76-9 Subparagraphs (i) and (ii) that has been transferred to capital of
76-10 the state trust company, on the payment of a share dividend or on
76-11 adoption by the board of a resolution directing that all or part of
76-12 surplus be transferred to capital, minus each reduction made as
76-13 permitted by law; less
76-14 (B) all amounts otherwise included in Paragraphs
76-15 (A)(i) and (ii) that are attributable to the issuance of securities
76-16 by the state trust company and that the banking commissioner
76-17 determines, after notice and an opportunity for hearing, should be
76-18 classified as debt rather than equity securities.
76-19 (8) "Certified surplus" means the part of surplus
76-20 designated by a vote of the board of a state trust company under
76-21 Section 182.105 and recorded in the board minutes as certified.
76-22 (9) "Charter" means a corporate charter issued under
76-23 this subtitle to engage in a trust business.
76-24 (10) "Client" means a person to whom a trust company
76-25 owes a duty or obligation under a trust or other account
76-26 administered by the trust company, regardless of whether the trust
77-1 company owes a fiduciary duty to the person. The term includes a
77-2 beneficiary of a trust for whom the trust company acts as trustee
77-3 and a person for whom the trust company acts as agent, custodian,
77-4 or bailee.
77-5 (11) "Company" includes a bank, trust company,
77-6 corporation, partnership, association, business trust, or another
77-7 trust.
77-8 (12) "Conservator" means the banking commissioner or
77-9 an agent of the banking commissioner exercising the powers and
77-10 duties provided by Subchapter B, Chapter 185.
77-11 (13) "Control" means:
77-12 (A) the ownership of or ability or power to
77-13 vote, directly, acting through one or more other persons, or
77-14 otherwise indirectly, 25 percent or more of the outstanding shares
77-15 of a class of voting securities of a state trust company or other
77-16 company;
77-17 (B) the ability to control the election of a
77-18 majority of the board of the state trust company or other company;
77-19 (C) the power to exercise, directly or
77-20 indirectly, a controlling influence over the management or policies
77-21 of the state trust company or other company as determined by the
77-22 banking commissioner after notice and an opportunity for hearing;
77-23 or
77-24 (D) the conditioning of the transfer of 25
77-25 percent or more of the outstanding shares or participation shares
77-26 of a class of voting securities of the state trust company or other
78-1 company on the transfer of 25 percent or more of the outstanding
78-2 shares of a class of voting securities of another state trust
78-3 company or other company.
78-4 (14) "Department" means the Texas Department of
78-5 Banking.
78-6 (15) "Depository institution" means an entity with the
78-7 power to accept deposits under applicable law.
78-8 (16) "Equity capital" means the amount by which the
78-9 total assets of a state trust company exceed the total liabilities
78-10 of the state trust company.
78-11 (17) "Equity security" means:
78-12 (A) stock or a similar security, any security
78-13 convertible, with or without consideration, into such a security, a
78-14 warrant or right to subscribe to or purchase such a security, or a
78-15 security carrying such a warrant or right;
78-16 (B) a certificate of interest or participation
78-17 in a profit-sharing agreement, collateral-trust certificate,
78-18 preorganization certificate or subscription, transferable share or
78-19 participation share, investment contract, voting-trust certificate,
78-20 or partnership interest; and
78-21 (C) a certificate of interest or participation
78-22 in, temporary or interim certificate for, or receipt for a security
78-23 described by this subdivision that evidences an existing or
78-24 contingent equity ownership interest.
78-25 (18) "Fiduciary record" means a matter written,
78-26 transcribed, recorded, received, or otherwise in the possession of
79-1 a trust company that is necessary to preserve information
79-2 concerning an act or event relevant to an account of a trust
79-3 company.
79-4 (19) "Finance commission" means the Finance Commission
79-5 of Texas.
79-6 (20) "Foreign corporation" means a company
79-7 incorporated or organized under the laws of a jurisdiction other
79-8 than this state. The term does not include a depository
79-9 institution incorporated or organized under the laws of the United
79-10 States and domiciled in this state.
79-11 (21) "Full liability participant" means a participant
79-12 that agrees under the terms of a participation agreement to be
79-13 liable under a judgment, decree, or order of court for the entire
79-14 amount of all debts, obligations, or liabilities of a limited trust
79-15 association.
79-16 (22) "Hazardous condition" means:
79-17 (A) a refusal by a trust company or an affiliate
79-18 of a trust company to permit an examination of its books, papers,
79-19 accounts, records, or affairs by the banking commissioner as
79-20 provided by Section 181.104;
79-21 (B) a violation by a trust company of a
79-22 condition of its chartering or an agreement entered into between
79-23 the trust company and the banking commissioner or the department;
79-24 or
79-25 (C) a circumstance or condition in which an
79-26 unreasonable risk of loss is threatened to clients or creditors of
80-1 a trust company, excluding risk of loss to a client that arises as
80-2 a result of the client's decisions or actions, but including a
80-3 circumstance or condition in which a trust company:
80-4 (i) is unable or lacks the means to meet
80-5 its current obligations as they come due in the regular and
80-6 ordinary course of business, even if the book or fair market value
80-7 of its assets exceeds its liabilities;
80-8 (ii) has equity capital less than the
80-9 amount of restricted capital the trust company is required to
80-10 maintain under Section 182.008, or has equity capital the adequacy
80-11 of which is threatened, as determined under regulatory accounting
80-12 principles;
80-13 (iii) has concentrated an excessive or
80-14 unreasonable portion of its assets in a particular type or
80-15 character of investment;
80-16 (iv) violates or refuses to comply with
80-17 this subtitle, another statute or regulation applicable to trust
80-18 companies, or a final and enforceable order of the banking
80-19 commissioner;
80-20 (v) is in a condition that renders the
80-21 continuation of a particular business practice hazardous to its
80-22 clients and creditors; or
80-23 (vi) conducts business in an unsafe or
80-24 unsound manner, including conducting business with:
80-25 (a) inexperienced or
80-26 inattentive management;
81-1 (b) weak or potentially
81-2 dangerous operating practices;
81-3 (c) infrequent or
81-4 inadequate audits;
81-5 (d) administration of
81-6 assets that is notably deficient in relation to the volume and
81-7 character of or responsibility for asset holdings;
81-8 (e) unsound administrative
81-9 practices;
81-10 (f) frequent and
81-11 uncorrected material occurrences of violations of law, including
81-12 rules, or terms of the governing instruments; or
81-13 (g) a notable degree of
81-14 conflicts of interest and engaging in self-dealing.
81-15 (23) "Home office" means a location registered with
81-16 the banking commissioner as a state trust company's home office at
81-17 which:
81-18 (A) the trust company does business;
81-19 (B) the trust company keeps its corporate books
81-20 and records; and
81-21 (C) at least one executive officer of the trust
81-22 company maintains an office.
81-23 (24) "Insider" means:
81-24 (A) each director, manager, managing
81-25 participant, officer, and principal shareholder or participant of a
81-26 state trust company;
82-1 (B) each affiliate of the state trust company
82-2 and each director, officer, and employee of the affiliate;
82-3 (C) any person who participates or has authority
82-4 to participate, other than in the capacity of a director, in major
82-5 policy-making functions of the state trust company, whether or not
82-6 the person has an official title or the officer is serving without
82-7 salary or compensation; or
82-8 (D) each company controlled by a person
82-9 described by Paragraph (A), (B), or (C).
82-10 (25) "Insolvent" means a circumstance or condition in
82-11 which a state trust company:
82-12 (A) is unable or lacks the means to meet its
82-13 current obligations as they come due in the regular and ordinary
82-14 course of business, even if the value of its assets exceeds its
82-15 liabilities;
82-16 (B) has equity capital less than $500,000, as
82-17 determined under regulatory accounting principles;
82-18 (C) fails to maintain deposit insurance for its
82-19 deposits with the Federal Deposit Insurance Corporation or its
82-20 successor, or fails to maintain adequate security for its deposits
82-21 as provided by Section 184.301(c);
82-22 (D) sells or attempts to sell substantially all
82-23 of its assets or merges or attempts to merge substantially all of
82-24 its assets or business with another entity other than as provided
82-25 by Chapter 182; or
82-26 (E) attempts to dissolve or liquidate other than
83-1 as provided by Chapter 186.
83-2 (26) "Investment security" means a marketable
83-3 obligation evidencing indebtedness of a person in the form of a
83-4 bond, note, debenture, or other debt instrument not otherwise
83-5 classified as a loan or extension of credit.
83-6 (27) "Limited trust association" means a state trust
83-7 company organized as a limited trust association, authorized to
83-8 issue participation shares, and controlled by its participants.
83-9 (28) "Loans and extensions of credit" means direct or
83-10 indirect advances of money by a state trust company to a person
83-11 that are conditioned on the obligation of the person to repay the
83-12 funds or that are repayable from specific property pledged by or on
83-13 behalf of the person.
83-14 (29) "Manager" means a person elected to the board of
83-15 a limited trust association.
83-16 (30) "Managing participant" means a participant in a
83-17 limited trust association in which management has been retained by
83-18 the participants.
83-19 (31) "Mutual funds" means equity securities of an
83-20 investment company registered under the Investment Company Act of
83-21 1940 (15 U.S.C. Section 80a-1 et seq.) and the Securities Act of
83-22 1933 (15 U.S.C. Section 77a et seq.). The term does not include
83-23 money market funds.
83-24 (32) "Officer" means the presiding officer of the
83-25 board, the principal executive officer, or another officer
83-26 appointed by the board of a state trust company or other company,
84-1 or a person or group of persons acting in a comparable capacity for
84-2 the state trust company or other company.
84-3 (33) "Operating subsidiary" means a company for which
84-4 a state trust company has the ownership, ability, or power to vote,
84-5 directly, acting through one or more other persons, or otherwise
84-6 indirectly, more than 50 percent of the outstanding shares of each
84-7 class of voting securities or its equivalent of the company.
84-8 (34) "Participant" means an owner of a participation
84-9 share in a limited trust association.
84-10 (35) "Participant-transferee" means a transferee of a
84-11 participation share who has not received the unanimous consent of
84-12 all participants to be a participant, or who becomes a
84-13 participant-transferee under Subchapter C, Chapter 183.
84-14 (36) "Participation agreement" means the instrument
84-15 stating the agreement among the participants of a limited trust
84-16 association relating to the rights and duties of the participants
84-17 and participant-transferees, including allocations of income, loss,
84-18 deduction, credit, distributions, liquidation rights, redemption
84-19 rights, liabilities of participants, priority rights of
84-20 participant-transferees to transfer participation shares, rights of
84-21 participants to purchase participation shares of
84-22 participant-transferees, the procedures for elections and voting by
84-23 participants, and any other matter not prohibited by or
84-24 inconsistent with this subtitle.
84-25 (37) "Participation shares" means the units into which
84-26 the proprietary interests of a limited trust association are
85-1 divided or subdivided by means of classes, series, relative rights,
85-2 or preferences.
85-3 (38) "Principal shareholder" means a person who owns
85-4 or has the ability or power to vote, directly, acting through one
85-5 or more other persons, or otherwise indirectly, 10 percent or more
85-6 of the outstanding shares or participation shares of any class of
85-7 voting securities of a state trust company or other company.
85-8 (39) "Restricted capital" means the sum of capital and
85-9 certified surplus.
85-10 (40) "Regulatory accounting principles" means
85-11 generally accepted accounting principles as modified by rules
85-12 adopted under:
85-13 (A) this subtitle; or
85-14 (B) an applicable federal statute or regulation.
85-15 (41) "Secondary capital" means the amount by which the
85-16 assets of a state trust company exceed restricted capital, required
85-17 by Section 182.008, and liabilities.
85-18 (42) "Shareholder" means an owner of a share in a
85-19 state trust company.
85-20 (43) "Shares" means the units into which the
85-21 proprietary interests of a state trust company are divided or
85-22 subdivided by means of classes, series, relative rights, or
85-23 preferences.
85-24 (44) "State bank" means a banking association or
85-25 limited banking association organized or reorganized under Subtitle
85-26 A, including an association organized under the laws of this state
86-1 before September 1, 1997, with the express power to receive and
86-2 accept deposits and possessing other rights and powers granted by
86-3 that subtitle expressly or by implication. The term does not
86-4 include a savings association, savings bank, or credit union.
86-5 (45) "State trust company" means a trust association
86-6 or limited trust association organized or reorganized under this
86-7 subtitle, including an association organized under the laws of this
86-8 state before September 1, 1997.
86-9 (46) "Subsidiary" means a state trust company or other
86-10 company that is controlled by another person. The term includes a
86-11 subsidiary of a subsidiary.
86-12 (47) "Supervisor" means the banking commissioner or an
86-13 agent of the banking commissioner exercising the powers and duties
86-14 specified in Subchapter B, Chapter 185.
86-15 (48) "Trust association" means a trust company
86-16 organized as a trust association, authorized to issue shares of
86-17 stock, and controlled by its shareholders.
86-18 (49) "Trust business" means the business of a company
86-19 holding itself out to the public as a fiduciary for hire or
86-20 compensation to hold or administer accounts.
86-21 (50) "Trust deposits" means client funds held by a
86-22 state trust company and authorized to be deposited with itself as a
86-23 permanent investment or pending investment, distribution, or
86-24 payment of debts on behalf of the client.
86-25 (51) "Unauthorized trust activity" means an act or
86-26 practice within this state by a person without a charter, license,
87-1 permit, registration, or other authority issued or granted by the
87-2 banking commissioner or other appropriate regulatory authority for
87-3 which such a charter, license, permit, registration, or other
87-4 authority is required to conduct trust business.
87-5 (52) "Undivided profits" means the part of equity
87-6 capital of a state trust company equal to the balance of its net
87-7 profits, income, gains, and losses since the date of its formation
87-8 minus subsequent distributions to shareholders or participants and
87-9 transfers to surplus or capital under share dividends or
87-10 appropriate board resolutions. The term includes amounts allocated
87-11 to undivided profits as a result of a merger.
87-12 (53) "Voting security" means a share, participation
87-13 share, or other evidence of proprietary interest in a state trust
87-14 company or other company that has as an attribute the right to vote
87-15 or participate in the election of the board of the trust company or
87-16 other company, regardless of whether the right is limited to the
87-17 election of fewer than all of the board members. The term includes
87-18 a security that is convertible or exchangeable into a voting
87-19 security and a nonvoting participation share of a managing
87-20 participant.
87-21 (b) The definitions provided by this section shall be
87-22 liberally construed to accomplish the purposes of this subtitle.
87-23 (c) The finance commission by rule may adopt other
87-24 definitions to accomplish the purposes of this subtitle.
87-25 Sec. 181.003. TRUST COMPANY RULES. (a) The finance
87-26 commission may adopt rules to accomplish the purposes of this
88-1 subtitle, including rules necessary or reasonable to:
88-2 (1) implement and clarify this subtitle;
88-3 (2) preserve or protect the safety and soundness of
88-4 state trust companies;
88-5 (3) grant the same rights and privileges to state
88-6 trust companies with respect to the exercise of fiduciary powers
88-7 that are or may be granted to a state or national bank that is
88-8 domiciled in this state and exercising fiduciary powers;
88-9 (4) provide for recovery of the cost of maintenance
88-10 and operation of the department and the cost of enforcing this
88-11 subtitle through the imposition and collection of ratable and
88-12 equitable fees for notices, applications, and examinations; and
88-13 (5) facilitate the fair hearing and adjudication of
88-14 matters before the banking commissioner and the finance
88-15 commission.
88-16 (b) The presence or absence in this subtitle of a specific
88-17 reference to rules regarding a particular subject does not enlarge
88-18 or diminish the rulemaking authority conferred by this section.
88-19 Sec. 181.004. IMPLYING THAT PERSON IS TRUST COMPANY. (a) A
88-20 person or company may not use in a business name or advertising the
88-21 words "trust," "trust company," or any similar term or phrase, any
88-22 word pronounced "trust" or "trust company," any foreign word that
88-23 means "trust" or "trust company," or any term that tends to imply
88-24 that the business is holding out to the public that it engages in
88-25 the business of a fiduciary for hire unless the banking
88-26 commissioner has approved the use in writing after finding that the
89-1 use will not be misleading. This subsection does not prohibit an
89-2 individual from engaging in the business of a fiduciary for
89-3 compensation or from using the words "trust" or "trustee" for the
89-4 purpose of identifying assets held or actions taken in an existing
89-5 capacity.
89-6 (b) Subsection (a) does not apply to:
89-7 (1) a state or national bank, a state or federal
89-8 savings bank, a state or federal savings association, a state or
89-9 federal credit union, or a depository or trust company institution
89-10 authorized under this subtitle to conduct a trust business in this
89-11 state; or
89-12 (2) another entity organized under the laws of this
89-13 state, another state, the United States, or a foreign sovereign
89-14 state to the extent that:
89-15 (A) the entity is authorized under its charter
89-16 or the laws of this state or the United States to use a term, word,
89-17 character, ideogram, phonogram, or phrase prohibited by Subsection
89-18 (a); and
89-19 (B) the entity is authorized by the laws of this
89-20 state or the United States to conduct the activities in which the
89-21 entity is engaged in this state.
89-22 Sec. 181.005. LIABILITY OF TRUST COMPANY DIRECTORS AND
89-23 PERSONNEL. (a) The provisions of the Texas Business Corporation
89-24 Act regarding liability, defenses, and indemnification of a
89-25 director, officer, agent, or employee apply to a director, officer,
89-26 agent, or employee of a state trust company in this state. Except
90-1 as limited by those provisions, a disinterested director, manager,
90-2 managing participant, officer, or employee of a state trust company
90-3 may not be held personally liable in an action seeking monetary
90-4 damages arising from the conduct of the state trust company's
90-5 affairs unless the damages resulted from the gross negligence or
90-6 wilful or intentional misconduct of the person during the person's
90-7 term of office or service with the state trust company.
90-8 (b) A director, manager, managing participant, officer, or
90-9 employee of a state trust company is disinterested with respect to
90-10 a decision or transaction if:
90-11 (1) the person fully discloses any interest in the
90-12 decision or transaction and does not participate in the decision or
90-13 transaction; or
90-14 (2) the decision or transaction does not involve any
90-15 of the following:
90-16 (A) personal profit for the person through
90-17 dealing with the state trust company or usurping an opportunity of
90-18 the trust company;
90-19 (B) buying or selling assets of the state trust
90-20 company in a transaction in which the person has a direct or
90-21 indirect pecuniary interest;
90-22 (C) dealing with another state trust company or
90-23 other person in which the person is a director, manager, managing
90-24 participant, officer, or employee or otherwise has a significant
90-25 direct or indirect financial interest; or
90-26 (D) dealing with a family member of the person.
91-1 (c) A director, manager, managing participant, or officer
91-2 who, in performing the person's duties and functions, acts in good
91-3 faith and reasonably believes that reliance is warranted is
91-4 entitled to rely on information, including an opinion, report,
91-5 financial statement or other type of statement or financial data,
91-6 decision, judgment, or performance, that is prepared, presented,
91-7 made, or rendered by:
91-8 (1) one or more directors, managers, managing
91-9 participants, officers, or employees of the state trust company, or
91-10 of an entity under joint or common control with the state trust
91-11 company, whom the director, manager, managing participant, or
91-12 officer reasonably believes merits confidence;
91-13 (2) legal counsel, a public accountant, or another
91-14 person whom the director, manager, managing participant, or officer
91-15 reasonably believes merits confidence; or
91-16 (3) a committee of the board of the state trust
91-17 company of which the director, manager, or managing participant is
91-18 not a member.
91-19 (d) In this section, "family member" means a person's:
91-20 (1) spouse;
91-21 (2) minor child; or
91-22 (3) adult child who resides in the person's home.
91-23 Sec. 181.006. EXEMPTION OF TRUST COMPANY DIRECTORS AND
91-24 PERSONNEL FROM SECURITIES LAW. An officer, director, manager,
91-25 managing participant, or employee of a state trust company with
91-26 fewer than 500 shareholders or participants or a holding company
92-1 with fewer than 500 shareholders or participants that controls a
92-2 state trust company is exempt from the registration and licensing
92-3 provisions of The Securities Act (Article 581-1 et seq., Vernon's
92-4 Texas Civil Statutes) with respect to that person's participation
92-5 in a transaction, including a sale, involving securities issued by
92-6 the state trust company or the holding company of which that person
92-7 is an officer, director, manager, managing participant, or employee
92-8 if the person is not compensated for the person's participation in
92-9 the transaction.
92-10 Sec. 181.007. ATTACHMENT, INJUNCTION, OR EXECUTION. (a) An
92-11 attachment, injunction, or execution may not be issued against a
92-12 state trust company located in this state to collect a money
92-13 judgment or secure a prospective money judgment against the state
92-14 trust company before the judgment is final and all appeals have
92-15 been exhausted or foreclosed by law.
92-16 (b) This section does not affect an attachment, injunction,
92-17 execution, or writ of garnishment issued to or served on a state
92-18 trust company for the purpose of collecting a money judgment or
92-19 securing a prospective money judgment against a client of or client
92-20 account in the state trust company.
92-21 (Sections 181.008-181.100 reserved for expansion
92-22 SUBCHAPTER B. REGULATION OF TRUST COMPANIES BY BANKING
92-23 DEPARTMENT
92-24 Sec. 181.101. ISSUANCE OF INTERPRETIVE STATEMENTS. (a) The
92-25 banking commissioner:
92-26 (1) may issue interpretive statements containing
93-1 matters of general policy for the guidance of state trust
93-2 companies;
93-3 (2) shall file the statements for publication in the
93-4 Texas Register; and
93-5 (3) may amend or repeal a published interpretive
93-6 statement by issuing an amended statement or notice of repeal of a
93-7 statement and filing the statement or notice for publication in the
93-8 Texas Register.
93-9 (b) The secretary of state shall publish the filed
93-10 statements and notices in the Texas Register and in a designated
93-11 chapter of the Texas Administrative Code.
93-12 Sec. 181.102. ISSUANCE OF OPINION. (a) In response to a
93-13 specific request from a member of the public or the state trust
93-14 company industry, the banking commissioner may issue an opinion
93-15 directly or through the deputy banking commissioner or the
93-16 department's attorneys.
93-17 (b) If the banking commissioner determines that the opinion
93-18 is useful for the general guidance of trust companies, the banking
93-19 commissioner may file the opinion for publication in the Texas
93-20 Register. A published opinion must be redacted to preserve the
93-21 confidentiality of the requesting party unless the requesting party
93-22 consents to be identified in the published opinion.
93-23 (c) The banking commissioner may amend or repeal a published
93-24 opinion by issuing an amended opinion or notice of repeal of an
93-25 opinion and filing the opinion or notice for publication in the
93-26 Texas Register. The requesting party, however, may rely on the
94-1 original opinion if:
94-2 (1) all material facts were originally disclosed to
94-3 the banking commissioner;
94-4 (2) the safety and soundness of the affected trust
94-5 companies will not be affected by further reliance on the original
94-6 opinion; and
94-7 (3) the text and interpretation of relevant governing
94-8 provisions of this subtitle have not been changed by legislative or
94-9 judicial action.
94-10 (d) The secretary of state shall publish the filed opinions
94-11 and notices in the Texas Register and a designated chapter of the
94-12 Texas Administrative Code.
94-13 Sec. 181.103. EFFECT OF INTERPRETIVE STATEMENT OR OPINION.
94-14 An interpretive statement or opinion issued under this subchapter
94-15 does not have the force of law and is not a rule for the purposes
94-16 of Chapter 2001, Government Code, unless adopted as a rule by the
94-17 finance commission as provided by Chapter 2001, Government Code.
94-18 An interpretive statement or opinion is an administrative
94-19 construction of this subtitle entitled to great weight if the
94-20 construction is reasonable and does not conflict with this
94-21 subtitle.
94-22 Sec. 181.104. EXAMINATION REQUIREMENT. (a) The banking
94-23 commissioner shall examine each state trust company annually.
94-24 (b) The banking commissioner may examine a state trust
94-25 company more often than annually as the banking commissioner
94-26 considers necessary to:
95-1 (1) safeguard the interests of clients, creditors,
95-2 shareholders, participants, or participant-transferees; and
95-3 (2) enforce this subtitle.
95-4 (c) The banking commissioner may defer an examination for
95-5 not more than six months if the banking commissioner considers the
95-6 deferment necessary for the efficient enforcement of this subtitle.
95-7 (d) The banking commissioner shall report the results of the
95-8 examination in writing to the officers and directors, managers, or
95-9 managing participants of the state trust company. A report of an
95-10 examination under this section is confidential and may be disclosed
95-11 only under the circumstances provided by this subchapter.
95-12 (e) The banking commissioner may:
95-13 (1) accept an examination of a state trust company, a
95-14 third-party contractor, or an affiliate of the state trust company
95-15 by a federal or other governmental agency in lieu of an examination
95-16 under this section; or
95-17 (2) conduct an examination of a state trust company, a
95-18 third-party contractor, or an affiliate of the state trust company
95-19 jointly with a federal or other governmental agency.
95-20 (f) The banking commissioner may administer oaths and
95-21 examine persons under oath on any subject that the banking
95-22 commissioner considers pertinent to the financial condition or the
95-23 safety and soundness of the activities of a state trust company.
95-24 Sec. 181.105. COST OF REGULATION. Each state
95-25 trust company shall pay, through the imposition and collection of
95-26 fees established by the finance commission under Section
96-1 181.003(a)(4):
96-2 (1) the cost of examination;
96-3 (2) the equitable or proportionate cost of maintenance
96-4 and operation of the department; and
96-5 (3) the cost of enforcement of this subtitle.
96-6 Sec. 181.106. REGULATION AND EXAMINATION OF RELATED
96-7 ENTITIES. (a) The banking commissioner may regulate and examine,
96-8 to the same extent as if the services or activities were performed
96-9 by a state trust company on its own premises:
96-10 (1) the activities of a state trust company affiliate;
96-11 and
96-12 (2) the performance of data processing, electronic
96-13 fund transfers, or other services or activities performed on behalf
96-14 of a state trust company by a third-party contractor.
96-15 (b) The banking commissioner may collect a fee from the
96-16 state trust company to cover the cost of the examination.
96-17 Sec. 181.107. STATEMENTS OF CONDITION AND INCOME; PENALTY.
96-18 (a) Each state trust company periodically shall file with the
96-19 banking commissioner a copy of its statement of condition and
96-20 income.
96-21 (b) The finance commission by rule may:
96-22 (1) require the statement to be filed with the banking
96-23 commission at the intervals the finance commission determines;
96-24 (2) specify the form of the statement of condition and
96-25 income, including specified confidential and public information to
96-26 be in the statement; and
97-1 (3) require public information in the statement to be
97-2 published at the times and in the publications and locations the
97-3 finance commission determines.
97-4 (c) Except for portions designated to be confidential by the
97-5 banking commissioner, a statement of condition and income is a
97-6 public record.
97-7 (d) A state trust company that fails to file a statement of
97-8 condition and income on or before the date it is due is, after
97-9 notice and hearing, subject to a penalty of not more than $500 a
97-10 day for each day of noncompliance.
97-11 Sec. 181.108. LIABILITY OF COMMISSION AND DEPARTMENT
97-12 OFFICERS AND PERSONNEL LIMITED. (a) The banking commissioner, a
97-13 member of the finance commission, the deputy banking commissioner,
97-14 or an examiner, assistant examiner, supervisor, conservator, agent,
97-15 or other officer or employee of the department is not personally
97-16 liable for damages arising from the person's official act or
97-17 omission, unless the act or omission is corrupt or malicious.
97-18 (b) The attorney general shall defend an action brought
97-19 against a person because of an official act or omission under
97-20 Subsection (a), regardless of whether the defendant has terminated
97-21 service with the department before the action commences.
97-22 (Sections 181.109-181.200 reserved for expansion
97-23 SUBCHAPTER C. ADMINISTRATIVE PROCEDURE
97-24 Sec. 181.201. BANKING COMMISSIONER HEARING. (a) The
97-25 banking commissioner may convene a hearing to receive evidence and
97-26 argument regarding any matter before the banking commissioner for
98-1 decision or review under this subtitle. The hearing must be
98-2 conducted under Chapter 2001, Government Code. A matter made
98-3 confidential by law must be considered by the banking commissioner
98-4 in a closed hearing.
98-5 (b) A hearing before the banking commissioner that is
98-6 required or authorized by law may be conducted by a hearings
98-7 officer on behalf of the banking commissioner.
98-8 (c) This section does not grant a right to hearing to a
98-9 person that is not otherwise granted by governing law.
98-10 Sec. 181.202. APPEAL OF BANKING COMMISSIONER DECISION OR
98-11 ORDER. Except as expressly provided otherwise by this subtitle, a
98-12 person affected by a decision or order of the banking commissioner
98-13 made under this subtitle after hearing may appeal the decision or
98-14 order:
98-15 (1) to the finance commission; or
98-16 (2) directly to a district court in Travis County as
98-17 provided by Section 181.204.
98-18 Sec. 181.203. APPEAL TO FINANCE COMMISSION. (a) In an
98-19 appeal to the finance commission, the finance commission shall
98-20 consider the questions raised by the application for review and may
98-21 also consider additional matters pertinent to the appeal.
98-22 (b) An order of the banking commissioner continues in effect
98-23 pending review unless the order is stayed by the finance
98-24 commission. The finance commission may impose any condition before
98-25 granting a stay of the appealed order.
98-26 (c) The finance commission may not be required to accept
99-1 additional evidence or hold an evidentiary hearing if a hearing was
99-2 held and a record made before the banking commissioner. The
99-3 finance commission shall remand the proceeding to the banking
99-4 commissioner to receive any additional evidence the finance
99-5 commission chooses to consider.
99-6 (d) A hearing before the finance commission that is required
99-7 or authorized by law may be conducted by a hearings officer on
99-8 behalf of the finance commission.
99-9 (e) A matter made confidential by law must be considered by
99-10 the finance commission in a closed hearing.
99-11 Sec. 181.204. DIRECT APPEAL TO COURT OR APPEAL OF FINANCE
99-12 COMMISSION ORDER. A person affected by a final order of the
99-13 banking commissioner who elects to appeal directly to district
99-14 court, or a person affected by a final order of the finance
99-15 commission under this subchapter, may appeal the final order by
99-16 filing a petition for judicial review as provided by Chapter 2001,
99-17 Government Code. A petition for judicial review filed in the
99-18 district court does not stay or vacate the appealed order unless
99-19 the court, after notice and hearing, expressly stays or vacates the
99-20 order.
99-21 (Sections 181.205-181.300 reserved for expansion
99-22 SUBCHAPTER D. CONFIDENTIALITY OF INFORMATION
99-23 Sec. 181.301. DISCLOSURE BY DEPARTMENT PROHIBITED.
99-24 (a) Except as expressly provided otherwise by this subtitle or a
99-25 rule adopted under Section 181.003(a)(1), the following are
99-26 confidential and may not be disclosed by the banking commissioner
100-1 or an employee of the department:
100-2 (1) information directly or indirectly obtained by the
100-3 department in any manner, including through an application or
100-4 examination, concerning the financial condition or business affairs
100-5 of a state trust company or a present, former, or prospective
100-6 shareholder, participant, officer, director, manager, affiliate, or
100-7 service provider of the state trust company, other than the public
100-8 portions of a report of condition or income statement; and
100-9 (2) each related file or record of the department.
100-10 (b) Information obtained by the department from a federal or
100-11 state regulatory agency that is confidential under federal or state
100-12 law may not be disclosed except as provided by federal or state
100-13 law.
100-14 Sec. 181.302. DISCLOSURE TO FINANCE COMMISSION.
100-15 Confidential information may not be disclosed to a member of the
100-16 finance commission. A member of the finance commission may not be
100-17 given access to the files and records of the department except that
100-18 the banking commissioner may disclose to the finance commission
100-19 information, files, and records pertinent to a hearing or matter
100-20 pending before the finance commission.
100-21 Sec. 181.303. DISCLOSURE TO OTHER AGENCIES. (a) On request
100-22 and on execution of an appropriate confidentiality agreement
100-23 approved by the banking commissioner, the banking commissioner may:
100-24 (1) disclose to a federal banking regulatory agency
100-25 confidential information concerning a state trust company within
100-26 the agency's jurisdiction or an affiliate or service provider of
101-1 the state trust company; and
101-2 (2) permit the agency access to files and records or
101-3 reports relating to the state trust company or its affiliate or
101-4 service provider.
101-5 (b) The banking commissioner may, as the banking
101-6 commissioner considers necessary or proper to the enforcement of
101-7 the laws of this state, another state, the United States, or a
101-8 foreign sovereign state, or in the best interest of the public,
101-9 disclose or authorize release of confidential information to
101-10 another department of this state, another state, the United States,
101-11 a foreign sovereign state, or any related agency or
101-12 instrumentality.
101-13 Sec. 181.304. OTHER DISCLOSURE PROHIBITED; PENALTY.
101-14 (a) Confidential information that is provided to a state trust
101-15 company, affiliate, or service provider of the state trust company,
101-16 whether in the form of a report of examination or otherwise, is the
101-17 confidential property of the department. The information may not
101-18 be made public or disclosed by the recipient or by an officer,
101-19 director, manager, employee, or agent of the recipient to a person
101-20 not officially connected to the recipient as officer, director,
101-21 employee, attorney, auditor, independent auditor, or bonding
101-22 company, except as authorized by rules adopted under this subtitle.
101-23 (b) A person commits an offense if the person discloses or
101-24 uses the confidential information in violation of this section. An
101-25 offense under this subsection is punishable as if it were an
101-26 offense under Section 37.10, Penal Code.
102-1 Sec. 181.305. CIVIL DISCOVERY. Discovery of confidential
102-2 information from a person subject to this subchapter under subpoena
102-3 or other legal process in a civil proceeding must comply with rules
102-4 adopted under this subtitle and other applicable law. The rules
102-5 may:
102-6 (1) restrict release of confidential information to
102-7 the portion directly relevant to the legal dispute at issue; and
102-8 (2) require that a protective order, in the form and
102-9 under circumstances specified by the rules, be issued by a court
102-10 before release of the confidential information.
102-11 Sec. 181.306. INVESTIGATIVE INFORMATION. Notwithstanding
102-12 any other law, the banking commissioner may refuse to release
102-13 information or records concerning a state trust company in the
102-14 custody of the department if, in the opinion of the banking
102-15 commissioner, release of the information or records might
102-16 jeopardize an ongoing investigation of potentially unlawful
102-17 activity.
102-18 Sec. 181.307. EMPLOYMENT INFORMATION. (a) A person may
102-19 provide employment information concerning the known or suspected
102-20 involvement of a present or former employee, officer, or director
102-21 of a state trust company in a violation of any state or federal
102-22 law, rule, or regulation that has been reported to appropriate
102-23 state or federal authorities to:
102-24 (1) a state trust company; or
102-25 (2) a person providing employment information to a
102-26 state trust company.
103-1 (b) A person may not be held liable for providing
103-2 information under Subsection (a) unless the information provided is
103-3 false and the person provided the information with disregard for
103-4 the truth.
103-5 Sec. 181.308. SHAREHOLDER INSPECTION RIGHTS.
103-6 (a) Notwithstanding Article 2.44, Texas Business Corporation Act,
103-7 a shareholder or participant of a state trust company may not
103-8 examine:
103-9 (1) a report of examination or other confidential
103-10 property of the department that is in the possession of the state
103-11 trust company; or
103-12 (2) a book or record of the state trust company that
103-13 directly or indirectly pertains to financial or other information
103-14 maintained by the state trust company on behalf of its clients,
103-15 including a specific item in the minutes of the board or a
103-16 committee of the board regarding client account review and approval
103-17 or any report that would tend to identify the state trust company's
103-18 client.
103-19 (b) This section does not affect the rights of a shareholder
103-20 or participant of a state trust company acting in another capacity.
103-21 CHAPTER 182. POWERS, ORGANIZATION, AND FINANCIAL REQUIREMENTS
103-22 SUBCHAPTER A. ORGANIZATION AND POWERS IN GENERAL
103-23 Sec. 182.001. ORGANIZATION AND GENERAL POWERS OF STATE TRUST
103-24 COMPANY. (a) Subject to the other provisions of this chapter, one
103-25 or more persons may organize and charter a state trust company as a
103-26 state trust association or a limited trust association.
104-1 (b) A state trust company may perform any act as a fiduciary
104-2 that a state bank or national bank exclusively exercising trust
104-3 powers may perform under the laws of this state, including:
104-4 (1) acting as trustee under a written agreement;
104-5 (2) receiving money and other property in its capacity
104-6 as trustee for investment in real or personal property;
104-7 (3) acting as trustee and performing the fiduciary
104-8 duties committed or transferred to it by order of a court;
104-9 (4) acting as executor, administrator, or trustee of
104-10 the estate of a deceased person;
104-11 (5) acting as a custodian, guardian, conservator, or
104-12 trustee for a minor or incapacitated person;
104-13 (6) acting as a successor fiduciary to a depository
104-14 institution;
104-15 (7) receiving for safekeeping personal property;
104-16 (8) acting as custodian, assignee, transfer agent,
104-17 escrow agent, registrar, or receiver;
104-18 (9) acting as investment advisor, agent, or attorney
104-19 in fact according to an applicable agreement;
104-20 (10) exercising additional powers expressly conferred
104-21 by rule of the finance commission; and
104-22 (11) exercising any incidental power that is
104-23 reasonably necessary to enable it to fully exercise the powers
104-24 expressly conferred according to commonly accepted fiduciary
104-25 customs and usages.
104-26 (c) Subject to Section 182.009, a state trust company may
105-1 exercise the powers of a Texas business corporation that are
105-2 reasonably necessary to enable exercise of its specific powers
105-3 under this subtitle.
105-4 (d) A state trust company may contribute to a community fund
105-5 or to a charitable, philanthropic, or benevolent instrumentality
105-6 conducive to public welfare an amount that the state trust
105-7 company's board considers appropriate and in the interests of the
105-8 state trust company.
105-9 (e) Subject to Section 184.301, a state trust company may
105-10 deposit trust funds with itself.
105-11 (f) A state trust company insured by the Federal Deposit
105-12 Insurance Corporation may receive and pay deposits, with or without
105-13 interest, made by the United States, the state, a county, or a
105-14 municipality.
105-15 Sec. 182.002. ARTICLES OF ASSOCIATION OF STATE TRUST
105-16 COMPANY. (a) The articles of association of a state trust company
105-17 must be signed and acknowledged by each organizer and must contain:
105-18 (1) the name of the state trust company, subject to
105-19 Subsection (b);
105-20 (2) the period of the state trust company's duration,
105-21 which may be perpetual;
105-22 (3) the powers of the state trust company, which may
105-23 be stated as:
105-24 (A) all powers granted to a state trust company
105-25 in this state; or
105-26 (B) a list of the specific powers that the state
106-1 trust company chooses and is authorized to exercise;
106-2 (4) the aggregate number of shares, or participation
106-3 shares in the case of a limited trust association, that the state
106-4 trust company will be authorized to issue, and the number of
106-5 classes of shares or participation shares, which may be one or
106-6 more;
106-7 (5) if the shares or participation shares are to be
106-8 divided into classes:
106-9 (A) the designation of each class and statement
106-10 of the preferences, limitations, and relative rights of the shares
106-11 or participation shares of each class, which in the case of a
106-12 limited trust association may be more fully set forth in the
106-13 participation agreement;
106-14 (B) the number of shares or participation shares
106-15 of each class; and
106-16 (C) a statement of the par value of the shares
106-17 or participation shares of each class or that the shares or
106-18 participation shares are to be without par value;
106-19 (6) any provision limiting or denying to shareholders
106-20 or participants the preemptive right to acquire additional or
106-21 treasury shares or participation shares of the state trust company;
106-22 (7) any provision granting the right of shareholders
106-23 or participants to cumulative voting in the election of directors
106-24 or managers;
106-25 (8) the aggregate amount of consideration to be
106-26 received for all shares or participation shares initially issued by
107-1 the state trust company and a statement that:
107-2 (A) all authorized shares or participation
107-3 shares have been subscribed; and
107-4 (B) all subscriptions received provide for the
107-5 consideration to be fully paid in cash before issuance of the
107-6 charter;
107-7 (9) any provision consistent with law that the
107-8 organizers elect to set forth in the articles of association for
107-9 the regulation of the internal affairs of the state trust company
107-10 or that is otherwise required by this subtitle to be set forth in
107-11 the articles of association;
107-12 (10) the street address of the state trust company's
107-13 home office; and
107-14 (11) either:
107-15 (A) the number of directors or managers
107-16 constituting the initial board and the names and street addresses
107-17 of the persons who are to serve as directors or managers until the
107-18 first annual meeting of shareholders or participants or until
107-19 successor directors or managers have been elected and qualified; or
107-20 (B) the statement described by Subsection (c).
107-21 (b) The banking commissioner may determine that a proposed
107-22 state trust company name is potentially misleading to the public
107-23 and require the organizers to select a different name.
107-24 (c) The organizers of a limited trust association that will
107-25 have not fewer than five or more than 25 participants may include
107-26 in the articles of association a statement that management is
108-1 vested in a board composed of all participants, with management
108-2 authority vested in each participant in proportion to the
108-3 participant's contribution to capital as adjusted from time to time
108-4 to properly reflect any additional contribution, and the names and
108-5 street addresses of the persons who are to be the initial managing
108-6 participants.
108-7 Sec. 182.003. APPLICATION FOR STATE TRUST COMPANY CHARTER;
108-8 STANDARDS FOR APPROVAL. (a) An application for a state trust
108-9 company charter must be made under oath and in the form required by
108-10 the banking commissioner. The application must be supported by
108-11 information, records, and opinions of counsel that the banking
108-12 commissioner requires. The application must be accompanied by all
108-13 charter fees and deposits required by statute or rule.
108-14 (b) The banking commissioner shall grant a state trust
108-15 company charter only on proof satisfactory to the banking
108-16 commissioner that public convenience and advantage will be promoted
108-17 by the establishment of the state trust company. In determining
108-18 whether public convenience and advantage will be promoted, the
108-19 banking commissioner shall consider the convenience of the public
108-20 to be served and whether:
108-21 (1) the organizational and capital structure and
108-22 amount of initial capitalization is adequate for the business and
108-23 location;
108-24 (2) the anticipated volume and nature of business
108-25 indicates a reasonable probability of success and profitability
108-26 based on the market sought to be served;
109-1 (3) the proposed officers, directors, and managers, or
109-2 managing participants, as a group have sufficient fiduciary
109-3 experience, ability, standing, competence, trustworthiness, and
109-4 integrity to justify a belief that the state trust company will
109-5 operate in compliance with law and that success of the state trust
109-6 company is probable;
109-7 (4) each principal shareholder or participant has
109-8 sufficient experience, ability, standing, competence,
109-9 trustworthiness, and integrity to justify a belief that the state
109-10 trust company will be free from improper or unlawful influence or
109-11 interference with respect to the state trust company's operation in
109-12 compliance with law; and
109-13 (5) the organizers are acting in good faith.
109-14 (c) The organizers bear the burden of proof to establish
109-15 that public convenience and advantage will be promoted by the
109-16 establishment of the state trust company. The failure of an
109-17 applicant to furnish required information, opinions of counsel, and
109-18 other material, or the required fee, is considered an abandonment
109-19 of the application.
109-20 Sec. 182.004. NOTICE AND INVESTIGATION OF CHARTER
109-21 APPLICATION. (a) The banking commissioner shall notify the
109-22 organizers when the application is complete and accepted for filing
109-23 and all required fees and deposits have been paid. Promptly after
109-24 the notification, the organizers shall publish notice of the
109-25 application and solicit comments and protests, in the form
109-26 specified by the banking commissioner, in a newspaper of general
110-1 circulation in the county where the initial home office of the
110-2 proposed state trust company is to be located. The banking
110-3 commissioner may require the organizers to publish the notice at
110-4 other locations reasonably necessary to solicit the views of
110-5 potentially affected persons.
110-6 (b) At the expense of the organizers, the banking
110-7 commissioner shall thoroughly investigate the application and
110-8 inquire fully into the identity and character of each proposed
110-9 director, manager, officer, managing participant, and principal
110-10 shareholder or participant. The banking commissioner shall prepare
110-11 a written report of the investigation, and any person, other than a
110-12 person protesting under Section 182.005, may request a copy of the
110-13 nonconfidential portions of the application and written report as
110-14 provided by Chapter 552, Government Code.
110-15 (c) Rules adopted under this subtitle may specify the
110-16 confidential or nonconfidential character of information obtained
110-17 by the department under this section. Except as provided by
110-18 Subchapter D, Chapter 181, or in rules regarding confidential
110-19 information, the financial statement of a proposed officer,
110-20 director, manager, or managing participant is confidential and not
110-21 subject to public disclosure.
110-22 Sec. 182.005. PROTEST; HEARING; DECISION ON CHARTER
110-23 APPLICATION. (a) Any person may file a protest of an application
110-24 with the banking commissioner.
110-25 (b) If a protest of the application is not filed on or
110-26 before the 15th day after the last date the notice was published
111-1 under Section 182.004, the banking commissioner may immediately
111-2 determine whether all of the necessary conditions set forth in
111-3 Section 182.003(b) have been established, based on the application
111-4 and investigation. The banking commissioner shall approve the
111-5 application for charter or set the charter application for hearing.
111-6 (c) If a protest of the application is timely filed,
111-7 accompanied by the fees and deposits required by statute or rule,
111-8 or if the banking commissioner sets a hearing, the banking
111-9 commissioner shall conduct a public hearing and as many prehearing
111-10 conferences and opportunities for discovery as the banking
111-11 commissioner considers advisable and consistent with governing
111-12 statutes and rules. A person protesting the application is
111-13 entitled to the confidential portions of the application under a
111-14 protective order that restricts the use of confidential information
111-15 to the charter proceedings.
111-16 (d) Based on the record of the hearing, the banking
111-17 commissioner shall determine whether all of the necessary
111-18 conditions set forth in Section 182.003(b) have been established
111-19 and shall enter an order granting or denying the charter.
111-20 (e) The banking commissioner may make approval of any
111-21 application conditional. The banking commissioner shall include
111-22 any conditions in the order granting the charter.
111-23 (f) Chapter 2001, Government Code, does not apply to a
111-24 charter application filed for the purpose of assuming all or any
111-25 portion of the assets, liabilities, and accounts of any depository
111-26 institution or state trust company considered by the banking
112-1 commissioner to be in hazardous condition.
112-2 Sec. 182.006. ISSUANCE OF CHARTER. A state trust company
112-3 may not engage in the trust business until it receives its charter
112-4 from the banking commissioner. The banking commissioner may not
112-5 deliver the charter until the state trust company has:
112-6 (1) received cash in at least the full amount of
112-7 restricted capital from subscriptions for the issuance of shares
112-8 or participation shares;
112-9 (2) elected or qualified the initial officers and
112-10 directors or managers, as appropriate, named in the application for
112-11 charter or other officers and directors or managers approved by the
112-12 banking commissioner; and
112-13 (3) complied with all other requirements of this
112-14 subtitle relating to the organization of the state trust company.
112-15 Sec. 182.007. DEADLINE TO BEGIN BUSINESS. If a state trust
112-16 company does not open and engage in the trust business within six
112-17 months after the date it receives its charter or conditional
112-18 approval of application for charter, the banking commissioner may
112-19 revoke the charter or cancel the conditional approval of
112-20 application for charter without judicial action.
112-21 Sec. 182.008. RESTRICTED CAPITAL. (a) The banking
112-22 commissioner may not issue a charter to a state trust company
112-23 having restricted capital of less than $1 million.
112-24 (b) The banking commissioner may, on a case-by-case basis,
112-25 require additional restricted capital for a proposed or existing
112-26 state trust company if the banking commissioner finds the condition
113-1 and operations of the existing state trust company or the proposed
113-2 scope or type of operations of the proposed state trust company
113-3 requires additional restricted capital to protect the safety and
113-4 soundness of the state trust company. The safety and soundness
113-5 factors to be considered by the banking commissioner in the
113-6 exercise of discretion include:
113-7 (1) the nature and type of business the state trust
113-8 company conducts;
113-9 (2) the nature and degree of liquidity in assets held
113-10 in a corporate capacity;
113-11 (3) the amount, type, and depository of fiduciary
113-12 assets that the state trust company manages;
113-13 (4) the complexity of the state trust company's
113-14 fiduciary duties and degree of discretion undertaken;
113-15 (5) the competence and experience of the state trust
113-16 company's management;
113-17 (6) the extent and adequacy of internal controls
113-18 maintained by the state trust company;
113-19 (7) the presence or absence of annual unqualified
113-20 audits by an independent certified public accountant;
113-21 (8) the reasonableness of the state trust company's
113-22 business plans for retaining or acquiring additional restricted
113-23 capital; and
113-24 (9) the existence and adequacy of insurance obtained
113-25 or held by the state trust company to protect its clients,
113-26 beneficiaries, and grantors.
114-1 (c) The effective date of an order under Subsection (b) must
114-2 be stated in the order and must be on or after the 21st day after
114-3 the date the order is mailed or delivered. Unless the state trust
114-4 company requests a hearing before the banking commissioner in
114-5 writing before the effective date of the order, the order takes
114-6 effect and is final and nonappealable. This subsection does not
114-7 prohibit an application to reduce capital requirements of an
114-8 existing state trust company under Subsection (e) or under Section
114-9 182.011.
114-10 (d) Subject to Subsection (e) and Section 182.011, a state
114-11 trust company to which the banking commissioner issues a charter
114-12 shall at all times maintain restricted capital in at least the
114-13 amount required under Subsection (a) and in any additional amount
114-14 the banking commissioner requires under Subsection (b).
114-15 (e) Notwithstanding Subsection (a), on application, the
114-16 banking commissioner may, on a case-by-case basis in the exercise
114-17 of discretion, reduce the amount of minimum restricted capital
114-18 required for a state trust company in a manner consistent with
114-19 protecting the state trust company's safety and soundness. In
114-20 making a determination under this subsection, the banking
114-21 commissioner shall consider the factors listed by Subsection (b).
114-22 Sec. 182.009. APPLICATION OF LAWS RELATING TO GENERAL
114-23 BUSINESS CORPORATIONS. (a) The Texas Business Corporation Act and
114-24 the Texas Miscellaneous Corporation Laws Act (Article 1302-1.01 et
114-25 seq., Vernon's Texas Civil Statutes) are incorporated into this
114-26 chapter and apply to a state trust company as if they were part of
115-1 this subtitle to the extent not inconsistent with this subtitle or
115-2 the proper business of a state trust company, except that:
115-3 (1) a reference to the secretary of state means the
115-4 banking commissioner unless the context requires otherwise; and
115-5 (2) the right of shareholders or participants to
115-6 cumulative voting in the election of directors or managers exists
115-7 only if granted by the state trust company's articles of
115-8 association.
115-9 (b) Unless expressly authorized by this subtitle or a rule
115-10 of the finance commission, a state trust company may not take an
115-11 action authorized by the Texas Business Corporation Act regarding
115-12 its corporate status, capital structure, or a matter of corporate
115-13 governance, of the type for which the Texas Business Corporation
115-14 Act would require a filing with the secretary of state if the state
115-15 trust company were a business corporation, without submitting the
115-16 filing to the banking commissioner for prior written approval of
115-17 the action.
115-18 (c) The finance commission may adopt rules to alter or
115-19 supplement the procedures and requirements of the Texas Business
115-20 Corporation Act or the Texas Miscellaneous Corporation Laws Act
115-21 (Article 1302-1.01 et seq., Vernon's Texas Civil Statutes)
115-22 applicable to an action taken under this chapter by a state trust
115-23 company.
115-24 (d) This chapter may not be construed to mean that a state
115-25 trust company is a corporation incorporated under or governed by
115-26 the Texas Business Corporation Act or the Texas Miscellaneous
116-1 Corporation Laws Act (Article 1302-1.01 et seq., Vernon's Texas
116-2 Civil Statutes).
116-3 Sec. 182.010. PARITY. (a) A state trust company has the
116-4 same rights and privileges with respect to the exercise of
116-5 fiduciary powers that are or may be granted to a state or national
116-6 bank that is domiciled in this state and exercising fiduciary
116-7 powers.
116-8 (b) A state trust company that intends to exercise a right
116-9 or privilege with respect to the exercise of fiduciary powers
116-10 granted to a regulated financial institution described in
116-11 Subsection (a) that is not authorized for state trust companies
116-12 under the statutes and rules of this state other than under this
116-13 section shall submit a letter to the banking commissioner,
116-14 describing in detail the activity in which the state trust company
116-15 intends to engage and the specific authority for the regulated
116-16 financial institution described in Subsection (a) to undertake the
116-17 proposed activity. The state trust company shall attach copies, if
116-18 available, of relevant state and federal law, including regulations
116-19 and interpretive letters. The state trust company may begin to
116-20 perform the proposed activity after the 30th day after the date the
116-21 banking commissioner receives the state trust company's letter
116-22 unless the banking commissioner specifies an earlier or later date
116-23 or prohibits the activity. The banking commissioner may prohibit
116-24 the state trust company from performing the activity only if the
116-25 banking commissioner finds that:
116-26 (1) a regulated financial institution described in
117-1 Subsection (a) that is domiciled in this state does not possess the
117-2 specific right or privilege to perform the activity the state trust
117-3 company seeks to perform; or
117-4 (2) the performance of the activity by the state trust
117-5 company would adversely affect the safety and soundness of the
117-6 requesting state trust company.
117-7 (c) The banking commissioner may extend the 30-day period
117-8 under Subsection (b) if the banking commissioner determines that
117-9 the state trust company's letter raises issues requiring additional
117-10 information or additional time for analysis. If the 30-day period
117-11 is extended, the state trust company may perform the proposed
117-12 activity only on prior written approval by the banking
117-13 commissioner, except that the banking commissioner must approve or
117-14 prohibit the proposed activity or convene a hearing under Section
117-15 181.201 not later than the 60th day after the date the commissioner
117-16 receives the state trust company's letter. If a hearing is
117-17 convened, the banking commissioner must approve or prohibit the
117-18 proposed activity not later than the 30th day after the date the
117-19 hearing is completed.
117-20 (d) A state trust company that is denied the requested right
117-21 or privilege to engage in an activity by the banking commissioner
117-22 under this section may appeal as provided by Sections
117-23 181.202-181.204 or may resubmit a letter under this section with
117-24 additional information or authority relevant to the banking
117-25 commissioner's determination. A denial is immediately final for
117-26 purposes of appeal.
118-1 (e) The finance commission may adopt rules implementing the
118-2 method or manner in which a state trust company exercises specific
118-3 rights and privileges, including rules regarding the exercise of
118-4 rights and privileges that would be prohibited to state trust
118-5 companies. The finance commission may not adopt rules under this
118-6 subsection unless it finds that:
118-7 (1) regulated financial institutions described in
118-8 Subsection (a) that are domiciled in this state possess the rights
118-9 or privileges to perform activities the rules would permit state
118-10 trust companies to perform; and
118-11 (2) the rules contain adequate safeguards and
118-12 controls, consistent with safety and soundness, to address the
118-13 concern of the legislature evidenced by the state law the rules
118-14 would impact.
118-15 (f) The exercise of rights and privileges by a state trust
118-16 company in compliance with and in the manner authorized by this
118-17 section is not a violation of any statute of this state.
118-18 Sec. 182.011. EXEMPTION FROM STATUTORY PROVISIONS FOR
118-19 CERTAIN STATE TRUST COMPANIES. (a) A state trust company may
118-20 request in writing that it be exempted from specified provisions of
118-21 this subtitle. The banking commissioner may grant the exemption in
118-22 whole or in part if the banking commissioner finds that the state
118-23 trust company does not transact business with the public. A state
118-24 trust company does not transact business with the public if it does
118-25 not make any sale, solicitation, arrangement, agreement, or
118-26 transaction to provide a trust or other business service, whether
119-1 or not for a fee, commission, or any other type of remuneration,
119-2 with:
119-3 (1) an individual who is not related within the fourth
119-4 degree of affinity or consanguinity to an individual who controls
119-5 the state trust company; or
119-6 (2) a sole proprietorship, partnership, joint venture,
119-7 association, trust, estate, business trust, or corporation that is
119-8 not wholly owned by one or more individuals related within the
119-9 fourth degree of affinity or consanguinity to an individual who
119-10 controls the state trust company.
119-11 (b) At the expense of a state trust company, the banking
119-12 commissioner may examine or investigate the state trust company in
119-13 connection with an application for an exemption. Unless the
119-14 application presents novel or unusual questions, the banking
119-15 commissioner shall approve the application for exemption or set the
119-16 application for hearing not later than the 61st day after the date
119-17 the banking commissioner considers the application complete and
119-18 accepted for filing. The banking commissioner may require the
119-19 submission of additional information as considered necessary to an
119-20 informed decision.
119-21 (c) An exemption granted under this section may be made
119-22 subject to conditions or limitations imposed by the banking
119-23 commissioner consistent with this subtitle.
119-24 (d) A state trust company that is or has been exempt from a
119-25 provision of this subtitle under this section or a predecessor
119-26 statute may not transact business with the public unless the
120-1 banking commissioner determines, as provided by Section 182.003,
120-2 that public convenience and advantage will be promoted by
120-3 permitting the state trust company to engage in the trust business
120-4 with the public.
120-5 (e) The finance commission may adopt rules:
120-6 (1) defining other circumstances under which a state
120-7 trust company may be exempted from a provision of this subtitle
120-8 because it does not transact business with the public;
120-9 (2) specifying the provisions of this subtitle that
120-10 are subject to an exemption request; and
120-11 (3) establishing procedures and requirements for
120-12 obtaining, maintaining, or revoking an exemption.
120-13 Sec. 182.012. APPLICATION FOR EXEMPTION. (a) A state trust
120-14 company requesting an exemption under Section 182.011 shall file an
120-15 application with the banking commissioner that includes:
120-16 (1) a nonrefundable application fee set by the finance
120-17 commission;
120-18 (2) a detailed sworn statement showing the state trust
120-19 company's assets and liabilities as of the end of the calendar
120-20 month preceding the filing of the application;
120-21 (3) a sworn statement of the reason for requesting the
120-22 exemption;
120-23 (4) a sworn statement that the state trust company is
120-24 not transacting business with the public and that the company will
120-25 not transact business with the public without the prior written
120-26 permission of the banking commissioner;
121-1 (5) the current street mailing address and telephone
121-2 number of the physical location in this state at which the state
121-3 trust company will maintain its books and records, with a sworn
121-4 statement that the address given is true and correct and is not a
121-5 United States Postal Service post office box or a private mail box,
121-6 postal box, or mail drop; and
121-7 (6) a list of the specific provisions of this subtitle
121-8 for which the request for an exemption is made.
121-9 (b) The banking commissioner may not approve an exemption
121-10 unless the application is completed as required by Subsection (a).
121-11 Sec. 182.013. ANNUAL CERTIFICATION FOR EXEMPT STATE TRUST
121-12 COMPANY. (a) Before June 30 of each year, an exempt state trust
121-13 company shall file a certification on a form provided by the
121-14 banking commissioner that it is maintaining the conditions and
121-15 limitations of its exemption. The certification must be
121-16 accompanied by a fee set by the finance commission. The
121-17 certification is not valid unless it bears an acknowledgment
121-18 stamped by the department.
121-19 (b) The department shall return a copy of the acknowledged
121-20 annual certification to the state trust company not later than the
121-21 30th day after the date the certification is filed. The state
121-22 trust company shall notify the department of any failure to return
121-23 an acknowledged copy of any annual certification within this
121-24 period.
121-25 (c) The banking commissioner may examine or investigate the
121-26 state trust company periodically as necessary to verify the
122-1 certification.
122-2 Sec. 182.014. LIMITATION ON EFFECT OF EXEMPTION. (a) An
122-3 exempt state trust company shall comply with the home office
122-4 provisions of Section 182.202.
122-5 (b) The grant of an exemption to a state trust company does
122-6 not affect the state trust company's obligation to pay any
122-7 corporate franchise tax required by state law.
122-8 Sec. 182.015. CHANGE OF CONTROL OF EXEMPT STATE TRUST
122-9 COMPANY. Control of an exempt state trust company may not be sold
122-10 or transferred with exempt status. If control of an exempt state
122-11 trust company is transferred, the acquiring person must comply with
122-12 Sections 182.003, 182.004, 182.005, and 183.001 and the exempt
122-13 status of the state trust company automatically terminates on the
122-14 effective date of the transfer. The acquiring person must file a
122-15 separate application to obtain an exemption under Section 182.011.
122-16 Sec. 182.016. GROUNDS FOR REVOCATION OF EXEMPTION. The
122-17 banking commissioner may revoke an exemption of a state trust
122-18 company if the trust company:
122-19 (1) makes a false statement under oath on any document
122-20 required to be filed by this subtitle or finance commission rule;
122-21 (2) fails to submit to an examination as required by
122-22 Section 181.104;
122-23 (3) withholds requested information from the banking
122-24 commissioner; or
122-25 (4) violates any provision of this subtitle applicable
122-26 to an exempt state trust company.
123-1 Sec. 182.017. NOTICE AND EFFECT OF REVOCATION OF EXEMPTION.
123-2 (a) If the banking commissioner determines from examination or
123-3 other credible evidence that an exempt state trust company has
123-4 violated any of the requirements of this subchapter relating to an
123-5 exempt state trust company, the banking commissioner may by
123-6 personal delivery or registered or certified mail, return receipt
123-7 requested, notify the state trust company in writing that the state
123-8 trust company's exemption has been revoked. The notice must state
123-9 grounds for the revocation with reasonable certainty. The notice
123-10 must state its effective date, which may not be earlier than the
123-11 fifth day after the date the notification is mailed or delivered.
123-12 (b) The revocation takes effect for the state trust company
123-13 if the state trust company does not request a hearing in writing
123-14 before the effective date. After taking effect the revocation is
123-15 final and nonappealable as to that state trust company, and the
123-16 state trust company is subject to all of the requirements and
123-17 provisions of this subtitle applicable to nonexempt state trust
123-18 companies.
123-19 Sec. 182.018. ACTION AFTER REVOCATION OF EXEMPTION. (a) A
123-20 state trust company must comply with all of the provisions of
123-21 Sections 182.003(b) and (c) not later than the fifth day after the
123-22 date the revocation of the exemption takes effect. If, however,
123-23 the banking commissioner determines at the time of revocation that
123-24 the state trust company has been engaging in or attempting to
123-25 engage in acts intended or designed to deceive or defraud the
123-26 public, the banking commissioner, in the banking commissioner's
124-1 sole discretion, may waive the compliance period provided by this
124-2 subsection.
124-3 (b) If within the period prescribed by Subsection (a) the
124-4 state trust company does not comply with all of the provisions of
124-5 this subtitle, including capitalization requirements determined by
124-6 the banking commissioner as necessary to assure the safety and
124-7 soundness of the state trust company, the banking commissioner may:
124-8 (1) institute any action or remedy prescribed by this
124-9 subtitle or any applicable rule; or
124-10 (2) refer the state trust company to the attorney
124-11 general for institution of a quo warranto proceeding to revoke the
124-12 state trust company's charter.
124-13 Sec. 182.019. PRIOR EXEMPTION. A state trust company that
124-14 was exempt under a predecessor to this subtitle is considered
124-15 exempt under this subtitle.
124-16 Sec. 182.020. FOREIGN CORPORATION EXERCISING TRUST POWERS.
124-17 (a) A foreign corporation may not conduct a trust business in this
124-18 state. A foreign corporation may control a state trust company in
124-19 this state if the state trust company is formed or acquired and
124-20 operated as provided by this subtitle and applicable rules.
124-21 (b) A foreign corporation or other entity chartered or
124-22 domiciled in another jurisdiction as a trust company or depository
124-23 institution with trust powers may act as a trustee in this state
124-24 only as provided by Section 105A, Texas Probate Code.
124-25 Sec. 182.021. ACTIVITIES NOT REQUIRING CHARTER. A company
124-26 does not engage in the trust business in a manner requiring a state
125-1 charter by:
125-2 (1) acting in a manner authorized by law and in the
125-3 scope of authority as an agent of a state trust company;
125-4 (2) rendering a service customarily performed as an
125-5 attorney in a manner approved and authorized by the Supreme Court
125-6 of Texas or State Bar of Texas;
125-7 (3) acting as trustee under a deed of trust made only
125-8 as security for the payment of money or for the performance of
125-9 another act;
125-10 (4) conducting a trust business under a charter that
125-11 authorizes the exercise of trust powers as a depository
125-12 institution, if the exercise of trust powers in this state by the
125-13 depository institution is not otherwise prohibited by law;
125-14 (5) engaging in a business regulated by the Office of
125-15 Consumer Credit Commissioner, except as limited by rules adopted by
125-16 the finance commission;
125-17 (6) receiving and distributing rents and proceeds of
125-18 sale as a licensed real estate broker on behalf of a principal in a
125-19 manner authorized by the Texas Real Estate Commission;
125-20 (7) engaging in a securities transaction or providing
125-21 an investment advisory service as a licensed and registered dealer,
125-22 salesman, or advisor to the extent that the activity is regulated
125-23 by the State Securities Board or the Securities and Exchange
125-24 Commission;
125-25 (8) engaging in the sale and administration of an
125-26 insurance product by an insurance company or agent licensed by the
126-1 Texas Department of Insurance to the extent that the activity is
126-2 regulated by the Texas Department of Insurance;
126-3 (9) engaging in the lawful sale of prepaid funeral
126-4 benefits under a permit issued by the banking commissioner under
126-5 Chapter 154;
126-6 (10) engaging in the lawful business of a perpetual
126-7 care cemetery corporation under Chapter 712, Health and Safety
126-8 Code;
126-9 (11) engaging in the lawful sale of checks under a
126-10 license issued by the banking commissioner under Chapter 152;
126-11 (12) acting as trustee under a voting trust as
126-12 provided by Article 2.30, Texas Business Corporation Act;
126-13 (13) acting as trustee by a public, private, or
126-14 independent institution of higher education or a university system,
126-15 as defined by Section 61.003, Education Code, including an
126-16 affiliated foundation or corporation of such an institution or
126-17 system acting as trustee as provided by the Education Code;
126-18 (14) engaging in another activity expressly excluded
126-19 from the application of this subtitle by rule of the finance
126-20 commission;
126-21 (15) rendering services customarily performed by a
126-22 certified accountant in a manner authorized by the Texas State
126-23 Board of Public Accountancy;
126-24 (16) serving as trustee of a charitable trust as
126-25 provided by Article 2.31, Texas Non-Profit Corporation Act (Article
126-26 1396-2.31, Vernon's Texas Civil Statutes);
127-1 (17) performing escrow or settlement services if
127-2 licensed under Chapter 9, Insurance Code; or
127-3 (18) acting as a qualified intermediary in a tax
127-4 deferred exchange under Section 1031, Internal Revenue Code of
127-5 1986, and applicable regulations.
127-6 (Sections 182.022-182.100 reserved for expansion
127-7 SUBCHAPTER B. AMENDMENT OF ARTICLES; CHANGES IN CAPITAL
127-8 AND SURPLUS
127-9 Sec. 182.101. AMENDMENT OR RESTATEMENT OF STATE TRUST
127-10 COMPANY ARTICLES OF ASSOCIATION. (a) A state trust company that
127-11 has been granted a charter under Section 182.006 or a predecessor
127-12 statute may amend or restate its articles of association for any
127-13 lawful purpose, including the creation of authorized but unissued
127-14 shares or participation shares in one or more classes or series.
127-15 (b) An amendment authorizing the issuance of shares or
127-16 participation shares in series must contain:
127-17 (1) the designation of each series and a statement of
127-18 any variations in the preferences, limitations, and relative rights
127-19 among series to the extent that the preferences, limitations, and
127-20 relative rights are to be established in the articles of
127-21 association; and
127-22 (2) a statement of any authority to be vested in the
127-23 board to establish series and determine the preferences,
127-24 limitations, and relative rights of each series.
127-25 (c) A limited trust association may not amend its articles
127-26 of association to extend its period of existence for a perpetual
128-1 period or for any period of years, unless the period of existence
128-2 is expressly contingent on those events resulting in dissolution of
128-3 the trust association under Section 183.208.
128-4 (d) Amendment or restatement of the articles of association
128-5 of a state trust company and approval of the board and shareholders
128-6 or participants must be made or obtained in accordance with the
128-7 Texas Business Corporation Act for the amendment or restatement of
128-8 articles of incorporation, except as otherwise provided by this
128-9 subtitle or rules adopted under this subtitle. The original and
128-10 one copy of the articles of amendment or restated articles of
128-11 association must be filed with the banking commissioner for
128-12 approval. Unless the submission presents novel or unusual
128-13 questions, the banking commissioner shall approve or reject the
128-14 amendment or restatement not later than the 31st day after the date
128-15 the banking commissioner considers the submission informationally
128-16 complete and accepted for filing. The banking commissioner may
128-17 require the submission of additional information as considered
128-18 necessary to an informed decision to approve or reject any
128-19 amendment or restatement of articles of association under this
128-20 section.
128-21 (e) If the banking commissioner finds that the amendment or
128-22 restatement conforms to law and any conditions imposed by the
128-23 banking commissioner, and any required filing fee has been paid,
128-24 the banking commissioner shall:
128-25 (1) endorse the face of the original and copy with the
128-26 date of approval and the word "Approved";
129-1 (2) file the original in the department's records; and
129-2 (3) deliver a certified copy of the amendment or
129-3 restatement to the state trust company.
129-4 (f) An amendment or restatement, if approved, takes effect
129-5 on the date of approval, unless the amendment or restatement
129-6 provides for a different effective date.
129-7 Sec. 182.102. ESTABLISHING SERIES OF SHARES OR PARTICIPATION
129-8 SHARES. (a) If the articles of association expressly give the
129-9 board authority to establish series and determine the preferences,
129-10 limitations, and relative rights of each series, the board may do
129-11 so only on compliance with this section and any rules adopted under
129-12 this chapter.
129-13 (b) A series of shares or participation shares may be
129-14 established in the manner provided by the Texas Business
129-15 Corporation Act as if a state trust company were a domestic
129-16 corporation, but the shares or participation shares of the series
129-17 may not be issued and sold except on compliance with Section
129-18 182.103. The state trust company shall file the original and one
129-19 copy of the statement of action required by the Texas Business
129-20 Corporation Act with the banking commissioner.
129-21 (c) Unless the submission presents novel or unusual
129-22 questions, the banking commissioner shall approve or reject the
129-23 series not later than the 31st day after the date the banking
129-24 commissioner considers the submission informationally complete and
129-25 accepted for filing. The banking commissioner may require the
129-26 submission of additional information as considered necessary to an
130-1 informed decision.
130-2 (d) If the banking commissioner finds that the interests of
130-3 the clients and creditors of the state trust company will not be
130-4 adversely affected by the series, that the series otherwise
130-5 conforms to law and any conditions imposed by the banking
130-6 commissioner, and that any required filing fee has been paid, the
130-7 banking commissioner shall:
130-8 (1) endorse the face of the original and copy of the
130-9 statement with the date of approval and the word "Approved";
130-10 (2) file the original in the department's records; and
130-11 (3) deliver a certified copy of the statement to the
130-12 state trust company.
130-13 Sec. 182.103. CHANGE IN RESTRICTED CAPITAL. (a) A state
130-14 trust company may not reduce or increase its restricted capital
130-15 through dividend, redemption, issuance of shares or participation
130-16 shares, or otherwise without the prior approval of the banking
130-17 commissioner, except as permitted by this section or rules adopted
130-18 under this chapter.
130-19 (b) Unless otherwise restricted by rules, prior approval is
130-20 not required for an increase in restricted capital accomplished
130-21 through:
130-22 (1) issuance of shares of common stock or their
130-23 equivalent in participation shares for cash;
130-24 (2) declaration and payment of pro rata share
130-25 dividends as defined by the Texas Business Corporation Act; or
130-26 (3) adoption by the board of a resolution directing
131-1 that all or part of undivided profits be transferred to restricted
131-2 capital.
131-3 (c) Prior approval is not required for a decrease in
131-4 restricted capital caused by incurred losses in excess of undivided
131-5 profits.
131-6 Sec. 182.104. CAPITAL NOTES OR DEBENTURES. (a) With the
131-7 prior written approval of the banking commissioner, a state trust
131-8 company may at any time through action of its board, and without
131-9 requiring action of its shareholders or participants, issue and
131-10 sell its capital notes or debentures. The notes or debentures must
131-11 be subordinate to the claims of depositors and may be subordinate
131-12 to other claims, including the claims of other creditors or classes
131-13 of creditors or the shareholders or participants.
131-14 (b) Capital notes or debentures may be convertible into
131-15 shares or participation shares of any class or series. The
131-16 issuance and sale of convertible capital notes or debentures are
131-17 subject to satisfaction of preemptive rights, if any, to the extent
131-18 provided by law.
131-19 (c) Without the prior written approval of the banking
131-20 commissioner, a state trust company may not pay interest due or
131-21 principal repayable on outstanding capital notes or debentures when
131-22 the state trust company is in hazardous condition or insolvent, as
131-23 determined by the banking commissioner, or to the extent that
131-24 payment will cause the state trust company to be in hazardous
131-25 condition or insolvent.
131-26 (d) The amount of any outstanding capital notes or
132-1 debentures that meet the requirements of this section and that are
132-2 subordinated to unsecured creditors of the state trust company may
132-3 be included in equity capital of the state trust company for
132-4 purposes of determining hazardous condition or insolvency, and for
132-5 such other purposes provided by rules adopted under this subtitle.
132-6 Sec. 182.105. BOARD DESIGNATION OF CERTIFIED SURPLUS.
132-7 Periodically the board may vote to designate and record in its
132-8 minutes the amount of certified surplus. Except to absorb losses
132-9 in excess of undivided profits and uncertified surplus, certified
132-10 surplus may not be reduced without the prior written approval of
132-11 the banking commissioner.
132-12 (Sections 182.106-182.200 reserved for expansion
132-13 SUBCHAPTER C. STATE TRUST COMPANY OFFICES
132-14 Sec. 182.201. CONDUCT OF TRUST BUSINESS. A state trust
132-15 company may engage in the trust business at its home office and at
132-16 other locations as permitted by this subchapter.
132-17 Sec. 182.202. HOME OFFICE. (a) Each state trust company
132-18 must have and continuously maintain in this state a home office.
132-19 The home office must be a location at which the state trust company
132-20 does business and keeps its corporate books and records. At least
132-21 one executive officer must maintain an office at the home office.
132-22 (b) Each officer at the home office is an agent for service
132-23 of process for the state trust company.
132-24 (c) A state trust company may change its home office to any
132-25 location in this state, if the location that is the home office
132-26 before the change remains an office of the state trust company at
133-1 which the state trust company does business. To change the
133-2 location of its home office, the state trust company must file a
133-3 written notice with the banking commissioner setting forth the name
133-4 of the state trust company, the street address of its home office
133-5 before the change, the street address to which the home office is
133-6 to be changed, and a copy of the resolution adopted by the board
133-7 authorizing the change. The change of home office takes effect on
133-8 the 31st day after the date the banking commissioner receives the
133-9 notice.
133-10 (d) A relocation of a state trust company's home office may
133-11 not be made, and another action that would effect an abandonment of
133-12 the state trust company's initial home office may not be taken,
133-13 without the prior written approval of the banking commissioner.
133-14 The state trust company must establish to the satisfaction of the
133-15 banking commissioner that the abandonment is consistent with the
133-16 original determination of public convenience and advantage for the
133-17 establishment of a state trust company at that location.
133-18 Sec. 182.203. ADDITIONAL OFFICES. (a) A state trust
133-19 company may establish and maintain additional offices anywhere in
133-20 this state. To establish an additional office, the state trust
133-21 company must file a written notice with the banking commissioner
133-22 setting forth the name of the state trust company, the street
133-23 address of the proposed additional office, a description of the
133-24 activities proposed to be conducted at the additional office, and a
133-25 copy of the resolution adopted by the board authorizing the
133-26 additional office.
134-1 (b) A state trust company may not commence business at the
134-2 additional office before the 31st day after the date the banking
134-3 commissioner receives the notice, unless the banking commissioner
134-4 specifies an earlier or later date. The banking commissioner may
134-5 specify a later date on a determination that the written notice
134-6 raises issues that require additional information or additional
134-7 time for analysis. If a later date is specified, the state trust
134-8 company may establish the additional office only on prior written
134-9 approval by the banking commissioner. The banking commissioner may
134-10 deny permission to establish an additional office of the state
134-11 trust company if the banking commissioner has a significant
134-12 supervisory or regulatory concern regarding the proposed additional
134-13 office, the applicant, or an affiliate.
134-14 (Sections 182.204-182.300 reserved for expansion
134-15 SUBCHAPTER D. MERGER
134-16 Sec. 182.301. MERGER AUTHORITY. (a) Subject to this
134-17 subchapter and with the prior written approval of the banking
134-18 commissioner, a state trust company may merge with another person
134-19 to the same extent as a business corporation under the Texas
134-20 Business Corporation Act.
134-21 (b) Implementation of the plan of merger by the parties and
134-22 approval of the board, shareholders, participants, or owners of the
134-23 parties must be made or obtained as provided by the Texas Business
134-24 Corporation Act as if the state trust company were a domestic
134-25 corporation and all other parties to the merger were foreign
134-26 corporations and other entities, except as otherwise provided by
135-1 rules adopted under this chapter.
135-2 Sec. 182.302. MERGER APPLICATION; GROUNDS FOR APPROVAL.
135-3 (a) To apply for approval of a merger, the parties must submit the
135-4 original articles of merger, a number of copies of the articles of
135-5 merger equal to the number of surviving, new, and acquiring
135-6 entities, and an application in the form required by the banking
135-7 commissioner. The banking commissioner may require the submission
135-8 of additional information as considered necessary to an informed
135-9 decision.
135-10 (b) The banking commissioner shall investigate the condition
135-11 of the merging parties.
135-12 (c) The banking commissioner may approve the merger if:
135-13 (1) each resulting state trust company:
135-14 (A) has complied with the statutes and rules
135-15 relating to the organization of a state trust company; and
135-16 (B) will be solvent and have adequate
135-17 capitalization for its business and location;
135-18 (2) all obligations and liabilities of each trust
135-19 company that is a party to the merger have been properly discharged
135-20 or otherwise lawfully assumed or retained by a trust company or
135-21 other fiduciary;
135-22 (3) each surviving, new, or acquiring person that is
135-23 not authorized to engage in the trust business will not engage in
135-24 the trust business and has complied with the laws of this state;
135-25 and
135-26 (4) all conditions imposed by the banking commissioner
136-1 have been satisfied or otherwise resolved.
136-2 Sec. 182.303. APPROVAL OF BANKING COMMISSIONER. (a) If the
136-3 banking commissioner approves the merger and finds that all
136-4 required filing fees and investigative costs have been paid, the
136-5 banking commissioner shall:
136-6 (1) endorse the face of the original and each copy of
136-7 the articles of merger with the date of approval and the word
136-8 "Approved";
136-9 (2) file the original in the department's records; and
136-10 (3) deliver a certified copy of the articles of merger
136-11 to each surviving, new, or acquiring entity.
136-12 (b) A merger is effective on the date of approval, unless
136-13 the merger agreement provides and the banking commissioner consents
136-14 to a different effective date.
136-15 Sec. 182.304. RIGHTS OF DISSENTERS TO MERGER. A
136-16 shareholder, participant, or participant-transferee may dissent
136-17 from the merger to the extent and by following the procedure
136-18 provided by the Texas Business Corporation Act or rules adopted
136-19 under this subtitle.
136-20 (Sections 182.305-182.400 reserved for expansion
136-21 SUBCHAPTER E. PURCHASE OR SALE OF ASSETS
136-22 Sec. 182.401. AUTHORITY TO PURCHASE ASSETS OF ANOTHER
136-23 FINANCIAL INSTITUTION. (a) A state trust company with the prior
136-24 written approval of the banking commissioner may purchase all or
136-25 substantially all of the assets of another regulated financial
136-26 institution, including the right to control accounts established
137-1 with the state trust company.
137-2 (b) Except as otherwise expressly provided by another
137-3 statute, the purchase of all or part of the assets of the selling
137-4 institution does not make the purchasing state trust company
137-5 responsible for any liability or obligation of the selling
137-6 institution that the purchasing state trust company does not
137-7 expressly assume.
137-8 (c) Except as otherwise provided by this subtitle, this
137-9 subchapter does not govern or prohibit the purchase by a state
137-10 trust company of all or part of the assets of a corporation or
137-11 other entity that is not a state trust company.
137-12 (d) To make a purchase under this section, an application in
137-13 the form required by the banking commissioner must be filed with
137-14 the banking commissioner. The banking commissioner shall
137-15 investigate the condition of the purchaser and seller and may
137-16 require the submission of additional information as considered
137-17 necessary to make an informed decision.
137-18 (e) The banking commissioner shall approve the purchase if:
137-19 (1) the purchasing state trust company:
137-20 (A) has complied with all applicable statutes
137-21 and rules; and
137-22 (B) will be solvent and have sufficient
137-23 capitalization for its business and location;
137-24 (2) all obligations and liabilities of each trust
137-25 company that is a party to the purchase or sale of assets have been
137-26 properly discharged or otherwise lawfully assumed or retained by a
138-1 trust company or other fiduciary;
138-2 (3) all conditions imposed by the banking commissioner
138-3 have been satisfied or otherwise resolved; and
138-4 (4) all fees and costs have been paid.
138-5 (f) A purchase is effective on the date of approval unless
138-6 the purchase agreement provides for and the banking commissioner
138-7 consents to a different effective date.
138-8 Sec. 182.402. AUTHORITY TO ACT AS DISBURSING AGENT.
138-9 (a) The purchasing state trust company may hold the purchase price
138-10 and any additional funds delivered to it by the selling institution
138-11 in trust for the selling institution and may act as agent of the
138-12 selling institution in disbursing those funds in trust by paying
138-13 the creditors of the selling institution.
138-14 (b) If the purchasing state trust company acts under written
138-15 contract of agency approved by the banking commissioner that
138-16 specifically names each creditor and the amount to be paid each,
138-17 and if the agency is limited to the purely ministerial act of
138-18 paying creditors the amounts due them as determined by the selling
138-19 institution and reflected in the contract of agency and does not
138-20 involve discretionary duties or authority other than the
138-21 identification of the creditors named, the purchasing trust
138-22 company:
138-23 (1) may rely on the contract of agency and the
138-24 instructions included in it; and
138-25 (2) is not responsible for:
138-26 (A) any error made by the selling institution in
139-1 determining its liabilities and creditors to whom the liabilities
139-2 are due or the amounts due the creditors; or
139-3 (B) any preference that results from the
139-4 payments made under the contract of agency and the instructions
139-5 included in it.
139-6 Sec. 182.403. LIQUIDATION OF SELLING INSTITUTION. If the
139-7 selling institution is at any time after the sale of assets
139-8 voluntarily or involuntarily closed for liquidation by a state or
139-9 federal regulatory agency, the purchasing state trust company shall
139-10 pay to the receiver of the selling institution the balance of the
139-11 money held by it in trust for the selling institution and not yet
139-12 paid to the creditors of the selling institution. Without further
139-13 action the purchasing state trust company is discharged of all
139-14 responsibilities to the selling institution, its receiver, or its
139-15 creditors, shareholders, participants, or participant-transferees.
139-16 Sec. 182.404. PAYMENT TO CREDITORS. The purchasing state
139-17 trust company may pay a creditor of the selling institution the
139-18 amount to be paid the creditor under the terms of the contract of
139-19 agency by opening an agency account in the name of the creditor,
139-20 crediting the account with the amount to be paid the creditor under
139-21 the terms of the agency contract, and mailing or personally
139-22 delivering a duplicate ticket evidencing the credit to the creditor
139-23 at the creditor's address shown in the records of the selling
139-24 institution. The relationship between the purchasing state trust
139-25 company and the creditor is that of agent to creditor only to the
139-26 extent of the credit reflected by the ticket.
140-1 Sec. 182.405. SALE OF ASSETS. (a) The board of a state
140-2 trust company, with the banking commissioner's approval, may cause
140-3 the state trust company to sell all or substantially all of its
140-4 assets, including the right to control accounts established with
140-5 the state trust company, without shareholder or participant
140-6 approval if:
140-7 (1) the banking commissioner finds that the interests
140-8 of the state trust company's clients, depositors, and creditors are
140-9 jeopardized because of the hazardous condition of the state trust
140-10 company and that the sale is in their best interest; and
140-11 (2) the Federal Deposit Insurance Corporation or its
140-12 successor approves the transaction, if the deposits of the state
140-13 trust company are insured.
140-14 (b) A sale under this section must include an assumption and
140-15 promise by the buyer to pay or otherwise discharge:
140-16 (1) all of a state trust company's liabilities to
140-17 clients and depositors;
140-18 (2) all of the state trust company's liabilities for
140-19 salaries of the state trust company's employees incurred before the
140-20 date of the sale;
140-21 (3) obligations incurred by the banking commissioner
140-22 arising out of the supervision or sale of the state trust company;
140-23 and
140-24 (4) fees and assessments due the department.
140-25 (c) This section does not limit the incidental power of a
140-26 state trust company to buy and sell assets in the ordinary course
141-1 of business.
141-2 (d) This section does not affect the banking commissioner's
141-3 right to take action under another law. The sale by a state trust
141-4 company of all or substantially all of its assets with shareholder
141-5 or participant approval is considered a voluntary dissolution and
141-6 liquidation and is governed by Subchapter B, Chapter 186.
141-7 (Sections 182.406-182.500 reserved for expansion
141-8 SUBCHAPTER F. CERTAIN MERGERS, REORGANIZATIONS, OR CONVERSIONS
141-9 INTO NATIONAL BANK
141-10 Sec. 182.501. MERGER, REORGANIZATION, OR CONVERSION OF STATE
141-11 TRUST COMPANY INTO NATIONAL BANK EXERCISING FIDUCIARY POWERS.
141-12 (a) A state trust company may act as necessary under the laws of
141-13 the United States or this state to merge, reorganize, or convert
141-14 into a national bank exercising fiduciary powers.
141-15 (b) The merger, reorganization, or conversion must be made
141-16 and approval of the state trust company's board, shareholders, or
141-17 participants must be obtained in accordance with the Texas Business
141-18 Corporation Act as if the state trust company were a domestic
141-19 corporation and all other parties to the transaction, if any, were
141-20 foreign corporations or other entities, except as may be otherwise
141-21 provided by rule. For purposes of this subsection, a conversion is
141-22 considered a merger into the successor national bank exercising
141-23 fiduciary powers.
141-24 (c) The state trust company does not cease to be a state
141-25 trust company subject to the supervision of the banking
141-26 commissioner unless:
142-1 (1) the banking commissioner has been given written
142-2 notice of the intention to merge, reorganize, or convert before the
142-3 31st day before the date of the proposed transaction;
142-4 (2) the state trust company has published notice of
142-5 the transaction, in the form and frequency specified by the banking
142-6 commissioner, in:
142-7 (A) a newspaper of general circulation published
142-8 in the county of its home office or, if such a newspaper is not
142-9 published in the county, in an adjacent county; and
142-10 (B) other locations that the banking
142-11 commissioner considers appropriate;
142-12 (3) the state trust company has filed with the banking
142-13 commissioner:
142-14 (A) a copy of the application filed with the
142-15 successor regulatory authority, including a copy of each contract
142-16 evidencing or implementing the merger, reorganization, or
142-17 conversion, or other documents sufficient to show compliance with
142-18 applicable law;
142-19 (B) a certified copy of all minutes of board
142-20 meetings and shareholder or participant meetings at which action
142-21 was taken regarding the merger, reorganization, or conversion; and
142-22 (C) a publisher's certificate showing
142-23 publication of the required notice;
142-24 (4) the banking commissioner determines that:
142-25 (A) all accounts and liabilities of the state
142-26 trust company are fully discharged, assumed, or otherwise retained
143-1 by the successor national bank exercising fiduciary powers;
143-2 (B) any conditions imposed by the banking
143-3 commissioner for the protection of clients and creditors have been
143-4 met or otherwise resolved; and
143-5 (C) any required filing fees have been paid; and
143-6 (5) the state trust company has received a certificate
143-7 of authority to do business as a national bank exercising fiduciary
143-8 powers.
143-9 CHAPTER 183. OWNERSHIP AND MANAGEMENT OF STATE TRUST COMPANY
143-10 SUBCHAPTER A. TRANSFER OF OWNERSHIP INTEREST
143-11 Sec. 183.001. ACQUISITION OF CONTROL. (a) Except as
143-12 expressly permitted by this subtitle, without the prior written
143-13 approval of the banking commissioner a person may not directly or
143-14 indirectly acquire a legal or beneficial interest in voting
143-15 securities of a state trust company or a corporation or other
143-16 entity owning voting securities of a state trust company if, after
143-17 the acquisition, the person would control the state trust company.
143-18 (b) For purposes of this subchapter and except as otherwise
143-19 provided by rules adopted under this subtitle, the principal
143-20 shareholder or principal participant of a state trust company that
143-21 directly or indirectly owns or has the power to vote a greater
143-22 percentage of voting securities of the state trust company than any
143-23 other shareholder or participant is considered to control the state
143-24 trust company.
143-25 (c) This subchapter does not prohibit a person from
143-26 negotiating to acquire, but not acquiring, control of a state trust
144-1 company or a person that controls a state trust company.
144-2 (d) This section does not apply to:
144-3 (1) the acquisition of securities in connection with
144-4 the exercise of a security interest or otherwise in full or partial
144-5 satisfaction of a debt previously contracted for in good faith if
144-6 the acquiring person files written notice of acquisition with the
144-7 banking commissioner before the person votes the securities
144-8 acquired;
144-9 (2) the acquisition of voting securities in any class
144-10 or series by a controlling person who has previously complied with
144-11 and received approval under this subchapter or who was identified
144-12 as a controlling person in a prior application filed with and
144-13 approved by the banking commissioner;
144-14 (3) an acquisition or transfer by operation of law,
144-15 will, or intestate succession if the acquiring person files written
144-16 notice of acquisition with the banking commissioner before the
144-17 person votes the securities acquired; or
144-18 (4) a transaction exempted by the banking commissioner
144-19 or by rules adopted under this subtitle because the transaction is
144-20 not within the purposes of this subchapter or the regulation of
144-21 which is not necessary or appropriate to achieve the objectives of
144-22 this subchapter.
144-23 Sec. 183.002. APPLICATION REGARDING ACQUISITION OF CONTROL.
144-24 (a) The transferee in an acquisition of control of a state trust
144-25 company or of a person that controls a state trust company must
144-26 file an application for approval of the acquisition. The
145-1 application must:
145-2 (1) be under oath and on a form prescribed by the
145-3 banking commissioner;
145-4 (2) contain all information that:
145-5 (A) is required by rules adopted under this
145-6 subtitle; or
145-7 (B) the banking commissioner requires in a
145-8 particular application as necessary to an informed decision to
145-9 approve or reject the acquisition; and
145-10 (3) be accompanied by any filing fee required by
145-11 statute or rule.
145-12 (b) If a person proposing to acquire voting securities in a
145-13 transaction subject to this section includes a group of persons
145-14 acting in concert, the information required by the banking
145-15 commissioner may be required of each member of the group.
145-16 (c) Information obtained by the banking commissioner under
145-17 this section is confidential and may not be disclosed by the
145-18 banking commissioner or any employee of the department except as
145-19 provided by Subchapter D, Chapter 181.
145-20 (d) The applicant shall publish notice of the application,
145-21 its date of filing, the identity of each applicant, and, if the
145-22 applicant includes a group, the identity of each group member. The
145-23 notice must be published:
145-24 (1) promptly after the banking commissioner notifies
145-25 the applicant that the application is complete and accepted for
145-26 filing;
146-1 (2) in the form specified by the banking commissioner;
146-2 and
146-3 (3) in a newspaper of general circulation in the
146-4 county where the state trust company's home office is located.
146-5 (e) The applicant may defer publication of the notice until
146-6 not later than the 34th day after the date the application is filed
146-7 if:
146-8 (1) the application is filed in contemplation of a
146-9 public tender offer subject to 15 U.S.C. Section 78n(d)(1);
146-10 (2) the applicant requests confidential treatment and
146-11 represents that a public announcement of the tender offer and the
146-12 filing of appropriate forms with the Securities and Exchange
146-13 Commission or the appropriate federal banking agency, as
146-14 applicable, will occur within the period of deferral; and
146-15 (3) the banking commissioner determines that the
146-16 public interest will not be harmed by the requested confidential
146-17 treatment.
146-18 (f) The banking commissioner may waive the requirement that
146-19 a notice be published or permit delayed publication on a
146-20 determination that waiver or delay is in the public interest. If
146-21 publication of notice is waived under this subsection, the
146-22 information that would be contained in a published notice becomes
146-23 public information under Chapter 552, Government Code, on the 35th
146-24 day after the date the application is filed.
146-25 Sec. 183.003. HEARING AND DECISION ON ACQUISITION OF
146-26 CONTROL. (a) Not later than the 60th day after the date the
147-1 notice is published, the banking commissioner shall approve the
147-2 application or set the application for hearing. If the banking
147-3 commissioner sets a hearing, the department shall participate as
147-4 the opposing party and the banking commissioner shall conduct a
147-5 hearing and one or more prehearing conferences and opportunities
147-6 for discovery as the banking commissioner considers advisable and
147-7 consistent with governing statutes and rules. A hearing held under
147-8 this section is confidential and closed to the public.
147-9 (b) Based on the record, the banking commissioner may issue
147-10 an order denying an application if:
147-11 (1) the acquisition would substantially lessen
147-12 competition, be in restraint of trade, result in a monopoly, or be
147-13 in furtherance of a combination or conspiracy to monopolize or
147-14 attempt to monopolize the trust industry in any part of this state,
147-15 unless:
147-16 (A) the anticompetitive effects of the
147-17 acquisition are clearly outweighed in the public interest by the
147-18 probable effect of acquisition in meeting the convenience and needs
147-19 of the community to be served; and
147-20 (B) the acquisition is not in violation of the
147-21 law of this state or the United States;
147-22 (2) the financial condition of the transferee, or any
147-23 member of a group comprising the transferee, might jeopardize the
147-24 financial stability of the state trust company being acquired;
147-25 (3) plans or proposals to operate, liquidate, or sell
147-26 the state trust company or its assets are not in the best interest
148-1 of the state trust company;
148-2 (4) the experience, ability, standing, competence,
148-3 trustworthiness, and integrity of the transferee, or any member of
148-4 a group comprising the transferee, are insufficient to justify a
148-5 belief that the state trust company will be free from improper or
148-6 unlawful influence or interference with respect to the state trust
148-7 company's operation in compliance with law;
148-8 (5) the state trust company will not be solvent, have
148-9 adequate capitalization, or be in compliance with the laws of this
148-10 state after the acquisition;
148-11 (6) the transferee has failed to furnish all
148-12 information pertinent to the application reasonably required by the
148-13 banking commissioner; or
148-14 (7) the transferee is not acting in good faith.
148-15 (c) If the banking commissioner approves the application,
148-16 the transaction may be consummated. If the approval is conditioned
148-17 on a written commitment from the transferee offered to and accepted
148-18 by the banking commissioner, the commitment is:
148-19 (1) enforceable against the state trust company and
148-20 the transferee; and
148-21 (2) considered for all purposes an agreement under
148-22 this subtitle.
148-23 Sec. 183.004. APPEAL FROM ADVERSE DECISION. (a) If a
148-24 hearing has been held, the banking commissioner has entered an
148-25 order denying the application, and the order has become final, the
148-26 transferee may appeal the final order by filing a petition for
149-1 judicial review.
149-2 (b) The filing of an appeal under this section does not stay
149-3 the order of the banking commissioner.
149-4 Sec. 183.005. OBJECTION TO OTHER TRANSFER. This subchapter
149-5 does not prevent the banking commissioner from investigating,
149-6 commenting on, or seeking to enjoin or set aside a transfer of
149-7 voting securities that evidence a direct or indirect interest in a
149-8 state trust company, regardless of whether the transfer is governed
149-9 by this subchapter, if the banking commissioner considers the
149-10 transfer to be against the public interest.
149-11 Sec. 183.006. CIVIL ENFORCEMENT; CRIMINAL PENALTY. (a) If
149-12 the banking commissioner believes that a person has violated or is
149-13 about to violate this subchapter or a rule or order of the banking
149-14 commissioner relating to this subchapter, the attorney general on
149-15 behalf of the banking commissioner may apply to a district court in
149-16 Travis County for an order enjoining the violation and for other
149-17 equitable relief the nature of the case requires.
149-18 (b) A person who knowingly fails or refuses to file the
149-19 application required by Section 183.002 commits an offense. An
149-20 offense under this subsection is a Class A misdemeanor.
149-21 (Sections 183.007-183.100 reserved for expansion
149-22 SUBCHAPTER B. BOARD AND OFFICERS
149-23 Sec. 183.101. VOTING SECURITIES HELD BY TRUST COMPANY.
149-24 (a) Voting securities of a state trust company held by the state
149-25 trust company in a fiduciary capacity under a will or trust,
149-26 whether registered in its own name or in the name of its nominee,
150-1 may not be voted in the election of directors or managers or on a
150-2 matter affecting the compensation of directors, managers, officers,
150-3 or employees of the state trust company in that capacity, unless:
150-4 (1) under the terms of the will or trust, the manner
150-5 in which the voting securities are to be voted may be determined by
150-6 a donor or beneficiary of the will or trust and the donor or
150-7 beneficiary actually makes the determination in the matter at
150-8 issue;
150-9 (2) the terms of the will or trust expressly direct
150-10 the manner in which the securities must be voted to the extent that
150-11 discretion is not vested in the state trust company as fiduciary;
150-12 or
150-13 (3) the securities are voted solely by a cofiduciary
150-14 that is not an affiliate of the state trust company, as if the
150-15 cofiduciary were the sole fiduciary.
150-16 (b) Voting securities of a state trust company that cannot
150-17 be voted under this section are considered to be authorized but
150-18 unissued for purposes of determining the procedures for and results
150-19 of the affected vote.
150-20 Sec. 183.102. BYLAWS. Except as provided by Section
150-21 183.207, each state trust company shall adopt bylaws and may amend
150-22 its bylaws from time to time for the purposes and in accordance
150-23 with the procedures set forth in the Texas Business Corporation
150-24 Act.
150-25 Sec. 183.103. BOARD OF DIRECTORS, MANAGERS, OR MANAGING
150-26 PARTICIPANTS. (a) The board of a state trust company must consist
151-1 of not fewer than five or more than 25 directors, managers, or
151-2 managing participants, the majority of whom must be residents of
151-3 this state. Except for a limited trust association in which
151-4 management has been retained by its participants, the principal
151-5 executive officer of the state trust company is a member of the
151-6 board. The principal executive officer acting in the capacity of
151-7 board member is the board's presiding officer unless the board
151-8 elects a different presiding officer to perform the duties as
151-9 designated by the board.
151-10 (b) Unless the banking commissioner consents otherwise in
151-11 writing, a person may not serve as director, manager, or managing
151-12 participant of a state trust company if:
151-13 (1) the state trust company incurs an unreimbursed
151-14 loss attributable to a charged-off obligation of or holds a
151-15 judgment against:
151-16 (A) the person; or
151-17 (B) an entity that was controlled by the person
151-18 at the time of funding and at the time of default on the loan that
151-19 gave rise to the judgment or charged-off obligation;
151-20 (2) the person has been convicted of a felony; or
151-21 (3) the person has violated, with respect to a trust
151-22 under which the state trust company has fiduciary responsibility,
151-23 Section 113.052 or 113.053(a), Property Code, relating to loan of
151-24 trust funds and purchase or sale of trust property by the trustee,
151-25 and the violation has not been corrected.
151-26 (c) If a state trust company other than a limited trust
152-1 association operated by managing participants does not elect
152-2 directors or managers before the 61st day after the date of its
152-3 regular annual meeting, the banking commissioner may appoint a
152-4 conservator under Chapter 185 to operate the state trust company
152-5 and elect directors or managers, as appropriate. If the
152-6 conservator is unable to locate or elect persons willing and able
152-7 to serve as directors or managers, the banking commissioner may
152-8 close the state trust company for liquidation.
152-9 (d) A vacancy on the board that reduces the number of
152-10 directors, managers, or managing participants to fewer than five
152-11 must be filled not later than the 30th day after the date the
152-12 vacancy occurs. A limited trust association with fewer than five
152-13 managing participants must add one or more new participants or
152-14 elect a board of managers of not fewer than five persons to resolve
152-15 the vacancy. After the 30th day after the date the vacancy occurs,
152-16 the banking commissioner may appoint a conservator under Chapter
152-17 185 to operate the state trust company and elect a board of not
152-18 fewer than five persons to resolve the vacancy. If the conservator
152-19 is unable to locate or elect five persons willing and able to serve
152-20 as directors or managers, the banking commissioner may close the
152-21 state trust company for liquidation.
152-22 (e) Before each term to which a person is elected to serve
152-23 as a director or manager of a state trust company, or annually for
152-24 a person who is a managing participant, the person shall submit an
152-25 affidavit for filing in the minutes of the state trust company
152-26 stating that the person, to the extent applicable:
153-1 (1) accepts the position and is not disqualified from
153-2 serving in the position;
153-3 (2) will not violate or knowingly permit an officer,
153-4 director, manager, managing participant, or employee of the state
153-5 trust company to violate any law applicable to the conduct of
153-6 business of the trust company; and
153-7 (3) will diligently perform the duties of the
153-8 position.
153-9 Sec. 183.104. ADVISORY DIRECTOR OR ADVISORY MANAGER. An
153-10 advisory director or advisory manager is not considered to be a
153-11 director if the advisory director or advisory manager:
153-12 (1) is not elected by the shareholders or participants
153-13 of the state trust company;
153-14 (2) does not vote on matters before the board or a
153-15 committee of the board;
153-16 (3) is not counted for purposes of determining a
153-17 quorum of the board or committee; and
153-18 (4) provides solely general policy advice to the
153-19 board.
153-20 Sec. 183.105. REQUIRED QUARTERLY BOARD MEETING. (a) The
153-21 board of a state trust company shall hold at least one regular
153-22 meeting each quarter.
153-23 (b) At each regular meeting the board shall review and
153-24 approve the minutes of the preceding meeting and review the
153-25 operations, activities, and financial condition of the state trust
153-26 company. The board may designate committees from among its members
154-1 to perform those duties and approve or disapprove the committees'
154-2 reports at each regular meeting.
154-3 (c) All actions of the board must be recorded in its
154-4 minutes.
154-5 Sec. 183.106. OFFICERS. (a) The board shall annually
154-6 appoint the officers of the state trust company, who serve at the
154-7 will of the board.
154-8 (b) The state trust company must have a principal executive
154-9 officer primarily responsible for the execution of board policies
154-10 and operation of the state trust company and an officer responsible
154-11 for the maintenance and storage of all corporate books and records
154-12 of the state trust company and for required attestation of
154-13 signatures. Those positions may not be held by the same person.
154-14 (c) The board may appoint other officers of the state trust
154-15 company as the board considers necessary.
154-16 Sec. 183.107. LIMITATION ON ACTION OF OFFICER OR EMPLOYEE IN
154-17 RELATION TO ASSET OR LIABILITY. Unless expressly authorized by a
154-18 resolution of the board recorded in its minutes, an officer or
154-19 employee may not create or dispose of a state trust company asset
154-20 or create or incur a liability on behalf of the state trust
154-21 company.
154-22 Sec. 183.108. CERTAIN CRIMINAL OFFENSES. (a) An officer,
154-23 director, manager, managing participant, employee, shareholder, or
154-24 participant of a state trust company commits an offense if the
154-25 person knowingly:
154-26 (1) conceals information or removes, destroys, or
155-1 conceals a book or record of the state trust company for the
155-2 purpose of concealing information from the banking commissioner or
155-3 an agent of the banking commissioner; or
155-4 (2) for the purpose of concealing, removes or destroys
155-5 any book or record of the state trust company that is material to a
155-6 pending or anticipated legal or administrative proceeding.
155-7 (b) An officer, director, manager, managing participant, or
155-8 employee of a state trust company commits an offense if the person
155-9 knowingly makes a false entry in a book, record, report, or
155-10 statement of the state trust company.
155-11 (c) An offense under this section is a felony of the third
155-12 degree.
155-13 Sec. 183.109. TRANSACTIONS WITH MANAGEMENT AND AFFILIATES.
155-14 (a) Without the prior approval of a disinterested majority of the
155-15 board recorded in the minutes, or if a disinterested majority
155-16 cannot be obtained, the prior written approval of the banking
155-17 commissioner, a state trust company may not directly or indirectly:
155-18 (1) sell or lease an asset of the state trust company
155-19 to an officer, director, manager, managing participant, or
155-20 principal shareholder or participant of the state trust company or
155-21 an affiliate of the state trust company;
155-22 (2) purchase or lease an asset in which an officer,
155-23 director, manager, managing participant, or principal shareholder
155-24 or participant of the state trust company or an affiliate of the
155-25 state trust company has an interest; or
155-26 (3) subject to Section 184.201, extend credit to an
156-1 officer, director, manager, managing participant, or principal
156-2 shareholder or participant of the state trust company or an
156-3 affiliate of the state trust company.
156-4 (b) Notwithstanding Subsection (a), a lease transaction
156-5 described in Subsection (a)(2) involving real property may not be
156-6 consummated, renewed, or extended without the prior written
156-7 approval of the banking commissioner. For purposes of this
156-8 subsection only, an affiliate of a state trust company does not
156-9 include a subsidiary of the state trust company.
156-10 (c) Subject to Section 184.201, a state trust company may
156-11 not directly or indirectly extend credit to an employee, officer,
156-12 director, manager, managing participant, or principal shareholder
156-13 or participant of the state trust company or to an affiliate of the
156-14 state trust company, unless:
156-15 (1) the extension of credit is made on substantially
156-16 the same terms, including interest rates and collateral, as those
156-17 prevailing at the time for comparable transactions by the state
156-18 trust company with persons who are not employees, officers,
156-19 directors, managers, managing participants, principal shareholders,
156-20 participants, or affiliates of the state trust company;
156-21 (2) the extension of credit does not involve more than
156-22 the normal risk of repayment or present other unfavorable features;
156-23 and
156-24 (3) the state trust company follows credit
156-25 underwriting procedures that are not less stringent than those
156-26 applicable to comparable transactions by the state trust company
157-1 with persons who are not employees, officers, directors, managers,
157-2 managing participants, principal shareholders, participants, or
157-3 affiliates of the state trust company.
157-4 (d) An officer, director, manager, or managing participant
157-5 of a state trust company who knowingly participates in or permits a
157-6 violation of this section commits an offense. An offense under
157-7 this subsection is a felony of the third degree.
157-8 (e) The finance commission may adopt rules to administer and
157-9 carry out this section, including rules to establish limits,
157-10 requirements, or exemptions other than those specified by this
157-11 section for particular categories of transactions.
157-12 Sec. 183.110. FIDUCIARY RESPONSIBILITY. The board of a
157-13 state trust company is responsible for the proper exercise of
157-14 fiduciary powers by the state trust company and each matter
157-15 pertinent to the exercise of fiduciary powers, including:
157-16 (1) the determination of policies;
157-17 (2) the investment and disposition of property held in
157-18 a fiduciary capacity; and
157-19 (3) the direction and review of the actions of each
157-20 officer, employee, and committee used by the state trust company in
157-21 the exercise of its fiduciary powers.
157-22 Sec. 183.111. RECORDKEEPING. A state trust company shall
157-23 keep its fiduciary records separate and distinct from other records
157-24 of the state trust company in compliance with applicable rules
157-25 adopted under this subtitle. The fiduciary records must contain
157-26 all appropriate material information relative to each account.
158-1 Sec. 183.112. BONDING REQUIREMENTS. (a) The board of a
158-2 state trust company shall require a bond for the protection and
158-3 indemnity of clients, in reasonable amounts established by rules
158-4 adopted under this subtitle, against dishonesty, fraud,
158-5 defalcation, forgery, theft, and other similar insurable losses.
158-6 The bond must be with a corporate insurance or surety company:
158-7 (1) authorized to do business in this state; or
158-8 (2) acceptable to the banking commissioner and
158-9 otherwise lawfully permitted to issue the coverage against those
158-10 losses in this state.
158-11 (b) Except as otherwise provided by rule, a bond is required
158-12 to cover each director, manager, managing participant, officer, and
158-13 employee of a state trust company without regard to whether the
158-14 person receives salary or other compensation.
158-15 (c) A state trust company may apply to the banking
158-16 commissioner for permission to eliminate the bonding requirement of
158-17 this section for a particular individual. The banking commissioner
158-18 shall approve the application if the banking commissioner finds
158-19 that the bonding requirement is unnecessary or burdensome. Unless
158-20 the application presents novel or unusual questions, the banking
158-21 commissioner shall approve the application or set the application
158-22 for hearing not later than the 61st day after the date the banking
158-23 commissioner considers the application complete and accepted for
158-24 filing.
158-25 Sec. 183.113. REPORTS OF APPARENT CRIME. (a) A state trust
158-26 company that is the victim of a robbery, has a shortage of
159-1 corporate or fiduciary funds in excess of $5,000, or is the victim
159-2 of an apparent or suspected misapplication of its corporate or
159-3 fiduciary funds or property in any amount by a director, manager,
159-4 managing participant, officer, or employee shall report the
159-5 robbery, shortage, or apparent or suspected misapplication of funds
159-6 or property to the banking commissioner within 48 hours after the
159-7 time it is discovered. The initial report may be oral if the
159-8 report is promptly confirmed in writing. The state trust company
159-9 or a director, manager, managing participant, officer, employee, or
159-10 agent is not subject to liability for defamation or another charge
159-11 resulting from information supplied in the report.
159-12 (b) A report filed with the banking commissioner under this
159-13 section may be a copy of a written report filed with an appropriate
159-14 federal agency.
159-15 (Sections 183.114-183.200 reserved for expansion
159-16 SUBCHAPTER C. LIMITED TRUST ASSOCIATION
159-17 Sec. 183.201. LIABILITY OF PARTICIPANTS AND MANAGERS.
159-18 (a) Except as provided by Subsection (b), a participant,
159-19 participant-transferee, or manager of a limited trust association
159-20 is not liable for a debt, obligation, or liability of the limited
159-21 trust association, including a debt, obligation, or liability under
159-22 a judgment, decree, or order of court. A participant, other than a
159-23 full liability participant, or a manager of a limited trust
159-24 association is not a proper party to a proceeding by or against a
159-25 limited trust association unless the object of the proceeding is to
159-26 enforce the participant's or manager's right against or liability
160-1 to a limited trust association.
160-2 (b) A full liability participant of a limited trust
160-3 association is liable under a judgment, decree, or order of court
160-4 for a debt, obligation, or liability of the limited trust
160-5 association that accrued during the participation of the full
160-6 liability participant in the limited trust association and before
160-7 the full liability participant or a successor in interest filed
160-8 with the banking commissioner a notice of withdrawal as a full
160-9 liability participant from the limited trust association. The
160-10 filed notice of withdrawal is a public record.
160-11 Sec. 183.202. FILING OF NOTICE OF FULL LIABILITY. (a) A
160-12 limited trust association shall file with the banking commissioner
160-13 a copy of any participation agreement by which a participant of the
160-14 limited trust association agrees to become a full liability
160-15 participant and the name and address of each full liability
160-16 participant. Only the portion of the filed copy containing the
160-17 designation of each full liability participant is a public record.
160-18 (b) The banking commissioner may require a complete copy of
160-19 the participation agreement to be filed with the department,
160-20 regardless of whether a state trust company has a full liability
160-21 participant, except that the provisions of the participation
160-22 agreement other than those by which a participant of the limited
160-23 trust association agrees to become a full liability participant are
160-24 confidential and subject to release only as provided by Subchapter
160-25 D, Chapter 181.
160-26 Sec. 183.203. CONTRACTING FOR DEBT OR OBLIGATION. Except as
161-1 provided by this section or the articles of association of the
161-2 limited trust association, a debt, liability, or other obligation
161-3 may be contracted for or incurred on behalf of a limited trust
161-4 association only by:
161-5 (1) a majority of the managers, if management of the
161-6 limited trust association has been vested in a board of managers;
161-7 (2) a majority of the managing participants; or
161-8 (3) an officer or other agent vested with actual or
161-9 apparent authority to contract for or incur the debt, liability, or
161-10 other obligation.
161-11 Sec. 183.204. MANAGEMENT OF LIMITED TRUST ASSOCIATION.
161-12 (a) Management of a limited trust association is vested in the
161-13 participants in proportion to each participant's contribution to
161-14 capital, as adjusted periodically to properly reflect any
161-15 additional contribution. The articles of association may provide
161-16 that management of a limited trust association is vested in a
161-17 board of managers to be elected annually by the participants as
161-18 prescribed by the bylaws.
161-19 (b) Participants of a limited trust association may not
161-20 retain management and must elect a board of managers if:
161-21 (1) any participant is disqualified from serving as a
161-22 managing participant under Section 183.103;
161-23 (2) the limited trust association has fewer than five
161-24 or more than 25 participants; or
161-25 (3) any participant has been removed by the banking
161-26 commissioner under Subchapter A, Chapter 185.
162-1 (c) The articles of association, bylaws, and participation
162-2 agreement of a limited trust association may use the term
162-3 "director" instead of "manager" and the term "board" instead of
162-4 "board of managers."
162-5 Sec. 183.205. WITHDRAWAL OR REDUCTION OF PARTICIPANT'S
162-6 CONTRIBUTION TO CAPITAL. (a) Except as otherwise provided by this
162-7 chapter, a participant may not receive from a limited trust
162-8 association any part of the participant's contribution to capital
162-9 unless:
162-10 (1) all liabilities of the limited trust association,
162-11 except liabilities to participants on account of contribution to
162-12 capital, have been paid;
162-13 (2) after the withdrawal or reduction, sufficient
162-14 property of the limited trust association will remain to pay all
162-15 liabilities of the limited trust association, except liabilities to
162-16 participants on account of contribution to capital;
162-17 (3) all participants consent; or
162-18 (4) the articles of association are canceled or
162-19 amended to set out the withdrawal or reduction.
162-20 (b) A participant may demand the return of the participant's
162-21 contribution to capital on the dissolution of the association and
162-22 the failure of the full liability participants to exercise the
162-23 right to carry on the business of the limited trust association as
162-24 provided by Section 183.208.
162-25 (c) A participant may demand the return of the participant's
162-26 contribution to capital only in cash unless a different form of
163-1 return of the contribution is allowed by the articles of
163-2 association or by the unanimous consent of all participants.
163-3 Sec. 183.206. INTEREST IN LIMITED TRUST ASSOCIATION;
163-4 TRANSFERABILITY OF INTEREST. (a) The interest of a participant or
163-5 participant-transferee in a limited trust association is the
163-6 personal property of the participant or the participant-transferee
163-7 and may be transferred as provided by the bylaws or the
163-8 participation agreement.
163-9 (b) A transferee of a participant's interest has the status
163-10 of a participant-transferee and does not by the transfer become a
163-11 participant or obtain a right to participate in the management of
163-12 the limited trust association.
163-13 (c) A participant-transferee is entitled to receive only a
163-14 share of profits, return of contribution, or other distributive
163-15 benefit in respect to the interest transferred to which the
163-16 participant who transferred the interest would have been entitled.
163-17 (d) A participant-transferee may become a participant only
163-18 as provided by the bylaws or the participation agreement.
163-19 (e) A limited trust association may add additional
163-20 participants in the same manner as participant-transferees after
163-21 payment in full of the capital contribution to the limited trust
163-22 association payable for the issuance of additional participation
163-23 interests.
163-24 Sec. 183.207. BYLAWS OF LIMITED TRUST ASSOCIATION. (a) A
163-25 limited trust association in which management is retained by the
163-26 participants is not required to adopt bylaws if the provisions
164-1 required by law to be contained in the bylaws are contained in the
164-2 articles of association or the participation agreement.
164-3 (b) If a limited trust association has adopted bylaws that
164-4 designate each full liability participant, the limited trust
164-5 association shall file a copy of the bylaws with the banking
164-6 commissioner. Only the portion of the bylaws designating each full
164-7 liability participant is a public record.
164-8 Sec. 183.208. DISSOLUTION. (a) A limited trust association
164-9 organized under this chapter is dissolved on:
164-10 (1) the expiration of the period fixed for the
164-11 duration of the limited trust association;
164-12 (2) a vote to dissolve or the execution of a written
164-13 consent to dissolve by all full liability participants, if any, and
164-14 a sufficient number of other participants that, combined with all
164-15 full liability participants, hold at least two-thirds of the
164-16 participation shares in each class in the association, or a greater
164-17 fraction as provided by the articles of association;
164-18 (3) except as provided by the articles of association,
164-19 the death, insanity, expulsion, bankruptcy, retirement, or
164-20 resignation of a participant unless a majority in interest of all
164-21 remaining participants elect in writing not later than the 90th day
164-22 after the date of the event to continue the business of the
164-23 association; or
164-24 (4) the occurrence of an event of dissolution
164-25 specified in the articles of association.
164-26 (b) A dissolution under this section is considered to be the
165-1 initiation of a voluntary dissolution under Subchapter B, Chapter
165-2 186.
165-3 (c) An event of dissolution described by Subsection (a)(3)
165-4 does not cancel or revoke a contract to which the limited trust
165-5 association is a party, including a trust indenture or agreement or
165-6 voluntary dissolution under Subchapter B, Chapter 186, until the
165-7 period for the remaining participants to continue the business of
165-8 the limited trust association has expired without the remaining
165-9 participants having completed the necessary action to continue the
165-10 business of the limited trust association.
165-11 Sec. 183.209. ALLOCATION OF PROFITS AND LOSSES. The profits
165-12 and losses of a limited trust association may be allocated among
165-13 the participants and among classes of participants as provided by
165-14 the participation agreement. Without the prior written approval of
165-15 the banking commissioner to use a different allocation method, the
165-16 profits and losses must be allocated according to the relative
165-17 interests of the participants as reflected in the articles of
165-18 association and related documents filed with and approved by the
165-19 banking commissioner.
165-20 Sec. 183.210. DISTRIBUTIONS. Subject to Section 182.103,
165-21 distributions of cash or other assets of a limited trust
165-22 association may be made to the participants as provided by the
165-23 participation agreement. Without the prior written approval of the
165-24 banking commissioner to use a different distribution method,
165-25 distributions must be made to the participants according to the
165-26 relative interests of the participants as reflected in the articles
166-1 of association and related documents filed with and approved by the
166-2 banking commissioner.
166-3 Sec. 183.211. APPLICATION OF OTHER PROVISIONS TO LIMITED
166-4 TRUST ASSOCIATIONS. For purposes of applying the provisions of
166-5 this subtitle other than this subchapter to a limited trust
166-6 association, as the context requires:
166-7 (1) a manager and the board of managers are considered
166-8 to be a director and the board of directors;
166-9 (2) if there is not a board of managers, a participant
166-10 is considered to be a director and all of the participants are
166-11 considered to be the board of directors;
166-12 (3) a participant or participant-transferee is
166-13 considered to be a shareholder;
166-14 (4) a participation share is considered to be a share
166-15 of stock; and
166-16 (5) a distribution is considered to be a dividend.
166-17 CHAPTER 184. INVESTMENTS, LOANS, AND DEPOSITS
166-18 SUBCHAPTER A. ACQUISITION AND OWNERSHIP OF TRUST
166-19 COMPANY FACILITIES AND OTHER REAL PROPERTY
166-20 Sec. 184.001. DEFINITION. In this subchapter, "state trust
166-21 company facility" means real property, including an improvement,
166-22 that a state trust company owns or leases, to the extent the lease
166-23 or the leasehold improvement is capitalized, for the purpose of:
166-24 (1) providing space for state trust company employees
166-25 to perform their duties and for state trust company employees and
166-26 customers to park;
167-1 (2) conducting trust business, including meeting the
167-2 reasonable needs and convenience of the public and the state trust
167-3 company's clients, computer operations, document and other item
167-4 processing, maintenance, and record retention and storage;
167-5 (3) holding, improving, and occupying as an incident
167-6 to future expansion of the state trust company's facilities; or
167-7 (4) conducting another activity authorized by rules
167-8 adopted under this subtitle.
167-9 Sec. 184.002. INVESTMENT IN STATE TRUST COMPANY FACILITIES.
167-10 (a) Without the prior written approval of the banking
167-11 commissioner, a state trust company may not directly or indirectly
167-12 invest an amount in excess of 60 percent of its restricted capital
167-13 in state trust company facilities, furniture, fixtures, and
167-14 equipment. Except as otherwise provided by rules adopted under
167-15 this subtitle, in computing the limitation provided by this
167-16 subsection a state trust company:
167-17 (1) shall include:
167-18 (A) its direct investment in state trust company
167-19 facilities;
167-20 (B) an investment in equity or investment
167-21 securities of a company holding title to a facility used by the
167-22 state trust company for the purposes specified by Section 184.001;
167-23 (C) a loan made by the state trust company to or
167-24 on the security of equity or investment securities issued by a
167-25 company holding title to a facility used by the state trust
167-26 company; and
168-1 (D) any indebtedness incurred on state trust
168-2 company facilities by a company:
168-3 (i) that holds title to the facility;
168-4 (ii) that is an affiliate of the state
168-5 trust company; and
168-6 (iii) in which the state trust company is
168-7 invested in the manner described by Paragraph (B) or (C); and
168-8 (2) may exclude an amount included under Subdivisions
168-9 (1)(B)-(D) to the extent any lease of a facility from the company
168-10 holding title to the facility is capitalized on the books of the
168-11 state trust company.
168-12 (b) Real property described by Subsection 184.001(3) and not
168-13 improved and occupied by the state trust company ceases to be a
168-14 state trust company facility on the third anniversary of the date
168-15 of its acquisition unless the banking commissioner on application
168-16 grants written approval to further delay in the improvement and
168-17 occupation of the property by the state trust company.
168-18 (c) A state trust company shall comply with regulatory
168-19 accounting principles in accounting for its investment in and
168-20 depreciation of state trust company facilities, furniture,
168-21 fixtures, and equipment.
168-22 Sec. 184.003. OTHER REAL PROPERTY. (a) A state trust
168-23 company may not invest its restricted capital in real property
168-24 except:
168-25 (1) as permitted by this subtitle or rules adopted
168-26 under this subtitle; or
169-1 (2) as necessary to avoid or minimize a loss on a loan
169-2 or investment previously made in good faith.
169-3 (b) With the prior written approval of the banking
169-4 commissioner, a state trust company may:
169-5 (1) exchange real property for other real property or
169-6 personal property;
169-7 (2) invest additional money in or improve real
169-8 property acquired under this subsection or Subsection (a); or
169-9 (3) acquire additional real property to avoid or
169-10 minimize loss on real property acquired as permitted by Subsection
169-11 (a).
169-12 (c) A state trust company shall dispose of any real property
169-13 subject to Subsection (a) not later than:
169-14 (1) the fifth anniversary of the date the real
169-15 property:
169-16 (A) was acquired, except as otherwise provided
169-17 by rules adopted under this subtitle; or
169-18 (B) ceases to be used as a state trust company
169-19 facility; or
169-20 (2) the second anniversary of the date the real
169-21 property ceases to be a state trust company facility as provided by
169-22 Section 184.002(b).
169-23 (d) The banking commissioner on application may grant one or
169-24 more extensions of time for disposing of real property under
169-25 Subsection (c) if the banking commissioner determines that:
169-26 (1) the state trust company has made a good faith
170-1 effort to dispose of the real property; or
170-2 (2) disposal of the real property would be detrimental
170-3 to the state trust company.
170-4 (e) Subject to the exercise of prudent judgment, a state
170-5 trust company may invest its secondary capital in real property.
170-6 The factors to be considered by a state trust company in exercise
170-7 of prudent judgment include the factors contained in Section
170-8 184.101(f).
170-9 (Sections 184.004-184.100 reserved for expansion
170-10 SUBCHAPTER B. INVESTMENTS
170-11 Sec. 184.101. SECURITIES. (a) A state trust company may
170-12 invest its restricted capital in any type or character of equity
170-13 or investment securities under the limitations provided by this
170-14 section.
170-15 (b) Unless the banking commissioner in writing approves
170-16 maintenance of a lesser amount, a state trust company must invest
170-17 and maintain an amount equal to at least 40 percent of the state
170-18 trust company's restricted capital under Section 182.008 in
170-19 investment securities that are readily marketable and can be
170-20 converted to cash within four business days.
170-21 (c) Subject to Subsection (d), the total investment of its
170-22 restricted capital in equity and investment securities of any one
170-23 issuer, obligor, or maker, and the total investment of its
170-24 restricted capital in mutual funds, held by the state trust company
170-25 for its own account, may not exceed an amount equal to 15 percent
170-26 of the state trust company's restricted capital. The banking
171-1 commissioner may authorize investments in excess of this limitation
171-2 on written application if the banking commissioner determines that:
171-3 (1) the excess investment is not prohibited by other
171-4 applicable law; and
171-5 (2) the safety and soundness of the requesting state
171-6 trust company is not adversely affected.
171-7 (d) Notwithstanding Subsection (c), a state trust company
171-8 may invest its restricted capital, without limitation and subject
171-9 only to the exercise of prudent judgment, in:
171-10 (1) bonds and other legally created general
171-11 obligations of a state, an agency or political subdivision of a
171-12 state, the United States, or an agency or instrumentality of the
171-13 United States;
171-14 (2) investment securities that this state, an agency
171-15 or political subdivision of this state, the United States, or an
171-16 agency or instrumentality of the United States has unconditionally
171-17 agreed to purchase, insure, or guarantee;
171-18 (3) securities that are offered and sold under 15
171-19 U.S.C. Section 77d(5);
171-20 (4) mortgage related securities, as defined in 15
171-21 U.S.C. Section 78c(a), except that notwithstanding Section 347 of
171-22 the Riegle Community Development and Regulatory Improvement Act of
171-23 1994, a note or obligation that is secured by a first lien on one
171-24 or more parcels of real property on which is located one or more
171-25 commercial structures is subject to the limitations of Subsection
171-26 (c);
172-1 (5) investment securities issued or guaranteed by the
172-2 Federal Home Loan Mortgage Corporation, the Federal National
172-3 Mortgage Association, the Government National Mortgage Association,
172-4 the Federal Agricultural Mortgage Corporation, or the Federal Farm
172-5 Credit Banks Funding Corporation;
172-6 (6) investment securities issued or guaranteed by the
172-7 North American Development Bank; or
172-8 (7) securities issued by a Federal Home Loan Bank.
172-9 (e) Notwithstanding 15 U.S.C. Section 77r-1(c), Subsection
172-10 (c) applies to investments in small business related securities as
172-11 defined by 15 U.S.C. Section 78c(a).
172-12 (f) In the exercise of prudent judgment, a state trust
172-13 company shall, at a minimum:
172-14 (1) exercise care and caution to make and implement
172-15 investment and management decisions for the entire investment
172-16 portfolio, taking into consideration the safety and soundness of
172-17 the state trust company;
172-18 (2) pursue an overall investment strategy to enable
172-19 management to make appropriate present and future decisions; and
172-20 (3) consider, to the extent relevant to the decision
172-21 or action:
172-22 (A) the size, diversification, and liquidity of
172-23 its corporate assets;
172-24 (B) the general economic conditions;
172-25 (C) the possible effect of inflation or
172-26 deflation;
173-1 (D) the expected tax consequences of the
173-2 investment decisions or strategies;
173-3 (E) the role that each investment or course of
173-4 action plays within the investment portfolio; and
173-5 (F) the expected total return of the portfolio.
173-6 (g) A state trust company may invest its secondary capital
173-7 in any type or character of equity or investment securities subject
173-8 to the exercise of prudent judgment according to the standards
173-9 provided by Subsection (f).
173-10 (h) The finance commission may adopt rules to administer and
173-11 carry out this section, including rules to:
173-12 (1) establish limits, requirements, or exemptions
173-13 other than those specified by this section for particular classes
173-14 or categories of investment; or
173-15 (2) limit or expand investment authority for state
173-16 trust companies for particular classes or categories of securities
173-17 or other property.
173-18 Sec. 184.102. TRANSACTIONS IN STATE TRUST COMPANY SHARES OR
173-19 PARTICIPATION SHARES. Except with the prior written approval of
173-20 the banking commissioner:
173-21 (1) a state trust company may not acquire its own
173-22 shares or participation shares unless the amount of its undivided
173-23 profits is sufficient to fully absorb the acquisition of the shares
173-24 or participation shares under regulatory accounting principles; and
173-25 (2) a state trust company may not acquire a lien on
173-26 its own shares or participation shares unless the amount of
174-1 indebtedness secured is less than the amount of the state trust
174-2 company's undivided profits.
174-3 Sec. 184.103. STATE TRUST COMPANY SUBSIDIARIES. (a) Except
174-4 as otherwise provided by this subtitle or rules adopted under this
174-5 subtitle, and subject to the exercise of prudent judgment, a state
174-6 trust company may invest its secondary capital to acquire or
174-7 establish one or more subsidiaries to conduct any activity that may
174-8 lawfully be conducted through the form of organization chosen for
174-9 the subsidiary. The factors to be considered by a state trust
174-10 company in exercise of prudent judgment include the factors
174-11 contained in Section 184.101(f).
174-12 (b) A state trust company that intends to acquire,
174-13 establish, or perform new activities through a subsidiary shall
174-14 submit a letter to the banking commissioner describing in detail
174-15 the proposed activities of the subsidiary.
174-16 (c) The state trust company may acquire or establish a
174-17 subsidiary or begin performing new activities in an existing
174-18 subsidiary on the 31st day after the date the banking commissioner
174-19 receives the state trust company's letter, unless the banking
174-20 commissioner specifies an earlier or later date. The banking
174-21 commissioner may extend the 30-day period on a determination that
174-22 the state trust company's letter raises issues that require
174-23 additional information or additional time for analysis. If the
174-24 period is extended, the state trust company may acquire or
174-25 establish the subsidiary, or perform new activities in an existing
174-26 subsidiary, only on prior written approval of the banking
175-1 commissioner.
175-2 (d) A subsidiary of a state trust company is subject to
175-3 regulation by the banking commissioner to the extent provided by
175-4 this subtitle or rules adopted under this section. In the absence
175-5 of limiting rules, the banking commissioner may regulate a
175-6 subsidiary as if it were a state trust company.
175-7 Sec. 184.104. OTHER INVESTMENT PROVISIONS. (a) Without the
175-8 prior written approval of the banking commissioner, a state trust
175-9 company may not make any investment of its secondary capital in any
175-10 investment that incurs or may incur, under regulatory accounting
175-11 principles, a liability or contingent liability for the state trust
175-12 company.
175-13 (b) The banking commissioner may, on a case-by-case basis,
175-14 require a state trust company to dispose of any investment of its
175-15 secondary capital, if the banking commissioner finds that the
175-16 divestiture of the asset is necessary to protect the safety and
175-17 soundness of the state trust company. The banking commissioner in
175-18 the exercise of discretion under this subsection shall consider
175-19 safety and soundness factors, including those contained in Section
175-20 182.008(b). The proposed effective date of an order requiring a
175-21 state trust company to dispose of an asset must be stated in the
175-22 order and must be on or after the 21st day after the date the
175-23 proposed order is mailed or delivered. Unless the state trust
175-24 company requests a hearing before the banking commissioner in
175-25 writing before the effective date of the proposed order, the order
175-26 becomes effective and is final and nonappealable.
176-1 (c) Subject to Subsections (a) and (b), to Section 184.105,
176-2 and to the exercise of prudent judgment, a state trust company may
176-3 invest its secondary capital in any type or character of
176-4 investment for the purpose of generating income or profit. The
176-5 factors to be considered by a state trust company in exercise of
176-6 prudent judgment include the factors contained in Section
176-7 184.101(f).
176-8 Sec. 184.105. ENGAGING IN COMMERCE PROHIBITED. Except as
176-9 otherwise provided by this subtitle or rules adopted under this
176-10 subtitle, a state trust company may not invest its funds in trade
176-11 or commerce by buying, selling, or otherwise dealing goods or by
176-12 owning or operating a business not part of the state trust
176-13 business, except as necessary to fulfill a fiduciary obligation to
176-14 a client.
176-15 (Sections 184.106-184.200 reserved for expansion
176-16 SUBCHAPTER C. LOANS
176-17 Sec. 184.201. LENDING LIMITS. (a) A state trust company's
176-18 total outstanding loans and extensions of credit to a person other
176-19 than an insider may not exceed an amount equal to 15 percent of the
176-20 state trust company's restricted capital.
176-21 (b) The aggregate loans and extensions of credit outstanding
176-22 at any time to insiders of the state trust company may not exceed
176-23 an amount equal to 15 percent of the state trust company's
176-24 restricted capital. All covered transactions between an insider
176-25 and a state trust company must be engaged in only on terms and
176-26 under circumstances, including credit standards, that are
177-1 substantially the same as those for comparable transactions with a
177-2 person other than an insider.
177-3 (c) The finance commission may adopt rules to administer
177-4 this section, including rules to:
177-5 (1) establish limits, requirements, or exemptions
177-6 other than those specified by this section for particular classes
177-7 or categories of loans or extensions of credit; and
177-8 (2) establish collective lending and investment
177-9 limits.
177-10 (d) The banking commissioner may determine whether a loan or
177-11 extension of credit putatively made to a person will be attributed
177-12 to another person for purposes of this section.
177-13 (e) A state trust company may not lend trust deposits,
177-14 except that a trustee may make a loan to a beneficiary of the trust
177-15 if the loan is expressly authorized or directed by the instrument
177-16 or transaction establishing the trust.
177-17 Sec. 184.202. VIOLATION OF LENDING LIMIT. (a) An officer,
177-18 director, manager, managing participant, or employee of a state
177-19 trust company who approves or participates in the approval of a
177-20 loan with actual knowledge that the loan violates Section 184.201
177-21 is jointly and severally liable to the state trust company for the
177-22 lesser of the amount by which the loan exceeded applicable lending
177-23 limits or the state trust company's actual loss. The person
177-24 remains liable for that amount until the loan and all prior
177-25 indebtedness of the borrower to the state trust company have been
177-26 fully repaid.
178-1 (b) The state trust company may initiate a proceeding to
178-2 collect an amount due under this section at any time before the
178-3 date the borrower defaults on the subject loan or any prior
178-4 indebtedness or before the fourth anniversary of that date.
178-5 (c) A person who is liable for and pays amounts to the state
178-6 trust company under this section is entitled to an assignment of
178-7 the state trust company's claim against the borrower to the extent
178-8 of the payments.
178-9 (d) For purposes of this section, an officer, director,
178-10 manager, managing participant, or employee of a state trust company
178-11 is presumed to know the amount of the state trust company's lending
178-12 limit under Section 184.201 and the amount of the borrower's
178-13 aggregate outstanding indebtedness to the state trust company
178-14 immediately before a new loan or extension of credit to that
178-15 borrower.
178-16 Sec. 184.203. LEASE FINANCING TRANSACTION. (a) Subject to
178-17 rules adopted under this subtitle, a state trust company may become
178-18 the owner and lessor of tangible personal property for lease
178-19 financing transactions on a net lease basis on the specific request
178-20 and for the use of a client. Without the written approval of the
178-21 banking commissioner to continue holding property acquired for
178-22 leasing purposes under this subsection, the state trust company may
178-23 not hold the property more than six months after the date of
178-24 expiration of the original or any extended or renewed lease period
178-25 agreed to by the client for whom the property was acquired or by a
178-26 subsequent lessee.
179-1 (b) A rental payment received by the state trust company in
179-2 a lease financing transaction under this section is considered to
179-3 be rent and not interest or compensation for the use, forbearance,
179-4 or detention of money. However, a lease financing transaction is
179-5 considered to be a loan or extension of credit for purposes of
179-6 Sections 184.201 and 184.202.
179-7 Sec. 184.204. GENERAL BANKING PRIVILEGES NOT CONFERRED.
179-8 This subchapter does not confer general banking privileges on a
179-9 state trust company.
179-10 (Sections 184.205-184.300 reserved for expansion
179-11 SUBCHAPTER D. TRUST DEPOSITS
179-12 Sec. 184.301. TRUST DEPOSITS. (a) A state trust company
179-13 may deposit trust funds with itself as an investment if:
179-14 (1) the deposit is authorized by the settlor or
179-15 beneficiary;
179-16 (2) the state trust company maintains as security for
179-17 the deposit a separate fund of securities, legal for trust
179-18 investments, under control of a federal reserve bank or a clearing
179-19 corporation, as defined by Section 8.102, Business & Commerce Code,
179-20 within or outside this state;
179-21 (3) the total market value of the security is at all
179-22 times at least equal to the amount of the deposit; and
179-23 (4) the separate fund is designated as a separate
179-24 fund.
179-25 (b) A state trust company may make periodic withdrawals from
179-26 or additions to a securities fund required by Subsection (a) as
180-1 long as the required value is maintained. Income from the
180-2 securities in the fund belongs to the state trust company.
180-3 (c) Security for a deposit under this section is not
180-4 required for a deposit under Subsection (a) to the extent the
180-5 deposit is insured by the Federal Deposit Insurance Corporation or
180-6 its successor.
180-7 Sec. 184.302. GENERAL BANKING PRIVILEGES NOT CONFERRED.
180-8 This subchapter does not confer general banking privileges on a
180-9 state trust company.
180-10 (Sections 184.303-184.400 reserved for expansion
180-11 SUBCHAPTER E. LIABILITIES AND PLEDGE OF ASSETS
180-12 Sec. 184.401. BORROWING LIMIT. Except with the prior
180-13 written approval of the banking commissioner, a state trust company
180-14 may not have outstanding liabilities, excluding trust deposit
180-15 liabilities arising under Section 184.301, that exceed an amount
180-16 equal to five times its restricted capital.
180-17 Sec. 184.402. PLEDGE OF ASSETS. (a) A state trust company
180-18 may not pledge or create a lien on any of its assets except to
180-19 secure:
180-20 (1) the repayment of money borrowed;
180-21 (2) trust deposits as specifically authorized or
180-22 required by:
180-23 (A) Section 184.301;
180-24 (B) Title 9, Property Code; or
180-25 (C) rules adopted under this chapter; or
180-26 (3) deposits made by:
181-1 (A) the United States;
181-2 (B) a state, county, or municipality; or
181-3 (C) an agency of the United States or a state,
181-4 county, or municipality.
181-5 (b) An act, deed, conveyance, pledge, or contract in
181-6 violation of this section is void.
181-7 CHAPTER 185. ENFORCEMENT ACTIONS
181-8 SUBCHAPTER A. ENFORCEMENT ORDERS
181-9 Sec. 185.001. DETERMINATION LETTER. (a) If the banking
181-10 commissioner determines from examination or other credible evidence
181-11 that a state trust company is in a condition that may warrant the
181-12 issuance of an enforcement order under this chapter, the banking
181-13 commissioner may notify the state trust company in writing of the
181-14 determination, the requirements the state trust company must
181-15 satisfy to abate the determination, and the time in which the
181-16 requirements must be satisfied to avert further administrative
181-17 action. The determination letter must be delivered by personal
181-18 delivery or by registered or certified mail, return receipt
181-19 requested.
181-20 (b) The determination letter may be issued in connection
181-21 with the issuance of a cease and desist, removal, or prohibition
181-22 order under this subchapter or an order of supervision or
181-23 conservatorship under Subchapter B.
181-24 Sec. 185.002. CEASE AND DESIST ORDER. (a) The banking
181-25 commissioner has grounds to issue a cease and desist order to an
181-26 officer, employee, director, manager, or managing participant of a
182-1 state trust company, or the state trust company itself acting
182-2 through an authorized person, if the banking commissioner
182-3 determines from examination or other credible evidence that the
182-4 state trust company or person directly or indirectly has:
182-5 (1) violated this subtitle or another applicable law
182-6 or rule;
182-7 (2) engaged in a breach of trust or other fiduciary
182-8 duty;
182-9 (3) refused to submit to examination or examination
182-10 under oath;
182-11 (4) conducted business in an unsafe or unsound manner;
182-12 or
182-13 (5) violated a condition of the state trust company's
182-14 charter or an agreement between the state trust company or the
182-15 person and the banking commissioner or the department.
182-16 (b) If the banking commissioner has grounds for action under
182-17 Subsection (a) and finds that an order to cease and desist from a
182-18 violation or other conduct described by Subsection (a) appears to
182-19 be necessary and in the best interest of a state trust company
182-20 involved and its clients, creditors, and shareholders or
182-21 participants, the banking commissioner may serve a proposed cease
182-22 and desist order on the state trust company and each person who
182-23 committed or participated in the violation. The order must:
182-24 (1) be delivered by personal delivery or by registered
182-25 or certified mail, return receipt requested;
182-26 (2) state with reasonable certainty the grounds for
183-1 the order; and
183-2 (3) state the effective date of the order, which may
183-3 not be earlier than the 21st day after the date the order is mailed
183-4 or delivered.
183-5 (c) The order takes effect if the state trust company or
183-6 person against whom the order is directed does not request a
183-7 hearing in writing before the effective date. After taking effect,
183-8 the order is final and nonappealable as to that state trust company
183-9 or person.
183-10 Sec. 185.003. REMOVAL OR PROHIBITION ORDER. (a) The
183-11 banking commissioner has grounds to remove a present or former
183-12 officer, director, manager, managing participant, or employee of a
183-13 state trust company from office or employment in, or prohibit a
183-14 controlling shareholder or participant or other person
183-15 participating in the affairs of the state trust company from
183-16 participation in the affairs of, the state trust company or a state
183-17 bank or other entity chartered or licensed by the banking
183-18 commissioner under the laws of this state if the banking
183-19 commissioner determines from examination or other credible evidence
183-20 that:
183-21 (1) the person:
183-22 (A) intentionally committed or participated in
183-23 the commission of an act described by Section 185.002(a) with
183-24 regard to the affairs of the state trust company; or
183-25 (B) violated a final cease and desist order
183-26 issued in response to the same or a similar act;
184-1 (2) because of that action by the person:
184-2 (A) the state trust company has suffered or will
184-3 probably suffer financial loss or other damage;
184-4 (B) the interests of the trust company's clients
184-5 have been or could be prejudiced; or
184-6 (C) the person has received financial gain or
184-7 other benefit by reason of the violation; and
184-8 (3) that action by the person:
184-9 (A) involves personal dishonesty on the part of
184-10 the person; or
184-11 (B) demonstrates wilful or continuing disregard
184-12 for the safety or soundness of the state trust company.
184-13 (b) If the banking commissioner has grounds for action under
184-14 Subsection (a) and finds that a removal or prohibition order
184-15 appears to be necessary and in the best interest of the state trust
184-16 company involved and its clients, creditors, and shareholders or
184-17 participants, the banking commissioner may serve a proposed removal
184-18 or prohibition order, as appropriate, on an officer, employee,
184-19 director, manager or managing participant, controlling shareholder
184-20 or participant, or other person alleged to have committed or
184-21 participated in the violation or other conduct described by Section
184-22 185.002(a). The order must:
184-23 (1) be delivered by personal delivery or by registered
184-24 or certified mail, return receipt requested;
184-25 (2) state with reasonable certainty the grounds for
184-26 removal or prohibition; and
185-1 (3) state the effective date of the order, which may
185-2 not be earlier than the 21st day after the date the order is mailed
185-3 or delivered.
185-4 (c) The order takes effect if the person against whom the
185-5 order is directed does not request a hearing in writing before the
185-6 effective date. After taking effect the order is final and
185-7 nonappealable as to that person.
185-8 Sec. 185.004. HEARING ON PROPOSED ORDER. (a) A requested
185-9 hearing on a proposed order shall be held not later than the 30th
185-10 day after the date the first request for a hearing on the order was
185-11 received by the banking commissioner unless the parties agree to a
185-12 later hearing date. Not later than the 11th day before the date of
185-13 the hearing, each party shall be given written notice by personal
185-14 delivery or by registered or certified mail, return receipt
185-15 requested, of the date set by the banking commissioner for the
185-16 hearing. At the hearing, the banking commissioner has the burden
185-17 of proof, and each person against whom the order is directed may
185-18 cross-examine witnesses and present evidence to show why the order
185-19 should not be issued.
185-20 (b) After the hearing, the banking commissioner shall issue
185-21 or decline to issue the order. The order may be modified as
185-22 necessary to conform to the findings at the hearing and to require
185-23 the board to take necessary affirmative action to correct the
185-24 conditions cited in the order.
185-25 (c) An order issued under this section is immediately final
185-26 for purposes of enforcement and appeal. The order may be appealed
186-1 as provided by Sections 181.202-181.204.
186-2 Sec. 185.005. EMERGENCY ORDER. (a) If the banking
186-3 commissioner believes that immediate action is needed to prevent
186-4 immediate and irreparable harm to the state trust company and its
186-5 clients, creditors, and shareholders or participants, the banking
186-6 commissioner may issue one or more cease and desist, removal, or
186-7 prohibition orders as emergency orders to become effective
186-8 immediately on service without prior notice or hearing. Service
186-9 must be by personal delivery or by registered or certified mail,
186-10 return receipt requested.
186-11 (b) In each emergency order the banking commissioner shall
186-12 notify the state trust company and any person against whom the
186-13 order is directed of:
186-14 (1) the specific conduct requiring the order;
186-15 (2) the citation of each statute or rule alleged to
186-16 have been violated;
186-17 (3) the immediate and irreparable harm alleged to be
186-18 threatened; and
186-19 (4) the right to a hearing.
186-20 (c) Unless a person against whom the order is directed
186-21 requests a hearing in writing before the 11th day after the date
186-22 the order is served on the person, the order is final and
186-23 nonappealable as to that person.
186-24 (d) A hearing requested under Subsection (c) must be:
186-25 (1) given priority over all other matters pending
186-26 before the banking commissioner; and
187-1 (2) held not later than the 20th day after the date
187-2 the hearing is requested unless the parties agree to a later
187-3 hearing date.
187-4 (e) After the hearing, the banking commissioner may affirm,
187-5 modify, or set aside in whole or part the emergency order. An
187-6 order affirming or modifying the order is immediately final for
187-7 purposes of enforcement and appeal. The order may be appealed as
187-8 provided by Sections 181.202-181.204.
187-9 (f) An emergency order continues in effect unless the order
187-10 is stayed by the banking commissioner. The banking commissioner
187-11 may impose any condition before granting a stay of the emergency
187-12 order.
187-13 Sec. 185.006. COPY OF LETTER OR ORDER IN STATE TRUST COMPANY
187-14 RECORDS. A copy of any determination letter, proposed order,
187-15 emergency order, or final order issued by the banking commissioner
187-16 under this subchapter shall be immediately brought to the attention
187-17 of the board of the affected state trust company, regardless of
187-18 whether the state trust company is a party, and filed in the
187-19 minutes of the board. Each director, manager, or managing
187-20 participant shall immediately certify to the banking commissioner
187-21 in writing that the certifying person has read and understood the
187-22 determination letter, proposed order, emergency order, or final
187-23 order. The required certification may not be considered an
187-24 admission of a person in a subsequent legal or administrative
187-25 proceeding.
187-26 Sec. 185.007. EFFECT OF FINAL REMOVAL OR PROHIBITION ORDER.
188-1 (a) Without the prior written approval of the banking
188-2 commissioner, a person subject to a final and enforceable removal
188-3 or prohibition order issued by the banking commissioner under this
188-4 subchapter may not:
188-5 (1) serve as a director, officer, or employee of any
188-6 state trust company, state bank, or other entity chartered or
188-7 licensed by the banking commissioner under the laws of this state
188-8 while the order is in effect;
188-9 (2) directly or indirectly participate in any manner
188-10 in the management of such an entity;
188-11 (3) directly or indirectly vote for a director of such
188-12 an entity; or
188-13 (4) solicit, procure, transfer, attempt to transfer,
188-14 vote, or attempt to vote a proxy, consent, or authorization with
188-15 respect to voting rights in such an entity.
188-16 (b) The person subject to the order remains entitled to
188-17 receive dividends or a share of profits, return of contribution, or
188-18 other distributive benefit from an entity identified in Subsection
188-19 (a)(1) with respect to voting securities in the entity owned by the
188-20 person.
188-21 (c) If voting securities of an entity identified in
188-22 Subsection (a)(1) cannot be voted under this section, the voting
188-23 securities are considered to be authorized but unissued for
188-24 purposes of determining the procedures for and results of the
188-25 affected vote.
188-26 (d) Participants of a limited trust association in which a
189-1 participant has been finally removed or prohibited from
189-2 participation in the state trust company's affairs under this
189-3 subchapter shall elect a board of managers.
189-4 (e) This section and Section 185.008 do not prohibit a
189-5 removal or prohibition order that has indefinite duration or that
189-6 by its terms is perpetual.
189-7 Sec. 185.008. LIMITATION ON ACTION. The banking
189-8 commissioner may not initiate an enforcement action under this
189-9 subchapter later than the fifth anniversary of the date the banking
189-10 commissioner discovered or reasonably should have discovered the
189-11 conduct involved.
189-12 Sec. 185.009. ENFORCEMENT OF FINAL ORDER. (a) If the
189-13 banking commissioner reasonably believes that a state trust company
189-14 or person has violated a final and enforceable cease and desist,
189-15 removal, or prohibition order issued under this subchapter, the
189-16 banking commissioner may:
189-17 (1) initiate administrative penalty proceedings
189-18 against the state trust company under Section 185.010;
189-19 (2) refer the matter to the attorney general for
189-20 enforcement by injunction or other available remedy; or
189-21 (3) pursue any other action the banking commissioner
189-22 considers appropriate under applicable law.
189-23 (b) If the attorney general prevails in an action brought
189-24 under Subsection (a)(2), the attorney general is entitled to
189-25 recover reasonable attorney's fees from a state trust company or
189-26 person violating the order.
190-1 Sec. 185.010. ADMINISTRATIVE PENALTY. (a) The banking
190-2 commissioner may initiate a proceeding for an administrative
190-3 penalty against a state trust company by serving on the state trust
190-4 company notice of the time and place of a hearing on the penalty.
190-5 The hearing may not be held earlier than the 20th day after the
190-6 date the notice is served. The notice must:
190-7 (1) be served by personal delivery or registered or
190-8 certified mail, return receipt requested; and
190-9 (2) contain a statement of the conduct alleged to be
190-10 in violation of the order.
190-11 (b) In determining whether an order has been violated, the
190-12 banking commissioner shall consider the maintenance of procedures
190-13 reasonably adopted to ensure compliance with the order.
190-14 (c) If the banking commissioner determines after the hearing
190-15 that an order has been violated, the banking commissioner may
190-16 impose an administrative penalty against a state trust company in
190-17 an amount not to exceed $500 for each day the state trust company
190-18 violates the final order.
190-19 Sec. 185.011. PAYMENT OR APPEAL OF ADMINISTRATIVE PENALTY.
190-20 (a) When a penalty order under Section 185.010 becomes final, a
190-21 state trust company shall pay the penalty or appeal by filing a
190-22 petition for judicial review.
190-23 (b) The petition for judicial review stays the penalty order
190-24 during the period preceding the decision of the court. If the
190-25 court sustains the order, the court shall order the state trust
190-26 company to pay the full amount of the penalty or a lower amount
191-1 determined by the court. If the court does not sustain the order,
191-2 a penalty is not owed. If the final judgment of the court requires
191-3 payment of a penalty, interest accrues on the penalty, at the rate
191-4 charged on loans to depository institutions by the New York Federal
191-5 Reserve Bank, beginning on the date the judgment is final and
191-6 ending on the date the penalty and interest are paid.
191-7 (c) If the state trust company does not pay the penalty
191-8 imposed under a final and nonappealable penalty order, the banking
191-9 commissioner shall refer the matter to the attorney general for
191-10 enforcement. The attorney general is entitled to recover
191-11 reasonable attorney's fees from the state trust company if the
191-12 attorney general prevails in judicial action necessary for
191-13 collection of the penalty.
191-14 Sec. 185.012. CONFIDENTIALITY OF RECORDS. A copy of a
191-15 notice, correspondence, transcript, pleading, or other document in
191-16 the records of the department relating to an order issued under
191-17 this subchapter is confidential and may be released only as
191-18 provided by Subchapter D, Chapter 181, except that the banking
191-19 commissioner periodically shall publish all final removal and
191-20 prohibition orders. The banking commissioner may release a final
191-21 cease and desist order or information relating to the existence of
191-22 the order to the public if the banking commissioner concludes that
191-23 the release would enhance effective enforcement of the order.
191-24 Sec. 185.013. COLLECTION OF FEES. The banking commissioner
191-25 may sue to enforce the collection of a fee owed to the department
191-26 under a law administered by the banking commissioner. In the suit
192-1 a certificate by the banking commissioner showing the delinquency
192-2 is prima facie evidence of:
192-3 (1) the levy of the fee or the delinquency of the
192-4 stated fee amount; and
192-5 (2) compliance by the banking commissioner with the
192-6 law relating to the computation and levy of the fee.
192-7 (Sections 185.014-185.100 reserved for expansion
192-8 SUBCHAPTER B. SUPERVISION AND CONSERVATORSHIP
192-9 Sec. 185.101. ORDER OF SUPERVISION. (a) The banking
192-10 commissioner by order may appoint a supervisor over a state trust
192-11 company if the banking commissioner determines from examination or
192-12 other credible evidence that the state trust company is in
192-13 hazardous condition and that an order of supervision appears to be
192-14 necessary and in the best interest of the state trust company and
192-15 its clients, creditors, and shareholders or participants, or the
192-16 public.
192-17 (b) The banking commissioner may issue the order without
192-18 prior notice.
192-19 (c) The supervisor serves until the earlier of:
192-20 (1) the expiration of the period stated in the order
192-21 of supervision; or
192-22 (2) the date the banking commissioner determines that
192-23 the requirements for abatement of the order have been satisfied.
192-24 Sec. 185.102. ORDER OF CONSERVATORSHIP. (a) The banking
192-25 commissioner by order may appoint a conservator for a state trust
192-26 company if the banking commissioner determines from examination or
193-1 other credible evidence that the state trust company is in
193-2 hazardous condition and immediate and irreparable harm is
193-3 threatened to the state trust company, its clients, creditors, or
193-4 shareholders or participants, or the public.
193-5 (b) The banking commissioner may issue the order without
193-6 prior notice at any time before, during, or after the period of
193-7 supervision.
193-8 (c) An order of conservatorship issued under this section
193-9 must specifically state the basis for the order.
193-10 Sec. 185.103. HEARING. (a) An order issued under Section
193-11 185.101 or 185.102 must contain or be accompanied by a notice that,
193-12 at the request of the state trust company, a hearing will be held
193-13 before the banking commissioner at which the state trust company
193-14 may cross-examine witnesses and present evidence to contest the
193-15 order or show that it has satisfied all requirements for abatement
193-16 of the order. The banking commissioner has the burden of proof for
193-17 any continuation of the order or the issuance of a new order.
193-18 (b) To contest or modify the order or demonstrate that it
193-19 has satisfied all requirements for abatement of the order, the
193-20 state trust company shall submit to the banking commissioner a
193-21 written request for a hearing. The request must state the grounds
193-22 for the request to set aside or modify the order. On receiving a
193-23 request for hearing, the banking commissioner shall serve notice of
193-24 the time and place of the hearing, which must be not later than the
193-25 10th day after the date the banking commissioner receives the
193-26 request for a hearing unless the parties agree to a later hearing
194-1 date. The notice must be delivered by personal delivery or by
194-2 registered or certified mail, return receipt requested.
194-3 (c) The banking commissioner may:
194-4 (1) delay a decision for a prompt examination of the
194-5 state trust company; and
194-6 (2) reopen the record as necessary to allow
194-7 presentation of the results of the examination and appropriate
194-8 opportunity for cross-examination and presentation of other
194-9 relevant evidence.
194-10 Sec. 185.104. POST-HEARING ORDER. (a) If after the hearing
194-11 the banking commissioner finds that the state trust company has
194-12 been rehabilitated, that its hazardous condition has been remedied,
194-13 that irreparable harm is no longer threatened, or that the state
194-14 trust company should otherwise be released from the order, the
194-15 banking commissioner shall release the state trust company from the
194-16 order, subject to conditions the banking commissioner from the
194-17 evidence believes are warranted to preserve the safety and
194-18 soundness of the state trust company.
194-19 (b) If after the hearing the banking commissioner finds that
194-20 the state trust company has failed to comply with the lawful
194-21 requirements of the banking commissioner, has not been
194-22 rehabilitated, is insolvent, or otherwise continues in hazardous
194-23 condition, the banking commissioner by order shall:
194-24 (1) appoint or reappoint a supervisor pursuant to
194-25 Section 185.101;
194-26 (2) appoint or reappoint a conservator pursuant to
195-1 Section 185.102; or
195-2 (3) take other appropriate action authorized by law.
195-3 (c) An order issued under Subsection (b) is immediately
195-4 final for purposes of appeal. The order may be appealed as
195-5 provided by Sections 181.202-181.204.
195-6 Sec. 185.105. CONFIDENTIALITY OF RECORDS. An order issued
195-7 under this subchapter and a copy of a notice, correspondence,
195-8 transcript, pleading, or other document in the records of the
195-9 department relating to the order are confidential and may be
195-10 released only as provided by Subchapter D, Chapter 181, except that
195-11 the banking commissioner may release to the public an order or
195-12 information relating to the existence of an order if the banking
195-13 commissioner concludes that the release would enhance effective
195-14 enforcement of the order.
195-15 Sec. 185.106. DUTIES OF STATE TRUST COMPANY UNDER
195-16 SUPERVISION. During a period of supervision, a state trust
195-17 company, without the prior approval of the banking commissioner or
195-18 the supervisor or as otherwise permitted or restricted by the order
195-19 of supervision, may not:
195-20 (1) dispose of, sell, transfer, convey, or encumber
195-21 the state trust company's assets;
195-22 (2) lend or invest the state trust company's funds;
195-23 (3) incur a debt, obligation, or liability;
195-24 (4) pay a cash dividend to the state trust company's
195-25 shareholders or participants; or
195-26 (5) solicit or accept any new client accounts.
196-1 Sec. 185.107. POWERS AND DUTIES OF CONSERVATOR. (a) A
196-2 conservator appointed under this subchapter shall immediately take
196-3 charge of the state trust company and all of its property, books,
196-4 records, and affairs on behalf and at the direction and control of
196-5 the banking commissioner.
196-6 (b) Subject to any limitation contained in the order of
196-7 appointment or other direction of the banking commissioner, the
196-8 conservator has all the powers of the directors, managers, managing
196-9 participants, officers, and shareholders or participants of a state
196-10 trust company and shall conduct the business of the state trust
196-11 company and take all steps the conservator considers appropriate to
196-12 remove the causes and conditions requiring the conservatorship.
196-13 During the conservatorship, the board may not direct or participate
196-14 in the affairs of the state trust company.
196-15 (c) Except as otherwise provided by this subchapter, by
196-16 rules adopted under this subtitle, or by Section 12.106, the
196-17 conservator has the rights and privileges and is subject to the
196-18 duties, restrictions, penalties, conditions, and limitations of the
196-19 directors, officers, and employees of state trust companies.
196-20 Sec. 185.108. QUALIFICATIONS OF APPOINTEE. The banking
196-21 commissioner may appoint as a supervisor or conservator any person
196-22 who in the judgment of the banking commissioner is qualified to
196-23 serve. The banking commissioner may serve as, or may appoint an
196-24 employee of the department to serve as, a supervisor or
196-25 conservator.
196-26 Sec. 185.109. EXPENSES. (a) The banking commissioner shall
197-1 determine and approve the reasonable expenses attributable to the
197-2 service of a supervisor or conservator, including costs incurred by
197-3 the department and the compensation and expenses of the supervisor
197-4 or conservator and any professional employees appointed to
197-5 represent or assist the supervisor or conservator. The banking
197-6 commissioner or an employee of the department may not receive
197-7 compensation in addition to salary for serving as supervisor or
197-8 conservator, but the department may receive reimbursement for the
197-9 fully allocated personnel cost associated with service of the
197-10 banking commissioner or an employee as supervisor or conservator.
197-11 (b) All approved expenses shall be paid by the state trust
197-12 company as the banking commissioner determines. The banking
197-13 commissioner has a lien against the assets and funds of the state
197-14 trust company to secure payment of approved expenses. The lien has
197-15 a higher priority than any other lien against the state trust
197-16 company.
197-17 (c) Notwithstanding any other provision of this subchapter,
197-18 the state trust company may employ an attorney and other persons
197-19 the state trust company selects to assist the state trust company
197-20 in contesting or satisfying the requirements of an order of
197-21 supervision or conservatorship. The banking commissioner shall
197-22 authorize the payment of reasonable fees and expenses from the
197-23 state trust company for the attorney or other persons as expenses
197-24 of the supervision or conservatorship.
197-25 (d) The banking commissioner may defer collection of
197-26 assessment and examination fees by the department from the state
198-1 trust company during a period of supervision or conservatorship if
198-2 deferral appears to aid prospects for rehabilitation. As a
198-3 condition of release from supervision or conservatorship, the
198-4 banking commissioner may require the rehabilitated state trust
198-5 company to pay or develop a reasonable plan for payment of deferred
198-6 fees.
198-7 Sec. 185.110. REVIEW OF SUPERVISOR OR CONSERVATOR DECISIONS.
198-8 (a) Notwithstanding Section 185.107(b), a majority of the state
198-9 trust company's board, acting directly or through counsel who
198-10 affirmatively represents that the requisite majority has been
198-11 obtained, may request in writing that the banking commissioner
198-12 review an action taken or proposed by the supervisor or
198-13 conservator. The request must specify why the action would not be
198-14 in the best interest of the state trust company. The banking
198-15 commissioner shall investigate to the extent necessary and make a
198-16 prompt written ruling on the request. If the action has not yet
198-17 been taken or if the effect of the action can be postponed, the
198-18 banking commissioner may stay the action on request pending review.
198-19 (b) If a majority of the state trust company's board objects
198-20 to the banking commissioner's ruling, the majority may request a
198-21 hearing before the banking commissioner. The request must be made
198-22 not later than the 10th day after the date the state trust company
198-23 is notified of the ruling.
198-24 (c) The banking commissioner shall give the board notice of
198-25 the time and place of the hearing by personal delivery or by
198-26 registered or certified mail, return receipt requested. The
199-1 hearing may not be held later than the 10th day after the date the
199-2 banking commissioner receives the request for a hearing unless the
199-3 parties agree to a later hearing date. At the hearing the board
199-4 has the burden of proof to demonstrate that the action is not in
199-5 the best interest of the state trust company.
199-6 (d) After the hearing, the banking commissioner may affirm,
199-7 modify, or set aside in whole or part the prior ruling. An order
199-8 supporting the action contested by the board is immediately final
199-9 for purposes of appeal. The order may be appealed as provided by
199-10 Sections 181.202-181.204. If the order is appealed to the finance
199-11 commission, the finance commission may:
199-12 (1) affirm, terminate, or modify the order;
199-13 (2) continue or end supervision or conservatorship;
199-14 and
199-15 (3) order further relief as justice, equity, and
199-16 protection of clients, creditors, and the public require.
199-17 Sec. 185.111. SUIT FILED AGAINST OR ON BEHALF OF STATE TRUST
199-18 COMPANY UNDER SUPERVISION OR CONSERVATORSHIP. (a) A suit filed
199-19 against a state trust company while the state trust company is
199-20 under conservatorship, or against a person in connection with an
199-21 action taken or decision made by that person as a supervisor or
199-22 conservator of a state trust company, must be brought in Travis
199-23 County regardless of whether the state trust company remains under
199-24 an order of supervision or conservatorship.
199-25 (b) A conservator may sue a person on the trust company's
199-26 behalf to preserve, protect, or recover state trust company assets,
200-1 including claims or causes of action. The suit may be in:
200-2 (1) Travis County; or
200-3 (2) another location where jurisdiction and venue
200-4 against that person may be obtained under law.
200-5 Sec. 185.112. DURATION. A supervisor or conservator serves
200-6 for the period necessary to accomplish the purposes of the
200-7 supervision or conservatorship as intended by this subchapter. A
200-8 rehabilitated state trust company shall be returned to its former
200-9 or new management under conditions reasonable and necessary to
200-10 prevent recurrence of the conditions causing the supervision or
200-11 conservatorship.
200-12 Sec. 185.113. ADMINISTRATIVE ELECTION OF REMEDIES. The
200-13 banking commissioner may take any action authorized under Chapter
200-14 186 regardless of the existence of supervision or conservatorship.
200-15 A period of supervision or conservatorship is not required before a
200-16 trust company is closed for liquidation or other remedial action is
200-17 taken.
200-18 Sec. 185.114. RELEASE BEFORE HEARING. This subchapter does
200-19 not prevent release of a state trust company from supervision or
200-20 conservatorship before a hearing if the banking commissioner is
200-21 satisfied that requirements for abatement have been adequately
200-22 satisfied.
200-23 (Sections 185.115-185.200 reserved for expansion
201-1 SUBCHAPTER C. UNAUTHORIZED TRUST ACTIVITY: INVESTIGATION
201-2 AND ENFORCEMENT
201-3 Sec. 185.201. INVESTIGATION OF UNAUTHORIZED TRUST ACTIVITY.
201-4 (a) If the banking commissioner has reason to believe that a
201-5 person has engaged, is engaging, or is likely to engage in an
201-6 unauthorized trust activity, the banking commissioner may:
201-7 (1) investigate as necessary within or outside this
201-8 state to:
201-9 (A) determine whether the unauthorized trust
201-10 activity has occurred or is likely to occur; or
201-11 (B) aid in the enforcement of the laws
201-12 administered by the banking commissioner;
201-13 (2) initiate appropriate disciplinary action as
201-14 provided by this subchapter; and
201-15 (3) report any unauthorized trust activity to a law
201-16 enforcement agency or another regulatory agency with appropriate
201-17 jurisdiction.
201-18 (b) The banking commissioner may:
201-19 (1) on written request furnish to a law enforcement
201-20 agency evidence the banking commissioner has compiled in connection
201-21 with the unauthorized activity, including materials, documents,
201-22 reports, and complaints; and
201-23 (2) assist the law enforcement agency or other
201-24 regulatory agency as requested.
201-25 (c) A person acting without malice, fraudulent intent, or
201-26 bad faith is not subject to liability, including liability for
202-1 libel, slander, or other relevant tort, because the person files a
202-2 report or furnishes, orally or in writing, information concerning a
202-3 suspected, anticipated, or completed unauthorized activity to a law
202-4 enforcement agency, the banking commissioner or another regulatory
202-5 agency with appropriate jurisdiction, or an agent or employee of a
202-6 law enforcement agency, the banking commissioner, or other
202-7 regulatory agency. The person is entitled to attorney's fees and
202-8 court costs if the person prevails in an action for libel, slander,
202-9 or any other relevant tort based on the report or other information
202-10 the person furnished as provided by this subchapter.
202-11 (d) This section does not:
202-12 (1) affect or modify a common law or statutory
202-13 privilege or immunity;
202-14 (2) preempt the authority or relieve the duty of a law
202-15 enforcement agency or other regulatory agency with appropriate
202-16 jurisdiction to investigate and prosecute suspected criminal acts;
202-17 (3) prohibit a person from voluntarily disclosing
202-18 information to a law enforcement agency or other regulatory agency;
202-19 or
202-20 (4) limit a power or duty granted to the banking
202-21 commissioner under this subtitle or other law.
202-22 Sec. 185.202. SUBPOENA AUTHORITY. (a) This section applies
202-23 only to an investigation of an unauthorized trust activity as
202-24 provided by Section 185.201, and does not affect the conduct of a
202-25 contested case under Chapter 2001, Government Code.
202-26 (b) The banking commissioner may issue a subpoena to compel
203-1 the attendance and testimony of a witness or the production of a
203-2 book, account, record, paper, or correspondence relating to a
203-3 matter that the banking commissioner has authority to consider or
203-4 investigate at the department's offices in Austin or at another
203-5 place the banking commissioner designates.
203-6 (c) The subpoena must be signed and issued by the banking
203-7 commissioner or the deputy banking commissioner.
203-8 (d) A person who is required by subpoena to attend a
203-9 proceeding before the banking commissioner is entitled to receive:
203-10 (1) reimbursement for mileage, in the amount provided
203-11 for travel by a state employee, for traveling to or returning from
203-12 a proceeding that is more than 25 miles from the witness's
203-13 residence; and
203-14 (2) a fee for each day or part of a day the witness is
203-15 necessarily present as a witness in an amount equal to the per diem
203-16 travel allowance of a state employee.
203-17 (e) The banking commissioner may serve the subpoena or have
203-18 it served by an authorized agent of the banking commissioner, a
203-19 sheriff, or a constable. The sheriff or constable's fee for
203-20 serving the subpoena is the same as the fee paid the sheriff or
203-21 constable for similar services.
203-22 (f) A person possessing materials located outside this state
203-23 that are requested by the banking commissioner may make the
203-24 materials available to the banking commissioner or a representative
203-25 of the banking commissioner for examination at the place where the
203-26 materials are located. The banking commissioner may:
204-1 (1) designate a representative, including an official
204-2 of the state in which the materials are located, to examine the
204-3 materials; and
204-4 (2) respond to a similar request from an official of
204-5 another state, the United States, or a foreign country.
204-6 (g) A subpoena issued under this section to a financial
204-7 institution is not subject to Section 30.007, Civil Practice and
204-8 Remedies Code.
204-9 Sec. 185.203. ENFORCEMENT OF SUBPOENA. (a) If necessary,
204-10 the banking commissioner may apply to a district court in Travis
204-11 County or in the county in which the subpoena was served for
204-12 enforcement of the subpoena, and the court may issue an order
204-13 compelling compliance.
204-14 (b) If the court orders compliance with the subpoena or
204-15 finds the person in contempt for failure to obey the order, the
204-16 banking commissioner, or the attorney general if representing the
204-17 banking commissioner, may recover reasonable court costs,
204-18 attorney's fees, and investigative costs incurred in the
204-19 proceeding.
204-20 Sec. 185.204. CONFIDENTIALITY OF SUBPOENAED RECORDS. (a) A
204-21 book, account, record, paper, correspondence, or other document
204-22 subpoenaed and produced under Section 185.202 that is otherwise
204-23 made privileged or confidential by law remains privileged or
204-24 confidential unless admitted into evidence at an administrative
204-25 hearing or in a court. The banking commissioner may issue an order
204-26 protecting the confidentiality or privilege of the document and
205-1 restricting its use or distribution by any person or in any
205-2 proceeding, other than a proceeding before the banking
205-3 commissioner.
205-4 (b) Subject to Subchapter D, Chapter 181, and
205-5 confidentiality provisions of other law administered by the banking
205-6 commissioner, information or material acquired under Section
205-7 185.202 under a subpoena is not a public record for the period the
205-8 banking commissioner considers reasonably necessary to complete the
205-9 investigation, protect the person being investigated from
205-10 unwarranted injury, or serve the public interest. The information
205-11 or material is not subject to a subpoena, except a grand jury
205-12 subpoena, until released for public inspection by the banking
205-13 commissioner or, after notice and a hearing, a district court
205-14 determines that the public interest and any investigation by the
205-15 banking commissioner would not be jeopardized by obeying the
205-16 subpoena. The district court order may not apply to:
205-17 (1) a record or communication received from another
205-18 law enforcement or regulatory agency except on compliance with the
205-19 confidentiality laws governing the records of the other agency; or
205-20 (2) an internal note, memorandum, report, or
205-21 communication made in connection with a matter that the banking
205-22 commissioner has the authority to consider or investigate, except
205-23 on good cause and compliance with applicable confidentiality laws.
205-24 Sec. 185.205. EVIDENCE. (a) On certification by the
205-25 banking commissioner, a book, record, paper, or document produced
205-26 or testimony taken as provided by Section 185.202 and held by the
206-1 department is admissible as evidence in any case without prior
206-2 proof of its correctness and without other proof. The certified
206-3 book, record, document, or paper, or a certified copy, is prima
206-4 facie evidence of the facts it contains.
206-5 (b) This section does not limit another provision of this
206-6 subtitle or a law that provides for the admission of evidence or
206-7 its evidentiary value.
206-8 Sec. 185.206. CEASE AND DESIST ORDER REGARDING UNAUTHORIZED
206-9 TRUST ACTIVITY. (a) The banking commissioner may serve a proposed
206-10 cease and desist order on a person the banking commissioner
206-11 believes is engaging or is likely to engage in an unauthorized
206-12 trust activity. The order must:
206-13 (1) be delivered by personal delivery or registered or
206-14 certified mail, return receipt requested, to the person's last
206-15 known address;
206-16 (2) state the acts or practices alleged to be an
206-17 unauthorized activity; and
206-18 (3) state the effective date of the order, which may
206-19 not be earlier than the 21st day after the date the proposed order
206-20 is mailed or delivered.
206-21 (b) Unless the person against whom the proposed order is
206-22 directed requests a hearing in writing before the effective date of
206-23 the proposed order, the order takes effect and is final and
206-24 nonappealable as to that person.
206-25 (c) A requested hearing on a proposed order shall be held
206-26 not later than the 30th day after the date the first written
207-1 request for a hearing on the order is received by the banking
207-2 commissioner unless the parties agree to a later hearing date. At
207-3 the hearing, the banking commissioner has the burden of proof and
207-4 must present evidence in support of the order. Each person against
207-5 whom the order is directed may cross-examine witnesses and show
207-6 cause why the order should not be issued.
207-7 (d) After the hearing, the banking commissioner shall issue
207-8 or decline to issue a cease and desist order. The proposed order
207-9 may be modified as necessary to conform to the findings at the
207-10 hearing. An order issued under this subsection:
207-11 (1) is immediately final for purposes of enforcement
207-12 and appeal; and
207-13 (2) must require the person to immediately cease and
207-14 desist from the unauthorized trust activity.
207-15 (e) The banking commissioner may release a final cease and
207-16 desist order issued under this section or information relating to
207-17 the existence of the order to the public if the banking
207-18 commissioner finds that the release would enhance the effective
207-19 enforcement of the order or will serve the public interest.
207-20 Sec. 185.207. EMERGENCY CEASE AND DESIST ORDER. (a) The
207-21 banking commissioner may issue an emergency cease and desist order
207-22 to a person who the banking commissioner reasonably believes is
207-23 engaging in a continuing unauthorized trust activity that is
207-24 fraudulent or threatens immediate and irreparable public harm.
207-25 (b) The order must:
207-26 (1) be delivered on issuance to each person affected
208-1 by the order by personal delivery or registered or certified mail,
208-2 return receipt requested, to the person's last known address;
208-3 (2) state the specific charges and require the person
208-4 immediately to cease and desist from the unauthorized activity; and
208-5 (3) contain a notice that a request for hearing may be
208-6 filed under this section.
208-7 (c) Unless a person against whom the emergency order is
208-8 directed requests a hearing in writing before the 11th day after
208-9 the date it is served on the person, the emergency order is final
208-10 and nonappealable as to that person. A request for a hearing must:
208-11 (1) be in writing and directed to the banking
208-12 commissioner; and
208-13 (2) state the grounds for the request to set aside or
208-14 modify the order.
208-15 (d) On receiving a request for a hearing, the banking
208-16 commissioner shall serve notice of the time and place of the
208-17 hearing by personal delivery or registered or certified mail,
208-18 return receipt requested. The hearing must be held not later than
208-19 the 10th day after the date the banking commissioner receives the
208-20 request for a hearing unless the parties agree to a later hearing
208-21 date. At the hearing, the banking commissioner has the burden of
208-22 proof and must present evidence in support of the order. The
208-23 person requesting the hearing may cross-examine witnesses and show
208-24 cause why the order should not be affirmed.
208-25 (e) After the hearing, the banking commissioner shall
208-26 affirm, modify, or set aside in whole or part the emergency cease
209-1 and desist order. An order affirming or modifying the emergency
209-2 cease and desist order is immediately final for purposes of
209-3 enforcement and appeal.
209-4 (f) An order continues in effect unless the order is stayed
209-5 by the banking commissioner. The banking commissioner may impose
209-6 any condition before granting a stay of the order.
209-7 (g) The banking commissioner may release a final cease and
209-8 desist order issued under this section or information regarding the
209-9 existence of the order to the public if the banking commissioner
209-10 finds that the release would enhance the effective enforcement of
209-11 the order or will serve the public interest.
209-12 Sec. 185.208. APPEAL OF CEASE AND DESIST ORDER. (a) A
209-13 person affected by a cease and desist order issued, affirmed, or
209-14 modified after a hearing may file a petition for judicial review.
209-15 (b) A filed petition for judicial review does not stay or
209-16 vacate the order unless the court, after hearing, specifically
209-17 stays or vacates the order.
209-18 Sec. 185.209. VIOLATION OF FINAL CEASE AND DESIST ORDER.
209-19 (a) If the banking commissioner reasonably believes that a person
209-20 has violated a final and enforceable cease and desist order, the
209-21 banking commissioner may:
209-22 (1) initiate administrative penalty proceedings under
209-23 Section 185.210;
209-24 (2) refer the matter to the attorney general for
209-25 enforcement by injunction and any other available remedy; or
209-26 (3) pursue any other action the banking commissioner
210-1 considers appropriate under applicable law.
210-2 (b) If the attorney general prevails in an action brought
210-3 under Subsection (a)(2), the attorney general is entitled to
210-4 reasonable attorney's fees.
210-5 Sec. 185.210. ADMINISTRATIVE PENALTY. (a) The banking
210-6 commissioner may initiate an action for an administrative penalty
210-7 against a person for a violation of a cease and desist order by
210-8 serving on the person notice of the time and place of a hearing on
210-9 the penalty. The notice must be delivered by personal delivery or
210-10 registered or certified mail, return receipt requested, to the
210-11 person's last known address. The hearing may not be held earlier
210-12 than the 20th day after the date the notice is served. The notice
210-13 must contain a statement of the facts or conduct alleged to be in
210-14 violation of the cease and desist order.
210-15 (b) In determining whether a cease and desist order has been
210-16 violated, the banking commissioner shall consider the maintenance
210-17 of procedures reasonably adopted to ensure compliance with the
210-18 order.
210-19 (c) If the banking commissioner after the hearing determines
210-20 that a cease and desist order has been violated, the banking
210-21 commissioner may:
210-22 (1) impose an administrative penalty in an amount not
210-23 to exceed $25,000 for each separate act of unauthorized activity;
210-24 (2) direct the person against whom the order was
210-25 issued to make complete restitution, in the form and amount and
210-26 within the period determined by the banking commissioner, to each
211-1 resident of this state and entity operating in this state damaged
211-2 by the violation; or
211-3 (3) both impose the penalty and direct restitution.
211-4 (d) In determining the amount of the penalty and whether to
211-5 impose restitution, the banking commissioner shall consider:
211-6 (1) the seriousness of the violation, including the
211-7 nature, circumstances, extent, and gravity of any prohibited act;
211-8 (2) the economic harm caused by the violation;
211-9 (3) the history of previous violations;
211-10 (4) the amount necessary to deter future violations;
211-11 (5) efforts to correct the violation;
211-12 (6) whether the violation was intentional or
211-13 unintentional;
211-14 (7) the financial ability of the person against whom
211-15 the penalty is to be assessed; and
211-16 (8) any other matter that justice may require.
211-17 Sec. 185.211. PAYMENT AND APPEAL OF ADMINISTRATIVE PENALTY.
211-18 (a) When an administrative penalty order under Section 185.210
211-19 becomes final, a person affected by the order, within the time
211-20 permitted by law for appeal, shall:
211-21 (1) pay the amount of the penalty;
211-22 (2) pay the amount of the penalty and file a petition
211-23 for judicial review contesting the occurrence of the violation, the
211-24 amount of the penalty, or both; or
211-25 (3) without paying the amount of the penalty, file a
211-26 petition for judicial review contesting the occurrence of the
212-1 violation, the amount of the penalty, or both.
212-2 (b) Within the time permitted by law for appeal, a person
212-3 who acts under Subsection (a)(3) may:
212-4 (1) stay enforcement of the penalty by:
212-5 (A) paying the amount of the penalty to the
212-6 court for placement in an escrow account; or
212-7 (B) giving the court a supersedeas bond that is
212-8 approved by the court for the amount of the penalty and that is
212-9 effective until all judicial review of the order is final; or
212-10 (2) request the court to stay enforcement of the
212-11 penalty by:
212-12 (A) filing with the court a sworn affidavit of
212-13 the person stating that the person is financially unable to pay the
212-14 amount of the penalty and is financially unable to give the
212-15 supersedeas bond; and
212-16 (B) giving a copy of the affidavit to the
212-17 banking commissioner by certified mail.
212-18 (c) Not later than the fifth day after the date the banking
212-19 commissioner receives a copy of an affidavit under Subsection
212-20 (b)(2), the banking commissioner may file with the court a contest
212-21 to the affidavit. The court shall hold a hearing on the facts
212-22 alleged in the affidavit as soon as practicable and shall stay the
212-23 enforcement of the penalty on finding that the alleged facts are
212-24 true. The person who files an affidavit has the burden of proving
212-25 that the person is financially unable to pay the amount of the
212-26 penalty and to give a supersedeas bond.
213-1 (d) If the person does not pay the amount of the penalty and
213-2 the enforcement of the penalty is not stayed, the banking
213-3 commissioner may refer the matter to the attorney general for
213-4 collection of the amount of the penalty.
213-5 Sec. 185.212. JUDICIAL REVIEW OF ADMINISTRATIVE PENALTY.
213-6 (a) If on judicial review the court sustains the penalty order,
213-7 the court shall order the person to pay the full amount of the
213-8 penalty or a lower amount determined by the court. If the court
213-9 does not sustain the order, a penalty is not owed.
213-10 (b) When the judgment of the court becomes final, if the
213-11 person paid the amount of the penalty and if that amount is reduced
213-12 or is not upheld by the court, the court shall order that the
213-13 appropriate amount plus accrued interest computed at the annual
213-14 rate of 10 percent be remitted to the person. The interest shall
213-15 be paid for the period beginning on the date the penalty was paid
213-16 and ending on the date the penalty is remitted. If the person gave
213-17 a supersedeas bond and the amount of the penalty is not upheld by
213-18 the court, the court shall order the release of the bond. If the
213-19 person gave a supersedeas bond and the amount of the penalty is
213-20 reduced, the court shall order the release of the bond after the
213-21 person pays the amount of the penalty.
213-22 (c) If the judgment of the court requires payment of a
213-23 penalty that has not previously been paid, the court shall order as
213-24 part of its judgment that interest accrues on the penalty at the
213-25 annual rate of 10 percent, beginning on the date the judgment is
213-26 final and ending on the date the penalty and interest are paid.
214-1 CHAPTER 186. DISSOLUTION AND RECEIVERSHIP
214-2 SUBCHAPTER A. GENERAL PROVISIONS
214-3 Sec. 186.001. DEFINITION. In this chapter, "administrative
214-4 expense" means:
214-5 (1) an expense designated as an administrative expense
214-6 by Subchapter C or D;
214-7 (2) court costs and expenses of operation and
214-8 liquidation of a state trust company estate;
214-9 (3) wages owed to an employee of a state trust company
214-10 for services rendered within three months before the date the state
214-11 trust company was closed for liquidation and not exceeding:
214-12 (A) $2,000 to each employee; or
214-13 (B) another amount set by rules adopted under
214-14 this subtitle;
214-15 (4) current wages owed to a state trust company
214-16 employee whose services are retained by the receiver for services
214-17 rendered after the date the state trust company is closed for
214-18 liquidation;
214-19 (5) an unpaid expense of supervision or
214-20 conservatorship of the state trust company before its closing for
214-21 liquidation; and
214-22 (6) any unpaid fees or assessments owed to the
214-23 department.
214-24 Sec. 186.002. REMEDIES EXCLUSIVE. (a) Unless the banking
214-25 commissioner so requests, a court may not:
214-26 (1) order the closing or suspension of operation of a
215-1 state trust company; or
215-2 (2) appoint for a state trust company a receiver,
215-3 supervisor, conservator, or liquidator, or other person with
215-4 similar responsibility.
215-5 (b) A person may not be designated receiver, supervisor,
215-6 conservator, or liquidator without the voluntary approval and
215-7 concurrence of the banking commissioner.
215-8 (c) This chapter prevails over any other conflicting law of
215-9 this state.
215-10 Sec. 186.003. FEDERAL DEPOSIT INSURANCE CORPORATION AS
215-11 LIQUIDATOR. (a) The banking commissioner without court action may
215-12 tender a state trust company that has been closed for liquidation
215-13 to the Federal Deposit Insurance Corporation or its successor as
215-14 receiver and liquidating agent if the trust deposits of the state
215-15 trust company were insured by the Federal Deposit Insurance
215-16 Corporation or its successor on the date of closing.
215-17 (b) After acceptance of tender of the state trust company,
215-18 the Federal Deposit Insurance Corporation or its successor shall
215-19 perform the acts and duties as receiver of the state trust company
215-20 that it considers necessary or desirable and that are permitted or
215-21 required by federal law or this chapter.
215-22 (c) If the Federal Deposit Insurance Corporation or its
215-23 successor refuses to accept tender of the state trust company, the
215-24 banking commissioner shall act as receiver.
215-25 Sec. 186.004. APPOINTMENT OF INDEPENDENT RECEIVER. (a) On
215-26 request of the banking commissioner, the court in which a
216-1 liquidation proceeding is pending may:
216-2 (1) appoint an independent receiver; and
216-3 (2) require a suitable bond of the independent
216-4 receiver.
216-5 (b) On appointment of an independent receiver, the banking
216-6 commissioner is discharged as receiver and remains a party to the
216-7 liquidation proceeding with standing to initiate or contest any
216-8 motion. The views of the banking commissioner are entitled to
216-9 deference unless they are inconsistent with the plain meaning of
216-10 this chapter.
216-11 Sec. 186.005. SUCCESSION OF TRUST POWERS. (a) If a state
216-12 trust company in the process of voluntary or involuntary
216-13 dissolution and liquidation is acting as trustee, guardian,
216-14 executor, administrator, or escrow agent, or in another fiduciary
216-15 or custodial capacity, the banking commissioner may authorize the
216-16 sale of the state trust company's administration of fiduciary
216-17 accounts to a successor entity with fiduciary powers.
216-18 (b) The successor entity, without the necessity of action by
216-19 a court or the creator or a beneficiary of the fiduciary
216-20 relationship, shall:
216-21 (1) continue the office, trust, or fiduciary
216-22 relationship; and
216-23 (2) perform all the duties and exercise all the powers
216-24 connected with or incidental to the fiduciary relationship as if
216-25 the successor entity had been originally designated as the
216-26 fiduciary.
217-1 (c) This section applies to all fiduciary relationships,
217-2 including a trust established for the benefit of a minor by court
217-3 order under Section 142.005, Property Code. This section does not
217-4 affect any right of a court or a party to the instrument governing
217-5 the fiduciary relationship to subsequently designate another
217-6 trustee as the successor fiduciary.
217-7 (Sections 186.006-186.100 reserved for expansion
217-8 SUBCHAPTER B. VOLUNTARY DISSOLUTION
217-9 Sec. 186.101. INITIATING VOLUNTARY DISSOLUTION. (a) A
217-10 state trust company may initiate voluntary dissolution and
217-11 surrender its charter as provided by this subchapter:
217-12 (1) with the approval of the banking commissioner;
217-13 (2) after complying with the provisions of the Texas
217-14 Business Corporation Act regarding board and shareholder approval
217-15 for voluntary dissolution; and
217-16 (3) by filing the notice of dissolution as provided by
217-17 Section 186.102.
217-18 (b) The shareholders or participants of a state trust
217-19 company initiating voluntary dissolution by resolution shall
217-20 appoint one or more persons to act as liquidating agent or
217-21 committee. The liquidating agent or committee shall conduct the
217-22 liquidation as provided by law and under the supervision of the
217-23 board. The board, in consultation with the banking commissioner,
217-24 shall require the liquidating agent or committee to give a suitable
217-25 bond.
217-26 Sec. 186.102. FILING RESOLUTIONS WITH BANKING COMMISSIONER.
218-1 After resolutions to dissolve and liquidate a state trust company
218-2 have been adopted by the board and shareholders or participants, a
218-3 majority of the directors, managers, or managing participants shall
218-4 verify and file with the banking commissioner duplicate certified
218-5 copies of:
218-6 (1) the resolutions of the shareholders or
218-7 participants that:
218-8 (A) are adopted at a meeting for which proper
218-9 notice was given or by unanimous written consent; and
218-10 (B) approve the dissolution and liquidation of
218-11 the state trust company;
218-12 (2) the resolutions of the board approving the
218-13 dissolution and liquidation of the state trust company if the
218-14 trust company is operated by a board of directors or managers;
218-15 (3) a copy of the notice to the shareholders or
218-16 participants informing them of the meeting described by Subdivision
218-17 (1)(A); and
218-18 (4) a plan of liquidation.
218-19 Sec. 186.103. BANKING COMMISSIONER INVESTIGATION AND
218-20 CONSENT. The banking commissioner shall review the documentation
218-21 submitted under Section 186.102 and conduct any necessary
218-22 investigation or examination. If the proceedings appear to have
218-23 been properly conducted and the bond to be given by the liquidating
218-24 agent or committee is adequate for its purposes, the banking
218-25 commissioner shall consent to dissolution and direct the state
218-26 trust company to publish notice of its pending dissolution.
219-1 Sec. 186.104. NOTICE OF PENDING DISSOLUTION. (a) A state
219-2 trust company shall publish notice of its pending dissolution in a
219-3 newspaper of general circulation in each community where its home
219-4 office or a branch is located:
219-5 (1) at least once each week for eight consecutive
219-6 weeks; or
219-7 (2) at other times specified by the banking
219-8 commissioner or rules adopted under this subtitle.
219-9 (b) The notice must:
219-10 (1) be in the form and include the information
219-11 required by the banking commissioner; and
219-12 (2) state that:
219-13 (A) the state trust company is liquidating;
219-14 (B) clients, depositors, and creditors must
219-15 present their claims for payment on or before a specific date; and
219-16 (C) all safe deposit box holders and bailors of
219-17 property left with the state trust company should remove their
219-18 property on or before a specified date.
219-19 (c) The dates selected by the state trust company under
219-20 Subsection (b) must:
219-21 (1) be approved by the banking commissioner;
219-22 (2) allow the affairs of the state trust company to be
219-23 wound up as quickly as feasible; and
219-24 (3) allow creditors, clients, and owners of property
219-25 adequate time for presentation of claims, withdrawal of accounts,
219-26 and redemption of property.
220-1 (d) The banking commissioner may adjust the dates under
220-2 Subsection (b) with or without republication of notice if
220-3 additional time appears needed for the activities to which the
220-4 dates pertain.
220-5 (e) At the time of or promptly after publication of the
220-6 notice, the state trust company shall mail to each of the state
220-7 trust company's known clients, depositors, creditors, safe deposit
220-8 box holders, and bailors of property left with the state trust
220-9 company, at the mailing address shown on the state trust company's
220-10 records, an individual notice containing:
220-11 (1) the information required in a notice under
220-12 Subsection (b); and
220-13 (2) specific information pertinent to the account or
220-14 property of the addressee.
220-15 Sec. 186.105. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
220-16 contract between the state trust company and a person for bailment,
220-17 of deposit for hire, or for the lease of a safe, vault, or box,
220-18 ceases on the date specified in the notice as the date for removal
220-19 of property or a later date approved by the banking commissioner.
220-20 A person who has paid rental or storage charges for a period
220-21 extending beyond the date designated for removal of property has an
220-22 unsecured claim against the state trust company for a refund of the
220-23 unearned amount paid.
220-24 (b) If the property is not removed by the date the contract
220-25 ceases, an officer of the state trust company shall inventory the
220-26 property. In making the inventory, the officer may open a safe,
221-1 vault, box, package, parcel, or receptacle in the custody or
221-2 possession of the state trust company. The inventory must be made
221-3 in the presence of a notary public who is not an officer or
221-4 employee of the state trust company and who is bonded in an amount
221-5 and by sureties approved by the banking commissioner. The property
221-6 shall be marked to identify, to the extent possible, its owner or
221-7 the person who left it with the state trust company.
221-8 (c) After all property belonging to others that is in the
221-9 state trust company's custody and control has been inventoried, a
221-10 master list certified by the state trust company officer and the
221-11 notary public shall be furnished to the banking commissioner. The
221-12 master list shall be kept in a place and dealt with in a manner the
221-13 banking commissioner specifies pending delivery of the property to
221-14 its owner or to the comptroller as unclaimed property.
221-15 Sec. 186.106. OFFICES TO REMAIN OPEN. Unless the banking
221-16 commissioner directs or consents otherwise, the home office and all
221-17 branch offices of a state trust company initiating voluntary
221-18 dissolution shall remain open for business during normal business
221-19 hours until the last date specified in published notices for
221-20 presentation of claims, withdrawal of accounts, and redemption of
221-21 property.
221-22 Sec. 186.107. FIDUCIARY ACTIVITIES. (a) As soon as
221-23 practicable after publication of the notice of dissolution, the
221-24 state trust company shall:
221-25 (1) terminate all fiduciary positions it holds;
221-26 (2) surrender all property held by it as a fiduciary;
222-1 and
222-2 (3) settle its fiduciary accounts.
222-3 (b) Unless all fiduciary accounts are settled and
222-4 transferred by the last date specified in published notices or by
222-5 the banking commissioner and unless the banking commissioner
222-6 directs otherwise, the state trust company shall mail a notice to
222-7 each trustor and beneficiary of any remaining trust, escrow
222-8 arrangement, or other fiduciary relationship. The notice must
222-9 state:
222-10 (1) the location of an office open during normal
222-11 business hours where administration of the remaining fiduciary
222-12 accounts will continue until settled or transferred; and
222-13 (2) a telephone number at that office.
222-14 Sec. 186.108. FINAL LIQUIDATION. (a) After the state trust
222-15 company has taken all of the actions specified by Sections 186.102,
222-16 186.104, 186.105, and 186.107, paid all its debts and obligations,
222-17 and transferred all property for which a legal claimant has been
222-18 found after the time for presentation of claims has expired, the
222-19 state trust company shall make a list from its books of the names
222-20 of each depositor, creditor, owner of personal property in the
222-21 state trust company's possession or custody, or lessee of any safe,
222-22 vault, or box, who has not claimed or has not received a deposit,
222-23 debt, dividend, interest, balance, or other amount or property due
222-24 to the person. The list must be sworn to or affirmed by a majority
222-25 of the board or managing participants of the state trust company.
222-26 (b) The state trust company shall:
223-1 (1) file the list and any necessary identifying
223-2 information with the banking commissioner;
223-3 (2) pay any unclaimed money and deliver any unclaimed
223-4 property to the comptroller as provided by Chapter 74, Property
223-5 Code; and
223-6 (3) certify to the banking commissioner that the
223-7 unclaimed money has been paid and unclaimed property has been
223-8 delivered to the comptroller.
223-9 (c) After the banking commissioner has reviewed the list and
223-10 has reconciled the unclaimed cash and property with the amounts of
223-11 money and property reported and transferred to the comptroller, the
223-12 banking commissioner shall allow the state trust company to
223-13 distribute the state trust company's remaining assets, if any,
223-14 among its shareholders, participants, or participant-transferees as
223-15 their ownership interests appear.
223-16 (d) After distribution of all remaining assets under
223-17 Subsection (c), the state trust company shall file with the
223-18 department:
223-19 (1) an affidavit and schedules sworn to or affirmed by
223-20 a majority of the board or managing participants, showing the
223-21 distribution to each shareholder, participant, or
223-22 participant-transferee;
223-23 (2) all copies of reports of examination of the state
223-24 trust company in its possession;
223-25 (3) its original charter or an affidavit stating that
223-26 the original charter is lost; and
224-1 (4) any branch certificates of authority.
224-2 (e) After verifying the submitted information and documents,
224-3 the banking commissioner shall issue a certificate canceling the
224-4 charter of the state trust company.
224-5 Sec. 186.109. APPLICATION OF LAW TO STATE TRUST COMPANY IN
224-6 DISSOLUTION. A state trust company in the process of voluntary
224-7 dissolution and liquidation remains subject to this subtitle,
224-8 including provisions for examination by the banking commissioner,
224-9 and the state trust company shall furnish reports required by the
224-10 banking commissioner.
224-11 Sec. 186.110. AUTHORIZATION OF DEVIATION FROM PROCEDURES.
224-12 The banking commissioner may authorize a deviation from the
224-13 procedures for voluntary dissolution provided by this subchapter if
224-14 the banking commissioner determines that the interests of claimants
224-15 are not jeopardized by the deviation.
224-16 Sec. 186.111. CLOSURE BY BANKING COMMISSIONER FOR
224-17 INVOLUNTARY DISSOLUTION AND LIQUIDATION. The banking commissioner
224-18 may close the state trust company for involuntary dissolution and
224-19 liquidation under this chapter if the banking commissioner
224-20 determines that:
224-21 (1) the voluntary liquidation is:
224-22 (A) being conducted in an improper or illegal
224-23 manner; or
224-24 (B) not in the best interests of the state trust
224-25 company's clients and creditors; or
224-26 (2) the state trust company is insolvent or imminently
225-1 insolvent.
225-2 Sec. 186.112. APPLICATION FOR NEW CHARTER. After a state
225-3 trust company's charter has been voluntarily surrendered and
225-4 canceled, the state trust company may not resume business or reopen
225-5 except on application for and approval of a new charter.
225-6 (Sections 186.113-186.200 reserved for expansion
225-7 SUBCHAPTER C. INVOLUNTARY DISSOLUTION AND LIQUIDATION
225-8 Sec. 186.201. ACTION TO CLOSE STATE TRUST COMPANY. (a) The
225-9 banking commissioner may close and liquidate a state trust company
225-10 on finding that:
225-11 (1) the interests of its clients and creditors are
225-12 jeopardized by the state trust company's insolvency or imminent
225-13 insolvency; and
225-14 (2) the best interests of clients and creditors would
225-15 be served by requiring that the state trust company be closed and
225-16 its assets liquidated.
225-17 (b) A majority of the state trust company's directors,
225-18 managers, or managing participants may voluntarily close the state
225-19 trust company and place it with the banking commissioner for
225-20 liquidation.
225-21 Sec. 186.202. NOTICE AND EFFECT OF CLOSURE; APPOINTMENT OF
225-22 RECEIVER. (a) After closing a state trust company under Section
225-23 186.201, the banking commissioner shall place a sign at its main
225-24 entrance stating that the state trust company has been closed and
225-25 the findings on which the closing of the state trust company is
225-26 based. A correspondent bank of the closed state trust company may
226-1 not pay an item drawn on the account of the closed state trust
226-2 company that is presented for payment after the correspondent has
226-3 received actual notice of closing unless it previously certified
226-4 the item for payment.
226-5 (b) As soon as practicable after posting the sign at the
226-6 state trust company's main entrance, the banking commissioner shall
226-7 tender the state trust company to the Federal Deposit Insurance
226-8 Corporation as provided by Section 186.003 or initiate a
226-9 receivership proceeding by filing a copy of the notice contained on
226-10 the sign in district court in the county where the state trust
226-11 company's home office is located. The court in which the notice is
226-12 filed shall docket it as a case styled, "In re liquidation of ____"
226-13 (inserting the name of the state trust company). When the notice
226-14 is filed, the court has constructive custody of all the state trust
226-15 company's assets and any action that seeks to directly or
226-16 indirectly affect state trust company assets is considered an
226-17 intervention in the receivership proceeding and subject to this
226-18 subchapter and Subchapter D.
226-19 (c) Venue for an action instituted to effect, contest, or
226-20 intervene in the liquidation of a state trust company is in Travis
226-21 County, except that on motion filed and served concurrently with or
226-22 before the filing of the answer, the court may, on a finding of
226-23 good cause, transfer the action to the county of the state trust
226-24 company's home office.
226-25 Sec. 186.203. NATURE AND DURATION OF RECEIVERSHIP. (a) The
226-26 court may not require a bond from the banking commissioner as
227-1 receiver.
227-2 (b) A reference in this chapter to the receiver is a
227-3 reference to the banking commissioner as receiver and to any
227-4 successors in office, the Federal Deposit Insurance Corporation if
227-5 acting as receiver as provided by Section 186.003 and federal law,
227-6 or an independent receiver appointed at the request of the banking
227-7 commissioner as provided by Section 186.004.
227-8 (c) The receiver has all the powers of the directors,
227-9 managers, managing participants, officers, and shareholders or
227-10 participants of the state trust company as necessary to support an
227-11 action taken on behalf of the state trust company.
227-12 (d) The receiver and all employees and agents acting on
227-13 behalf of the receiver are acting in an official capacity and are
227-14 protected by Section 12.106. An act of the receiver is an act of
227-15 the state trust company in liquidation. This state or a political
227-16 subdivision of this state is not liable and may not be held
227-17 accountable for any debt or obligation of a state trust company in
227-18 receivership.
227-19 (e) Section 64.072, Civil Practice and Remedies Code,
227-20 applies to the receivership of a state trust company except as
227-21 provided by this subsection. A state trust company receivership
227-22 shall be administered continuously for the length of time necessary
227-23 to complete its purposes, and a period prescribed by other law
227-24 limiting the time for the administration of a receivership or of
227-25 corporate affairs generally, including Section 64.072(d), Civil
227-26 Practice and Remedies Code, does not apply.
228-1 Sec. 186.204. CONTEST OF LIQUIDATION. (a) A state trust
228-2 company, acting through a majority of its directors, managers, or
228-3 managing participants, may intervene in an action filed by the
228-4 banking commissioner closing a state trust company to challenge the
228-5 banking commissioner's closing of the state trust company and to
228-6 enjoin the banking commissioner or other receiver from liquidating
228-7 its assets. The state trust company must file the intervention not
228-8 later than the second business day after the closing of the state
228-9 trust company, excluding legal holidays. The court may issue an ex
228-10 parte order restraining the receiver from liquidating state trust
228-11 company assets pending a hearing on the injunction. The receiver
228-12 shall comply with the restraining order but may petition the court
228-13 for permission to liquidate an asset as necessary to prevent its
228-14 loss or diminution pending the outcome of the injunction action.
228-15 (b) The court shall hear an action under Subsection (a) as
228-16 quickly as possible and shall give it priority over other business.
228-17 (c) The state trust company or receiver may appeal the
228-18 court's judgment as in other civil cases, except that the receiver
228-19 shall retain all state trust company assets pending a final
228-20 appellate court order even if the banking commissioner does not
228-21 prevail in the trial court. If the banking commissioner prevails
228-22 in the trial court, liquidation of the state trust company may
228-23 proceed unless the trial court or appellate court orders otherwise.
228-24 If liquidation is enjoined or stayed pending appeal, the trial
228-25 court retains jurisdiction to permit liquidation of an asset as
228-26 necessary to prevent its loss or diminution pending the outcome of
229-1 the appeal.
229-2 Sec. 186.205. NOTICE OF STATE TRUST COMPANY CLOSING.
229-3 (a) As soon as reasonably practicable after initiation of the
229-4 receivership proceeding, the receiver shall publish notice, in a
229-5 newspaper of general circulation in each community where the state
229-6 trust company's home office or a branch is located. The notice
229-7 must state that:
229-8 (1) the state trust company has been closed for
229-9 liquidation;
229-10 (2) clients and creditors must present their claims
229-11 for payment on or before a specific date; and
229-12 (3) all safe deposit box holders and bailors of
229-13 property left with the state trust company should remove their
229-14 property not later than a specified date.
229-15 (b) A date that the receiver selects under Subsection (a):
229-16 (1) may not be earlier than the 121st day after the
229-17 date of the notice; and
229-18 (2) must allow:
229-19 (A) the affairs of the state trust company to be
229-20 wound up as quickly as feasible; and
229-21 (B) creditors, clients, and owners of property
229-22 adequate time for presentation of claims, withdrawal of accounts,
229-23 and redemption of property.
229-24 (c) The receiver may adjust the dates under Subsection (a)
229-25 with the approval of the court and with or without republication of
229-26 notice if additional time appears needed for those activities.
230-1 (d) As soon as reasonably practicable given the state of
230-2 state trust company records and the adequacy of staffing, the
230-3 receiver shall mail to each of the state trust company's known
230-4 clients, creditors, safe deposit box holders, and bailors of
230-5 property left with the state trust company, at the mailing address
230-6 shown on the state trust company's records, an individual notice
230-7 containing the information required in a notice under Subsection
230-8 (a) and specific information pertinent to the account or property
230-9 of the addressee.
230-10 (e) The receiver may determine the form and content of
230-11 notices under this section.
230-12 Sec. 186.206. INVENTORY. As soon as reasonably practicable
230-13 given the state of state trust company records and the adequacy of
230-14 staffing, the receiver shall prepare a comprehensive inventory of
230-15 the state trust company's assets for filing with the court. The
230-16 inventory is open to inspection.
230-17 Sec. 186.207. RECEIVER'S TITLE AND PRIORITY. (a) The
230-18 receiver has the title to all the state trust company's property,
230-19 contracts, and rights of action, wherever located, beginning on the
230-20 date the state trust company is closed for liquidation.
230-21 (b) The rights of the receiver have priority over a
230-22 contractual lien or statutory landlord's lien under Chapter 54,
230-23 Property Code, judgment lien, attachment lien, or voluntary lien
230-24 that arises after the date of the closing of the state trust
230-25 company for liquidation.
230-26 (c) The filing or recording of a receivership order in a
231-1 record office of this state gives the same notice that would be
231-2 given by a deed, bill of sale, or other evidence of title filed or
231-3 recorded by the state trust company in liquidation. The recording
231-4 clerk shall index a recorded receivership order in the records to
231-5 which the order relates.
231-6 Sec. 186.208. RIGHTS FIXED. The rights and liabilities of
231-7 the state trust company in liquidation and of a client, creditor,
231-8 officer, director, manager, managing participant, employee,
231-9 shareholder, participant, participant-transferee, agent, or other
231-10 person interested in the state trust company's estate are fixed on
231-11 the date of closing of the state trust company for liquidation
231-12 except as otherwise directed by the court or as expressly provided
231-13 otherwise by this subchapter or Subchapter D.
231-14 Sec. 186.209. DEPOSITORIES. (a) The receiver may deposit
231-15 money collected on behalf of the state trust company estate in:
231-16 (1) the Texas Treasury Safekeeping Trust Company in
231-17 accordance with procedures established by the comptroller; or
231-18 (2) one or more depository institutions in this state,
231-19 the deposits of which are insured by the Federal Deposit Insurance
231-20 Corporation or its successor, if the receiver, using sound
231-21 financial judgment, determines that it would be advantageous to do
231-22 so.
231-23 (b) If receivership money deposited in an account at a state
231-24 bank exceeds the maximum insured amount, the receiver shall require
231-25 the excess deposit to be adequately secured through pledge of
231-26 securities or otherwise, without approval of the court. The
232-1 depository bank may secure the deposits of the state trust company
232-2 in liquidation on behalf of the receiver, notwithstanding any other
232-3 provision of this subtitle.
232-4 Sec. 186.210. PENDING LAWSUIT. (a) A judgment or order of
232-5 a court of this state or of another jurisdiction in an action
232-6 pending by or against the state trust company, rendered after the
232-7 date the state trust company was closed for liquidation, is not
232-8 binding on the receiver unless the receiver was made a party to the
232-9 suit.
232-10 (b) Before the first anniversary of the date the state trust
232-11 company was closed for liquidation, the receiver may not be
232-12 required to plead to any suit pending against the state trust
232-13 company in a court in this state on the date the state trust
232-14 company was closed for liquidation and in which the receiver is a
232-15 proper plaintiff or defendant.
232-16 (c) Sections 64.052, 64.053, and 64.056, Civil Practice and
232-17 Remedies Code, do not apply to a state trust company estate being
232-18 administered under this subchapter and Subchapter D.
232-19 Sec. 186.211. NEW LAWSUIT. (a) Except as otherwise
232-20 provided by this section, the court in which a receivership
232-21 proceeding is pending under this subchapter has exclusive
232-22 jurisdiction to hear and determine all actions or proceedings
232-23 instituted by or against the state trust company or receiver after
232-24 the receivership proceeding begins.
232-25 (b) The receiver may file in any jurisdiction an ancillary
232-26 suit that may be helpful to obtain jurisdiction or venue over a
233-1 person or property.
233-2 (c) Exclusive venue lies in Travis County for an action or
233-3 proceeding instituted against the receiver or the receiver's
233-4 employee, including an employee of the department, that asserts
233-5 personal liability on the part of the receiver or employee.
233-6 Sec. 186.212. OBTAINING RECORD OR OTHER PROPERTY IN
233-7 POSSESSION OF OTHER PERSON. (a) Each state trust company
233-8 affiliate, officer, director, manager, managing participant,
233-9 employee, shareholder, participant, participant-transferee,
233-10 trustee, agent, servant, employee, attorney, attorney-in-fact, or
233-11 correspondent shall immediately deliver to the receiver, without
233-12 cost to the receiver, any record or other property of the state
233-13 trust company or that relates to the business of the state trust
233-14 company.
233-15 (b) If by contract or otherwise a record or other property
233-16 that can be copied is the property of a person listed in Subsection
233-17 (a), it shall be copied and the copy shall be delivered to the
233-18 receiver. The owner shall retain the original until notification
233-19 by the receiver that it is no longer required in the administration
233-20 of the state trust company's estate or until another time the
233-21 court, after notice and hearing, directs. The copy is considered
233-22 to be a record of the state trust company in liquidation under
233-23 Section 186.225.
233-24 Sec. 186.213. INJUNCTION IN AID OF LIQUIDATION. (a) On
233-25 application by the receiver, the court with or without notice may
233-26 issue an injunction:
234-1 (1) restraining each state trust company officer,
234-2 director, manager, managing participant, employee, shareholder,
234-3 participant, participant-transferee, trustee, agent, servant,
234-4 employee, attorney, attorney-in-fact, accountant or accounting
234-5 firm, correspondent, or other person from transacting the state
234-6 trust company's business or wasting or disposing of its property;
234-7 or
234-8 (2) requiring the delivery of the state trust
234-9 company's property or assets to the receiver subject to the further
234-10 order of the court.
234-11 (b) At any time during a proceeding under this subchapter,
234-12 the court may issue another injunction or order considered
234-13 necessary or desirable to prevent:
234-14 (1) interference with the receiver or the proceeding;
234-15 (2) waste of the assets of the state trust company;
234-16 (3) the beginning or prosecution of an action;
234-17 (4) the obtaining of a preference, judgment,
234-18 attachment, garnishment, or other lien; or
234-19 (5) the making of a levy against the state trust
234-20 company or against its assets.
234-21 Sec. 186.214. SUBPOENA. (a) The receiver may request the
234-22 court ex parte to issue a subpoena to compel the attendance and
234-23 testimony of a witness before the receiver and the production of a
234-24 record relating to the receivership estate. For that purpose the
234-25 receiver or the receiver's designated representative may administer
234-26 an oath or affirmation, examine a witness, or receive evidence.
235-1 The court has statewide subpoena power and may compel attendance
235-2 and production of a record before the receiver at the state trust
235-3 company, the office of the receiver, or another location.
235-4 (b) A person served with a subpoena under this section may
235-5 file a motion with the court for a protective order as provided by
235-6 Rule 166b, Texas Rules of Civil Procedure. In a case of
235-7 disobedience of a subpoena or the contumacy of a witness appearing
235-8 before the receiver or the receiver's designated representative,
235-9 the receiver may request and the court may issue an order requiring
235-10 the person subpoenaed to obey the subpoena, give evidence, or
235-11 produce a record relating to the matter in question.
235-12 (c) A witness who is required to appear before the receiver
235-13 is entitled to receive:
235-14 (1) reimbursement for mileage, in the amount for
235-15 travel by a state employee, for traveling to or returning from a
235-16 proceeding that is more than 25 miles from the witness's residence;
235-17 and
235-18 (2) a fee for each day or part of a day the witness is
235-19 necessarily present as a witness in an amount set by the receiver
235-20 with the approval of the court of not less than $10 a day and not
235-21 more than an amount equal to the per diem travel allowance of a
235-22 state employee.
235-23 (d) A payment of fees under Subsection (c) is an
235-24 administrative expense.
235-25 (e) The receiver may serve the subpoena or have it served by
235-26 the receiver's authorized agent, a sheriff, or a constable. The
236-1 sheriff's or constable's fee for serving a subpoena must be the
236-2 same as the fee paid the sheriff or constable for similar services.
236-3 (f) A subpoena issued under this section to a financial
236-4 institution is not subject to Section 30.007, Civil Practice and
236-5 Remedies Code.
236-6 (g) On certification by the receiver under official seal, a
236-7 record produced or testimony taken as provided by this section and
236-8 held by the receiver is admissible in evidence in any case without
236-9 proof of its correctness or other proof, except the certificate of
236-10 the receiver that the record or testimony was received from the
236-11 person producing the record or testifying. The certified record or
236-12 a certified copy of the record is prima facie evidence of the facts
236-13 it contains. This section does not limit another provision of this
236-14 subchapter, Subchapter D, or another law that provides for the
236-15 admission of evidence or its evidentiary value.
236-16 Sec. 186.215. EXECUTORY CONTRACT; ORAL AGREEMENT. (a) Not
236-17 later than six months after the date the receivership proceeding
236-18 begins, the receiver may terminate any executory contract to which
236-19 the state trust company is a party or any obligation of the state
236-20 trust company as a lessee. A lessor who receives notice of the
236-21 receiver's election to terminate the lease before the 60th day
236-22 before the termination date is not entitled to rent or damages for
236-23 termination, other than rent accrued to the date of termination.
236-24 (b) An agreement that tends to diminish or defeat the
236-25 interest of the estate in a state trust company asset is not valid
236-26 against the receiver unless the agreement:
237-1 (1) is in writing;
237-2 (2) was executed by the state trust company and any
237-3 person claiming an adverse interest under the agreement, including
237-4 the obligor, when the state trust company acquired the asset;
237-5 (3) was approved by the board of the state trust
237-6 company or its designated committee, and the approval is reflected
237-7 in the minutes of the board or committee; and
237-8 (4) has been continuously since its execution an
237-9 official record of the state trust company.
237-10 Sec. 186.216. PREFERENCES. (a) A transfer of or lien on
237-11 the property or assets of a state trust company is voidable by the
237-12 receiver if the transfer or lien:
237-13 (1) was made or created after:
237-14 (A) four months before the date the state trust
237-15 company is closed for liquidation; or
237-16 (B) one year before the date the state trust
237-17 company is closed for liquidation if the receiving creditor was at
237-18 the time an affiliate, officer, director, manager, managing
237-19 participant, principal shareholder, or participant of the state
237-20 trust company or an affiliate of the trust company;
237-21 (2) was made or created with the intent of giving to a
237-22 creditor or depositor, or enabling a creditor or depositor to
237-23 obtain, a greater percentage of the claimant's debt than is given
237-24 or obtained by another claimant of the same class; and
237-25 (3) is accepted by a creditor or depositor having
237-26 reasonable cause to believe that a preference will occur.
238-1 (b) Each state trust company officer, director, manager,
238-2 managing participant, employee, shareholder, participant,
238-3 participant-transferee, trustee, agent, servant, employee,
238-4 attorney-in-fact, or correspondent, or other person acting on
238-5 behalf of the state trust company, who has participated in
238-6 implementing a voidable transfer or lien, and each person receiving
238-7 property or the benefit of property of the state trust company as a
238-8 result of the voidable transfer or lien, is personally liable for
238-9 the property or benefit received and shall account to the receiver
238-10 for the benefit of the clients and creditors of the state trust
238-11 company.
238-12 (c) The receiver may avoid a transfer of or lien on the
238-13 property or assets of a state trust company that a client,
238-14 creditor, shareholder, participant, or participant-transferee of
238-15 the state trust company could have avoided and may recover the
238-16 property transferred or its value from the person to whom it was
238-17 transferred or from a person who has received it unless the
238-18 transferee or recipient was a bona fide holder for value before the
238-19 date the state trust company was closed for liquidation.
238-20 Sec. 186.217. EMPLOYEES OF RECEIVER. The receiver may
238-21 employ agents, legal counsel, accountants, appraisers, consultants,
238-22 and other personnel the receiver considers necessary to assist in
238-23 the performance of the receiver's duties. The receiver may use
238-24 personnel of the department if the receiver considers the use to be
238-25 advantageous or desirable. The expense of employing those persons
238-26 is an administrative expense.
239-1 Sec. 186.218. DISPOSAL OF PROPERTY; SETTLING OF CLAIM.
239-2 (a) In liquidating a state trust company, the receiver on order of
239-3 the court entered with or without hearing may:
239-4 (1) sell all or part of the property of the state
239-5 trust company;
239-6 (2) borrow money and pledge all or part of the assets
239-7 of the state trust company to secure the debt created, except that
239-8 the receiver may not be held personally liable to repay borrowed
239-9 funds;
239-10 (3) compromise or compound a doubtful or uncollectible
239-11 debt or claim owed by or owing to the state trust company; and
239-12 (4) enter another agreement on behalf of the state
239-13 trust company that the receiver considers necessary or proper to
239-14 the management, conservation, or liquidation of its assets.
239-15 (b) If the amount of a debt or claim owed by or owing to the
239-16 state trust company or the value of an item of property of the
239-17 trust company does not exceed $20,000, excluding interest, the
239-18 receiver may compromise or compound the debt or claim or sell the
239-19 property on terms the receiver considers to be in the best interest
239-20 of the state trust company estate without obtaining the approval of
239-21 the court.
239-22 (c) With the approval of the court, the receiver may sell or
239-23 offer or agree to sell an asset of the state trust company, other
239-24 than a fiduciary asset, to a depositor or creditor of the state
239-25 trust company. Payment may be in whole or in part out of
239-26 distributions payable to the purchasing creditor or depositor on
240-1 account of an approved claim against the state trust company's
240-2 estate. On application by the receiver, the court may designate
240-3 one or more representatives to act for certain clients or creditors
240-4 as a class in the purchase, holding, and management of assets
240-5 purchased by the class under this section, and the receiver may
240-6 with the approval of the court advance the expenses of the
240-7 appointed representative against the security of the claims of the
240-8 class.
240-9 Sec. 186.219. COURT ORDER; NOTICE AND HEARING. If the court
240-10 requires notice and hearing before entering an order, the court
240-11 shall set the time and place of the hearing and prescribe whether
240-12 the notice is to be given by service on specific parties, by
240-13 publication, or by a combination of those methods. The court may
240-14 not enter an order requested by a person other than the receiver
240-15 without notice to the receiver and an opportunity for the receiver
240-16 to be heard.
240-17 Sec. 186.220. RECEIVER'S REPORTS; EXPENSES. (a) The
240-18 receiver shall file with the court:
240-19 (1) a quarterly report showing the operation,
240-20 receipts, expenditures, and general condition of the state trust
240-21 company in liquidation; and
240-22 (2) a final report regarding the liquidated state
240-23 trust company showing all receipts and expenditures and giving a
240-24 full explanation and a statement of the disposition of all assets
240-25 of the state trust company.
240-26 (b) The receiver shall pay all administrative expenses out
241-1 of money or other assets of the state trust company. Each quarter
241-2 the receiver shall swear to and submit to the court an itemized
241-3 report of those expenses. The court shall approve the report
241-4 unless an objection is filed before the 11th day after the date it
241-5 is submitted. An objection may be made only by a party in interest
241-6 and must specify each item objected to and the ground for the
241-7 objection. The court shall set the objection for hearing and
241-8 notify the parties of this action. The objecting party has the
241-9 burden of proof to show that the item objected to is improper,
241-10 unnecessary, or excessive.
241-11 (c) The court may prescribe whether the notice of the
241-12 receiver's report is to be given by service on specific parties, by
241-13 publication, or by a combination of those methods.
241-14 Sec. 186.221. COURT-ORDERED AUDIT. (a) The court may order
241-15 an audit of the books and records of the receiver that relate to
241-16 the receivership. A report of an audit ordered under this section
241-17 shall be filed with the court. The receiver shall make the books
241-18 and records relating to the receivership available to the auditor
241-19 as required by the court order.
241-20 (b) The receiver shall pay the expenses of an audit ordered
241-21 under this section as an administrative expense.
241-22 Sec. 186.222. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
241-23 contract between the state trust company and another person for
241-24 bailment, of deposit for hire, or for the lease of a safe, vault,
241-25 or box ceases on the date specified for removal of property in the
241-26 notices that were published and mailed or a later date approved by
242-1 the receiver or the court. A person who has paid rental or storage
242-2 charges for a period extending beyond the date designated for
242-3 removal of property has a claim against the state trust company
242-4 estate for a refund of the unearned amount paid.
242-5 (b) If the property is not removed by the date the contract
242-6 ceases, the receiver shall inventory the property. In making the
242-7 inventory, the receiver may open a safe, vault, or box, or any
242-8 package, parcel, or receptacle, in the custody or possession of the
242-9 receiver. The property shall be marked to identify, to the extent
242-10 possible, its owner or the person who left it with the state trust
242-11 company. After all property belonging to others that is in the
242-12 receiver's custody and control has been inventoried, the receiver
242-13 shall compile a master list that is divided for each office of the
242-14 state trust company that received property that remains unclaimed.
242-15 The receiver shall publish, in a newspaper of general circulation
242-16 in each community in which the state trust company had an office
242-17 that received property that remains unclaimed, the list and the
242-18 names of the owners of the property as shown in the state trust
242-19 company's records. The published notice shall specify a procedure
242-20 for claiming the property unless the court, on application of the
242-21 receiver, approves an alternate procedure.
242-22 Sec. 186.223. FIDUCIARY ACTIVITIES. (a) As soon after
242-23 beginning the receivership proceeding as is practicable, the
242-24 receiver shall:
242-25 (1) terminate all fiduciary positions the state trust
242-26 company holds;
243-1 (2) surrender all property held by the state trust
243-2 company as a fiduciary; and
243-3 (3) settle the state trust company's fiduciary
243-4 accounts.
243-5 (b) The receiver shall release all segregated and
243-6 identifiable fiduciary property held by the state trust company to
243-7 successor fiduciaries.
243-8 (c) With the approval of the court, the receiver may sell
243-9 the administration of all or substantially all remaining fiduciary
243-10 accounts to one or more successor fiduciaries on terms that appear
243-11 to be in the best interest of the state trust company's estate and
243-12 the persons interested in the fiduciary accounts.
243-13 (d) If commingled fiduciary money held by the state trust
243-14 company as trustee is insufficient to satisfy all fiduciary claims
243-15 to the commingled money, the receiver shall distribute commingled
243-16 money pro rata to all fiduciary claimants of commingled money based
243-17 on their proportionate interests after payment of administrative
243-18 expenses related solely to the fiduciary claims. The fictional
243-19 tracing rule does not apply.
243-20 (e) The receiver may require a fiduciary claimant to file a
243-21 proof of claim if the records of the state trust company are
243-22 insufficient to identify the claimant's interest.
243-23 Sec. 186.224. DISPOSITION AND MAINTENANCE OF RECORDS.
243-24 (a) On approval by the court, the receiver may dispose of records
243-25 of the state trust company in liquidation that are obsolete and
243-26 unnecessary to the continued administration of the receivership
244-1 proceeding.
244-2 (b) The receiver may devise a method for the effective,
244-3 efficient, and economical maintenance of the records of the state
244-4 trust company and of the receiver's office. The methods may
244-5 include maintaining those records on any medium approved by the
244-6 records management division of the Texas State Library.
244-7 (c) To maintain the records of the liquidated state trust
244-8 company after the closing of the receivership proceeding, the
244-9 receiver may reserve assets of an estate, deposit them in an
244-10 account, and use them for maintenance, storage, and disposal of
244-11 records in closed receivership estates.
244-12 (d) Records of a liquidated state trust company are not
244-13 government records for any purpose, including Chapter 552,
244-14 Government Code, but shall be preserved and disposed of as if they
244-15 were records of the department under Chapter 441, Government Code.
244-16 Those records are confidential as provided by:
244-17 (1) Subchapter D, Chapter 181;
244-18 (2) rules adopted under this subtitle; and
244-19 (3) Section 30.007, Civil Practice and Remedies Code.
244-20 Sec. 186.225. RECORDS ADMITTED. (a) A record of a state
244-21 trust company in liquidation obtained by the receiver and held in
244-22 the course of the receivership proceeding or a certified copy of
244-23 the record under the official seal of the receiver is admissible in
244-24 evidence in all cases without proof of correctness or other proof,
244-25 except the certificate of the receiver that the record was received
244-26 from the custody of the state trust company or found among its
245-1 effects.
245-2 (b) The receiver may certify the correctness of a record of
245-3 the receiver's office, including a record described by Subsection
245-4 (a), and may certify any fact contained in the record. The record
245-5 is admissible in evidence in all cases in which the original would
245-6 be evidence.
245-7 (c) The original record or a certified copy of the record is
245-8 prima facie evidence of the facts it contains.
245-9 (d) A copy of an original record or another record that is
245-10 maintained on a medium approved by the records management division
245-11 of the Texas State Library, within the scope of this section, and
245-12 produced by the receiver or the receiver's authorized
245-13 representative under this section:
245-14 (1) has the same effect as the original record; and
245-15 (2) may be used the same as the original record in a
245-16 judicial or administrative proceeding in this state.
245-17 Sec. 186.226. RESUMPTION OF BUSINESS. (a) A state trust
245-18 company closed under Section 186.201 may not be reopened without
245-19 the approval of the banking commissioner unless a contest of
245-20 liquidation under Section 186.204 is finally resolved adversely to
245-21 the banking commissioner and the court authorizes its reopening.
245-22 (b) The banking commissioner may place temporary limits on
245-23 the right of withdrawals by, or payments to, individual clients and
245-24 creditors of a state trust company reopened under this section, in
245-25 accordance with applicable law.
245-26 (c) As a depositor or creditor of a reopened state trust
246-1 company, this state or a political subdivision of this state may
246-2 agree to temporary limits that the banking commissioner places on
246-3 payments or withdrawals.
246-4 Sec. 186.227. ASSETS DISCOVERED AFTER CLOSE OF RECEIVERSHIP.
246-5 (a) The banking commissioner shall report to the court discovery
246-6 of an asset having value that:
246-7 (1) the banking commissioner discovers after the
246-8 receivership was closed by final order of the court; and
246-9 (2) was abandoned as worthless or unknown during
246-10 receivership.
246-11 (b) The court may reopen the receivership proceeding for
246-12 continued liquidation if the value of the after-discovered assets
246-13 justifies the reopening.
246-14 (c) If the banking commissioner suspects that the
246-15 information concerning after-disclosed assets may have been
246-16 intentionally or fraudulently concealed, the banking commissioner
246-17 shall notify appropriate civil and criminal authorities to
246-18 determine any applicable penalties.
246-19 (Sections 186.228-186.300 reserved for expansion
246-20 SUBCHAPTER D. CLAIMS AGAINST RECEIVERSHIP ESTATE
246-21 Sec. 186.301. FILING CLAIM. (a) This section applies only
246-22 to a claim by a person, other than a shareholder, participant, or
246-23 participant-transferee acting in that capacity, who has a claim
246-24 against a state trust company in liquidation, including a claimant
246-25 with a secured claim or a claimant under a fiduciary relationship
246-26 that has been ordered by the receiver to file a claim pursuant to
247-1 Section 186.223.
247-2 (b) To receive payment of a claim, the person must present
247-3 proof of the claim to the receiver:
247-4 (1) at a place specified by the receiver; and
247-5 (2) within the period specified by the receiver under
247-6 Section 186.205.
247-7 (c) Receipt of the required proof of claim by the receiver
247-8 is a condition precedent to the payment of the claim.
247-9 (d) A claim that is not filed within the period specified by
247-10 the receiver may not participate in a distribution of the assets by
247-11 the receiver, except that, subject to court approval, the receiver
247-12 may accept a claim filed not later than the 180th day after the
247-13 date notice of the claimant's right to file a proof of claim is
247-14 mailed to the claimant.
247-15 (e) A claim accepted under this section and approved is
247-16 subordinate to an approved claim of a general creditor.
247-17 (f) Interest does not accrue on a claim after the date the
247-18 state trust company is closed for liquidation.
247-19 Sec. 186.302. PROOF OF CLAIM. (a) A proof of claim must be
247-20 in writing, be signed by the claimant, and include:
247-21 (1) a statement of the claim;
247-22 (2) a description of the consideration for the claim;
247-23 (3) a statement of whether collateral is held or a
247-24 security interest is asserted against the claim and, if so, a
247-25 description of the collateral or security interest;
247-26 (4) a statement of any right of priority of payment
248-1 for the claim or other specific right asserted by the claimant;
248-2 (5) a statement of whether a payment has been made on
248-3 the claim and, if so, the amount and source of the payment, to the
248-4 extent known by the claimant;
248-5 (6) a statement that the amount claimed is justly owed
248-6 by the state trust company in liquidation to the claimant; and
248-7 (7) any other matter that is required by the court.
248-8 (b) The receiver may designate the form of the proof of
248-9 claim. A proof of claim must be filed under oath unless the oath
248-10 is waived by the receiver. A proof of claim filed with the
248-11 receiver is considered filed in an official proceeding for purposes
248-12 of Chapter 37, Penal Code.
248-13 (c) If a claim is founded on a written instrument, the
248-14 original instrument, unless lost or destroyed, must be filed with
248-15 the proof of claim. After the instrument is filed, the receiver
248-16 may permit the claimant to substitute a copy of the instrument
248-17 until the final disposition of the claim. If the instrument is
248-18 lost or destroyed, a statement of that fact and of the
248-19 circumstances of the loss or destruction must be filed under oath
248-20 with the claim.
248-21 Sec. 186.303. JUDGMENT AS PROOF OF CLAIM. (a) A judgment
248-22 entered against a state trust company in liquidation before the
248-23 date the state trust company was closed for liquidation may not be
248-24 given higher priority than a claim of an unsecured creditor unless
248-25 the judgment creditor in a proof of claim proves the allegations
248-26 supporting the judgment to the receiver's satisfaction.
249-1 (b) A judgment against the state trust company taken by
249-2 default or by collusion before the date the state trust company was
249-3 closed for liquidation may not be considered as conclusive evidence
249-4 of the liability of the state trust company to the judgment
249-5 creditor or of the amount of damages to which the judgment creditor
249-6 is entitled.
249-7 (c) A judgment against the state trust company entered after
249-8 the date the state trust company was closed for liquidation may not
249-9 be considered as evidence of liability or of the amount of damages.
249-10 Sec. 186.304. SECURED CLAIM. (a) The owner of a secured
249-11 deposit may file a claim as a creditor against a state trust
249-12 company in liquidation. The value of security shall be determined
249-13 under supervision of the court by converting the security into
249-14 money.
249-15 (b) The owner of a secured claim against a state trust
249-16 company in liquidation may:
249-17 (1) surrender the security and file a claim as a
249-18 general creditor; or
249-19 (2) apply the security to the claim and discharge the
249-20 claim.
249-21 (c) If the owner applies the security and discharges the
249-22 claim under Subsection (b), any deficiency shall be treated as a
249-23 claim against the general assets of the state trust company on the
249-24 same basis as a claim of an unsecured creditor. The amount of the
249-25 deficiency shall be determined as provided by Section 186.305,
249-26 except that if the amount of the deficiency has been adjudicated by
250-1 a court in a proceeding in which the receiver has had notice and an
250-2 opportunity to be heard, the court's decision is conclusive as to
250-3 the amount.
250-4 (d) The value of security held by a secured creditor shall
250-5 be determined under supervision of the court by:
250-6 (1) converting the security into money according to
250-7 the terms of the agreement under which the security was delivered
250-8 to the creditor; or
250-9 (2) agreement, arbitration, compromise, or litigation
250-10 between the creditor and the receiver.
250-11 Sec. 186.305. UNLIQUIDATED OR UNDETERMINED CLAIM. (a) A
250-12 claim based on an unliquidated or undetermined demand shall be
250-13 filed within the period provided by Subchapter C for the filing of
250-14 a claim. The claim may not share in any distribution to claimants
250-15 until the claim is definitely liquidated, determined, and allowed.
250-16 After the claim is liquidated, determined, and allowed, the claim
250-17 shares ratably with the claims of the same class in all subsequent
250-18 distributions.
250-19 (b) For the purposes of this section, a demand is considered
250-20 unliquidated or undetermined if the right of action on the demand
250-21 accrued while a state trust company was closed for liquidation and
250-22 the liability on the demand has not been determined or the amount
250-23 of the demand has not been liquidated.
250-24 (c) If the receiver in all other respects is in a position
250-25 to close the receivership proceeding, the proposed closing is
250-26 sufficient grounds for the rejection of any remaining claim based
251-1 on an unliquidated or undetermined demand. The receiver shall
251-2 notify the claimant of the intention to close the proceeding. If
251-3 the demand is not liquidated or determined before the 61st day
251-4 after the date of the notice, the receiver may reject the claim.
251-5 Sec. 186.306. SET-OFF. (a) Mutual credits and mutual debts
251-6 shall be set off and only the balance allowed or paid, except that
251-7 a set-off may not be allowed in favor of a person if:
251-8 (1) the obligation of a state trust company to the
251-9 person on the date the state trust company was closed for
251-10 liquidation did not entitle the person to share as a claimant in
251-11 the assets of the state trust company;
251-12 (2) the obligation of the state trust company to the
251-13 person was purchased by or transferred to the person after the date
251-14 the state trust company was closed for liquidation or for the
251-15 purpose of increasing set-off rights; or
251-16 (3) the obligation of the person or the state trust
251-17 company is as a trustee or fiduciary.
251-18 (b) On request, the receiver shall provide a person with an
251-19 accounting statement identifying each debt that is due and payable.
251-20 A person who owes a state trust company an amount that is due and
251-21 payable against which the person asserts set-off of mutual credits
251-22 that may become due and payable from the state trust company in the
251-23 future shall promptly pay to the receiver the amount due and
251-24 payable. The receiver shall promptly refund, to the extent of the
251-25 person's prior payment, mutual credits that become due and payable
251-26 to the person by the state trust company in liquidation.
252-1 Sec. 186.307. ACTION ON CLAIM. (a) Not later than six
252-2 months after the last day permitted for the filing of claims or a
252-3 later date allowed by the court, the receiver shall accept or
252-4 reject in whole or in part each claim filed against the state trust
252-5 company in liquidation, except for an unliquidated or undetermined
252-6 claim governed by Section 186.305. The receiver shall reject a
252-7 claim if the receiver doubts its validity.
252-8 (b) The receiver shall mail written notice to each claimant,
252-9 specifying the disposition of the person's claim. If a claim is
252-10 rejected in whole or in part, the receiver in the notice shall
252-11 specify the basis for rejection and advise the claimant of the
252-12 procedures and deadline for appeal.
252-13 (c) The receiver shall send each claimant a summary schedule
252-14 of approved and rejected claims by priority class and notify the
252-15 claimant:
252-16 (1) that a copy of a schedule of claims disposition
252-17 including only the name of the claimant, the amount of the claim
252-18 allowed, and the amount of the claim rejected is available on
252-19 request; and
252-20 (2) of the procedure and deadline for filing an
252-21 objection to an approved claim.
252-22 (d) The receiver or an agent or employee of the receiver,
252-23 including an employee of the department, is not liable, and a cause
252-24 of action may not be brought against the person, for an act or
252-25 omission of the person relating to the adjustment, negotiation, or
252-26 settlement of a claim.
253-1 Sec. 186.308. OBJECTION TO APPROVED CLAIM. The receiver
253-2 with court approval shall set a deadline for an objection to an
253-3 approved claim. On or before that date a depositor, creditor,
253-4 other claimant, shareholder, participant, or participant-transferee
253-5 of the state trust company may file an objection to an approved
253-6 claim. The objection shall be heard and determined by the court.
253-7 If the objection is sustained, the court shall direct an
253-8 appropriate modification of the schedule of claims.
253-9 Sec. 186.309. APPEAL OF REJECTED CLAIM. (a) The receiver's
253-10 rejection of a claim may be appealed in the court in which the
253-11 receivership proceeding is pending. The appeal must be brought
253-12 within three months after the date of service of notice of the
253-13 rejection.
253-14 (b) If the appeal is timely brought, review is de novo as if
253-15 it were an action originally filed in the court, and is subject to
253-16 the rules of procedure and appeal applicable to civil cases. An
253-17 action to appeal rejection of a claim by the receiver is separate
253-18 from the receivership proceeding, and may not be initiated by a
253-19 claimant intervening in the receivership proceeding.
253-20 (c) If the action is not timely brought, the action of the
253-21 receiver is final and not subject to review.
253-22 Sec. 186.310. PAYMENT OF CLAIM. (a) Except as expressly
253-23 provided otherwise by this subchapter or Subchapter C, without the
253-24 approval of the court the receiver may not make a payment on a
253-25 claim, other than a claim for an obligation incurred by the
253-26 receiver for administrative expenses.
254-1 (b) The banking commissioner shall deposit in one or more
254-2 banks located in this state all money available for the benefit of
254-3 nonclaiming depositors and creditors. The banking commissioner
254-4 shall pay the depositors or creditors on demand any amount held for
254-5 their benefit.
254-6 (c) The receiver may periodically make partial distribution
254-7 to the holders of approved claims if:
254-8 (1) all objections have been heard and decided as
254-9 provided by Section 186.308;
254-10 (2) the time for filing appeals has expired as
254-11 provided by Section 186.309;
254-12 (3) money has been made available to provide for the
254-13 payment of all nonclaiming depositors and creditors in accordance
254-14 with Subsection (b); and
254-15 (4) a proper reserve is established for the pro rata
254-16 payment of:
254-17 (A) rejected claims that have been appealed; and
254-18 (B) any claims based on unliquidated or
254-19 undetermined demands governed by Section 186.305.
254-20 (d) As soon as practicable after the determination of all
254-21 objections, appeals, and claims based on previously unliquidated or
254-22 undetermined demands governed by Section 186.305 and money has been
254-23 made available to provide for the payment of all nonclaiming
254-24 depositors and creditors in accordance with Subsection (b), the
254-25 receiver shall distribute the assets of the state trust company in
254-26 satisfaction of approved claims other than claims asserted in a
255-1 person's capacity as a shareholder, participant, or
255-2 participant-transferee.
255-3 Sec. 186.311. PRIORITY OF CLAIMS AGAINST INSURED STATE TRUST
255-4 COMPANY. The distribution of assets from the estate of a state
255-5 trust company the trust deposits of which are insured by the
255-6 Federal Deposit Insurance Corporation or its successor shall be
255-7 made in the same order of priority as assets would be distributed
255-8 on liquidation or purchase of assets and assumption of liabilities
255-9 of a national bank under federal law.
255-10 Sec. 186.312. PRIORITY OF CLAIMS AGAINST UNINSURED STATE
255-11 TRUST COMPANY. (a) The priority of distribution of assets from
255-12 the estate of a state trust company the trust deposits of which are
255-13 not insured by the Federal Deposit Insurance Corporation or its
255-14 successor shall be in accordance with the order of each class as
255-15 provided by this section. Every claim in each class shall be paid
255-16 in full, or adequate money shall be retained for that payment,
255-17 before a member of the next class may receive any payment. A
255-18 subclass may not be established within a class, except for a
255-19 preference or subordination within a class expressly created by
255-20 contract or other instrument or in the articles of association.
255-21 (b) Assets shall be distributed in the following order of
255-22 priority:
255-23 (1) administrative expenses;
255-24 (2) approved claims of secured trust deposits to the
255-25 extent of the value of the security as provided by Section
255-26 186.304(a);
256-1 (3) approved claims of secured creditors to the extent
256-2 of the value of the security as provided by Section 186.304(b);
256-3 (4) approved claims by beneficiaries of insufficient
256-4 commingled fiduciary money or missing fiduciary property and
256-5 approved claims of clients of the state trust company;
256-6 (5) other approved claims of general creditors not
256-7 falling within a higher priority under this section, including
256-8 unsecured claims for taxes and debts due the federal government or
256-9 a state or local government;
256-10 (6) approved claims of a type described by
256-11 Subdivisions (1)-(5) that were not filed within the period
256-12 prescribed by this subchapter; and
256-13 (7) claims of capital note or debenture holders or
256-14 holders of similar obligations and proprietary claims of
256-15 shareholders, participants, participant-transferees, or other
256-16 owners according to the terms established by issue, class, or
256-17 series.
256-18 (c) Subject to Sections 186.310 and 186.313, the banking
256-19 commissioner may make a ratable distribution to approved claimants
256-20 within a particular class or priority if:
256-21 (1) all timely filed and approved claims of a higher
256-22 priority have been satisfied; and
256-23 (2) there is insufficient money to fully satisfy all
256-24 of those claims, after reserving money for administrative expenses
256-25 as necessary.
256-26 Sec. 186.313. EXCESS ASSETS. (a) If state trust company
257-1 assets remain after the receiver has provided for unclaimed
257-2 distributions and all of the liabilities of the state trust company
257-3 in liquidation, the receiver shall distribute the remaining assets
257-4 to the shareholders or participants of the state trust company.
257-5 (b) If the remaining assets are not liquid or if they
257-6 otherwise require continuing administration, the receiver may call
257-7 a meeting of the shareholders or participants and
257-8 participant-transferees of the state trust company. The receiver
257-9 shall give notice of the meeting:
257-10 (1) in a newspaper of general circulation in the
257-11 county where the home office of the state trust company was
257-12 located; and
257-13 (2) by written notice to the shareholders or
257-14 participants and participant-transferees of record at their last
257-15 known addresses.
257-16 (c) At the meeting, the shareholders or participants shall
257-17 appoint one or more agents to take over the affairs to continue the
257-18 liquidation for the benefit of the shareholders or participants and
257-19 participant-transferees. Voting privileges are governed by the
257-20 state trust company's bylaws and articles of association. If a
257-21 quorum cannot be obtained at the meeting, the banking commissioner
257-22 shall appoint an agent. An agent appointed under this subsection
257-23 shall execute and file with the court a bond approved by the court,
257-24 conditioned on the faithful performance of all the duties of the
257-25 trust.
257-26 (d) Under order of the court the receiver shall transfer and
258-1 deliver to one or more agents for continued liquidation under the
258-2 court's supervision all assets of the state trust company remaining
258-3 in the receiver's hands. The court shall discharge the receiver
258-4 from further liability to the state trust company and its clients,
258-5 creditors, shareholders, participants, and participant-transferees.
258-6 (e) The state trust company may not resume business and the
258-7 charter of the state trust company is void on the date the court
258-8 issues the order directing the receiver to transfer and deliver the
258-9 remaining assets of the state trust company to one or more agents.
258-10 Sec. 186.314. UNCLAIMED PROPERTY. After completion of the
258-11 liquidation, any unclaimed property remaining with the receiver
258-12 shall be delivered to the comptroller as provided by Chapter 74,
258-13 Property Code.
258-14 CHAPTER 199. MISCELLANEOUS PROVISIONS
258-15 Sec. 199.001. SLANDER OR LIBEL OF STATE TRUST COMPANY.
258-16 (a) A person commits an offense if the person:
258-17 (1) knowingly makes, circulates, or transmits to
258-18 another person an untrue statement that is derogatory to the
258-19 financial condition of a state trust company located in this state;
258-20 or
258-21 (2) intentionally, to injure the state trust company,
258-22 counsels, aids, procures, or induces another person to knowingly
258-23 make, circulate, or transmit to another person an untrue statement
258-24 that is derogatory to the financial condition of a state trust
258-25 company located in this state.
258-26 (b) An offense under this section is a state jail felony.
259-1 Sec. 199.002. AUTHORITY TO ACT AS NOTARY PUBLIC. A notary
259-2 public is not disqualified from taking an acknowledgment or proof
259-3 of a written instrument as provided by Section 406.016, Government
259-4 Code, solely because of the person's ownership of stock or
259-5 participation interest in or employment by a state trust company
259-6 that is an interested party in the underlying transaction.
259-7 Sec. 199.003. SUCCESSION OF TRUST POWERS. (a) If, at the
259-8 time of a merger, reorganization, conversion, or sale of
259-9 substantially all of its assets under Chapter 182 or other
259-10 applicable law, a reorganizing or selling state trust company is
259-11 acting as trustee, guardian, executor, or administrator, or in
259-12 another fiduciary capacity, the successor entity with fiduciary
259-13 powers may, without the necessity of judicial action or action by
259-14 the creator of the trust, continue the office, trust, or fiduciary
259-15 relationship.
259-16 (b) The successor entity may perform all the duties and
259-17 exercise all the powers connected with or incidental to the
259-18 fiduciary relationship in the same manner as if the successor
259-19 entity had been originally designated as the fiduciary.
259-20 Sec. 199.004. DISCOVERY OF CLIENT RECORDS. Civil discovery
259-21 of a client record maintained by a state trust company is governed
259-22 by Section 30.007, Civil Practice and Remedies Code.
259-23 Sec. 199.005. COMPLIANCE REVIEW COMMITTEE. (a) A state
259-24 trust company or an affiliate of a state trust company, including
259-25 its holding company, may establish a compliance review committee to
259-26 test, review, or evaluate the institution's conduct, transactions,
260-1 or potential transactions for the purpose of monitoring and
260-2 improving or enforcing compliance with:
260-3 (1) a statutory or regulatory requirement;
260-4 (2) financial reporting to a governmental agency;
260-5 (3) the policies and procedures of the state trust
260-6 company or its affiliates; or
260-7 (4) safe, sound, and fair lending practices.
260-8 (b) Except as provided by Subsection (c):
260-9 (1) a compliance review document is confidential and
260-10 is not discoverable or admissible in evidence in a civil action;
260-11 (2) an individual serving on a compliance review
260-12 committee or acting under the direction of a compliance review
260-13 committee may not be required to testify in a civil action as to:
260-14 (A) the contents or conclusions of a compliance
260-15 review document; or
260-16 (B) an action taken or discussions conducted by
260-17 or for a compliance review committee; and
260-18 (3) a compliance review document or an action taken or
260-19 discussion conducted by or for a compliance review committee that
260-20 is disclosed to a governmental agency remains confidential and is
260-21 not discoverable or admissible in a civil action.
260-22 (c) Subsection (b)(2) does not apply to an individual who
260-23 has management responsibility for the operations, records,
260-24 employees, or activities being examined or evaluated by the
260-25 compliance review committee.
260-26 (d) This section does not limit the discovery or
261-1 admissibility in a civil action of a document that is not a
261-2 compliance review document.
261-3 (e) In this section:
261-4 (1) "Civil action" means a civil proceeding pending in
261-5 a court or other adjudicatory tribunal with jurisdiction to issue a
261-6 request or subpoena for records, including a voluntary or required
261-7 alternative dispute resolution mechanism under which a party may
261-8 compel the production of records. The term does not include an
261-9 examination or enforcement proceeding initiated by the Federal
261-10 Deposit Insurance Corporation or its successor and the board of
261-11 governors of the Federal Reserve System or its successor, in
261-12 exercise of their jurisdiction.
261-13 (2) "Compliance review document" means a document
261-14 prepared for or created by a compliance review committee.
261-15 (b) Section 1, Chapter 769, Acts of the 75th Legislature,
261-16 Regular Session, 1997 (Article 342a-1.001 et seq., Vernon's Texas
261-17 Civil Statutes), is repealed.
261-18 SECTION 7.17. Chapter 151, Finance Code, is repealed.
261-19 PART 3. CHANGES RELATING TO CREDIT
261-20 SECTION 7.18. (a) Subtitle A, Title 4, Finance Code, is
261-21 amended to conform to Sections 1 and 48, Chapter 1396; Section 1,
261-22 Chapter 81; Section 4, Chapter 906; and Section 7, Chapter 1111,
261-23 Acts of the 75th Legislature, Regular Session, 1997, to read as
261-24 follows:
262-1 SUBTITLE A. INTEREST
262-2 CHAPTER 301. GENERAL PROVISIONS
262-3 Sec. 301.001. SHORT TITLE. This title may be cited as the
262-4 Texas Credit Title.
262-5 Sec. 301.002. DEFINITIONS. (a) In this subtitle:
262-6 (1) "Contract interest" means interest that an obligor
262-7 has paid or agreed to pay to a creditor under a written contract of
262-8 the parties. The term does not include judgment interest.
262-9 (2) "Credit card transaction" means a transaction for
262-10 personal, family, or household use in which a credit card, plate,
262-11 coupon book, or credit card cash advance check may be used or is
262-12 used to debit an open-end account in connection with:
262-13 (A) a purchase or lease of goods or services; or
262-14 (B) a loan of money.
262-15 (3) "Creditor" means a person who loans money or
262-16 otherwise extends credit. The term does not include a judgment
262-17 creditor.
262-18 (4) "Interest" means compensation for the use,
262-19 forbearance, or detention of money. The term does not include time
262-20 price differential, regardless of how it is denominated.
262-21 (5) "Judgment creditor" means a person to whom a money
262-22 judgment is payable.
262-23 (6) "Judgment debtor" means a person obligated to pay
262-24 a money judgment.
262-25 (7) "Judgment interest" means interest on a money
262-26 judgment, whether the interest accrues before, on, or after the
263-1 date the judgment is rendered.
263-2 (8) "Legal interest" means interest charged or
263-3 received in the absence of any agreement by an obligor to pay
263-4 contract interest. The term does not include judgment interest.
263-5 (9) "Lender credit card agreement":
263-6 (A) means an agreement between a creditor and an
263-7 obligor that provides that:
263-8 (i) the obligor, by means of a credit card
263-9 transaction for personal, family, or household use, may:
263-10 (a) obtain loans from the
263-11 creditor directly or through other participating persons; and
263-12 (b) lease or purchase goods
263-13 or services from more than one participating lessor or seller who
263-14 honors the creditor's credit card;
263-15 (ii) the creditor or another person acting
263-16 in cooperation with the creditor is to reimburse the participating
263-17 persons, lessors, or sellers for the loans or the goods or services
263-18 purchased or leased;
263-19 (iii) the obligor is to pay the creditor
263-20 the amount of the loan or cost of the lease or purchase;
263-21 (iv) the unpaid balance of the loan,
263-22 lease, or purchase and interest on that unpaid balance are debited
263-23 to the obligor's account under the agreement;
263-24 (v) interest may be computed on the
263-25 balances of the obligor's account but is not precomputed; and
263-26 (vi) the obligor and the creditor may
264-1 agree that payment of part of the balance may be deferred;
264-2 (B) includes an agreement under Section 342.455
264-3 or Section 346.003(b) or (c) for an open-end account under which
264-4 credit card transactions may be made or a merchant discount may be
264-5 taken; and
264-6 (C) does not include:
264-7 (i) an agreement, including an open-end
264-8 account credit agreement, between a seller and a buyer or between a
264-9 lessor and a lessee; or
264-10 (ii) an agreement under which:
264-11 (a) the entire balance is
264-12 due in full each month; and
264-13 (b) no interest is charged
264-14 if the obligor pays the entire balance each month.
264-15 (10) "Loan" means an advance of money that is made to
264-16 or on behalf of an obligor, the principal amount of which the
264-17 obligor has an obligation to pay the creditor. The term does not
264-18 include a judgment.
264-19 (11) "Merchant discount" means the consideration,
264-20 including a fee, charge, discount, or compensating balance, that a
264-21 creditor requires, or that a creditor, subsidiary, or parent
264-22 company of the creditor, or subsidiary of the creditor's parent
264-23 company, receives directly or indirectly from a person other than
264-24 the obligor in connection with a credit card transaction under a
264-25 lender credit card agreement between the obligor and the creditor.
264-26 The term does not include consideration received by a creditor from
265-1 the obligor in connection with the credit card transaction.
265-2 (12) "Money judgment" means a judgment for money. For
265-3 purposes of this subtitle, the term includes legal interest or
265-4 contract interest, if any, that is payable to a judgment creditor
265-5 under a judgment.
265-6 (13) "Obligor" means a person to whom money is loaned
265-7 or credit is otherwise extended. The term does not include:
265-8 (A) a judgment debtor; or
265-9 (B) a surety, guarantor, or similar person.
265-10 (14) "Open-end account":
265-11 (A) means an account under a written contract
265-12 between a creditor and an obligor in connection with which:
265-13 (i) the creditor reasonably contemplates
265-14 repeated transactions and the obligor is authorized to make
265-15 purchases or borrow money;
265-16 (ii) interest or time price differential
265-17 may be charged from time to time on an outstanding unpaid balance;
265-18 and
265-19 (iii) the amount of credit that may be
265-20 extended during the term of the account is generally made available
265-21 to the extent that any outstanding balance is repaid; and
265-22 (B) includes an account under an agreement
265-23 described by Section 342.455 or Chapter 345 or 346.
265-24 (15) "Prepayment penalty" means consideration agreed
265-25 on and contracted for a discharge of a loan, other than a loan
265-26 governed by Chapter 306, before its maturity or a regularly
266-1 scheduled date of payment, as a result of an obligor's election to
266-2 pay all of the principal amount before its stated maturity or a
266-3 regularly scheduled date of payment.
266-4 (16) "Time price differential" means an amount,
266-5 however denominated or expressed, that is:
266-6 (A) added to the price at which a seller offers
266-7 to sell services or property to a purchaser for cash payable at the
266-8 time of sale; and
266-9 (B) paid or payable to the seller by the
266-10 purchaser for the privilege of paying the offered sales price after
266-11 the time of sale.
266-12 (17) "Usurious interest" means interest that exceeds
266-13 the applicable maximum amount allowed by law.
266-14 (b) These definitions shall be liberally construed to
266-15 accomplish the purposes of this subtitle.
266-16 (c) The Finance Commission of Texas by rule may adopt other
266-17 definitions to accomplish the purposes of this subtitle.
266-18 CHAPTER 302. INTEREST RATES
266-19 SUBCHAPTER A. USURIOUS INTEREST
266-20 Sec. 302.001. CONTRACTING FOR, CHARGING, OR RECEIVING
266-21 INTEREST OR TIME PRICE DIFFERENTIAL; USURIOUS INTEREST. (a) A
266-22 creditor may contract for, charge, and receive from an obligor
266-23 interest or time price differential.
266-24 (b) The maximum rate or amount of interest is 10 percent a
266-25 year except as otherwise provided by law. A greater rate of
266-26 interest than 10 percent a year is usurious unless otherwise
267-1 provided by law. All contracts for usurious interest are contrary
267-2 to public policy and subject to the appropriate penalty prescribed
267-3 by Chapter 305.
267-4 (c) To determine the interest rate of a loan under this
267-5 subtitle, all interest at any time contracted for shall be
267-6 aggregated and amortized using the actuarial method during the
267-7 stated term of the loan.
267-8 Sec. 302.002. ACCRUAL OF INTEREST WHEN NO RATE SPECIFIED.
267-9 If a creditor has not agreed with an obligor to charge the obligor
267-10 any interest, the creditor may charge and receive from the obligor
267-11 legal interest at the rate of six percent a year on the principal
267-12 amount of the credit extended beginning on the 30th day after the
267-13 date on which the amount is due. If an obligor has agreed to pay
267-14 to a creditor any compensation that constitutes interest, the
267-15 obligor is considered to have agreed on the rate produced by the
267-16 amount of that interest, regardless of whether that rate is stated
267-17 in the agreement.
267-18 SUBCHAPTER B. OTHER RATES AND PROVISIONS
267-19 ON LOANS SECURED BY REAL PROPERTY
267-20 Sec. 302.101. DETERMINING RATES OF INTEREST BY SPREADING.
267-21 (a) To determine whether a loan secured in any part by an interest
267-22 in real property, including a lien, mortgage, or security interest,
267-23 is usurious, the interest rate is computed by amortizing or
267-24 spreading, using the actuarial method during the stated term of the
267-25 loan, all interest at any time contracted for, charged, or received
267-26 in connection with the loan.
268-1 (b) If a loan described by Subsection (a) is paid in full
268-2 before the end of the stated term of the loan and the amount of
268-3 interest received for the period that the loan exists exceeds the
268-4 amount that produces the maximum rate authorized by law for that
268-5 period, the lender shall:
268-6 (1) refund the amount of the excess to the borrower;
268-7 or
268-8 (2) credit the amount of the excess against amounts
268-9 owing under the loan.
268-10 (c) A lender who complies with Subsection (b) is not subject
268-11 to any of the penalties provided by law for contracting for,
268-12 charging, or receiving interest in excess of the maximum rate
268-13 authorized.
268-14 Sec. 302.102. PROHIBITION ON PREPAYMENT PENALTY. If the
268-15 interest rate on a loan for property that is to be the residential
268-16 homestead of the borrower is greater than 12 percent a year, a
268-17 prepayment penalty may not be collected on the loan unless the
268-18 penalty is required by an agency created by federal law.
268-19 Sec. 302.103. EFFECT OF FEDERAL PREEMPTION ON LATE CHARGES.
268-20 On loans subject to 12 U.S.C. Sections 1735f-7 and 1735f-7a, as
268-21 amended, any late charges assessed are interest that is included in
268-22 computing the amount or rate of interest on the loan and,
268-23 therefore, covered by the federal preemption of state interest rate
268-24 limitations.
268-25 Sec. 302.104. LOAN TO PURCHASE INTEREST IN ENTITY WITH
268-26 FOREIGN REAL PROPERTY AS PRINCIPAL ASSET. (a) A loan the proceeds
269-1 of which are used primarily to purchase an interest in a trust or
269-2 other entity that has as its principal asset real property located
269-3 outside the United States is:
269-4 (1) not subject to Subtitle B; and
269-5 (2) subject to the interest rate limitations of
269-6 Chapter 303.
269-7 (b) For the purpose of determining the interest rate on a
269-8 loan to which this section applies, all interest contracted for,
269-9 charged, or received shall be amortized, prorated, allocated, and
269-10 spread over the full stated term of the loan.
269-11 (c) This section does not affect application of a law of
269-12 this state governing collateral that may be used to secure a loan
269-13 to which this section applies.
269-14 CHAPTER 303. OPTIONAL RATE CEILINGS
269-15 SUBCHAPTER A. RATE CEILINGS: APPLICABILITY, COMPUTATION,
269-16 AND PUBLICATION
269-17 Sec. 303.001. USE OF CEILINGS. (a) Except as provided by
269-18 Subchapter B, a person may contract for, charge, or receive a rate
269-19 or amount that does not exceed the applicable interest rate ceiling
269-20 provided by this chapter. The use of a ceiling provided by this
269-21 chapter for any contract is optional, and a contract may provide
269-22 for a rate or amount allowed by other applicable law.
269-23 (b) A contract that is subject to Chapter 342, 345, 347, or
269-24 348, including a contract for an open-end account, may, as an
269-25 alternative to an interest rate or amount of time price
269-26 differential allowed under that chapter, provide for a simple or
270-1 precomputed rate or amount of time price differential that does not
270-2 exceed the applicable ceiling provided by this chapter or by the
270-3 equivalent yield authorized by Chapter 342, 345, 347, or 348.
270-4 (c) Except as inconsistent with this chapter, a party to a
270-5 contract that is subject to Chapter 342, 345, 347, or 348, or the
270-6 party's assignee, has all rights, duties, and obligations under the
270-7 applicable chapter, including those relating to refund credits on
270-8 prepayment or acceleration.
270-9 Sec. 303.002. WEEKLY CEILING. The parties to a written
270-10 agreement may agree to an interest rate, or in an agreement
270-11 described by Chapter 345, 347, or 348, an amount of time price
270-12 differential producing a rate, that does not exceed the applicable
270-13 weekly ceiling.
270-14 Sec. 303.003. COMPUTATION OF WEEKLY CEILING. (a) The
270-15 weekly ceiling is computed by:
270-16 (1) multiplying the auction rate by two; and
270-17 (2) rounding the result obtained under Subdivision (1)
270-18 to the nearest one-quarter of one percent.
270-19 (b) The weekly rate ceiling becomes effective on Monday of
270-20 each week and remains in effect through the following Sunday.
270-21 (c) In this section, "auction rate" means the auction
270-22 average rate quoted on a bank discount basis for 26-week treasury
270-23 bills issued by the United States government, as published by the
270-24 Federal Reserve Board, for the week preceding the week in which the
270-25 weekly rate ceiling is to take effect.
270-26 Sec. 303.004. MONTHLY CEILING. (a) The monthly ceiling may
271-1 be used as an alternative to the weekly ceiling only for a contract
271-2 that:
271-3 (1) provides for a variable rate, including a contract
271-4 for an open-end account; and
271-5 (2) is not made for personal, family, or household
271-6 use.
271-7 (b) A contract that provides for the use of the monthly
271-8 ceiling may not provide for the use of another rate ceiling
271-9 provided under this subchapter.
271-10 (c) If the parties agree that the rate may be adjusted
271-11 monthly, they may agree that the rate from time to time in effect
271-12 may not exceed the monthly ceiling from time to time in effect, and
271-13 the monthly ceiling is the ceiling on those contracts.
271-14 Sec. 303.005. COMPUTATION OF MONTHLY CEILING. (a) The
271-15 consumer credit commissioner shall compute the monthly ceiling on
271-16 the first business day of the calendar month in which the rate
271-17 applies. The monthly ceiling is effective for one month beginning
271-18 on the first calendar day of each month.
271-19 (b) The monthly ceiling is computed by averaging all of the
271-20 weekly ceilings computed using rates from auctions held during the
271-21 calendar month preceding the computation date of the monthly
271-22 ceiling.
271-23 Sec. 303.006. QUARTERLY CEILING. (a) A written contract,
271-24 including a contract that involves an open-end account, may, as an
271-25 alternative to the weekly ceiling, provide for an interest rate or
271-26 an amount of time price differential producing a rate that does not
272-1 exceed the applicable quarterly ceiling.
272-2 (b) A variable rate contract authorized under Section
272-3 303.015 may not provide for use of both the weekly ceiling and the
272-4 quarterly ceiling.
272-5 (c) Notwithstanding other provisions of this subchapter, the
272-6 rate of interest on an open-end account authorized under Section
272-7 342.455 or 346.003, or an amount owed for a credit card transaction
272-8 under another type of credit card agreement, in connection with
272-9 which a merchant discount is imposed or received by the creditor
272-10 may not exceed the applicable quarterly ceiling.
272-11 Sec. 303.007. ANNUALIZED CEILING. The annualized ceiling
272-12 may be used as an alternative to the weekly ceiling only for a
272-13 written contract that involves an open-end account.
272-14 Sec. 303.008. COMPUTATION OF QUARTERLY AND ANNUALIZED
272-15 CEILING. (a) On December 1, March 1, June 1, and September 1 of
272-16 each year, the consumer credit commissioner shall compute the
272-17 quarterly ceiling and annualized ceiling for the calendar quarter
272-18 effective the following January 1, April 1, July 1, and October 1,
272-19 respectively. The quarterly ceiling becomes effective for
272-20 three-month periods beginning on the effective dates set out in
272-21 this subsection and is subject to adjustment after each three-month
272-22 period. The annualized ceiling becomes effective on each of the
272-23 effective dates set out in this subsection and remains in effect
272-24 for a period of 12 months, after which it is subject to adjustment.
272-25 (b) The quarterly ceiling and annualized ceiling are
272-26 computed by averaging all of the weekly ceilings computed using
273-1 average auction rates during the three calendar months preceding
273-2 the computation date of the ceiling.
273-3 Sec. 303.009. MAXIMUM AND MINIMUM WEEKLY, MONTHLY,
273-4 QUARTERLY, OR ANNUALIZED CEILING. (a) Except as provided by
273-5 Subsection (e), if the rate computed for the weekly, monthly,
273-6 quarterly, or annualized ceiling is less than 18 percent a year,
273-7 the ceiling is 18 percent a year.
273-8 (b) Except as provided by Subsection (c), (d), or (e), if
273-9 the rate computed for the weekly, monthly, quarterly, or annualized
273-10 ceiling is more than 24 percent a year, the ceiling is 24 percent a
273-11 year.
273-12 (c) For a contract made, extended, or renewed under which
273-13 credit is extended for a business, commercial, investment, or
273-14 similar purpose and the amount of the credit extension is $250,000
273-15 or more, the 24-percent limitation on the ceilings in Subsection
273-16 (b) does not apply, and the limitation on the ceilings determined
273-17 by those computations is 28 percent a year.
273-18 (d) For an open-end account credit agreement that provides
273-19 for credit card transactions on which a merchant discount is not
273-20 imposed or received by the creditor, if the rate computed for the
273-21 weekly ceiling, monthly ceiling, quarterly ceiling, or annualized
273-22 ceiling is more than 21 percent a year, the ceiling is 21 percent a
273-23 year.
273-24 (e) For an open-end account authorized under Section 342.455
273-25 or 346.003, in connection with which credit card transactions are
273-26 authorized or a merchant discount is imposed or received by the
274-1 creditor:
274-2 (1) if the rate computed for the quarterly ceiling is
274-3 less than 14 percent a year, the quarterly ceiling is 14 percent a
274-4 year; and
274-5 (2) if the rate computed for the quarterly ceiling is
274-6 more than 22 percent a year, the quarterly ceiling is 22 percent a
274-7 year.
274-8 (f) In this chapter, "weekly ceiling," "monthly ceiling,"
274-9 "quarterly ceiling," or "annualized ceiling" refers to that ceiling
274-10 as determined after the application of this section.
274-11 Sec. 303.010. COMPUTATION OF CEILING IF INFORMATION
274-12 UNAVAILABLE. If any of the information required to compute a
274-13 ceiling is discontinued or is otherwise not available to the
274-14 consumer credit commissioner from the Federal Reserve Board in the
274-15 time required for the computation, the ceiling last computed
274-16 remains in effect until the information becomes available and a new
274-17 ceiling is computed from the obtained information.
274-18 Sec. 303.011. PUBLICATION OF RATE CEILINGS. (a) The
274-19 consumer credit commissioner shall send the rate ceilings computed
274-20 under this subchapter to the secretary of state for publication in
274-21 the Texas Register.
274-22 (b) The monthly, quarterly, or annualized ceiling shall be
274-23 published before the 11th day after the date on which the ceiling
274-24 is computed.
274-25 Sec. 303.012. JUDICIAL NOTICE. A court may take judicial
274-26 notice of interpretations issued by the consumer credit
275-1 commissioner or information published in the Texas Register under
275-2 Section 303.011.
275-3 Sec. 303.013. DETERMINATION OF CEILING FOR CONTRACT TO RENEW
275-4 OR EXTEND DEBT PAYMENT. The rate ceiling for a contract to renew
275-5 or extend the terms of payment of a debt is the ceiling in effect
275-6 under this chapter when the contract for renewal or extension is
275-7 made, regardless of when the debt is incurred.
275-8 Sec. 303.014. RATE FOR LENDER CREDIT CARD AGREEMENT WITH
275-9 MERCHANT DISCOUNT. On an amount owed for a credit card transaction
275-10 under a lender credit card agreement that imposes or allows the
275-11 creditor to receive a merchant discount, the creditor may not
275-12 contract for, charge, or receive:
275-13 (1) a rate that exceeds the ceiling provided under
275-14 Section 303.006(c); or
275-15 (2) a fee or charge that:
275-16 (A) is not allowed under Chapter 346; or
275-17 (B) exceeds the amount allowed under Chapter
275-18 346.
275-19 Sec. 303.015. VARIABLE RATE. (a) The parties to a
275-20 contract, including a contract for an open-end account, may agree
275-21 to any index, formula, or provision of law by which the interest
275-22 rate or amount of time price differential will be determined, but
275-23 the agreed rate of interest or yield from an amount of time price
275-24 differential may not exceed the amount that would be produced by
275-25 the rate ceiling applicable to the contract.
275-26 (b) A variable contract rate described by this section may
276-1 not be used in a contract in which the interest or time price
276-2 differential is precomputed and added into the amount of the
276-3 contract at the time the contract is made.
276-4 (c) A variable rate agreement for credit extended primarily
276-5 for personal, family, or household use must include the disclosures
276-6 identified for variable rate contracts required by regulations
276-7 issued by the Federal Reserve Board under the Truth in Lending Act
276-8 (15 U.S.C. Section 1601 et seq.), as amended, except that if that
276-9 Act does not apply because of the amount of the transaction, the
276-10 following disclosure must be included in a size equal to at least
276-11 10-point type that is boldface, capitalized, underlined, or
276-12 otherwise set out from surrounding material so as to be
276-13 conspicuous:
276-14 "NOTICE TO CONSUMER: UNDER TEXAS LAW, IF YOU CONSENT
276-15 TO THIS AGREEMENT, YOU MAY BE SUBJECT TO A FUTURE RATE
276-16 AS HIGH AS 24 PERCENT PER YEAR."
276-17 Sec. 303.016. CHARGING OF RATE LOWER THAN AGREED RATE. A
276-18 creditor may charge an interest rate or amount of time price
276-19 differential that is lower than the rate or amount agreed to in the
276-20 contract.
276-21 SUBCHAPTER B. OPEN-END ACCOUNTS
276-22 Sec. 303.101. OPEN-END ACCOUNT: CEILINGS. (a) To use the
276-23 quarterly or annualized ceiling for setting the interest rate on
276-24 current and future open-end account balances, the agreement must
276-25 provide for use of the ceiling, and the creditor must give notice
276-26 of the interest rate after the date on which the quarterly or
277-1 annualized ceiling is computed but before the last day of the next
277-2 succeeding calendar quarter.
277-3 (b) If the annualized ceiling is used, the rate is effective
277-4 for the 12-month period beginning on the date on which the rate
277-5 takes effect for the account.
277-6 (c) If the quarterly ceiling is used, the rate is effective
277-7 for the three-month period beginning on the date on which the rate
277-8 takes effect for the account. For an open-end account authorized
277-9 under Section 342.455 or 346.003, in connection with which credit
277-10 card transactions are authorized or a merchant discount is imposed
277-11 or received by the creditor, the quarterly ceiling shall be
277-12 adjusted, at the option of the creditor, on:
277-13 (1) the effective dates provided by Section 303.008;
277-14 or
277-15 (2) the first day of the first billing cycle of the
277-16 account beginning after those dates.
277-17 (d) If a quarterly or annualized ceiling is being used for
277-18 an account and if the rate for the applicable period is less than
277-19 or equal to the ceiling to be in effect for the succeeding period
277-20 of equal length, the creditor may leave that rate in effect for the
277-21 succeeding period.
277-22 (e) A creditor who has disclosed to an obligor that an
277-23 election may be renewed under Subsection (d) is not required to
277-24 give additional notice of a renewal under that subsection.
277-25 (f) To increase a previously agreed rate, a creditor shall
277-26 comply with Section 303.103 before the end of the last calendar
278-1 quarter of the period in which the rate previously agreed to is in
278-2 effect. The ceiling in effect for that period remains the ceiling
278-3 until the parties to the agreement agree to a new rate.
278-4 Sec. 303.102. VARIABLE RATE OPEN-END ACCOUNT: CEILINGS.
278-5 The applicable rate ceiling for an open-end account agreement that
278-6 provides for a variable rate or amount according to an index,
278-7 formula, or provision of law disclosed to the obligor, other than a
278-8 variable rate commercial contract that is subject to Section
278-9 303.004, is the annualized, quarterly, or weekly ceiling as
278-10 disclosed to the obligor. The annualized ceiling shall be adjusted
278-11 after each 12-month period, the quarterly ceiling shall be adjusted
278-12 after each three-month period, and the weekly ceiling shall be
278-13 adjusted weekly.
278-14 Sec. 303.103. OPEN-END ACCOUNT: CHANGE OF AGREEMENT TERM.
278-15 (a) An agreement covering an open-end account may provide that the
278-16 creditor may change the terms of the agreement for current and
278-17 future balances of that account by giving notice of the change to
278-18 the obligor.
278-19 (b) A notice under this section to change a provision of an
278-20 account, including the rate, or the index or formula used to
278-21 compute the rate, must include:
278-22 (1) the new provision, the new rate, or the index or
278-23 formula to be used to compute the rate;
278-24 (2) the date on which the change is to take effect;
278-25 (3) the period for which the change is to be effective
278-26 or after which the rate will be adjusted;
279-1 (4) a statement of whether the change is to affect
279-2 current and future balances; and
279-3 (5) the obligor's rights under this section and the
279-4 procedures for the obligor to exercise those rights.
279-5 (c) A creditor who increases a rate shall include with a
279-6 notice required by this section a form that may be returned at the
279-7 expense of the creditor and on which the obligor may indicate by
279-8 checking or marking an appropriate box or by a similar arrangement
279-9 the obligor's decision not to continue the account. The form may
279-10 be included on a part of the account statement that is to be
279-11 returned to the creditor or on a separate sheet. In addition to
279-12 the requirements of Subsection (b), the notice must include:
279-13 (1) the address to which the obligor may send notice
279-14 of the obligor's election not to continue the open-end account; and
279-15 (2) the following statement printed in not less than
279-16 10-point type or computer equivalent:
279-17 "YOU MAY TERMINATE THIS AGREEMENT IF YOU DO NOT WISH TO
279-18 PAY THE NEW RATE."
279-19 (d) An obligor is considered to have agreed to a change
279-20 under this section if the creditor mails a notice required by this
279-21 section to the obligor's most recent address shown in the
279-22 creditor's records and:
279-23 (1) the obligor chooses to retain the privilege of
279-24 using the open-end account;
279-25 (2) the obligor or a person authorized by the obligor
279-26 accepts or uses an extension of credit after the fifth day after
280-1 the date on which the notice is mailed; or
280-2 (3) the obligor does not notify the creditor in
280-3 writing before the 21st day after the date on which the notice is
280-4 mailed that the obligor does not wish to continue to use the
280-5 open-end account.
280-6 (e) An obligor who rejects a rate change in accordance with
280-7 this section is entitled to pay the balance on the open-end account
280-8 at the rate and over the period in effect immediately before the
280-9 date of the proposed change and under the same minimum payment
280-10 terms provided by the agreement. Rejection of a new rate does not
280-11 accelerate payment of the balance due.
280-12 (f) The procedure provided by this section for changing the
280-13 terms of an agreement is in addition to other means of amending the
280-14 agreement provided by law.
280-15 Sec. 303.104. DISCLOSURE OF DECREASE IN INTEREST RATE NOT
280-16 REQUIRED ON OPEN-END ACCOUNTS INVOLVING CREDIT CARD TRANSACTION OR
280-17 MERCHANT DISCOUNT. On an open-end account authorized under Section
280-18 342.455 or 346.003, in connection with which credit card
280-19 transactions are authorized or a merchant discount is imposed or
280-20 received by the creditor and on which interest is charged under
280-21 this chapter, the creditor is not required to disclose a decrease
280-22 in the applicable interest rate.
280-23 Sec. 303.105. OPEN-END ACCOUNT: DISCLOSURE OF CERTAIN RATE
280-24 VARIATIONS. (a) Except as provided by Subsection (b), a variation
280-25 in an interest rate on an account resulting from operation of the
280-26 previously disclosed index, formula, or provision of law is not
281-1 required to be disclosed under Section 303.101 or 303.103.
281-2 (b) Except as inconsistent with federal law, the creditor on
281-3 an open-end account agreement that provides for a variable interest
281-4 rate according to an index, formula, or provision of law, that is
281-5 primarily for personal, family, or household use, and that is
281-6 subject to this chapter shall give to the obligor notice of a
281-7 change in the rate resulting from operation of the index, formula,
281-8 or provision of law. The notice must be given:
281-9 (1) by a document mailed on or before the beginning of
281-10 the first cycle for which the change becomes effective; or
281-11 (2) on or with:
281-12 (A) the billing statement for a billing cycle
281-13 that precedes the cycle for which the change becomes effective, if
281-14 the account is covered by Section 303.006(c); or
281-15 (B) any billing statement, if the account is not
281-16 covered by Section 303.006(c).
281-17 Sec. 303.106. OPEN-END ACCOUNT: CEILING FOR PLAN OR
281-18 ARRANGEMENT. If a creditor implements a quarterly or annualized
281-19 ceiling for a majority of the creditor's open-end accounts that are
281-20 under a particular plan or arrangement and that are for obligors in
281-21 this state, that ceiling is also the ceiling for all open-end
281-22 accounts that are opened or activated under that plan for obligors
281-23 in this state during the period that the election is in effect.
281-24 SUBCHAPTER C. PROVISIONS APPLICABLE TO CERTAIN
281-25 CONSUMER LOANS AND SECONDARY MORTGAGE LOANS
281-26 Sec. 303.201. LICENSE REQUIRED. A person engaged in the
282-1 business of making loans for which the rate is authorized under
282-2 this chapter must obtain a license under Chapter 342 unless the
282-3 person is not required to obtain a license under Section 342.051.
282-4 Sec. 303.202. APPLICABILITY OF SUBTITLE B. Except as
282-5 inconsistent with this chapter:
282-6 (1) a person engaged in the business of extending
282-7 open-end credit primarily for personal, family, or household use
282-8 and who charges on an open-end account a rate or amount under
282-9 authority of this chapter is subject to the applicable chapter in
282-10 Subtitle B; and
282-11 (2) a party to an account described by Subdivision (1)
282-12 or the party's assignees have all the rights, duties, and
282-13 obligations under that applicable chapter.
282-14 SUBCHAPTER D. LIMITATIONS ON APPLICABILITY OF CHAPTER
282-15 Sec. 303.301. AGREEMENT TO WHICH CHAPTER DOES NOT APPLY.
282-16 The rate ceilings provided by this chapter do not apply to an
282-17 agreement:
282-18 (1) under which credit is extended by the seller, or
282-19 an owner, subsidiary, or corporate affiliate of the seller, for a
282-20 transaction governed by Chapter 39, Business & Commerce Code; and
282-21 (2) that is secured by a lien on the obligor's
282-22 homestead.
282-23 Sec. 303.302. REQUIREMENTS INCONSISTENT WITH FEDERAL LAW.
282-24 (a) A person is not required to comply with a disclosure or notice
282-25 requirement of this chapter that is inconsistent with federal
282-26 statute or regulation.
283-1 (b) A creditor may modify a disclosure or notice requirement
283-2 of this chapter to conform to federal law.
283-3 SUBCHAPTER E. ENFORCEMENT
283-4 Sec. 303.401. WHEN ACT OR OMISSION NOT VIOLATION. An act or
283-5 omission does not violate this title if the act or omission
283-6 conforms to an interpretation of this title that is in effect at
283-7 the time of the act or omission and that was made by:
283-8 (1) the consumer credit commissioner under Section
283-9 14.108; or
283-10 (2) an appellate court of this state or the United
283-11 States.
283-12 Sec. 303.402. PENALTY FOR VIOLATION OF CHAPTER FOR CERTAIN
283-13 CONTRACTS SUBJECT TO SUBTITLE B. (a) A person who contracts for,
283-14 charges, or receives under a contract subject to Chapter 342, 345,
283-15 346, 347, or 348, including a contract for an open-end account, a
283-16 rate or amount of time price differential that exceeds the maximum
283-17 applicable rate or amount authorized by the applicable chapter or
283-18 this chapter is subject to a penalty for that violation determined
283-19 under Chapter 349.
283-20 (b) For a contract described by Subsection (a) that contains
283-21 a rate or amount authorized under this chapter, the failure to
283-22 perform a duty or comply with a prohibition provided by this
283-23 chapter is subject to Chapter 349 as if this chapter were in
283-24 Subtitle B.
283-25 Sec. 303.403. PENALTY FOR VIOLATION OF CEILING IN CERTAIN
283-26 CONTRACTS. A written contract, other than a contract to which
284-1 Section 303.402 applies, that directly or indirectly provides for a
284-2 rate that exceeds the rate authorized by this chapter and that is
284-3 not otherwise authorized by law, is subject to the penalty
284-4 prescribed by Chapter 305.
284-5 Sec. 303.404. ENFORCEMENT BY CONSUMER CREDIT COMMISSIONER.
284-6 Subject to Subchapter B, Chapter 341, the consumer credit
284-7 commissioner shall enforce Subtitles B and C as they apply to
284-8 contracts subject to those chapters.
284-9 Sec. 303.405. EXAMINATION OF RECORDS; INSPECTIONS; RULES.
284-10 (a) Section 342.552 applies to a transaction:
284-11 (1) that is made by a person who holds a license under
284-12 Chapter 342;
284-13 (2) that is subject to Chapter 342 or 346; and
284-14 (3) the rate of which is authorized by this chapter.
284-15 (b) Subchapter L, Chapter 342, applies to a loan:
284-16 (1) that is subject to Chapter 342; and
284-17 (2) the rate of which is authorized by this chapter.
284-18 Sec. 303.406. ENFORCEMENT BY CREDIT UNION COMMISSIONER. The
284-19 credit union commissioner shall enforce this chapter as it applies
284-20 to contracts subject to Subtitle D, Title 3.
284-21 Sec. 303.407. ENFORCEMENT BY DEPARTMENT OF INSURANCE. The
284-22 Texas Department of Insurance shall enforce this chapter as it
284-23 applies to contracts subject to Chapter 24, Insurance Code.
284-24 SUBCHAPTER F. EFFECT ON OTHER STATUTES OF USING OPTIONAL RATE
284-25 Sec. 303.501. APPLICABILITY OF CREDIT UNION ACT. Except as
284-26 inconsistent with this chapter:
285-1 (1) a person subject to Subtitle D, Title 3, who
285-2 contracts for, charges, or receives a rate or amount authorized by
285-3 this chapter remains subject to that subtitle; and
285-4 (2) a party to a transaction described by Subdivision
285-5 (1) has all the rights provided by that subtitle.
285-6 Sec. 303.502. APPLICABILITY OF CHAPTER 24, INSURANCE CODE.
285-7 (a) Except as inconsistent with this chapter:
285-8 (1) a person subject to Chapter 24, Insurance Code,
285-9 who contracts for, charges, or receives an interest rate authorized
285-10 by this chapter remains subject to that chapter; and
285-11 (2) a party to an insurance premium finance agreement,
285-12 including an agreement for an open-end account, has all the rights
285-13 provided by Chapter 24, Insurance Code.
285-14 (b) The licensing requirements of Chapter 342 do not apply
285-15 to a transaction described by Subsection (a)(1). The penalty
285-16 provisions of this title do not apply to a transaction described by
285-17 Subsection (a)(1).
285-18 CHAPTER 304. JUDGMENT INTEREST
285-19 SUBCHAPTER A. GENERAL PROVISIONS
285-20 Sec. 304.001. INTEREST RATE REQUIRED IN JUDGMENT. A money
285-21 judgment of a court in this state must specify the postjudgment
285-22 interest rate applicable to that judgment.
285-23 Sec. 304.002. JUDGMENT INTEREST RATE: INTEREST RATE OR TIME
285-24 PRICE DIFFERENTIAL IN CONTRACT. A money judgment of a court of
285-25 this state on a contract that provides for interest or time price
285-26 differential earns postjudgment interest at a rate equal to the
286-1 lesser of:
286-2 (1) the rate specified in the contract, which may be a
286-3 variable rate; or
286-4 (2) 18 percent a year.
286-5 Sec. 304.003. JUDGMENT INTEREST RATE: INTEREST RATE OR TIME
286-6 PRICE DIFFERENTIAL NOT IN CONTRACT. (a) A money judgment of a
286-7 court of this state to which Section 304.002 does not apply,
286-8 including court costs awarded in the judgment and prejudgment
286-9 interest, if any, earns postjudgment interest at the rate
286-10 determined under this section.
286-11 (b) On the 15th day of each month, the consumer credit
286-12 commissioner shall determine the postjudgment interest rate to be
286-13 applied to a money judgment rendered during the succeeding calendar
286-14 month.
286-15 (c) The postjudgment interest rate is:
286-16 (1) the auction rate quoted on a discount basis for
286-17 52-week treasury bills issued by the United States government as
286-18 most recently published by the Federal Reserve Board before the
286-19 date of computation;
286-20 (2) 10 percent a year if the auction rate described by
286-21 Subdivision (1) is less than 10 percent; or
286-22 (3) 20 percent a year if the auction rate described by
286-23 Subdivision (1) is more than 20 percent.
286-24 Sec. 304.004. PUBLICATION OF JUDGMENT INTEREST RATE. The
286-25 consumer credit commissioner shall send to the secretary of state
286-26 the postjudgment interest rate for publication, and the secretary
287-1 shall publish the rate in the Texas Register.
287-2 Sec. 304.005. ACCRUAL OF JUDGMENT INTEREST. (a) Except as
287-3 provided by Subsection (b), postjudgment interest on a money
287-4 judgment of a court in this state accrues during the period
287-5 beginning on the date the judgment is rendered and ending on the
287-6 date the judgment is satisfied.
287-7 (b) If a case is appealed and a motion for extension of time
287-8 to file a brief is granted for a party who was a claimant at trial,
287-9 interest does not accrue for the period of extension.
287-10 Sec. 304.006. COMPOUNDING OF JUDGMENT INTEREST.
287-11 Postjudgment interest on a judgment of a court in this state
287-12 compounds annually.
287-13 Sec. 304.007. JUDICIAL NOTICE OF JUDGMENT INTEREST RATE. A
287-14 court of this state shall take judicial notice of a published
287-15 postjudgment interest rate.
287-16 SUBCHAPTER B. PREJUDGMENT INTEREST IN WRONGFUL DEATH,
287-17 PERSONAL INJURY, OR PROPERTY DAMAGE CASE
287-18 Sec. 304.101. APPLICABILITY OF SUBCHAPTER. This subchapter
287-19 applies only to a wrongful death, personal injury, or property
287-20 damage case of a court of this state.
287-21 Sec. 304.102. PREJUDGMENT INTEREST REQUIRED IN CERTAIN
287-22 CASES. A judgment in a wrongful death, personal injury, or
287-23 property damage case earns prejudgment interest.
287-24 Sec. 304.103. PREJUDGMENT INTEREST RATE FOR WRONGFUL DEATH,
287-25 PERSONAL INJURY, OR PROPERTY DAMAGE CASE. The prejudgment interest
287-26 rate is equal to the postjudgment interest rate applicable at the
288-1 time of judgment.
288-2 Sec. 304.104. ACCRUAL OF PREJUDGMENT INTEREST. Except as
288-3 provided by Section 304.105 or 304.108, prejudgment interest
288-4 accrues on the amount of a judgment during the period beginning on
288-5 the earlier of the 180th day after the date the defendant receives
288-6 written notice of a claim or the date the suit is filed and ending
288-7 on the day preceding the date judgment is rendered. Prejudgment
288-8 interest is computed as simple interest and does not compound.
288-9 Sec. 304.105. EFFECT OF SETTLEMENT OFFER ON ACCRUAL OF
288-10 PREJUDGMENT INTEREST. (a) If judgment for a claimant is equal to
288-11 or less than the amount of a settlement offer of the defendant,
288-12 prejudgment interest does not accrue on the amount of the judgment
288-13 during the period that the offer may be accepted.
288-14 (b) If judgment for a claimant is more than the amount of a
288-15 settlement offer of the defendant, prejudgment interest does not
288-16 accrue on the amount of the settlement offer during the period that
288-17 the offer may be accepted.
288-18 Sec. 304.106. SETTLEMENT OFFER REQUIREMENTS TO PREVENT
288-19 PREJUDGMENT INTEREST ACCRUAL. To prevent the accrual of
288-20 prejudgment interest under this subchapter, a settlement offer must
288-21 be in writing and delivered to the claimant or the claimant's
288-22 attorney or representative.
288-23 Sec. 304.107. VALUE OF SETTLEMENT OFFER FOR COMPUTING
288-24 PREJUDGMENT INTEREST. If a settlement offer does not provide for
288-25 cash payment at the time of settlement, the amount of the
288-26 settlement offer for the purpose of computing prejudgment interest
289-1 is the cost or fair market value of the settlement offer at the
289-2 time it is made.
289-3 Sec. 304.108. ACCRUAL OF PREJUDGMENT INTEREST DURING PERIODS
289-4 OF TRIAL DELAY. (a) In addition to the exceptions provided by
289-5 Section 304.105, a court may order that prejudgment interest does
289-6 not accrue during periods of delay in the trial.
289-7 (b) A court shall consider:
289-8 (1) periods of delay caused by a defendant; and
289-9 (2) periods of delay caused by a claimant.
289-10 SUBCHAPTER C. OTHER PREJUDGMENT INTEREST PROVISIONS
289-11 Sec. 304.201. PREJUDGMENT INTEREST RATE FOR CONDEMNATION
289-12 CASE. The prejudgment interest rate in a condemnation case is
289-13 equal to the postjudgment interest rate at the time of judgment and
289-14 is computed as simple interest.
289-15 SUBCHAPTER D. EXCEPTIONS TO APPLICATION OF CHAPTER
289-16 Sec. 304.301. EXCEPTION FOR DELINQUENT TAXES. This chapter
289-17 does not apply to a judgment:
289-18 (1) in favor of a taxing unit in a delinquent tax suit
289-19 under Subchapter C, Chapter 33, Tax Code; or
289-20 (2) that earns interest at a rate set by Title 2, Tax
289-21 Code.
289-22 Sec. 304.302. EXCEPTION FOR DELINQUENT CHILD SUPPORT. This
289-23 chapter does not apply to interest that accrues on an amount of
289-24 unpaid child support under Section 157.265, Family Code.
290-1 CHAPTER 305. PENALTIES AND REMEDIES
290-2 SUBCHAPTER A. CIVIL LIABILITY; CRIMINAL PENALTY
290-3 Sec. 305.001. LIABILITY FOR USURIOUS INTEREST. (a) A
290-4 creditor who contracts for, charges, or receives interest that is
290-5 greater than the amount authorized by this subtitle is liable to
290-6 the obligor for an amount that is equal to the greater of:
290-7 (1) three times the amount computed by subtracting the
290-8 amount of interest allowed by law from the total amount of interest
290-9 contracted for, charged, or received; or
290-10 (2) $2,000 or 20 percent of the amount of the
290-11 principal, whichever is less.
290-12 (b) This section applies only to a contract or transaction
290-13 subject to this subtitle.
290-14 (c) A creditor who charges or receives interest in excess of
290-15 the amount contracted for, but not in excess of the maximum amount
290-16 authorized by law, is not subject to penalties for usurious
290-17 interest but may be liable for other remedies and relief as
290-18 provided by law.
290-19 Sec. 305.002. ADDITIONAL LIABILITY FOR MORE THAN TWICE
290-20 AUTHORIZED RATE OF INTEREST. (a) In addition to the amount
290-21 determined under Section 305.001, a creditor who charges and
290-22 receives interest that is greater than twice the amount authorized
290-23 by this subtitle is liable to the obligor for:
290-24 (1) the principal amount on which the interest is
290-25 charged and received; and
290-26 (2) the interest and all other amounts charged and
291-1 received.
291-2 (b) This section applies only to a contract or transaction
291-3 subject to this subtitle.
291-4 Sec. 305.003. LIABILITY FOR USURIOUS LEGAL INTEREST. (a) A
291-5 creditor who charges or receives legal interest that is greater
291-6 than the amount authorized by this subtitle is liable to the
291-7 obligor for an amount that is equal to the greater of:
291-8 (1) three times the amount computed by subtracting the
291-9 amount of legal interest allowed by law from the total amount of
291-10 interest charged or received; or
291-11 (2) $2,000 or 20 percent of the amount of the
291-12 principal, whichever is less.
291-13 (b) This section applies only to a transaction subject to
291-14 this subtitle.
291-15 Sec. 305.004. ADDITIONAL LIABILITY FOR MORE THAN TWICE
291-16 AUTHORIZED RATE OF LEGAL INTEREST. (a) In addition to the amount
291-17 determined under Section 305.003, a creditor who charges and
291-18 receives legal interest that is greater than twice the amount
291-19 authorized by this subtitle is liable to the obligor for:
291-20 (1) the principal amount on which the interest is
291-21 charged and received; and
291-22 (2) the interest and all other amounts charged and
291-23 received.
291-24 (b) This section applies only to a transaction subject to
291-25 this subtitle.
291-26 Sec. 305.005. ATTORNEY'S FEES. A creditor who is liable
292-1 under Section 305.001 or 305.003 is also liable to the obligor for
292-2 reasonable attorney's fees set by the court.
292-3 Sec. 305.006. LIMITATION ON FILING SUIT. (a) An action
292-4 under this chapter must be brought within four years after the date
292-5 on which the usurious interest was contracted for, charged, or
292-6 received. The action must be brought in the county in which:
292-7 (1) the transaction was entered into;
292-8 (2) the usurious interest was charged or received;
292-9 (3) the creditor resides at the time of the cause of
292-10 action, if the creditor is an individual;
292-11 (4) the creditor maintains its principal office, if
292-12 the creditor is not an individual; or
292-13 (5) the obligor resides at the time of the accrual of
292-14 the cause of action.
292-15 (b) Not later than the 61st day before the date an obligor
292-16 files a suit seeking penalties for a transaction in which a
292-17 creditor has contracted for or charged usurious interest, the
292-18 obligor shall give the creditor written notice stating in
292-19 reasonable detail the nature and amount of the violation.
292-20 (c) A creditor who receives a notice under this section may
292-21 correct the violation as provided by Section 305.103 during the
292-22 period beginning on the date the notice is received and ending on
292-23 the 60th day after that date. A creditor who corrects a violation
292-24 as provided by this section is not liable to an obligor for the
292-25 violation.
292-26 (d) The notice requirement of Subsection (b) does not apply
293-1 to a defendant filing a counterclaim action alleging usurious
293-2 interest in an original action by the creditor.
293-3 Sec. 305.007. PENALTIES EXCLUSIVE. The penalties provided
293-4 by this chapter are the only penalties for violation of this
293-5 subtitle for contracting for, charging, or receiving interest in an
293-6 amount that produces a rate in excess of the maximum rate allowed
293-7 by law. Common law penalties do not apply.
293-8 Sec. 305.008. CRIMINAL PENALTY. (a) A person commits an
293-9 offense if the person contracts for, charges, or receives interest
293-10 on a transaction for personal, family, or household use that is
293-11 greater than twice the amount authorized by this subtitle.
293-12 (b) An offense under this section is a misdemeanor
293-13 punishable by a fine of not more than $1,000.
293-14 (c) Each contract or transaction that violates this section
293-15 is a separate offense.
293-16 (d) This section applies only to a contract or transaction
293-17 subject to this subtitle.
293-18 SUBCHAPTER B. EXCEPTION FROM LIABILITY
293-19 Sec. 305.101. ACCIDENTAL AND BONA FIDE ERROR. A creditor is
293-20 not subject to penalty under this chapter for any usurious interest
293-21 that results from an accidental and bona fide error.
293-22 Sec. 305.102. LEGAL INTEREST DURING INTEREST-FREE PERIOD. A
293-23 person is not liable to an obligor solely because the person
293-24 charges or receives legal interest before the 30th day after the
293-25 date on which the debt is due.
293-26 Sec. 305.103. CORRECTION OF VIOLATION. (a) A creditor is
294-1 not liable to an obligor for a violation of this subtitle if:
294-2 (1) not later than the 60th day after the date the
294-3 creditor actually discovered the violation, the creditor corrects
294-4 the violation as to that obligor by taking any necessary action and
294-5 making any necessary adjustment, including the payment of interest
294-6 on a refund, if any, at the applicable rate provided for in the
294-7 contract of the parties; and
294-8 (2) the creditor gives written notice to the obligor
294-9 of the violation before the obligor gives written notice of the
294-10 violation or files an action alleging the violation.
294-11 (b) For the purposes of Subsection (a), a violation is
294-12 actually discovered at the time of the discovery of the violation
294-13 in fact and not at the time when an ordinarily prudent person,
294-14 through reasonable diligence, could or should have discovered or
294-15 known of the violation. Actual discovery of a violation in one
294-16 transaction may constitute actual discovery of the same violation
294-17 in other transactions if the violation is of such a nature that it
294-18 would necessarily be repeated and would be clearly apparent in the
294-19 other transactions without the necessity of examining all the other
294-20 transactions.
294-21 (c) For purposes of Subsection (a), written notice is given
294-22 when the notice is delivered to the person or to the person's
294-23 authorized agent or attorney of record personally, by telecopier,
294-24 or by United States mail to the address shown on the most recent
294-25 documents in the transaction. Deposit of the notice as registered
294-26 or certified mail in a postage paid, properly addressed wrapper in
295-1 a post office or official depository under the care and custody of
295-2 the United States Postal Service is prima facie evidence of the
295-3 delivery of the notice to the person to whom the notice is
295-4 addressed.
295-5 Sec. 305.104. CORRECTION EXCEPTION AVAILABLE TO ALL
295-6 SIMILARLY SITUATED. If in a single transaction more than one
295-7 creditor may be liable for a violation of this subtitle, compliance
295-8 with Section 305.103 by any of those creditors entitles each to the
295-9 same protection provided by that section.
295-10 Sec. 305.105. AMOUNTS PAYABLE PURSUANT TO A FINAL JUDGMENT.
295-11 A creditor is not liable to an obligor for a violation of this
295-12 subtitle if the creditor receives interest that has been awarded
295-13 pursuant to a final judgment that is no longer subject to
295-14 modification or reversal.
295-15 CHAPTER 306. COMMERCIAL TRANSACTIONS
295-16 SUBCHAPTER A. GENERAL PROVISIONS
295-17 Sec. 306.001. DEFINITIONS. In this chapter:
295-18 (1) "Account purchase transaction" means an agreement
295-19 under which a person engaged in a commercial enterprise sells
295-20 accounts, instruments, documents, or chattel paper subject to this
295-21 subtitle at a discount, regardless of whether the person has a
295-22 repurchase obligation related to the transaction.
295-23 (2) "Affiliate of an obligor" means a person who
295-24 directly or indirectly, through one or more intermediaries,
295-25 controls, is controlled by, or is under common control with the
295-26 obligor. In this subdivision "control" means the possession,
296-1 directly or indirectly, of the power to direct or cause the
296-2 direction of the management and policies of a person, whether
296-3 through the ownership of voting securities, by contract, or
296-4 otherwise.
296-5 (3) "Asset-backed securities" means debt obligations
296-6 or certificates of beneficial ownership that:
296-7 (A) are a part of a single issue or single
296-8 series of securities in an aggregate of $1 million or more and
296-9 issuable in one or more classes;
296-10 (B) are secured by a pledge of, or represent an
296-11 undivided ownership interest in:
296-12 (i) one or more fixed or revolving
296-13 financial assets that by their terms convert into cash within a
296-14 definite period; and
296-15 (ii) rights or other assets designed to
296-16 assure the servicing or timely distribution of proceeds to security
296-17 holders; and
296-18 (C) are issued for a business, commercial,
296-19 agricultural, investment, or similar purpose by a pass-through
296-20 entity.
296-21 (4) "Business entity" means a partnership,
296-22 corporation, joint venture, limited liability company, or other
296-23 business organization or business association, however organized.
296-24 (5) "Commercial loan" means a loan that is made
296-25 primarily for business, commercial, investment, agricultural, or
296-26 similar purposes. The term does not include a loan made primarily
297-1 for personal, family, or household use.
297-2 (6) "Guaranty" means an agreement under which a
297-3 person:
297-4 (A) assumes, guarantees, or otherwise becomes
297-5 primarily or contingently liable for the payment or performance of
297-6 an obligation of another person;
297-7 (B) provides security, by creation of a lien or
297-8 security interest or otherwise, for the payment or performance of
297-9 an obligation of another person; or
297-10 (C) agrees to purchase or to advance
297-11 consideration to purchase an obligation of another person or
297-12 property that is security for the payment or performance of the
297-13 obligation.
297-14 (7) "Pass-through entity" means a business entity,
297-15 association, grantor or common-law trust under state law, or
297-16 segregated pool of assets under federal tax law that, on the date
297-17 of original issuance of asset-backed securities, does not have
297-18 significant assets other than:
297-19 (A) assets pledged to or held for the benefit of
297-20 holders of the asset-backed securities; or
297-21 (B) assets pledged to or held for the benefit of
297-22 holders of other asset-backed securities previously issued.
297-23 (8) "Prepayment penalty" means compensation paid by or
297-24 that is or will become due from an obligor to a creditor solely as
297-25 a result or condition of the payment or maturity of all or a
297-26 portion of the principal amount of a loan before its stated
298-1 maturity or a regularly scheduled date of payment, as a result of
298-2 an obligor's election to pay all or a portion of the principal
298-3 amount before its stated maturity or a regularly scheduled date of
298-4 payment.
298-5 (9) "Qualified commercial loan" means:
298-6 (A) a commercial loan in the original principal
298-7 amount of $3 million or more; or
298-8 (B) a renewal or extension of a commercial loan
298-9 in the original principal amount of $3 million or more, regardless
298-10 of whether the principal amount of the loan when renewed or
298-11 extended is $3 million or more.
298-12 Sec. 306.002. INTEREST; APPLICATION OF OTHER PROVISIONS OF
298-13 SUBTITLE. (a) A creditor may contract for, charge, and receive
298-14 from an obligor on a commercial loan a rate or amount of interest
298-15 that does not exceed the applicable ceilings computed in accordance
298-16 with Chapter 303.
298-17 (b) All other applicable provisions, remedies, and penalties
298-18 of this subtitle apply to a commercial loan unless this chapter
298-19 expressly provides otherwise.
298-20 Sec. 306.003. COMPUTATION OF TERM. A creditor and an
298-21 obligor may agree to compute the term and rate of a commercial loan
298-22 based on a 360-day year consisting of 12 30-day months. For
298-23 purposes of this chapter, each rate ceiling expressed as a rate per
298-24 year may mean a rate per year consisting of 360 days and of 12
298-25 30-day months.
298-26 Sec. 306.004. DETERMINING RATES OF INTEREST BY SPREADING.
299-1 (a) To determine whether a commercial loan is usurious, the
299-2 interest rate is computed by amortizing or spreading, using the
299-3 actuarial method during the stated term of the loan, all interest
299-4 at any time contracted for, charged, or received in connection with
299-5 the loan.
299-6 (b) If a commercial loan is paid in full before the end of
299-7 the stated term of the loan and the amount of interest received for
299-8 the period that the loan exists exceeds the amount that produces
299-9 the maximum rate authorized by law for that period, the lender
299-10 shall:
299-11 (1) refund the amount of the excess to the borrower;
299-12 or
299-13 (2) credit the amount of the excess against amounts
299-14 owing under the loan.
299-15 (c) A lender who complies with Subsection (b) is not subject
299-16 to any of the penalties provided by law for contracting for,
299-17 charging, or receiving interest in excess of the maximum rate
299-18 authorized.
299-19 Sec. 306.005. PREPAYMENT PENALTY. A creditor and an obligor
299-20 may agree to a prepayment penalty in a loan subject to this
299-21 chapter. A prepayment penalty is not interest.
299-22 Sec. 306.006. CERTAIN AUTHORIZED CHARGES ON COMMERCIAL
299-23 LOANS. In addition to the interest authorized by this chapter, the
299-24 parties to a commercial loan may agree and stipulate for:
299-25 (1) a delinquency charge on the amount of any
299-26 installment or other amount in default for a period of not less
300-1 than 10 days in a reasonable amount not to exceed five percent of
300-2 the total amount of the installment; and
300-3 (2) a returned check fee in an amount not to exceed
300-4 $25 on any check, draft, order, or other instrument or form of
300-5 remittance that is returned unpaid or dishonored for any reason.
300-6 SUBCHAPTER B. PROVISIONS RELATING TO SPECIFIC TYPES OF
300-7 COMMERCIAL LOANS OR TRANSACTIONS
300-8 Sec. 306.101. QUALIFIED COMMERCIAL LOAN. (a) The parties
300-9 to a qualified commercial loan agreement may contract for a rate or
300-10 amount of interest that does not exceed the applicable rate
300-11 ceiling.
300-12 (b) The parties to a qualified commercial loan agreement may
300-13 contract for the following charges:
300-14 (1) a discount or commission that an obligor has paid
300-15 or agreed to pay to one or more underwriters of securities issued
300-16 by the obligor;
300-17 (2) an option or right to exchange, redeem, or convert
300-18 all or a portion of the principal amount of the loan, or interest
300-19 on the principal amount, for or into capital stock or other equity
300-20 securities of an obligor or of an affiliate of an obligor;
300-21 (3) an option or right to purchase capital stock or
300-22 other equity securities of an obligor or of an affiliate of an
300-23 obligor;
300-24 (4) an option or other right created by contract,
300-25 conveyance, or otherwise, to participate in or own a share of the
300-26 income, revenues, production, or profits:
301-1 (A) of an obligor or of an affiliate of an
301-2 obligor;
301-3 (B) of any segment of the business or operations
301-4 of an obligor or of an affiliate of an obligor; or
301-5 (C) derived or to be derived from ownership
301-6 rights of an obligor or of an affiliate of an obligor in property,
301-7 including any proceeds of the sale or other disposition of
301-8 ownership rights; or
301-9 (5) compensation realized as a result of the receipt,
301-10 exercise, sale, or other disposition of an option or other right
301-11 described by this subsection.
301-12 (c) A charge under Subsection (b) is not interest.
301-13 Sec. 306.102. ASSET-BACKED SECURITIES TRANSACTION. An
301-14 amount that is paid, passed through, or obligated to be paid or to
301-15 be passed through in connection with asset-backed securities or
301-16 that is not paid as a result of a discounted sale price to the
301-17 holders of asset-backed securities by a pass-through entity is not
301-18 interest. This section does not affect interest that is agreed on
301-19 and fixed by the parties to a written contract and paid, charged,
301-20 or received on the ultimate underlying assets pledged to or held
301-21 for the benefit of holders of asset-backed securities.
301-22 Sec. 306.103. ACCOUNT PURCHASE TRANSACTION. (a) An amount
301-23 of a discount in, or charged under, an account purchase transaction
301-24 is not interest.
301-25 (b) For the purposes of this chapter, the parties'
301-26 characterization of an account purchase transaction as a purchase
302-1 is conclusive that the account purchase transaction is not a
302-2 transaction for the use, forbearance, or detention of money.
302-3 CHAPTER 339. MISCELLANEOUS PROVISIONS RELATING TO INTEREST
302-4 Sec. 339.001. IMPOSITION OF SURCHARGE FOR USE OF CREDIT
302-5 CARD. (a) In a sale of goods or services, a seller may not impose
302-6 a surcharge on a buyer who uses a credit card for an extension of
302-7 credit instead of cash, a check, or a similar means of payment.
302-8 (b) This section does not apply to a state agency, county,
302-9 local governmental entity, or other governmental entity that
302-10 accepts a credit card for the payment of fees, taxes, or other
302-11 charges.
302-12 Sec. 339.002. BILLING CYCLE INTEREST LIMITATION ON OPEN-END
302-13 ACCOUNT WITHOUT MERCHANT DISCOUNT. (a) This section applies to an
302-14 open-end account agreement that provides for credit card
302-15 transactions:
302-16 (1) in which the creditor relies on one of the
302-17 ceilings authorized by Chapter 303 for the rate of interest; and
302-18 (2) in connection with which the creditor does not
302-19 impose or receive a merchant discount.
302-20 (b) Interest or time price differential may not be charged
302-21 for a billing cycle of an open-end account credit agreement if:
302-22 (1) the total amount of the obligor's payments during
302-23 the cycle equal or exceed the balance owed under the agreement at
302-24 the end of the preceding billing cycle; or
302-25 (2) an amount is not owed under the agreement at the
302-26 end of the preceding billing cycle.
303-1 Sec. 339.003. SALE OF OPEN-END ACCOUNT WITHOUT MERCHANT
303-2 DISCOUNT. A seller or lessor may sell an open-end account credit
303-3 agreement described by Section 339.002(a) or any balance under that
303-4 agreement to a purchaser who purchases a substantial part of the
303-5 seller's or lessor's open-end account credit agreements or balances
303-6 under those agreements in accordance with Subchapter G, Chapter
303-7 345. A charge, fee, or discount on that sale:
303-8 (1) is not a merchant discount;
303-9 (2) does not disqualify the open-end account credit
303-10 agreement or a balance under that agreement from being subject to
303-11 Chapter 303 or from coverage under this section; and
303-12 (3) does not subject the account to the limitations
303-13 provided by Section 303.006(c).
303-14 Sec. 339.004. APPLICATION OF LICENSING REQUIREMENT AND
303-15 SUBTITLE B TO CREDIT UNION OR EMPLOYEE BENEFIT PLAN. (a) A credit
303-16 union is not subject to Subtitle B and is not required to obtain a
303-17 license under this title.
303-18 (b) With respect to a loan that an employee benefit plan
303-19 that is subject to Title I of the Employee Retirement Income
303-20 Security Act of 1974 (29 U.S.C. Sections 1001-1114) makes to a
303-21 participant in the plan or a participant's beneficiary, the plan is
303-22 not subject to Subtitle B and is not required to obtain a license
303-23 under this title.
303-24 [SUBTITLE A. INTEREST]
303-25 [CHAPTER 301. GENERAL PROVISIONS]
303-26 [Sec. 301.001. DEFINITIONS. In Subtitles A and B:]
304-1 [(1) "Credit card transaction" means a transaction in
304-2 which a card that may be used for personal, family, or household
304-3 use is used to debit an open-end account in connection with:]
304-4 [(A) a purchase or lease of goods or services;
304-5 or]
304-6 [(B) a loan of money.]
304-7 [(2) "Merchant discount" means the consideration,
304-8 including a charge, fee, discount, or compensating balance, that a
304-9 creditor requires, or that a creditor, subsidiary or parent company
304-10 of the creditor, or subsidiary of the creditor's parent company
304-11 receives directly or indirectly, from a person other than the
304-12 obligor in connection with a credit card transaction under a lender
304-13 credit card agreement between the obligor and the creditor. The
304-14 term does not include consideration received by a creditor from the
304-15 obligor in connection with the credit card transaction.]
304-16 [(3) "Open-end account" means an account under a
304-17 written contract between a creditor and an obligor that authorizes
304-18 the obligor to make purchases or borrow money from time to time and
304-19 authorizes the charging of interest or time price differential
304-20 computed on an outstanding unpaid balance. The term includes an
304-21 account under an agreement described by Section 342.610 or 343.305
304-22 or Chapter 345 or 346.]
304-23 [(4) "Usury" means interest that exceeds the
304-24 applicable maximum amount allowed by law.]
304-25 [Sec. 301.002. INTEREST. (a) Interest is the compensation
304-26 allowed by law for the use, forbearance, or detention of money.]
305-1 [(b) Time price differential, regardless of how it is
305-2 denominated, arising out of a credit sale is not interest.]
305-3 [(c) An amount that is paid, passed through, or obligated to
305-4 be paid or passed through in connection with asset-backed
305-5 securities or that is not paid as a result of a discounted sale
305-6 price to the holders of asset-backed securities by a pass-through
305-7 entity, regardless of the denomination of the amount under the
305-8 terms of the asset-backed securities, is not interest. This
305-9 subsection does not affect interest that is agreed on and fixed by
305-10 the parties to a written contract and paid, charged, or received on
305-11 the ultimate underlying assets pledged to or held for the benefit
305-12 of the holders of asset-backed securities.]
305-13 [(d) In this section:]
305-14 [(1) "Asset-backed securities" means debt obligations
305-15 or certificates of beneficial ownership that:]
305-16 [(A) are a part of a single issue or single
305-17 series of securities in an aggregate of $1 million or more and
305-18 issuable in one or more classes;]
305-19 [(B) are secured by a pledge of, or represent an
305-20 undivided ownership interest in:]
305-21 [(i) one or more fixed or revolving
305-22 financial assets that by their terms convert into cash within a
305-23 definite period; and]
305-24 [(ii) rights or other assets designed to
305-25 assure the servicing or timely distribution of proceeds to security
305-26 holders; and]
306-1 [(C) are issued for a business, commercial,
306-2 agricultural, investment, or similar purpose by a pass-through
306-3 entity.]
306-4 [(2) "Pass-through entity" means a corporation,
306-5 limited liability company, association, general partnership,
306-6 registered limited liability partnership, limited partnership or
306-7 business, grantor or common-law trust under state law, or
306-8 segregated pool of assets under federal tax law that on the date of
306-9 original issuance of asset-backed securities does not have
306-10 significant assets other than:]
306-11 [(A) assets pledged to or held for the benefit
306-12 of holders of the asset-backed securities; or]
306-13 [(B) assets pledged to or held for the benefit
306-14 of holders of other asset-backed securities previously issued.]
306-15 [Sec. 301.003. LENDER CREDIT CARD AGREEMENT. (a) An
306-16 agreement between a creditor and an obligor is a lender credit card
306-17 agreement if the agreement provides that:]
306-18 [(1) the obligor, by means of a credit card and for
306-19 personal, family, or household use, may:]
306-20 [(A) obtain loans from the creditor directly or
306-21 through other participating persons; and]
306-22 [(B) lease or purchase goods or services from
306-23 more than one participating lessor or seller who honors the
306-24 creditor's credit card;]
306-25 [(2) the creditor or another person acting in
306-26 cooperation with the creditor is to reimburse the participating
307-1 persons, lessors, or sellers for the loans or the goods or services
307-2 purchased or leased;]
307-3 [(3) the obligor is to pay the creditor the amount of
307-4 the loan or cost of the lease or purchase;]
307-5 [(4) the unpaid balance of the loan, lease, or
307-6 purchase and interest on that unpaid balance are debited to the
307-7 obligor's account under the agreement;]
307-8 [(5) interest may be computed on the balances of the
307-9 obligor's account from time to time outstanding but is not
307-10 precomputed; and]
307-11 [(6) the obligor may defer payment of any part of the
307-12 balance.]
307-13 [(b) An agreement under Section 342.610, 343.305, or 346.003
307-14 for an open-end account under which credit card transactions may be
307-15 made or a merchant discount may be taken is a lender credit card
307-16 agreement.]
307-17 [(c) The following is not a lender credit card agreement:]
307-18 [(1) an agreement, including an open-end account
307-19 credit agreement, between a seller and a buyer or between a lessor
307-20 and a lessee; or]
307-21 [(2) an agreement under which:]
307-22 [(A) the entire balance is due in full each
307-23 month; and]
307-24 [(B) no interest is charged if the obligor pays
307-25 the entire balance each month.]
307-26 [(d) On an amount owed for a credit card transaction under a
308-1 lender credit card agreement in connection with which a merchant
308-2 discount is imposed or received by the creditor, the creditor may
308-3 not contract for, charge, or receive a fee or charge that:]
308-4 [(1) is not allowed under Chapter 346; or]
308-5 [(2) exceeds the amount allowed under Chapter 346.]
308-6 [CHAPTER 302. INTEREST RATES]
308-7 [SUBCHAPTER A. GENERAL PROVISIONS]
308-8 [Sec. 302.001. ALLOWABLE INTEREST IN ABSENCE OF OTHER LAW.
308-9 (a) Except as otherwise fixed by law, the maximum rate of interest
308-10 is 10 percent per year.]
308-11 [(b) Unless otherwise authorized by law, a rate of interest
308-12 greater than 10 percent per year is usurious. A contract for usury
308-13 is contrary to public policy and is subject to the appropriate
308-14 penalties under Chapter 305.]
308-15 [Sec. 302.002. ALLOWABLE INTEREST WHEN NO RATE SPECIFIED.
308-16 When no specified rate of interest is agreed on by the parties,
308-17 interest at the rate of six percent per year is allowed on all
308-18 accounts and contracts ascertaining the amount payable, beginning
308-19 on the 30th day after the date on which the amount is due and
308-20 payable.]
308-21 [SUBCHAPTER B. INTEREST PROVISIONS APPLICABLE TO CERTAIN LOANS]
308-22 [Sec. 302.101. DETERMINING USURY BY AMORTIZING, PRORATING,
308-23 ALLOCATING, AND SPREADING INTEREST. (a) To determine whether a
308-24 loan secured, in whole or part, by an interest, including a lien,
308-25 mortgage, or security interest, in real property is usurious, the
308-26 interest rate is computed by amortizing, prorating, allocating, and
309-1 spreading, in equal parts during the stated term of the loan, all
309-2 interest at any time contracted for, charged, or received in
309-3 connection with the loan.]
309-4 [(b) If a loan described by Subsection (a) is paid in full
309-5 before the end of the loan's stated term and the amount of interest
309-6 received for the period that the loan exists exceeds the amount
309-7 that produces the maximum lawful rate for that period, the lender
309-8 shall:]
309-9 [(1) refund the amount of the excess to the borrower;
309-10 or]
309-11 [(2) credit the amount of the excess against amounts
309-12 owing under the loan.]
309-13 [(c) A lender who complies with Subsection (b) is not
309-14 subject to any of the penalties provided by law for contracting
309-15 for, charging, or receiving interest in excess of the maximum
309-16 lawful rate.]
309-17 [Sec. 302.102. INTEREST RATE ON AMOUNTS OF $250,000 OR MORE.
309-18 (a) The maximum interest rate under such an agreement is 18
309-19 percent a year if the loan's interest rate is set out in a written
309-20 contract, including a bond or note, that provides for:]
309-21 [(1) a loan or other extension of credit the original
309-22 principal amount of which is $250,000 or more;]
309-23 [(2) a series of advances the total amount of which is
309-24 to be $250,000 or more; or]
309-25 [(3) an extension or renewal of a loan or other
309-26 extension of credit described by this subsection, regardless of the
310-1 amount of outstanding principal balance at the time of the renewal
310-2 or extension.]
310-3 [(b) As to a contract that satisfies Subsection (a), the
310-4 claim or defense of usury may not be used by:]
310-5 [(1) a party to the agreement or that person's heirs,
310-6 personal representatives, successors, or substitute or another
310-7 person acting on that person's behalf;]
310-8 [(2) a person acting with respect to the agreement as
310-9 a guarantor, surety, accommodation maker, or endorser;]
310-10 [(3) a person who becomes liable for payment of the
310-11 obligation; or]
310-12 [(4) a person owning or acquiring property that is
310-13 subject to a lien securing the obligation.]
310-14 [(c) This section does not apply to a loan or other
310-15 extension of credit secured by a lien on:]
310-16 [(1) a building, constructed or to be constructed,
310-17 that is:]
310-18 [(A) used or intended to be used as a single
310-19 one-to-four-family residence; and]
310-20 [(B) occupied or intended to be occupied by a
310-21 person obligated to pay the loan or other extension of credit; or]
310-22 [(2) land intended to be used primarily for
310-23 agricultural or ranching purposes.]
310-24 [Sec. 302.103. INTEREST RATE ON OIL AND GAS LOANS OF
310-25 $500,000 OR MORE. (a) The maximum interest rate on a loan for the
310-26 payment of the direct or indirect costs of exploration for oil and
311-1 gas, the development of oil and gas properties, or the reworking of
311-2 oil or gas wells is equal to the maximum rate applicable to a
311-3 corporation, other than a nonprofit corporation, if:]
311-4 [(1) the principal amount of the loan is $500,000 or
311-5 more; and]
311-6 [(2) at the time the loan is made the lender
311-7 reasonably estimates that the value of the collateral securing the
311-8 loan is more than the amount of the loan.]
311-9 [(b) A loan that satisfies Subsection (a) is not subject to
311-10 the defense of usury or a penalty for usury.]
311-11 [Sec. 302.104. INTEREST RATE ON LOAN MADE ON OR BEFORE
311-12 AUGUST 31, 1981, AND SECURED BY RESIDENCE. (a) The maximum
311-13 interest rate on a loan that is secured in any part by an interest,
311-14 including a lien, mortgage, or security interest, in real property
311-15 on which one or more single-family dwellings or dwelling units for
311-16 not more than four families in the aggregate are located is a rate
311-17 permitted by other applicable law or the lesser of:]
311-18 [(1) 12 percent a year; or]
311-19 [(2) the rate computed by:]
311-20 [(A) adding two percent a year to the average
311-21 annual market yield rate adjusted to constant maturities on 10-year
311-22 United States Treasury notes and bonds as published by the board of
311-23 governors of the Federal Reserve System for the second calendar
311-24 month preceding the month in which the lender becomes legally bound
311-25 to make the loan; and]
311-26 [(B) rounding the result under Paragraph (A) to
312-1 the nearest quarter of one percent a year.]
312-2 [(b) Before the 20th day of each month, the savings and loan
312-3 commissioner shall publish in the Texas Register the average annual
312-4 market yield rate adjusted to constant maturities on 10-year United
312-5 States Treasury notes and bonds for the preceding calendar month.]
312-6 [(c) On a loan described by Subsection (a) that has an
312-7 interest rate that is more than the applicable rate authorized by
312-8 Chapter 303, a prepayment charge or penalty may not be collected
312-9 unless the collection of the charge or penalty is required by an
312-10 agency created by federal law.]
312-11 [(d) The interest rates authorized by this section are not
312-12 applicable to a loan made after August 31, 1981, unless the lender
312-13 became legally bound to make that loan before September 1, 1981.]
312-14 [(e) In this section, "dwelling unit" means a unified
312-15 combination of rooms that is designed for residential use by one
312-16 family.]
312-17 [Sec. 302.105. INTEREST RATE ON LOANS FOR RESIDENCES BY
312-18 FINANCIAL INSTITUTIONS USING CERTAIN DISCRIMINATORY PRACTICES.
312-19 (a) A financial institution may not charge interest on a loan
312-20 under Section 302.104 and the maximum interest rate on the loan is
312-21 10 percent a year if in connection with the loan the financial
312-22 institution:]
312-23 [(1) discriminates in providing or granting financial
312-24 assistance to purchase, rehabilitate, improve, or refinance a
312-25 housing accommodation due, in whole or part, to the consideration
312-26 of:]
313-1 [(A) conditions, characteristics, or trends in
313-2 the neighborhood where the property is located, unless the
313-3 financial institution can demonstrate that such a consideration for
313-4 that loan is required to avoid an unsafe or unsound business
313-5 practice; or]
313-6 [(B) race, color, religion, sex, marital status,
313-7 national origin, or ancestry; or]
313-8 [(2) in appraising a housing accommodation or in
313-9 determining whether, or under what conditions, to provide financial
313-10 assistance to purchase, rehabilitate, improve, or refinance a
313-11 housing accommodation, considers:]
313-12 [(A) the racial, ethnic, religious, or national
313-13 origin composition of the neighborhood or geographic area
313-14 surrounding the property; or]
313-15 [(B) whether the composition described by
313-16 Paragraph (A) is undergoing or is expected to undergo change.]
313-17 [(b) In this section:]
313-18 [(1) "Financial institution" means a state or national
313-19 bank, state or federal savings and loan association, mortgage
313-20 banking institution, or credit union.]
313-21 [(2) "Housing accommodation" means improved or
313-22 unimproved real property, or a part of that property, that is used
313-23 or occupied or is intended, arranged, or designed to be used or
313-24 occupied as the residence of one or more individuals.]
313-25 [Sec. 302.106. OPTIONAL INTEREST RATES. The optional
313-26 interest rate ceilings provided by Chapter 303 apply to a loan or
314-1 other extension of credit described by this subchapter regardless
314-2 of whether the rates provided by this subchapter are applicable to
314-3 the loan or extension of credit.]
314-4 [Sec. 302.107. PROHIBITION ON PREPAYMENT CHARGE OR PENALTY.
314-5 If a loan for property that is to be the residential homestead of
314-6 the borrower is made at an interest rate that is greater than the
314-7 rate provided by Section 302.104, a prepayment charge or penalty
314-8 may not be collected on the loan unless the charge or penalty is
314-9 required by an agency created by federal law.]
314-10 [SUBCHAPTER C. OTHER SPECIAL RATES]
314-11 [Sec. 302.201. INTEREST CHARGED BY REGISTERED SECURITIES
314-12 BROKERS OR DEALERS. (a) A broker or dealer registered under the
314-13 federal Securities Exchange Act of 1934 (15 U.S.C. Section 77b et
314-14 seq.), including subsequent amendments to that Act, and The
314-15 Securities Act (Article 581-1 et seq., Vernon's Texas Civil
314-16 Statutes) may charge in accordance with this section interest for
314-17 carrying in an account for a customer a debit balance that is:]
314-18 [(1) payable on demand or at will by the customer
314-19 without penalty; and]
314-20 [(2) secured by stocks, bonds, or other securities.]
314-21 [(b) The interest rate charged under this section may not
314-22 exceed the greater of:]
314-23 [(1) the rate authorized under Chapter 303; or]
314-24 [(2) 1-1/2 percent a month on the monthly debit
314-25 balance.]
314-26 [(c) Interest charged under this section is not subject to
315-1 any other provision of this title.]
315-2 [Sec. 302.202. LOANS GUARANTEED OR INSURED BY AN AGENCY OF
315-3 THE UNITED STATES. (a) A loan insured by the Department of
315-4 Housing and Urban Development under the National Housing Act (12
315-5 U.S.C. Section 1701 et seq.), including subsequent amendments to
315-6 that Act, may accrue interest, or be discounted, at a rate
315-7 permitted under that Act and regulations adopted under it.]
315-8 [(b) A loan guaranteed or insured by the Department of
315-9 Veterans Affairs or its successor under the federal veterans'
315-10 benefits laws (38 U.S.C. Section 3701 et seq.), including
315-11 subsequent amendments, may accrue interest, or be discounted, at a
315-12 rate permitted under those laws and regulations adopted under those
315-13 laws.]
315-14 [CHAPTER 303. OPTIONAL INTEREST RATE CEILINGS]
315-15 [SUBCHAPTER A. GENERAL PROVISIONS]
315-16 [Sec. 303.001. USE OF CEILINGS. (a) Except as provided by
315-17 Subchapter B, a person may contract for, charge, or receive a rate
315-18 or amount that does not exceed the applicable ceiling provided by
315-19 this chapter. The use of a ceiling provided by this chapter for a
315-20 contract, including a contract for an open-end account, is
315-21 optional. A contract may provide for any rate or amount allowed by
315-22 other applicable law.]
315-23 [(b) A contract that is subject to Chapter 343, 344, 345,
315-24 347, or 348, including a contract for an open-end account, may, as
315-25 an alternative to a rate or amount allowed under that chapter,
315-26 provide for a simple or precomputed rate or amount that does not
316-1 exceed the applicable ceiling provided by this chapter.]
316-2 [(c) Except as inconsistent with this chapter, a party to a
316-3 contract that is subject to Chapter 342, 343, 344, 345, 347, or 348
316-4 or the party's assignee has all the rights, duties, and obligations
316-5 under the applicable chapter, including those relating to refund
316-6 credits on prepayment or acceleration.]
316-7 [Sec. 303.002. CHARGING OF RATE LOWER THAN AGREED RATE.
316-8 Unless the creditor and debtor agree otherwise, an agreement by the
316-9 creditor and debtor to a rate is considered an agreement to any
316-10 lower rate that the creditor may elect or that is required under
316-11 Section 303.401 or 303.402.]
316-12 [Sec. 303.003. DETERMINATION OF CEILING FOR CONTRACT TO
316-13 RENEW OR EXTEND DEBT PAYMENT. The ceiling for a contract to renew
316-14 or extend the terms of payment of a debt is the ceiling in effect
316-15 under this chapter when the contract for renewal or extension is
316-16 made, regardless of when the debt was incurred.]
316-17 [SUBCHAPTER B. LIMITATIONS ON APPLICABILITY OF CHAPTER]
316-18 [Sec. 303.101. AGREEMENT TO WHICH CHAPTER DOES NOT APPLY.
316-19 The ceilings provided by this chapter do not apply to an agreement:]
316-20 [(1) under which credit is extended by the seller or
316-21 an owner, subsidiary, or corporate affiliate of the seller for a
316-22 transaction to which Chapter 39, Business & Commerce Code, applies;
316-23 and]
316-24 [(2) that is secured by a lien on the obligor's
316-25 homestead.]
316-26 [Sec. 303.102. RATE FOR LENDER CREDIT CARD AGREEMENT WITH
317-1 MERCHANT DISCOUNT. On an amount owed for a credit card transaction
317-2 under a lender credit card agreement in connection with which a
317-3 merchant discount is imposed or received by the creditor, the
317-4 creditor may not contract for, charge, or receive:]
317-5 [(1) a rate that exceeds the ceiling provided under
317-6 Section 303.205, subject to Sections 303.304(b) and 303.305(d); or]
317-7 [(2) a fee or charge that:]
317-8 [(A) is not allowed under Chapter 346; or]
317-9 [(B) exceeds the amount allowed under Chapter
317-10 346.]
317-11 [SUBCHAPTER C. INTEREST RATE CEILINGS; VARIABLE INTEREST
317-12 RATE]
317-13 [Sec. 303.201. WEEKLY CEILING. The parties to a written
317-14 contract may agree to an interest rate, or in an agreement under
317-15 Chapter 345, 347, or 348, an amount of time price differential
317-16 producing a rate, that does not exceed the applicable weekly
317-17 ceiling.]
317-18 [Sec. 303.202. QUARTERLY CEILING. A written contract,
317-19 including a contract that involves an open-end account, may as an
317-20 alternative to the weekly ceiling provide for an interest rate, or
317-21 in an agreement under Chapter 345, 347, or 348, an amount of time
317-22 price differential producing a rate, that does not exceed the
317-23 applicable quarterly ceiling.]
317-24 [Sec. 303.203. ANNUALIZED CEILING. The annualized ceiling
317-25 may be used as an alternative to the weekly ceiling only for a
317-26 written contract, including an agreement under Chapter 345, 347, or
318-1 348, that involves an open-end account.]
318-2 [Sec. 303.204. MONTHLY CEILING. (a) The monthly ceiling
318-3 may be used as an alternative to the weekly ceiling only for a
318-4 contract:]
318-5 [(1) that provides for a variable rate, including a
318-6 contract for an open-end account;]
318-7 [(2) that is not made for personal, family, or
318-8 household use; and]
318-9 [(3) under which the parties agree that the interest
318-10 rate is subject to monthly adjustment and that the monthly ceiling
318-11 applies.]
318-12 [(b) A contract that provides for the use of the monthly
318-13 ceiling may not provide for the use of another ceiling provided
318-14 under this subchapter.]
318-15 [Sec. 303.205. CEILING ON OPEN-END ACCOUNT INVOLVING CREDIT
318-16 CARD TRANSACTION OR MERCHANT DISCOUNT. Notwithstanding other
318-17 provisions of this subchapter, the rate of interest on an open-end
318-18 account authorized under Section 342.610, 343.305, or 346.003, or
318-19 an amount owed for a lender credit card transaction under another
318-20 type of credit card agreement, in connection with which a merchant
318-21 discount is imposed or received by the creditor may not exceed the
318-22 quarterly ceiling, subject to Sections 303.304(b) and 303.305(d).]
318-23 [Sec. 303.206. VARIABLE RATE. (a) A contract, including a
318-24 contract for an open-end account, may provide for any index,
318-25 formula, or provision of law by which the rate or amount is
318-26 determined.]
319-1 [(b) The rate or amount determined under Subsection (a) may
319-2 not exceed the applicable ceiling from time to time in effect, for
319-3 as long as the debt is outstanding under the contract.]
319-4 [(c) A variable contract rate described by this section may
319-5 not be used in a contract in which the interest or time price
319-6 differential is precomputed and added into the amount of the
319-7 contract at the time the contract is made.]
319-8 [(d) A variable rate contract described by this section that
319-9 does not involve an open-end account may not provide for use of
319-10 both the weekly ceiling and the quarterly ceiling.]
319-11 [Sec. 303.207. EFFECT OF APPLYING MAXIMUM AND MINIMUM TO
319-12 CEILINGS. In this chapter, "weekly ceiling," "monthly ceiling,"
319-13 "quarterly ceiling," or "annualized ceiling" refers to that ceiling
319-14 as determined after the application of Sections 303.304 and
319-15 303.305.]
319-16 [SUBCHAPTER D. COMPUTATION AND PUBLICATION OF CEILINGS]
319-17 [Sec. 303.301. COMPUTATION OF WEEKLY CEILING. (a) The
319-18 weekly ceiling is computed by:]
319-19 [(1) multiplying the auction rate by two; and]
319-20 [(2) rounding the result obtained under Subdivision
319-21 (1) to the nearest one-quarter of one percent.]
319-22 [(b) In this section, "auction rate" means the auction
319-23 average rate quoted on a bank discount basis for 26-week treasury
319-24 bills issued by the United States government, as published by the
319-25 Board of Governors of the Federal Reserve System, for the week
319-26 preceding the week in which the weekly ceiling is to take effect.]
320-1 [Sec. 303.302. COMPUTATION OF QUARTERLY AND ANNUALIZED
320-2 CEILING. (a) On December 1, March 1, June 1, and September 1 of
320-3 each year, the consumer credit commissioner shall compute the
320-4 quarterly ceiling and annualized ceiling for the calendar quarter
320-5 beginning the following January 1, April 1, July 1, and October 1,
320-6 respectively.]
320-7 [(b) The quarterly ceiling or annualized ceiling is computed
320-8 by averaging all of the weekly ceilings computed using average
320-9 rates from auctions held during the three calendar months preceding
320-10 the computation date of the ceiling.]
320-11 [Sec. 303.303. COMPUTATION OF MONTHLY CEILING. (a) The
320-12 consumer credit commissioner shall compute the monthly ceiling on
320-13 the first business day of the calendar month in which the rate
320-14 applies.]
320-15 [(b) The monthly ceiling is computed by averaging all of the
320-16 weekly ceilings computed using rates from auctions held during the
320-17 calendar month preceding the computation date of the monthly
320-18 ceiling.]
320-19 [Sec. 303.304. MINIMUM WEEKLY, MONTHLY, QUARTERLY, OR
320-20 ANNUALIZED CEILING. (a) Except as provided by Subsection (b), if
320-21 the rate computed for the weekly ceiling, monthly ceiling,
320-22 quarterly ceiling, or annualized ceiling is less than 18 percent a
320-23 year, the ceiling is 18 percent a year.]
320-24 [(b) For an open-end account authorized under Section
320-25 342.610, 343.305, or 346.003, in connection with which credit card
320-26 transactions are authorized or a merchant discount is imposed or
321-1 received by the creditor, if the rate computed for the quarterly
321-2 ceiling is less than 14 percent a year, the quarterly ceiling is 14
321-3 percent a year.]
321-4 [Sec. 303.305. MAXIMUM WEEKLY, MONTHLY, QUARTERLY, OR
321-5 ANNUALIZED CEILING. (a) Except as provided by Subsection (b),
321-6 (c), or (d), if the rate computed for the weekly ceiling, monthly
321-7 ceiling, quarterly ceiling, or annualized ceiling is more than 24
321-8 percent a year, the ceiling is 24 percent a year.]
321-9 [(b) For a contract made, extended, or renewed under which
321-10 credit is extended in any part for a business, commercial,
321-11 investment, or similar purpose, but excluding a contract that is
321-12 not for any of those purposes and is primarily for personal,
321-13 family, household, or agricultural use, and the amount of the
321-14 credit extension is more than $250,000, if the rate computed for
321-15 the weekly ceiling, monthly ceiling, quarterly ceiling, or
321-16 annualized ceiling is more than 28 percent a year, the ceiling is
321-17 28 percent a year.]
321-18 [(c) For an open-end account credit agreement that provides
321-19 for credit card transactions on which a merchant discount is not
321-20 imposed or received by the creditor, if the rate computed for the
321-21 weekly ceiling, monthly ceiling, quarterly ceiling, or annualized
321-22 ceiling is more than 21 percent a year, the ceiling is 21 percent a
321-23 year.]
321-24 [(d) For an open-end account authorized under Section
321-25 342.610, 343.305, or 346.003, in connection with which credit card
321-26 transactions are authorized or a merchant discount is imposed or
322-1 received by the creditor, if the rate computed for the quarterly
322-2 ceiling is more than 22 percent a year, the quarterly ceiling is 22
322-3 percent a year.]
322-4 [Sec. 303.306. COMPUTATION OF CEILING IF INFORMATION
322-5 UNAVAILABLE. (a) If any of the information required to compute a
322-6 ceiling under this subchapter is not available to the consumer
322-7 credit commissioner from the Federal Reserve Board in the time
322-8 required for the computation, the consumer credit commissioner
322-9 shall obtain that information from a reliable source satisfactory
322-10 to the commissioner.]
322-11 [(b) If information is not available, the ceiling last
322-12 computed remains in effect until the ceiling is computed from the
322-13 obtained information.]
322-14 [Sec. 303.307. PUBLICATION OF CEILINGS. (a) The consumer
322-15 credit commissioner shall send the ceilings computed under this
322-16 subchapter to the secretary of state for publication in the Texas
322-17 Register.]
322-18 [(b) The monthly, quarterly, or annualized ceiling shall be
322-19 published before the 11th day after the day on which the ceiling is
322-20 computed and the weekly ceiling shall be published from time to
322-21 time.]
322-22 [Sec. 303.308. JUDICIAL NOTICE. A court may take judicial
322-23 notice of information published in the Texas Register under Section
322-24 303.307.]
322-25 [SUBCHAPTER E. OPEN-END ACCOUNTS]
322-26 [Sec. 303.401. OPEN-END ACCOUNT: CEILINGS. (a) To use the
323-1 quarterly or annualized ceiling for setting the rate on the current
323-2 and future balances of an open-end account, the agreement for the
323-3 account must provide for use of the ceiling, and the creditor must
323-4 give notice of the rate after the date on which the quarterly or
323-5 annualized ceiling is computed and before the last day of the next
323-6 succeeding calendar quarter.]
323-7 [(b) If the annualized ceiling is used, the rate is
323-8 effective for the 12-month period beginning on the date on which
323-9 the rate takes effect for the account.]
323-10 [(c) If the quarterly ceiling is used, the rate is effective
323-11 for the three-month period beginning on the date on which the rate
323-12 takes effect for the account. For an open-end account authorized
323-13 under Section 342.610, 343.305, or 346.003, in connection with
323-14 which credit card transactions are authorized or a merchant
323-15 discount is imposed or received by the creditor, the quarterly
323-16 ceiling shall be adjusted, at the option of the creditor, on:]
323-17 [(1) the effective dates provided by Section 303.302;
323-18 or]
323-19 [(2) the first day of the first billing cycle of the
323-20 account beginning after those dates.]
323-21 [(d) If a quarterly or annualized ceiling is being used for
323-22 an account and if the rate for the applicable period is less than
323-23 or equal to the ceiling to be in effect for the succeeding period
323-24 of equal length, the creditor may leave that rate in effect for
323-25 that succeeding period.]
323-26 [(e) A creditor who has disclosed to an obligor that an
324-1 election may be renewed under Subsection (d) is not required to
324-2 give additional notice of a renewal under that subsection.]
324-3 [(f) To increase a previously agreed rate, a creditor shall
324-4 comply with Section 303.403 before the end of the last calendar
324-5 quarter of the period in which the rate previously agreed to is in
324-6 effect. The ceiling in effect for that period remains the ceiling
324-7 until the parties to the agreement agree to a new rate.]
324-8 [Sec. 303.402. VARIABLE RATE OPEN-END ACCOUNT: CEILINGS.
324-9 The applicable ceiling for an open-end account agreement that
324-10 provides for a variable rate or amount according to an index,
324-11 formula, or provision of law disclosed to the obligor, other than a
324-12 variable rate commercial contract that is subject to Section
324-13 303.204, is the annualized ceiling, quarterly ceiling, or weekly
324-14 ceiling as disclosed to the obligor. The annualized ceiling shall
324-15 be adjusted after each 12-month period, the quarterly ceiling shall
324-16 be adjusted after each three-month period, and the weekly ceiling
324-17 shall be adjusted weekly.]
324-18 [Sec. 303.403. OPEN-END ACCOUNT: CHANGE OF AGREEMENT TERM.
324-19 (a) An agreement covering an open-end account may provide that the
324-20 creditor may change the terms of the agreement for current and
324-21 future balances of that account by giving notice of the change to
324-22 the obligor.]
324-23 [(b) A notice under this section to change the rate on an
324-24 account or the index, formula, or provision of law used to compute
324-25 the rate must include:]
324-26 [(1) the new rate, or the new index, formula, or
325-1 provision to be used to compute the rate;]
325-2 [(2) the date on which the change is to take effect;]
325-3 [(3) the period for which the change is to be
325-4 effective or after which the rate will be adjusted;]
325-5 [(4) a statement of whether the change is to affect
325-6 current and future balances or only future balances;]
325-7 [(5) the obligor's rights under this section and the
325-8 procedures for the obligor to exercise those rights;]
325-9 [(6) the address to which the obligor may send notice
325-10 of the obligor's election not to continue the open-end account; and]
325-11 [(7) if the rate is increased, the following statement
325-12 printed in not less than 10-point type or computer equivalent:]
325-13 ["YOU MAY TERMINATE THIS AGREEMENT IF YOU DO NOT WISH
325-14 TO PAY THE NEW RATE."]
325-15 [(c) A creditor shall include with a notice required by this
325-16 section a form that may be returned at the expense of the creditor
325-17 and on which the obligor may indicate by checking or marking an
325-18 appropriate box or by a similar arrangement the obligor's decision
325-19 not to continue the account. The form may be included on a part of
325-20 the account statement that is to be returned to the creditor or on
325-21 a separate sheet.]
325-22 [(d) An obligor is considered to have agreed to a change
325-23 under this section if the creditor mails a notice required by this
325-24 section to the obligor's most recent address shown in the
325-25 creditor's records and:]
325-26 [(1) the obligor chooses to retain the privilege of
326-1 using the open-end account;]
326-2 [(2) the obligor or a person authorized by the obligor
326-3 accepts or uses an extension of credit after the fifth day after
326-4 the date on which the notice is mailed; or]
326-5 [(3) the obligor does not notify the creditor in
326-6 writing before the 21st day after the date on which the notice is
326-7 mailed that the obligor does not wish to continue to use the
326-8 open-end account.]
326-9 [(e) An obligor who rejects a rate change in accordance with
326-10 this section is entitled to pay the balance existing on the
326-11 open-end account at the rate and over the period in effect
326-12 immediately before the date of the proposed change and under the
326-13 same minimum payment terms provided by the agreement. Rejection of
326-14 a new rate does not accelerate payment of the balance due.]
326-15 [(f) The procedure provided by this section for changing the
326-16 terms of an agreement is in addition to other means of amending the
326-17 agreement provided by law.]
326-18 [Sec. 303.404. DISCLOSURE OF DECREASE IN INTEREST RATE NOT
326-19 REQUIRED ON OPEN-END ACCOUNTS INVOLVING CREDIT CARD TRANSACTION OR
326-20 MERCHANT DISCOUNT. On an open-end account authorized under Section
326-21 342.610, 343.305, or 346.003, in connection with which credit card
326-22 transactions are authorized or a merchant discount is imposed or
326-23 received by the creditor and on which interest is charged under
326-24 this chapter, the creditor is not required to disclose a decrease
326-25 in the applicable interest rate.]
326-26 [Sec. 303.405. OPEN-END ACCOUNT: DISCLOSURE OF CERTAIN RATE
327-1 VARIATIONS. (a) Except as provided by Subsection (b), a variation
327-2 in a rate on an account resulting from operation of the previously
327-3 disclosed index, formula, or provision of law is not required to be
327-4 disclosed under Section 303.401 or 303.403.]
327-5 [(b) The creditor on an open-end account agreement that
327-6 provides for a variable rate according to an index, formula, or
327-7 provision of law, that is primarily for personal, family, or
327-8 household use, and that is subject to this chapter shall give to
327-9 the obligor notice of a change in the rate resulting from operation
327-10 of the index, formula, or provision of law. The notice must be
327-11 given:]
327-12 [(1) by a document mailed on or before the beginning
327-13 of the first cycle for which the change becomes effective; or]
327-14 [(2) on or with:]
327-15 [(A) the billing statement for a billing cycle
327-16 that precedes the cycle for which the change becomes effective, if
327-17 the account is covered by Section 339.002 or 303.205; or]
327-18 [(B) any billing statement, if the account is
327-19 not covered by Section 339.002 or 303.205.]
327-20 [Sec. 303.406. OPEN-END ACCOUNT: CEILING FOR PLAN OR
327-21 ARRANGEMENT. If a creditor implements a quarterly or annualized
327-22 ceiling for a majority of the creditor's open-end accounts that are
327-23 under a particular plan or arrangement and that are for obligors in
327-24 this state, that ceiling is also the ceiling for all open-end
327-25 accounts that are opened or activated under that plan for obligors
327-26 in this state during the period that ceiling is in effect.]
328-1 [SUBCHAPTER F. ADDITIONAL REQUIREMENTS FOR CERTAIN
328-2 CONSUMER AND OTHER LOAN AGREEMENTS]
328-3 [Sec. 303.501. NOTICE FOR VARIABLE RATE CONSUMER AGREEMENT.
328-4 (a) This section applies only to an agreement for the extension of
328-5 credit, or an amendment to such an agreement, that:]
328-6 [(1) is primarily for personal, family, or household
328-7 use;]
328-8 [(2) provides for a variable rate or amount; and]
328-9 [(3) provides for a rate that is authorized by this
328-10 chapter.]
328-11 [(b) An agreement or amendment must contain or be
328-12 accompanied by the following statement in not less than 10-point
328-13 type or computer equivalent:]
328-14 ["NOTICE TO CONSUMER: UNDER TEXAS LAW, IF YOU CONSENT
328-15 TO THIS AGREEMENT, YOU MAY BE SUBJECT TO A FUTURE RATE
328-16 AS HIGH AS 24 PERCENT A YEAR."]
328-17 [(c) If the agreement or amendment provides for a maximum
328-18 rate of less than 24 percent a year, the statement required by this
328-19 section may be amended to set out that maximum rate.]
328-20 [(d) This section does not apply to an agreement or
328-21 amendment for which a disclosure relating to variable rates or
328-22 amounts is required or provided by federal law, including a
328-23 regulation or interpretation.]
328-24 [Sec. 303.502. CONSUMER INSTALLMENT AND SECONDARY MORTGAGE
328-25 LOANS; OPEN-END CONSUMER ACCOUNTS. (a) A loan the rate of which
328-26 is authorized under this chapter is subject to:]
329-1 [(1) Chapter 343 if the loan is:]
329-2 [(A) extended primarily for:]
329-3 [(i) personal, family, or household use
329-4 and not extended for a business, commercial, investment,
329-5 agricultural, or similar purpose; or]
329-6 [(ii) the purchase of a motor vehicle
329-7 other than a heavy commercial vehicle as defined by Section
329-8 348.001;]
329-9 [(B) payable in two or more installments;]
329-10 [(C) not secured by a lien on real estate; and]
329-11 [(D) made by a person engaged in the business of
329-12 making or negotiating those types of loans; or]
329-13 [(2) Chapter 344 if the loan is:]
329-14 [(A) extended primarily for personal, family, or
329-15 household use and not for a business, commercial, investment,
329-16 agricultural, or similar purpose;]
329-17 [(B) predominantly payable in monthly
329-18 installments;]
329-19 [(C) described by Sections 344.001, 344.101,
329-20 344.102, and 344.405; and]
329-21 [(D) made, negotiated, or arranged by a person
329-22 engaged in the business of making, negotiating, or arranging those
329-23 types of loans.]
329-24 [(b) A person other than a bank or savings and loan
329-25 association engaged in the business of making loans described by
329-26 Subsection (a) must obtain a license under Chapter 342.]
330-1 [(c) Except as inconsistent with this chapter:]
330-2 [(1) a person engaged in the business of extending
330-3 open-end credit primarily for personal, family, or household use
330-4 who charges on an open-end account a rate or amount under authority
330-5 of this chapter is subject to the applicable chapter in Subtitle B;
330-6 and]
330-7 [(2) a party to an account described by Subdivision
330-8 (1) or the party's assignee has all the rights, duties, and
330-9 obligations under that applicable chapter.]
330-10 [(d) Subsection (c) does not apply to a person who is
330-11 subject to Chapter 24, Insurance Code.]
330-12 [Sec. 303.503. EXAMINATIONS; RULES. (a) Sections 342.502
330-13 and 342.606 apply to a transaction:]
330-14 [(1) that is made by a person who holds a license
330-15 under Chapter 342;]
330-16 [(2) that is subject to Chapter 343, 344, or 346; and]
330-17 [(3) the rate of which is authorized by this chapter.]
330-18 [(b) Sections 342.501, 342.504, and 342.505 apply to a loan:]
330-19 [(1) that is subject to Chapter 343; and]
330-20 [(2) the rate of which is authorized by this chapter.]
330-21 [SUBCHAPTER G. ENFORCEMENT]
330-22 [Sec. 303.601. WHEN ACT OR OMISSION NOT VIOLATION. An act
330-23 or omission does not violate this title if the act or omission
330-24 conforms to:]
330-25 [(1) this chapter;]
330-26 [(2) a provision determined by the consumer credit
331-1 commissioner; or]
331-2 [(3) an interpretation of this title that is in effect
331-3 at the time of the act or omission and that was made by:]
331-4 [(A) the consumer credit commissioner under
331-5 Section 14.108; or]
331-6 [(B) an appellate court of this state or the
331-7 United States.]
331-8 [Sec. 303.602. PENALTY FOR VIOLATION OF CHAPTER FOR CERTAIN
331-9 CONTRACTS SUBJECT TO SUBTITLE B. (a) A person who contracts for,
331-10 charges, or receives under a contract subject to Chapter 343, 344,
331-11 345, 346, 347, or 348, including a contract for an open-end
331-12 account, an interest rate or amount of time price differential that
331-13 exceeds the maximum applicable rate or amount authorized by that
331-14 chapter or this chapter is subject to a penalty for that violation
331-15 determined under Chapter 349.]
331-16 [(b) For a contract that contains a rate or amount
331-17 authorized under this chapter, the failure to perform a duty or
331-18 comply with a prohibition provided by this chapter is subject to
331-19 Chapter 349 as if this chapter were in Subtitle B.]
331-20 [Sec. 303.603. PENALTY FOR VIOLATION OF CEILING IN CERTAIN
331-21 CONTRACTS. A written contract, other than a contract to which
331-22 Section 303.602 applies, that directly or indirectly provides for a
331-23 rate that exceeds the rate authorized by this chapter and that is
331-24 not otherwise authorized by law is subject to the penalty
331-25 prescribed by Chapter 305.]
331-26 [Sec. 303.604. ENFORCEMENT BY CONSUMER CREDIT COMMISSIONER.
332-1 Subject to Subchapters C and D, Chapter 14, the consumer credit
332-2 commissioner shall enforce this chapter as it applies to contracts
332-3 subject to Subtitle B or C.]
332-4 [Sec. 303.605. ENFORCEMENT BY CREDIT UNION COMMISSIONER.
332-5 The credit union commissioner shall enforce this chapter as it
332-6 applies to contracts subject to Subtitle D, Title 3.]
332-7 [Sec. 303.606. ENFORCEMENT BY DEPARTMENT OF INSURANCE. The
332-8 Texas Department of Insurance shall enforce this chapter as it
332-9 applies to contracts subject to Chapter 24, Insurance Code.]
332-10 [SUBCHAPTER H. EFFECT ON OTHER STATUTES]
332-11 [Sec. 303.701. RETAIL INSTALLMENT SALES AND MANUFACTURED
332-12 HOME AND MOTOR VEHICLE TRANSACTIONS. A contract subject to Chapter
332-13 345, 347, or 348, including a contract for an open-end account,
332-14 that provides for an interest rate or amount of time price
332-15 differential authorized under this chapter is not subject to
332-16 Chapter 342, 343, or 344.]
332-17 [Sec. 303.702. APPLICABILITY OF CREDIT UNION ACT. Except as
332-18 inconsistent with this chapter:]
332-19 [(1) a person subject to Subtitle D, Title 3, who
332-20 contracts for, charges, or receives a rate authorized by this
332-21 chapter remains subject to that subtitle; and]
332-22 [(2) a party to a transaction described by Subdivision
332-23 (1) has all the rights provided by Subtitle D, Title 3.]
332-24 [Sec. 303.703. APPLICABILITY OF CHAPTER 24, INSURANCE CODE.
332-25 (a) Except as inconsistent with this chapter:]
332-26 [(1) a person subject to Chapter 24, Insurance Code,
333-1 who contracts for, charges, or receives a rate authorized by this
333-2 chapter remains subject to that chapter; and]
333-3 [(2) a party to an insurance premium finance
333-4 agreement, including an agreement for an open-end account, has all
333-5 the rights provided by Chapter 24, Insurance Code.]
333-6 [(b) The licensing requirements of Subtitle B do not apply
333-7 to a transaction described by Subsection (a)(1).]
333-8 [Sec. 303.704. NOTICE REQUIREMENTS IN FEDERAL LAW. (a) If
333-9 a disclosure or notice requirement of this chapter is inconsistent
333-10 with or conflicts with a disclosure or notice requirement of
333-11 federal statute, regulation, or interpretation, the federal
333-12 statute, regulation, or interpretation controls, and a person is
333-13 not required to comply with the inconsistent or conflicting
333-14 requirement of this chapter.]
333-15 [(b) A creditor may modify the disclosure and notice
333-16 requirements of this chapter to conform to the terminology or other
333-17 provisions required or provided under federal statute, regulation,
333-18 or interpretation.]
333-19 [CHAPTER 304. JUDGMENT INTEREST]
333-20 [SUBCHAPTER A. GENERAL PROVISIONS]
333-21 [Sec. 304.001. INTEREST RATE REQUIRED IN JUDGMENT. A
333-22 judgment of a court of this state must state the interest rate
333-23 applicable to that judgment.]
333-24 [Sec. 304.002. JUDGMENT INTEREST RATE: INTEREST RATE IN
333-25 CONTRACT. A judgment of a court of this state on a contract that
333-26 provides for a specific interest rate earns interest at a rate
334-1 equal to the lesser of:]
334-2 [(1) the rate specified in the contract; or]
334-3 [(2) 18 percent a year.]
334-4 [Sec. 304.003. JUDGMENT INTEREST RATE: INTEREST RATE NOT IN
334-5 CONTRACT. (a) A judgment of a court of this state to which
334-6 Section 304.002 does not apply, including court costs awarded in
334-7 the judgment, earns interest at the rate determined under this
334-8 section.]
334-9 [(b) On the 15th of each month, the consumer credit
334-10 commissioner shall determine the interest rate to be applied to a
334-11 judgment rendered during the succeeding calendar month.]
334-12 [(c) The judgment interest rate is:]
334-13 [(1) the auction rate quoted on a discount basis for
334-14 52-week treasury bills issued by the United States government as
334-15 most recently published by the Federal Reserve Board before the
334-16 date of the computation;]
334-17 [(2) 10 percent if the auction rate described by
334-18 Subdivision (1) is less than 10 percent; or]
334-19 [(3) 20 percent if the auction rate described by
334-20 Subdivision (1) is more than 20 percent.]
334-21 [Sec. 304.004. PUBLICATION OF JUDGMENT INTEREST RATE. The
334-22 consumer credit commissioner shall send to the secretary of state
334-23 the judgment interest rate for publication in the Texas Register at
334-24 the same time other rates computed by the consumer credit
334-25 commissioner under this code are required to be published.]
334-26 [Sec. 304.005. ACCRUAL OF JUDGMENT INTEREST. (a) Except as
335-1 provided by Subsection (b), interest on a judgment of a court of
335-2 this state accrues during the period beginning on the day the
335-3 judgment is rendered and ending on the day the judgment is
335-4 satisfied.]
335-5 [(b) If a case is appealed and a motion for extension of
335-6 time to file a brief is granted for a party who was a plaintiff at
335-7 trial, interest does not accrue for the period of extension.]
335-8 [Sec. 304.006. COMPOUNDING OF JUDGMENT INTEREST. Interest
335-9 on a judgment of a court of this state compounds annually.]
335-10 [Sec. 304.007. JUDICIAL NOTICE OF JUDGMENT INTEREST RATE. A
335-11 court of this state shall take judicial notice of a published
335-12 judgment interest rate.]
335-13 [SUBCHAPTER B. PREJUDGMENT INTEREST IN WRONGFUL DEATH,
335-14 PERSONAL INJURY, OR PROPERTY DAMAGE CASE]
335-15 [Sec. 304.101. APPLICABILITY OF SUBCHAPTER. This subchapter
335-16 applies only to a wrongful death, personal injury, or property
335-17 damage case.]
335-18 [Sec. 304.102. PREJUDGMENT INTEREST REQUIRED IN CERTAIN
335-19 CASES. A judgment in a wrongful death, personal injury, or
335-20 property damage case must include prejudgment interest.]
335-21 [Sec. 304.103. PREJUDGMENT INTEREST RATE FOR WRONGFUL DEATH,
335-22 PERSONAL INJURY, OR PROPERTY DAMAGE CASE. The prejudgment interest
335-23 rate is equal to the postjudgment interest rate applicable at the
335-24 time of judgment and is computed as simple interest.]
335-25 [Sec. 304.104. ACCRUAL OF PREJUDGMENT INTEREST. Except as
335-26 provided by Section 304.105 or 304.108, prejudgment interest
336-1 accrues on the amount of a judgment during the period beginning on
336-2 the 180th day after the date the defendant receives written notice
336-3 of a claim or on the date the suit is filed, whichever is earlier,
336-4 and ending on the day preceding the date judgment is rendered.]
336-5 [Sec. 304.105. EFFECT OF SETTLEMENT OFFER ON ACCRUAL OF
336-6 PREJUDGMENT INTEREST. (a) If judgment for a claimant is less than
336-7 the amount of a settlement offer of the defendant, prejudgment
336-8 interest does not accrue on the amount of the judgment during the
336-9 period that the offer may be accepted.]
336-10 [(b) If judgment for a claimant is more than the amount of a
336-11 settlement offer of the defendant, prejudgment interest does not
336-12 accrue on the amount of the settlement offer during the period that
336-13 the offer may be accepted.]
336-14 [Sec. 304.106. SETTLEMENT OFFER REQUIREMENTS TO PREVENT
336-15 PREJUDGMENT INTEREST ACCRUAL. To prevent the accrual of
336-16 prejudgment interest under this subchapter, a settlement offer must
336-17 be in writing and delivered to the claimant or the claimant's
336-18 attorney or representative.]
336-19 [Sec. 304.107. VALUE OF SETTLEMENT OFFER FOR COMPUTING
336-20 PREJUDGMENT INTEREST. If a settlement offer does not provide for
336-21 cash payment at the time of settlement, the amount of the
336-22 settlement offer for the purpose of computing prejudgment interest
336-23 is the cost or fair market value of the settlement offer at the
336-24 time it is made.]
336-25 [Sec. 304.108. ACCRUAL OF PREJUDGMENT INTEREST DURING
336-26 PERIODS OF TRIAL DELAY. (a) In addition to the exceptions
337-1 provided by Section 304.105, a court may order that prejudgment
337-2 interest does not accrue during periods of delay in the trial.]
337-3 [(b) A court shall consider:]
337-4 [(1) periods of delay caused by a defendant; and]
337-5 [(2) periods of delay caused by a claimant.]
337-6 [SUBCHAPTER C. OTHER PREJUDGMENT INTEREST PROVISIONS]
337-7 [Sec. 304.201. PREJUDGMENT INTEREST RATE FOR CONDEMNATION
337-8 CASE. The prejudgment interest rate in a condemnation case is
337-9 equal to the postjudgment interest rate applicable at the time of
337-10 judgment and is computed as simple interest.]
337-11 [SUBCHAPTER D. EXCEPTIONS TO APPLICATION OF CHAPTER]
337-12 [Sec. 304.301. EXCEPTION FOR DELINQUENT TAXES. This chapter
337-13 does not apply to a judgment that earns interest at a rate set by
337-14 Title 2, Tax Code.]
337-15 [Sec. 304.302. EXCEPTION FOR DELINQUENT CHILD SUPPORT. This
337-16 chapter does not apply to interest that accrues on an amount of
337-17 unpaid child support under Section 157.265, Family Code.]
337-18 [CHAPTER 305. PENALTIES AND LIABILITIES]
337-19 [SUBCHAPTER A. CIVIL LIABILITY; CRIMINAL PENALTY]
337-20 [Sec. 305.001. LIABILITY FOR CONTRACTING FOR, CHARGING, OR
337-21 RECEIVING EXCESSIVE INTEREST. (a) A person who contracts for,
337-22 charges, or receives interest that is greater than the amount
337-23 authorized by this subtitle is liable to the obligor for an amount
337-24 that is equal to the greater of:]
337-25 [(1) three times the amount computed by subtracting
337-26 the amount of interest allowed by law from the total amount of the
338-1 interest contracted for, charged, or received; or]
338-2 [(2) $2,000 or 20 percent of the amount of the
338-3 principal, whichever is less.]
338-4 [(b) This section applies only to a contract or transaction
338-5 subject to this subtitle.]
338-6 [Sec. 305.002. ADDITIONAL LIABILITY FOR INTEREST GREATER
338-7 THAN TWICE AMOUNT AUTHORIZED. (a) In addition to the amount
338-8 determined under Section 305.001, a person who contracts for,
338-9 charges, or receives interest that is greater than twice the amount
338-10 authorized by this subtitle is liable to the obligor for the
338-11 principal amount on which the interest is contracted for, charged,
338-12 or received as well as interest and all other charges.]
338-13 [(b) This section applies only to a contract or transaction
338-14 subject to this subtitle.]
338-15 [Sec. 305.003. ATTORNEY'S FEES. A person who is liable
338-16 under Section 305.001 or 305.002 is also liable for reasonable
338-17 attorney's fees set by the court.]
338-18 [Sec. 305.004. LIMITATION ON FILING SUIT. An action under
338-19 this chapter must be brought before the fourth anniversary of the
338-20 date on which the usurious interest was received or collected. The
338-21 action must be brought in the county in which:]
338-22 [(1) the defendant resides;]
338-23 [(2) the usurious interest was received or collected;]
338-24 [(3) the transaction was entered into; or]
338-25 [(4) the person who paid the usurious interest:]
338-26 [(A) resides; or]
339-1 [(B) resided when the transaction occurred.]
339-2 [Sec. 305.005. CRIMINAL PENALTY. (a) A person commits an
339-3 offense if the person contracts for, charges, or receives interest
339-4 that is greater than twice the amount authorized by this subtitle.]
339-5 [(b) Contracting for, charging, or receiving interest
339-6 authorized under Section 302.001 before the 30th day after the date
339-7 on which the debt is due is not an offense.]
339-8 [(c) An offense under this section is a misdemeanor
339-9 punishable by a fine of not more than $1,000.]
339-10 [(d) Each contract or transaction that violates this section
339-11 is a separate offense.]
339-12 [(e) This section applies only to a contract or transaction
339-13 subject to this subtitle.]
339-14 [SUBCHAPTER B. EXCEPTION FROM LIABILITY]
339-15 [Sec. 305.101. ACCIDENTAL AND BONA FIDE ERROR. A person is
339-16 not subject to penalty under this chapter for any usurious interest
339-17 that results from an accidental and bona fide error.]
339-18 [Sec. 305.102. INTEREST IF NO RATE SPECIFIED. A person is
339-19 not liable to an obligor solely because the person contracts for,
339-20 charges, or receives the interest authorized under Section 302.002
339-21 before the 30th day after the date on which the debt is due.]
339-22 [Sec. 305.103. CORRECTION OF VIOLATION. (a) A person is
339-23 not liable to an obligor for a violation of this subtitle if:]
339-24 [(1) not later than the 60th day after the date that
339-25 the person actually discovered the violation, the person corrects
339-26 the violation as to that obligor by taking any necessary action and
340-1 making any necessary adjustment, including the payment of interest
340-2 on a refund, if any, at the applicable rate provided for in the
340-3 contract of the parties; and]
340-4 [(2) the person gives written notice to the obligor of
340-5 the violation before the obligor gives written notice of the
340-6 violation or files an action alleging the violation.]
340-7 [(b) For the purposes of Subsection (a), "actually
340-8 discovered" refers to the time of the discovery of the violation in
340-9 fact and not to the time when an ordinarily prudent person, through
340-10 reasonable diligence, could or should have discovered or known of
340-11 the violation. Actual discovery of a violation in one transaction
340-12 may constitute actual discovery of the same violation in other
340-13 transactions if the violation is of such a nature that it would
340-14 necessarily be repeated and would be clearly apparent in the other
340-15 transactions without the necessity of examining all the other
340-16 transactions.]
340-17 [(c) For the purposes of Subsection (a), written notice is
340-18 given when the notice is delivered to the person or to the person's
340-19 duly authorized agent or attorney of record personally or by United
340-20 States mail to the address shown on the most recent documents in
340-21 the transaction. Deposit of the notice as registered or certified
340-22 mail in a postage paid, properly addressed wrapper in a post office
340-23 or official depository under the care and custody of the United
340-24 States Postal Service is prima facie evidence of the delivery of
340-25 the notice to the person to whom the notice is addressed.]
340-26 [(d) A person is not liable to an obligor for a violation of
341-1 this subtitle if:]
341-2 [(1) before March 1, 1994, the person corrected the
341-3 violation as to the obligor by taking actions and making
341-4 adjustments necessary to correct the violation, including the
341-5 payment of interest on a refund, if any, at the applicable rate
341-6 provided for in the contract of the parties; and]
341-7 [(2) the person gives written notice to the obligor of
341-8 the correction before the obligor has given written notice of or
341-9 has filed an action alleging the violation of this subtitle.]
341-10 [Sec. 305.104. CORRECTION EXCEPTION AVAILABLE TO ALL PERSONS
341-11 SIMILARLY SITUATED. If in a single transaction more than one
341-12 person may be liable for a violation of this subtitle, compliance
341-13 with Section 305.103 by any of those persons entitles each to the
341-14 protection provided by that section.]
341-15 [CHAPTER 339. MISCELLANEOUS PROVISIONS RELATING TO INTEREST]
341-16 [Sec. 339.001. IMPOSITION OF SURCHARGE FOR USE OF CREDIT
341-17 CARD. (a) In a sale of goods or services, a seller may not
341-18 impose a surcharge on a buyer who uses a credit card for an
341-19 extension of credit instead of cash, a check, or a similar means of
341-20 payment.]
341-21 [(b) This section does not apply to a state agency, county,
341-22 local governmental entity, or other governmental entity that
341-23 accepts a credit card for the payment of fees, taxes, or other
341-24 charges.]
341-25 [Sec. 339.002. BILLING CYCLE INTEREST LIMITATION ON OPEN-END
341-26 ACCOUNT WITHOUT MERCHANT DISCOUNT. (a) This section applies to an
342-1 open-end account agreement that provides for credit card
342-2 transactions:]
342-3 [(1) in which the creditor relies on one of the
342-4 ceilings authorized by Chapter 303 for the rate of interest; and]
342-5 [(2) in connection with which the creditor does not
342-6 impose or receive a merchant discount.]
342-7 [(b) Interest or time price differential may not be charged
342-8 for a billing cycle of an open-end account credit agreement if:]
342-9 [(1) the total amount of the obligor's payments during
342-10 the cycle equal or exceed the balance owed under the agreement at
342-11 the end of the preceding billing cycle; or]
342-12 [(2) an amount is not owed under the agreement at the
342-13 end of the preceding billing cycle.]
342-14 [Sec. 339.003. SALE OF OPEN-END ACCOUNT WITHOUT MERCHANT
342-15 DISCOUNT. A seller or lessor may sell an open-end account credit
342-16 agreement described by Section 339.002(a) or any balance under that
342-17 agreement to a purchaser who purchases a substantial part of the
342-18 seller's or lessor's open-end account credit agreements or balances
342-19 under those agreements in accordance with Subchapter G, Chapter
342-20 345. A charge, fee, or discount on that sale:]
342-21 [(1) is not a merchant discount;]
342-22 [(2) does not disqualify the open-end account credit
342-23 agreement or a balance under that agreement from being subject to
342-24 Chapter 303 or from coverage under this section; and]
342-25 [(3) does not subject the account to the limitations
342-26 provided by Section 303.205.]
343-1 [Sec. 339.004. ACCOUNT PURCHASE TRANSACTION. (a) In this
343-2 section, "account purchase transaction" means an agreement under
343-3 which a person engaged in a commercial enterprise sells accounts,
343-4 instruments, documents, or chattel paper subject to this subtitle
343-5 at a discount, regardless of whether the person has a related
343-6 repurchase obligation.]
343-7 [(b) For the purposes of this subtitle, the amount of a
343-8 discount in, or charged under, an account purchase transaction is
343-9 not compensation contracted for, charged, or received with respect
343-10 to that account purchase transaction.]
343-11 [(c) For the purposes of this subtitle, the parties'
343-12 characterization of an account purchase transaction as a purchase
343-13 is conclusive that the account purchase transaction is not a
343-14 transaction for the use, forbearance, or detention of money.]
343-15 [Sec. 339.005. APPLICATION OF LICENSING REQUIREMENTS AND
343-16 SUBTITLE B TO CREDIT UNION OR EMPLOYEE BENEFIT PLAN. (a) A credit
343-17 union is not subject to Subtitle B and is not required to obtain a
343-18 license under this title.]
343-19 [(b) With respect to a loan that an employee benefit plan
343-20 that is subject to Title I of the Employee Retirement Income
343-21 Security Act of 1974 (29 U.S.C. Sections 1001-1114) makes to a
343-22 participant in the plan or a participant's beneficiary, the plan is
343-23 not subject to Subtitle B and is not required to obtain a license
343-24 under this title.]
343-25 (b) Section 1, Chapter 1396; Section 1, Chapter 81; Section
343-26 4, Chapter 906; and Section 7, Chapter 1111, Acts of the 75th
344-1 Legislature, Regular Session, 1997, are repealed.
344-2 SECTION 7.19. (a) Chapter 342, Finance Code, is amended to
344-3 conform to Sections 2 and 48, Chapter 1396, and Section 2, Chapter
344-4 164, Acts of the 75th Legislature, Regular Session, 1997, to read
344-5 as follows:
344-6 CHAPTER 342. CONSUMER LOANS
344-7 SUBCHAPTER A. GENERAL PROVISIONS; APPLICABILITY OF CHAPTER
344-8 Sec. 342.001. DEFINITIONS. In this chapter:
344-9 (1) "Irregular transaction" means a loan:
344-10 (A) that is payable in installments that are not
344-11 consecutive, monthly, and substantially equal in amount; or
344-12 (B) the first scheduled installment of which is
344-13 due later than one month and 15 days after the date of the loan.
344-14 (2) "Regular transaction" means a loan:
344-15 (A) that is payable in installments that are
344-16 consecutive, monthly, and substantially equal in amount; and
344-17 (B) the first scheduled installment of which is
344-18 due within one month and 15 days after the date of the loan.
344-19 (3) "Secondary mortgage loan" means a loan that is:
344-20 (A) secured in whole or in part by an interest,
344-21 including a lien or security interest, in real property that is:
344-22 (i) improved by a dwelling designed for
344-23 occupancy by four or fewer families; and
344-24 (ii) subject to one or more liens,
344-25 security interests, prior mortgages, or deeds of trust; and
344-26 (B) not to be repaid before the 91st day after
345-1 the date of the loan.
345-2 Sec. 342.002. INTEREST COMPUTATION METHODS. (a) The
345-3 scheduled installment earnings method is a method to compute an
345-4 interest charge by applying a daily rate to the unpaid balance of
345-5 the amount financed as if each payment will be made on its
345-6 scheduled installment date. A payment received before or after the
345-7 due date does not affect the amount of the scheduled principal
345-8 reduction.
345-9 (b) The true daily earnings method is a method to compute an
345-10 interest charge by applying a daily rate to the unpaid balance of
345-11 the amount financed. The earned finance charge is computed by
345-12 multiplying the daily rate by the number of days the principal
345-13 balance is outstanding.
345-14 (c) For the purposes of Subsections (a) and (b), the daily
345-15 rate is 1/365th of the equivalent contract rate.
345-16 Sec. 342.003. PURCHASE FROM MORTGAGEE. For the purposes of
345-17 this chapter, a purchase from a mortgagee of an interest in a
345-18 secondary mortgage loan that was made to secure that loan is
345-19 treated as if it were a secondary mortgage loan.
345-20 Sec. 342.004. CONSTITUTIONAL INTEREST; EXEMPTION FOR LOAN
345-21 WITH INTEREST RATE OF 10 PERCENT OR LESS. (a) Except as otherwise
345-22 fixed by law, the maximum rate of interest is 10 percent a year.
345-23 (b) A loan providing for a rate of interest that is 10
345-24 percent a year or less is not subject to this chapter.
345-25 Sec. 342.005. APPLICABILITY OF CHAPTER. A loan is subject
345-26 to this chapter if the loan:
346-1 (1) provides for interest in excess of 10 percent a
346-2 year;
346-3 (2) is extended primarily for personal, family, or
346-4 household use;
346-5 (3) is made by a person engaged in the business of
346-6 making, arranging, or negotiating those types of loans; and
346-7 (4) either:
346-8 (A) is not secured by a lien on real property;
346-9 or
346-10 (B) is described by Section 342.001(3), 342.301,
346-11 or 342.456 and is predominantly payable in monthly installments.
346-12 Sec. 342.006. EXEMPTION FOR CERTAIN SECONDARY MORTGAGE
346-13 LOANS. This chapter does not apply to a secondary mortgage loan
346-14 made by a seller of property to secure all or part of the unpaid
346-15 purchase price.
346-16 SUBCHAPTER B. AUTHORIZED ACTIVITIES; LICENSE
346-17 Sec. 342.051. LICENSE REQUIRED. (a) A person must hold a
346-18 license issued under this chapter to:
346-19 (1) engage in the business of making, transacting, or
346-20 negotiating loans subject to this chapter; and
346-21 (2) contract for, charge, or receive, directly or
346-22 indirectly, in connection with a loan subject to this chapter, a
346-23 charge, including interest, compensation, consideration, or another
346-24 expense, authorized under this chapter that in the aggregate
346-25 exceeds the charges authorized under other law.
346-26 (b) A person may not use any device, subterfuge, or pretense
347-1 to evade the application of this section.
347-2 (c) A person is not required to obtain a license under
347-3 Subsection (a) if the person is:
347-4 (1) a bank, savings bank, or savings and loan
347-5 association; or
347-6 (2) subject to Chapter 24, Insurance Code.
347-7 (d) An insurance agent licensed under Article 21.14,
347-8 Insurance Code, is not required to obtain a license to negotiate or
347-9 arrange a loan on behalf of a bank, savings bank, or savings and
347-10 loan association provided that the insurance agent or the bank,
347-11 savings bank, or savings and loan association does not make the
347-12 provision of insurance a condition to apply for or obtain a loan or
347-13 service from the bank, savings bank, or savings and loan
347-14 association.
347-15 Sec. 342.052. ISSUANCE OF MORE THAN ONE LICENSE FOR A
347-16 PERSON. (a) The commissioner may issue more than one license to a
347-17 person on compliance with this chapter for each license.
347-18 (b) A person who is required to hold a license under this
347-19 chapter must hold a separate license for each office at which loans
347-20 are made, negotiated, or collected under this chapter.
347-21 (c) A license is not required under this chapter for a place
347-22 of business:
347-23 (1) devoted to accounting or other recordkeeping; and
347-24 (2) at which loans are not made, negotiated, or
347-25 collected under this chapter or Chapter 346.
347-26 Sec. 342.053. AREA OF BUSINESS; LOANS BY MAIL. (a) A
348-1 lender is not limited to making loans to residents of the community
348-2 in which the office for which the license or other authority is
348-3 granted.
348-4 (b) A lender may make, negotiate, arrange, and collect loans
348-5 by mail from a licensed office.
348-6 SUBCHAPTER C. APPLICATION FOR AND ISSUANCE OF LICENSE
348-7 Sec. 342.101. APPLICATION REQUIREMENTS. (a) The
348-8 application for a license under this chapter must:
348-9 (1) be under oath;
348-10 (2) give the approximate location from which business
348-11 is to be conducted;
348-12 (3) identify the business's principal parties in
348-13 interest; and
348-14 (4) contain other relevant information that the
348-15 commissioner requires for the findings required under Section
348-16 342.104.
348-17 (b) On the filing of one or more license applications, the
348-18 applicant shall pay to the commissioner an investigation fee of
348-19 $200.
348-20 (c) On the filing of each license application, the applicant
348-21 shall pay to the commissioner for the license's year of issuance a
348-22 license fee of:
348-23 (1) $100 if the license is granted not later than June
348-24 30; or
348-25 (2) $50 if the license is granted after June 30.
348-26 Sec. 342.102. BOND. (a) If the commissioner requires, an
349-1 applicant for a license under this chapter shall file with the
349-2 application a bond that is:
349-3 (1) in an amount not to exceed the total of:
349-4 (A) $5,000 for the first license; and
349-5 (B) $1,000 for each additional license;
349-6 (2) satisfactory to the commissioner; and
349-7 (3) issued by a surety company qualified to do
349-8 business as a surety in this state.
349-9 (b) The bond must be in favor of this state for the use of
349-10 this state and the use of a person who has a cause of action under
349-11 this chapter against the license holder.
349-12 (c) The bond must be conditioned on:
349-13 (1) the license holder's faithful performance under
349-14 this chapter and rules adopted under this chapter; and
349-15 (2) the payment of all amounts that become due to the
349-16 state or another person under this chapter during the calendar year
349-17 for which the bond is given.
349-18 (d) The aggregate liability of a surety to all persons
349-19 damaged by the license holder's violation of this chapter may not
349-20 exceed the amount of the bond.
349-21 Sec. 342.103. INVESTIGATION OF APPLICATION. On the filing
349-22 of an application and, if required, a bond, and on payment of the
349-23 required fees, the commissioner shall conduct an investigation to
349-24 determine whether to issue the license.
349-25 Sec. 342.104. APPROVAL OR DENIAL OF APPLICATION. (a) The
349-26 commissioner shall approve the application and issue to the
350-1 applicant a license to make loans under this chapter if the
350-2 commissioner finds that:
350-3 (1) the financial responsibility, experience,
350-4 character, and general fitness of the applicant are sufficient to:
350-5 (A) command the confidence of the public; and
350-6 (B) warrant the belief that the business will be
350-7 operated lawfully and fairly, within the purposes of this chapter;
350-8 and
350-9 (2) the applicant has net assets of at least $25,000
350-10 available for the operation of the business.
350-11 (b) If the commissioner does not find the eligibility
350-12 requirements of Subsection (a), the commissioner shall notify the
350-13 applicant.
350-14 (c) If an applicant requests a hearing on the application
350-15 not later than the 30th day after the date of notification under
350-16 Subsection (b), the applicant is entitled to a hearing not later
350-17 than the 60th day after the date of the request.
350-18 (d) The commissioner shall approve or deny the application
350-19 not later than the 60th day after the date of the filing of a
350-20 completed application with payment of the required fees, or if a
350-21 hearing is held, after the date of the completion of the hearing on
350-22 the application. The commissioner and the applicant may agree to a
350-23 later date in writing.
350-24 Sec. 342.105. DISPOSITION OF FEES ON DENIAL OF APPLICATION.
350-25 If the commissioner denies the application, the commissioner shall
350-26 retain the investigation fee and shall return to the applicant the
351-1 license fee submitted with the application.
351-2 SUBCHAPTER D. LICENSE
351-3 Sec. 342.151. NAME AND PLACE ON LICENSE. (a) A license
351-4 must state:
351-5 (1) the name of the license holder; and
351-6 (2) the address of the office from which the business
351-7 is to be conducted.
351-8 (b) A license holder may not conduct business under this
351-9 chapter under a name or at a place of business in this state other
351-10 than the name or office stated on the license.
351-11 Sec. 342.152. LICENSE DISPLAY. A license holder shall
351-12 display a license at the place of business provided on the license.
351-13 Sec. 342.153. MINIMUM ASSETS FOR LICENSE. (a) Except as
351-14 provided by Subsection (b) or (c), a license holder shall maintain
351-15 for each office for which a license is held net assets of at least
351-16 $25,000 that are used or readily available for use in conducting
351-17 the business of that office.
351-18 (b) A license holder who held a license under the Texas
351-19 Regulatory Loan Act and was issued a license to make loans under
351-20 that chapter as provided by Section 4, Chapter 274, Acts of the
351-21 60th Legislature, Regular Session, 1967, shall maintain for the
351-22 office for which that license is held net assets of at least
351-23 $15,000 that are used or readily available for use in conducting
351-24 the business of that office.
351-25 (c) A license holder who paid the pawnbroker's occupational
351-26 tax for 1967 and was issued a license to make loans under that
352-1 chapter as provided by Section 4, Chapter 274, Acts of the 60th
352-2 Legislature, Regular Session, 1967, is exempt from the minimum
352-3 assets requirement of Subsection (a) for the office for which that
352-4 license is held.
352-5 (d) If a license holder holds a license to which Subsection
352-6 (b) or (c) applies and subsequently transfers the license to
352-7 another person, the minimum assets required under Subsection (a)
352-8 shall apply to the license and the subsequent license holder.
352-9 Sec. 342.154. ANNUAL LICENSE FEE. (a) Not later than
352-10 December 1, a license holder shall pay to the commissioner for each
352-11 license held an annual fee for the year beginning the next January
352-12 1.
352-13 (b) The annual fee for a license under this chapter is $200
352-14 except that if, on September 30 preceding the date on which the
352-15 annual fee is due, the gross unpaid balance of loans regulated
352-16 under this chapter in the office for which the license is issued is
352-17 $100,000 or less, the annual fee is $100.
352-18 Sec. 342.155. EXPIRATION OF LICENSE ON FAILURE TO PAY ANNUAL
352-19 FEE. If the annual fee for a license is not paid before the 16th
352-20 day after the date on which the written notice of delinquency of
352-21 payment has been given to the license holder, the license expires
352-22 on the later of:
352-23 (1) that day; or
352-24 (2) December 31 of the last year for which an annual
352-25 fee was paid.
352-26 Sec. 342.156. LICENSE SUSPENSION OR REVOCATION. After
353-1 notice and a hearing the commissioner may suspend or revoke a
353-2 license if the commissioner finds that:
353-3 (1) the license holder failed to pay the annual
353-4 license fee, an examination fee, an investigation fee, or another
353-5 charge imposed by the commissioner under this chapter;
353-6 (2) the license holder, knowingly or without the
353-7 exercise of due care, violated this chapter or a rule adopted or
353-8 order issued under this chapter; or
353-9 (3) a fact or condition exists that, if it had existed
353-10 or had been known to exist at the time of the original application
353-11 for the license, clearly would have justified the commissioner's
353-12 denial of the application.
353-13 Sec. 342.157. CORPORATE CHARTER FORFEITURE. (a) A license
353-14 holder who violates this chapter is subject to revocation of the
353-15 holder's license and, if the license holder is a corporation,
353-16 forfeiture of its charter.
353-17 (b) When the attorney general is notified of a violation of
353-18 this chapter and revocation of a license, the attorney general
353-19 shall file suit in a district court in Travis County, if the
353-20 license holder is a corporation, for forfeiture of the license
353-21 holder's charter.
353-22 Sec. 342.158. LICENSE SUSPENSION OR REVOCATION FILED WITH
353-23 PUBLIC RECORDS. The decision of the commissioner on the suspension
353-24 or revocation of a license and the evidence considered by the
353-25 commissioner in making the decision shall be filed in the public
353-26 records of the commissioner.
354-1 Sec. 342.159. REINSTATEMENT OF SUSPENDED LICENSE; ISSUANCE
354-2 OF NEW LICENSE AFTER REVOCATION. The commissioner may reinstate a
354-3 suspended license or issue a new license on application to a person
354-4 whose license has been revoked if at the time of the reinstatement
354-5 or issuance no fact or condition exists that clearly would have
354-6 justified the commissioner's denial of an original application for
354-7 the license.
354-8 Sec. 342.160. SURRENDER OF LICENSE. A license holder may
354-9 surrender a license issued under this chapter by delivering to the
354-10 commissioner:
354-11 (1) the license; and
354-12 (2) a written notice of the license's surrender.
354-13 Sec. 342.161. EFFECT OF LICENSE SUSPENSION, REVOCATION, OR
354-14 SURRENDER. (a) The suspension, revocation, or surrender of a
354-15 license issued under this chapter does not affect the obligation of
354-16 a contract between the license holder and a debtor entered into
354-17 before the revocation, suspension, or surrender.
354-18 (b) Surrender of a license does not affect the license
354-19 holder's civil or criminal liability for an act committed before
354-20 surrender.
354-21 Sec. 342.162. MOVING AN OFFICE. (a) A license holder shall
354-22 give written notice to the commissioner before the 30th day
354-23 preceding the date the license holder moves an office from the
354-24 location provided on the license.
354-25 (b) The commissioner shall amend a license holder's license
354-26 accordingly.
355-1 Sec. 342.163. TRANSFER OR ASSIGNMENT OF LICENSE. A license
355-2 may be transferred or assigned only with the approval of the
355-3 commissioner.
355-4 SUBCHAPTER E. INTEREST CHARGES ON NON-REAL PROPERTY LOANS
355-5 Sec. 342.201. MAXIMUM INTEREST CHARGE. (a) A loan contract
355-6 under this chapter that is a regular transaction and is not secured
355-7 by real property may provide for an interest charge on the cash
355-8 advance that does not exceed the amount of add-on interest equal to
355-9 the amount computed for the full term of the contract at an add-on
355-10 interest amount equal to:
355-11 (1) $18 for each $100 per year on the part of the cash
355-12 advance that is less than or equal to the amount computed under
355-13 Subchapter C, Chapter 341, using the reference base amount of $300;
355-14 and
355-15 (2) $8 for each $100 per year on the part of the cash
355-16 advance that is more than the amount computed for Subdivision (1)
355-17 but less than or equal to an amount computed under Subchapter C,
355-18 Chapter 341, using the reference base amount of $2,500.
355-19 (b) For the purpose of Subsection (a):
355-20 (1) when the loan is made an interest charge may be
355-21 computed for the full term of the loan contract;
355-22 (2) if the period before the first installment due
355-23 date includes a part of a month that is longer than 15 days, that
355-24 portion of a month may be considered a full month; and
355-25 (3) if a loan contract provides for precomputed
355-26 interest, the amount of the loan is the total of:
356-1 (A) the cash advance; and
356-2 (B) the amount of precomputed interest.
356-3 (c) A loan contract under this chapter that is an irregular
356-4 transaction and is not secured by real property may provide for an
356-5 interest charge, using any method or formula, that does not exceed
356-6 the amount that, having due regard for the schedule of installment
356-7 payments, would produce the same effective return as allowed under
356-8 Subsection (a) if the loan were payable in equal successive monthly
356-9 installments beginning one month from the date of the contract.
356-10 (d) A loan contract under this chapter that is not secured
356-11 by real property may provide for a rate or amount of interest
356-12 computed using the true daily earnings method or the scheduled
356-13 installment earnings method that does not exceed the alternative
356-14 interest rate as computed under Subchapter A, Chapter 303.
356-15 Interest may accrue on the principal balance and amounts added to
356-16 principal after the date of the loan contract from time to time
356-17 unpaid at the rate provided for by the contract until the date of
356-18 payment in full or demand for payment in full.
356-19 Sec. 342.202. MAXIMUM CHARGE FOR LOAN WITH SINGLE REPAYMENT.
356-20 A loan contract that exceeds the maximum cash advance under Section
356-21 342.251 and that is payable in a single installment may provide for
356-22 an interest charge on the cash advance that does not exceed a rate
356-23 or amount that would produce the same effective return as allowed
356-24 under Section 342.201 considering the amount and term of the loan.
356-25 If a loan under this section is prepaid in full, the lender may
356-26 earn a minimum interest charge of $25.
357-1 Sec. 342.203. ADDITIONAL INTEREST FOR DEFAULT: REGULAR
357-2 TRANSACTION. (a) A loan contract that includes precomputed
357-3 interest and that is a regular transaction may provide for
357-4 additional interest for default if any part of an installment
357-5 remains unpaid after the 10th day after the date on which the
357-6 installment is due, including Sundays and holidays.
357-7 (b) A loan contract that uses the scheduled installment
357-8 earnings method and that is a regular transaction may provide for
357-9 additional interest for default if any part of an installment
357-10 remains unpaid after the 10th day after the date on which the
357-11 installment is due, including Sundays and holidays.
357-12 (c) The additional interest may not exceed five cents for
357-13 each $1 of a scheduled installment.
357-14 (d) Interest under this section may not be collected more
357-15 than once on the same installment.
357-16 Sec. 342.204. ADDITIONAL INTEREST FOR INSTALLMENT DEFERMENT:
357-17 REGULAR TRANSACTION. (a) On a loan contract that includes
357-18 precomputed interest and is a regular transaction, an authorized
357-19 lender may charge additional interest for the deferment of an
357-20 installment if:
357-21 (1) the entire amount of the installment is unpaid;
357-22 (2) no interest for default has been collected on the
357-23 installment; and
357-24 (3) payment of the installment is deferred for one or
357-25 more full months and the maturity of the contract is extended for a
357-26 corresponding period.
358-1 (b) The interest for deferment under Subsection (a) may not
358-2 exceed the amount computed by:
358-3 (1) taking the difference between the refund that
358-4 would be required for prepayment in full as of the date of
358-5 deferment and the refund that would be required for prepayment in
358-6 full one month before the date of deferment; and
358-7 (2) multiplying the results under Subdivision (1) by
358-8 the number of months in the deferment period.
358-9 (c) The amount of interest applicable to each deferred
358-10 balance or installment period occurring after a deferment period
358-11 remains the amount applicable to that balance or period under the
358-12 original loan contract.
358-13 (d) If a loan is prepaid in full during the deferment
358-14 period, the borrower shall receive, in addition to the refund
358-15 required under Subchapter H, a pro rata refund of that part of the
358-16 interest for deferment applicable to the number of full months
358-17 remaining in the deferment period on the payment date.
358-18 (e) For the purposes of this section, a deferment period is
358-19 the period during which a payment is not required or made because
358-20 of the deferment and begins on the day after the due date of the
358-21 scheduled installment that precedes the first installment being
358-22 deferred.
358-23 Sec. 342.205. COLLECTION OF DEFAULT OR DEFERMENT INTEREST.
358-24 Interest for default under Section 342.203 or for installment
358-25 deferment under Section 342.204 may be collected when it accrues or
358-26 at any time after it accrues.
359-1 Sec. 342.206. ADDITIONAL INTEREST FOR DEFAULT: IRREGULAR
359-2 TRANSACTION. A loan contract that includes precomputed interest
359-3 and that is an irregular transaction may provide for additional
359-4 interest for default using the true daily earnings method for the
359-5 period from the maturity date of an installment until the date the
359-6 installment is paid. The rate of the additional interest may not
359-7 exceed the maximum contract interest rate.
359-8 SUBCHAPTER F. ALTERNATE CHARGES FOR CERTAIN LOANS
359-9 Sec. 342.251. MAXIMUM CASH ADVANCE. The maximum cash
359-10 advance of a loan made under this subchapter is an amount computed
359-11 under Subchapter C, Chapter 341, using the reference base amount of
359-12 $100.
359-13 Sec. 342.252. ALTERNATE INTEREST CHARGE. Instead of the
359-14 charges authorized by Section 342.201, a loan contract may provide
359-15 for:
359-16 (1) on a cash advance of less than $30, an acquisition
359-17 charge that is not more than $1 for each $5 of the cash advance;
359-18 (2) on a cash advance equal to or more than $30 but
359-19 not more than $100:
359-20 (A) an acquisition charge that is not more than
359-21 the amount equal to one-tenth of the amount of the cash advance;
359-22 and
359-23 (B) an installment account handling charge that
359-24 is not more than:
359-25 (i) $3 a month if the cash advance is not
359-26 more than $35;
360-1 (ii) $3.50 a month if the cash advance is
360-2 more than $35 but not more than $70; or
360-3 (iii) $4 a month if the cash advance is
360-4 more than $70; or
360-5 (3) on a cash advance of more than $100:
360-6 (A) an acquisition charge that is not more than
360-7 $10; and
360-8 (B) an installment account handling charge that
360-9 is not more than the ratio of $4 a month for each $100 of cash
360-10 advance.
360-11 Sec. 342.253. MAXIMUM INTEREST CHARGE FOR LOAN WITH SINGLE
360-12 REPAYMENT. A loan contract to which Section 342.251 applies and
360-13 that is payable in a single installment may provide for an
360-14 acquisition charge and an interest charge on the cash advance that
360-15 does not exceed a rate or amount that would produce the same
360-16 effective return as allowed under Section 342.252 considering the
360-17 amount and term of the loan. If a loan under this section is
360-18 prepaid in full, the lender may earn a minimum of the acquisition
360-19 charge and interest charge for one month.
360-20 Sec. 342.254. NO OTHER CHARGES AUTHORIZED. (a) On a loan
360-21 made under this subchapter a lender may not contract for, charge,
360-22 or receive an amount unless this subchapter authorizes the amount
360-23 to be charged.
360-24 (b) An insurance charge is not authorized on a loan made
360-25 under this subchapter.
360-26 Sec. 342.255. MAXIMUM LOAN TERM. The maximum term of a loan
361-1 made under this subchapter is:
361-2 (1) for a loan of $100 or less, the lesser of:
361-3 (A) one month for each multiple of $10 of cash
361-4 advance; or
361-5 (B) six months; and
361-6 (2) for a loan of more than $100, one month for each
361-7 multiple of $20 of cash advance.
361-8 Sec. 342.256. REFUND. (a) An acquisition charge authorized
361-9 under Section 342.252(1) or (2) is considered to be earned at the
361-10 time a loan is made and is not subject to refund.
361-11 (b) On the prepayment of a loan with a cash advance of $30
361-12 or more but not more than $100, the installment account handling
361-13 charge authorized under Section 342.252(2) is subject to refund in
361-14 accordance with Subchapter H.
361-15 (c) On the prepayment of a loan with a cash advance of more
361-16 than $100, the acquisition charge and the installment account
361-17 handling charge authorized under Section 342.252(3) are subject to
361-18 refund in accordance with Subchapter H.
361-19 Sec. 342.257. DEFAULT CHARGE; DEFERMENT OF PAYMENT. The
361-20 provisions of Subchapter E relating to additional interest for
361-21 default and additional interest for the deferment of installments
361-22 apply to a loan made under this subchapter.
361-23 Sec. 342.258. SCHEDULES FOR WEEKLY, BIWEEKLY, OR SEMIMONTHLY
361-24 INSTALLMENTS. The commissioner may prepare schedules that may be
361-25 used by an authorized lender for the repayment of a loan made under
361-26 this subchapter by weekly, biweekly, or semimonthly installments.
362-1 SUBCHAPTER G. INTEREST AND OTHER CHARGES ON SECONDARY
362-2 MORTGAGE LOANS
362-3 Sec. 342.301. MAXIMUM INTEREST CHARGE. (a) A secondary
362-4 mortgage loan that is a regular transaction may provide for an
362-5 interest charge on the cash advance that is precomputed and that
362-6 does not exceed a rate or amount that would produce the same
362-7 effective return as allowed under Subchapter A, Chapter 303.
362-8 (b) For the purpose of Subsection (a):
362-9 (1) when the loan is made an interest charge may be
362-10 computed for the full term of the loan contract;
362-11 (2) if the period before the first installment due
362-12 date includes a part of a month that is longer than 15 days, that
362-13 portion of a month may be considered a full month; and
362-14 (3) if a loan contract provides for precomputed
362-15 interest, the amount of the loan is the total of:
362-16 (A) the cash advance; and
362-17 (B) the amount of precomputed interest.
362-18 (c) A secondary mortgage loan may provide for a rate or
362-19 amount of interest calculated using the true daily earnings method
362-20 or the scheduled installment earnings method that does not exceed
362-21 the alternative rate ceiling in Subchapter A, Chapter 303.
362-22 Interest may accrue on the principal balance and amounts added to
362-23 principal after the date of the loan contract from time to time
362-24 unpaid at the rate provided for by the contract until the date of
362-25 payment in full or demand for payment in full. An interest charge
362-26 under this subsection may not be precomputed.
363-1 Sec. 342.302. ADDITIONAL INTEREST FOR DEFAULT: REGULAR
363-2 TRANSACTION. (a) A secondary mortgage loan that includes
363-3 precomputed interest and that is a regular transaction may provide
363-4 for additional interest for default if any part of an installment
363-5 remains unpaid after the 10th day after the date on which the
363-6 installment is due, including Sundays and holidays.
363-7 (b) A secondary mortgage loan contract that uses the
363-8 scheduled installment earnings method and that is a regular
363-9 transaction may provide for additional interest for default if any
363-10 part of an installment remains unpaid after the 10th day after the
363-11 date on which the installment is due, including Sundays and
363-12 holidays.
363-13 (c) The additional interest for default may not exceed five
363-14 cents for each $1 of a scheduled installment.
363-15 (d) Interest under this section may not be collected more
363-16 than once on the same installment.
363-17 Sec. 342.303. ADDITIONAL INTEREST FOR INSTALLMENT DEFERMENT:
363-18 REGULAR TRANSACTIONS. (a) On a secondary mortgage loan that
363-19 includes precomputed interest and is a regular transaction, an
363-20 authorized lender may charge additional interest for the deferment
363-21 of an installment if:
363-22 (1) the entire amount of the installment is unpaid;
363-23 (2) no interest for default has been collected on the
363-24 installment; and
363-25 (3) payment of the installment is deferred for one or
363-26 more full months and the maturity of the contract is extended for a
364-1 corresponding period.
364-2 (b) The interest for deferment under Subsection (a) may not
364-3 exceed the amount computed by:
364-4 (1) taking the difference between the refund that
364-5 would be required for prepayment in full as of the date of
364-6 deferment and the refund that would be required for prepayment in
364-7 full one month before the date of deferment; and
364-8 (2) multiplying the results under Subdivision (1) by
364-9 the number of months in the deferment period.
364-10 (c) The amount of interest applicable to each deferred
364-11 balance or installment period occurring after a deferment period
364-12 remains the amount applicable to that balance or period under the
364-13 original loan contract.
364-14 (d) If a loan is prepaid in full during the deferment
364-15 period, the borrower shall receive, in addition to the refund
364-16 required under Subchapter H, a pro rata refund of that part of the
364-17 interest for deferment applicable to the number of full months
364-18 remaining in the deferment period on the payment date.
364-19 (e) For the purposes of this section, a deferment period is
364-20 the period during which a payment is not required or made because
364-21 of the deferment and begins on the day after the due date of the
364-22 scheduled installment that precedes the first installment being
364-23 deferred.
364-24 Sec. 342.304. COLLECTION OF DEFAULT OR DEFERMENT INTEREST.
364-25 Interest for default under Section 342.302 or for installment
364-26 deferment under Section 342.303 may be collected when it accrues or
365-1 at any time after it accrues.
365-2 Sec. 342.305. ADDITIONAL INTEREST FOR DEFAULT: IRREGULAR
365-3 TRANSACTION. A secondary mortgage loan that includes precomputed
365-4 interest and that is an irregular transaction may provide for
365-5 additional interest for default using the true daily earnings
365-6 method for the period from the maturity date of an installment
365-7 until the date the installment is paid. The rate of the additional
365-8 interest may not exceed the maximum contract interest rate.
365-9 Sec. 342.306. DATE OF FIRST SCHEDULED INSTALLMENT. On a
365-10 secondary mortgage loan made under this chapter the due date of the
365-11 first installment may not be scheduled later than three months
365-12 after the date of the loan.
365-13 Sec. 342.307. AMOUNTS AUTHORIZED TO BE INCLUDED IN CONTRACT.
365-14 A secondary mortgage loan contract may provide for:
365-15 (1) reasonable fees or charges paid to the trustee in
365-16 connection with a deed of trust or similar instrument executed in
365-17 connection with the secondary mortgage loan, including fees for
365-18 enforcing the lien against or posting for sale, selling, or
365-19 releasing the property secured by the deed of trust;
365-20 (2) reasonable fees paid to an attorney who is not an
365-21 employee of the creditor in the collection of a delinquent
365-22 secondary mortgage loan;
365-23 (3) court costs and fees incurred in the collection of
365-24 the loan or foreclosure of a lien created by the loan; and
365-25 (4) a fee that does not exceed $15 for the return by a
365-26 depository institution of a dishonored check, negotiable order of
366-1 withdrawal, or share draft offered in full or partial payment of a
366-2 secondary mortgage loan.
366-3 Sec. 342.308. AMOUNTS AUTHORIZED TO BE COLLECTED OR ADDED TO
366-4 LOAN. (a) A lender or a person who is assigned a secondary
366-5 mortgage loan may collect on or before the closing of the loan, or
366-6 include in the principal of the loan:
366-7 (1) reasonable fees for:
366-8 (A) title examination and preparation of an
366-9 abstract of title by:
366-10 (i) an attorney who is not an employee of
366-11 the lender; or
366-12 (ii) a title company or property search
366-13 company authorized to do business in this state; or
366-14 (B) premiums or fees for title insurance or
366-15 title search for the benefit of the mortgagee and, at the
366-16 mortgagor's option, for title insurance or title search for the
366-17 benefit of the mortgagor;
366-18 (2) reasonable fees charged to the lender by an
366-19 attorney who is not a salaried employee of the lender for
366-20 preparation of the loan documents in connection with the mortgage
366-21 loan if the fees are evidenced by a statement for services rendered
366-22 addressed to the lender;
366-23 (3) charges prescribed by law that are paid to public
366-24 officials for determining the existence of a security interest or
366-25 for perfecting, releasing, or satisfying a security interest;
366-26 (4) reasonable fees for an appraisal of real property
367-1 offered as security for the loan prepared by a certified appraiser
367-2 who is not a salaried employee of the lender;
367-3 (5) the reasonable cost of a credit report;
367-4 (6) reasonable fees for a survey of real property
367-5 offered as security for the loan prepared by a registered surveyor
367-6 who is not a salaried employee of the lender;
367-7 (7) the premiums received in connection with the sale
367-8 of credit life insurance, credit accident and health insurance, or
367-9 other insurance that protects the mortgagee against default by the
367-10 mortgagor, the benefits of which are applied in whole or in part to
367-11 reduce or extinguish the loan balance; and
367-12 (8) reasonable fees relating to real property offered
367-13 as security for the loan that are incurred to comply with a
367-14 federally mandated program if the collection of the fees or the
367-15 participation in the program is required by a federal agency.
367-16 (b) Premiums for property insurance that conform with
367-17 Section 342.401 may be added to the loan contract.
367-18 SUBCHAPTER H. REFUND OF PRECOMPUTED INTEREST
367-19 Sec. 342.351. REFUND OF PRECOMPUTED INTEREST: REGULAR
367-20 TRANSACTION. (a) This section applies to a loan contract that
367-21 includes precomputed interest and that is a regular transaction.
367-22 (b) If the contract is prepaid in full, including payment in
367-23 cash or by a new loan or renewal of the loan, or if the lender
367-24 demands payment in full of the unpaid balance, after the first
367-25 installment due date but before the final installment due date, the
367-26 lender shall refund or credit to the borrower the amount computed
368-1 by:
368-2 (1) dividing the sum of the periodic balances
368-3 scheduled to follow the installment date after the date of the
368-4 prepayment or demand, as appropriate, by the sum of all the
368-5 periodic balances under the schedule of payments set out in the
368-6 loan contract; and
368-7 (2) multiplying the total interest contracted for
368-8 under Section 342.201, 342.252, or 342.301, as appropriate, by the
368-9 result under Subdivision (1).
368-10 (c) If the prepayment in full or demand for payment in full
368-11 occurs before the first installment due date, the lender shall:
368-12 (1) retain an amount computed by:
368-13 (A) dividing 30 into the amount that could be
368-14 retained if the first installment period were one month and the
368-15 loan were prepaid in full on the date the first installment is due;
368-16 and
368-17 (B) multiplying the result under Paragraph (A)
368-18 by the number of days in the period beginning on the date the loan
368-19 was made and ending on the date of the prepayment or demand; and
368-20 (2) refund or credit to the borrower the amount
368-21 computed by subtracting the amount retained under Subdivision (1)
368-22 from the interest contracted for under Section 342.201, 342.252, or
368-23 342.301, as appropriate.
368-24 Sec. 342.352. REFUND OF PRECOMPUTED INTEREST ON CONTRACT:
368-25 IRREGULAR TRANSACTION OR TERM OF MORE THAN 60 MONTHS. (a) This
368-26 section applies to a loan contract:
369-1 (1) that includes precomputed interest and to which
369-2 Section 342.351 does not apply; or
369-3 (2) that has a term of more than 60 months.
369-4 (b) If the contract is prepaid in full, including payment in
369-5 cash or by a new loan or renewal of the loan, or if the lender
369-6 demands payment in full of the unpaid balance before final maturity
369-7 of the contract, the lender earns interest for the period beginning
369-8 on the date of the loan and ending on the date of the prepayment or
369-9 demand, as applicable, an amount that does not exceed the amount
369-10 allowed by Subsection (f) using the simple annual interest rate
369-11 under the contract.
369-12 (c) If prepayment in full or demand for payment in full
369-13 occurs during an installment period, the lender may retain, in
369-14 addition to interest that accrued during any elapsed installment
369-15 periods, an amount computed by:
369-16 (1) multiplying the simple annual interest rate under
369-17 the contract by the unpaid principal balance of the loan determined
369-18 according to the schedule of payments to be outstanding on the
369-19 preceding installment due date;
369-20 (2) dividing 365 into the product under Subdivision
369-21 (1); and
369-22 (3) multiplying the number of days in the period
369-23 beginning on the day after the installment due date and ending on
369-24 the date of the prepayment or demand, as appropriate, by the result
369-25 obtained under Subdivision (2).
369-26 (d) The lender may also earn interest on an addition to
370-1 principal, or other permissible charges, added to the loan after
370-2 the date of the loan contract, accruing at the simple annual
370-3 interest rate under the contract from the date of the addition
370-4 until the date paid or the date the lender demands payment in full
370-5 of the total unpaid balance under the loan contract.
370-6 (e) The lender shall refund or credit to the borrower the
370-7 amount computed by subtracting the total amount retained under
370-8 Subsections (b), (c), and (d) from the total amount of interest
370-9 contracted for and precomputed in the amount of the loan.
370-10 (f) For the purposes of this section, the simple annual
370-11 interest rate under a contract is equal to the rate that the
370-12 contract would have produced over its full term if, assuming that
370-13 each scheduled payment under the contract is paid on the date due
370-14 and considering the amount of each scheduled installment and the
370-15 time of each scheduled installment period, the rate were applied to
370-16 the unpaid principal amounts determined to be outstanding from time
370-17 to time according to the schedule of payments.
370-18 Sec. 342.353. NO REFUND ON PARTIAL PREPAYMENT OR OF AMOUNT
370-19 LESS THAN $1. A refund is not required under this subchapter for a
370-20 partial prepayment or if the amount to be refunded is less than $1.
370-21 SUBCHAPTER I. INSURANCE
370-22 Sec. 342.401. REQUIRED PROPERTY INSURANCE. (a) On a loan
370-23 that is subject to Subchapter E with a cash advance of $300 or
370-24 more, a lender may request or require a borrower to insure tangible
370-25 personal property offered as security for the loan.
370-26 (b) On a secondary mortgage loan, a lender may request or
371-1 require a borrower to provide property insurance as security
371-2 against reasonable risks of loss, damage, and destruction.
371-3 (c) The insurance coverage and the premiums or charges for
371-4 the coverage must bear a reasonable relationship to:
371-5 (1) the amount, term, and conditions of the loan;
371-6 (2) the value of the collateral; and
371-7 (3) the existing hazards or risk of loss, damage, or
371-8 destruction.
371-9 (d) The insurance may not:
371-10 (1) cover unusual or exceptional risks; or
371-11 (2) provide coverage not ordinarily included in
371-12 policies issued to the general public.
371-13 (e) A creditor may not require the purchase of duplicate
371-14 property insurance if the creditor has knowledge that the borrower:
371-15 (1) has valid and collectible insurance covering the
371-16 property; and
371-17 (2) has provided a loss payable endorsement sufficient
371-18 to protect the creditor.
371-19 (f) For purposes of determining the knowledge required under
371-20 Subsection (e), a creditor may rely on a written consent to
371-21 purchase insurance in which the borrower is given the opportunity
371-22 to disclose the existence of other coverage.
371-23 Sec. 342.402. CREDIT LIFE INSURANCE, CREDIT HEALTH AND
371-24 ACCIDENT INSURANCE, OR INVOLUNTARY UNEMPLOYMENT INSURANCE. (a) On
371-25 a loan made under this chapter that is subject to Subchapter E with
371-26 a cash advance of $100 or more, a lender may:
372-1 (1) offer or request that a borrower provide credit
372-2 life insurance and credit health and accident insurance as
372-3 additional protection for the loan; and
372-4 (2) offer involuntary unemployment insurance to the
372-5 borrower at the time the loan is made.
372-6 (b) A lender may not require that the borrower accept or
372-7 provide the insurance described by Subsection (a).
372-8 (c) On a secondary mortgage loan made under this chapter, a
372-9 lender may request or require that a borrower provide credit life
372-10 insurance and credit accident and health insurance as additional
372-11 protection for the loan.
372-12 Sec. 342.403. MAXIMUM AMOUNT OF INSURANCE COVERAGE. (a) At
372-13 any time the total amount of the policies of credit life insurance
372-14 in force on one borrower on one loan contract may not exceed the
372-15 greater of:
372-16 (1) the total amount repayable under the loan contract
372-17 if the loan is an irregular transaction; or
372-18 (2) the greater of the scheduled or actual amount of
372-19 unpaid indebtedness if the loan is a regular transaction.
372-20 (b) At any time the total amount of the policies of credit
372-21 accident and health insurance or involuntary unemployment insurance
372-22 in force on one borrower on one loan contract may not exceed the
372-23 total amount repayable under the loan contract, and the amount of
372-24 each periodic indemnity payment may not exceed the scheduled
372-25 periodic installment payment on the loan.
372-26 Sec. 342.404. INSURANCE NOTICE. (a) If insurance is
373-1 required on a loan made under this chapter, the lender shall give
373-2 to the borrower written notice that clearly and conspicuously
373-3 states that:
373-4 (1) insurance is required in connection with the loan;
373-5 and
373-6 (2) the borrower as an option may furnish the required
373-7 insurance coverage through an insurance policy that is in existence
373-8 and that is owned or controlled by the borrower or an insurance
373-9 policy obtained from an insurance company authorized to do business
373-10 in this state.
373-11 (b) If insurance requested or required on a loan made under
373-12 this chapter is sold or obtained by a lender at a premium or rate
373-13 of charge that is not fixed or approved by the commissioner of
373-14 insurance, the lender shall notify the borrower of that fact. If
373-15 notice is required under Subsection (a), the lender shall include
373-16 that fact in the notice required by Subsection (a).
373-17 (c) A notice required under this section may be:
373-18 (1) a separate writing delivered with the loan
373-19 contract; or
373-20 (2) a part of the loan contract.
373-21 Sec. 342.405. INSURANCE MAY BE FURNISHED BY BORROWER.
373-22 (a) If insurance is required on a loan made under this chapter,
373-23 the borrower may furnish the insurance coverage through an
373-24 insurance policy that is in existence and that is owned or
373-25 controlled by the borrower or an insurance policy obtained by the
373-26 borrower from an insurance company authorized to do business in
374-1 this state.
374-2 (b) If insurance is required on a loan made under this
374-3 chapter and the insurance is sold or obtained by the lender at a
374-4 premium or rate of charge that is not fixed or approved by the
374-5 commissioner of insurance, the borrower has the option of
374-6 furnishing the required insurance under this section at any time
374-7 before the sixth day after the date of the loan.
374-8 Sec. 342.406. BORROWER'S FAILURE TO PROVIDE REQUIRED
374-9 INSURANCE. (a) If a borrower fails to obtain or maintain
374-10 insurance coverage required under a loan contract or requests the
374-11 lender to obtain that coverage, the lender may obtain substitute
374-12 insurance coverage that is substantially equivalent to or more
374-13 limited than the coverage originally required.
374-14 (b) If a loan is subject to Subchapter E, the lender may
374-15 obtain insurance to cover only the interest of the lender as a
374-16 secured party if the borrower does not request that the borrower's
374-17 interest be covered.
374-18 (c) Insurance obtained under this section must comply with
374-19 Sections 342.407 and 342.408.
374-20 (d) The lender may add the amount advanced by the lender for
374-21 insurance coverage obtained under this section to the unpaid
374-22 balance of the loan contract and may charge interest on that amount
374-23 from the time it is added to the unpaid balance until it is paid.
374-24 The rate of additional interest may not exceed the rate that the
374-25 loan contract would produce over its full term if each scheduled
374-26 payment were paid on the due date.
375-1 Sec. 342.407. REQUIREMENTS FOR INCLUDING INSURANCE CHARGE IN
375-2 CONTRACT. Insurance for which a charge is included in a loan
375-3 contract must be written:
375-4 (1) at lawful rates;
375-5 (2) in accordance with the Insurance Code; and
375-6 (3) by a company authorized to do business in this
375-7 state.
375-8 Sec. 342.408. FURNISHING OF INSURANCE DOCUMENT TO BORROWER.
375-9 If a lender obtains insurance for which a charge is included in the
375-10 loan contract, the lender, not later than the 30th day after the
375-11 date on which the loan contract is executed, shall deliver, mail,
375-12 or cause to be mailed to the borrower at the borrower's address
375-13 specified in the contract one or more policies or certificates of
375-14 insurance that clearly set forth:
375-15 (1) the amount of the premium;
375-16 (2) the kind of insurance provided;
375-17 (3) the coverage of the insurance; and
375-18 (4) all terms, including options, limitations,
375-19 restrictions, and conditions, of each insurance policy.
375-20 Sec. 342.409. LENDER'S DUTY IF INSURANCE IS ADJUSTED OR
375-21 TERMINATED. (a) If insurance for which a charge is included in or
375-22 added to the loan contract is canceled, adjusted, or terminated,
375-23 the lender shall:
375-24 (1) credit to the amount unpaid on the loan the amount
375-25 of the refund received by the lender for unearned insurance
375-26 premiums, less the amount of the refund that is applied to the
376-1 purchase by the lender of similar insurance; and
376-2 (2) if the amount to be credited under Subdivision (1)
376-3 is more than the unpaid balance, refund promptly to the borrower
376-4 the difference between those amounts.
376-5 (b) A cash refund is not required under this section if the
376-6 amount of the refund is less than $1.
376-7 Sec. 342.410. PAYMENT FOR INSURANCE FROM LOAN PROCEEDS. A
376-8 lender, including an officer, agent, or employee of the lender, who
376-9 accepts insurance under this subchapter as protection for a loan:
376-10 (1) may deduct the premium or identifiable charge for
376-11 the insurance from the proceeds of the loan; and
376-12 (2) shall pay the deducted amounts to the insurance
376-13 company writing the insurance.
376-14 Sec. 342.411. INSURANCE GAIN NOT INTEREST. Any gain or
376-15 advantage to the lender or the lender's employee, officer,
376-16 director, agent, general agent, affiliate, or associate from
376-17 insurance under this subchapter or the provision or sale of
376-18 insurance under this subchapter is not additional interest or an
376-19 additional charge in connection with a loan made under this chapter
376-20 except as specifically provided by this chapter.
376-21 Sec. 342.412. ACTION UNDER SUBCHAPTER NOT SALE OF INSURANCE.
376-22 Arranging for insurance or collecting an identifiable charge as
376-23 authorized by this subchapter is not a sale of insurance.
376-24 Sec. 342.413. REQUIRED AGENT OR BROKER PROHIBITED. A lender
376-25 may not by any direct or indirect method require the purchase of
376-26 insurance from an agent or broker designated by the lender.
377-1 Sec. 342.414. DECLINATION OF EQUAL INSURANCE COVERAGE
377-2 PROHIBITED. A lender may not decline at any time existing
377-3 insurance coverage providing substantially equal benefits that
377-4 comply with this subchapter.
377-5 Sec. 342.415. EFFECT OF UNAUTHORIZED INSURANCE CHARGE.
377-6 (a) If a lender charges for insurance an amount that is not
377-7 authorized under this subchapter, the lender:
377-8 (1) is not entitled to collect an amount for insurance
377-9 or interest on an amount for insurance; and
377-10 (2) shall refund to the borrower or credit to the
377-11 borrower's account all amounts collected for insurance and interest
377-12 collected on those amounts.
377-13 (b) An overcharge that results from an accidental or bona
377-14 fide error may be corrected as provided by Subchapter C, Chapter
377-15 349.
377-16 (c) The remedy provided by this section is not exclusive of
377-17 any other remedy or penalty provided by this subtitle.
377-18 Sec. 342.416. NONFILING INSURANCE. (a) Instead of charging
377-19 fees for the filing, recording, and releasing of a document
377-20 securing a loan to which Subchapter E applies, an authorized lender
377-21 may include in the loan contract a charge for a nonfiling insurance
377-22 premium.
377-23 (b) The amount of a charge under Subsection (a) may not
377-24 exceed the amount of fees authorized for filing and recording an
377-25 original financing statement in the standard form prescribed by the
377-26 secretary of state.
378-1 (c) A lender may receive an amount authorized under this
378-2 section only if the lender purchases nonfiling insurance in
378-3 connection with the loan contract.
378-4 (d) A lender is not required to furnish to a borrower a
378-5 policy or certificate of insurance evidencing nonfiling insurance.
378-6 SUBCHAPTER J. AUTHORIZED LENDER'S DUTIES AND AUTHORITY
378-7 Sec. 342.451. DELIVERY OF INFORMATION TO BORROWER.
378-8 (a) When a loan is made under this chapter, the lender shall
378-9 deliver to the borrower, or to one borrower if there is more than
378-10 one, a copy of each document signed by the borrower, including the
378-11 note or loan contract, and a written statement in English that
378-12 contains:
378-13 (1) the names and addresses of the borrower and the
378-14 lender; and
378-15 (2) any type of insurance for which a charge is
378-16 included in the loan contract and the charge to the borrower for
378-17 the insurance.
378-18 (b) If the note or loan contract shows the information
378-19 required by Subsection (a), the written statement is not required.
378-20 Sec. 342.452. RECEIPT FOR CASH PAYMENT. A lender shall give
378-21 a receipt to a person making a cash payment on a loan.
378-22 Sec. 342.453. ACCEPTANCE OF PREPAYMENT. At any time during
378-23 regular business hours, the lender shall accept prepayment of a
378-24 loan in full or, if the amount tendered is less than the amount
378-25 required to prepay the loan in full, prepayment of an amount equal
378-26 to one or more full installments.
379-1 Sec. 342.454. RETURN OF INSTRUMENTS TO BORROWER ON
379-2 REPAYMENT. Within a reasonable time after a loan is repaid in full
379-3 or an open-end account is terminated according to the terms of the
379-4 contract, a lender shall cancel and return to a borrower any
379-5 instrument, including a note, assignment, security agreement, or
379-6 mortgage, or pledged property that:
379-7 (1) secured the loan; and
379-8 (2) does not secure another indebtedness of the
379-9 borrower to the lender.
379-10 Sec. 342.455. AGREEMENT FOR MORE THAN ONE LOAN OR CASH
379-11 ADVANCE. (a) A lender and a borrower may enter an agreement under
379-12 which one or more loans or cash advances are from time to time made
379-13 to or for the account of the borrower.
379-14 (b) An agreement under this section may provide for a
379-15 maximum loan charge on the unpaid principal amounts from time to
379-16 time outstanding at a rate that does not exceed the rate that
379-17 produces the maximum interest charge computed under Section 342.201
379-18 for an equivalent loan amount.
379-19 (c) An agreement under this section must be written and
379-20 signed by the lender and borrower.
379-21 (d) An agreement under this section must contain:
379-22 (1) the date of the agreement;
379-23 (2) the name and address of each borrower; and
379-24 (3) the name and address of the lender.
379-25 (e) If a charge for insurance coverage is to be included in
379-26 a loan contract, an agreement under this section must clearly set
380-1 forth a simple statement of the amount of the charge or the method
380-2 by which the charge is to be computed.
380-3 (f) The lender shall deliver a copy of an agreement under
380-4 this section to the borrower.
380-5 (g) The commissioner may prescribe monthly rates of charge
380-6 that produce the maximum interest charge computed under Section
380-7 342.201 for use under Subsection (b).
380-8 Sec. 342.456. AGREEMENT TO MODIFY TERM OF SECONDARY MORTGAGE
380-9 LOAN CONTRACT. (a) A lender and a borrower may enter into an
380-10 agreement under which a term of a secondary mortgage loan contract
380-11 is amended, restated, or rescheduled.
380-12 (b) An agreement under this section must be written and
380-13 signed by the lender and borrower.
380-14 (c) An agreement under this section must contain:
380-15 (1) the date of the agreement;
380-16 (2) the name and address of the lender; and
380-17 (3) the name and address of each borrower.
380-18 (d) The lender shall deliver a copy of an agreement under
380-19 this section to the borrower.
380-20 SUBCHAPTER K. LIMITATIONS ON AUTHORIZED LENDER
380-21 Sec. 342.501. OBLIGATION UNDER MORE THAN ONE CONTRACT.
380-22 (a) An authorized lender may not induce or permit a person or a
380-23 husband and wife to be directly or indirectly obligated under more
380-24 than one loan contract at any time for the purpose or with the
380-25 effect of obtaining an amount of interest greater than the amount
380-26 of interest otherwise authorized under this chapter for a loan of
381-1 that aggregate amount with a maximum interest charge computed under
381-2 Section 342.201(a), Section 342.252, or both of those sections.
381-3 (b) Subsection (a) does not prohibit the purchase of a bona
381-4 fide retail installment contract or revolving charge agreement of a
381-5 borrower for the purchase of goods or services.
381-6 (c) A lender who purchases all or substantially all of the
381-7 loan contracts of another authorized lender and who at the time of
381-8 purchase has a loan contract with a borrower whose loan contract is
381-9 purchased may collect principal and authorized charges according to
381-10 the terms of each loan contract.
381-11 Sec. 342.502. AMOUNT AUTHORIZED. (a) A lender may not
381-12 directly or indirectly charge, contract for, or receive an amount
381-13 that is not authorized under this chapter in connection with a loan
381-14 to which this chapter applies, including any fee, compensation,
381-15 bonus, commission, brokerage, discount, expense, and any other
381-16 charge of any nature, whether or not listed by this subsection.
381-17 (b) On a loan subject to Subchapter E or a secondary
381-18 mortgage loan subject to Subchapter G a lender may assess and
381-19 collect from the borrower:
381-20 (1) an amount incurred by the lender for:
381-21 (A) court costs;
381-22 (B) attorney's fees assessed by a court;
381-23 (C) a fee authorized by law for filing,
381-24 recording, or releasing in a public office a security for a loan;
381-25 (D) a reasonable amount spent for repossessing,
381-26 storing, preparing for sale, or selling any security;
382-1 (E) a fee for recording a lien on or
382-2 transferring a certificate of title to a motor vehicle offered as
382-3 security for a loan made under this chapter; or
382-4 (F) a premium or an identifiable charge received
382-5 in connection with the sale of insurance authorized under this
382-6 chapter; and
382-7 (2) an administrative fee, subject to Subsection (c),
382-8 in an amount not to exceed:
382-9 (A) $25 for a loan of more than $1,000; or
382-10 (B) $10 for a loan of $1,000 or less.
382-11 (c) An administrative fee under Subsection (b)(2) is
382-12 considered earned when the loan is made or refinanced and is not
382-13 subject to refund. A lender refinancing the loan may not contract
382-14 for or receive an administrative fee for the loan more than once in
382-15 a 180-day period. Fifty cents of each administrative fee shall be
382-16 deposited with the comptroller for use in carrying out the finance
382-17 commission's responsibilities under Section 11.305.
382-18 Sec. 342.503. SECURITY FOR LOAN. (a) A lender may not take
382-19 as security for a loan made under this chapter an assignment of
382-20 wages.
382-21 (b) A lender may not take as security for a loan made under
382-22 Subchapter E or F a lien on real property other than a lien created
382-23 by law on the recording of an abstract of judgment.
382-24 (c) A lender may take as security for a loan made under
382-25 Subchapter E or F an assignment of:
382-26 (1) a warrant drawn against a state fund; or
383-1 (2) a claim against a state fund or a state agency.
383-2 Sec. 342.504. CONFESSION OF JUDGMENT; POWER OF ATTORNEY. A
383-3 lender may not take a confession of judgment or a power of attorney
383-4 authorizing the lender or a third person to confess judgment or to
383-5 appear for a borrower in a judicial proceeding.
383-6 Sec. 342.505. DISCLOSURE OF AMOUNT FINANCED AND SCHEDULE OF
383-7 PAYMENTS. A lender may not take a promise to pay or loan
383-8 obligation that does not disclose the amount financed and the
383-9 schedule of payments, except for an open-end account.
383-10 Sec. 342.506. INSTRUMENT WITH BLANK PROHIBITED. A lender
383-11 may not take an instrument in which a blank is left to be filled in
383-12 after the loan is made.
383-13 Sec. 342.507. WAIVER OF BORROWER'S RIGHT PROHIBITED. A
383-14 lender may not take an instrument in which a borrower waives any
383-15 right accruing to the borrower under this chapter.
383-16 Sec. 342.508. MAXIMUM LOAN TERM. A lender may not enter a
383-17 loan contract under Section 342.201(a) under which the borrower
383-18 agrees to make a scheduled payment of principal more than:
383-19 (1) 37 calendar months after the date on which the
383-20 contract is made, if the contract is for a cash advance of $1,500
383-21 or less;
383-22 (2) 49 calendar months after the date on which the
383-23 contract is made, if the contract is for a cash advance of more
383-24 than $1,500 but not more than $3,000; or
383-25 (3) 60 months after the date on which the contract is
383-26 made, if the contract is for a cash advance of more than $3,000.
384-1 SUBCHAPTER L. ADMINISTRATION OF CHAPTER
384-2 Sec. 342.551. ADOPTION OF RULES. (a) The Finance
384-3 Commission of Texas may adopt rules to enforce this chapter.
384-4 (b) The commissioner shall recommend proposed rules to the
384-5 Finance Commission of Texas.
384-6 (c) A rule shall be entered in a permanent book. The book
384-7 is a public record and shall be kept in the office of the
384-8 commissioner.
384-9 Sec. 342.552. EXAMINATION OF LENDERS; ACCESS TO RECORDS.
384-10 (a) The commissioner or the commissioner's representative shall,
384-11 at the times the commissioner considers necessary:
384-12 (1) examine each place of business of each authorized
384-13 lender; and
384-14 (2) investigate the lender's transactions, including
384-15 loans, and records, including books, accounts, papers, and
384-16 correspondence, to the extent the transactions and records pertain
384-17 to the business regulated under this chapter.
384-18 (b) The lender shall:
384-19 (1) give the commissioner or the commissioner's
384-20 representative free access to the lender's office, place of
384-21 business, files, safes, and vaults; and
384-22 (2) allow the commissioner or the commissioner's
384-23 authorized representative to make a copy of an item that may be
384-24 investigated under Subsection (a)(2).
384-25 (c) During an examination the commissioner or the
384-26 commissioner's representative may administer oaths and examine any
385-1 person under oath on any subject pertinent to a matter that the
385-2 commissioner is authorized or required to consider, investigate, or
385-3 secure information about under this chapter.
385-4 (d) Information obtained under this section is confidential.
385-5 (e) A lender's violation of Subsection (b) is a ground for
385-6 the suspension or revocation of the lender's license.
385-7 Sec. 342.553. GENERAL INVESTIGATION. (a) To discover a
385-8 violation of this chapter or to obtain information required under
385-9 this chapter, the commissioner or the commissioner's representative
385-10 may investigate the records, including books, accounts, papers, and
385-11 correspondence, of a person, including an authorized lender, who
385-12 the commissioner has reasonable cause to believe is violating this
385-13 chapter regardless of whether the person claims to not be subject
385-14 to this chapter.
385-15 (b) For the purposes of this section, a person who
385-16 advertises, solicits, or otherwise represents that the person is
385-17 willing to make a loan with a cash advance less than or equal to
385-18 the amount computed under Subchapter C, Chapter 341, using the
385-19 reference base amount of $2,500 is presumed to be engaged in the
385-20 business described by Section 342.051.
385-21 Sec. 342.554. CERTIFICATE; CERTIFIED DOCUMENT. On
385-22 application by any person and on payment of any associated cost,
385-23 the commissioner shall furnish under the commissioner's seal and
385-24 signed by the commissioner or an assistant of the commissioner:
385-25 (1) a certificate of good standing; or
385-26 (2) a certified copy of a license, rule, or order.
386-1 Sec. 342.555. TRANSCRIPT OF HEARING: PUBLIC. The
386-2 transcript of a hearing held by the commissioner under this chapter
386-3 is a public record.
386-4 Sec. 342.556. APPOINTMENT OF AGENT. (a) An authorized
386-5 lender shall maintain on file with the commissioner a written
386-6 appointment of a resident of this state as the lender's agent for
386-7 service of all judicial or other process or legal notice, unless
386-8 the lender has appointed an agent under another statute of this
386-9 state.
386-10 (b) If an authorized lender does not comply with this
386-11 section, service of all judicial or other process or legal notice
386-12 may be made on the commissioner.
386-13 Sec. 342.557. PAYMENT OF EXAMINATION COSTS AND
386-14 ADMINISTRATION EXPENSES. An authorized lender shall pay to the
386-15 commissioner an amount assessed by the commissioner to cover the
386-16 direct and indirect cost of an examination of the lender under
386-17 Section 342.552 and a proportionate share of general administrative
386-18 expense.
386-19 Sec. 342.558. AUTHORIZED LENDER'S RECORDS. (a) An
386-20 authorized lender shall maintain a record of each loan made under
386-21 this chapter as is necessary to enable the commissioner to
386-22 determine whether the lender is complying with this chapter.
386-23 (b) An authorized lender shall keep the record, make it
386-24 available in this state, or, if the lender makes, transacts, or
386-25 negotiates loans principally by mail, keep the record or make it
386-26 available at the lender's principal place of business, until the
387-1 later of:
387-2 (1) the fourth anniversary of the date of the loan; or
387-3 (2) the second anniversary of the date on which the
387-4 final entry is made in the record.
387-5 (c) A record described by Subsection (a) must be prepared in
387-6 accordance with accepted accounting practices.
387-7 (d) The commissioner shall accept a lender's system of
387-8 records if the system discloses the information reasonably required
387-9 under Subsection (a).
387-10 (e) An authorized lender shall keep each obligation signed
387-11 by a borrower at an office in this state designated by the lender
387-12 unless the obligation is transferred under an agreement that gives
387-13 the commissioner access to the obligation.
387-14 Sec. 342.559. ANNUAL REPORT. (a) Each year, not later than
387-15 May 1 or a later date set by the commissioner, an authorized lender
387-16 shall file with the commissioner a report that contains relevant
387-17 information required by the commissioner concerning the lender's
387-18 business and operations during the preceding calendar year for each
387-19 office of the lender in this state where business is conducted
387-20 under this chapter.
387-21 (b) A report under this section must be:
387-22 (1) under oath; and
387-23 (2) in the form prescribed by the commissioner.
387-24 (c) A report under this section is confidential.
387-25 (d) Annually the commissioner shall prepare and publish a
387-26 consolidated analysis and recapitulation of reports filed under
388-1 this section.
388-2 Sec. 342.560. CONDUCTING ASSOCIATED BUSINESS. An authorized
388-3 lender may conduct business under this chapter in an office, office
388-4 suite, room, or place of business in which any other business is
388-5 conducted or in combination with any other business unless the
388-6 commissioner:
388-7 (1) finds after a hearing that the lender's conducting
388-8 of the other business in that office, office suite, room, or place
388-9 of business has concealed an evasion of this chapter; and
388-10 (2) orders the lender in writing to desist from that
388-11 conduct in that office, office suite, room, or place of business.
388-12 [CHAPTER 342. CERTAIN CASH ADVANCE LOANS]
388-13 [SUBCHAPTER A. DESCRIPTION OF AND REQUIREMENTS FOR
388-14 AUTHORIZED ACTIVITIES]
388-15 [Sec. 342.001. AUTHORIZED ACTIVITIES; CEILING AMOUNT.
388-16 (a) Only an authorized lender may:]
388-17 [(1) engage in the business of making, transacting, or
388-18 negotiating loans with cash advances less than or equal to the
388-19 amount computed under Subchapter C, Chapter 341, using the
388-20 reference amount of $2,500; and]
388-21 [(2) contract for, charge, or receive, directly or
388-22 indirectly, in connection with a loan described by Subdivision (1),
388-23 charges, including interest, compensation, consideration, or other
388-24 expenses, authorized under this chapter that in the aggregate
388-25 exceed the charges authorized under other law.]
388-26 [(b) A person may not use any device, subterfuge, or
389-1 pretense to evade the application of this section.]
389-2 [Sec. 342.002. ISSUANCE OF MORE THAN ONE LICENSE FOR A
389-3 PERSON. (a) The commissioner may issue more than one license to a
389-4 person on compliance with this chapter for each license.]
389-5 [(b) A person who is required to hold a license must hold a
389-6 separate license for each office at which operations requiring a
389-7 license are conducted.]
389-8 [(c) A license is not required under this chapter for a
389-9 place of business devoted to accounting or other recordkeeping and
389-10 at which loans are not made under this chapter.]
389-11 [Sec. 342.003. AREA OF BUSINESS; LOANS BY MAIL. This
389-12 chapter does not:]
389-13 [(1) limit the loans of an authorized lender to
389-14 residents of the community in which the office for which the
389-15 license or other authority is granted is located; or]
389-16 [(2) prohibit an authorized lender from making loans
389-17 by mail.]
389-18 [SUBCHAPTER B. APPLICATION FOR AND ISSUANCE OF LICENSE]
389-19 [Sec. 342.101. APPLICATION REQUIREMENTS. (a) The
389-20 application for a license under this chapter must:]
389-21 [(1) be under oath;]
389-22 [(2) give the approximate location from which business
389-23 is to be conducted;]
389-24 [(3) identify the business's principal parties in
389-25 interest; and]
389-26 [(4) contain other relevant information that the
390-1 commissioner requires for the findings required under Section
390-2 342.104.]
390-3 [(b) On the filing of one or more license applications, the
390-4 applicant shall pay to the consumer credit commissioner an
390-5 investigation fee of $200.]
390-6 [(c) On the filing of each license application, the
390-7 applicant shall pay to the commissioner for the license's year of
390-8 issuance a license fee of:]
390-9 [(1) $100 if the license is granted not later than
390-10 June 30; or]
390-11 [(2) $50 if the license is granted after June 30.]
390-12 [Sec. 342.102. BOND. (a) If the commissioner requires, an
390-13 applicant for a license under this chapter shall file with the
390-14 application a bond that is:]
390-15 [(1) in an amount not to exceed the total of:]
390-16 [(A) $5,000 for the first license; and]
390-17 [(B) $1,000 for each additional license;]
390-18 [(2) satisfactory to the commissioner; and]
390-19 [(3) issued by a surety company qualified to do
390-20 business as surety in this state.]
390-21 [(b) The bond must be in favor of this state for the use of
390-22 this state and the use of a person who has a cause of action under
390-23 this chapter against the license holder.]
390-24 [(c) The bond must be conditioned on:]
390-25 [(1) the license holder's faithful performance under
390-26 this chapter and rules adopted under this chapter; and]
391-1 [(2) the payment of all amounts that become due to the
391-2 state or another person under this chapter during the calendar year
391-3 for which the bond is given.]
391-4 [(d) The aggregate liability of a surety to all persons
391-5 damaged by the license holder's violation of this chapter may not
391-6 exceed the amount of the bond.]
391-7 [Sec. 342.103. INVESTIGATION OF APPLICATION. On the filing
391-8 of an application and, if required, a bond and on payment of the
391-9 required fees, the commissioner shall conduct an investigation to
391-10 determine whether to issue the license.]
391-11 [Sec. 342.104. APPROVAL OR DENIAL OF APPLICATION. (a) The
391-12 commissioner shall approve the application and issue to the
391-13 applicant a license to make loans under this chapter if the
391-14 commissioner finds that:]
391-15 [(1) the financial responsibility, experience,
391-16 character, and general fitness of the applicant are sufficient to:]
391-17 [(A) command the confidence of the public; and]
391-18 [(B) warrant the belief that the business will
391-19 be operated lawfully and fairly, within the purposes of this
391-20 chapter; and]
391-21 [(2) the applicant has net assets of at least $25,000
391-22 available for the operation of the business.]
391-23 [(b) If the commissioner does not so find, the commissioner
391-24 shall notify the applicant.]
391-25 [(c) If an applicant requests a hearing on the application
391-26 not later than the 30th day after the date of notification under
392-1 Subsection (b), the applicant is entitled to a hearing within 60
392-2 days after the date of the request.]
392-3 [(d) Unless the applicant and the commissioner agree in
392-4 writing to a later date, the commissioner shall approve or deny the
392-5 application within 60 days after the later of the date on which:]
392-6 [(1) the application is filed and the required fees
392-7 are paid; or]
392-8 [(2) a hearing on the application is completed.]
392-9 [Sec. 342.105. DISPOSITION OF FEES ON DENIAL OF APPLICATION.
392-10 If the commissioner denies the application, the commissioner shall
392-11 retain the investigation fee and shall return to the applicant the
392-12 license fee submitted with the application.]
392-13 [SUBCHAPTER C. LICENSE]
392-14 [Sec. 342.151. NAME AND PLACE ON LICENSE. (a) A license
392-15 must state:]
392-16 [(1) the name of the license holder; and]
392-17 [(2) the address of the office from which the business
392-18 is to be conducted.]
392-19 [(b) A license holder may not conduct business under a name
392-20 or at a place of business in this state other than the name or
392-21 office stated on the license.]
392-22 [Sec. 342.152. LICENSE DISPLAY. A license holder shall
392-23 display a license at the place of business provided on the license.]
392-24 [Sec. 342.153. MINIMUM ASSETS FOR LICENSE. (a) Except as
392-25 provided by Subsection (b) or (c), a license holder shall maintain
392-26 for each office for which a license is held net assets of at least
393-1 $25,000 that are used or readily available for use in conducting
393-2 the business of that office.]
393-3 [(b) A license holder who held a license under the Texas
393-4 Regulatory Loan Act and was issued a license to make loans under
393-5 this chapter as provided by Section 4, Chapter 274, Acts of the
393-6 60th Legislature, Regular Session, 1967, shall maintain for the
393-7 office for which that license is held net assets of at least
393-8 $15,000 that are used or readily available for use in conducting
393-9 the business of that office.]
393-10 [(c) A license holder who paid the pawnbroker's occupational
393-11 tax for 1967 and was issued a license to make loans under this
393-12 chapter as provided by Section 4, Chapter 274, Acts of the 60th
393-13 Legislature, Regular Session, 1967, is exempt from the minimum
393-14 assets requirement of Subsection (a) for the office for which that
393-15 license is held.]
393-16 [(d) If a license holder to which Subsection (b) or (c)
393-17 applies transfers the license, the person to whom the license is
393-18 transferred is subject to the minimum net assets requirement of
393-19 Subsection (a).]
393-20 [Sec. 342.154. ANNUAL LICENSE FEE. (a) Not later than
393-21 December 1, a license holder shall pay to the commissioner for each
393-22 license held an annual fee for the year beginning the next January
393-23 1.]
393-24 [(b) The annual fee for a license under this chapter is $200
393-25 except that if, on September 30 preceding the date on which the
393-26 annual fee is due, the gross unpaid balance of loans regulated
394-1 under this chapter in the office for which the license is issued is
394-2 $100,000 or less, the annual fee is $100.]
394-3 [Sec. 342.155. EXPIRATION OF LICENSE ON FAILURE TO PAY
394-4 ANNUAL FEE. If the annual fee for a license is not paid before the
394-5 16th day after the date on which written notice of delinquency of
394-6 payment has been given to the license holder by the commissioner,
394-7 the license expires on the later of:]
394-8 [(1) that day; or]
394-9 [(2) December 31 of the last year for which an annual
394-10 fee was paid.]
394-11 [Sec. 342.156. LICENSE FORFEITURE. (a) A license holder
394-12 who violates this chapter is subject to forfeiture of the holder's
394-13 license and, if the license holder is a corporation, forfeiture of
394-14 its charter.]
394-15 [(b) When the attorney general is notified of a violation of
394-16 this chapter, the attorney general shall file suit in a district
394-17 court in Travis County for forfeiture of the license holder's
394-18 license and, if the license holder is a corporation, for forfeiture
394-19 of the license holder's charter.]
394-20 [Sec. 342.157. LICENSE SUSPENSION OR REVOCATION. After
394-21 notice and a hearing the commissioner may suspend or revoke a
394-22 license if the commissioner finds that:]
394-23 [(1) the license holder failed to pay the annual
394-24 license fee or an examination fee, investigation fee, or other
394-25 charge imposed by the commissioner under this chapter;]
394-26 [(2) the license holder, knowingly or without the
395-1 exercise of due care, violated this chapter or a rule adopted or
395-2 order issued under this chapter; or]
395-3 [(3) a fact or condition exists that, if it had
395-4 existed or had been known to exist at the time of the original
395-5 application for the license, clearly would have justified the
395-6 commissioner's denial of the application.]
395-7 [Sec. 342.158. LICENSE SUSPENSION OR REVOCATION FILED WITH
395-8 PUBLIC RECORDS. The decision of the commissioner on the suspension
395-9 or revocation of a license and the evidence considered by the
395-10 commissioner in making the decision shall be filed with the public
395-11 records of the commissioner.]
395-12 [Sec. 342.159. REINSTATEMENT OF SUSPENDED LICENSE; ISSUANCE
395-13 OF NEW LICENSE AFTER REVOCATION. The commissioner may reinstate a
395-14 suspended license or issue a new license to a person whose license
395-15 has been revoked if at the time of the reinstatement or issuance no
395-16 fact or condition exists that clearly would have justified the
395-17 commissioner's denial of an original application for the license.]
395-18 [Sec. 342.160. SURRENDER OF LICENSE. A license holder may
395-19 surrender a license issued under this chapter by delivering to the
395-20 commissioner:]
395-21 [(1) the license; and]
395-22 [(2) a written notice of the license's surrender.]
395-23 [Sec. 342.161. EFFECT OF LICENSE SUSPENSION, REVOCATION, OR
395-24 SURRENDER. (a) The suspension, revocation, or surrender of a
395-25 license issued under this chapter does not affect the obligation of
395-26 a contract between the license holder and a debtor entered into
396-1 before the revocation, suspension, or surrender.]
396-2 [(b) Surrender of a license does not affect the license
396-3 holder's civil or criminal liability for an act committed before
396-4 surrender.]
396-5 [Sec. 342.162. MOVING AN OFFICE. (a) A license holder
396-6 shall give written notice to the commissioner before the 30th day
396-7 preceding the date the license holder moves an office from the
396-8 location provided on the license.]
396-9 [(b) The commissioner shall amend a holder's license
396-10 accordingly.]
396-11 [Sec. 342.163. TRANSFER OR ASSIGNMENT OF LICENSE. A license
396-12 may be transferred or assigned only with the approval of the
396-13 commissioner.]
396-14 [SUBCHAPTER D. INTEREST CHARGES]
396-15 [Sec. 342.201. MAXIMUM INTEREST CHARGE. (a) A loan
396-16 contract under this chapter that is payable in consecutive monthly
396-17 installments, substantially equal in amount, may provide for an
396-18 interest charge that does not exceed an add-on charge, computed for
396-19 the full term of the contract as follows:]
396-20 [(1) $18 per $100 per year on the part of the cash
396-21 advance that is less than or equal to the amount computed under
396-22 Subchapter C, Chapter 341, using the reference amount of $300; and]
396-23 [(2) $8 per $100 per year on the part of the cash
396-24 advance that is more than the amount computed for Subdivision (1)
396-25 but less than or equal to an amount computed under Subchapter C,
396-26 Chapter 341, using the reference amount of $2,500.]
397-1 [(b) For the purpose of Subsection (a):]
397-2 [(1) when the loan is made, an interest charge may be
397-3 computed for the full term of the loan contract;]
397-4 [(2) a part of a month that is longer than 15 days may
397-5 be considered a full month; and]
397-6 [(3) if a loan contract provides for precomputed
397-7 interest, the amount of the loan is the total of:]
397-8 [(A) the cash advance; and]
397-9 [(B) the amount of precomputed interest.]
397-10 [(c) A loan contract under this chapter that is payable
397-11 other than in substantially equal consecutive monthly installments
397-12 may provide for an interest charge, using any method or formula,
397-13 that does not exceed the amount that, having due regard for the
397-14 schedule of installment payments, would produce the same effective
397-15 return under Subsection (a) if the loan were payable in
397-16 substantially equal successive monthly installments beginning one
397-17 month from the date of the contract.]
397-18 [Sec. 342.202. ADDITIONAL INTEREST FOR DEFAULT: CONTRACT
397-19 WITH EQUAL MONTHLY INSTALLMENTS. (a) A loan contract that
397-20 includes precomputed interest and that is payable in substantially
397-21 equal successive monthly installments may provide for additional
397-22 interest for default if any part of an installment remains unpaid
397-23 after the 10th day after the date on which the installment is due,
397-24 including Sundays and holidays. The additional interest may not
397-25 exceed five cents for each $1 of a scheduled installment.]
397-26 [(b) Interest under Subsection (a) may not be collected more
398-1 than once on the same installment.]
398-2 [Sec. 342.203. ADDITIONAL INTEREST FOR INSTALLMENT
398-3 DEFERMENT: CONTRACT WITH EQUAL MONTHLY INSTALLMENTS. (a) On a
398-4 loan contract that includes precomputed interest and is payable in
398-5 substantially equal successive monthly installments, an authorized
398-6 lender may charge additional interest for the deferment of an
398-7 installment if:]
398-8 [(1) the entire amount of the installment is unpaid;]
398-9 [(2) no interest for default has been collected on the
398-10 installment; and]
398-11 [(3) payment of the installment is deferred for one or
398-12 more full months and the maturity of the contract is extended for a
398-13 corresponding period.]
398-14 [(b) The interest for deferment under Subsection (a) may not
398-15 exceed the amount computed by:]
398-16 [(1) taking the difference between the refund that
398-17 would be required for prepayment in full on the date of deferment
398-18 and the refund that would be required for prepayment in full one
398-19 month before the date of deferment; and]
398-20 [(2) multiplying the results under Subdivision (1) by
398-21 the number of months in the deferment period.]
398-22 [(c) The amount of interest applicable to each deferred
398-23 balance or installment period occurring after a deferment period
398-24 remains the amount applicable to that balance or period under the
398-25 original loan contract.]
398-26 [(d) If a loan is prepaid in full during the deferment
399-1 period, the borrower shall receive, in addition to the refund
399-2 required under Subchapter E, a pro rata refund of that part of the
399-3 interest for deferment applicable to the number of full months
399-4 remaining in the deferment period on the payment date.]
399-5 [(e) For the purposes of this section, a deferment period is
399-6 the period during which a payment is not required or made because
399-7 of the deferment and begins on the day after the due date of the
399-8 scheduled installment that precedes the first installment being
399-9 deferred.]
399-10 [Sec. 342.204. COLLECTION OF DEFAULT OR DEFERMENT INTEREST.
399-11 Interest for default under Section 342.202 or for installment
399-12 deferment under Section 342.203 may be collected when it accrues or
399-13 at any time after it accrues.]
399-14 [Sec. 342.205. ADDITIONAL INTEREST FOR CONTRACT WITHOUT
399-15 EQUAL MONTHLY INSTALLMENTS. A loan contract that includes
399-16 precomputed interest and that is not payable in substantially equal
399-17 successive monthly installments may provide for additional interest
399-18 for default for the period from the maturity date of an installment
399-19 until the date the installment is paid. The rate of the additional
399-20 interest may not exceed the highest lawful contract rate.]
399-21 [Sec. 342.206. ADDITIONAL INTEREST FOR CONTRACT WITHOUT
399-22 PRECOMPUTED INTEREST. On a loan contract that does not contain
399-23 precomputed interest, interest may accrue on the principal balance
399-24 and amounts added to principal after the date of the loan contract,
399-25 from time to time unpaid, at the rate provided for by the contract,
399-26 until the date of payment in full or demand for payment in full.]
400-1 [SUBCHAPTER E. REFUND OF PRECOMPUTED INTEREST]
400-2 [Sec. 342.251. REFUND OF PRECOMPUTED INTEREST ON CONTRACT
400-3 WITH EQUAL MONTHLY INSTALLMENTS. (a) This section applies to a
400-4 loan contract that includes precomputed interest and that is
400-5 payable in substantially equal successive monthly installments
400-6 beginning within one month and 15 days after the date of the
400-7 contract.]
400-8 [(b) If the contract is prepaid in full, including payment
400-9 in cash or by a new loan or renewal of the loan, or if the lender
400-10 demands payment in full of the unpaid balance, after the first
400-11 installment due date but before the final installment due date, the
400-12 lender shall refund or credit to the borrower the amount computed
400-13 by:]
400-14 [(1) dividing the total amount of the periodic
400-15 balances scheduled to follow the installment date after the date of
400-16 the prepayment or demand, as appropriate, by the total amount of
400-17 all the periodic balances under the schedule of payments set out in
400-18 the loan contract; and]
400-19 [(2) multiplying the total interest contracted for
400-20 under Section 342.201 by the result under Subdivision (1).]
400-21 [(c) If the prepayment in full or demand for payment in full
400-22 occurs before the first installment due date, the lender shall:]
400-23 [(1) retain an amount computed by:]
400-24 [(A) dividing 30 into the amount that could be
400-25 retained if the first installment period were one month and the
400-26 loan were prepaid in full on the date the first installment is due;
401-1 and]
401-2 [(B) multiplying the result under Paragraph (A)
401-3 by the number of days in the period beginning on the date the loan
401-4 was made and ending on the date of the prepayment or demand; and]
401-5 [(2) refund or credit to the borrower the amount
401-6 computed by subtracting the amount retained under Subdivision (1)
401-7 from the interest contracted for under Section 342.201.]
401-8 [Sec. 342.252. REFUND OF PRECOMPUTED INTEREST ON CONTRACT
401-9 WITHOUT EQUAL MONTHLY INSTALLMENTS. (a) This section applies to a
401-10 loan contract that includes precomputed interest and to which
401-11 Section 342.251 does not apply.]
401-12 [(b) If the contract is prepaid in full, including payment
401-13 in cash or by a new loan or renewal of the loan, or if the lender
401-14 demands payment in full of the unpaid balance before final maturity
401-15 of the contract, the lender may retain as interest for the period
401-16 beginning on the date of the loan and ending on the date of the
401-17 prepayment or demand, as applicable, an amount that does not exceed
401-18 the amount computed using the simple annual interest rate described
401-19 by Subsection (f).]
401-20 [(c) If prepayment in full or demand for payment in full
401-21 occurs during an installment period, the lender may retain, in
401-22 addition to interest that accrued during any elapsed installment
401-23 periods, an amount computed by:]
401-24 [(1) multiplying the simple annual interest rate
401-25 described by Subsection (f) by the unpaid principal balance of the
401-26 loan determined according to the schedule of payments to be
402-1 outstanding on the preceding installment due date;]
402-2 [(2) dividing 365 into the product under Subdivision
402-3 (1); and]
402-4 [(3) multiplying the number of days in the period
402-5 beginning on the day after the installment due date and ending on
402-6 the date of the prepayment or demand, as appropriate, by the result
402-7 obtained under Subdivision (2).]
402-8 [(d) The lender may also retain interest on any additions to
402-9 principal or other permissible charges, added to the loan after the
402-10 date of the loan contract, accruing at the simple annual interest
402-11 rate under the contract described by Subsection (f) from the date
402-12 of the addition until the date paid or the date the lender demands
402-13 payment in full of the total unpaid balance under the loan
402-14 contract.]
402-15 [(e) The lender shall refund or credit to the borrower the
402-16 amount computed by subtracting the total amount retained under
402-17 Subsections (b), (c), and (d) from the total amount of interest
402-18 contracted for and precomputed in the amount of loan.]
402-19 [(f) For the purposes of this section, the simple annual
402-20 interest rate is equal to the rate that the contract would have
402-21 produced over its full term if, assuming that each scheduled
402-22 payment under the contract is paid on the date due and considering
402-23 the amount of each scheduled installment and the time of each
402-24 scheduled installment period, the rate were applied to the unpaid
402-25 principal amounts determined to be outstanding from time to time
402-26 according to the schedule of payments.]
403-1 [Sec. 342.253. NO REFUND ON PARTIAL PREPAYMENT OR OF AMOUNT
403-2 LESS THAN $1. A refund is not required under this subchapter for a
403-3 partial prepayment or if the amount to be refunded is less than $1.]
403-4 [SUBCHAPTER F. ALTERNATE CHARGES FOR CERTAIN LOANS]
403-5 [Sec. 342.301. MAXIMUM CASH ADVANCE. The maximum cash
403-6 advance of a loan made under this subchapter is an amount computed
403-7 under Subchapter C, Chapter 341, using the reference amount of
403-8 $100.]
403-9 [Sec. 342.302. ALTERNATE INTEREST CHARGE. Instead of the
403-10 charges authorized by Section 342.201, a loan contract may provide
403-11 for:]
403-12 [(1) on a cash advance of less than $30, an
403-13 acquisition charge that is not more than $1 for each $5 of the cash
403-14 advance;]
403-15 [(2) on a cash advance equal to or more than $30 but
403-16 not more than $100:]
403-17 [(A) an acquisition charge that is not more than
403-18 the amount equal to one-tenth of the amount of the cash advance;
403-19 and]
403-20 [(B) an installment account handling charge that
403-21 is not more than:]
403-22 [(i) $3 a month if the cash advance is not
403-23 more than $35;]
403-24 [(ii) $3.50 a month if the cash advance is
403-25 more than $35 but not more than $70; or]
403-26 [(iii) $4 a month if the cash advance is
404-1 more than $70; or]
404-2 [(3) on a cash advance of more than $100:]
404-3 [(A) an acquisition charge that is not more than
404-4 $10; and]
404-5 [(B) an installment account handling charge that
404-6 is not more than the ratio of $4 a month for each $100 of cash
404-7 advance.]
404-8 [Sec. 342.303. NO OTHER CHARGES AUTHORIZED. (a) On a loan
404-9 made under this subchapter a lender may not contract for, charge,
404-10 or receive an amount unless this subchapter authorizes the amount
404-11 to be charged.]
404-12 [(b) An insurance charge is not authorized on a loan made
404-13 under this subchapter.]
404-14 [Sec. 342.304. MAXIMUM LOAN TERM. The maximum term of a
404-15 loan made under this subchapter is:]
404-16 [(1) for a loan of $100 or less the lesser of:]
404-17 [(A) one month for each $10 of cash advance; or]
404-18 [(B) six months; and]
404-19 [(2) for a loan of more than $100, one month for each
404-20 $20 of cash advance.]
404-21 [Sec. 342.305. REFUND. (a) An acquisition charge
404-22 authorized under Section 342.302(1) or (2) is considered to be
404-23 earned at the time a loan is made and is not subject to refund.]
404-24 [(b) On the prepayment of a loan with a cash advance of $30
404-25 or more but not more than $100, the installment account handling
404-26 charge authorized under Section 342.302(2) is subject to refund in
405-1 accordance with Subchapter E.]
405-2 [(c) On the prepayment of a loan with a cash advance of more
405-3 than $100, the acquisition charge and the installment account
405-4 handling charge authorized under Section 342.302(3) are subject to
405-5 refund in accordance with Subchapter E.]
405-6 [Sec. 342.306. DEFAULT CHARGE; DEFERMENT OF PAYMENT. The
405-7 provisions of Subchapter D relating to additional interest for
405-8 default and additional interest for the deferment of installments
405-9 apply to a loan made under this subchapter.]
405-10 [Sec. 342.307. SCHEDULES FOR WEEKLY, BIWEEKLY, OR
405-11 SEMIMONTHLY INSTALLMENTS. The commissioner may prepare schedules
405-12 that may be used by an authorized lender for the repayment of a
405-13 loan made under this subchapter by weekly, biweekly, or semimonthly
405-14 installments.]
405-15 [SUBCHAPTER G. INSURANCE]
405-16 [Sec. 342.401. PROPERTY INSURANCE. (a) On a loan with a
405-17 cash advance of $300 or more, a lender may request or require a
405-18 borrower to insure tangible personal property offered as security
405-19 for the loan.]
405-20 [(b) The insurance and the premiums or charges for the
405-21 coverage must bear a reasonable relationship to:]
405-22 [(1) the amount, term, and conditions of the loan;]
405-23 [(2) the value of the collateral; and]
405-24 [(3) the existing hazards or risk of loss, damage, or
405-25 destruction.]
405-26 [(c) The insurance may not:]
406-1 [(1) cover unusual or exceptional risks; or]
406-2 [(2) provide coverage not ordinarily included in
406-3 policies issued to the general public.]
406-4 [Sec. 342.402. CREDIT LIFE, CREDIT HEALTH AND ACCIDENT, OR
406-5 INVOLUNTARY UNEMPLOYMENT INSURANCE. (a) On a loan made under this
406-6 chapter with a cash advance of $100 or more, a lender may:]
406-7 [(1) offer or request that a borrower provide credit
406-8 life insurance and credit health and accident insurance as
406-9 additional protection for the loan; and]
406-10 [(2) offer involuntary unemployment insurance to the
406-11 borrower at the time the loan is made and include the premium for
406-12 that insurance, if accepted, in the loan contract.]
406-13 [(b) A lender may not require that the borrower accept or
406-14 provide the insurance described by Subsection (a).]
406-15 [Sec. 342.403. MAXIMUM AMOUNT OF INSURANCE COVERAGE.
406-16 (a) At any time the total amount of the policies of credit life
406-17 insurance in force on one borrower on one loan contract may not
406-18 exceed the total amount repayable under the loan contract, and if
406-19 the loan is repayable in substantially equal installments, the
406-20 greater of the scheduled or actual amount of unpaid indebtedness.]
406-21 [(b) At any time the total amount of the policies of credit
406-22 accident and health insurance or involuntary unemployment insurance
406-23 in force on one borrower on one loan contract may not exceed the
406-24 total amount repayable under the loan contract, and the amount of
406-25 each periodic indemnity payment may not exceed the scheduled
406-26 periodic installment payment on the loan.]
407-1 [Sec. 342.404. INSURANCE STATEMENT. (a) If insurance is
407-2 required on a loan made under this chapter, the lender shall give
407-3 to the borrower a written statement that clearly and conspicuously
407-4 states that:]
407-5 [(1) insurance is required in connection with the
407-6 loan; and]
407-7 [(2) the borrower as an option may furnish the
407-8 required insurance coverage through:]
407-9 [(A) an existing policy of insurance owned or
407-10 controlled by the borrower; or]
407-11 [(B) an insurance policy obtained from an
407-12 insurance company authorized to do business in this state.]
407-13 [(b) If requested or required insurance is sold or obtained
407-14 by a lender at a premium or rate of charge that is not fixed or
407-15 approved by the commissioner of insurance, the lender shall include
407-16 that fact in the statement.]
407-17 [(c) A statement under this section may be provided with or
407-18 as part of the loan contract or separately.]
407-19 [Sec. 342.405. INSURANCE MAY BE FURNISHED BY BORROWER. If
407-20 insurance is requested or required on a loan made under this
407-21 chapter and the loan contract includes a premium or rate of charge
407-22 that is not fixed or approved by the commissioner of insurance, the
407-23 borrower is entitled to furnish the insurance coverage not later
407-24 than the fifth day after the date of the loan through:]
407-25 [(1) an existing policy of insurance owned or
407-26 controlled by the borrower; or]
408-1 [(2) an insurance policy obtained from an insurance
408-2 company authorized to do business in this state.]
408-3 [Sec. 342.406. BORROWER'S FAILURE TO PROVIDE REQUIRED
408-4 INSURANCE. (a) If a borrower fails to obtain or maintain
408-5 insurance coverage required under a loan contract or requests the
408-6 lender to obtain that coverage, the lender may obtain:]
408-7 [(1) substitute insurance coverage that is
408-8 substantially equivalent to or more limited than the coverage
408-9 originally required; or]
408-10 [(2) insurance to cover only the interest of the
408-11 lender as a secured party if the borrower does not request that the
408-12 borrower's interest be covered.]
408-13 [(b) Insurance obtained under this section must comply with
408-14 Sections 342.407 and 342.408.]
408-15 [(c) The lender may add the amount advanced by the lender
408-16 for insurance coverage obtained under Subsection (a) to the unpaid
408-17 balance of the loan contract and may charge interest on that amount
408-18 from the time it is added to the unpaid balance until it is paid.
408-19 The rate of additional interest may not exceed the rate that the
408-20 loan contract would produce over its full term if each scheduled
408-21 payment were paid on the due date.]
408-22 [Sec. 342.407. REQUIREMENTS FOR INCLUDING INSURANCE CHARGE
408-23 IN CONTRACT. If insurance is included as a charge in a loan
408-24 contract, the insurance must be written:]
408-25 [(1) at lawful rates;]
408-26 [(2) in accordance with the Insurance Code; and]
409-1 [(3) by a company authorized to do business in this
409-2 state.]
409-3 [Sec. 342.408. DELIVERY OF INSURANCE DOCUMENT TO BORROWER.
409-4 If a lender obtains insurance for which a charge is included in the
409-5 loan contract, the lender, not later than the 30th day after the
409-6 date on which the loan contract is executed, shall deliver, mail,
409-7 or cause to be mailed to the borrower at the borrower's address
409-8 specified in the contract one or more policies or certificates of
409-9 insurance that clearly set forth:]
409-10 [(1) the amount of the premium;]
409-11 [(2) the kind of insurance provided;]
409-12 [(3) the coverage of the insurance; and]
409-13 [(4) all terms, including options, limitations,
409-14 restrictions, and conditions, of each insurance policy.]
409-15 [Sec. 342.409. LENDER'S DUTY IF INSURANCE IS ADJUSTED OR
409-16 TERMINATED. (a) If insurance for which a charge is included in or
409-17 added to the loan contract is canceled, adjusted, or terminated,
409-18 the lender shall:]
409-19 [(1) credit to the amount unpaid on the loan the
409-20 amount of the refund received by the lender for unearned insurance
409-21 premiums, except for the amount of the refund that is applied to
409-22 the purchase by the lender of similar insurance; and]
409-23 [(2) if the amount to be credited under Subdivision
409-24 (1) is more than the unpaid balance, refund promptly to the
409-25 borrower the difference between those amounts.]
409-26 [(b) A cash refund is not required under this section if the
410-1 amount of the refund is less than $1.]
410-2 [Sec. 342.410. PAYMENT FOR INSURANCE FROM LOAN PROCEEDS. A
410-3 lender, including an officer, agent, or employee of the lender, who
410-4 accepts insurance under this subchapter as protection for a loan:]
410-5 [(1) may deduct the premium or identifiable charge for
410-6 the insurance from the proceeds of the loan; and]
410-7 [(2) shall pay the deducted amounts to the insurance
410-8 company writing the insurance.]
410-9 [Sec. 342.411. GAIN OR ADVANTAGE FROM INSURANCE NOT
410-10 INTEREST. Any gain or advantage to the lender or the lender's
410-11 employee, officer, director, agent, general agent, affiliate, or
410-12 associate from insurance under this subchapter or the provision or
410-13 sale of insurance under this subchapter is not additional interest
410-14 or an additional charge in connection with a loan made under this
410-15 chapter except as specifically provided by this chapter.]
410-16 [Sec. 342.412. ACTION UNDER SUBCHAPTER NOT SALE OF
410-17 INSURANCE. Arranging for insurance or collecting an identifiable
410-18 charge as authorized by this subchapter is not a sale of insurance.]
410-19 [Sec. 342.413. REQUIRED AGENT OR BROKER PROHIBITED. A
410-20 lender may not by any direct or indirect method require the
410-21 purchase of insurance from an agent or broker designated by the
410-22 lender.]
410-23 [Sec. 342.414. DECLINATION OF EQUAL INSURANCE COVERAGE
410-24 PROHIBITED. A lender may not decline at any time existing
410-25 insurance coverage that:]
410-26 [(1) provides benefits substantially equal to the
411-1 benefits of coverage required by the lender; or]
411-2 [(2) complies with this subchapter.]
411-3 [Sec. 342.415. EFFECT OF UNAUTHORIZED INSURANCE CHARGE.
411-4 (a) If a lender charges for insurance an amount that is not
411-5 authorized under this subchapter, the lender:]
411-6 [(1) is not entitled to collect an amount for
411-7 insurance or interest on an amount for insurance; and]
411-8 [(2) shall refund to the borrower or credit to the
411-9 borrower's account all amounts collected for insurance and interest
411-10 collected on those amounts.]
411-11 [(b) An overcharge that results from an accidental or bona
411-12 fide error may be corrected as provided by Subchapter C, Chapter
411-13 349.]
411-14 [(c) The remedy provided by this section is not exclusive of
411-15 any other remedy or penalty provided by this subtitle.]
411-16 [Sec. 342.416. NONFILING INSURANCE. (a) Instead of
411-17 charging fees for the filing, recording, and releasing of a
411-18 document securing a loan to which Subchapter D applies, an
411-19 authorized lender may include in the loan contract a charge for a
411-20 nonfiling insurance premium.]
411-21 [(b) The amount of a charge under Subsection (a) may not
411-22 exceed the amount of fees authorized for filing and recording an
411-23 original financing statement in the standard form prescribed by the
411-24 secretary of state.]
411-25 [(c) An authorized lender may include a charge for nonfiling
411-26 insurance only if the lender purchases nonfiling insurance in
412-1 connection with the loan contract.]
412-2 [(d) A lender is not required to furnish to a borrower a
412-3 policy or certificate of insurance evidencing nonfiling insurance.]
412-4 [SUBCHAPTER H. ADMINISTRATION OF CHAPTER]
412-5 [Sec. 342.501. ADOPTION OF RULES. (a) The Finance
412-6 Commission of Texas may adopt rules to enforce this chapter.]
412-7 [(b) The commissioner shall recommend proposed rules to the
412-8 Finance Commission of Texas.]
412-9 [(c) A rule shall be entered in a permanent book. The book
412-10 is a public record and shall be kept in the office of the
412-11 commissioner.]
412-12 [(d) A copy of a rule shall be mailed to each authorized
412-13 lender.]
412-14 [Sec. 342.502. EXAMINATION OF LENDERS; ACCESS TO RECORDS.
412-15 (a) The commissioner or the commissioner's representative shall,
412-16 at the times the commissioner considers necessary:]
412-17 [(1) examine each place of business of each authorized
412-18 lender; and]
412-19 [(2) investigate the lender's transactions, including
412-20 loans, and records, including books, accounts, papers, and
412-21 correspondence, to the extent the transactions and records pertain
412-22 to the business regulated under this chapter.]
412-23 [(b) The lender shall:]
412-24 [(1) give the commissioner or the commissioner's
412-25 representative free access to the lender's office, place of
412-26 business, files, safes, and vaults; and]
413-1 [(2) allow the commissioner or the commissioner's
413-2 authorized representative to make a copy of an item that may be
413-3 investigated under Subsection (a)(2).]
413-4 [(c) During an examination the commissioner or the
413-5 commissioner's representative may administer oaths and examine any
413-6 person under oath on any subject pertinent to a matter about which
413-7 the commissioner is authorized or required to consider,
413-8 investigate, or secure information under this chapter.]
413-9 [(d) Information obtained under this section is
413-10 confidential.]
413-11 [(e) A lender's violation of Subsection (b) is a ground for
413-12 the suspension or revocation of the lender's license.]
413-13 [Sec. 342.503. GENERAL INVESTIGATION. (a) To discover a
413-14 violation of this chapter or to obtain information required under
413-15 this chapter, the commissioner or the commissioner's representative
413-16 may investigate the records, including books, accounts, papers, and
413-17 correspondence, of a person, including an authorized lender, whom
413-18 the commissioner has reasonable cause to believe is violating this
413-19 chapter regardless of whether the person claims to not be subject
413-20 to this chapter.]
413-21 [(b) For the purposes of this section, a person who
413-22 advertises, solicits, or otherwise represents that the person is
413-23 willing to make a loan with a cash advance in an amount to which
413-24 Section 342.001 applies is presumed to be engaged in the business
413-25 described by Section 342.001.]
413-26 [Sec. 342.504. CERTIFICATE; CERTIFIED DOCUMENT. On
414-1 application by any person and on payment of any associated cost,
414-2 the commissioner shall furnish under the commissioner's seal and
414-3 signed by the commissioner or an assistant of the commissioner:]
414-4 [(1) a certificate of good standing; or]
414-5 [(2) a certified copy of a license, rule, or order.]
414-6 [Sec. 342.505. TRANSCRIPT OF HEARING: PUBLIC. The
414-7 transcript of a hearing held by the commissioner under this chapter
414-8 is a public record.]
414-9 [SUBCHAPTER I. AUTHORIZED LENDER'S DUTIES AND AUTHORITY]
414-10 [Sec. 342.601. DELIVERY OF INFORMATION TO BORROWER.
414-11 (a) When a loan is made under this chapter, the lender shall
414-12 deliver to the borrower, or to one borrower if there is more than
414-13 one, a copy of each document signed by the borrower, including the
414-14 note or loan contract, and a written statement in English that
414-15 contains:]
414-16 [(1) the names and addresses of the borrower and the
414-17 lender; and]
414-18 [(2) any type of insurance for which a charge is
414-19 included in the loan contract and the charge to the borrower for
414-20 the insurance.]
414-21 [(b) If the note or loan contract shows the information
414-22 required by Subsection (a), the written statement is not required.]
414-23 [Sec. 342.602. RECEIPT FOR CASH PAYMENT. A lender shall
414-24 give a receipt to a person making a cash payment on a loan.]
414-25 [Sec. 342.603. ACCEPTANCE OF PREPAYMENT. At any time during
414-26 regular business hours, the lender shall accept prepayment of a
415-1 loan in full or, if the amount tendered is less than the amount
415-2 required to prepay the loan in full, prepayment of an amount equal
415-3 to one or more full installments.]
415-4 [Sec. 342.604. RETURN OF INSTRUMENTS TO BORROWER ON
415-5 REPAYMENT. Within a reasonable time after a loan is repaid in
415-6 full, a lender shall cancel and return to a borrower any
415-7 instrument, including a note, assignment, security agreement, or
415-8 mortgage, or pledged property that:]
415-9 [(1) secured the loan; and]
415-10 [(2) does not secure another indebtedness of the
415-11 borrower to the lender.]
415-12 [Sec. 342.605. APPOINTMENT OF AGENT. (a) An authorized
415-13 lender shall maintain on file with the commissioner a written
415-14 appointment of a resident of this state as the lender's agent for
415-15 service of all judicial or other process or legal notice, unless
415-16 the lender has appointed an agent under another statute of this
415-17 state.]
415-18 [(b) If an authorized lender does not comply with this
415-19 section, service of all judicial or other process or legal notice
415-20 may be made on the commissioner.]
415-21 [Sec. 342.606. PAYMENT OF EXAMINATION COSTS AND
415-22 ADMINISTRATION EXPENSES. An authorized lender shall pay to the
415-23 commissioner an amount assessed by the commissioner to cover the
415-24 direct and indirect cost of an examination of the lender under
415-25 Section 342.502 and a proportionate share of general administrative
415-26 expense.]
416-1 [Sec. 342.607. AUTHORIZED LENDER'S RECORDS. (a) An
416-2 authorized lender shall maintain records relating to loans made
416-3 under this chapter as is necessary to enable the commissioner to
416-4 determine whether the lender is complying with this chapter.]
416-5 [(b) An authorized lender shall keep each record, make it
416-6 available in this state, or, if the lender makes, transacts, or
416-7 negotiates loans principally by mail, keep the record or make it
416-8 available at the lender's principal place of business, until the
416-9 later of:]
416-10 [(1) the fourth anniversary of the date of the loan;
416-11 or]
416-12 [(2) the second anniversary of the date on which the
416-13 final entry is made in the record.]
416-14 [(c) Each record described by Subsection (a) must be
416-15 prepared in accordance with accepted accounting practices.]
416-16 [(d) The commissioner shall accept a lender's system of
416-17 records if the system discloses the information reasonably required
416-18 under Subsection (a).]
416-19 [(e) An authorized lender shall keep all obligations signed
416-20 by borrowers at an office in this state designated by the lender
416-21 unless an obligation is transferred under an agreement that gives
416-22 the commissioner access to the obligation.]
416-23 [Sec. 342.608. ANNUAL REPORT. (a) Each year, not later
416-24 than April 1, or a subsequent date set by the commissioner, an
416-25 authorized lender shall file with the commissioner a report that
416-26 contains relevant information required by the commissioner
417-1 concerning the business and operations during the preceding
417-2 calendar year for each office of the lender in this state where
417-3 business is conducted under this chapter.]
417-4 [(b) A report under this section must be:]
417-5 [(1) under oath; and]
417-6 [(2) in the form prescribed by the commissioner.]
417-7 [(c) A report under this section is confidential.]
417-8 [(d) Annually the commissioner shall prepare and publish a
417-9 consolidated analysis and recapitulation of reports filed under
417-10 this section.]
417-11 [Sec. 342.609. CONDUCTING ASSOCIATED BUSINESS. An
417-12 authorized lender may conduct business under this chapter in an
417-13 office, office suite, room, or place of business in which any other
417-14 business is conducted or in combination with any other business
417-15 unless the commissioner:]
417-16 [(1) after a hearing, finds that the lender's
417-17 conducting of the other business in that office, office suite,
417-18 room, or place of business has concealed evasions of this chapter;
417-19 and]
417-20 [(2) orders the lender in writing to desist from that
417-21 conduct in that office, office suite, room, or place of business.]
417-22 [Sec. 342.610. AGREEMENT FOR MORE THAN ONE LOAN OR CASH
417-23 ADVANCE. (a) An authorized lender and a borrower may enter an
417-24 agreement under which one or more loans or cash advances are from
417-25 time to time made to or for the account of the borrower.]
417-26 [(b) An agreement under this section may provide for a
418-1 maximum loan charge on the unpaid principal amounts from time to
418-2 time outstanding at a rate that does not exceed the rate that
418-3 produces the maximum interest charge computed under Section 342.201
418-4 for an equivalent loan amount.]
418-5 [(c) An agreement under this section must be written and
418-6 signed by the lender and borrower.]
418-7 [(d) An agreement under this section must contain:]
418-8 [(1) the date of the agreement;]
418-9 [(2) the name and address of each borrower; and]
418-10 [(3) the name and address of the lender.]
418-11 [(e) An agreement under this section must clearly set forth:]
418-12 [(1) the insurance coverage made available to the
418-13 borrower through the lender; and]
418-14 [(2) if the borrower is to be charged for the
418-15 insurance coverage, a simple statement of the amount of the charge
418-16 or the method by which the charge is to be computed.]
418-17 [(f) The lender shall deliver a copy of an agreement under
418-18 this section to the borrower.]
418-19 [(g) The commissioner shall prescribe monthly rates of
418-20 charge that produce the maximum interest charge computed under
418-21 Section 342.201 for use under Subsection (b).]
418-22 [SUBCHAPTER J. PROHIBITIONS ON AUTHORIZED LENDER]
418-23 [Sec. 342.651. OBLIGATION UNDER MORE THAN ONE CONTRACT.
418-24 (a) An authorized lender may not induce or permit a person or a
418-25 husband and wife to be directly or indirectly obligated under more
418-26 than one loan contract under this chapter simultaneously for the
419-1 purpose or with the effect of obtaining an amount of interest that
419-2 is more than the amount of interest that is otherwise authorized
419-3 under this chapter for a loan of that aggregate amount.]
419-4 [(b) Subsection (a) does not prohibit the purchase of a bona
419-5 fide retail installment contract or revolving charge agreement of a
419-6 borrower for the purchase of goods or services.]
419-7 [(c) An authorized lender who purchases all or substantially
419-8 all of the loan contracts of another authorized lender and who at
419-9 the time of purchase has a loan contract with a borrower whose loan
419-10 contract is purchased may collect principal and authorized charges
419-11 according to the terms of each loan contract.]
419-12 [Sec. 342.652. AMOUNT AUTHORIZED. (a) An authorized lender
419-13 may not directly or indirectly charge, contract for, or receive an
419-14 amount that is not authorized under this chapter in connection with
419-15 a loan to which this chapter applies, including a fee,
419-16 compensation, bonus, commission, brokerage, discount, expense, and
419-17 any other amount, regardless of the form of the amount or whether
419-18 it is contracted for, that is received by the lender or any other
419-19 person:]
419-20 [(1) in connection with the investigating, arranging,
419-21 negotiating, procuring, guaranteeing, making, servicing,
419-22 collecting, or enforcing of a loan;]
419-23 [(2) for the forbearance of money, credit, goods, or
419-24 things in action; or]
419-25 [(3) for any other service performed or offered.]
419-26 [(b) Subsection (a) does not apply to an amount incurred by
420-1 the lender for:]
420-2 [(1) court costs;]
420-3 [(2) attorney's fees assessed by a court;]
420-4 [(3) a fee authorized by law for filing, recording, or
420-5 releasing in a public office a security for a loan;]
420-6 [(4) a reasonable amount spent for repossessing,
420-7 storing, preparing for sale, or selling any security;]
420-8 [(5) a fee for recording a lien on or transferring a
420-9 certificate of title to a motor vehicle offered as security for a
420-10 loan made under this chapter; or]
420-11 [(6) a premium or an identifiable charge received in
420-12 connection with the sale of insurance authorized under this
420-13 chapter.]
420-14 [Sec. 342.653. SECURITY FOR LOAN. (a) An authorized lender
420-15 may not take as security for a loan made under this chapter:]
420-16 [(1) an assignment of wages; or]
420-17 [(2) a lien on real property other than a lien created
420-18 by law on the recording of an abstract of judgment.]
420-19 [(b) An authorized lender may take as security for a loan
420-20 made under this chapter an assignment of:]
420-21 [(1) a warrant drawn against a state fund; or]
420-22 [(2) a claim against a state fund or a state agency.]
420-23 [Sec. 342.654. CONFESSION OF JUDGMENT; POWER OF ATTORNEY.
420-24 An authorized lender may not take a confession of judgment or a
420-25 power of attorney under which the lender or a third person is
420-26 authorized to confess judgment or to appear for a borrower in a
421-1 judicial proceeding.]
421-2 [Sec. 342.655. DISCLOSURE OF AMOUNT FINANCED AND SCHEDULE OF
421-3 PAYMENTS. An authorized lender may not take a promise to pay or
421-4 loan obligation that does not disclose the amount financed and the
421-5 schedule of payments.]
421-6 [Sec. 342.656. INSTRUMENT WITH BLANK PROHIBITED. Except as
421-7 specifically provided by Section 342.610, an authorized lender may
421-8 not take an instrument that contains blank spaces.]
421-9 [Sec. 342.657. WAIVER OF BORROWER'S RIGHT PROHIBITED. An
421-10 authorized lender may not take an instrument in which a borrower
421-11 waives any right accruing to the borrower under this chapter.]
421-12 [Sec. 342.658. MAXIMUM LOAN TERM. An authorized lender may
421-13 not enter a loan contract under this chapter under which the
421-14 borrower agrees to make a scheduled payment of principal more than:]
421-15 [(1) 37 calendar months after the date on which the
421-16 contract is made, if the contract is for a cash advance of $1,500
421-17 or less;]
421-18 [(2) 49 calendar months after the date on which the
421-19 contract is made, if the contract is for a cash advance of more
421-20 than $1,500 but not more than $3,000; or]
421-21 [(3) 60 months after the date on which the contract is
421-22 made, if the contract is for a cash advance of more than $3,000.]
421-23 (b) Section 2, Chapter 1396, and Section 2, Chapter 164,
421-24 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
421-25 SECTION 7.20. (a) Chapters 343 and 344, Finance Code, are
421-26 repealed to conform to Section 48, Chapter 1396, Acts of the 75th
422-1 Legislature, Regular Session, 1997.
422-2 (b) Section 48, Chapter 1396, Acts of the 75th Legislature,
422-3 Regular Session, 1997, is repealed.
422-4 SECTION 7.21. (a) Section 347.301(b), Finance Code, is
422-5 amended to conform to Section 17, Chapter 791, Acts of the 75th
422-6 Legislature, Regular Session, 1997, to read as follows:
422-7 (b) Only a fee or tax that is paid by the creditor as
422-8 required by law, including a rule, or a fee or tax paid on behalf
422-9 of the consumer to a governmental entity in relation to the credit
422-10 transaction may be charged to the consumer.
422-11 (b) Section 17, Chapter 791, Acts of the 75th Legislature,
422-12 Regular Session, 1997, is repealed.
422-13 SECTION 7.22. (a) Section 348.123, Finance Code, is amended
422-14 to conform to Section 36, Chapter 639, Acts of the 75th
422-15 Legislature, Regular Session, 1997, by amending Subsection (b) and
422-16 adding Subsection (c) to read as follows:
422-17 (b) This section does not apply to:
422-18 (1) a lease;
422-19 (2) a retail installment transaction for a vehicle
422-20 that is to be used primarily for a purpose other than personal,
422-21 family, or household use;
422-22 (3) a transaction for which the payment schedule is
422-23 adjusted to the seasonal or irregular income or scheduled payments
422-24 or obligations of the buyer; [or]
422-25 (4) a transaction of a type that the commissioner
422-26 determines does not require the protection for the buyer provided
423-1 by this section; or
423-2 (5) a retail installment transaction in which:
423-3 (A) the seller is a franchised dealer licensed
423-4 under the Texas Motor Vehicle Commission Code (Article 4413(36),
423-5 Vernon's Texas Civil Statutes); and
423-6 (B) the buyer is entitled, at the end of the
423-7 term of the retail installment contract, to choose one of the
423-8 following:
423-9 (i) sell the vehicle back to the holder
423-10 according to a written agreement:
423-11 (a) entered into between
423-12 the buyer and holder concurrently with or as a part of the
423-13 transaction; and
423-14 (b) under which the buyer
423-15 will be released from liability or obligation for the final
423-16 scheduled payment under the contract on compliance with the
423-17 agreement;
423-18 (ii) pay the final scheduled payment under
423-19 the contract; or
423-20 (iii) if the buyer is not in default under
423-21 the contract, refinance the final scheduled payment with the holder
423-22 for repayment in not fewer than 24 equal monthly installments or on
423-23 other terms agreed to by the buyer and holder at the time of
423-24 refinancing and at a rate of time price differential not to exceed
423-25 the lesser of:
423-26 (a) a rate equal to the
424-1 maximum rate authorized under this subchapter; or
424-2 (b) an annual percentage
424-3 rate of five percent a year more than the annual percentage rate of
424-4 the original contract.
424-5 (c) A retail installment contract under Subsection (b)(5)
424-6 must disclose that any refinancing may be for any period and
424-7 payment schedule to which the buyer and holder agree.
424-8 (b) Section 36, Chapter 639, Acts of the 75th Legislature,
424-9 Regular Session, 1997, is repealed.
424-10 SECTION 7.23. Chapter 50, Title 79, Revised Statutes
424-11 (Article 5069-50.01 et seq., Vernon's Texas Civil Statutes), is
424-12 repealed to conform to Chapter 1008, Acts of the 75th Legislature,
424-13 Regular Session, 1997.
424-14 SECTION 7.24. (a) Section 349.001, Finance Code, is amended
424-15 to conform to Section 19, Chapter 1396, Acts of the 75th
424-16 Legislature, Regular Session, 1997, to read as follows:
424-17 Sec. 349.001. LIABILITY FOR CONTRACTING FOR, CHARGING, OR
424-18 RECEIVING EXCESSIVE AMOUNT. (a) A person who violates this
424-19 subtitle by contracting for, charging, or receiving interest or[,]
424-20 time price differential[, or other charges] greater than the amount
424-21 authorized by this subtitle is liable to the obligor for an amount
424-22 equal to:
424-23 (1) twice the amount of the interest or time price
424-24 differential [and default and deferment charges] contracted for,
424-25 charged, or received; and
424-26 (2) reasonable attorney's fees set by the court.
425-1 (b) A person who violates this subtitle by contracting for,
425-2 charging, or receiving a charge, other than interest or time price
425-3 differential, greater than the amount authorized by this subtitle
425-4 is liable to the obligor for an amount equal to:
425-5 (1) the greater of:
425-6 (A) three times the amount computed by
425-7 subtracting the amount of the charge authorized by this subtitle
425-8 from the amount of the charge contracted for, charged, or received;
425-9 or
425-10 (B) $2,000 or 20 percent of the amount of the
425-11 principal balance, whichever is less; and
425-12 (2) reasonable attorney's fees set by the court.
425-13 (b) Section 19, Chapter 1396, Acts of the 75th Legislature,
425-14 Regular Session, 1997, is repealed.
425-15 SECTION 7.25. (a) Section 349.002(a), Finance Code, is
425-16 amended to conform to Section 21, Chapter 1396, Acts of the 75th
425-17 Legislature, Regular Session, 1997, to read as follows:
425-18 (a) A person who violates this subtitle by contracting for,
425-19 charging, or receiving interest or[,] time price differential[, or
425-20 other charges] that in an aggregate amount exceeds [exceed] twice
425-21 the total amount of interest or[,] time price differential[, and
425-22 other charges] authorized by this subtitle is liable to the obligor
425-23 as an additional penalty for all principal or principal balance, as
425-24 well as all interest or time price differential [and all other
425-25 charges].
425-26 (b) Section 21, Chapter 1396, Acts of the 75th Legislature,
426-1 Regular Session, 1997, is repealed.
426-2 PART 4. CODIFICATION OF CERTAIN ARTICLES
426-3 SECTION 7.26. (a) Subtitle Z, Title 3, Finance Code, is
426-4 amended to codify Chapter 71, Acts of the 66th Legislature, Regular
426-5 Session, 1979 (Article 1528i, Vernon's Texas Civil Statutes), by
426-6 adding Chapter 275 to read as follows:
426-7 CHAPTER 275. TEXAS MUTUAL TRUST INVESTMENT COMPANY ACT
426-8 SUBCHAPTER A. GENERAL PROVISIONS
426-9 Sec. 275.001. SHORT TITLE. This chapter may be cited as the
426-10 Texas Mutual Trust Investment Company Act.
426-11 Sec. 275.002. DEFINITIONS. In this chapter:
426-12 (1) "Fiduciary institution" means a:
426-13 (A) state bank with trust powers;
426-14 (B) national bank with trust powers; or
426-15 (C) trust company.
426-16 (2) "Stock" means a unit of participation in the net
426-17 asset value of one or more of the investment funds of a mutual
426-18 trust investment company.
426-19 Sec. 275.003. APPLICATION OF GENERAL CORPORATION LAW.
426-20 Except as provided by this chapter, a mutual trust investment
426-21 company must be incorporated under and is subject to the general
426-22 corporation laws of this state.
426-23 Sec. 275.004. INVESTMENT OF CORPORATION ASSETS. A mutual
426-24 trust investment company may invest its assets only in investments
426-25 in which a trustee may invest under the laws of this state.
426-26 (Sections 275.005-275.050 reserved for expansion
427-1 SUBCHAPTER B. CREATION OF MUTUAL TRUST INVESTMENT COMPANY
427-2 Sec. 275.051. CREATION OF MUTUAL TRUST INVESTMENT COMPANY.
427-3 (a) One or more fiduciary institutions may incorporate a mutual
427-4 trust investment company as provided by this chapter to be a medium
427-5 for the common investment of trust funds held in a fiduciary
427-6 capacity for fiduciary purposes, by those entities alone or with
427-7 one or more cofiduciaries.
427-8 (b) A mutual trust investment company must be an open-end
427-9 investment company as defined by, and must be subject to, the
427-10 Investment Company Act of 1940 (15 U.S.C. Section 80a-1 et seq.).
427-11 Sec. 275.052. INCORPORATORS. (a) To incorporate, a mutual
427-12 trust investment company must have five or more persons subscribe
427-13 and acknowledge the company's articles of incorporation.
427-14 (b) A person subscribing and acknowledging the articles of
427-15 incorporation of a mutual trust investment company must be an
427-16 officer or director of a fiduciary institution causing the mutual
427-17 trust investment company to be incorporated.
427-18 Sec. 275.053. CONTENTS OF ARTICLES OF INCORPORATION. In
427-19 addition to the information required by the general corporation
427-20 laws, the articles of incorporation shall state:
427-21 (1) the name of each fiduciary institution causing the
427-22 corporation to be incorporated; and
427-23 (2) the amount of stock originally subscribed for by
427-24 each fiduciary institution.
427-25 (Sections 275.054-275.100 reserved for expansion
428-1 SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
428-2 Sec. 275.101. DIRECTORS. (a) Except as provided by
428-3 Subsection (b), a mutual trust investment company must have at
428-4 least five directors, each of whom is not required to be a
428-5 stockholder but must be an officer or director of a bank or trust
428-6 company that is located in this state.
428-7 (b) An officer or director of a bank or trust company not
428-8 located in this state may serve as a director of a mutual trust
428-9 investment company only if that officer's or director's bank or
428-10 trust company owns stock in a fiduciary capacity in the mutual
428-11 trust investment company.
428-12 Sec. 275.102. AUDITS AND REPORTS. (a) At least once each
428-13 year, a mutual trust investment company shall cause an adequate
428-14 audit to be made of the company by auditors responsible only to the
428-15 board of directors of the company.
428-16 (b) A mutual trust investment company shall furnish annually
428-17 a copy of the company's audited financial statement to each
428-18 corporate fiduciary owning stock in the company.
428-19 (c) The mutual trust investment company shall pay the:
428-20 (1) reasonable expenses of an audit required by this
428-21 section made by an independent public accountant or certified
428-22 public accountant; and
428-23 (2) costs of preparing and distributing a report
428-24 required by this section.
428-25 (Sections 275.103-275.150 reserved for expansion
429-1 SUBCHAPTER D. MUTUAL TRUST INVESTMENT COMPANY STOCK
429-2 Sec. 275.151. OWNERSHIP. The stock of a mutual trust
429-3 investment company may be owned only by fiduciary institutions
429-4 acting as fiduciaries and any of their cofiduciaries.
429-5 Sec. 275.152. REGISTRATION. The stock of a mutual trust
429-6 investment company may be registered in the name of one or more
429-7 nominees of the owner of the stock.
429-8 Sec. 275.153. TRANSFER AND ASSIGNMENT. The stock of a
429-9 mutual trust investment company may not be transferred except to:
429-10 (1) the mutual trust investment company; or
429-11 (2) a fiduciary or cofiduciary that becomes successor
429-12 to a stockholder and that is a bank or trust company qualified to
429-13 hold the stock under this chapter.
429-14 Sec. 275.154. OWNERSHIP BY MUTUAL TRUST INVESTMENT COMPANY.
429-15 A mutual trust investment company may acquire its own stock and
429-16 shall bind itself, by contract or its bylaws, to acquire its own
429-17 stock, but may not vote on shares of its own stock.
429-18 (Sections 275.155-275.200 reserved for expansion
429-19 SUBCHAPTER E. INVESTMENT IN MUTUAL TRUST INVESTMENT COMPANY
429-20 Sec. 275.201. PURCHASE BY FIDUCIARY; AUTHORITY AND
429-21 RESTRICTIONS. A fiduciary institution, alone or with one or more
429-22 cofiduciaries, acting as a fiduciary for fiduciary purposes with
429-23 the consent of any cofiduciaries, may invest and reinvest funds
429-24 held in a fiduciary capacity, exercising the care of a prudent
429-25 investor, in the shares of stock of a mutual trust investment
429-26 company unless a will, trust indenture, or other instrument under
430-1 which the fiduciary is acting prohibits that investment.
430-2 Sec. 275.202. RESPONSIBILITY OF MUTUAL TRUST INVESTMENT
430-3 COMPANY. (a) A mutual trust investment company is not:
430-4 (1) required to determine the investment powers of a
430-5 fiduciary that purchases its stock; or
430-6 (2) liable for accepting funds from a fiduciary in
430-7 violation of the restrictions of a will, trust indenture, or other
430-8 instrument under which the fiduciary is acting in the absence of
430-9 actual knowledge of the violation.
430-10 (b) A mutual trust investment company is:
430-11 (1) accountable only to a fiduciary who is an owner of
430-12 its stock; and
430-13 (2) permitted to rely on the written statement of any
430-14 bank or trust company purchasing its stock that the purchase
430-15 complies with Section 275.201.
430-16 (b) Chapter 71, Acts of the 66th Legislature, Regular
430-17 Session, 1979 (Article 1528i, Vernon's Texas Civil Statutes), is
430-18 repealed.
430-19 SECTION 7.27. (a) Subtitle Z, Title 3, Finance Code, is
430-20 amended to codify Article 360, Revised Statutes, by adding Chapter
430-21 276 to read as follows:
430-22 CHAPTER 276. FINANCIAL INSTITUTION ACCOUNTS
430-23 Sec. 276.001. ACCOUNTS FOR CANDIDATES FOR PUBLIC OFFICE.
430-24 (a) A financial institution may not open an account in the name of
430-25 a candidate without obtaining that candidate's consent and
430-26 signature. This subsection does not require that the candidate be
431-1 a signatory to the account.
431-2 (b) In this section:
431-3 (1) "Candidate" has the meaning assigned by Section
431-4 251.001, Election Code.
431-5 (2) "Financial institution" means a bank, savings and
431-6 loan association, savings bank, or credit union.
431-7 (b) Article 360, Revised Statutes, is repealed.
431-8 SECTION 7.28. (a) Title 5, Finance Code, is amended to
431-9 codify Article 352, Revised Statutes, by adding Chapter 395 to read
431-10 as follows:
431-11 CHAPTER 395. COMMUNITY REINVESTMENT WORK GROUP
431-12 SUBCHAPTER A. COMPOSITION AND OPERATION
431-13 Sec. 395.001. COMPOSITION. The community reinvestment work
431-14 group is composed of:
431-15 (1) a representative of the comptroller's office,
431-16 appointed by the comptroller;
431-17 (2) a representative of the Texas Department of
431-18 Housing and Community Affairs, appointed by the executive director
431-19 of that department;
431-20 (3) a representative of the Texas Department of
431-21 Economic Development, appointed by the executive director of that
431-22 department;
431-23 (4) a representative of the Texas Department of
431-24 Banking, appointed by the banking commissioner of Texas; and
431-25 (5) a representative of the Texas Department of
431-26 Insurance, appointed by the commissioner of insurance.
432-1 Sec. 395.002. OFFICERS. The representative of the
432-2 comptroller's office serves as presiding officer of the work group.
432-3 The members of the work group may elect other necessary officers.
432-4 Sec. 395.003. MEETINGS. The work group shall meet quarterly
432-5 and may meet more often at the call of the presiding officer.
432-6 Sec. 395.004. TERM OF OFFICE; REMOVAL. A member of the work
432-7 group serves a two-year term and may be removed for any reason by
432-8 the appointing authority.
432-9 Sec. 395.005. EXPENSES; COMPENSATION. The appointing
432-10 authority is responsible for the expenses of a member's service on
432-11 the work group. A member of the work group receives no additional
432-12 compensation for serving on the work group.
432-13 (Sections 395.006-395.100 reserved for expansion
432-14 SUBCHAPTER B. DUTIES
432-15 Sec. 395.101. GENERAL DUTIES. The work group shall work in
432-16 conjunction with the banking community in this state to:
432-17 (1) develop statewide community reinvestment
432-18 strategies using existing investment pools and other investment
432-19 vehicles to leverage private capital from banks, insurance
432-20 companies, and other entities for community development in the
432-21 state;
432-22 (2) consult and coordinate with representatives from
432-23 appropriate federal regulatory agencies, including the Office of
432-24 the Comptroller of the Currency, the Federal Reserve Board of
432-25 Governors, the Federal Deposit Insurance Corporation, and the
432-26 Office of Thrift Supervision; and
433-1 (3) monitor and evaluate the strategies developed
433-2 under this section.
433-3 Sec. 395.102. DEVELOPING STRATEGIES. In developing the
433-4 strategies required by Section 395.101, the work group shall:
433-5 (1) explore innovative qualified investment
433-6 strategies;
433-7 (2) ensure to the extent possible that the strategies
433-8 encourage financial institutions in this state to lend money to
433-9 low-income and moderate-income families and individuals in the
433-10 state;
433-11 (3) coordinate its efforts to attract private capital
433-12 through investments that meet the requirements of the Community
433-13 Reinvestment Act of 1977 (12 U.S.C. Section 2901 et seq.); and
433-14 (4) ensure to the extent possible that the strategies
433-15 augment existing Community Reinvestment Act of 1977 programs in the
433-16 state, including the operation of local community development
433-17 corporations.
433-18 Sec. 395.103. REPORT TO LEGISLATURE. Each biennium the work
433-19 group shall submit to the legislature a written report on the
433-20 effectiveness of the strategies the work group is required to
433-21 develop under this chapter.
433-22 (b) Article 352, Revised Statutes, is repealed.
433-23 PART 5. OTHER CHANGES RELATING TO FINANCE CODE
433-24 SECTION 7.29. Section 14.251, Finance Code, is amended to
433-25 more accurately reflect the source law from which it was derived to
433-26 read as follows:
434-1 Sec. 14.251. ASSESSMENT OF PENALTY; RESTITUTION ORDER.
434-2 (a) The commissioner may assess an administrative penalty against
434-3 a person who knowingly and wilfully violates or causes a violation
434-4 of this chapter, [subtitle or] Chapter 394, or Subtitle B, Title 4,
434-5 or a rule adopted under this chapter, [subtitle or] Chapter 394, or
434-6 Subtitle B, Title 4.
434-7 (b) The commissioner may order a person who violates or
434-8 causes a violation of this chapter, [subtitle or] Chapter 394, or
434-9 Subtitle B, Title 4, or a rule adopted under this chapter,
434-10 [subtitle or] Chapter 394, or Subtitle B, Title 4, to make
434-11 restitution to an identifiable person injured by the violation.
434-12 SECTION 7.30. Section 59.107(a), Finance Code, is amended to
434-13 more accurately reflect the source law from which it was derived to
434-14 read as follows:
434-15 (a) A safe deposit company may not relocate a safe deposit
434-16 box rented for a term of at least six months if the box rental is
434-17 not delinquent or [. A safe deposit company may not] open a safe
434-18 deposit box to relocate its contents to another safe deposit box or
434-19 other location except:
434-20 (1) in the presence of the lessee;
434-21 (2) with the lessee's written authorization; or
434-22 (3) as otherwise provided by this section or Section
434-23 59.108.
434-24 SECTION 7.31. (a) Subchapter A, Chapter 89, Finance Code,
434-25 is amended to conform to Section 4, Chapter 994, Acts of the 75th
434-26 Legislature, Regular Session, 1997, by adding Section 89.008 to
435-1 read as follows:
435-2 Sec. 89.008. OFFICES OF FEDERAL ASSOCIATIONS. A federal
435-3 association that has been merged, consolidated, or converted into a
435-4 domestic or foreign savings bank or association is entitled to
435-5 retain any authorized office under the terms provided for a foreign
435-6 savings bank under Subchapter I, Chapter 92.
435-7 (b) Section 4, Chapter 994, Acts of the 75th Legislature,
435-8 Regular Session, 1997, is repealed.
435-9 SECTION 7.32. (a) Section 91.002(12), Finance Code, is
435-10 amended to conform to Section 1, Chapter 994, Acts of the 75th
435-11 Legislature, Regular Session, 1997, to read as follows:
435-12 (12) "Federal savings bank" means a savings bank
435-13 incorporated under the laws of the United States[, the principal
435-14 business office of which is located in this state].
435-15 (b) Section 1, Chapter 994, Acts of the 75th Legislature,
435-16 Regular Session, 1997, is repealed.
435-17 SECTION 7.33. (a) Section 92.152(b), Finance Code, is
435-18 amended to conform to Section 1, Chapter 993, Acts of the 75th
435-19 Legislature, Regular Session, 1997, to read as follows:
435-20 (b) The members or shareholders shall elect the board by a
435-21 majority vote at the [each] annual meeting. The directors may be
435-22 elected for staggered terms of longer than one year as provided by
435-23 the savings bank's bylaws or articles of incorporation.
435-24 (b) Section 1, Chapter 993, Acts of the 75th Legislature,
435-25 Regular Session, 1997, is repealed.
435-26 SECTION 7.34. (a) Section 92.204, Finance Code, is amended
436-1 to conform to Section 1, Chapter 995, Acts of the 75th Legislature,
436-2 Regular Session, 1997, to read as follows:
436-3 Sec. 92.204. QUALIFICATION UNDER [INTERNAL REVENUE CODE]
436-4 ASSET TEST OR QUALIFIED THRIFT LENDER TEST. (a) A savings bank
436-5 must qualify under and continue to meet:
436-6 (1) the asset test of Section 7701(a)(19), Internal
436-7 Revenue Code of 1986 (26 U.S.C. Section 7701(a)(19)); or
436-8 (2) the qualified thrift lender test of Section 10(m),
436-9 Home Owners' Loan Act (12 U.S.C. Section 1467a(m)).
436-10 (b) The commissioner may grant temporary or limited
436-11 exceptions to the requirements of this section as the commissioner
436-12 considers necessary.
436-13 (b) Section 1, Chapter 995, Acts of the 75th Legislature,
436-14 Regular Session, 1997, is repealed.
436-15 SECTION 7.35. (a) Subchapter A, Chapter 98, Finance Code,
436-16 is amended to conform to Section 2, Chapter 994, Acts of the 75th
436-17 Legislature, Regular Session, 1997, by adding Section 98.005 to
436-18 read as follows:
436-19 Sec. 98.005. AUTHORIZATION TO RETAIN OFFICES. A federal
436-20 savings bank that has been merged, consolidated, or converted into
436-21 a domestic or foreign savings bank or association is entitled to
436-22 retain any authorized office under the terms provided for a foreign
436-23 savings bank under Subchapter I, Chapter 92.
436-24 (b) Section 2, Chapter 994, Acts of the 75th Legislature,
436-25 Regular Session, 1997, is repealed.
436-26 SECTION 7.36. Section 126.254, Finance Code, is amended to
437-1 correct a typographical error to read as follows:
437-2 Sec. 126.254. POSSESSION, CONSOLIDATION, AND DISPOSITION OF
437-3 ASSETS. The liquidating agent shall:
437-4 (1) receive and take possession of the books, records,
437-5 assets, and property of the credit union;
437-6 (2) [. . .] sell, enforce collection of, and liquidate
437-7 assets and property; and
437-8 (3) sell or assign assets to the liquidating agent
437-9 subject to Section 126.353.
437-10 SECTION 7.37. (a) Section 152.201, Finance Code, is amended
437-11 to conform to Section 1, Chapter 395, Acts of the 75th Legislature,
437-12 Regular Session, 1997, to read as follows:
437-13 Sec. 152.201. LICENSE REQUIRED. Except as provided by
437-14 Section 152.202, a person [engaged in the business of selling
437-15 checks, as a service or for consideration,] must hold a license
437-16 issued under this chapter to:
437-17 (1) engage in the business of selling checks, as a
437-18 service or for consideration; or
437-19 (2) maintain, use, or otherwise control an account in
437-20 this state for the purpose of engaging in the business of selling
437-21 checks.
437-22 (b) Section 1, Chapter 395, Acts of the 75th Legislature,
437-23 Regular Session, 1997, is repealed.
437-24 SECTION 7.38. Section 152.301(a), Finance Code, is amended
437-25 to more accurately reflect the source law from which it was derived
437-26 to read as follows:
438-1 (a) A license holder shall maintain at all times while the
438-2 license is in effect:
438-3 (1) a surety bond or deposit in the amount prescribed
438-4 by Section 152.206 or 152.207;
438-5 (2) a net worth of not less than the amount prescribed
438-6 by Section 152.203; and
438-7 (3) a surety bond or letter of credit, or have on hand
438-8 permissible investments, in an amount equal to:
438-9 (A) the aggregate face amount of all outstanding
438-10 checks sold in the United States for which the license holder is
438-11 liable for payment, less the amount of the surety bond or deposit
438-12 maintained under Section 152.206 or 152.207, if the license holder
438-13 has a net worth of less than $5 million; or
438-14 (B) at least 50 percent of the amount required
438-15 by Paragraph (A) [Subdivision (1)] if the license holder has a net
438-16 worth of at least $5 million.
438-17 SECTION 7.39. Section 153.117(a), Finance Code, is amended
438-18 to more accurately reflect the source law from which it was derived
438-19 to read as follows:
438-20 (a) The following persons are not required to be licensed
438-21 under this chapter:
438-22 (1) a bank, foreign bank agency, credit union, savings
438-23 bank, or savings and loan association, whether organized under the
438-24 laws of this state or of the United States;
438-25 (2) a license holder under Chapter 152, except that
438-26 the license holder is required to comply with the other provisions
439-1 of this chapter to the extent [unless] the license holder engages
439-2 in currency exchange, transportation, or transmission transactions;
439-3 or
439-4 (3) a person registered as a securities dealer under
439-5 The Securities Act (Article 581-1 et seq., Vernon's Texas Civil
439-6 Statutes).
439-7 SECTION 7.40. (a) Section 154.002, Finance Code, is amended
439-8 to conform to Section 1, Chapter 1389, Acts of the 75th
439-9 Legislature, Regular Session, 1997, by amending Subdivision (8) and
439-10 adding Subdivisions (10), (11), and (12) to read as follows:
439-11 (8) "Prepaid funeral benefits" means prearranged or
439-12 prepaid funeral or cemetery services or funeral merchandise,
439-13 including an alternative container, casket, or outer burial
439-14 container [a casket, grave vault, or other article of merchandise
439-15 incidental to a funeral service]. The term does not include a
439-16 grave, [lot, grave space, grave] marker, monument, tombstone,
439-17 crypt, niche, plot, or lawn crypt [mausoleum] unless it is sold in
439-18 contemplation of trade for a funeral service or funeral merchandise
439-19 to which this chapter applies.
439-20 (10) "Crypt," "grave," "lawn crypt," "niche," and
439-21 "plot" have the meanings assigned by Section 711.001, Health and
439-22 Safety Code.
439-23 (11) "Funeral merchandise" or "merchandise" means
439-24 goods sold or offered for sale on a preneed basis directly to the
439-25 public for use in connection with funeral services.
439-26 (12) "Funeral service" or "service" means a service
440-1 sold or offered for sale on a preneed basis that may be used to:
440-2 (A) care for and prepare a deceased human body
440-3 for burial, cremation, or other final disposition; and
440-4 (B) arrange, supervise, or conduct a funeral
440-5 ceremony or the final disposition of a deceased human body.
440-6 (b) Section 1, Chapter 1389, Acts of the 75th Legislature,
440-7 Regular Session, 1997, is repealed.
440-8 SECTION 7.41. (a) Section 154.258, Finance Code, is amended
440-9 to conform to Section 2, Chapter 1389, Acts of the 75th
440-10 Legislature, Regular Session, 1997, by adding Subsection (e) to
440-11 read as follows:
440-12 (e) The commissioner may waive a limitation provided by
440-13 Subsection (b), (c), or (d), on written request of a permit holder,
440-14 if the commissioner concludes that the waiver does not threaten an
440-15 unreasonable risk of loss to the prepaid funeral benefits trust
440-16 funds. The commissioner by order shall approve or disapprove the
440-17 request not later than the 60th day after the date the commissioner
440-18 receives the request. If the commissioner does not disapprove the
440-19 request before the expiration of that period, the request is
440-20 approved. If the permit holder does not request a hearing before
440-21 the 11th day after the date of an order of disapproval, the order
440-22 takes effect on that 11th day. If a hearing is timely requested,
440-23 the hearing shall be conducted as a contested case under Chapter
440-24 2001, Government Code.
440-25 (b) Section 2, Chapter 1389, Acts of the 75th Legislature,
440-26 Regular Session, 1997, is repealed.
441-1 SECTION 7.42. Section 392.001(7), Finance Code, is amended
441-2 to more accurately reflect the source law from which it was derived
441-3 to read as follows:
441-4 (7) "Third-party debt collector" means a debt
441-5 collector, as defined by 15 U.S.C. Section 1692a(6), but does not
441-6 include [includes] an attorney collecting a debt as an attorney on
441-7 behalf of and in the name of a client unless [if] the attorney has
441-8 nonattorney employees who:
441-9 (A) are regularly engaged to solicit debts for
441-10 collection; or
441-11 (B) regularly make contact with debtors for the
441-12 purpose of collection or adjustment of debts.
441-13 SECTION 7.43. (a) Section 393.302, Finance Code, is amended
441-14 to conform to Section 1, Chapter 576, Acts of the 75th Legislature,
441-15 Regular Session, 1997, to read as follows:
441-16 Sec. 393.302. CHARGE OR RECEIPT OF CONSIDERATION BEFORE
441-17 COMPLETION OF SERVICES. A credit services organization or a
441-18 representative of the organization may charge or receive from a
441-19 consumer valuable consideration before completely performing all
441-20 the services the organization has agreed to perform for the
441-21 consumer only if the organization has obtained a surety bond for
441-22 each of its locations or established and maintained a surety
441-23 account for each of its locations in accordance with Subchapter E.
441-24 (b) Section 1, Chapter 576, Acts of the 75th Legislature,
441-25 Regular Session, 1997, is repealed.
441-26 SECTION 7.44. (a) Section 393.101, Finance Code, is amended
442-1 to conform to Section 2, Chapter 576, Acts of the 75th Legislature,
442-2 Regular Session, 1997, by adding Subsection (d) to read as follows:
442-3 (d) A registration certificate expires on the first
442-4 anniversary of its date of issuance. A registered credit services
442-5 organization may renew a registration certificate by filing a
442-6 renewal application, in the form prescribed by the secretary of
442-7 state, and paying the renewal fee.
442-8 (b) Section 393.104, Finance Code, is amended to conform to
442-9 Section 2, Chapter 576, Acts of the 75th Legislature, Regular
442-10 Session, 1997, to read as follows:
442-11 Sec. 393.104. FILING FEE. The secretary of state may charge
442-12 a credit services organization a reasonable fee to cover the cost
442-13 of filing a [the] registration statement or renewal application in
442-14 an amount not to exceed $100.
442-15 (c) Section 2, Chapter 576, Acts of the 75th Legislature,
442-16 Regular Session, 1997, is repealed.
442-17 PART 6. CROSS-REFERENCE CHANGES
442-18 SECTION 7.45. Section 3.112(b), Business & Commerce Code, is
442-19 amended to conform to Chapter 1008, Acts of the 75th Legislature,
442-20 Regular Session, 1997, to read as follows:
442-21 (b) Interest may be stated in an instrument as a fixed or
442-22 variable amount of money or it may be expressed as a fixed or
442-23 variable rate or rates. The amount or rate of interest may be
442-24 stated or described in the instrument in any manner and may require
442-25 reference to information not contained in the instrument. If an
442-26 instrument provides for interest, but the amount of interest
443-1 payable cannot be ascertained from the description, interest is
443-2 payable at the judgment rate in effect at the place of payment of
443-3 the instrument and at the time interest first accrues, and the
443-4 instrument shall not by virtue of this sentence be considered to
443-5 violate the provisions of Title 4, Finance Code [79, Revised
443-6 Statutes (Article 5069-1.01 et seq., Vernon's Texas Civil
443-7 Statutes)].
443-8 SECTION 7.46. Section 9.203(e), Business & Commerce Code, is
443-9 amended to conform to Chapter 1008, Acts of the 75th Legislature,
443-10 Regular Session, 1997, to read as follows:
443-11 (e) A transaction, although subject to this chapter, is also
443-12 subject to Title 4, Finance Code [79, Revised Statutes], and in the
443-13 case of conflict between the provisions of this Chapter and any
443-14 such statute, the provisions of such statute control. Failure to
443-15 comply with any applicable statute has only the effect which is
443-16 specified therein.
443-17 SECTION 7.47. Section 26.02(a)(2), Business & Commerce Code,
443-18 is amended to conform to Chapter 1008, Acts of the 75th
443-19 Legislature, Regular Session, 1997, to read as follows:
443-20 (2) "Loan agreement" means one or more promises,
443-21 promissory notes, agreements, undertakings, security agreements,
443-22 deeds of trust or other documents, or commitments, or any
443-23 combination of those actions or documents, pursuant to which a
443-24 financial institution loans or delays repayment of or agrees to
443-25 loan or delay repayment of money, goods, or another thing of value
443-26 or to otherwise extend credit or make a financial accommodation.
444-1 The term does not include a promise, promissory note, agreement,
444-2 undertaking, document, or commitment relating to:
444-3 (A) a credit card or charge card; or
444-4 (B) an open-end account, as that term is defined
444-5 by Section 301.002, Finance Code [Article 1B.002, Title 79, Revised
444-6 Statutes], intended or used primarily for personal, family, or
444-7 household use.
444-8 SECTION 7.48. Article 59.01(2), Code of Criminal Procedure,
444-9 is amended to conform to Chapter 1008, Acts of the 75th
444-10 Legislature, Regular Session, 1997, to read as follows:
444-11 (2) "Contraband" means property of any nature,
444-12 including real, personal, tangible, or intangible, that is:
444-13 (A) used in the commission of:
444-14 (i) any first or second degree felony
444-15 under the Penal Code;
444-16 (ii) any felony under Section 38.04 or
444-17 Chapters 29, 30, 31, 32, 33, 33A, or 35, Penal Code; or
444-18 (iii) any felony under The Securities Act
444-19 (Article 581-1 et seq., Vernon's Texas Civil Statutes);
444-20 (B) used or intended to be used in the
444-21 commission of:
444-22 (i) any felony under Chapter 481, Health
444-23 and Safety Code (Texas Controlled Substances Act);
444-24 (ii) any felony under Chapter 483, Health
444-25 and Safety Code;
444-26 (iii) a felony under Chapter 153, Finance
445-1 Code [Article 350, Revised Statutes];
445-2 (iv) any felony under Chapter 34, Penal
445-3 Code;
445-4 (v) a Class A misdemeanor under Subchapter
445-5 B, Chapter 365, Health and Safety Code, if the defendant has been
445-6 previously convicted twice of an offense under that subchapter; or
445-7 (vi) any felony under Chapter 152, Finance
445-8 Code [The Sale of Checks Act (Article 489d, Vernon's Texas Civil
445-9 Statutes)];
445-10 (C) the proceeds gained from the commission of a
445-11 felony listed in Paragraph (A) or (B) of this subdivision or a
445-12 crime of violence; or
445-13 (D) acquired with proceeds gained from the
445-14 commission of a felony listed in Paragraph (A) or (B) of this
445-15 subdivision or a crime of violence.
445-16 SECTION 7.49. Section 45.201(2), Education Code, is amended
445-17 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
445-18 Session, 1997, to read as follows:
445-19 (2) "Bank" means a state bank authorized and regulated
445-20 under the laws of this state pertaining to banking, in particular
445-21 Subtitle A, Title 3, Finance Code [The Texas Banking Code (Article
445-22 342-101 et seq., Vernon's Texas Civil Statutes)], a national bank,
445-23 a savings and loan association or savings bank authorized and
445-24 regulated by federal law, or a savings and loan association or
445-25 savings bank organized under the laws of this state. The term does
445-26 not include any bank the deposits of which are not insured by the
446-1 Federal Deposit Insurance Corporation.
446-2 SECTION 7.50. Section 31.101, Finance Code, is amended to
446-3 conform to Chapter 769, Acts of the 75th Legislature, Regular
446-4 Session, 1997, to read as follows:
446-5 Sec. 31.101. GENERAL DUTIES OF BANKING COMMISSIONER. The
446-6 banking commissioner shall:
446-7 (1) supervise and regulate, as provided by this
446-8 subtitle, Subtitle F, and Chapter [and Chapters] 12 [and 151],
446-9 state banks, trust companies, and state-licensed foreign bank
446-10 agencies;
446-11 (2) administer and enforce this subtitle and Chapter
446-12 12 in person or through the deputy banking commissioner or an
446-13 examiner, supervisor, conservator, or other agent; and
446-14 (3) administer and enforce laws other than this
446-15 subtitle and Chapter 12 as directed by those other laws.
446-16 SECTION 7.51. Section 274.001(4), Finance Code, is amended
446-17 to conform to Chapter 769, Acts of the 75th Legislature, Regular
446-18 Session, 1997, to read as follows:
446-19 (4) "Fiduciary account" means an account involving the
446-20 exercise of a corporate purpose specified by Section 182.001(b)
446-21 [151.052 or 151.103].
446-22 SECTION 7.52. Section 274.003, Finance Code, is amended to
446-23 conform to Chapter 769, Acts of the 75th Legislature, Regular
446-24 Session, 1997, to read as follows:
446-25 Sec. 274.003. SUBSIDIARY TRUST COMPANY. An entity is a
446-26 subsidiary trust company of a bank holding company if:
447-1 (1) the entity is a:
447-2 (A) corporation incorporated under Subchapter A
447-3 [B], Chapter 182 [151];
447-4 (B) national bank that:
447-5 (i) is organized to conduct a trust
447-6 business and any incidental business or to exercise trust powers;
447-7 and
447-8 (ii) has its main office in this state; or
447-9 (C) state bank that is organized to exercise
447-10 trust powers and has its main office in this state; and
447-11 (2) more than 50 percent of the voting stock of the
447-12 entity is directly or indirectly owned by the bank holding company.
447-13 SECTION 7.53. Section 345.152(b), Finance Code, is amended
447-14 to conform to Section 11, Chapter 1396, Acts of the 75th
447-15 Legislature, Regular Session, 1997, to read as follows:
447-16 (b) The market competitive rate ceiling is:
447-17 (1) the lowest rate determined under Subsection (a)
447-18 except as provided by Subdivision (2) or (3);
447-19 (2) the ceiling provided by Section 303.009(d)
447-20 [303.305(c)] if the rate described by Subdivision (1) is more than
447-21 the ceiling provided by Section 303.009(d) [303.305(c)]; or
447-22 (3) the ceiling provided by Section 303.009(a)
447-23 [303.304(a)] if the rate described by Subdivision (1) is less than
447-24 the ceiling provided by Section 303.009(a) [303.304(a)].
447-25 SECTION 7.54. Section 345.154(a), Finance Code, is amended
447-26 to conform to Section 11, Chapter 1396, Acts of the 75th
448-1 Legislature, Regular Session, 1997, to read as follows:
448-2 (a) The holder of a retail charge agreement that provides
448-3 for a time price differential under this chapter or under Chapter
448-4 303 may change the terms of the agreement under Section 303.103
448-5 [303.403] to implement the market competitive rate ceiling.
448-6 SECTION 7.55. Section 346.201, Finance Code, is amended to
448-7 conform to Section 25, Chapter 1396, Acts of the 75th Legislature,
448-8 Regular Session, 1997, to read as follows:
448-9 Sec. 346.201. INSURANCE; COLLATERAL. In connection with a
448-10 revolving credit account, a creditor may require or take insurance
448-11 or collateral subject to the provisions of Chapter 342 [343],
448-12 relating to insurance and security, as if the revolving credit
448-13 account were a loan contract under that chapter.
448-14 SECTION 7.56. Section 349.004, Finance Code, is amended to
448-15 conform to Section 22, Chapter 1396, Acts of the 75th Legislature,
448-16 Regular Session, 1997, to read as follows:
448-17 Sec. 349.004. LIABILITY RELATED TO CRIMINAL OFFENSE. In
448-18 addition to other applicable penalties, a person who commits an
448-19 offense under Section 349.502 is liable to the obligor for an
448-20 amount equal to:
448-21 (1) the principal of and all charges contracted for or
448-22 collected on each loan made without the authority required by
448-23 Chapter 342[, 343, 344,] or 346; and
448-24 (2) reasonable attorney's fees incurred by the
448-25 obligor.
448-26 SECTION 7.57. Sections 349.502(a) and (c), Finance Code, are
449-1 amended to conform to Section 22, Chapter 1396, Acts of the 75th
449-2 Legislature, Regular Session, 1997, to read as follows:
449-3 (a) A person commits an offense if the person engages in a
449-4 business that is subject to Chapter 342[, 343, 344,] or 346 without
449-5 holding the license or other authorization required under that
449-6 chapter.
449-7 (c) Each loan made without the authority required by Chapter
449-8 342[, 343, 344,] or 346 is a separate offense.
449-9 SECTION 7.58. Section 404.031(g), Government Code, is
449-10 amended to conform to Chapter 1008, Acts of the 75th Legislature,
449-11 Regular Session, 1997, to read as follows:
449-12 (g) In this section, "permitted institution" means a Federal
449-13 Reserve Bank, a Federal Home Loan Bank, a "clearing corporation" as
449-14 defined by Section 8.102[(c)], Business & Commerce Code, the Texas
449-15 Treasury Safekeeping Trust Company, a state depository, and any
449-16 state or nationally chartered bank or trust company that is
449-17 controlled by a bank holding company that controls a state
449-18 depository. Neither the state depository that pledges the
449-19 securities nor any bank that is controlled by a bank holding
449-20 company that controls that state depository may be the permitted
449-21 institution with respect to the particular securities pledged by
449-22 that state depository. A custodian holding in trust securities of
449-23 a state depository under Subsections (e) and (f) may deposit the
449-24 pledged securities with a permitted institution if the permitted
449-25 institution is the third party to the transaction. The securities
449-26 shall be held by the permitted institution to secure funds
450-1 deposited by the comptroller in the state depository pledging the
450-2 securities. On receipt of the securities, the permitted
450-3 institution shall immediately issue to the custodian an advice of
450-4 transaction or other document evidencing the deposit of the
450-5 securities. When the pledged securities held by a custodian are
450-6 deposited, the permitted institution may apply book entry
450-7 procedures to the securities. The records of the permitted
450-8 institution shall at all times reflect the name of the custodian
450-9 depositing the pledged securities. The custodian shall immediately
450-10 issue and deliver to the comptroller controlled trust receipts for
450-11 the pledged securities. The trust receipts shall indicate that the
450-12 custodian has deposited with the permitted institution the pledged
450-13 securities held in trust for the state depository pledging the
450-14 securities. A legal action or proceeding brought by or against the
450-15 state, arising out of or in connection with the duties of the state
450-16 depository, the custodian, or other permitted institution under
450-17 this subchapter must be brought and maintained in state district
450-18 court in Travis County. In this section, "control" and "bank
450-19 holding company" have the meanings assigned by Section 31.002(a),
450-20 Finance Code [Article 2, Chapter I, The Texas Banking Code (Article
450-21 342-102, Vernon's Texas Civil Statutes)].
450-22 SECTION 7.59. Section 411.092(a), Government Code, is
450-23 amended to conform to Chapter 1008, Acts of the 75th Legislature,
450-24 Regular Session, 1997, to read as follows:
450-25 (a) The banking commissioner is entitled to obtain from the
450-26 department criminal history record information maintained by the
451-1 department that relates to a person who is:
451-2 (1) an applicant for a license, charter, or other
451-3 authority granted or issued by the banking commissioner under:
451-4 (A) Subtitle A, Title 3, Finance Code [The Texas
451-5 Banking Code (Article 342-101 et seq., Vernon's Texas Civil
451-6 Statutes)], or any successor to that law; or
451-7 (B) Chapter 152, 153, or 154, Finance Code
451-8 [Article 350, Revised Statutes;]
451-9 [(C) The Sale of Checks Act (Article 489d,
451-10 Vernon's Texas Civil Statutes); or]
451-11 [(D) Chapter 512, Acts of the 54th Legislature,
451-12 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
451-13 Statutes)]; or
451-14 (2) a principal of an applicant under Subdivision (1).
451-15 SECTION 7.60. Section 411.095(a), Government Code, is
451-16 amended to conform to Chapter 1008, Acts of the 75th Legislature,
451-17 Regular Session, 1997, to read as follows:
451-18 (a) The consumer credit commissioner is entitled to obtain
451-19 from the department criminal history record information that
451-20 relates to a person who is:
451-21 (1) an applicant for a license under Chapter 371,
451-22 Finance Code [the Texas Pawnshop Act (Article 5069-51.01 et seq.,
451-23 Vernon's Texas Civil Statutes)]; or
451-24 (2) the holder of a license under that Act.
451-25 SECTION 7.61. Section 603.009(b), Government Code, is
451-26 repealed to conform to Chapter 1008, Acts of the 75th Legislature,
452-1 Regular Session, 1997.
452-2 SECTION 7.62. Section 2001.223, Government Code, is amended
452-3 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
452-4 Session, 1997, to read as follows:
452-5 Sec. 2001.223. EXCEPTIONS FROM DECLARATORY JUDGMENT, COURT
452-6 ENFORCEMENT, AND CONTESTED CASE PROVISIONS. Section 2001.038 and
452-7 Subchapters C through H do not apply to:
452-8 (1) the granting, payment, denial, or withdrawal of
452-9 financial or medical assistance or benefits under service programs
452-10 of the Texas Department of Human Services;
452-11 (2) action by the Banking Commissioner or the Finance
452-12 Commission of Texas regarding the issuance of a state bank or state
452-13 trust company charter for a bank or trust company to assume the
452-14 assets and liabilities of a financial institution that the
452-15 commissioner considers to be in hazardous condition as defined by
452-16 Section 31.002(a) or 181.002(a), Finance Code [1.002(a), Texas
452-17 Banking Act (Article 342-1.002, Vernon's Texas Civil Statutes), or
452-18 Section 1.002(a), Texas Trust Company Act], as applicable;
452-19 (3) a hearing or interview conducted by the Board of
452-20 Pardons and Paroles or the pardons and paroles division of the
452-21 Texas Department of Criminal Justice relating to the grant,
452-22 rescission, or revocation of parole or other form of administrative
452-23 release; or
452-24 (4) the suspension, revocation, or termination of the
452-25 certification of a breath analysis operator or technical supervisor
452-26 under the rules of the Department of Public Safety.
453-1 SECTION 7.63. Section 2257.002, Government Code, is amended
453-2 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
453-3 Session, 1997, to read as follows:
453-4 Sec. 2257.002. DEFINITIONS. In this chapter:
453-5 (1) "Bank holding company" has the meaning assigned by
453-6 Section 31.002(a), Finance Code [1.002(a), Texas Banking Act].
453-7 (2) [(3)] "Control" has the meaning assigned by
453-8 Section 31.002(a), Finance Code [1.002(a), Texas Banking Act].
453-9 (3) [(4)] "Deposit of public funds" means public funds
453-10 of a public entity that:
453-11 (A) the comptroller does not manage under
453-12 Chapter 404; and
453-13 (B) are held as a demand or time deposit by a
453-14 depository institution expressly authorized by law to accept a
453-15 public entity's demand or time deposit.
453-16 (4) [(5)] "Eligible security" means:
453-17 (A) a surety bond;
453-18 (B) an investment security;
453-19 (C) an ownership or beneficial interest in an
453-20 investment security, other than an option contract to purchase or
453-21 sell an investment security;
453-22 (D) a fixed-rate collateralized mortgage
453-23 obligation that has an expected weighted average life of 10 years
453-24 or less and does not constitute a high-risk mortgage security; or
453-25 (E) a floating-rate collateralized mortgage
453-26 obligation that does not constitute a high-risk mortgage security.
454-1 (5) [(6)] "Investment security" means:
454-2 (A) an obligation that in the opinion of the
454-3 attorney general of the United States is a general obligation of
454-4 the United States and backed by its full faith and credit;
454-5 (B) a general or special obligation issued by a
454-6 public agency that is payable from taxes, revenues, or a
454-7 combination of taxes and revenues; or
454-8 (C) a security in which a public entity may
454-9 invest under Subchapter A, Chapter 2256.
454-10 (6) [(7)] "Permitted institution" means:
454-11 (A) a Federal Reserve Bank;
454-12 (B) a clearing corporation, as defined by
454-13 Section 8.102[(c)], Business & Commerce Code;
454-14 (C) a bank eligible to be a custodian under
454-15 Section 2257.041; or
454-16 (D) a state or nationally chartered bank that is
454-17 controlled by a bank holding company that controls a bank eligible
454-18 to be a custodian under Section 2257.041.
454-19 (7) [(8)] "Public agency" means a state or a political
454-20 or governmental entity, agency, instrumentality, or subdivision of
454-21 a state, including a municipality, an institution of higher
454-22 education, as defined by Section 61.003, Education Code, a junior
454-23 college, a district created under Article XVI, Section 59, of the
454-24 Texas Constitution, and a public hospital.
454-25 (8) [(9)] "Public entity" means a public agency in
454-26 this state, but does not include an institution of higher
455-1 education, as defined by Section 61.003, Education Code.
455-2 (9) [(10)] "State agency" means a public entity that:
455-3 (A) has authority that is not limited to a
455-4 geographic portion of the state; and
455-5 (B) was created by the constitution or a
455-6 statute.
455-7 (10) [(11)] "Trust receipt" means evidence of receipt,
455-8 identification, and recording, including:
455-9 (A) a physical controlled trust receipt; or
455-10 (B) a written or electronically transmitted
455-11 advice of transaction.
455-12 SECTION 7.64. Section 242.098(b), Health and Safety Code, is
455-13 amended to conform to Chapter 1008, Acts of the 75th Legislature,
455-14 Regular Session, 1997, to read as follows:
455-15 (b) Interest on unreimbursed amounts begins to accrue on the
455-16 date on which the funds were disbursed to the home. The rate of
455-17 interest is the rate determined under Section 304.003, Finance Code
455-18 [Article 1E.003, Title 79, Revised Statutes], to be applicable to
455-19 judgments rendered during the month in which the money was
455-20 disbursed to the home.
455-21 SECTION 7.65. Section 712.042, Health and Safety Code, is
455-22 amended to conform to Chapter 1008, Acts of the 75th Legislature,
455-23 Regular Session, 1997, to read as follows:
455-24 Sec. 712.042. FEES. [(a)] On filing a statement of funds
455-25 under Section 712.041, a corporation shall pay the commissioner a
455-26 reasonable and necessary fee set annually by the commissioner to
456-1 defray the cost of administering this chapter.
456-2 [(b) The banking department shall receive and disburse
456-3 revenues collected under this chapter in accordance with Section
456-4 2.006, Texas Banking Act.]
456-5 SECTION 7.66. Section 712.0441(h), Health and Safety Code,
456-6 is amended to conform to Chapter 1008, Acts of the 75th
456-7 Legislature, Regular Session, 1997, to read as follows:
456-8 (h) If a fund is misappropriated by its trustee or is not
456-9 otherwise handled as required by this chapter, the commissioner may
456-10 take action against the trustee as provided in Chapter 185, Finance
456-11 Code [6, Texas Trust Company Act].
456-12 SECTION 7.67. Section 1, Article 9.05, Insurance Code, is
456-13 amended to conform to Chapter 1008, Acts of the 75th Legislature,
456-14 Regular Session, 1997, to read as follows:
456-15 Sec. 1. Any corporation heretofore chartered under the
456-16 provisions of Article 9.03 of this Act, or its antecedents, Article
456-17 9.01, Texas Insurance Code, or Chapter 40, Acts, 41st Legislature,
456-18 1929 (codified as Article 1302a, Vernon's Texas Civil Statutes),
456-19 having as one of its powers "to act as trustee under any lawful
456-20 trust committed to it by contract or will, appointment by any court
456-21 having jurisdiction of the subject matter, as trustee, receiver or
456-22 guardian and as executor or guardian under the terms of any will
456-23 and as any administrator of the estates of decedents under the
456-24 appointment of the court" may transfer and assign to a state bank
456-25 created under the provisions of Subtitle A, Title 3, Finance Code,
456-26 [the Texas Banking Act (Article 342-1.001 et seq., Vernon's Texas
457-1 Civil Statutes)] or a predecessor of that law [Act], as amended, or
457-2 to a state trust company created under the provisions of Chapter
457-3 181, Finance Code, [the Texas Trust Company Act] or a predecessor
457-4 of that law [Act], as amended, all of its fiduciary business in
457-5 which such corporation is named or acting as guardian, trustee,
457-6 executor, administrator or in any other fiduciary capacity,
457-7 whereupon said state bank or trust company shall, without the
457-8 necessity of any judicial action in the courts of the State of
457-9 Texas or any action by the creator or beneficiary of such trust or
457-10 estate, continue the guardianship, trusteeship, executorship,
457-11 administration or other fiduciary relationship, and perform all of
457-12 the duties and obligations of such corporation, and exercise all of
457-13 the powers and authority relative thereto now being exercised by
457-14 such corporation, and provided further that the transfer or
457-15 assignment by such corporation of such fiduciary business being
457-16 conducted by it under the powers granted in its original charter,
457-17 as amended, shall not constitute or be deemed a resignation or
457-18 refusal to act upon the part of such corporation as to any such
457-19 guardianship, trust, executorship, administration, or any other
457-20 fiduciary capacity; and provided further that the naming or
457-21 designation by a testator or the creator of a living trust of such
457-22 corporation to act as trustee, guardian, executor, or in any other
457-23 fiduciary capacity, shall be considered the naming or designation
457-24 of the state bank or trust company and authorizing such state bank
457-25 or trust company to act in said fiduciary capacity. All transfers
457-26 and assignments of fiduciary business by such corporations to a
458-1 state bank or trust company consistent with the provisions of this
458-2 Act are hereby validated.
458-3 SECTION 7.68. Article 9.50, Insurance Code, is amended to
458-4 conform to Chapter 1008, Acts of the 75th Legislature, Regular
458-5 Session, 1997, to read as follows:
458-6 Art. 9.50. HOME SOLICITATION TRANSACTIONS ACT AS CONSUMER
458-7 PROTECTION LAW. Chapter 39, Business & Commerce Code [Chapter 246,
458-8 Acts of the 63rd Legislature, Regular Session, 1973 (Article
458-9 5069-13.01 through Article 5069-13.06, Vernon's Texas Civil
458-10 Statutes)], shall be deemed and considered a consumer protection
458-11 law when construed in connection with any policy of title insurance
458-12 issued in this state.
458-13 SECTION 7.69. Section 1C(a), Article 21.07, Insurance Code,
458-14 is amended to conform to Chapter 1008, Acts of the 75th
458-15 Legislature, Regular Session, 1997, to read as follows:
458-16 (a) In this article, "bank" means a national banking
458-17 association organized and existing under the National Bank Acts (12
458-18 U.S.C. Section 21 et seq.), a state bank organized and existing
458-19 under Subtitle A, Title 3, Finance Code [the Texas Banking Act
458-20 (Article 342-1.001 et seq., Vernon's Texas Civil Statutes)], a
458-21 state savings bank organized and existing under Subtitle C, Title
458-22 3, Finance Code [the Texas Savings Bank Act (Article 489e, Vernon's
458-23 Texas Civil Statutes)], a bank branch, or a bank operating
458-24 subsidiary, as defined by state or federal law, that is located and
458-25 doing business in this state in a place with a population of 5,000
458-26 or less.
459-1 SECTION 7.70. Section 1C, Chapter 213, Acts of the 54th
459-2 Legislature, Regular Session, 1955 (Article 21.07-1, Vernon's Texas
459-3 Insurance Code), is amended to conform to Chapter 1008, Acts of the
459-4 75th Legislature, Regular Session, 1997, to read as follows:
459-5 Sec. 1C. DEFINITION. In this Act, "bank" means a national
459-6 banking association organized and existing under the National Bank
459-7 Acts (12 U.S.C. Section 21 et seq.), a state bank organized and
459-8 existing under Subtitle A, Title 3, Finance Code [the Texas Banking
459-9 Act (Article 342-1.001 et seq., Vernon's Texas Civil Statutes)], a
459-10 state savings bank organized and existing under Subtitle C, Title
459-11 3, Finance Code [the Texas Savings Bank Act (Article 489e, Vernon's
459-12 Texas Civil Statutes)], a bank branch, or a bank operating
459-13 subsidiary, as defined by state or federal law, that is located and
459-14 doing business in this state in a place with a population of 5,000
459-15 or less. A bank operating subsidiary located and doing business in
459-16 a place with a population of 5,000 or less may own a licensed
459-17 corporate agent that is also located and doing business in a place
459-18 with a population of 5,000 or less, and is subject to Section 3(b)
459-19 of this Act.
459-20 SECTION 7.71. Section 5(h), Managing General Agents'
459-21 Licensing Act (Article 21.07-3, Vernon's Texas Insurance Code), is
459-22 amended to conform to Chapter 1008, Acts of the 75th Legislature,
459-23 Regular Session, 1997, to read as follows:
459-24 (h) Except as provided herein, a licensee that qualifies
459-25 under this section may not be owned in whole or in part, either
459-26 directly or indirectly, by a state bank, national bank, or bank
460-1 holding company, as those terms are defined in Section 31.002,
460-2 Finance Code [Article 2, Chapter I, The Texas Banking Code of 1943,
460-3 as amended (Article 342-102, Vernon's Texas Civil Statutes)], or by
460-4 a subsidiary of one of those financial institutions. This
460-5 subsection shall not apply to any licensee that on June 1, 1981, is
460-6 owned by a state bank, national bank, or bank holding company or by
460-7 a subsidiary of one of those financial institutions so long as
460-8 ownership continues; nor shall this subsection apply to a licensee
460-9 for which on July 15, 1981, a state bank, national bank, or bank
460-10 holding company, or a subsidiary of one of those financial
460-11 institutions has, pursuant to the applicable law, filed an
460-12 application for prior approval of ownership or other notice of
460-13 ownership with the governmental agency having regulatory authority
460-14 over the financial institution or subsidiary. Before renewing a
460-15 license issued under this section, the commissioner shall require
460-16 the licensee to certify compliance with or exemption from this
460-17 subsection.
460-18 SECTION 7.72. Sections 3(d) and (g), Article 21.14,
460-19 Insurance Code, are amended to conform to Chapter 1008, Acts of the
460-20 75th Legislature, Regular Session, 1997, to read as follows:
460-21 (d) The department shall issue a license to a bank if the
460-22 department finds that:
460-23 (1) the bank is a national banking association
460-24 organized and existing under the National Bank Acts (12 U.S.C.
460-25 Section 21 et seq.), a state bank organized and existing under
460-26 Subtitle A, Title 3, Finance Code [the Texas Banking Act (Article
461-1 342-1.001 et seq., Vernon's Texas Civil Statutes)], a state savings
461-2 bank organized and existing under Subtitle C, Title 3, Finance Code
461-3 [the Texas Savings Bank Act (Article 489e, Vernon's Texas Civil
461-4 Statutes)], or a bank operating subsidiary, as defined by state or
461-5 federal law, that is located and doing business in this state in a
461-6 place with a population of 5,000 or less;
461-7 (2) at least one officer of the bank and each
461-8 individual who will be performing any acts of an agent for the bank
461-9 are individually licensed under this Article; and
461-10 (3) the bank will have the ability to pay any sums up
461-11 to $25,000 that it might become legally obligated to pay on account
461-12 of any claim made against it by a customer and caused by a
461-13 negligent act, error, or omission of the bank or any person for
461-14 whose acts the bank is legally liable in the conduct of its
461-15 business as a local recording agent. The term "customer" means any
461-16 person, firm, or corporation to whom the bank sells or attempts to
461-17 sell a policy of insurance or from whom the bank accepts an
461-18 application for insurance. That ability shall be proven through:
461-19 (A) an errors and omissions policy insuring the
461-20 bank against errors and omissions, in at least the sum of $100,000
461-21 with not more than a $10,000 deductible feature, or the sum of at
461-22 least $300,000 with not more than a $25,000 deductible feature,
461-23 issued by an insurance company licensed to do business in this
461-24 state or, if a policy cannot be obtained from a company licensed to
461-25 do business in this state, a policy issued by a company not
461-26 licensed to do business in this state, on filing an affidavit with
462-1 the department stating the inability to obtain coverage and
462-2 receiving the department's approval;
462-3 (B) a bond executed by the bank as principal and
462-4 a surety company authorized to do business in this state, as
462-5 surety, in the principal sum of $25,000, payable to the department
462-6 for the use and benefit of customers of the bank, conditioned that
462-7 the bank shall pay any final judgment recovered against it by a
462-8 customer; or
462-9 (C) a deposit with the comptroller of cash or
462-10 securities of the class authorized by Articles 2.08 and 2.10 of
462-11 this code, with a fair market value of $25,000. The comptroller
462-12 shall accept and receive the deposit and hold it exclusively for
462-13 the protection of a customer of the bank who recovers a final
462-14 judgment against the bank. The deposit may be withdrawn only on
462-15 filing with the department satisfactory evidence that the bank has
462-16 withdrawn from the business of insurance and has no unsecured
462-17 liabilities outstanding or that the bank has provided for the
462-18 protection of its customers by furnishing an errors and omissions
462-19 policy or a bond as provided by this subsection. Securities so
462-20 deposited may be exchanged from time to time for other qualified
462-21 securities.
462-22 A binding commitment to issue such a policy or bond, or the
462-23 tender of applicable securities, is sufficient in connection with
462-24 an application for license.
462-25 Nothing in this subsection shall be construed to permit an
462-26 unlicensed employee or agent of a bank to perform any act of a
463-1 local recording agent without obtaining a local recording agent's
463-2 license. The department may not require a bank to take the
463-3 examination provided by Section 6 of this Article.
463-4 A bank licensed as an agent under this Article may have
463-5 additional offices from which the business of insurance is
463-6 conducted only in a place with a population of 5,000 or less and
463-7 must comply with the department's regulations regarding additional
463-8 offices.
463-9 A bank licensed as an agent under this article must maintain
463-10 its insurance records, including all files relating to and
463-11 reflecting customer complaints, separate from records relating to
463-12 banking transactions of the bank.
463-13 If a bank that holds a local recording agent's license does
463-14 not maintain the qualifications necessary to obtain a license, the
463-15 license of that bank to act as a local recording agent shall be
463-16 canceled or denied in accordance with Sections 16 and 18 of this
463-17 article.
463-18 Each bank licensed as a local recording agent shall file
463-19 under oath with its application for license renewal a list of the
463-20 name and address of each individual who will be acting as an agent
463-21 on behalf of the bank and of each officer and director of the bank,
463-22 as defined by Article 21.02 of this code, and other biographical
463-23 information as required by the department.
463-24 Each bank licensed as a local recording agent shall notify
463-25 the department of any change in its officers and directors and any
463-26 change in other persons who will be performing any acts of an
464-1 agent, as defined by Article 21.02 of this code, and submit
464-2 biographical information on those officers, directors, and persons
464-3 as required by the department not later than the 30th day after the
464-4 date on which the change takes effect.
464-5 The term "firm," as that term applies to local recording
464-6 agents in Sections 2, 12, and 16 of this article, includes
464-7 corporations and banks.
464-8 (g) In this article, the term "bank" means a national
464-9 banking association organized and existing under the National Bank
464-10 Acts (12 U.S.C. Section 21 et seq.), a state bank organized and
464-11 existing under Subtitle A, Title 3, Finance Code [the Texas Banking
464-12 Act (Article 342-1.001 et seq., Vernon's Texas Civil Statutes)], a
464-13 state savings bank organized and existing under Subtitle C, Title
464-14 3, Finance Code [the Texas Savings Bank Act (Article 489e, Vernon's
464-15 Texas Civil Statutes)], a bank branch, or a bank operating
464-16 subsidiary, as defined by state or federal law, that is located and
464-17 doing business in this state in a place with a population of 5,000
464-18 or less. A bank operating subsidiary, as defined by state or
464-19 federal law, located and doing business in a place in this state
464-20 with a population of 5,000 or less may own a licensed corporate
464-21 agent that is also located and doing business in a place with a
464-22 population of 5,000 or less, and is subject to Section 3a(5) of
464-23 this Article.
464-24 SECTION 7.73. Article 24.03(g), Insurance Code, is amended
464-25 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
464-26 Session, 1997, to read as follows:
465-1 (g) Any person holding a license under Chapter 342, Finance
465-2 Code [3A, Title 79, Revised Statutes], on the effective date of
465-3 this chapter is required only to pay the license fee required under
465-4 this article and is not required to pay the investigation fee
465-5 required by Section (a) of this article.
465-6 SECTION 7.74. Article 24.11(h), Insurance Code, is amended
465-7 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
465-8 Session, 1997, to read as follows:
465-9 (h) Those additions may be accomplished by a memorandum of
465-10 agreement between the agent and the insured, if before the first
465-11 scheduled payment date of the amended transaction the premium
465-12 finance company gives to the insured the following information in
465-13 writing:
465-14 (1) the amount of the premium increase;
465-15 (2) the down payment on increase;
465-16 (3) the principal amount of increase;
465-17 (4) the total amount of finance charge on increase;
465-18 (5) the total of additional balance due;
465-19 (6) the outstanding balance of original agreement;
465-20 (7) the consolidated agreement balance;
465-21 (8) the annual percentage rate of finance charge on
465-22 additional balance due;
465-23 (9) the revised schedule of payments;
465-24 (10) the amount or method of computing the amount of
465-25 any default, deferment, or similar charges authorized in Chapter
465-26 342, Finance Code [3A, Title 79, Revised Statutes], payable in the
466-1 event of late payments; and
466-2 (11) identification of the method of computing any
466-3 unearned portion of the finance charge in the event of prepayment
466-4 of the obligation.
466-5 SECTION 7.75. Article 24.15, Insurance Code, is amended to
466-6 conform to Chapter 1008, Acts of the 75th Legislature, Regular
466-7 Session, 1997, to read as follows:
466-8 Art. 24.15. SERVICES CHARGES; LIMITATION OF CHARGES;
466-9 COMPUTATION. A premium finance company may not take or receive
466-10 from an insured a greater rate or charge than is provided by
466-11 Chapter 342, Finance Code [3A, Title 79, Revised Statutes]. Those
466-12 charges begin on the date from which the insurance company requires
466-13 payment of the premium and payment was made to the insurance
466-14 company for the financed policy or on the effective date of the
466-15 policy, whichever is earlier. The finance charge shall be computed
466-16 on the balance of the premiums due after subtracting the down
466-17 payment made by the insured in accordance with the premium finance
466-18 agreement. On insurance premium finance agreements made under this
466-19 chapter, no insurance charges or any other charge or fee, except
466-20 those authorized by this chapter, are permitted.
466-21 SECTION 7.76. Article 24.16, Insurance Code, is amended to
466-22 conform to Chapter 1008, Acts of the 75th Legislature, Regular
466-23 Session, 1997, to read as follows:
466-24 Art. 24.16. PREPAYMENT; REFUND. Notwithstanding the
466-25 provisions of any premium finance agreement to the contrary, any
466-26 insured may pay it in full at any time before the maturity of the
467-1 final installment of the balance of the agreement, and if the
467-2 insured does so and the agreement included an amount for a charge,
467-3 the insured shall receive for the prepayment either by cash or by
467-4 renewal a refund credit in accordance with the provisions for
467-5 refunds contained in Subchapter H, Chapter 342, Finance Code [3A,
467-6 Title 79, Revised Statutes], and the regulations issued under that
467-7 article. Where the amount of the credit for anticipation of
467-8 payments is less than $1, no refund need be made.
467-9 SECTION 7.77. Article 24.17(a), Insurance Code, is amended
467-10 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
467-11 Session, 1997, to read as follows:
467-12 (a) A premium finance agreement may provide for the payment
467-13 of a default charge by the insured as provided in Section 342.203,
467-14 Finance Code [Article 3A.303, Title 79, Revised Statutes], the
467-15 Insurance Code, and the regulations issued under those statutes.
467-16 SECTION 7.78. Article 24.20, Insurance Code, is amended to
467-17 conform to Chapter 1008, Acts of the 75th Legislature, Regular
467-18 Session, 1997, to read as follows:
467-19 Art. 24.20. AUTHORITY OF LICENSED LOCAL RECORDING AGENTS TO
467-20 CHARGE INTEREST TO CERTAIN PURCHASERS OF INSURANCE.
467-21 Notwithstanding any other provision of law, any person,
467-22 partnership, or corporation duly licensed as a local recording
467-23 agent under Article 21.14, Insurance Code, as amended, may enter
467-24 into or establish a written agreement with any purchaser of
467-25 insurance from the agent providing for the payment of interest to
467-26 the agent in an amount not to exceed the greater of a rate allowed
468-1 by Chapter 303, Finance Code [1D, Title 79, Revised Statutes], or
468-2 the rate of one percent a month, on any amount due and owing to the
468-3 agent for insurance purchased by the purchaser. In those instances
468-4 the claim or defense of usury is prohibited.
468-5 SECTION 7.79. Sections 105.001(13) and (14), Local
468-6 Government Code, are amended to conform to Chapter 1008, Acts of
468-7 the 75th Legislature, Regular Session, 1997, to read as follows:
468-8 (13) "State bank" has the meaning assigned by Section
468-9 31.002(a), Finance Code [1.002(a), Texas Banking Act].
468-10 (14) "State credit union" means a credit union
468-11 organized under Subtitle D, Title 3, Finance Code [the Texas Credit
468-12 Union Act (Article 2461-1.01 et seq., Vernon's Texas Civil
468-13 Statutes)].
468-14 SECTION 7.80. Section 143.1215(c), Local Government Code, is
468-15 amended to conform to Chapter 1008, Acts of the 75th Legislature,
468-16 Regular Session, 1997, to read as follows:
468-17 (c) Interest under Subsection (b) accrues beginning on the
468-18 date of the fire fighter's or police officer's reinstatement at a
468-19 rate equal to three percent plus the rate for court judgments under
468-20 Chapter 304, Finance Code [1E, Title 79, Revised Statutes], that is
468-21 in effect on the date of the person's reinstatement.
468-22 SECTION 7.81. Section 211.0035, Local Government Code, is
468-23 amended to conform to Chapter 1008, Acts of the 75th Legislature,
468-24 Regular Session, 1997, to read as follows:
468-25 Sec. 211.0035. ZONING REGULATIONS AND DISTRICT BOUNDARIES
468-26 APPLICABLE TO PAWNSHOPS. (a) In this section, "pawnshop" has the
469-1 meaning assigned by Section 371.003, Finance Code [2, Texas
469-2 Pawnshop Act (Article 5069-51.02, Vernon's Texas Civil Statutes)].
469-3 (b) For the purposes of zoning regulation and determination
469-4 of zoning district boundaries, the governing body of a municipality
469-5 shall designate pawnshops that have been licensed to transact
469-6 business by the Consumer Credit Commissioner under Chapter 371,
469-7 Finance Code, [the Texas Pawnshop Act (Article 5069-51.01 et seq.,
469-8 Vernon's Texas Civil Statutes)] as a permitted use in one or more
469-9 zoning classifications.
469-10 (c) The governing body of a municipality may not impose a
469-11 specific use permit requirement or any requirement similar in
469-12 effect to a specific use permit requirement on a pawnshop that has
469-13 been licensed to transact business by the Consumer Credit
469-14 Commissioner under Chapter 371, Finance Code [the Texas Pawnshop
469-15 Act (Article 5069-51.01 et seq., Vernon's Texas Civil Statutes)].
469-16 SECTION 7.82. Section 395.025(d), Local Government Code, is
469-17 amended to conform to Chapter 1008, Acts of the 75th Legislature,
469-18 Regular Session, 1997, to read as follows:
469-19 (d) Any refund shall bear interest calculated from the date
469-20 of collection to the date of refund at the statutory rate as set
469-21 forth in Section 302.002, Finance Code [Article 1C.002, Title 79,
469-22 Revised Statutes], or its successor statute.
469-23 SECTION 7.83. Section 32.35(a)(5), Penal Code, is amended to
469-24 conform to Chapter 1008, Acts of the 75th Legislature, Regular
469-25 Session, 1997, to read as follows:
469-26 (5) "Creditor" means a person licensed under Chapter
470-1 342, Finance Code [3A, Subtitle 2, Title 79, Revised Statutes], a
470-2 bank, savings and loan association, credit union, or other
470-3 regulated financial institution that lends money or otherwise
470-4 extends credit to a cardholder through a credit card and that
470-5 authorizes other persons to honor the credit card.
470-6 SECTION 7.84. Section 41.006(a), Property Code, is amended
470-7 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
470-8 Session, 1997, to read as follows:
470-9 (a) Except as provided by Subsection (c), any sale or
470-10 purported sale in whole or in part of a homestead at a fixed
470-11 purchase price that is less than the appraised fair market value of
470-12 the property at the time of the sale or purported sale, and in
470-13 connection with which the buyer of the property executes a lease of
470-14 the property to the seller at lease payments that exceed the fair
470-15 rental value of the property, is considered to be a loan with all
470-16 payments made from the seller to the buyer in excess of the sales
470-17 price considered to be interest subject to Title 4, Finance Code
470-18 [79, Revised Statutes (Article 5069-1.01 et seq., Vernon's Texas
470-19 Civil Statutes)].
470-20 SECTION 7.85. Section 73.003(c), Property Code, is amended
470-21 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
470-22 Session, 1997, to read as follows:
470-23 (c) This section does not affect the provisions of
470-24 Subchapter B, Chapter 59, Finance Code [8, Texas Banking Act
470-25 (Article 342-8.101 et seq., Vernon's Texas Civil Statutes)].
470-26 SECTION 7.86. Section 74.101(a), Property Code, is amended
471-1 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
471-2 Session, 1997, to read as follows:
471-3 (a) Each holder who on June 30 holds property that is
471-4 presumed abandoned under Chapter 72, 73, or 75 of this code [,] or
471-5 under Chapter 154, Finance Code [512, Acts of the 54th Legislature,
471-6 1955 (Article 548b, Vernon's Texas Civil Statutes)], shall file a
471-7 report of that property on or before the following November 1. The
471-8 comptroller may require the report to be in a particular format,
471-9 including a format that can be read by a computer.
471-10 SECTION 7.87. Section 221.024(a), Property Code, is amended
471-11 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
471-12 Session, 1997, to read as follows:
471-13 (a) The commission may prescribe and publish forms and adopt
471-14 rules necessary to carry out the provisions of this chapter and may
471-15 suspend or revoke the registration of any seller if, after notice
471-16 and hearing, the commission determines that a seller has materially
471-17 violated this chapter, the Deceptive Trade Practices-Consumer
471-18 Protection Act (Subchapter E, Chapter 17, Business & Commerce
471-19 Code), or the Contest and Gift Giveaway Act (Chapter 40, Business
471-20 & Commerce Code [S.B. No. 1695, Acts of the 71st Legislature,
471-21 1989]). The commission may bring suit in a district court of
471-22 Travis County, Texas, to enjoin a violation of this Act or for any
471-23 other relief as the court may deem appropriate.
471-24 SECTION 7.88. Section 11.02(b), Tax Code, is amended to
471-25 conform to Chapter 1008, Acts of the 75th Legislature, Regular
471-26 Session, 1997, to read as follows:
472-1 (b) Intangible [property of a transportation business listed
472-2 in Subchapter A, Chapter 24 of this code, and intangible] property
472-3 governed by Article 4.01, Insurance Code, or by Section 89.003,
472-4 Finance Code, is [11.09, Texas Savings and Loan Act, are] taxable
472-5 as provided by law, unless exempt by law, if this state has
472-6 jurisdiction to tax those intangibles.
472-7 SECTION 7.89. Section 21.08(b), Tax Code, is amended to
472-8 conform to Chapter 1008, Acts of the 75th Legislature, Regular
472-9 Session, 1997, to read as follows:
472-10 (b) The taxable situs of intangible property owned by a
472-11 savings and loan association is determined as provided by Section
472-12 89.003, Finance Code [11.09, Texas Savings and Loan Act].
472-13 SECTION 7.90. Section 23.16, Tax Code, is amended to conform
472-14 to Chapter 1008, Acts of the 75th Legislature, Regular Session,
472-15 1997, to read as follows:
472-16 Sec. 23.16. INTANGIBLES OF A SAVINGS AND LOAN ASSOCIATION.
472-17 Intangible property owned by a savings and loan association is
472-18 appraised as provided by Section 89.003, Finance Code [11.09, Texas
472-19 Savings and Loan Act].
472-20 SECTION 7.91. Sections 32.065(d) and (e), Tax Code, are
472-21 amended to conform to Chapter 1008, Acts of the 75th Legislature,
472-22 Regular Session, 1997, to read as follows:
472-23 (d) Chapters 342 [3A] and 346, Finance Code, [15] and
472-24 Section 302.102, Finance Code [Article 1C.102, Title 79, Revised
472-25 Statutes], do not apply to a transaction covered by this section.
472-26 The transferee of a tax lien under this section is not required to
473-1 obtain a license under Title 4, Finance Code [79, Revised Statutes
473-2 (Article 5069-1.01 et seq., Vernon's Texas Civil Statutes)].
473-3 (e) If in a contract under this section a person contracts
473-4 for, charges, or receives a rate or amount of interest that exceeds
473-5 the rate or amount allowed by this section, the amount of the
473-6 penalty for which the person is obligated is determined in the
473-7 manner provided by Chapter 349, Finance Code [8, Title 79, Revised
473-8 Statutes (Article 5069-8.01 et seq., Vernon's Texas Civil
473-9 Statutes)].
473-10 SECTION 7.92. Section 171.001(b)(1), Tax Code, is amended to
473-11 conform to Chapter 1008, Acts of the 75th Legislature, Regular
473-12 Session, 1997, to read as follows:
473-13 (1) "Banking corporation" means each state, national,
473-14 domestic, or foreign bank, including a limited banking association,
473-15 as defined by Section 31.002(a), Finance Code [1.002(a), Texas
473-16 Banking Act], and each bank organized under Section 25(a), Federal
473-17 Reserve Act (12 U.S.C. Secs. 611-631) (edge corporations), but does
473-18 not include a bank holding company as that term is defined by
473-19 Section 2, Bank Holding Company Act of 1956 (12 U.S.C. Sec. 1841).
473-20 SECTION 7.93. Section 171.077, Tax Code, is amended to
473-21 conform to Chapter 1008, Acts of the 75th Legislature, Regular
473-22 Session, 1997, to read as follows:
473-23 Sec. 171.077. EXEMPTION--CREDIT UNION. A credit union
473-24 incorporated under Subtitle D, Title 3, Finance Code, [the Texas
473-25 Credit Union Act (Article 2461-1.01 et seq., Vernon's Texas Civil
473-26 Statutes)] is exempted from the franchise tax.
474-1 SECTION 7.94. Section 171.1031(c), Tax Code, is amended to
474-2 conform to Chapter 1008, Acts of the 75th Legislature, Regular
474-3 Session, 1997, to read as follows:
474-4 (c) To the extent that this subsection is not preempted by
474-5 federal law, the Texas Department of Banking is required to appoint
474-6 a conservator under Subchapter B, Chapter 35, Finance Code [6,
474-7 Texas Banking Act], to pay the franchise tax of any banking
474-8 corporation certified by the Comptroller as being delinquent in the
474-9 payment of its franchise tax.
474-10 SECTION 7.95. Section 171.317(a), Tax Code, is amended to
474-11 conform to Chapter 1008, Acts of the 75th Legislature, Regular
474-12 Session, 1997, to read as follows:
474-13 (a) Except as prohibited by Subtitle B, Title 3, Finance
474-14 Code [the Texas Savings and Loan Act (Article 852a, Vernon's Texas
474-15 Civil Statutes)], the Savings and Loan Commissioner shall revoke
474-16 the charter of a savings and loan association that the comptroller
474-17 certifies is delinquent in the payment of the tax imposed under
474-18 this chapter.
474-19 SECTION 7.96. Section 26.342(7), Water Code, is amended to
474-20 conform to Chapter 1008, Acts of the 75th Legislature, Regular
474-21 Session, 1997, to read as follows:
474-22 (7) "Lender" means:
474-23 (A) a state or national bank;
474-24 (B) a state or federal savings and loan
474-25 association or savings bank;
474-26 (C) a credit union;
475-1 (D) a state or federal agency that customarily
475-2 provides financing; or
475-3 (E) an entity that is registered with the Office
475-4 of Consumer Credit Commissioner pursuant to Chapter 348, Finance
475-5 Code [7, Title 79, Revised Statutes (Article 5069-7.01 et seq.,
475-6 Vernon's Texas Civil Statutes)], if the entity is regularly engaged
475-7 in the business of extending credit and if extending credit
475-8 represents the majority of the entity's total business activity.
475-9 SECTION 7.97. Section 35-1, The Securities Act (Article
475-10 581-35-1, Vernon's Texas Civil Statutes), is amended to conform to
475-11 Chapter 1008, Acts of the 75th Legislature, Regular Session, 1997,
475-12 to read as follows:
475-13 Sec. 35-1. FEES FOR SALES OF EXCESS SECURITIES. A. An
475-14 offeror who sells securities in this State in excess of the
475-15 aggregate amount of securities registered for the offering may
475-16 apply to register the excess securities by paying three times the
475-17 difference between the initial fee paid and the fee required under
475-18 Subsection E of Section 35, plus, if the registration is no longer
475-19 in effect, interest on that amount computed at the rate provided by
475-20 Section 302.002, Finance Code [Article 1C.002, Title 79, Revised
475-21 Statutes], from the date the registration was no longer in effect
475-22 until the date the subsequent application is filed, for the
475-23 securities sold to persons within this State, plus the amendment
475-24 fee prescribed by Subsection D of Section 35. Registration of the
475-25 excess securities, if granted, shall be effective retroactively to
475-26 the effective date of the initial registration for the offering.
476-1 B. An offeror who has filed a notice to claim a limited
476-2 offering exemption, who paid less than the maximum fee prescribed
476-3 in Subsection J of Section 35, and who offered a greater amount of
476-4 securities in the offering than authorized pursuant to the formula
476-5 prescribed in Subsection J of Section 35, may file an amended
476-6 notice disclosing the amount of securities offered and paying three
476-7 times the difference between the fee initially paid and the fee
476-8 which should have been paid, plus interest on that amount computed
476-9 at the rate provided by Section 302.002, Finance Code [Article
476-10 1C.002, Title 79, Revised Statutes], from the date the original
476-11 notice was received by the Commissioner until the date the amended
476-12 notice is received by the Commissioner. The amended notice shall
476-13 be retroactive to the date of the initial filing.
476-14 SECTION 7.98. Section 35-2, The Securities Act (Article
476-15 581-35-2, Vernon's Texas Civil Statutes), is amended to conform to
476-16 Chapter 1008, Acts of the 75th Legislature, Regular Session, 1997,
476-17 to read as follows:
476-18 Sec. 35-2. FEES FOR SALES OF UNREGISTERED SECURITIES. If,
476-19 after notice and hearing, the commissioner or any court of
476-20 competent jurisdiction finds that an offeror has sold securities in
476-21 this State pursuant to an offering no part of which has been
476-22 registered under Section 7 or 10 of this Act and for which the
476-23 transactions or securities are not exempt under Section 5 or 6 of
476-24 this Act, the commissioner or said court may impose a fee equal to
476-25 six times the amount that would have been paid if the issuer had
476-26 filed an application to register the securities and paid the fee
477-1 prescribed by Subsection E of Section 35 based on the aggregate
477-2 amount of sales made in this State within the prior three years,
477-3 plus interest on that amount at the rate provided by Section
477-4 302.002, Finance Code, [Article 1C.002, Title 79, Revised
477-5 Statutes,] from the date of the first such sale made in this State
477-6 until the date the fee is paid. The payment of the fee prescribed
477-7 by this Section does not effect registration of the securities or
477-8 affect the application of any other Section of this Act. The
477-9 payment of the fee prescribed by this Section is not an admission
477-10 that the transactions or securities were not exempt and is not
477-11 admissible as evidence in a suit or proceeding for failure to
477-12 register the securities.
477-13 SECTION 7.99. Article 2.09A, Texas Miscellaneous Corporation
477-14 Laws Act (Article 1302-2.09A, Vernon's Texas Civil Statutes), is
477-15 amended to conform to Chapter 1008, Acts of the 75th Legislature,
477-16 Regular Session, 1997, to read as follows:
477-17 Art. 2.09A. ALTERNATIVE RATE. Notwithstanding the
477-18 provisions of Article 2.09 of this Act, any corporation, domestic
477-19 or foreign, including but not limited to any charitable or
477-20 religious corporation, may agree to and stipulate for any rate of
477-21 interest that does not exceed a rate authorized by Chapter 303,
477-22 Finance Code [1D, Title 79, Revised Statutes].
477-23 SECTION 7.100. Section A(2), Article 7.06, Texas
477-24 Miscellaneous Corporation Laws Act (Article 1302-7.06, Vernon's
477-25 Texas Civil Statutes), is amended to conform to Chapter 1008, Acts
477-26 of the 75th Legislature, Regular Session, 1997, to read as follows:
478-1 (2) "Corporation" means:
478-2 (a) Any corporation, association, or other
478-3 organization incorporated or organized under the Texas Business
478-4 Corporation Act, the Texas Non-Profit Corporation Act (Article
478-5 1396-1.01 et seq., Vernon's Texas Civil Statutes), Subtitle A, B,
478-6 C, or D, Title 3, Finance Code, [the Texas Banking Act (Article
478-7 342-1.001 et seq., Vernon's Texas Civil Statutes)] or a predecessor
478-8 of that law [Act], Chapter 181, Finance Code, [the Texas Trust
478-9 Company Act] or a predecessor of that law [Act], the Insurance
478-10 Code, [the Texas Savings and Loan Act (Article 852a, Vernon's Texas
478-11 Civil Statutes),] Chapter 76, Acts of the 43rd Legislature, 1st
478-12 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
478-13 Statutes), [the Texas Credit Union Act (Article 2461-1.01 et seq.,
478-14 Vernon's Texas Civil Statutes),] the Cooperative Association Act
478-15 (Article 1396-50.01, Vernon's Texas Civil Statutes), Articles 1399
478-16 through 1407, Revised Statutes, Article 1448, Revised Statutes,
478-17 Section 2, Chapter 42, Acts of the 42nd Legislature, 3rd Called
478-18 Session, 1932 (Article 1524c, Vernon's Texas Civil Statutes), the
478-19 State Housing Law (Article 1528a, Vernon's Texas Civil Statutes),
478-20 the Electric Cooperative Corporation Act (Article 1528b, Vernon's
478-21 Texas Civil Statutes), the Telephone Cooperative Act (Article
478-22 1528c, Vernon's Texas Civil Statutes), the Automobile Club Services
478-23 Act (Article 1528d, Vernon's Texas Civil Statutes), the Texas
478-24 Professional Corporation Act (Article 1528e, Vernon's Texas Civil
478-25 Statutes), the Texas Professional Association Act (Article 1528f,
478-26 Vernon's Texas Civil Statutes), the Texas Mutual Trust Investment
479-1 Company Act (Article 1528i, Vernon's Texas Civil Statutes), Chapter
479-2 221, Health and Safety Code, the Texas Transportation Corporation
479-3 Act (Article 1528l, Vernon's Texas Civil Statutes), the Cultural
479-4 Education Facilities Corporation Act (Article 1528m, Vernon's Texas
479-5 Civil Statutes), Chapter 262, Health and Safety Code, Chapter 264,
479-6 Health and Safety Code, Title 4, Agriculture Code, Subchapter A,
479-7 Chapter 301, Health and Safety Code, Subchapter B, Chapter 301,
479-8 Health and Safety Code, or the Higher Education Authority Act,
479-9 Chapter 53, Education Code;
479-10 (b) Any corporation, association, or other
479-11 organization incorporated or organized under the laws of this state
479-12 that is governed in whole or in part by the Texas Business
479-13 Corporation Act, the Texas Non-Profit Corporation Act (Article
479-14 1396-1.01 et seq., Vernon's Texas Civil Statutes), or the Texas
479-15 Miscellaneous Corporation Laws Act (Article 1302-1.01 et seq.,
479-16 Vernon's Texas Civil Statutes); or
479-17 (c) To the extent permitted by federal law, any
479-18 federally chartered bank, savings and loan association, or credit
479-19 union.
479-20 SECTION 7.101. Section 1.04(c), Texas Revised Partnership
479-21 Act (Article 6132b-1.04, Vernon's Texas Civil Statutes), is amended
479-22 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
479-23 Session, 1997, to read as follows:
479-24 (c) Interest Rate. If an obligation to pay interest arises
479-25 under this Act and the rate is not specified, the rate is the rate
479-26 specified by Section 302.002, Finance Code [Article 1C.002, Title
480-1 79, Revised Statutes], or a successor statute.
480-2 SECTION 7.102. Section 1(a), Chapter 617, Acts of the 68th
480-3 Legislature, Regular Session, 1983 (Article 9022, Vernon's Texas
480-4 Civil Statutes), is amended to conform to Chapter 1008, Acts of the
480-5 75th Legislature, Regular Session, 1997, to read as follows:
480-6 (a) The holder of a check or its assignee, agent,
480-7 representative, or any other person retained by the holder to seek
480-8 collection of the face value of the dishonored check on return of
480-9 the check to the holder following its dishonor by a payor may
480-10 charge the drawer or endorser a reasonable processing fee, which
480-11 shall not exceed $25. A person may not charge a processing fee to
480-12 a drawer or endorser under this subsection if the fee has been
480-13 collected under Article 102.007(e) or Article 102.0071, Code of
480-14 Criminal Procedure. If a processing fee has been collected under
480-15 this subsection and the holder subsequently receives a fee
480-16 collected under Article 102.007(e) or Article 102.0071, Code of
480-17 Criminal Procedure, the holder shall immediately refund the fee
480-18 previously collected from the drawer or endorser. Notwithstanding
480-19 any other provisions of law, a loan agreement made under Chapter
480-20 342, Finance Code [3A, Title 79, Revised Statutes], may provide
480-21 that on return of a dishonored check given in payment under the
480-22 agreement, the holder may charge the obligor under the agreement
480-23 the processing fee authorized by this Act, and the fee may be added
480-24 to the unpaid balance owed under the agreement, except that
480-25 interest may not be charged on the fee during the term of the
480-26 agreement.
481-1 ARTICLE 8. CHANGES RELATING TO GOVERNMENT CODE
481-2 SECTION 8.01. Section 305.005(d), Government Code, which
481-3 requires the deposit in the state ethics fund of fees collected for
481-4 lobbyist registration, is repealed to conform to the abolishment of
481-5 that fund by Chapter 1037, Acts of the 75th Legislature, Regular
481-6 Session, 1997.
481-7 SECTION 8.02. Section 317.005(e), Government Code, is
481-8 amended to correct a citation to the General Appropriations Act to
481-9 read as follows:
481-10 (e) Neither the governor nor the board may adopt an order
481-11 under this section:
481-12 (1) expressly postponing the time, whether set by
481-13 appropriations act or general law, that an appropriation is
481-14 distributed or otherwise made available to a state agency, for a
481-15 period that exceeds 180 days;
481-16 (2) reducing or eliminating an appropriation for the
481-17 salary of an elected state official or a member of a board or
481-18 commission appointed by the governor; or
481-19 (3) reducing or eliminating an appropriation to a
481-20 state agency that receives appropriations under the article
481-21 [Article VI] of the General Appropriations Act that makes
481-22 appropriations to the legislative branch.
481-23 SECTION 8.03. (a) Section 403.026, Government Code, as
481-24 added by Section 76, Chapter 1035, Acts of the 75th Legislature,
481-25 Regular Session, 1997, is repealed because it is substantively
481-26 identical to Section 403.026, Government Code, as added by Section
482-1 61, Chapter 1040, Acts of the 75th Legislature, Regular Session,
482-2 1997.
482-3 (b) Section 76, Chapter 1035, Acts of the 75th Legislature,
482-4 Regular Session, 1997, is repealed.
482-5 SECTION 8.04. Section 403.302(d), Government Code, as
482-6 amended by Section 44, Chapter 1039, Section 63, Chapter 1040, and
482-7 Section 27, Chapter 1071, Acts of the 75th Legislature, Regular
482-8 Session, 1997, is reenacted to read as follows:
482-9 (d) For the purposes of this section, "taxable value" means
482-10 the market value of all taxable property less:
482-11 (1) the total dollar amount of any residence homestead
482-12 exemptions lawfully granted under Section 11.13(b) or (c), Tax
482-13 Code, in the year that is the subject of the study for each school
482-14 district;
482-15 (2) the total dollar amount of any exemptions granted
482-16 before May 31, 1993, within a reinvestment zone under agreements
482-17 authorized by Chapter 312, Tax Code;
482-18 (3) the total dollar amount of any captured appraised
482-19 value of property that is located in a reinvestment zone on August
482-20 31, 1999, generates a tax increment paid into a tax increment fund,
482-21 and is eligible for tax increment financing under Chapter 311, Tax
482-22 Code, under a reinvestment zone financing plan approved under
482-23 Section 311.011(d), Tax Code, before September 1, 1999;
482-24 (4) the total dollar amount of any exemptions granted
482-25 under Section 11.251, Tax Code;
482-26 (5) the difference between the comptroller's estimate
483-1 of the market value and the productivity value of land that
483-2 qualifies for appraisal on the basis of its productive capacity,
483-3 except that the productivity value estimated by the comptroller may
483-4 not exceed the fair market value of the land;
483-5 (6) the portion of the appraised value of residence
483-6 homesteads of the elderly on which school district taxes are not
483-7 imposed in the year that is the subject of the study, calculated as
483-8 if the residence homesteads were appraised at the full value
483-9 required by law;
483-10 (7) a portion of the market value of property not
483-11 otherwise fully taxable by the district at market value because of
483-12 action required by statute or the constitution of this state that,
483-13 if the tax rate adopted by the district is applied to it, produces
483-14 an amount equal to the difference between the tax that the district
483-15 would have imposed on the property if the property were fully
483-16 taxable at market value and the tax that the district is actually
483-17 authorized to impose on the property, if this subsection does not
483-18 otherwise require that portion to be deducted;
483-19 (8) the market value of all tangible personal
483-20 property, other than manufactured homes, owned by a family or
483-21 individual and not held or used for the production of income;
483-22 (9) the appraised value of property the collection of
483-23 delinquent taxes on which is deferred under Section 33.06, Tax
483-24 Code;
483-25 (10) the portion of the appraised value of property
483-26 the collection of delinquent taxes on which is deferred under
484-1 Section 33.065, Tax Code; and
484-2 (11) the amount by which the market value of a
484-3 residence homestead to which Section 23.23, Tax Code, applies
484-4 exceeds the appraised value of that property as calculated under
484-5 that section.
484-6 SECTION 8.05. Section 404.024(a), Government Code, as
484-7 amended by Chapters 891, 1311, and 1423, Acts of the 75th
484-8 Legislature, Regular Session, 1997, is reenacted and amended to
484-9 read as follows:
484-10 (a) The comptroller [board] may determine and designate the
484-11 amount of state funds to be deposited in time deposits in state
484-12 depositories. [The comptroller shall recommend to the board a
484-13 maximum limit for state funds deposited by the comptroller at
484-14 approved state depositories.] The percentage of state funds to be
484-15 deposited in state depositories shall be based on the interest
484-16 rates available in competing investments, the demand for funds from
484-17 Texas banks, and the state's liquidity requirements. [The
484-18 comptroller shall provide periodic investment reports to the
484-19 board.]
484-20 SECTION 8.06. Section 411.114(a)(2), Government Code, as
484-21 amended by Chapters 648 and 664, Acts of the 75th Legislature,
484-22 Regular Session, 1997, is amended to properly letter subdivisions
484-23 to read as follows:
484-24 (2) The Department of Protective and Regulatory
484-25 Services shall obtain from the department criminal history record
484-26 information maintained by the department that relates to a person
485-1 who is:
485-2 (A) an applicant for a license, registration, or
485-3 certification under Chapter 42, Human Resources Code, or a person
485-4 who registers with or has been issued a certificate to operate
485-5 under accreditation by the Department of Protective and Regulatory
485-6 Services under Subchapter E, Chapter 42, Human Resources Code;
485-7 (B) an owner or employee of or an applicant for
485-8 employment by a child-care facility or family home licensed,
485-9 registered, or certified under Chapter 42, Human Resources Code, or
485-10 by a child-care facility or child-placing agency that is seeking to
485-11 register with or has been issued a certificate to operate under
485-12 accreditation by the Department of Protective and Regulatory
485-13 Services under Subchapter E, Chapter 42, Human Resources Code;
485-14 (C) a resident of a registered family home, but
485-15 not a child in the home's care or a parent of the child;
485-16 (D) an applicant for a position with the
485-17 Department of Protective and Regulatory Services, the duties of
485-18 which include direct delivery of protective services to children,
485-19 elderly persons, or persons with a disability;
485-20 (E) an employee of, an applicant for employment
485-21 with, or a volunteer or an applicant volunteer with a business
485-22 entity or person that contracts with the Department of Protective
485-23 and Regulatory Services to provide direct delivery of protective
485-24 services to children, elderly persons, or persons with a
485-25 disability, if the person's duties or responsibilities include
485-26 direct contact with children, elderly persons, or persons with a
486-1 disability;
486-2 (F) a volunteer or applicant volunteer with the
486-3 Department of Protective and Regulatory Services;
486-4 (G) a person providing or applying to provide
486-5 adoptive or foster care for children in the care of the Department
486-6 of Protective and Regulatory Services and other adults living with
486-7 that person in the residence in which the child will reside;
486-8 (H) a Department of Protective and Regulatory
486-9 Services employee who is engaged in the direct delivery of
486-10 protective services to children, elderly persons, or persons with a
486-11 disability;
486-12 (I) a person who is the subject of a report the
486-13 department receives alleging that the person has abused or
486-14 neglected a child, an elderly person, or a person with a
486-15 disability, provided that report has proven to have merit;
486-16 (J) a relative providing or applying to provide
486-17 in-home care for a child in the care of the Department of
486-18 Protective and Regulatory Services and other adults living with
486-19 that relative in the residence in which the child will reside; [or]
486-20 (K) a person providing child care for a child
486-21 who is in the care of the Department of Protective and Regulatory
486-22 Services and who is or will be receiving adoptive, foster, or
486-23 in-home care;[.]
486-24 (L) [(Q)] through a contract with a nonprofit
486-25 management center, an employee of, an applicant for employment
486-26 with, or a volunteer or an applicant volunteer with a nonprofit,
487-1 tax-exempt organization that provides any service that involves the
487-2 care of or access to children, elderly persons, or persons with a
487-3 disability;[.]
487-4 (M) [(Q)] an operator of a child-care facility
487-5 or child-placing agency that is seeking to register with or has
487-6 been issued a certificate to operate under accreditation by the
487-7 Department of Protective and Regulatory Services under Subchapter
487-8 E, Chapter 42, Human Resources Code, subject to Section 42.105,
487-9 Human Resources Code; or
487-10 (N) [(R)] a child-care administrator seeking
487-11 accreditation as provided by Section 43.003, Human Resources Code.
487-12 SECTION 8.07. Section 413.009(a), Government Code, as
487-13 amended by Chapters 298 and 445, Acts of the 75th Legislature,
487-14 Regular Session, 1997, is amended to properly number subdivisions
487-15 to read as follows:
487-16 (a) To accomplish its duties the policy council shall:
487-17 (1) conduct an in-depth analysis of the criminal
487-18 justice system;
487-19 (2) determine the long-range needs of the criminal
487-20 justice system and recommend policy priorities for the system;
487-21 (3) identify critical problems in the criminal justice
487-22 system and recommend strategies to solve those problems;
487-23 (4) assess the cost-effectiveness of the use of state
487-24 and local funds in the criminal justice system;
487-25 (5) recommend means to improve the deterrent and
487-26 rehabilitative capabilities of the criminal justice system;
488-1 (6) advise and assist the legislature in developing
488-2 plans, programs, and proposed legislation for improving the
488-3 effectiveness of the criminal justice system;
488-4 (7) evaluate the rehabilitative capabilities of a
488-5 state-administered sex offender treatment program and, based on
488-6 that evaluation, determine if the program is necessary;
488-7 (8) make computations of daily costs and compare
488-8 interagency costs on services provided by agencies that are a part
488-9 of the criminal justice system;
488-10 (9) make population computations for use in planning
488-11 for the long-range needs of the criminal justice system;
488-12 (10) determine long-range information needs of the
488-13 criminal justice system and acquire that information;
488-14 (11) engage in other activities consistent with the
488-15 responsibilities of the policy council; and
488-16 (12) [(11)] cooperate with the Crime Victims'
488-17 Institute by providing information and assistance to the institute
488-18 relating to the improvement of crime victims' services.
488-19 SECTION 8.08. Section 420.003, Government Code, as amended
488-20 by Chapters 775 and 784, Acts of the 75th Legislature, Regular
488-21 Session, 1997, is amended to properly number subdivisions to read
488-22 as follows:
488-23 Sec. 420.003. DEFINITIONS. In this chapter:
488-24 (1) "Advocate" means a person who provides advocacy
488-25 services as an employee or volunteer of a sexual assault program.
488-26 (2) [(1)] "Program" means a sexual assault program.
489-1 (3) [(2)] "Service" means the Sexual Assault
489-2 Prevention and Crisis Service.
489-3 (4) [(3)] "Sexual assault" means any act or attempted
489-4 act as described by Section 21.11, 22.011, 22.021, or 25.02,
489-5 Penal Code.
489-6 (5) [(4)] "Sexual assault examiner" means a person who
489-7 uses a service-approved evidence collection kit and protocol to
489-8 collect and preserve evidence of a sexual assault or other sex
489-9 offense.
489-10 (6) [(5)] "Sexual assault nurse examiner" means a
489-11 registered nurse who has completed a service-approved examiner
489-12 training course.
489-13 (7) [(6)] "Sexual assault program" means any local
489-14 public or private nonprofit corporation, independent of a law
489-15 enforcement agency or prosecutor's office, that is operated as an
489-16 independent program or as part of a municipal, county, or state
489-17 agency and that provides the minimum services established by this
489-18 chapter.
489-19 (8) [(7)] "Survivor" means an individual who is a
489-20 victim of a sexual assault, regardless of whether a report or
489-21 conviction is made in the incident.
489-22 SECTION 8.09. Subchapter A, Chapter 496, Government Code, is
489-23 amended to conform more closely to the law from which it was
489-24 derived by adding Section 496.0032 to read as follows:
489-25 Sec. 496.0032. AGRICULTURAL LEASE. The board under terms
489-26 advantageous to the department may lease real property for use by
490-1 the department for agricultural purposes and lease fixtures and
490-2 appurtenances to the property.
490-3 SECTION 8.10. Section 501.014(e), Government Code, as
490-4 amended by Chapters 807 and 1409, Acts of the 75th Legislature,
490-5 Regular Session, 1997, is reenacted and amended to read as follows:
490-6 (e) On notification by a court, the department shall
490-7 withdraw from an inmate's trust fund account any amount the inmate
490-8 is ordered to pay by order of the court under this subsection. The
490-9 department shall make a payment under this subsection as ordered by
490-10 the court to either the court or the party specified in the court
490-11 order. The department is not liable for withdrawing or failing to
490-12 withdraw money or making payments or failing to make payments under
490-13 this subsection. The department shall make withdrawals and
490-14 payments from an inmate's trust fund account under this subsection
490-15 according to the following schedule of priorities:
490-16 (1) as payment in full for all orders for child
490-17 support;
490-18 (2) as payment in full for all orders for restitution;
490-19 (3) as payment in full for all orders for
490-20 reimbursement of the Texas Department of Human Services for
490-21 financial assistance provided for the child's health needs under
490-22 Chapter 31, Human Resources Code, to a child of the inmate;
490-23 (4) [(3)] as payment in full for all orders for court
490-24 fees and costs;
490-25 (5) [(4)] as payment in full for all orders for fines;
490-26 and
491-1 (6) [(5)] as payment in full for any other court
491-2 order, judgment, or writ.
491-3 SECTION 8.11. Section 531.024, Government Code, as amended
491-4 by Chapters 165 and 342, Acts of the 75th Legislature, Regular
491-5 Session, 1997, is amended to properly number subdivisions to read
491-6 as follows:
491-7 Sec. 531.024. PLANNING AND DELIVERY OF HEALTH AND HUMAN
491-8 SERVICES. The commissioner shall:
491-9 (1) facilitate and enforce coordinated planning and
491-10 delivery of health and human services, including:
491-11 (A) compliance with the coordinated strategic
491-12 plan;
491-13 (B) co-location of services;
491-14 (C) integrated intake; and
491-15 (D) coordinated referral and case management;
491-16 (2) develop with the Department of Information
491-17 Resources automation standards for computer systems to enable
491-18 health and human services agencies, including agencies operating at
491-19 a local level, to share pertinent data;
491-20 (3) establish and enforce uniform regional boundaries
491-21 for all health and human services agencies;
491-22 (4) carry out statewide health and human services
491-23 needs surveys and forecasting;
491-24 (5) perform independent special-outcome evaluations of
491-25 health and human services programs and activities; [and]
491-26 (6) at the request of a governmental entity identified
492-1 under Section 531.022(e), assist that entity in implementing a
492-2 coordinated plan that may include co-location of services,
492-3 integrated intake, and coordinated referral and case management and
492-4 is tailored to the needs and priorities of that entity; and[.]
492-5 (7) [(6)] promulgate uniform fair hearing rules for
492-6 all Medicaid-funded services.
492-7 SECTION 8.12. Section 571.030(b), Government Code, as
492-8 amended by Chapters 506, 507, and 1154, Acts of the 75th
492-9 Legislature, Regular Session, 1997, which limited uses of money in
492-10 the state ethics fund, is repealed to conform to the abolishment of
492-11 that fund by Chapter 1037, Acts of the 75th Legislature, Regular
492-12 Session, 1997.
492-13 SECTION 8.13. Section 571.091(a), Government Code, as
492-14 amended by Chapters 506, 507, and 1154, Acts of the 75th
492-15 Legislature, Regular Session, 1997, is amended to properly number
492-16 subdivisions to read as follows:
492-17 (a) The commission shall prepare a written opinion answering
492-18 the request of a person subject to any of the following laws for an
492-19 opinion about the application of any of these laws to the person in
492-20 regard to a specified existing or hypothetical factual situation:
492-21 (1) Chapter 302;
492-22 (2) Chapter 303;
492-23 (3) Chapter 305;
492-24 (4) Chapter 2004;
492-25 (5) [(4)] Chapter 572;
492-26 (6) [(4)] Subchapter C, Chapter 159, Local Government
493-1 Code, as provided by Section 571.061(a)(2);
493-2 (7) [(5)] Title 15, Election Code;
493-3 (8) [(6)] Chapter 36, Penal Code; or
493-4 (9) [(7)] Chapter 39, Penal Code.
493-5 SECTION 8.14. Section 601.002, Government Code, is amended
493-6 to more closely conform to the law from which it was derived to
493-7 read as follows:
493-8 Sec. 601.002. PERFORMANCE OF DUTIES BY FIRST ASSISTANT OR
493-9 CHIEF DEPUTY. (a) The first assistant or chief deputy of a public
493-10 office in which a physical vacancy occurs shall conduct the affairs
493-11 of the office until a successor qualifies for the office.
493-12 (b) The authority of a first assistant or chief deputy to
493-13 discharge the duties of an office under Subsection (a) ceases when
493-14 [on the earliest of:]
493-15 [(1) the time] the successor to the office qualifies
493-16 for the office.[;]
493-17 (c) If the vacancy occurs during a legislative session and
493-18 the successor to the office is subject to senate confirmation, the
493-19 authority of the first assistant or chief deputy to discharge the
493-20 duties of an office under Subsection (a) ceases on the earlier of:
493-21 (1) [(2)] the end of the last day of the [any] session
493-22 [of the legislature occurring during the vacancy if the successor
493-23 to the office is subject to senate confirmation]; or
493-24 (2) [(3)] the end of the 21st day after the day the
493-25 person began discharging the duties of the office [if the
493-26 legislature is in session on that day and the successor to the
494-1 office is subject to senate confirmation].
494-2 (d) [(c)] This section does not apply to a vacancy on a
494-3 board or commission.
494-4 SECTION 8.15. Section 821.001(7), Government Code, as
494-5 amended by Section 34, Chapter 260, Acts of the 74th Legislature,
494-6 Regular Session, 1995, and Section 1, Chapter 555, Acts of the 74th
494-7 Legislature, Regular Session, 1995, is reenacted to read as
494-8 follows:
494-9 (7) "Employer" means any agents or agencies in the
494-10 state responsible for public education, including the governing
494-11 board of any school district created under the laws of this state,
494-12 any county school board, the board of trustees, the board of
494-13 regents of any college or university, or any other legally
494-14 constituted board or agency of any public school, but excluding the
494-15 State Board of Education, the Texas Education Agency, and the State
494-16 Board for Educator Certification.
494-17 SECTION 8.16. Section 822.201(b), Government Code, as
494-18 amended by Chapters 330 and 1035, Acts of the 75th Legislature,
494-19 Regular Session, 1997, is amended to properly number subdivisions
494-20 to read as follows:
494-21 (b) "Salary and wages" as used in Subsection (a) means:
494-22 (1) normal periodic payments of money for service the
494-23 right to which accrues on a regular basis in proportion to the
494-24 service performed;
494-25 (2) amounts by which the member's salary is reduced
494-26 under a salary reduction agreement authorized by Chapter 610;
495-1 (3) amounts that would otherwise qualify as salary and
495-2 wages under Subdivision (1) but are not received directly by the
495-3 member pursuant to a good faith, voluntary written salary reduction
495-4 agreement in order to finance payments to a deferred compensation
495-5 or tax sheltered annuity program specifically authorized by state
495-6 law or to finance benefit options under a cafeteria plan qualifying
495-7 under Section 125 of the Internal Revenue Code of 1986 (26 U.S.C.
495-8 Section 125), if:
495-9 (A) the program or benefit options are made
495-10 available to all employees of the employer; and
495-11 (B) the benefit options in the cafeteria plan
495-12 are limited to one or more options that provide deferred
495-13 compensation, group health and disability insurance, group term
495-14 life insurance, dependent care assistance programs, or group legal
495-15 services plans; [and]
495-16 (4) performance pay awarded to an employee by a school
495-17 district as part of a total compensation plan approved by the board
495-18 of trustees of the district; and[.]
495-19 (5) [(4)] the benefit replacement pay a person earns
495-20 under Subchapter H, Chapter 659, as added by Chapter 417, Acts of
495-21 the 74th Legislature, 1995, except as provided by Subsection (c).
495-22 SECTION 8.17. Chapter 2057, Government Code, is repealed to
495-23 conform to the repeal of the law from which that chapter was
495-24 derived by Section 6(4), Chapter 963, Acts of the 73rd Legislature,
495-25 Regular Session, 1993.
495-26 SECTION 8.18. Section 2107.007(c), Government Code, is
496-1 amended to correct a reference to read as follows:
496-2 (c) A collection fee may not be retained from amounts
496-3 collected for the unemployment compensation fund established under
496-4 Subchapter B, Chapter 203, Labor Code [by Section 9, Texas
496-5 Unemployment Compensation Act (Article 5221b-7, Vernon's Texas
496-6 Civil Statutes)].
496-7 SECTION 8.19. Section 2166.003(a), Government Code, as
496-8 amended by Chapters 793 and 980, Acts of the 75th Legislature,
496-9 Regular Session, 1997, is amended to properly number subdivisions
496-10 to read as follows:
496-11 (a) Unless otherwise provided, this chapter does not apply
496-12 to:
496-13 (1) a project constructed by and for the Texas
496-14 Department of Transportation;
496-15 (2) a project constructed by and for a state
496-16 institution of higher education;
496-17 (3) a pen, shed, or ancillary building constructed by
496-18 and for the Department of Agriculture for the processing of
496-19 livestock before export;
496-20 (4) a project constructed by the Parks and Wildlife
496-21 Department;
496-22 (5) a repair or rehabilitation project, except a major
496-23 renovation, of buildings and grounds on the commission inventory;
496-24 (6) a repair and rehabilitation project of another
496-25 using agency, if all labor for the project is provided by the
496-26 regular maintenance force of the using agency under specific
497-1 legislative authorization and the project does not require the
497-2 advance preparation of working plans or drawings;
497-3 (7) a repair and rehabilitation project involving the
497-4 use of contract labor, if the project has been excluded from this
497-5 chapter by commission rule and does not require the advance
497-6 preparation of working plans or drawings; [or]
497-7 (8) an action taken by the Texas Natural Resource
497-8 Conservation Commission under Subchapter F or I, Chapter 361,
497-9 Health and Safety Code; or[.]
497-10 (9) [(8)] a repair, rehabilitation, or construction
497-11 project on property owned by the Texas Department of Housing and
497-12 Community Affairs or the Texas State Affordable Housing
497-13 Corporation.
497-14 SECTION 8.20. Section 2253.001(9), Government Code, is
497-15 amended to more accurately reflect the source law from which it was
497-16 derived to read as follows:
497-17 (9) "Subcontractor" means a person, firm, or
497-18 corporation that provides public work labor or material to fulfill
497-19 an obligation to a prime contractor or to a subcontractor
497-20 [contractor of the prime contractor] for the performance and
497-21 installation of any of the work required by a public work contract.
497-22 SECTION 8.21. Section 2256.004, Government Code, as amended
497-23 by Chapters 505 and 1421, Acts of the 75th Legislature, Regular
497-24 Session, 1997, is amended to properly number subdivisions to read
497-25 as follows:
497-26 Sec. 2256.004. APPLICABILITY. This subchapter does not
498-1 apply to:
498-2 (1) a public retirement system as defined by Section
498-3 802.001;
498-4 (2) state funds invested as authorized by Section
498-5 404.024;
498-6 (3) an institution of higher education having total
498-7 endowments of at least $95 million in book value on May 1, 1995;
498-8 (4) funds invested by the Veterans' Land Board as
498-9 authorized by Chapter 161, 162, or 164, Natural Resources Code;
498-10 [or]
498-11 (5) registry funds deposited with the county or
498-12 district clerk under Chapter 117, Local Government Code; or[.]
498-13 (6) [(5)] a deferred compensation plan that qualifies
498-14 under either Section 401(k) or 457 of the Internal Revenue Code of
498-15 1986 (26 U.S.C. Section 1 et seq.), as amended.
498-16 SECTION 8.22. Section 2306.028, Government Code, as added by
498-17 Section 1, Chapter 268, Acts of the 73rd Legislature, Regular
498-18 Session, 1993, is repealed because of the repeal of the source law
498-19 from which it was derived by Section 21, Chapter 725, Acts of the
498-20 73rd Legislature, Regular Session, 1993.
498-21 SECTION 8.23. (a) Section 2308.312, Government Code, is
498-22 amended to conform to Section 1, Chapter 611, Acts of the 74th
498-23 Legislature, Regular Session, 1995, to read as follows:
498-24 Sec. 2308.312. CAREER DEVELOPMENT CENTERS. (a) A board
498-25 shall establish career development centers accessible to students,
498-26 [and] workers, and persons formerly sentenced to the institutional
499-1 division or state jail division of the Texas Department of Criminal
499-2 Justice throughout the workforce development area. The board shall
499-3 establish the centers not later than the 180th day after the date
499-4 the board is certified.
499-5 (b) Each center shall provide access to information and
499-6 services available in the workforce development area, including
499-7 employment services, and shall address the individual needs of
499-8 students, [and] workers, and persons formerly sentenced to the
499-9 institutional division or state jail division.
499-10 (c) The services must include:
499-11 (1) labor market information, including:
499-12 (A) available job openings; and
499-13 (B) education and training opportunities in the
499-14 local area, in the state, and, as feasible, in the nation;
499-15 (2) uniform eligibility requirements and application
499-16 procedures for all workforce training and services;
499-17 (3) independent assessment of individual needs and the
499-18 development of an individual service strategy;
499-19 (4) centralized and continuous case management and
499-20 counseling;
499-21 (5) individual referral for services, including basic
499-22 education, classroom skills training, on-the-job training, and
499-23 customized training; [and]
499-24 (6) support services, including child care assistance,
499-25 student loans, and other forms of financial assistance required to
499-26 participate in and complete training; and
500-1 (7) job training and employment assistance for persons
500-2 formerly sentenced to the institutional division or state jail
500-3 division, provided in cooperation with Project RIO.
500-4 (b) Section 1, Chapter 611, Acts of the 74th Legislature,
500-5 Regular Session, 1995, is repealed.
500-6 ARTICLE 9. CHANGES RELATING TO CONCEALED HANDGUNS
500-7 SECTION 9.01. (a) Section 411.171(4), Government Code, is
500-8 amended to conform to Section 1, Chapter 1261, Acts of the 75th
500-9 Legislature, Regular Session, 1997, to read as follows:
500-10 (4) "Convicted" means an adjudication of guilt or an
500-11 order of deferred adjudication entered against a person by a court
500-12 of competent jurisdiction whether or not[:]
500-13 [(A)] the imposition of the sentence is
500-14 subsequently probated and the person is discharged from community
500-15 supervision. The term does not include an adjudication of guilt or
500-16 an order of deferred adjudication that has been subsequently:
500-17 (A) expunged; or
500-18 (B) pardoned under the authority of a state or
500-19 federal official[; or]
500-20 [(B) the person is pardoned for the offense,
500-21 unless the pardon is expressly granted for subsequent proof of
500-22 innocence].
500-23 (b) Section 1, Chapter 1261, Acts of the 75th Legislature,
500-24 Regular Session, 1997, is repealed.
500-25 SECTION 9.02. (a) Section 411.171(8), Government Code, is
500-26 repealed to conform to Section 31, Chapter 1261, Acts of the 75th
501-1 Legislature, Regular Session, 1997.
501-2 (b) Section 31, Chapter 1261, Acts of the 75th Legislature,
501-3 Regular Session, 1997, is repealed.
501-4 SECTION 9.03. (a) Section 411.172(a), Government Code, is
501-5 amended to conform to Section 2, Chapter 1261, and Section 21.44,
501-6 Chapter 1423, Acts of the 75th Legislature, Regular Session, 1997,
501-7 to read as follows:
501-8 (a) A person is eligible for a license to carry a concealed
501-9 handgun if the person:
501-10 (1) is a legal resident of this state for the
501-11 six-month period preceding the date of application under this
501-12 subchapter or is otherwise eligible for a license under Section
501-13 411.173(a);
501-14 (2) is at least 21 years of age;
501-15 (3) has not been convicted of a felony;
501-16 (4) is not charged with the commission of a Class A or
501-17 Class B misdemeanor or an offense under Section 42.01, Penal Code,
501-18 or of a felony under an information or indictment;
501-19 (5) is not a fugitive from justice for a felony or a
501-20 Class A or Class B misdemeanor;
501-21 (6) is not a chemically dependent person;
501-22 (7) is not incapable of exercising sound judgment with
501-23 respect to the proper use and storage of a handgun [a person of
501-24 unsound mind];
501-25 (8) has not, in the five years preceding the date of
501-26 application, been convicted of a Class A or Class B misdemeanor or
502-1 an offense under Section 42.01, Penal Code;
502-2 (9) is fully qualified under applicable federal and
502-3 state law to purchase a handgun;
502-4 (10) has not been finally determined to be delinquent
502-5 in making a child support payment administered or collected by the
502-6 attorney general;
502-7 (11) has not been finally determined to be delinquent
502-8 in the payment of a tax or other money collected by the
502-9 comptroller, the tax collector of a political subdivision of the
502-10 state, or any agency or subdivision of the state;
502-11 (12) has not been finally determined to be in default
502-12 on a loan made under Chapter 57, Education Code;
502-13 (13) is not currently restricted under a court
502-14 protective order or subject to a restraining order affecting the
502-15 spousal relationship, other than a restraining order solely
502-16 affecting property interests;
502-17 (14) has not, in the 10 years preceding the date of
502-18 application, been adjudicated as having engaged in delinquent
502-19 conduct violating a penal law of the grade of felony; and
502-20 (15) has not made any material misrepresentation, or
502-21 failed to disclose any material fact, in an application submitted
502-22 pursuant to Section 411.174 or in a request for application
502-23 submitted pursuant to Section 411.175.
502-24 (b) Section 2, Chapter 1261, and Section 21.44, Chapter
502-25 1423, Acts of the 75th Legislature, Regular Session, 1997, are
502-26 repealed.
503-1 SECTION 9.04. (a) Section 411.172, Government Code, is
503-2 amended to conform to Section 3, Chapter 1261, Acts of the 75th
503-3 Legislature, Regular Session, 1997, by adding Subsections (d), (e),
503-4 and (f) to read as follows:
503-5 (d) For purposes of Subsection (a)(7), a person is incapable
503-6 of exercising sound judgment with respect to the proper use and
503-7 storage of a handgun if the person:
503-8 (1) has been diagnosed by a licensed physician as
503-9 suffering from a psychiatric disorder or condition that causes or
503-10 is likely to cause substantial impairment in judgment, mood,
503-11 perception, impulse control, or intellectual ability;
503-12 (2) suffers from a psychiatric disorder or condition
503-13 described by Subdivision (1) that:
503-14 (A) is in remission but is reasonably likely to
503-15 redevelop at a future time; or
503-16 (B) requires continuous medical treatment to
503-17 avoid redevelopment;
503-18 (3) has been diagnosed by a licensed physician or
503-19 declared by a court to be incompetent to manage the person's own
503-20 affairs; or
503-21 (4) has entered in a criminal proceeding a plea of not
503-22 guilty by reason of insanity.
503-23 (e) The following constitutes evidence that a person has a
503-24 psychiatric disorder or condition described by Subsection (d)(1):
503-25 (1) involuntary psychiatric hospitalization in the
503-26 preceding five-year period;
504-1 (2) psychiatric hospitalization in the preceding
504-2 two-year period;
504-3 (3) inpatient or residential substance abuse treatment
504-4 in the preceding five-year period;
504-5 (4) diagnosis in the preceding five-year period by a
504-6 licensed physician that the person is dependent on alcohol, a
504-7 controlled substance, or a similar substance; or
504-8 (5) diagnosis at any time by a licensed physician that
504-9 the person suffers or has suffered from a psychiatric disorder or
504-10 condition consisting of or relating to:
504-11 (A) schizophrenia or delusional disorder;
504-12 (B) bipolar disorder;
504-13 (C) chronic dementia, whether caused by illness,
504-14 brain defect, or brain injury;
504-15 (D) dissociative identity disorder;
504-16 (E) intermittent explosive disorder; or
504-17 (F) antisocial personality disorder.
504-18 (f) Notwithstanding Subsection (d), a person who has
504-19 previously been diagnosed as suffering from a psychiatric disorder
504-20 or condition described by Subsection (d) or listed in Subsection
504-21 (e) is not because of that disorder or condition incapable of
504-22 exercising sound judgment with respect to the proper use and
504-23 storage of a handgun if the person provides the department with a
504-24 certificate from a licensed physician whose primary practice is in
504-25 the field of psychiatry stating that the psychiatric disorder or
504-26 condition is in remission and is not reasonably likely to develop
505-1 at a future time.
505-2 (b) Section 3, Chapter 1261, Acts of the 75th Legislature,
505-3 Regular Session, 1997, is repealed.
505-4 SECTION 9.05. (a) Section 411.173, Government Code, is
505-5 amended to conform to Section 15, Chapter 1261, Acts of the 75th
505-6 Legislature, Regular Session, 1997, to read as follows:
505-7 Sec. 411.173. NONRESIDENT [RECIPROCAL] LICENSE. (a) The
505-8 department by rule shall establish a procedure for a person who is
505-9 a legal resident of a state that does not provide for the issuance
505-10 of a license to carry a concealed handgun and who meets the
505-11 eligibility requirements of this subchapter other than the
505-12 residency requirement established by Section 411.172(a)(1) to
505-13 obtain a license under this subchapter. The procedure must include
505-14 payment of a fee in an amount sufficient to recover the average
505-15 cost to the department of obtaining a criminal history record check
505-16 and investigation on a nonresident applicant.
505-17 (b) The department shall negotiate an agreement with any
505-18 other state that provides for the issuance of a license to carry a
505-19 concealed handgun under which a license issued by the other state
505-20 is recognized in this state [On application by a person who has a
505-21 valid license to carry a concealed handgun issued by another state,
505-22 the department may issue to the person a license under this
505-23 subchapter without requiring that the person meet eligibility
505-24 requirements or pay fees otherwise imposed under this subchapter,
505-25 but only] if the department determines that:
505-26 (1) the eligibility requirements imposed by the other
506-1 state include background check requirements that meet or exceed
506-2 background check [are at least as rigorous as the] requirements
506-3 imposed by federal law as a condition of receiving a handgun [this
506-4 subchapter]; and
506-5 (2) the other state recognizes [provides reciprocal
506-6 licensing privileges to a person who holds] a license issued in
506-7 [under] this [subchapter and applies for a license in the other]
506-8 state.
506-9 (b) Section 15, Chapter 1261, Acts of the 75th Legislature,
506-10 Regular Session, 1997, is repealed.
506-11 SECTION 9.06. (a) Section 411.174(a), Government Code, is
506-12 amended to conform to Section 4, Chapter 1261, Acts of the 75th
506-13 Legislature, Regular Session, 1997, to read as follows:
506-14 (a) An applicant for a license to carry a concealed handgun
506-15 must submit to the director's designee described by Section
506-16 411.176:
506-17 (1) a completed application on a form provided by the
506-18 department that requires only the information listed in Subsection
506-19 (b);
506-20 (2) two recent color passport photographs of the
506-21 applicant;
506-22 (3) a certified copy of the applicant's birth
506-23 certificate or certified proof of age;
506-24 (4) proof of residency in this state;
506-25 (5) two complete sets of legible and classifiable
506-26 fingerprints of the applicant taken by a person [employed by a law
507-1 enforcement agency who is] appropriately trained in recording
507-2 fingerprints who is employed by a law enforcement agency or by a
507-3 private entity designated by a law enforcement agency as an entity
507-4 qualified to take fingerprints of an applicant for a license under
507-5 this subchapter;
507-6 (6) a nonrefundable application and license fee of
507-7 $140 paid to the department;
507-8 (7) a handgun proficiency certificate described by
507-9 Section 411.189;
507-10 (8) an affidavit signed by the applicant stating that
507-11 the applicant:
507-12 (A) has read and understands each provision of
507-13 this subchapter that creates an offense under the laws of this
507-14 state and each provision of the laws of this state related to use
507-15 of deadly force; and
507-16 (B) fulfills all the eligibility requirements
507-17 listed under Section 411.172; and
507-18 (9) a form executed by the applicant that authorizes
507-19 the director to make an inquiry into any noncriminal history
507-20 records that are necessary to determine the applicant's eligibility
507-21 for a license under Section 411.172(a).
507-22 (b) Section 4, Chapter 1261, Acts of the 75th Legislature,
507-23 Regular Session, 1997, is repealed.
507-24 SECTION 9.07. (a) Section 411.176(b), Government Code, is
507-25 amended to conform to Section 5, Chapter 1261, Acts of the 75th
507-26 Legislature, Regular Session, 1997, to read as follows:
508-1 (b) The director's designee as needed shall conduct an
508-2 additional criminal history record check of the applicant and an
508-3 investigation of the applicant's local official records to verify
508-4 the accuracy of the application materials. The scope of the record
508-5 check and the investigation are at the sole discretion of the
508-6 department, except that the director's designee shall complete the
508-7 record check and investigation not later than the 60th day after
508-8 the date the department receives the application materials. The
508-9 department shall send a fingerprint card to the Federal Bureau of
508-10 Investigation for a national criminal history check of the
508-11 applicant. On completion of the investigation, the director's
508-12 designee shall return all materials and the result of the
508-13 investigation to the appropriate division of the department at its
508-14 Austin headquarters. The director's designee may submit to the
508-15 appropriate division of the department, at the department's Austin
508-16 headquarters, along with the application materials a written
508-17 recommendation for disapproval of the application, accompanied by
508-18 an affidavit stating personal knowledge or naming persons with
508-19 personal knowledge of a ground for denial under Section 411.172.
508-20 The director's designee in the appropriate geographical area may
508-21 also submit the application and the recommendation that the license
508-22 be issued. On receipt at the department's Austin headquarters of
508-23 the application materials and the result of the investigation by
508-24 the director's designee, the department shall conduct any further
508-25 record check or investigation the department determines is
508-26 necessary if a question exists with respect to the accuracy of the
509-1 application materials or the eligibility of the applicant, except
509-2 that the department shall complete the record check and
509-3 investigation not later than the 180th day after the date the
509-4 department receives the application materials from the applicant.
509-5 (b) Section 5, Chapter 1261, Acts of the 75th Legislature,
509-6 Regular Session, 1997, is repealed.
509-7 SECTION 9.08. (a) Section 411.177(b), Government Code, is
509-8 amended to conform to Section 6, Chapter 1261, Acts of the 75th
509-9 Legislature, Regular Session, 1997, to read as follows:
509-10 (b) The department shall, not later than the 60th day after
509-11 the date of the receipt by the director's designee of the completed
509-12 application materials[, shall]:
509-13 (1) issue the license; [or]
509-14 (2) notify the applicant in writing that the
509-15 application was denied:
509-16 (A) on the grounds that the applicant failed to
509-17 qualify under the criteria listed in Section 411.172;
509-18 (B) based on the affidavit of the director's
509-19 designee submitted to the department under Section 411.176(b); or
509-20 (C) based on the affidavit of the qualified
509-21 handgun instructor submitted to the department under Section
509-22 411.189(c); or
509-23 (3) notify the applicant in writing that the
509-24 department is unable to make a determination regarding the issuance
509-25 or denial of a license to the applicant within the 60-day period
509-26 prescribed by this subsection and include in that notification an
510-1 explanation of the reason for the inability and an estimation of
510-2 the amount of time the department will need to make the
510-3 determination.
510-4 (b) Section 6, Chapter 1261, Acts of the 75th Legislature,
510-5 Regular Session, 1997, is repealed.
510-6 SECTION 9.09. (a) Section 411.186(a), Government Code, is
510-7 amended to conform to Section 8, Chapter 1261, Acts of the 75th
510-8 Legislature, Regular Session, 1997, to read as follows:
510-9 (a) A license may be revoked under this section if the
510-10 license holder:
510-11 (1) was not entitled to the license at the time it was
510-12 issued;
510-13 (2) gave false information on the application;
510-14 (3) subsequently becomes ineligible for a license
510-15 under Section 411.172, unless the sole basis for the ineligibility
510-16 is that the license holder is charged with the commission of a
510-17 Class A or Class B misdemeanor or an offense under Section 42.01,
510-18 Penal Code, or of a felony under an information or indictment; [or]
510-19 (4) is convicted of an offense under Section 46.035,
510-20 Penal Code; or
510-21 (5) is determined by the department to have engaged in
510-22 conduct constituting a reason to suspend a license listed in
510-23 Section 411.187(a) after the person's license has been previously
510-24 suspended twice for the same reason.
510-25 (b) Section 8, Chapter 1261, Acts of the 75th Legislature,
510-26 Regular Session, 1997, is repealed.
511-1 SECTION 9.10. (a) Sections 411.187(a) and (c), Government
511-2 Code, are amended to conform to Section 9, Chapter 1261, Acts of
511-3 the 75th Legislature, Regular Session, 1997, to read as follows:
511-4 (a) A license may be suspended under this section if the
511-5 license holder:
511-6 (1) is charged with the commission of a Class A or
511-7 Class B misdemeanor or an offense [convicted of disorderly conduct
511-8 punishable as a Class C misdemeanor] under Section 42.01, Penal
511-9 Code, or of a felony under an information or indictment;
511-10 (2) fails to display a license as required by Section
511-11 411.205;
511-12 (3) fails to notify the department of a change of
511-13 address or name as required by Section 411.181;
511-14 (4) carries a concealed handgun under the authority of
511-15 this subchapter of a different category than the license holder is
511-16 licensed to carry; or
511-17 (5) [has been charged by indictment with the
511-18 commission of an offense that would make the license holder
511-19 ineligible for a license on conviction; or]
511-20 [(6)] fails to return a previously issued license
511-21 after a license is modified as required by Section 411.184(d).
511-22 (c) A license may be suspended under this section:
511-23 (1) for 30 days, if the person's license is subject to
511-24 suspension for a reason listed in Subsection (a)(3), (4), or (5),
511-25 except as provided by Subdivision (3);
511-26 (2) for 90 days, if the person's license is subject to
512-1 suspension for a reason listed in Subsection (a)(2), except as
512-2 provided by Subdivision (3);
512-3 (3) for not less than one year and not more than three
512-4 years if the person's license is subject to suspension for a reason
512-5 listed in Subsection (a), other than the reason listed in
512-6 Subsection (a)(1), and the person's license has been previously
512-7 suspended for the same reason; or
512-8 (4) until dismissal of the charges if the person's
512-9 license is subject to suspension for the reason listed in
512-10 Subsection (a)(1).
512-11 (b) Section 9, Chapter 1261, Acts of the 75th Legislature,
512-12 Regular Session, 1997, is repealed.
512-13 SECTION 9.11. (a) Section 411.188(a), Government Code, is
512-14 amended to conform to Section 10, Chapter 1261, Acts of the 75th
512-15 Legislature, Regular Session, 1997, to read as follows:
512-16 (a) The director by rule shall establish minimum standards
512-17 for handgun proficiency and shall develop a course to teach handgun
512-18 proficiency and examinations to measure handgun proficiency. The
512-19 course to teach handgun proficiency must contain training sessions
512-20 divided into two parts. One part of the course must be classroom
512-21 instruction and the other part must be range instruction and an
512-22 actual demonstration by the applicant of the applicant's ability to
512-23 safely and proficiently use the category of handgun for which the
512-24 applicant seeks certification. An applicant may not be certified
512-25 unless the applicant demonstrates, at a minimum, the degree of
512-26 proficiency that is required to effectively operate a [9-millimeter
513-1 or .38-caliber] handgun of .32 caliber or above. The department
513-2 shall distribute the standards, course requirements, and
513-3 examinations on request to any qualified handgun instructor.
513-4 (b) Section 10, Chapter 1261, Acts of the 75th Legislature,
513-5 Regular Session, 1997, is repealed.
513-6 SECTION 9.12. (a) Section 411.189(c), Government Code, is
513-7 amended to conform to Section 11, Chapter 1261, Acts of the 75th
513-8 Legislature, Regular Session, 1997, to read as follows:
513-9 (c) A qualified handgun instructor may submit to the
513-10 department a written recommendation for disapproval of the
513-11 application for a license, renewal, or modification of a license,
513-12 accompanied by an affidavit stating personal knowledge or naming
513-13 persons with personal knowledge of facts that lead the instructor
513-14 to believe that an applicant is not qualified for handgun
513-15 proficiency certification. The department may use a written
513-16 recommendation submitted under this subsection as the basis for
513-17 denial of a license only if the department determines that the
513-18 recommendation is made in good faith and is supported by a
513-19 preponderance of the evidence. The department shall make a
513-20 determination under this subsection not later than the 45th day
513-21 after the date the department receives the written recommendation.
513-22 The 60-day period in which the department must take action under
513-23 Section 411.177(b) is extended one day for each day a determination
513-24 is pending under this subsection.
513-25 (b) Section 11, Chapter 1261, Acts of the 75th Legislature,
513-26 Regular Session, 1997, is repealed.
514-1 SECTION 9.13. (a) Sections 411.190(c) and (f), Government
514-2 Code, are amended to conform to Section 12, Chapter 1261, Acts of
514-3 the 75th Legislature, Regular Session, 1997, to read as follows:
514-4 (c) The department shall provide training to an individual
514-5 who applies for certification as a qualified handgun instructor.
514-6 An applicant shall pay a fee of $100 to the department for the
514-7 training. An applicant must take and successfully complete the
514-8 training offered by the department and pay the training fee before
514-9 the department may certify the applicant as a qualified handgun
514-10 instructor. The department shall issue [waive the requirements
514-11 regarding a handgun proficiency certification under Section 411.189
514-12 for an applicant for] a license to carry a concealed handgun under
514-13 the authority of this subchapter to any person who is certified as
514-14 a qualified handgun instructor and who pays to the department a fee
514-15 of $100 in addition to [takes and successfully completes training
514-16 under this subsection and pays] the training fee. The department
514-17 by rule may prorate or waive the training fee for an employee of
514-18 another governmental entity.
514-19 (f) If the department determines that a reason exists to
514-20 revoke, suspend, or deny a license to carry a concealed handgun
514-21 with respect to a person who is a qualified handgun instructor or
514-22 an applicant for certification as a qualified handgun instructor,
514-23 the department shall take that action against the person's:
514-24 (1) license to carry a concealed handgun if the person
514-25 is an applicant for or the holder of a license issued under this
514-26 subchapter; and
515-1 (2) certification as a qualified handgun instructor
515-2 [regardless of whether the person has a license issued under this
515-3 subchapter to carry a concealed handgun].
515-4 (b) Section 12, Chapter 1261, Acts of the 75th Legislature,
515-5 Regular Session, 1997, is repealed.
515-6 SECTION 9.14. Sections 411.199(b) and (g), Government Code,
515-7 are amended to conform to Section 13, Chapter 1261, Acts of the
515-8 75th Legislature, Regular Session, 1997, to read as follows:
515-9 (b) The person shall submit two complete sets of legible and
515-10 classifiable fingerprints and a sworn statement from the head of
515-11 the law enforcement agency employing the applicant. A head of a
515-12 law enforcement agency may not refuse to issue a statement under
515-13 this subsection. If the applicant alleges that the statement is
515-14 untrue, the department shall investigate the validity of the
515-15 statement. The statement must include:
515-16 (1) the name and rank of the applicant;
515-17 (2) the status of the applicant before retirement;
515-18 (3) whether or not the applicant was accused of
515-19 misconduct at the time of the retirement;
515-20 (4) the physical and mental condition of the
515-21 applicant;
515-22 (5) the type of weapons the applicant had demonstrated
515-23 proficiency with during the last year of employment;
515-24 (6) whether the applicant would be eligible for
515-25 reemployment with the agency, and if not, the reasons the applicant
515-26 is not eligible; and
516-1 (7) a recommendation from the agency head regarding
516-2 the issuance of a license under this subchapter.
516-3 (g) A retired officer [criminal investigator] of the United
516-4 States who was eligible to carry a firearm in the discharge of the
516-5 officer's official duties [is designated as a "special agent"] is
516-6 eligible for a license under this section. An applicant described
516-7 by this subsection may submit the application at any time after
516-8 retirement. The applicant shall submit with the application proper
516-9 proof of retired status by presenting the following documents
516-10 prepared by the agency from which the applicant retired:
516-11 (1) retirement credentials; and
516-12 (2) a letter from the agency head stating the
516-13 applicant retired in good standing.
516-14 SECTION 9.15. (a) Subchapter H, Chapter 411, Government
516-15 Code, is amended to conform to Section 13, Chapter 1261, Acts of
516-16 the 75th Legislature, Regular Session, 1997, by adding Section
516-17 411.1991 to read as follows:
516-18 Sec. 411.1991. ACTIVE PEACE OFFICERS. (a) A person who is
516-19 licensed as a peace officer under Chapter 415 and is employed
516-20 full-time as a peace officer by a law enforcement agency may apply
516-21 for a license under this subchapter. The person shall submit to
516-22 the department two complete sets of legible and classifiable
516-23 fingerprints and a sworn statement of the head of the law
516-24 enforcement agency employing the applicant. A head of a law
516-25 enforcement agency may not refuse to issue a statement under this
516-26 subsection. If the applicant alleges that the statement is untrue,
517-1 the department shall investigate the validity of the statement.
517-2 The statement must include:
517-3 (1) the name and rank of the applicant;
517-4 (2) whether the applicant has been accused of
517-5 misconduct at any time during the applicant's period of employment
517-6 with the agency and the disposition of that accusation;
517-7 (3) a description of the physical and mental condition
517-8 of the applicant;
517-9 (4) a list of the types of weapons the applicant has
517-10 demonstrated proficiency with during the preceding year; and
517-11 (5) a recommendation from the agency head that a
517-12 license be issued to the person under this subchapter.
517-13 (b) The department may issue a license under this subchapter
517-14 to an applicant under this section if the statement from the head
517-15 of the law enforcement agency employing the applicant complies with
517-16 Subsection (a) and indicates that the applicant is qualified and
517-17 physically and mentally fit to carry a handgun.
517-18 (c) An applicant under this section shall pay a fee of $25
517-19 for a license issued under this subchapter.
517-20 (d) A license issued under this section expires as provided
517-21 by Section 411.183.
517-22 (b) Section 13, Chapter 1261, Acts of the 75th Legislature,
517-23 Regular Session, 1997, is repealed.
517-24 SECTION 9.16. (a) Section 411.204, Government Code, is
517-25 amended to conform to Section 14, Chapter 1261, Acts of the 75th
517-26 Legislature, Regular Session, 1997, by amending Subsections (a) and
518-1 (c) and adding Subsections (d) and (e) to read as follows:
518-2 (a) A business that has a permit or license issued under
518-3 Chapter 25, 28, 32, [or] 69, or 74, Alcoholic Beverage Code, and
518-4 that derives 51 percent or more of its income from the sale of
518-5 alcoholic beverages for on-premises consumption as determined by
518-6 the Texas Alcoholic Beverage Commission under Section 104.06,
518-7 Alcoholic Beverage Code, shall prominently display at each entrance
518-8 to the business premises a sign that complies with the requirements
518-9 of Subsection (c).
518-10 (c) The sign required under Subsections (a) and (b) must
518-11 give notice in both English and Spanish that it is unlawful for a
518-12 person licensed under this subchapter to carry a handgun on the
518-13 premises. The sign must appear in contrasting colors with block
518-14 letters at least one inch in height and must include on its face
518-15 the number "51" printed in solid red at least five inches in
518-16 height. The sign shall be displayed in a conspicuous manner
518-17 clearly visible to the public.
518-18 (d) A business that has a permit or license issued under the
518-19 Alcoholic Beverage Code and that is not required to display a sign
518-20 under this section may be required to display a sign under Section
518-21 11.041 or 61.11, Alcoholic Beverage Code.
518-22 (e) This section does not apply to a business that has a
518-23 food and beverage certificate issued under the Alcoholic Beverage
518-24 Code.
518-25 (b) Section 14, Chapter 1261, Acts of the 75th Legislature,
518-26 Regular Session, 1997, is repealed.
519-1 SECTION 9.17. (a) Section 411.205, Government Code, is
519-2 amended to conform to Section 7, Chapter 1261, Acts of the 75th
519-3 Legislature, Regular Session, 1997, to read as follows:
519-4 Sec. 411.205. DISPLAYING LICENSE; PENALTY. (a) [On a
519-5 demand by a magistrate or a peace officer that a license holder
519-6 display the license holder's handgun license, the license holder
519-7 shall display both the license and the license holder's driver's
519-8 license or identification certificate issued by the department.]
519-9 [(b)] If a license holder is carrying a handgun on or about
519-10 the license holder's person when a magistrate or a peace officer
519-11 demands that the license holder display identification, the license
519-12 holder shall display both the license holder's driver's license or
519-13 identification certificate issued by the department and the license
519-14 holder's handgun license. A person who fails or refuses to display
519-15 the license and identification as required by this subsection is
519-16 subject to suspension of the person's license as provided by
519-17 Section 411.187.
519-18 (b) [(c)] A person commits an offense if the person fails or
519-19 refuses to display the license and identification as required by
519-20 Subsection (a) after previously having had the person's license
519-21 suspended for a violation of that subsection [or (b)]. An offense
519-22 under this subsection is a Class B misdemeanor.
519-23 (b) Section 7, Chapter 1261, Acts of the 75th Legislature,
519-24 Regular Session, 1997, is repealed.
519-25 SECTION 9.18. Section 11.041(a), Alcoholic Beverage Code, is
519-26 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
520-1 Legislature, Regular Session, 1997, to read as follows:
520-2 (a) Each holder of a permit who is not otherwise required to
520-3 display a sign under Section 411.204, Government Code [31, Article
520-4 4413(29ee), Revised Statutes], shall display in a prominent place
520-5 on the permit holder's premises a sign giving notice that it is
520-6 unlawful for a person to carry a weapon on the premises unless the
520-7 weapon is a concealed handgun of the same category the person is
520-8 licensed to carry under Subchapter H, Chapter 411, Government Code
520-9 [Article 4413(29ee), Revised Statutes].
520-10 SECTION 9.19. Section 11.61(e), Alcoholic Beverage Code, is
520-11 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
520-12 Legislature, Regular Session, 1997, to read as follows:
520-13 (e) Except as provided by Subsection (f), the commission or
520-14 administrator shall cancel an original or renewal permit if it is
520-15 found, after notice and hearing, that the permittee knowingly
520-16 allowed a person to possess a firearm in a building on the licensed
520-17 premises. This subsection does not apply to a person:
520-18 (1) who holds a security officer commission issued by
520-19 the Texas Board of Private Investigators and Private Security
520-20 Agencies, if:
520-21 (A) the person is engaged in the performance of
520-22 the person's duties as a security officer;
520-23 (B) the person is wearing a distinctive uniform;
520-24 and
520-25 (C) the weapon is in plain view;
520-26 (2) who is a peace officer;
521-1 (3) who is a permittee or an employee of a permittee
521-2 if the person is supervising the operation of the premises; or
521-3 (4) who possesses a concealed handgun of the same
521-4 category the person is licensed to carry under Subchapter H,
521-5 Chapter 411, Government Code [Article 4413(29ee), Revised
521-6 Statutes], unless the person is on the premises of a business
521-7 described by Section 46.035(b)(1), Penal Code.
521-8 SECTION 9.20. Section 61.11(a), Alcoholic Beverage Code, is
521-9 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
521-10 Legislature, Regular Session, 1997, to read as follows:
521-11 (a) Each holder of a license who is not otherwise required
521-12 to display a sign under Section 411.204, Government Code [31,
521-13 Article 4413(29ee), Revised Statutes], shall display in a prominent
521-14 place on the license holder's premises a sign giving notice that it
521-15 is unlawful for a person to carry a weapon on the premises unless
521-16 the weapon is a concealed handgun of the same category the person
521-17 is licensed to carry under Subchapter H, Chapter 411, Government
521-18 Code [Article 4413(29ee), Revised Statutes].
521-19 SECTION 9.21. Section 61.71(f), Alcoholic Beverage Code, is
521-20 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
521-21 Legislature, Regular Session, 1997, to read as follows:
521-22 (f) Except as provided by Subsection (g), the commission or
521-23 administrator shall cancel an original or renewal dealer's
521-24 on-premises or off-premises license if it is found, after notice
521-25 and hearing, that the licensee knowingly allowed a person to
521-26 possess a firearm in a building on the licensed premises. This
522-1 subsection does not apply to a person:
522-2 (1) who holds a security officer commission issued by
522-3 the Texas Board of Private Investigators and Private Security
522-4 Agencies, if:
522-5 (A) the person is engaged in the performance of
522-6 the person's duties as a security officer;
522-7 (B) the person is wearing a distinctive uniform;
522-8 and
522-9 (C) the weapon is in plain view;
522-10 (2) who is a peace officer;
522-11 (3) who is a licensee or an employee of a licensee if
522-12 the person is supervising the operation of the premises; or
522-13 (4) who possesses a concealed handgun of the same
522-14 category the person is licensed to carry under Subchapter H,
522-15 Chapter 411, Government Code [Article 4413(29ee), Revised
522-16 Statutes], unless the person is on the premises of a business
522-17 described by Section 46.035(b)(1), Penal Code.
522-18 SECTION 9.22. Section 104.06(c), Alcoholic Beverage Code, is
522-19 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
522-20 Legislature, Regular Session, 1997, to read as follows:
522-21 (c) If the commission makes a determination under Subsection
522-22 (a) that a holder of a license or permit receives 51 percent or
522-23 more of the gross receipts of the premises from the sale or service
522-24 of alcoholic beverages, the holder shall comply with the
522-25 requirements of Section 411.204, Government Code [31, Article
522-26 4413(29ee), Revised Statutes], and shall continue to comply with
523-1 those requirements until the commission determines that the holder
523-2 receives less than 51 percent of the gross receipts of the premises
523-3 from the sale or service of alcoholic beverages for on-premises
523-4 consumption.
523-5 SECTION 9.23. Section 12.092(b), Health and Safety Code, is
523-6 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
523-7 Legislature, Regular Session, 1997, to read as follows:
523-8 (b) The medical advisory board shall assist the Department
523-9 of Public Safety of the State of Texas in determining whether:
523-10 (1) an applicant for a driver's license or a license
523-11 holder is capable of safely operating a motor vehicle; or
523-12 (2) an applicant for or holder of a license to carry a
523-13 concealed handgun under the authority of Subchapter H, Chapter 411,
523-14 Government Code [Article 4413(29ee), Revised Statutes], is capable
523-15 of exercising sound judgment with respect to the proper use and
523-16 storage of a handgun.
523-17 SECTION 9.24. Sections 30.06(a) and (c), Penal Code, are
523-18 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
523-19 Legislature, Regular Session, 1997, to read as follows:
523-20 (a) A license holder commits an offense if the license
523-21 holder:
523-22 (1) carries a handgun under the authority of
523-23 Subchapter H, Chapter 411, Government Code [Article 4413(29ee),
523-24 Revised Statutes], on property of another without effective
523-25 consent; and
523-26 (2) received notice that:
524-1 (A) entry on the property by a license holder
524-2 with a concealed handgun was forbidden; or
524-3 (B) remaining on the property with a concealed
524-4 handgun was forbidden and failed to depart.
524-5 (c) In this section:
524-6 (1) "Entry" has the meaning assigned by Section
524-7 30.05(b).
524-8 (2) "License holder" has the meaning assigned by
524-9 Section 46.035(f).
524-10 (3) "Written communication" means:
524-11 (A) a card or other document on which is written
524-12 language identical to the following: "Pursuant to Section 30.06,
524-13 Penal Code (trespass by holder of license to carry a concealed
524-14 handgun), a person licensed under Subchapter H, Chapter 411,
524-15 Government Code [Article 4413(29ee), Revised Statutes] (concealed
524-16 handgun law), may not enter this property with a concealed
524-17 handgun"; or
524-18 (B) a sign posted on the property that:
524-19 (i) includes the language described by
524-20 Paragraph (A) in both English and Spanish;
524-21 (ii) appears in contrasting colors with
524-22 block letters at least one inch in height; and
524-23 (iii) is displayed in a conspicuous manner
524-24 clearly visible to the public.
524-25 SECTION 9.25. Section 46.15(a), Penal Code, is amended to
524-26 conform to Section 10.01, Chapter 165, Acts of the 75th
525-1 Legislature, Regular Session, 1997, to read as follows:
525-2 (a) Sections 46.02 and 46.03 do not apply to:
525-3 (1) peace officers and neither section prohibits a
525-4 peace officer from carrying a weapon in this state, regardless of
525-5 whether the officer is engaged in the actual discharge of the
525-6 officer's duties while carrying the weapon;
525-7 (2) parole officers and neither section prohibits an
525-8 officer from carrying a weapon in this state if the officer is:
525-9 (A) engaged in the actual discharge of the
525-10 officer's duties while carrying the weapon; and
525-11 (B) in compliance with policies and procedures
525-12 adopted by the Texas Department of Criminal Justice regarding the
525-13 possession of a weapon by an officer while on duty;
525-14 (3) community supervision and corrections department
525-15 officers appointed or employed under Section 76.004, Government
525-16 Code, and neither section prohibits an officer from carrying a
525-17 weapon in this state if the officer is:
525-18 (A) engaged in the actual discharge of the
525-19 officer's duties while carrying the weapon; and
525-20 (B) authorized to carry a weapon under Section
525-21 76.0051, Government Code; or
525-22 (4) a judge or justice of the supreme court, the court
525-23 of criminal appeals, a court of appeals, a district court, a
525-24 criminal district court, a constitutional county court, a statutory
525-25 county court, a justice court, or a municipal court who is licensed
525-26 to carry a concealed handgun under Subchapter H, Chapter 411,
526-1 Government Code [Article 4413(29ee), Revised Statutes].
526-2 ARTICLE 10. CHANGES RELATING TO BOARD OF
526-3 PARDONS AND PAROLES
526-4 SECTION 10.01. Section 508.001, Government Code, is amended
526-5 to conform to Section 1, Chapter 161, Acts of the 75th Legislature,
526-6 Regular Session, 1997, by renumbering existing Subdivision (8) as
526-7 Subdivision (9) and adding a new Subdivision (8) to read as
526-8 follows:
526-9 (8) "Policy board" means the Board of Pardons and
526-10 Paroles Policy Board.
526-11 SECTION 10.02. Section 508.033(c), Government Code, is
526-12 amended to conform to Section 2, Chapter 161, Acts of the 75th
526-13 Legislature, Regular Session, 1997, to read as follows:
526-14 (c) An employee or paid officer of or consultant to a trade
526-15 association in the field of criminal justice may not be:
526-16 (1) a member of the board; or
526-17 (2) an employee of the division or the board who is
526-18 exempt from the state's position classification plan or who is
526-19 compensated at or above the amount prescribed by the General
526-20 Appropriations Act for step 1, salary group A17, of the position
526-21 classification salary schedule.
526-22 SECTION 10.03. Section 508.033(d), Government Code, is
526-23 amended to conform to Section 2, Chapter 161, Acts of the 75th
526-24 Legislature, Regular Session, 1997, to read as follows:
526-25 (d) A person who is the spouse of an officer or [a] manager
526-26 of or paid consultant to a trade association in the field of
527-1 criminal justice may not be:
527-2 (1) a member of the board; or
527-3 (2) an employee of the division or the board[,
527-4 including an employee] who is:
527-5 (A) exempt from the state's classification plan;
527-6 or [and]
527-7 (B) compensated at or above the amount
527-8 prescribed by the General Appropriations Act for step 1, salary
527-9 group A17 [17], of the position classification salary schedule.
527-10 SECTION 10.04. Section 508.033(e), Government Code, is
527-11 amended to conform to Section 2, Chapter 161, Acts of the 75th
527-12 Legislature, Regular Session, 1997, to read as follows:
527-13 (e) A person who is required to register as a lobbyist under
527-14 Chapter 305 because of the person's activities for compensation in
527-15 or on behalf of a profession related to the operation of the board
527-16 may not:
527-17 (1) serve as a member of the board; or
527-18 (2) act as the general counsel to the board or
527-19 division.
527-20 SECTION 10.05. Section 508.034, Government Code, is amended
527-21 to conform to Section 2, Chapter 161, Acts of the 75th Legislature,
527-22 Regular Session, 1997, to read as follows:
527-23 Sec. 508.034. GROUNDS FOR REMOVAL. (a) It is a ground for
527-24 removal from the board if a member:
527-25 (1) at the time of appointment is not qualified under
527-26 Section 508.032 or 508.033(a) for appointment to the board;
528-1 (2) during the member's service on the board becomes
528-2 ineligible under Section 508.033(a) for appointment to the board;
528-3 (3) violates Section 508.033(c), (d), or (e);
528-4 (4) is unable to discharge the member's duties for a
528-5 substantial part of the term for which the member is [was]
528-6 appointed because of illness or disability; or
528-7 (5) is absent from more than half of the regularly
528-8 scheduled board or panel meetings that the member is eligible to
528-9 attend during each calendar year, except when the absence is
528-10 excused by majority vote of the board.
528-11 (b) It is a ground for removal from the board and the policy
528-12 board if a member of the policy board is absent from more than half
528-13 of the regularly scheduled policy board meetings that the member is
528-14 eligible to attend during each calendar year.
528-15 (c) The board administrator or the board administrator's
528-16 designee shall provide to members of the board, to members of the
528-17 policy board, and to employees, as often as necessary, information
528-18 regarding their qualification for office or employment under this
528-19 chapter and their responsibilities under applicable laws relating
528-20 to standards of conduct for state officers or employees.
528-21 (d) The validity of an action of:
528-22 (1) the board or panel is not affected by the fact
528-23 that the action is [was] taken when a ground for removal of a board
528-24 member exists; and
528-25 (2) the policy board is not affected by the fact that
528-26 the action is taken when a ground for removal of a member of the
529-1 policy board exists [existed].
529-2 (e) [(c)] If the general counsel to the board [director] has
529-3 knowledge that a potential ground for removal exists, the general
529-4 counsel [director] shall notify the presiding officer of the board
529-5 of the potential ground. The presiding officer shall notify the
529-6 governor and the attorney general that a potential ground for
529-7 removal exists. If the potential ground for removal involves the
529-8 presiding officer, the general counsel to the board shall notify
529-9 the governor and the attorney general that a potential ground for
529-10 removal exists.
529-11 SECTION 10.06. Section 508.036, Government Code, is amended
529-12 to conform to Sections 4 and 5, Chapter 161, Acts of the 75th
529-13 Legislature, Regular Session, 1997, to read as follows:
529-14 Sec. 508.036. POLICY BOARD: COMPOSITION; GENERAL DUTIES.
529-15 (a) The governor shall designate six members of the board to serve
529-16 as the Board of Pardons and Paroles Policy Board. The governor
529-17 shall designate the presiding officer of the board as one of the
529-18 six members of the policy board, and the presiding officer of the
529-19 board shall serve as presiding officer of the policy board.
529-20 Service on the policy board is an additional duty of office for
529-21 members appointed to the policy board.
529-22 (b) Members of the board designated as members of the policy
529-23 board serve on the policy board for six-year terms that are
529-24 concurrent with their six-year terms on the board, with the service
529-25 of two members expiring February 1 of each odd-numbered year.
529-26 (c) The policy board shall:
530-1 (1) adopt rules relating to the decision-making
530-2 processes used by the board and parole panels;
530-3 (2) establish caseloads for members of the board and
530-4 assign duties to members of the policy board that are in addition
530-5 to the duties those members have in handling a caseload;
530-6 (3) update parole guidelines, assign precedential
530-7 value to previous decisions of the board relating to the granting
530-8 of parole and the revocation of parole or mandatory supervision,
530-9 and develop policies to ensure that members of the board use
530-10 guidelines and previous decisions of the board in making decisions
530-11 under this chapter;
530-12 (4) require members of the board to file activity
530-13 reports, on forms provided by the policy board, that provide
530-14 information on release decisions made by members of the board, the
530-15 workload of the members of the board, and the use of parole
530-16 guidelines by members of the board; and
530-17 (5) report at least annually to the governor and the
530-18 legislature on board activities, parole release decisions, and the
530-19 use of parole guidelines by the board. [EXECUTIVE COMMITTEE.
530-20 (a) To facilitate the work of the board, the governor shall
530-21 appoint the presiding officer of the board to serve as presiding
530-22 officer of the executive committee.]
530-23 [(b) The presiding officer shall appoint six board members
530-24 to serve on the executive committee. An executive committee member
530-25 serves in that capacity at the pleasure of the presiding officer.]
530-26 [(c) The executive committee shall:]
531-1 [(1) coordinate activities of the board;]
531-2 [(2) assure maximum efficiency and fair distribution
531-3 of the caseload; and]
531-4 [(3) administer other matters as required by the
531-5 presiding officer.]
531-6 SECTION 10.07. Subchapter B, Chapter 508, Government Code,
531-7 is amended to conform to Section 6, Chapter 161, Acts of the 75th
531-8 Legislature, Regular Session, 1997, by adding Section 508.0361 to
531-9 read as follows:
531-10 Sec. 508.0361. POLICY BOARD: GENERAL ADMINISTRATIVE
531-11 PROVISIONS. (a) The policy board shall:
531-12 (1) develop and implement policies that clearly
531-13 separate the policy-making responsibilities of the policy board and
531-14 the management responsibilities of the board administrator and the
531-15 staff of the board;
531-16 (2) prepare information of public interest describing
531-17 the functions of the board and make the information available to
531-18 the public and appropriate state agencies;
531-19 (3) comply with federal and state laws related to
531-20 program and facility accessibility; and
531-21 (4) prepare annually a complete and detailed written
531-22 report that meets the reporting requirements applicable to
531-23 financial reporting provided in the General Appropriations Act and
531-24 accounts for all funds received and disbursed by the board during
531-25 the preceding fiscal year.
531-26 (b) The board administrator shall prepare and maintain a
532-1 written plan that describes how a person who does not speak English
532-2 can be provided reasonable access to the board's programs and
532-3 services.
532-4 (c) The policy board is subject to the open meetings law,
532-5 Chapter 551, and the administrative procedure law, Chapter 2001, as
532-6 if it were, respectively, a governmental body or a state agency
532-7 under those laws. This subsection does not affect the provisions
532-8 of Section 2001.223 exempting hearings and interviews conducted by
532-9 the board or the division from Section 2001.038 and Subchapters
532-10 C-H, Chapter 2001.
532-11 (d) Members of the board who are not members of the policy
532-12 board may participate in policy board meetings but may not vote.
532-13 SECTION 10.08. Subchapter B, Chapter 508, Government Code,
532-14 is amended to conform to Section 7, Chapter 161, Acts of the 75th
532-15 Legislature, Regular Session, 1997, by adding Section 508.0362 to
532-16 read as follows:
532-17 Sec. 508.0362. TRAINING REQUIRED. (a) To be eligible to
532-18 take office as a member of the board or the policy board, a person
532-19 appointed to the board or policy board must complete at least one
532-20 course of a training program that complies with this section.
532-21 (b) A training program must provide information to the
532-22 person regarding:
532-23 (1) the enabling legislation that created the board
532-24 and the policy board;
532-25 (2) the programs operated by the board;
532-26 (3) the role and functions of the board;
533-1 (4) the rules of the board;
533-2 (5) the current budget for the board;
533-3 (6) the results of the most recent formal audit of the
533-4 board;
533-5 (7) the requirements of the:
533-6 (A) open meetings law, Chapter 551;
533-7 (B) open records law, Chapter 552; and
533-8 (C) administrative procedure law, Chapter 2001;
533-9 (8) the requirements of the conflict of interest laws
533-10 and other laws relating to public officials; and
533-11 (9) any applicable ethics policies adopted by the
533-12 policy board or the Texas Ethics Commission.
533-13 (c) A person appointed to the board or policy board is
533-14 entitled to reimbursement for travel expenses incurred in attending
533-15 the training program, as provided by the General Appropriations Act
533-16 and as if the person were a member of the board or policy board.
533-17 SECTION 10.09. Section 508.040, Government Code, is amended
533-18 to conform to Sections 5 and 6, Chapter 161, Acts of the 75th
533-19 Legislature, Regular Session, 1997, to read as follows:
533-20 Sec. 508.040. PERSONNEL. (a) The policy board shall employ
533-21 and supervise:
533-22 (1) a general counsel to the board;
533-23 (2) a board administrator to manage the day-to-day
533-24 activities of the board [an administrative assistant];
533-25 (3) hearing officers;
533-26 (4) personnel to assist in clemency matters; and
534-1 (5) secretarial or clerical personnel.
534-2 (b) The board administrator or the board administrator's
534-3 designee shall prepare and maintain a written policy statement to
534-4 ensure implementation of a program of equal employment opportunity
534-5 under which all personnel transactions of the board are made
534-6 without regard to race, color, disability, sex, religion, age, or
534-7 national origin. The policy statement must include:
534-8 (1) personnel policies, including policies relating to
534-9 recruitment, evaluation, selection, appointment, training, and
534-10 promotion of personnel that are in compliance with requirements of
534-11 Chapter 21, Labor Code;
534-12 (2) a comprehensive analysis of the board workforce
534-13 that meets federal and state laws, rules, and regulations, and
534-14 instructions promulgated directly from those laws, rules, and
534-15 regulations;
534-16 (3) procedures by which a determination can be made
534-17 about the extent of underuse in the board workforce of all persons
534-18 for whom federal or state laws, rules, and regulations, and
534-19 instructions promulgated directly from those laws, rules, and
534-20 regulations, encourage a more equitable balance; and
534-21 (4) reasonable methods to appropriately address those
534-22 areas of underuse.
534-23 (c) A policy statement prepared under Subsection (b) must
534-24 cover an annual period, be updated annually and reviewed by the
534-25 Commission on Human Rights for compliance with Subsection (b)(1),
534-26 and be filed with the governor's office.
535-1 (d) The governor's office shall deliver a biennial report to
535-2 the legislature based on the information received under Subsection
535-3 (c). The report may be made separately or as a part of other
535-4 biennial reports made to the legislature.
535-5 (e) The board administrator or the board administrator's
535-6 designee shall develop an intra-agency career ladder program that
535-7 addresses opportunities for mobility and advancement for employees
535-8 within the board. The program shall require intra-agency posting
535-9 of all positions concurrently with any public posting.
535-10 (f) The board administrator or the board administrator's
535-11 designee shall develop a system of annual performance evaluations
535-12 that are based on documented employee performance. All merit pay
535-13 for board employees must be based on the system established under
535-14 this subsection. [The board may adopt rules as necessary for the
535-15 employment and supervision of board personnel.]
535-16 [(c) The board shall develop and implement personnel
535-17 policies.]
535-18 SECTION 10.10. Section 508.041, Government Code, is amended
535-19 to conform to Sections 10 and 11, Chapter 161, Acts of the 75th
535-20 Legislature, Regular Session, 1997, to read as follows:
535-21 Sec. 508.041. DESIGNEE TRAINING; HANDBOOK. (a) The policy
535-22 board shall develop and implement:
535-23 (1) a training program that each newly hired employee
535-24 of the board designated to conduct hearings under Section 508.281
535-25 must complete before conducting a hearing without the assistance of
535-26 a board member or experienced designee; and
536-1 (2) a training program to provide an annual update to
536-2 designees of the board on issues and procedures relating to the
536-3 revocation process.
536-4 (b) The policy board shall prepare and biennially update a
536-5 procedural manual to be used by designees of the board. The policy
536-6 board shall include in the manual:
536-7 (1) descriptions of decisions in previous hearings
536-8 determined by the policy board to have value as precedents for
536-9 decisions in subsequent hearings;
536-10 (2) laws and court decisions relevant to decision
536-11 making in hearings; and
536-12 (3) case studies useful in decision making in
536-13 hearings.
536-14 (c) The policy board shall prepare and update as necessary a
536-15 handbook to be made available to participants in hearings under
536-16 Section 508.281, such as defense attorneys, persons released on
536-17 parole or mandatory supervision, and witnesses. The handbook must
536-18 describe in plain language the procedures used in a hearing under
536-19 Section 508.281. [TRAINING PROGRAM FOR DESIGNATED AGENTS.
536-20 (a) The board shall develop and implement a training program for
536-21 designated agents of the board who conduct hearings under Section
536-22 508.281.]
536-23 [(b) The training program must assist the designated agents
536-24 in understanding issues relating to the revocation process.]
536-25 SECTION 10.11. Section 508.042(a), Government Code, is
536-26 amended to conform to Section 7, Chapter 161, Acts of the 75th
537-1 Legislature, Regular Session, 1997, to read as follows:
537-2 (a) The policy board shall develop for board members a
537-3 comprehensive training and education program on the criminal
537-4 justice system, with special emphasis on the parole process.
537-5 SECTION 10.12. Section 508.044(c), Government Code, is
537-6 amended to conform to Section 7, Chapter 161, Acts of the 75th
537-7 Legislature, Regular Session, 1997, to read as follows:
537-8 (c) The policy board shall develop and implement a policy
537-9 that clearly defines circumstances under which a board member
537-10 should disqualify himself or herself from voting on:
537-11 (1) a parole decision; or
537-12 (2) a decision to revoke parole or mandatory
537-13 supervision.
537-14 SECTION 10.13. Section 508.044(d), Government Code, is
537-15 amended to conform to Section 8, Chapter 161, Acts of the 75th
537-16 Legislature, Regular Session, 1997, to read as follows:
537-17 (d) The policy board may adopt reasonable rules as the
537-18 policy board considers proper or necessary relating to:
537-19 (1) the eligibility of an inmate for release on parole
537-20 or release to mandatory supervision;
537-21 (2) the conduct of a parole or mandatory supervision
537-22 hearing; or
537-23 (3) conditions to be imposed on a releasee.
537-24 SECTION 10.14. Section 508.044(e), Government Code, is
537-25 amended to conform to Section 7, Chapter 161, Acts of the 75th
537-26 Legislature, Regular Session, 1997, to read as follows:
538-1 (e) The policy board may provide a written plan for the
538-2 administrative review of actions taken by a parole panel by the
538-3 entire membership or by a subset of the entire membership of the
538-4 board.
538-5 SECTION 10.15. Section 508.047(a), Government Code, is
538-6 amended to conform to Section 7, Chapter 161, Acts of the 75th
538-7 Legislature, Regular Session, 1997, to read as follows:
538-8 (a) The members of the policy board shall meet at least once
538-9 in each quarter of the calendar year at a site determined by the
538-10 presiding officer.
538-11 SECTION 10.16. Section 508.049, Government Code, is amended
538-12 to conform to Section 4, Chapter 161, Acts of the 75th Legislature,
538-13 Regular Session, 1997, to read as follows:
538-14 Sec. 508.049. MISSION STATEMENT. (a) The policy board,
538-15 after consultation with the governor and the Texas Board of
538-16 Criminal Justice, shall adopt a mission statement that reflects the
538-17 responsibilities for the operation of the parole process that are
538-18 assigned to the policy board, the board, [and the responsibilities
538-19 that are assigned to] the division, the department, or the Texas
538-20 Board of Criminal Justice.
538-21 (b) The policy board shall include in the mission statement
538-22 a description of specific locations at which the board intends to
538-23 conduct business related to the operation of the parole process.
538-24 SECTION 10.17. Section 508.051, Government Code, is amended
538-25 to conform to Section 3, Chapter 161, Acts of the 75th Legislature,
538-26 Regular Session, 1997, to read as follows:
539-1 Sec. 508.051. SUNSET PROVISION. The Board of Pardons and
539-2 Paroles is subject to review under Chapter 325 (Texas Sunset Act),
539-3 but is not abolished under that chapter. The board shall be
539-4 reviewed during the period in which the Texas Department of
539-5 Criminal Justice is reviewed.
539-6 SECTION 10.18. Section 508.082, Government Code, is amended
539-7 to conform to Section 9, Chapter 161, Acts of the 75th Legislature,
539-8 Regular Session, 1997, to read as follows:
539-9 Sec. 508.082. RULES. The policy board shall adopt rules
539-10 relating to:
539-11 (1) the submission and presentation of information and
539-12 arguments to the board, a parole panel, and the department for and
539-13 in behalf of an inmate; and
539-14 (2) the time, place, and manner of contact between a
539-15 person representing an inmate and:
539-16 (A) a member of the board;
539-17 (B) an employee of the board; or
539-18 (C) an employee of the department.
539-19 SECTION 10.19. Sections 508.115(a) and (c), Government Code,
539-20 are amended to conform to Section 1, Chapter 480, Acts of the 75th
539-21 Legislature, Regular Session, 1997, to read as follows:
539-22 (a) Not later than the 11th day before the date the board
539-23 orders the release on parole of an inmate or not later than the
539-24 11th day after the date the board recommends that the governor
539-25 grant executive clemency, the division shall notify the sheriffs,
539-26 each chief of police, the prosecuting attorneys, and the district
540-1 judges in the county in which the inmate was convicted and the
540-2 county to which the inmate is released that the board is
540-3 considering release on parole or the governor is considering
540-4 clemency.
540-5 (c) Not later than the 10th day after the date a parole
540-6 panel orders the transfer of an inmate to a halfway house under
540-7 this chapter, the division shall give notice in accordance with
540-8 Subsection (d) to:
540-9 (1) the sheriff of the county in which the inmate was
540-10 convicted;
540-11 (2) the sheriff of the county in which the halfway
540-12 house is located and each chief of police in the county; and
540-13 (3) the attorney who represents the state in the
540-14 prosecution of felonies in the county in which the halfway house is
540-15 located.
540-16 SECTION 10.20. Section 508.119, Government Code, is amended
540-17 to conform to Section 2, Chapter 478, Acts of the 75th Legislature,
540-18 Regular Session, 1997, by adding Subsection (i) to read as follows:
540-19 (i) The notice required by Subsection (d) must clearly state
540-20 that the proposed action concerns a facility in which persons who
540-21 have been released from prison on parole or to mandatory
540-22 supervision are to be housed.
540-23 SECTION 10.21. Section 508.145(c), Government Code, is
540-24 amended to conform to Section 3, Chapter 665, Acts of the 75th
540-25 Legislature, Regular Session, 1997, to read as follows:
540-26 (c) An inmate serving a life sentence under Section
541-1 12.42(c)(2) [12.42(d)(2)], Penal Code, is not eligible for release
541-2 on parole until the actual calendar time the inmate has served,
541-3 without consideration of good conduct time, equals 35 calendar
541-4 years.
541-5 SECTION 10.22. Section 508.149(a), Government Code, is
541-6 amended to conform to Section 1, Chapter 238, Acts of the 75th
541-7 Legislature, Regular Session, 1997, to read as follows:
541-8 (a) An inmate may not be released to mandatory supervision
541-9 if the inmate is serving a sentence for or has been previously
541-10 convicted of:
541-11 (1) an offense for which the judgment contains an
541-12 affirmative finding under Section 3g(a)(2), Article 42.12, Code of
541-13 Criminal Procedure;
541-14 (2) a first degree felony or a second degree felony
541-15 under Section 19.02, Penal Code;
541-16 (3) a capital felony under Section 19.03, Penal Code;
541-17 (4) a first degree felony or a second degree felony
541-18 under Section 20.04, Penal Code;
541-19 (5) a second degree felony or a third degree felony
541-20 under Section 21.11, Penal Code;
541-21 (6) a second degree felony under Section 22.011, Penal
541-22 Code;
541-23 (7) [(6)] a first degree felony or a second degree
541-24 felony under Section 22.02, Penal Code;
541-25 (8) [(7)] a first degree felony under Section 22.021,
541-26 Penal Code;
542-1 (9) [(8)] a first degree felony under Section 22.04,
542-2 Penal Code;
542-3 (10) [(9)] a first degree felony under Section 28.02,
542-4 Penal Code;
542-5 (11) [(10)] a second degree felony under Section
542-6 29.02, Penal Code;
542-7 (12) [(11)] a first degree felony under Section 29.03,
542-8 Penal Code;
542-9 (13) [(12)] a first degree felony under Section 30.02,
542-10 Penal Code; or
542-11 (14) [(13)] a felony for which the punishment is
542-12 increased under Section 481.134, Health and Safety Code.
542-13 SECTION 10.23. Section 508.181, Government Code, is amended
542-14 to conform to Section 1, Chapter 836, Acts of the 75th Legislature,
542-15 Regular Session, 1997, by adding Subsection (g) to read as follows:
542-16 (g) The division shall, on the first working day of each
542-17 month, notify the sheriff of any county in which the total number
542-18 of sex offenders under the supervision and control of the division
542-19 residing in the county exceeds 10 percent of the total number of
542-20 sex offenders in the state under the supervision and control of the
542-21 division. If the total number of sex offenders under the
542-22 supervision and control of the division residing in a county
542-23 exceeds 22 percent of the total number of sex offenders in the
542-24 state under the supervision and control of the division, a parole
542-25 panel may require a sex offender to reside in that county only as
542-26 required by Subsection (a) or for the reason stated in Subsection
543-1 (b)(2)(B). In this subsection, "sex offender" means a person who
543-2 is released on parole or to mandatory supervision after serving a
543-3 sentence for an offense described by Section 508.187(a).
543-4 SECTION 10.24. Section 508.181, Government Code, is amended
543-5 to conform to Section 2, Chapter 480, Acts of the 75th Legislature,
543-6 Regular Session, 1997, by adding Subsection (h) to read as follows:
543-7 (h) If a parole panel requires a releasee to reside in a
543-8 county other than the county required under Subsection (a), the
543-9 division shall include the reason for residency exemption in the
543-10 required notification to the sheriff of the county in which the
543-11 defendant is to reside, the chief of police of the municipality in
543-12 which the halfway house is located, and the attorney who represents
543-13 the state in the prosecution of felonies in that county.
543-14 SECTION 10.25. Section 508.186(a), Government Code, is
543-15 amended to conform to Section 6, Chapter 668, Acts of the 75th
543-16 Legislature, Regular Session, 1997, to read as follows:
543-17 (a) A parole panel shall require as a condition of parole or
543-18 mandatory supervision that a releasee required to register as a sex
543-19 offender under Chapter 62, Code of Criminal Procedure [Article
543-20 6252-13c.1, Revised Statutes]:
543-21 (1) register under that chapter [article]; and
543-22 (2) pay to the releasee's supervising officer an
543-23 amount equal to the cost, as evidenced by written receipt, incurred
543-24 by the applicable local law enforcement authority for providing
543-25 notice for publication to a newspaper as required by that chapter
543-26 [article].
544-1 SECTION 10.26. Subchapter F, Chapter 508, Government Code,
544-2 is amended to conform to Section 1, Chapter 670, Acts of the 75th
544-3 Legislature, Regular Session, 1997, by adding Section 508.190 to
544-4 read as follows:
544-5 Sec. 508.190. AVOIDING VICTIM OF STALKING OFFENSE. (a) A
544-6 parole panel shall require as a condition of parole or mandatory
544-7 supervision that a releasee serving a sentence for an offense under
544-8 Section 42.072, Penal Code, not:
544-9 (1) communicate directly or indirectly with the
544-10 victim;
544-11 (2) go to or near the residence, place of employment,
544-12 or business of the victim; or
544-13 (3) go to or near a school, day-care facility, or
544-14 similar facility where a dependent child of the victim is in
544-15 attendance.
544-16 (b) If a parole panel requires the prohibition contained in
544-17 Subsection (a)(2) or (3) as a condition of parole or mandatory
544-18 supervision, the parole panel shall specifically describe the
544-19 prohibited locations and the minimum distances, if any, that the
544-20 releasee must maintain from the locations.
544-21 SECTION 10.27. Subchapter F, Chapter 508, Government Code,
544-22 is amended to conform to Section 2, Chapter 670, Acts of the 75th
544-23 Legislature, Regular Session, 1997, by adding Section 508.191 to
544-24 read as follows:
544-25 Sec. 508.191. NO CONTACT WITH VICTIM. (a) If a parole
544-26 panel releases a defendant on parole or to mandatory supervision,
545-1 the panel shall require as a condition of parole or mandatory
545-2 supervision that the defendant not intentionally or knowingly
545-3 communicate directly or indirectly with a victim of the offense or
545-4 intentionally or knowingly go near a residence, school, place of
545-5 employment, or business of a victim. At any time after the
545-6 defendant is released on parole or to mandatory supervision, a
545-7 victim of the offense may petition the panel for a modification of
545-8 the conditions of the defendant's parole or mandatory supervision
545-9 allowing the defendant contact with the victim subject to
545-10 reasonable restrictions.
545-11 (b) Notwithstanding Subsection (a), a defendant may
545-12 participate in victim-offender mediation authorized by Section
545-13 508.324 on the request of the victim or a guardian of the victim or
545-14 a close relative of a deceased victim.
545-15 (c) In this section, "victim" has the meaning assigned by
545-16 Article 56.01(3), Code of Criminal Procedure.
545-17 SECTION 10.28. Section 508.223, Government Code, is amended
545-18 to conform to Section 1, Chapter 188, and Section 7, Chapter 1,
545-19 Acts of the 75th Legislature, Regular Session, 1997, to read as
545-20 follows:
545-21 Sec. 508.223. PSYCHOLOGICAL COUNSELING. [AVOIDING VICTIM.
545-22 (a)] A parole panel may require as a condition of parole or
545-23 mandatory supervision that a releasee serving a sentence for an
545-24 offense under Section 42.072, Penal Code, attend psychological
545-25 counseling sessions of a type and for a duration as specified by
545-26 the parole panel, if the parole panel determines in consultation
546-1 with a local mental health services provider that appropriate
546-2 mental health services are available through the Texas Department
546-3 of Mental Health and Mental Retardation in accordance with Section
546-4 534.053, Health and Safety Code, or through another mental health
546-5 services provider [not:]
546-6 [(1) communicate directly or indirectly with the
546-7 victim;]
546-8 [(2) go to or near the residence, place of employment,
546-9 or business of the victim; or]
546-10 [(3) go to or near a school, day-care facility, or
546-11 similar facility where a dependent child of the victim is in
546-12 attendance.]
546-13 [(b) If a parole panel requires the prohibition contained in
546-14 Subsection (a)(2) or (3) as a condition of parole or mandatory
546-15 supervision, the parole panel shall specifically describe the
546-16 prohibited locations and the minimum distances, if any, that the
546-17 releasee must maintain from the locations].
546-18 SECTION 10.29. Subchapter G, Chapter 508, Government Code,
546-19 is amended to conform to Section 4, Chapter 144, Acts of the 75th
546-20 Legislature, Regular Session, 1997, by adding Section 508.225 to
546-21 read as follows:
546-22 Sec. 508.225. ORCHIECTOMY AS CONDITION PROHIBITED. A parole
546-23 panel may not require an inmate to undergo an orchiectomy as a
546-24 condition of release on parole or to mandatory supervision.
546-25 SECTION 10.30. Section 508.252, Government Code, is amended
546-26 to conform to Section 3, Chapter 429, Acts of the 75th Legislature,
547-1 Regular Session, 1997, to read as follows:
547-2 Sec. 508.252. GROUNDS FOR ISSUANCE OF WARRANT. A warrant
547-3 may be issued under Section 508.251 if:
547-4 (1) there is reason to believe that the person has
547-5 been released although not eligible for release;
547-6 (2) the person has been arrested for an offense;
547-7 (3) there is a document that is self-authenticating as
547-8 provided by Rule 902, Texas Rules of Evidence, [verified complaint]
547-9 stating that the person violated a rule or condition of release; or
547-10 (4) there is reliable evidence that the person has
547-11 exhibited behavior during the person's release that indicates to a
547-12 reasonable person that the person poses a danger to society that
547-13 warrants the person's immediate return to custody.
547-14 SECTION 10.31. Section 508.281(a), Government Code, is
547-15 amended to conform to Section 2, Chapter 429, and Section 10,
547-16 Chapter 161, Acts of the 75th Legislature, Regular Session, 1997,
547-17 to read as follows:
547-18 (a) A releasee, a person released although ineligible for
547-19 release, or a person granted a conditional pardon is entitled to a
547-20 hearing before a parole panel or a designated agent of the board
547-21 under the rules adopted by the policy board and within a period
547-22 that permits a parole panel, a designee of the board, or the
547-23 department to dispose of the charges within the periods established
547-24 by Sections 508.282(a) and (b) if the releasee or person:
547-25 (1) is accused of a violation of the releasee's parole
547-26 or mandatory supervision or the person's conditional pardon, on
548-1 information and complaint by a peace officer or parole officer; or
548-2 (2) is arrested after an ineligible release.
548-3 SECTION 10.32. Subchapter I, Chapter 508, Government Code,
548-4 is amended to conform to Section 2, Chapter 429, Acts of the 75th
548-5 Legislature, Regular Session, 1997, by adding Section 508.2811 to
548-6 read as follows:
548-7 Sec. 508.2811. PRELIMINARY HEARING. A parole panel or a
548-8 designee of the board shall provide within a reasonable time to an
548-9 inmate or person described by Section 508.281(a) a preliminary
548-10 hearing to determine whether probable cause or reasonable grounds
548-11 exist to believe that the inmate or person has committed an act
548-12 that would constitute a violation of a condition of release, unless
548-13 the inmate or person:
548-14 (1) waives the preliminary hearing; or
548-15 (2) after release:
548-16 (A) has been charged only with an administrative
548-17 violation of a condition of release; or
548-18 (B) has been adjudicated guilty of or has
548-19 pleaded guilty or nolo contendere to an offense committed after
548-20 release, other than an offense punishable by fine only involving
548-21 the operation of a motor vehicle, regardless of whether the court
548-22 has deferred disposition of the case, imposed a sentence in the
548-23 case, or placed the inmate or person on community supervision.
548-24 SECTION 10.33. Section 508.282, Government Code, is amended
548-25 to conform to Section 2, Chapter 429, Acts of the 75th Legislature,
548-26 Regular Session, 1997, to read as follows:
549-1 Sec. 508.282. DEADLINES. (a) Except as provided by
549-2 Subsection (b), a parole panel, a designee of the board, or the
549-3 department shall dispose of the charges against an inmate or person
549-4 described by Section 508.281(a):
549-5 (1) before the 61st day after the date on which:
549-6 (A) a warrant issued as provided by Section
549-7 508.251 is executed, if the inmate or person is arrested only on a
549-8 charge that the inmate or person has committed an administrative
549-9 violation of a condition of release, and the inmate or person is
549-10 not charged before the 61st day with the commission of an offense
549-11 described by Section 508.2811(2)(B); or
549-12 (B) the sheriff having custody of an inmate or
549-13 person alleged to have committed an offense after release notifies
549-14 the department that:
549-15 (i) the inmate or person has discharged
549-16 the sentence for the offense; or
549-17 (ii) the prosecution of the alleged
549-18 offense has been dismissed by the attorney representing the state
549-19 in the manner provided by Article 32.02, Code of Criminal
549-20 Procedure; or
549-21 (2) within a reasonable time after the date on which
549-22 the inmate or person is returned to the custody of the department,
549-23 if:
549-24 (A) immediately before the return the inmate or
549-25 person was in custody in another state or in a federal correctional
549-26 system; or
550-1 (B) the inmate or person is transferred to the
550-2 custody of the department under Section 508.284.
550-3 (b) A parole panel, a designee of the board, or the
550-4 department is not required to dispose of the charges against an
550-5 inmate or person within the period required by Subsection (a) if:
550-6 (1) the inmate or person is in custody in another
550-7 state or a federal correctional institution;
550-8 (2) the parole panel or a designee of the board is not
550-9 provided a place by the sheriff to hold the hearing, in which event
550-10 the department, parole panel, or designee is not required to
550-11 dispose of the charges against the inmate or person until the 60th
550-12 day after the date on which the sheriff provides a place to hold
550-13 the hearing; or
550-14 (3) the inmate or person is granted a continuance by a
550-15 parole panel or a designee of the board in the inmate's or person's
550-16 hearing under Section 508.281(a), but in no event may a parole
550-17 panel, a designee of the board, or the department dispose of the
550-18 charges against the person later than the 30th day after the date
550-19 on which the parole panel, designee, or department would otherwise
550-20 be required to dispose of the charges under this section, unless
550-21 the inmate or person is released from custody and a summons is
550-22 issued under Section 508.251 requiring the inmate or person to
550-23 appear for a hearing under Section 508.281.
550-24 (c) In Subsections (a) and (b), charges against an inmate or
550-25 person are disposed of when:
550-26 (1) the inmate's or person's conditional pardon,
551-1 parole, or release to mandatory supervision is:
551-2 (A) revoked; or
551-3 (B) continued or modified and the inmate or
551-4 person is released from the county jail;
551-5 (2) the warrant for the inmate or person issued under
551-6 Section 508.251 is withdrawn; or
551-7 (3) the inmate or person is transferred to a facility
551-8 described by Section 508.284 for further proceedings.
551-9 (d) A sheriff, not later than the 10th day before the date
551-10 on which the sheriff intends to release from custody an inmate or
551-11 person described by Section 508.281(a) or transfer the inmate or
551-12 person to the custody of an entity other than the department, shall
551-13 notify the department of the intended release or transfer.
551-14 (e) If a warrant for an inmate or person issued under
551-15 Section 508.251 is withdrawn, a summons may be issued requiring the
551-16 inmate or person to appear for a hearing under Section 508.281.
551-17 [DATE OF HEARING; WITHDRAWAL OF WARRANT. (a) A hearing under
551-18 Section 508.281 must be held:]
551-19 [(1) not later than the 70th day after the date of
551-20 arrest under a warrant issued by the director or a designated agent
551-21 of the director or by the board on order of the governor; and]
551-22 [(2) at a time and place set by a parole panel or
551-23 designated agent of the board.]
551-24 [(b) Except as provided by Subsection (c), the panel or
551-25 designated agent may hold the hearing at a date later than the date
551-26 required under Subsection (a) if the panel or designated agent
552-1 determines a delay is necessary to assure due process for the
552-2 person.]
552-3 [(c) The authority issuing the warrant shall immediately
552-4 withdraw the warrant if the hearing is not held before the 121st
552-5 day after the date of arrest unless:]
552-6 [(1) the person has been removed from the custody of a
552-7 county sheriff by the department and placed in a community
552-8 residential facility;]
552-9 [(2) the person is in custody in another state or in a
552-10 federal correctional facility;]
552-11 [(3) the person, the attorney representing the person,
552-12 or the attorney representing the state is granted a continuance to
552-13 a date that is not later than the 181st day after the date of
552-14 arrest; or]
552-15 [(4) the person is subject to pending criminal charges
552-16 that have not been adjudicated.]
552-17 SECTION 10.34. Section 508.283, Government Code, is amended
552-18 to conform to Section 2, Chapter 429, Acts of the 75th Legislature,
552-19 Regular Session, 1997, to read as follows:
552-20 Sec. 508.283. SANCTIONS. (a) After a parole panel or
552-21 designated agent of the board has held a hearing under Section
552-22 508.281, the board may, in any manner warranted by the evidence:
552-23 (1) recommend to the governor to continue, revoke, or
552-24 modify the conditional pardon; or
552-25 (2) continue, revoke, or modify the parole or
552-26 mandatory supervision.
553-1 (b) [The parole panel or designated agent shall make a
553-2 recommendation or decision not later than the 30th day after the
553-3 date the hearing is concluded.]
553-4 [(c)] If a person's parole, mandatory supervision, or
553-5 conditional pardon is revoked, the person may be required to serve
553-6 the remaining portion of the sentence on which the person was
553-7 released. The remaining portion is computed without credit for the
553-8 time from the date of the person's release to the date of
553-9 revocation.
553-10 (c) [(d)] If a warrant is issued charging a violation of a
553-11 release condition or a summons is issued for a hearing under
553-12 Section 508.281, the sentence time credit may be suspended until a
553-13 determination is made in the case. The suspended time credit may
553-14 be reinstated if the parole, mandatory supervision, or conditional
553-15 pardon is continued.
553-16 SECTION 10.35. Subchapter I, Chapter 508, Government Code,
553-17 is amended to conform to Section 1, Chapter 429, Acts of the 75th
553-18 Legislature, Regular Session, 1997, by adding Section 508.284 to
553-19 read as follows:
553-20 Sec. 508.284. TRANSFER PENDING REVOCATION HEARING. The
553-21 department, as provided by Section 508.282(c), may authorize a
553-22 facility that is otherwise required to detain and house an inmate
553-23 or person to transfer the inmate or person to a correctional
553-24 facility operated by the department or under contract with the
553-25 department if:
553-26 (1) the department determines that adequate space is
554-1 available in the facility to which the inmate or person is to be
554-2 transferred; and
554-3 (2) the facility to which the inmate or person is to
554-4 be transferred is located not more than 150 miles from the facility
554-5 from which the inmate or person is to be transferred.
554-6 SECTION 10.36. Section 508.313(e), Government Code, is
554-7 amended to conform to Section 7, Chapter 668, Acts of the 75th
554-8 Legislature, Regular Session, 1997, to read as follows:
554-9 (e) This section does not apply to information relating to a
554-10 sex offender that is authorized for release under Chapter 62, Code
554-11 of Criminal Procedure [Article 6252-13c.1, Revised Statutes].
554-12 SECTION 10.37. Section 508.317, Government Code, is amended
554-13 to conform to Section 6, Chapter 1430, Acts of the 75th
554-14 Legislature, Regular Session, 1997, to read as follows:
554-15 Sec. 508.317. INTENSIVE SUPERVISION PROGRAM; SUPER-INTENSIVE
554-16 SUPERVISION PROGRAM. (a) The department shall establish a program
554-17 to provide intensive supervision to inmates released under
554-18 Subchapter B, Chapter 499, and other inmates determined by a parole
554-19 panel or the department to require intensive supervision.
554-20 (b) The Texas Board of Criminal Justice shall adopt rules
554-21 that establish standards for determining which inmates require
554-22 intensive supervision.
554-23 (c) The program must provide the [highest] level of
554-24 supervision the department provides that is higher than any level
554-25 of supervision other than the level of supervision described by
554-26 Subsection (d).
555-1 (d) The department shall establish a program to provide
555-2 super-intensive supervision to inmates released on parole or
555-3 mandatory supervision and determined by parole panels to require
555-4 super-intensive supervision. The program must provide the highest
555-5 level of supervision provided by the department.
555-6 SECTION 10.38. Subchapter J, Chapter 508, Government Code,
555-7 is amended to conform to Section 3, Chapter 670, Acts of the 75th
555-8 Legislature, Regular Session, 1997, by adding Section 508.324 to
555-9 read as follows:
555-10 Sec. 508.324. VICTIM-OFFENDER MEDIATION. If the pardons and
555-11 paroles division receives notice from the victim services office of
555-12 the department that a victim of the defendant, or the victim's
555-13 guardian or close relative, wishes to participate in
555-14 victim-offender mediation with a person released on parole or to
555-15 mandatory supervision, the division shall cooperate and assist the
555-16 person if the person chooses to participate in the mediation
555-17 program provided by the office. The pardons and paroles division
555-18 may not require the defendant to participate and may not reward the
555-19 person for participation by modifying conditions of release or the
555-20 person's level of supervision or by granting any other benefit to
555-21 the person.
555-22 SECTION 10.39. The following provisions from the Acts of the
555-23 75th Legislature, Regular Session, 1997, are repealed:
555-24 (1) Section 7, Chapter 1;
555-25 (2) Section 4, Chapter 144;
555-26 (3) Sections 1-11, Chapter 161;
556-1 (4) Section 1, Chapter 188;
556-2 (5) Section 1, Chapter 238;
556-3 (6) Sections 1-3, Chapter 429;
556-4 (7) Section 2, Chapter 478;
556-5 (8) Sections 1 and 2, Chapter 480;
556-6 (9) Section 3, Chapter 665;
556-7 (10) Sections 6 and 7, Chapter 668;
556-8 (11) Sections 1-3, Chapter 670;
556-9 (12) Section 1, Chapter 836; and
556-10 (13) Section 6, Chapter 1430.
556-11 ARTICLE 11. CHANGES RELATING TO HEALTH AND
556-12 SAFETY CODE
556-13 SECTION 11.01. Section 88.010, Health and Safety Code, as
556-14 added by Section 6, Chapter 893, Acts of the 75th Legislature,
556-15 Regular Session, 1997, is designated as Section 92.010, Health and
556-16 Safety Code, to conform to the renumbering of former Chapter 88,
556-17 Health and Safety Code (Injury Prevention and Control), as Chapter
556-18 92, Health and Safety Code, by Section 31.01(53), Chapter 165, Acts
556-19 of the 75th Legislature, Regular Session, 1997, and amended to read
556-20 as follows:
556-21 Sec. 92.010 [88.010]. COORDINATION WITH TEXAS REHABILITATION
556-22 COMMISSION. The department and the Texas Rehabilitation Commission
556-23 shall enter into a memorandum of understanding to:
556-24 (1) exchange relevant injury data on an ongoing basis
556-25 notwithstanding Section 92.006 [88.006];
556-26 (2) maintain the confidentiality of injury data
557-1 provided to the department by the commission in accordance with
557-2 Section 92.006 [88.006] and Section 111.057, Human Resources Code;
557-3 and
557-4 (3) cooperate in conducting investigations of spinal
557-5 cord and traumatic brain injuries.
557-6 SECTION 11.02. Section 88.011, Health and Safety Code, as
557-7 added by Section 6, Chapter 893, Acts of the 75th Legislature,
557-8 Regular Session, 1997, is designated as Section 92.011, Health and
557-9 Safety Code, to conform to the renumbering of former Chapter 88,
557-10 Health and Safety Code (Injury Prevention and Control), as Chapter
557-11 92, Health and Safety Code, by Section 31.01(53), Chapter 165, Acts
557-12 of the 75th Legislature, Regular Session, 1997, and amended to read
557-13 as follows:
557-14 Sec. 92.011 [88.011]. COORDINATION WITH TEXAS TRAUMATIC
557-15 BRAIN INJURY ADVISORY COUNCIL. The department and the Texas
557-16 Traumatic Brain Injury Advisory Council shall enter into a
557-17 memorandum of understanding to:
557-18 (1) exchange relevant injury data on an ongoing basis
557-19 to the extent allowed by Section 92.006 [88.006];
557-20 (2) maintain the confidentiality of injury data
557-21 provided to the council by the department in accordance with
557-22 Section 92.006 [88.006];
557-23 (3) permit the council to review and comment on the
557-24 board's rules under Section 92.002(b) [88.002(b)] before the rules
557-25 are proposed; and
557-26 (4) cooperate in conducting investigations of
558-1 traumatic brain injuries.
558-2 SECTION 11.03. Section 247.045, Health and Safety Code, as
558-3 amended by Chapters 416 and 1088, Acts of the 75th Legislature,
558-4 Regular Session, 1997, is amended and reenacted to read as follows:
558-5 Sec. 247.045. CIVIL PENALTIES. (a) Except as provided by
558-6 Subsections [Subsection] (b) and (c), a person who violates this
558-7 chapter or who fails to comply with a rule adopted under this
558-8 chapter and whose violation is determined by the department to
558-9 threaten the health and safety of a resident of a personal care
558-10 facility is subject to a civil penalty of not less than $100 nor
558-11 more than $10,000 for each act of violation. Each day of a
558-12 continuing violation constitutes a separate ground of recovery.
558-13 (b) A person is subject to a civil penalty if the person:
558-14 (1) is in violation of Section 247.021; or
558-15 (2) has been determined to be in violation of Section
558-16 247.021 and violates any other provision of this chapter or fails
558-17 to comply with a rule adopted under this chapter.
558-18 [(b) A person who does not possess a license for a personal
558-19 care facility as required by Section 247.021 is subject to a civil
558-20 penalty of not less than $1,000 nor more than $10,000 for each act
558-21 of violation. Each day of a continuing violation constitutes a
558-22 separate ground for recovery.]
558-23 (c) The amount of a civil penalty under Subsection (b) may
558-24 not be less than $1,000 or more than $10,000 for each act of
558-25 violation. Each day of a continuing violation constitutes a
558-26 separate ground of recovery.
559-1 (d) [(c)] If the attorney general fails to take action
559-2 within 30 days of referral from the department, the department
559-3 shall refer the case to the local district attorney, county
559-4 attorney, or city attorney. The district attorney, county
559-5 attorney, or city attorney shall file suit in a district court to
559-6 collect and retain the penalty.
559-7 (e) [(d)] Investigation and attorney's fees may not be
559-8 assessed or collected by or on behalf of the department or other
559-9 state agency unless the department or other state agency assesses
559-10 and collects a penalty described under this chapter.
559-11 (f) [(e)] The department and attorney general, or other
559-12 legal representative as described in Subsection (d) [(c)], shall
559-13 work in close cooperation throughout any legal proceedings
559-14 requested by the department.
559-15 (g) [(f)] The commissioner of human services must approve
559-16 any settlement agreement to a suit brought under this chapter.
559-17 SECTION 11.04. (a) Section 382.003(9), Health and Safety
559-18 Code, is amended to conform to Chapter 3, Acts of the 72nd
559-19 Legislature, 1st Called Session, 1991, and Chapter 76, Acts of the
559-20 74th Legislature, Regular Session, 1995, to read as follows:
559-21 (9) "Modification of existing facility" means any
559-22 physical change in, or change in the method of operation of, a
559-23 facility in a manner that increases the amount of any air
559-24 contaminant emitted by the facility into the atmosphere or that
559-25 results in the emission of any air contaminant not previously
559-26 emitted. The term does not include:
560-1 (A) insignificant increases in the amount of any
560-2 air contaminant emitted that is authorized by one or more
560-3 commission exemptions;
560-4 (B) insignificant increases at a permitted
560-5 facility;
560-6 (C) maintenance or replacement of equipment
560-7 components that do not increase or tend to increase the amount or
560-8 change the characteristics of the air contaminants emitted into the
560-9 atmosphere;
560-10 (D) an increase in the annual hours of operation
560-11 unless the existing facility has received a preconstruction permit
560-12 or has been exempted, pursuant to Section 382.057, from
560-13 preconstruction permit requirements;
560-14 (E) a physical change in, or change in the
560-15 method of operation of, a facility that does not result in a net
560-16 increase in allowable emissions of any air contaminant and that
560-17 does not result in the emission of any air contaminant not
560-18 previously emitted, provided that the facility:
560-19 (i) has received a preconstruction permit
560-20 or permit amendment or has been exempted pursuant to Section
560-21 382.057 from preconstruction permit requirements no earlier than
560-22 120 months before the change will occur; or
560-23 (ii) uses, regardless of whether the
560-24 facility has received a permit, an air pollution control method
560-25 that is at least as effective as the best available control
560-26 technology, considering technical practicability and economic
561-1 reasonableness, that the commission [board] required or would have
561-2 required for a facility of the same class or type as a condition of
561-3 issuing a permit or permit amendment 120 months before the change
561-4 will occur;
561-5 (F) a physical change in, or change in the
561-6 method of operation of, a facility where the change is within the
561-7 scope of a flexible permit; or
561-8 (G) a change in the method of operation of a
561-9 natural gas processing, treating, or compression facility connected
561-10 to or part of a natural gas gathering or transmission pipeline
561-11 which does not result in an annual emission rate of a pollutant in
561-12 excess of the volume emitted at the maximum designed capacity,
561-13 provided that the facility is one for which:
561-14 (i) construction or operation started on
561-15 or before September 1, 1971, and at which either no modification
561-16 has occurred after September 1, 1971, or at which modifications
561-17 have occurred only pursuant to standard exemptions; or
561-18 (ii) construction started after September
561-19 1, 1971, and before March 1, 1972, and which registered in
561-20 accordance with Section 382.060 as that section existed prior to
561-21 September 1, 1991.
561-22 (b) Sections 382.0512(b) and (c), Health and Safety Code,
561-23 are amended to conform to Chapter 3, Acts of the 72nd Legislature,
561-24 1st Called Session, 1991, and Chapter 76, Acts of the 74th
561-25 Legislature, Regular Session, 1995, to read as follows:
561-26 (b) In determining whether a proposed change at an existing
562-1 facility that meets the criteria of Section 382.003(9)(E) results
562-2 in a net increase in allowable emissions, the commission [board]
562-3 shall consider the effect on emissions of:
562-4 (1) any air pollution control method applied to the
562-5 facility;
562-6 (2) any decreases in allowable emissions from other
562-7 facilities that have received a preconstruction permit or permit
562-8 amendment no earlier than 120 months before the change will occur;
562-9 and
562-10 (3) any decreases in actual emissions from other
562-11 facilities that meet the criteria of Section 382.003(9)(E)(i) or
562-12 (ii).
562-13 (c) Nothing in this section shall be construed to limit the
562-14 application of otherwise applicable state or federal requirements,
562-15 nor shall this section be construed to limit the commission's
562-16 [board's] powers of enforcement under this chapter.
562-17 (c) Section 382.056(e), Health and Safety Code, is amended
562-18 to conform to Chapter 3, Acts of the 72nd Legislature, 1st Called
562-19 Session, 1991, and Chapter 76, Acts of the 74th Legislature,
562-20 Regular Session, 1995, to read as follows:
562-21 (e) Notwithstanding other provisions of this chapter, the
562-22 commission may hold a hearing on a permit amendment, modification,
562-23 or renewal if the commission [board] determines that the
562-24 application involves a facility for which the applicant's
562-25 compliance history contains violations which are unresolved and
562-26 which constitute a recurring pattern of egregious conduct which
563-1 demonstrates a consistent disregard for the regulatory process,
563-2 including the failure to make a timely and substantial attempt to
563-3 correct the violations.
563-4 (d) Sections 382.134(b)-(d), Health and Safety Code, are
563-5 amended to conform to Chapter 3, Acts of the 72nd Legislature, 1st
563-6 Called Session, 1991, and Chapter 76, Acts of the 74th Legislature,
563-7 Regular Session, 1995, to read as follows:
563-8 (b) The commission [board] by rule shall require a local
563-9 government or a private person to ensure that its fleet vehicles
563-10 can operate on an alternative fuel.
563-11 (c) Rules adopted by the commission [board] must require a
563-12 local government or private person to have a proportion of the
563-13 person's newly purchased fleet vehicles and a proportion of the
563-14 fleet vehicles in the person's total fleet able to operate on an
563-15 alternative fuel according to the following schedule:
563-16 (1) 30 percent of fleet vehicles purchased after
563-17 September 1, 1998, or at least 10 percent of the fleet vehicles in
563-18 the total fleet as of September 1, 1998;
563-19 (2) 50 percent of fleet vehicles purchased after
563-20 September 1, 2000; and
563-21 (3) 70 percent of light-duty fleet vehicles purchased
563-22 after September 1, 2002, and 50 percent of the heavy-duty fleet
563-23 vehicles purchased after September 1, 2002.
563-24 (d) Rules adopted by the commission [board] may not require
563-25 a local government or private person to purchase a fleet vehicle
563-26 able to operate on an alternative fuel if the person maintains a
564-1 proportion of 70 percent or more alternative fuel vehicles in the
564-2 person's fleet.
564-3 (e) Sections 382.143(a)-(c) and (e)-(g), Health and Safety
564-4 Code, are amended to conform to Chapter 3, Acts of the 72nd
564-5 Legislature, 1st Called Session, 1991, and Chapter 76, Acts of the
564-6 74th Legislature, Regular Session, 1995, to read as follows:
564-7 (a) The commission [board] by rule shall establish a Texas
564-8 Mobile Emissions Reduction Credit (MERC) Program.
564-9 (b) Rules adopted under this section shall provide for the
564-10 following program elements:
564-11 (1) program participation shall be as follows:
564-12 (A) entry into the program is voluntary; and
564-13 (B) both fleet owners or operators subject to
564-14 the percentage requirements of Sections 382.133 and 382.134 and
564-15 vehicle owners or operators who are not subject to those percentage
564-16 requirements may generate mobile emissions reduction credits under
564-17 this program, although the commission [board] may require a certain
564-18 minimum number of vehicles to participate;
564-19 (2) mobile emissions reduction credits shall be
564-20 calculated on a per-pollutant basis and shall be granted to a
564-21 participating vehicle owner or operator for any of the following:
564-22 (A) purchase, lease, or acquisition of more or
564-23 cleaner vehicles than otherwise required by law; or
564-24 (B) entering into a binding contract with the
564-25 commission [board] to purchase, lease, or acquire at some future
564-26 date more or cleaner vehicles than otherwise required by law;
565-1 (3) mobile emissions reduction credit values shall be
565-2 determined in accordance with United States Environmental
565-3 Protection Agency rules and guidance;
565-4 (4) mobile emissions reduction credits may be used as
565-5 follows:
565-6 (A) to demonstrate compliance with any
565-7 applicable mobile source emissions reductions requirements; and
565-8 (B) to satisfy Reasonably Available Control
565-9 Technology and Clean Air Act offset requirements, subject to the
565-10 appropriate trading ratios; and
565-11 (5) all mobile emissions reduction credits generated
565-12 in accordance with this section may, within the same nonattainment
565-13 area, be sold, traded, or banked for later use among fleet vehicle
565-14 owners or other mobile or stationary sources of emissions without
565-15 discount or depreciation of such credits.
565-16 (c)(1) Texas Mobile Emissions Reduction Credit Fund is
565-17 created and is to be administered by the commission [board].
565-18 (2) Mobile emissions reduction credits shall be
565-19 assigned from the Texas Mobile Emissions Reduction Credit Fund to
565-20 vehicle owners or operators qualified under this section to
565-21 generate and receive mobile emissions reduction credits if the
565-22 following conditions are met:
565-23 (A) the vehicle owner or operator enters into a
565-24 binding contract with the commission [board], agreeing to purchase
565-25 and place in service in designated program areas clean-fuel
565-26 vehicles in accordance with the number of credits issued and the
566-1 time frame specified by the commission [board]; and
566-2 (B) the vehicle owner or operator agrees to name
566-3 the United States Environmental Protection Agency as a third-party
566-4 beneficiary of its contract with the commission [board].
566-5 (3) Contracts entered into under this section may be
566-6 enforced in the courts of the State of Texas by an order of
566-7 specific performance.
566-8 (e) The following shall be considered violations of the
566-9 Texas Mobile Emissions Reduction Credit Program:
566-10 (1) claiming a mobile emissions reduction credit
566-11 without meeting the appropriate acquisition requirements and
566-12 submitting any other data required by commission [board] rules; or
566-13 (2) counterfeiting or dealing commercially in
566-14 counterfeit mobile emissions reduction credit certificates.
566-15 (f) Any person found by the commission [board] to be in
566-16 violation under Subsection (e) shall be subject to a civil penalty
566-17 of not more than $25,000 per violation.
566-18 (g) The credit trading program established by this section
566-19 shall be administered as follows:
566-20 (1) Mobile emissions reduction credits must be banked
566-21 in accordance with the then existing commission [board] rules.
566-22 (2) MERCs may be generated on a per-pollutant basis in
566-23 the following ways:
566-24 (A) after September 1, 1994, the use,
566-25 conversion, purchase, or acquisition of more clean-fuel vehicles
566-26 than required by the fleet percentage requirements of Sections
567-1 382.133 and 382.134, according to the following formula:
567-2 (additional emissions benefit x VMT x CF)
567-3 MERC grams per year = -----------------------------------------
567-4 n
567-5 where:
567-6 (i) additional emissions benefit is the
567-7 in-use emissions difference between the emission certification
567-8 standard of the conventionally fueled baseline vehicle and the LEV
567-9 emission standards. For evaporative emissions, benefit will be
567-10 derived from the most recently EPA approved mobile emissions
567-11 estimation model;
567-12 (ii) VMT is the total remaining vehicle
567-13 miles to be traveled;
567-14 (iii) CF is the conversion factor for
567-15 heavy-duty vehicles which is: brake specific fuel consumption x
567-16 fuel economy x fuel density;
567-17 (iv) n is the estimated fleet life of the
567-18 vehicle measured in years;
567-19 (B) the purchase or acquisition of vehicles
567-20 which meet emission standards more stringent than the LEV emission
567-21 standards, according to the following formula:
567-22 (cleaner vehicle benefit x VMT x CF)
567-23 MERC grams per year = ------------------------------------
567-24 n
567-25 where cleaner vehicle benefit is the in-use emissions rate
567-26 difference between the LEV emission standards and the standard to
568-1 which the vehicle is actually certified;
568-2 (C) the purchase or acquisition of a vehicle
568-3 with certified levels of evaporative emissions less than five grams
568-4 per test, according to the following formula:
568-5 (vapor improvement x VMT)
568-6 MERC grams per year = -------------------------
568-7 n
568-8 where vapor improvement is the in-use emissions rate difference
568-9 between conventional and low vapor emission vehicles calculated
568-10 using the most recently approved EPA mobile emissions model.
568-11 (3) The vehicle owners or operators applying for a
568-12 MERC shall submit a registration application to the commission
568-13 [board] using an approved MERC registration form. The application
568-14 must clearly state the following information for each vehicle
568-15 generating credit:
568-16 (A) the emissions standard of the vehicle as
568-17 certified pursuant to this Act;
568-18 (B) the number of remaining vehicle miles to be
568-19 traveled;
568-20 (C) the number of years the vehicle will be used
568-21 as a fleet vehicle; and
568-22 (D) the results from the MERC calculation used
568-23 to estimate the credit value in grams per year.
568-24 (4) The MERC registration must include information
568-25 sufficient to calculate the MERC's value under Subdivision (g)(2)
568-26 [of this section].
569-1 (5) The commission [board] will evaluate the claimed
569-2 credits and may adjust the value of the MERCs based on the
569-3 evaluation.
569-4 (6) MERC registration applications must be received at
569-5 least 90 days prior to using the MERC.
569-6 (7) The commission [board] will have 30 days from the
569-7 date of receipt to determine if the MERC registration application
569-8 is complete.
569-9 (8) The commission [board] will have 90 days from date
569-10 of receipt of the completed application to approve or deny the MERC
569-11 registration.
569-12 (9) The commission [board] may revoke approval of a
569-13 MERC registration under this section at any time on determining
569-14 that the requirements of this section are not being met.
569-15 ARTICLE 12. CHANGES RELATING TO LABOR CODE
569-16 SECTION 12.01. Section 63.002, Labor Code, is amended to
569-17 correct a reference to read as follows:
569-18 Sec. 63.002. EXEMPTION. This chapter does not affect
569-19 Section 22.002 [2.07], Education Code.
569-20 ARTICLE 13. CHANGES RELATING TO LOCAL GOVERNMENT CODE
569-21 PART 1. GENERAL CHANGES
569-22 SECTION 13.01. Section 6.002, Local Government Code, is
569-23 amended to omit provisions made unnecessary because the substance
569-24 of the provisions is contained in Section 7.002(a), Local
569-25 Government Code, to read as follows:
569-26 Sec. 6.002. INCORPORATION PROCEDURE. The procedure for
570-1 incorporating as a Type A general-law municipality is the same as
570-2 that prescribed for incorporating as a Type B general-law
570-3 municipality [except the application to become incorporated must be
570-4 signed by at least 50 qualified voters who are residents of the
570-5 community].
570-6 SECTION 13.02. Section 81.002(c), Local Government Code, is
570-7 amended for grammatical purposes to read as follows:
570-8 (c) Subject to the provisions of Chapter 171, the county
570-9 judge or a county commissioner may serve as a member of the
570-10 governing body of or as an officer or director of an [another]
570-11 entity that does business with the county, excluding [except:]
570-12 [(1)] a publicly traded corporation[;] or
570-13 [(2)] a subsidiary, affiliate, or subdivision of a
570-14 publicly traded corporation[; that does business with the county].
570-15 SECTION 13.03. (a) Subtitle B, Title 3, Local Government
570-16 Code, is amended by adding a chapter heading for Chapter 89, Local
570-17 Government Code, to read as follows:
570-18 CHAPTER 89. GENERAL PROVISIONS RELATING TO COUNTY ADMINISTRATION
570-19 (b) Sections 81.023, 81.026, 81.030, 81.041, 81.042, and
570-20 81.043, Local Government Code, are transferred to Chapter 89, Local
570-21 Government Code, and designated as Sections 89.001, 89.002, 89.003,
570-22 89.004, 89.005, and 89.006, Local Government Code, respectively.
570-23 (c) Section 81.027, Local Government Code, is designated as
570-24 Section 81.026, Local Government Code, and is amended to read as
570-25 follows:
570-26 Sec. 81.026 [81.027]. COMMISSIONERS COURT MEMBERSHIP ON
571-1 ASSOCIATIONS AND NONPROFIT ORGANIZATIONS. A county judge or county
571-2 commissioner may serve on the governing body of or any committee
571-3 serving an association of counties created or operating pursuant to
571-4 the provisions of Section 89.002 [81.026]. A county judge or
571-5 county commissioner may serve as a member of any board of trustees
571-6 or board of directors or other governing body of any trust or other
571-7 entity created pursuant to interlocal contract for the purpose of
571-8 forming or administering any governmental pool, self-insurance
571-9 pool, insurance pool, or any other fund or joint endeavor created
571-10 for the benefit of member counties and political subdivisions. In
571-11 addition, a county judge or county commissioner may serve as a
571-12 member of the board of directors of any nonprofit corporation that
571-13 is created and exists solely for the purpose of providing
571-14 administrative or other services to such trust or other entity. A
571-15 county judge or county commissioner, acting as a member of any such
571-16 board or committee, may perform any act necessary or appropriate
571-17 for the rendition of such service, including the casting of votes
571-18 and deliberations concerning and execution of contracts or claims
571-19 with or against any county. A county judge or commissioner may
571-20 participate in deliberations concerning and cast any vote on any
571-21 matter before the commissioners court affecting the execution of
571-22 any contract with or the payment of claims, premiums, dues, or
571-23 contributions to any such trust, association, nonprofit
571-24 corporation, or entity or any related matter.
571-25 (d) Sections 81.024 and 81.025, Local Government Code, are
571-26 designated as Sections 81.023 and 81.024, Local Government Code,
572-1 respectively, Sections 81.028 and 81.029, Local Government Code,
572-2 are designated as Sections 81.027 and 81.028, Local Government
572-3 Code, respectively, and Section 81.031, Local Government Code, is
572-4 designated as Section 81.030, Local Government Code.
572-5 SECTION 13.04. Section 155.001, Local Government Code, as
572-6 amended by Section 1, Chapter 433, and Section 1, Chapter 817, Acts
572-7 of the 74th Legislature, Regular Session, 1995, is amended and
572-8 reenacted to read as follows:
572-9 Sec. 155.001. DEDUCTIONS AUTHORIZED IN COUNTIES; PURPOSES.
572-10 (a) The commissioners court, on the request of a county employee,
572-11 may authorize a payroll deduction to be made from the employee's
572-12 wages or salary for payment to a credit union.
572-13 (b) In a county with a population of 20,000 or more, the
572-14 commissioners court, on the request of a county employee, may
572-15 authorize a payroll deduction to be made from the employee's wages
572-16 or salary for:
572-17 (1) payment of membership dues in a labor union or a
572-18 bona fide employees association; [or]
572-19 (2) payment of fees for parking in a county-owned
572-20 facility; or
572-21 (3) [(4)] payment to a charitable organization.
572-22 (c) [(b)] In this section, "charitable organization" has the
572-23 meaning assigned by Section 659.131, Government Code [1, Article
572-24 6813h, Revised Statutes].
572-25 SECTION 13.05. Section 159.032(1), Local Government Code, is
572-26 amended to conform to Section 18, Chapter 1134, Acts of the 75th
573-1 Legislature, Regular Session, 1997, to read as follows:
573-2 (1) "County officer" means a sheriff, county tax
573-3 assessor-collector, county clerk, district clerk, county treasurer,
573-4 county auditor, or county purchasing agent. The term does not
573-5 include a county [or district] officer as defined by Section
573-6 159.002.
573-7 SECTION 13.06. (a) Section 194.0065, Local Government Code,
573-8 is transferred to Chapter 193, Local Government Code, for
573-9 organization purposes, is designated as Section 193.013, Local
573-10 Government Code, and is amended to read as follows:
573-11 Sec. 193.013 [194.0065]. COMPUTERIZED INDEX FOR CERTAIN
573-12 [OFFICIAL PUBLIC] RECORDS. An index for a [an official public]
573-13 record listed in Section 193.008(b) may be stored or maintained by
573-14 computer if[, provided that] a security or backup copy of the
573-15 [such] index is [be] created on a daily basis and stored in a
573-16 climate-controlled location that is[,] equipped with fire alarms
573-17 and sprinklers. The storage location[, which] must be separate
573-18 [and apart] from the building in which the computer is located.
573-19 (b) Sections 194.0025, 194.010, and 194.017, Local
573-20 Government Code, are repealed because those sections are superseded
573-21 by Subtitle C, Title 6, Local Government Code.
573-22 SECTION 13.07. Section 219.003(a), Local Government Code, is
573-23 amended for clarification purposes to read as follows:
573-24 (a) A comprehensive plan may be adopted or amended by
573-25 ordinance following:
573-26 (1) a hearing at which the public is given the
574-1 opportunity to give testimony and present written evidence; and
574-2 (2) [, if one exists,] review by the municipality's
574-3 planning commission or department, if one exists.
574-4 SECTION 13.08. (a) Section 363.051(a), Local Government
574-5 Code, is amended to conform to Section 1, Chapter 1248, Acts of the
574-6 75th Legislature, Regular Session, 1997, to read as follows:
574-7 (a) The creation of a crime control and prevention district
574-8 may be proposed under this chapter by a majority vote of the
574-9 governing body of a:
574-10 (1) county with a population of more than 130,000; or
574-11 (2) municipality that is partially or wholly located
574-12 in a county with a population of more than 5,000 [one million].
574-13 (b) Section 363.055(a), Local Government Code, is amended to
574-14 conform to Section 2, Chapter 1248, Acts of the 75th Legislature,
574-15 Regular Session, 1997, to read as follows:
574-16 (a) The proposed rate for the district sales and use tax
574-17 imposed under Subchapter B, Chapter 323, Tax Code, may be only:
574-18 (1) one-eighth of one percent;
574-19 (2) one-fourth of one percent;
574-20 (3) three-eighths of one percent; or
574-21 (4) [(2)] one-half of one percent.
574-22 (c) Subchapter C, Chapter 363, Local Government Code, is
574-23 amended to conform to Section 3, Chapter 1248, Acts of the 75th
574-24 Legislature, Regular Session, 1997, by adding Section 363.1015 to
574-25 read as follows:
574-26 Sec. 363.1015. ALTERNATE FORMS OF APPOINTMENT: BOARD OF
575-1 DIRECTORS. (a) The governing body of a municipality or county by
575-2 resolution may appoint the governing body's membership as the board
575-3 of directors of the district, if the appointment is approved by the
575-4 voters in a creation election or continuation referendum under this
575-5 chapter.
575-6 (b) A member of a governing body appointed under Subsection
575-7 (a) serves a term as a director concurrent with the member's term
575-8 on the governing body.
575-9 (c) In a district for which the board is not appointed under
575-10 Subsection (a), the governing body of the municipality or county
575-11 may create a board by having each member of the governing body
575-12 appoint one director to the board.
575-13 (d) A director appointed under Subsection (c) serves:
575-14 (1) at the pleasure of the appointing member of the
575-15 governing body; and
575-16 (2) for a term concurrent with the term of the
575-17 appointing member.
575-18 (d) Subchapter F, Chapter 363, Local Government Code, is
575-19 amended to conform to Section 4, Chapter 1248, Acts of the 75th
575-20 Legislature, Regular Session, 1997, by adding Section 363.2515 to
575-21 read as follows:
575-22 Sec. 363.2515. CONTINUATION OF DISTRICT: CERTAIN POLITICAL
575-23 SUBDIVISIONS. (a) The following entities may specify the number
575-24 of years for which a district should be continued:
575-25 (1) in a county with a population of one million or
575-26 more that created the district, the board or the commissioners
576-1 court; and
576-2 (2) in a municipality with a population of 75,000 or
576-3 less that created the district, the governing body of the
576-4 municipality.
576-5 (b) A district may be continued under Subsection (a) only
576-6 for 5, 10, 15, or 20 years.
576-7 (c) For a continuation referendum under this section, the
576-8 ballot shall be printed to permit voting for or against the
576-9 proposition: "Whether the ____ Crime Control and Prevention
576-10 District should be continued for ____ years and the crime control
576-11 and prevention district sales tax should be continued for ____
576-12 years."
576-13 (e) Section 363.301, Local Government Code, is amended to
576-14 conform to Section 5, Chapter 1248, Acts of the 75th Legislature,
576-15 Regular Session, 1997, by amending Subsection (a) and adding
576-16 Subsection (c) to read as follows:
576-17 (a) The district is dissolved on the fifth anniversary of
576-18 the date the district began to levy taxes for district purposes
576-19 [was created] if the district has not held a continuation or
576-20 dissolution referendum.
576-21 (c) Subsection (b) does not apply to a district that is
576-22 continued under Section 363.2515, and that district is dissolved at
576-23 the end of the period for which it was continued.
576-24 (f) Sections 1-5, Chapter 1248, Acts of the 75th
576-25 Legislature, Regular Session, 1997, are repealed.
576-26 SECTION 13.09. (a) Section 376.052(a), Local Government
577-1 Code, is amended to conform to Section 1, Chapter 591, Acts of the
577-2 75th Legislature, Regular Session, 1997, to read as follows:
577-3 (a) The district has:
577-4 (1) all powers necessary or required to accomplish the
577-5 purposes for which the district was created;
577-6 (2) the rights, powers, privileges, authority, and
577-7 functions of a district created under Chapter 375;
577-8 (3) the powers given to a corporation under Section
577-9 4B, the Development Corporation Act of 1979 (Article 5190.6,
577-10 Vernon's Texas Civil Statutes), and the power to own, operate,
577-11 acquire, construct, lease, improve, and maintain projects described
577-12 by that section;
577-13 (4) the power to impose ad valorem taxes, assessments,
577-14 or impact fees in accordance with Chapter 375 to provide
577-15 improvements and services for a project or activity the district is
577-16 authorized to acquire, construct, improve, or provide under this
577-17 subchapter; [and]
577-18 (5) the power to correct, add to, or delete
577-19 assessments from its assessment rolls after notice and hearing as
577-20 provided by Subchapter F, Chapter 375; and
577-21 (6) the power to grant, without additional procedures,
577-22 abatements for taxes or assessments owed to the district under
577-23 Chapter 312, Tax Code.
577-24 (b) Section 1, Chapter 591, Acts of the 75th Legislature,
577-25 Regular Session, 1997, is repealed.
577-26 SECTION 13.10. (a) Subtitle C, Title 12, Local Government
578-1 Code, is amended to codify Chapter 831, Acts of the 75th
578-2 Legislature, Regular Session, 1997 (Article 1269j-18, Vernon's
578-3 Texas Civil Statutes), and Chapter 1207, Acts of the 75th
578-4 Legislature, Regular Session, 1997 (Article 1269j-19, Vernon's
578-5 Texas Civil Statutes), and to revise and more appropriately locate
578-6 Chapter 2311, Government Code, by adding Chapter 396 to read as
578-7 follows:
578-8 CHAPTER 396. REDEVELOPMENT AUTHORITIES CREATED BY
578-9 MORE THAN ONE POLITICAL SUBDIVISION
578-10 SUBCHAPTER A. LUBBOCK REESE DEVELOPMENT AUTHORITY
578-11 Sec. 396.001. DEFINITIONS. In this subchapter:
578-12 (1) "Authority" means the Lubbock Reese Redevelopment
578-13 Authority.
578-14 (2) "Base property" means land described by Section
578-15 396.009.
578-16 (3) "Board" means the board of directors of the
578-17 authority.
578-18 (4) "County" means Lubbock County.
578-19 (5) "Municipality" means the City of Lubbock.
578-20 Sec. 396.002. ESTABLISHMENT. The authority is established
578-21 as a political subdivision, with boundaries the same as the
578-22 boundaries of the real property described by Section 396.009, on
578-23 adoption of resolutions by both the municipality and the county
578-24 authorizing the authority's establishment.
578-25 Sec. 396.003. BOARD. (a) The board consists of nine
578-26 members and is responsible for the management, operation, and
579-1 control of the authority.
579-2 (b) The board is composed of:
579-3 (1) two members appointed by the governing body of the
579-4 municipality;
579-5 (2) two members appointed by the governing body of the
579-6 county;
579-7 (3) one member appointed by the South Plains
579-8 Association of Governments; and
579-9 (4) four at-large members appointed by the majority
579-10 vote of the members appointed under Subdivisions (1), (2), and (3).
579-11 (c) A vacancy on the board is filled in the same manner as
579-12 the original appointment. Each board member serves for a term of
579-13 two years.
579-14 (d) The members of the board shall elect from its membership
579-15 a president and a vice president. The vice president shall preside
579-16 in the absence of the president.
579-17 (e) The board shall adopt rules for its proceedings and may
579-18 employ and compensate persons to carry out the powers and duties of
579-19 the authority.
579-20 Sec. 396.004. PURPOSE AND NATURE OF AUTHORITY. (a) The
579-21 authority may accept title, on approval by and in coordination with
579-22 the governor, from the United States to all or any portion of the
579-23 base property.
579-24 (b) The authority is a public political entity and corporate
579-25 body that exercises public and essential governmental functions.
579-26 (c) The exercise of a power granted by this subchapter is
580-1 for a public purpose and is a matter of public necessity.
580-2 (d) The authority is a governmental unit under Chapter 101,
580-3 Civil Practice and Remedies Code. The operations of the authority
580-4 are not proprietary functions for any purpose, including the
580-5 application of Chapter 101, Civil Practice and Remedies Code.
580-6 Sec. 396.005. POWERS OF AUTHORITY. (a) The authority may
580-7 exercise, on approval by and in coordination with the governor, all
580-8 the powers necessary or convenient to carry out a purpose of this
580-9 subchapter, including the power to:
580-10 (1) sue and be sued to the extent permitted by law,
580-11 and plead and be impleaded, in its own name;
580-12 (2) adopt an official seal and alter it as considered
580-13 advisable;
580-14 (3) adopt and enforce bylaws and rules for the conduct
580-15 of its affairs that are not inconsistent with this subchapter;
580-16 (4) acquire, hold, own, and dispose of its revenues,
580-17 income, receipts, funds, and money from every source;
580-18 (5) select its depository;
580-19 (6) set the fiscal year for the authority;
580-20 (7) establish a complete system of accounts for the
580-21 authority;
580-22 (8) invest funds in accordance with Chapter 2256,
580-23 Government Code;
580-24 (9) acquire, use, own, rent, lease, accept, hold, or
580-25 dispose of any property, or licenses, patents, rights, and other
580-26 interest in that property, by purchase, exchange, gift, assignment,
581-1 condemnation, sale, lease, or any other means, including
581-2 rights-of-way or easements, and hold, manage, operate, or improve
581-3 that property, to perform a duty or exercise a power under this
581-4 subchapter;
581-5 (10) sell, assign, lease, encumber, mortgage, or
581-6 otherwise dispose of any property comprising the base property, or
581-7 any interest in that property, release or relinquish any right,
581-8 title, claim, lien, interest, easement, or demand, however
581-9 acquired, and, notwithstanding any other law, conduct any
581-10 transaction authorized by this subdivision by public or private
581-11 sale;
581-12 (11) lease or rent any land or buildings, structures,
581-13 or facilities located on the base property to any person to carry
581-14 out the purposes of this subchapter;
581-15 (12) request and accept any appropriations, grants,
581-16 allocations, subsidies, guaranties, aid, contributions, services,
581-17 labor, materials, gifts, donations, or money from the federal
581-18 government, the state, any public agency or political subdivision,
581-19 or any other source;
581-20 (13) operate and maintain an office;
581-21 (14) appoint and determine the duties, tenure,
581-22 qualifications, compensation, and removal of officers, employees,
581-23 agents, professional advisors, and counselors, including financial
581-24 consultants, accountants, attorneys, architects, engineers,
581-25 appraisers, and financing experts, as considered necessary or
581-26 advisable by the board;
582-1 (15) borrow money as necessary to acquire, improve, or
582-2 operate facilities on the base property, not to exceed an amount
582-3 determined by the governing body of the municipality;
582-4 (16) fix, revise, charge, and collect rents, rates,
582-5 fees, and charges for its facilities and services;
582-6 (17) exercise the powers granted to municipalities
582-7 under Chapter 380 for expansion of economic development and
582-8 commercial activity; and
582-9 (18) adopt an annual operating budget for all major
582-10 expenditures before the beginning of the fiscal year.
582-11 (b) In a suit described by Subsection (a)(1), the authority
582-12 may not be required to give security for costs or a supersedeas or
582-13 cost bond in an appeal of a judgment.
582-14 Sec. 396.006. EXEMPTION FROM TAXATION. The property,
582-15 revenues, and income of the authority are exempt from a tax levied
582-16 by the state or a political subdivision of the state.
582-17 Sec. 396.007. DISSOLUTION. (a) The authority shall be
582-18 dissolved:
582-19 (1) when all the functions of the authority are
582-20 performed and completed; and
582-21 (2) on approval of the municipality and county after
582-22 all debts or obligations have been satisfied or retired with the
582-23 assets of the authority.
582-24 (b) It is the intention of the legislature that the
582-25 authority be dissolved after conveyance and sale of all of the base
582-26 property.
583-1 (c) Any remaining assets of the authority shall be conveyed
583-2 or transferred to the municipality and the county in accordance
583-3 with the initial proportion of funds contributed by each.
583-4 Sec. 396.008. SUCCESSOR. The authority is the successor in
583-5 interest to the Lubbock Reese Redevelopment Authority Corporation,
583-6 a nonprofit corporation organized under the Texas Non-Profit
583-7 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
583-8 Statutes), and succeeds to all rights and liabilities of the
583-9 corporation.
583-10 Sec. 396.009. DESCRIPTION OF TRACTS. (1) FIRST TRACT. All
583-11 of Section Four (4) and the East Half (E 1/2) of Section Twenty-six
583-12 (26) except that part of said Sections lying south of the north
583-13 right-of-way line of State Highway No. 290 as same now exists; and
583-14 the South Half (S 1/2) of Section Twenty-five (25), all in Block
583-15 D-6; and the Southeast Quarter (SE 1/4) of Section Forty-eight (48)
583-16 Block P, and containing 1387.66 acres more or less, and all
583-17 easements appurtenant thereto, together with any improvements and
583-18 personal property related therein;
583-19 (2) SECOND TRACT. A strip of land adjacent to and
583-20 extending fifty (50) feet in width on each side of the following
583-21 described line: Commencing at the northeast corner of Section Five
583-22 (5), Block D-6; thence west along the north line of said Section
583-23 Five (5), a distance of two-hundred (200) feet; thence south at
583-24 right angles to said north line a distance of fifty (50) feet to
583-25 the point of beginning; thence continuing south at right angles to
583-26 said north line a distance of one-hundred sixty (160) feet, more or
584-1 less, to a point of curve; thence southwesterly on a curve to the
584-2 right with a radius of nine-hundred forty-two and twenty-nine
584-3 hundredths (942.29) feet, a distance of one-thousand three-hundred
584-4 ninety-six (1396) feet, more or less, to a point of intersection
584-5 with a line parallel with and seventy-five (75) feet northeasterly
584-6 from, measured at right angles to, the centerline of the main track
584-7 of the South Plains and Santa Fe Railway Company, containing 3.57
584-8 acres, more or less, and all easements appurtenant thereto,
584-9 together with any improvements and personal property related
584-10 therein;
584-11 (3) THIRD TRACT (Radio Transmitter Site). A parcel of
584-12 land described as beginning at the northwest corner of the
584-13 southwest quarter (SW 1/4) of Section Two (2), Block D-6; thence
584-14 east six-hundred sixty (660) feet, thence south six-hundred sixty
584-15 (660) feet, thence west six-hundred sixty (660) feet, thence north
584-16 six-hundred sixty (660) feet to the place of beginning, containing
584-17 ten (10) acres, more or less, and all easements appurtenant
584-18 thereto, together with any improvements and personal property
584-19 related therein;
584-20 (4) FOURTH TRACT (Radio Range Site). A certain parcel
584-21 of land described as beginning at the southwest corner of the east
584-22 half (E 1/2) of Section Thirty-eight (38), Block JS, thence north
584-23 five-hundred twenty-two (522) feet, thence east five-hundred (500)
584-24 feet, thence south five-hundred twenty-two (522) feet, thence west
584-25 five-hundred (500) feet to the point of beginning containing six
584-26 (6) acres, more or less, all easements appurtenant thereto,
585-1 together with any improvements and personal property related
585-2 therein;
585-3 (5) FIFTH TRACT (Terry County Auxiliary Air Field). A
585-4 parcel of land situated in Section 27, Block E, E.L. & R.R. Co.
585-5 Survey, County of Terry, State of Texas, being more particularly
585-6 described as follows: beginning at a 1/2" iron rod in the south
585-7 line of Section 27 that bears west, a distance of 1820 feet from
585-8 the section corner common to Sections 27 and 30, Block E for the
585-9 southeast corner of this tract; Thence north 88 35' west, along the
585-10 south line of said Section 27, a distance of 1870 feet to a 1/2"
585-11 iron rod for the southwest corner of this tract; Thence north 02
585-12 23' east, a distance of 5195.4 feet to a 1/2" iron rod set under a
585-13 fence for the northwest corner of this tract; Thence south 88 33'
585-14 east, along an east-west fence line, a distance of 100 feet to a
585-15 point; Thence south 2 23' west, a distance of 200 feet to a 1/2"
585-16 iron pipe for an inside corner of this tract; Thence south 88 33'
585-17 east, a distance of 1770 feet to a 1/2" iron pipe for the northeast
585-18 corner of this tract which bears south, a distance of 200 feet from
585-19 an east-west fence; Thence south 02 23' west, a distance of 4993.2
585-20 feet to the point of beginning, containing an area of 214.86 acres,
585-21 more or less, and all easements appurtenant thereto, together with
585-22 any improvements and personal property related therein.
585-23 (6) SIXTH TRACT (Terry County Auxiliary Air Field). A
585-24 parcel of land situated in Section 30, Block E, E.L. & R.R. R.R.
585-25 Co. Survey, County of Terry, State of Texas, being more
585-26 particularly described as: Beginning at a 1/2" iron rod in a line
586-1 common to the north line of Section 30 and the south line of
586-2 Section 27 which bears west, a distance of 1820 feet from the
586-3 section corner common to Sections 27 and 30, Block E for the
586-4 northeast corner of this tract; Thence south 02 23' west, a
586-5 distance of 5208.1 feet to a point for the southeast corner of this
586-6 tract which bears west, a distance of 1835.5 feet form the
586-7 southeast corner of Section 30; Thence north 88 55' west, along an
586-8 east-west fence on the south line of Section 30, a distance of 1855
586-9 feet to a point for the southwest corner of this tract; Thence
586-10 north 43 16' west, a distance of 21.5 feet to a 1/2" iron rod, set
586-11 for a corner of this tract, which bears north, a distance of 15
586-12 feet from an east-west fence; Thence north 02 23' east, a distance
586-13 of 5203.4 feet to a 1/2" iron rod for the northwest corner of this
586-14 tract which bears east, a distance of 1590 feet from the northwest
586-15 corner of Section 30; Thence south 88 35' east, along the north
586-16 line of Section 30, a distance of 1870 feet to the point of
586-17 beginning, containing an area of 223.80 acres, more or less, and
586-18 all easements appurtenant thereto, together with any improvements
586-19 and personal property related therein.
586-20 (7) SEVENTH TRACT (Terry County Auxiliary Air Field).
586-21 A parcel of land situated in Section 33, Block E, E. L. & R. R.
586-22 R.R. Co. Survey, County of Terry, State of Texas, being more
586-23 particularly described as follows: Beginning at a point under a
586-24 fence along the north line of Section 33 that bears west, a
586-25 distance of 1835.5 feet form a 2" iron pipe marking the northeast
586-26 corner of Section 33; Thence south 02 23' west, a distance of 400
587-1 feet to a 1/2" reinforcing rod for the southeast corner of this
587-2 tract; Thence north 88 55' west, along a line parallel to and 400
587-3 feet south of an east-west fence along the north line of Section
587-4 33, a distance of 1455 feet to a 1/2" iron rod for the southwest
587-5 corner of this tract; Thence north 43 16' west. a distance of 558.7
587-6 feet to a point for the northwest corner of this tract; Thence
587-7 south 88 55' east, with an east-west fence along the north line of
587-8 Section 33, a distance of 1855 feet to the northeast corner of this
587-9 tract and the point of beginning, containing an area of 15.20
587-10 acres, more or less, and all easements appurtenant thereto,
587-11 together with any improvements and personal property related
587-12 therein.
587-13 (8) EIGHTH TRACT (Terry County Auxiliary Air Field).
587-14 A parcel of land situated in Section 33, Block E, E.L. & R.R.
587-15 Railroad Co., Survey, County of Terry, State of Texas, being more
587-16 particularly described as follows: Beginning at a point that bears
587-17 west, a distance of 1835.5 feet and south 02 23' west, a distance
587-18 of 400 feet from the northeast corner of Section 33, Block E, E.L.
587-19 & R.R. Railroad Co., Survey; thence south 02 23' west, a distance
587-20 of 1500 feet; thence north 88 55' west, parallel to the north line
587-21 of Section 33, a distance of 1870 feet; thence north 02 23' east, a
587-22 distance of 1890.55 feet; thence south 88 55' east, a distance of
587-23 15.34 feet; thence south 43 16' east, a distance of 558.70 feet;
587-24 thence south 88 55' east, a distance of 1455.14 feet to the point
587-25 of beginning, containing 66.34 acres, more or less, and all
587-26 easements appurtenant thereto, together with any improvements and
588-1 personal property related therein.
588-2 (Sections 396.010-396.030 reserved for expansion
588-3 SUBCHAPTER B. WESTWORTH VILLAGE-WHITE SETTLEMENT
588-4 REDEVELOPMENT AUTHORITY
588-5 Sec. 396.031. DEFINITIONS. In this subchapter:
588-6 (1) "Authority" means the Westworth Village-White
588-7 Settlement Redevelopment Authority.
588-8 (2) "Board" means the board of directors of the
588-9 authority.
588-10 Sec. 396.032. ESTABLISHMENT. The authority is established
588-11 as a political subdivision with boundaries the same as the
588-12 boundaries of Westworth Village and White Settlement if each
588-13 municipality:
588-14 (1) adopts a resolution authorizing the authority's
588-15 establishment; and
588-16 (2) appoints three members to the board of the
588-17 authority.
588-18 Sec. 396.033. BOARD. (a) The board consists of six members
588-19 and is responsible for the management, operation, and control of
588-20 the authority.
588-21 (b) The governing body of each municipality in the authority
588-22 shall appoint three members to the board.
588-23 (c) Members of the board serve for terms of two years.
588-24 (d) The board shall select from its membership a person to
588-25 serve as presiding officer and a person to serve as assistant
588-26 presiding officer. The assistant presiding officer shall preside
589-1 in the absence of the presiding officer. The board shall also
589-2 select a secretary-treasurer, who is not required to be a member of
589-3 the board.
589-4 (e) A vacancy on the board is filled in the manner provided
589-5 for the original appointment, and a person filling a vacancy serves
589-6 for the unexpired term.
589-7 (f) The board may employ all persons necessary to carry out
589-8 the functions of the authority.
589-9 Sec. 396.034. PURPOSE. (a) The authority is created:
589-10 (1) to accept title, on approval by and in
589-11 coordination with the governor, from the United States to all or
589-12 any portion of the real property situated:
589-13 (A) within the boundaries of the authority,
589-14 together with any improvements located on the property and personal
589-15 property related to the property, commonly referred to as Parcel
589-16 A - 18 Hole Golf Course; Parcel B - Wherry Housing Area; Parcel
589-17 C - Kings Branch Housing Area; Parcel D - Stables Area and Vacant
589-18 Land; Parcel E - 5 acres; Parcel F - 18 acres; Parcel H - Firing
589-19 Range; and
589-20 (B) outside the boundaries of the authority
589-21 within an unincorporated area in Tarrant County, together with any
589-22 improvements located on the property and personal property related
589-23 to the property, commonly referred to as Parcel G - Weapons Storage
589-24 Area; and
589-25 (2) to use the property and all assistance available
589-26 for the property from the United States and all other sources to
590-1 replace and enhance the economic benefits generated for the
590-2 property by Carswell Air Force Base with diversified activity,
590-3 including planned land uses to foster creation of new jobs,
590-4 economic development, industry, commerce, manufacturing, housing,
590-5 and recreation and the construction, operation, and maintenance of
590-6 facilities, improvements, and infrastructures on the property.
590-7 (b) Any use or development of land within Parcel G may not
590-8 be undertaken without the prior written consent of the City of Fort
590-9 Worth.
590-10 Sec. 396.035. POWERS OF AUTHORITY. The authority may
590-11 exercise, on approval by and in coordination with the governor, all
590-12 powers necessary or appropriate to carry out the purposes of this
590-13 subchapter, including the power to:
590-14 (1) sue and be sued, and plead and be impleaded, in
590-15 its own name;
590-16 (2) adopt an official seal, and alter the seal when
590-17 advisable;
590-18 (3) adopt and enforce bylaws and rules for the conduct
590-19 of its affairs that are not inconsistent with this subchapter;
590-20 (4) acquire, hold, use, and dispose of its revenues,
590-21 income, receipts, funds, and money from every source and to select
590-22 its depository;
590-23 (5) acquire, own, rent, lease, accept, hold, or
590-24 dispose of any property or interest in property, including rights
590-25 or easements, in performing its duties and exercising its powers
590-26 under this subchapter by purchase, exchange, gift, assignment,
591-1 condemnation, sale, lease, or otherwise and to hold, manage,
591-2 operate, or improve the property;
591-3 (6) sell, assign, lease, encumber, mortgage, or
591-4 otherwise dispose of any property or interest in property, and
591-5 release or relinquish any right, title, claim, lien, interest,
591-6 easement, or demand however acquired;
591-7 (7) perform an activity authorized by Subdivision (6)
591-8 by public or private sale, with or without public bidding,
591-9 notwithstanding any other law;
591-10 (8) lease or rent any lands within the property and
591-11 buildings, structures, or facilities located on the property from
591-12 or to any person or municipality or other public agency or
591-13 political subdivision to carry out the purposes of this subchapter;
591-14 (9) request and accept any appropriations, grants,
591-15 allocations, subsidies, guaranties, aid, contributions, services,
591-16 labor, materials, gifts, or donations from the federal government,
591-17 the state, any public agency or political subdivision, or any other
591-18 source;
591-19 (10) operate and maintain an office and appoint and
591-20 determine the duties, tenure, qualifications, and compensation of
591-21 officers, employees, agents, and professional advisors and
591-22 counselors, including financial consultants, accountants,
591-23 attorneys, architects, engineers, appraisers, and financing
591-24 experts, as considered necessary or advisable by the board;
591-25 (11) borrow money;
591-26 (12) fix, revise, charge, and collect rents, rates,
592-1 fees, and charges for its facilities and services;
592-2 (13) acquire land or any interest in land within the
592-3 boundaries of the authority by condemnation in the manner provided
592-4 by Chapter 21, Property Code, subject to the approval of each
592-5 municipality in the authority; and
592-6 (14) exercise the powers granted to municipalities
592-7 under Chapters 373 and 380 for the development of housing and
592-8 expansion of economic development and commercial activity.
592-9 Sec. 396.036. EXEMPTION FROM TAXATION. The properties,
592-10 revenues, and income of the authority are exempt from all taxes
592-11 levied by the state or a political subdivision of the state.
592-12 Sec. 396.037. COMPETITIVE BIDS. (a) A contract in the
592-13 amount of more than $15,000 for the construction of improvements or
592-14 the purchase of material, machinery, equipment, supplies, or any
592-15 other property except real property may only be let on competitive
592-16 bids after notice is published in a newspaper of general
592-17 circulation in the authority before the 15th day before the date
592-18 set for receiving bids.
592-19 (b) The board may adopt rules governing the receiving of
592-20 bids and the awarding of contracts.
592-21 (c) This section does not apply to personal or professional
592-22 services or the acquisition or sale of the property.
592-23 Sec. 396.038. DISSOLUTION. (a) The authority may be
592-24 dissolved by the board on approval of each municipality in the
592-25 authority after all debts or obligations have been satisfied or
592-26 retired. It is the intent of the legislature that the authority be
593-1 dissolved after conveyance and sale of all of the property.
593-2 (b) Assets of the authority remaining after all debts or
593-3 obligations have been satisfied are to be conveyed or transferred
593-4 to the municipalities in the authority as approved by the board.
593-5 (Sections 396.039-396.060 reserved for expansion
593-6 SUBCHAPTER C. RED RIVER REDEVELOPMENT AUTHORITY
593-7 Sec. 396.061. DEFINITIONS. In this subchapter:
593-8 (1) "Authority" means the Red River Redevelopment
593-9 Authority.
593-10 (2) "Board" means the board of directors of the
593-11 authority.
593-12 (3) "County" means Bowie County.
593-13 (4) "Eligible municipality" includes only the cities
593-14 of Texarkana, New Boston, Hooks, Nash, Wake Village, Leary,
593-15 Redwater, Maud, and DeKalb.
593-16 Sec. 396.062. ESTABLISHMENT. The authority is established
593-17 as a political subdivision with boundaries the same as the
593-18 boundaries of the real property described in Section 396.064(1), if
593-19 each eligible municipality and the county:
593-20 (1) adopts resolutions authorizing the authority's
593-21 establishment; and
593-22 (2) appoints members to the board as provided by
593-23 Section 396.063.
593-24 Sec. 396.063. BOARD. (a) The board consists of 15 members
593-25 and is responsible for the management, operation, and control of
593-26 the authority.
594-1 (b) The board is composed of the following members:
594-2 (1) two members appointed by the county judge of the
594-3 county;
594-4 (2) one member appointed by the commissioners court of
594-5 the county;
594-6 (3) three members appointed by the mayor of Texarkana;
594-7 (4) one member appointed by the mayor of New Boston;
594-8 (5) one member appointed by the mayor of Hooks;
594-9 (6) one member appointed by the mayor of Nash;
594-10 (7) one member appointed by the mayor of Wake Village;
594-11 (8) one member appointed by the mayor of Leary;
594-12 (9) one member appointed by the mayor of Redwater;
594-13 (10) one member appointed by the mayor of Maud;
594-14 (11) one member appointed by the mayor of DeKalb; and
594-15 (12) one at-large member elected by the appointed
594-16 members.
594-17 (c) A vacancy on the board is filled in the same manner as
594-18 the original appointment. Each board member serves for a term of
594-19 two years.
594-20 (d) A board member who is also an elected official serves
594-21 for a term coinciding with the term of the elected office.
594-22 (e) The board shall elect from its membership a president
594-23 and a vice president. The vice president shall preside in the
594-24 absence of the president.
594-25 (f) The board shall adopt rules to govern its proceedings.
594-26 (g) The board may employ persons to carry out the powers and
595-1 duties of the authority.
595-2 (h) A board member may be recalled at any time by the
595-3 appointing official.
595-4 Sec. 396.064. PURPOSE. The authority is created to:
595-5 (1) accept title on approval by and in coordination
595-6 with the governor from the United States to all or any portion of
595-7 the property situated within Red River Army Depot, as legally
595-8 described by the United States Army Corps of Engineers, Fort Worth
595-9 District, now or in the future life of the authority;
595-10 (2) promote the location and development of new
595-11 businesses and industries on the property described in Subdivision
595-12 (1); and
595-13 (3) undertake a project necessary or incidental to the
595-14 industrial, commercial, or business development, redevelopment,
595-15 maintenance, and expansion of new or existing businesses on the
595-16 property described in Subdivision (1), including the acquisition,
595-17 construction, operation, maintenance, or enhancement of:
595-18 (A) roads, bridges, and rights-of-way;
595-19 (B) housing;
595-20 (C) property;
595-21 (D) police, fire, medical, cultural,
595-22 educational, and research services, equipment, institutions, and
595-23 resources;
595-24 (E) other community support services;
595-25 (F) flood control, water, wastewater treatment,
595-26 and other utility facilities; and
596-1 (G) other infrastructure improvements.
596-2 Sec. 396.065. POWERS OF AUTHORITY. (a) Except as provided
596-3 by Subsection (b), the authority may exercise, on approval by and
596-4 in coordination with the governor, all powers necessary or
596-5 appropriate to carry out the purposes of this subchapter, including
596-6 the power to:
596-7 (1) sue and be sued, and plead and be impleaded, in
596-8 its own name;
596-9 (2) adopt an official seal, and alter the seal when
596-10 advisable;
596-11 (3) adopt and enforce bylaws and rules for the conduct
596-12 of its affairs that are not inconsistent with this subchapter;
596-13 (4) acquire, hold, own, and dispose of its revenues,
596-14 income, receipts, funds, and money from every source and to select
596-15 its depository;
596-16 (5) acquire, own, rent, lease, accept, hold, or
596-17 dispose of any property, or any interest in property, including
596-18 rights or easements, in performing its duties and exercising its
596-19 powers under this subchapter, by purchase, exchange, gift,
596-20 assignment, condemnation, sale, lease, or otherwise, and to hold,
596-21 manage, operate, or improve the property;
596-22 (6) sell, assign, lease, encumber, mortgage, or
596-23 otherwise dispose of any property, or any interest in property, and
596-24 release or relinquish any right, title, claim, lien, interest,
596-25 easement, or demand however acquired;
596-26 (7) perform an activity authorized by Subdivision (6)
597-1 by public or private sale, with or without public bidding,
597-2 notwithstanding any other law;
597-3 (8) lease or rent any lands within the property and
597-4 buildings, structures, or facilities located on the property from
597-5 or to any person or municipality or other public agency or
597-6 political subdivision to carry out the purposes of this subchapter;
597-7 (9) request and accept any appropriations, grants,
597-8 allocations, subsidies, guaranties, aid, contributions, services,
597-9 labor, materials, gifts, or donations from the federal government,
597-10 the state, any public agency or political subdivision, or any other
597-11 source;
597-12 (10) operate and maintain an office and appoint and
597-13 determine the duties, tenure, qualifications, and compensation of
597-14 officers, employees, agents, professional advisors and counselors,
597-15 including financial consultants, accountants, attorneys,
597-16 architects, engineers, appraisers, and financing experts, as
597-17 considered necessary or advisable by the board;
597-18 (11) borrow money;
597-19 (12) fix, revise, charge, and collect rents, rates,
597-20 fees, and charges for its facilities and services;
597-21 (13) exercise the powers granted to municipalities
597-22 under Chapters 373 and 380 for the development of housing and
597-23 expansion of economic development and commercial activity;
597-24 (14) exercise the powers granted to general-law
597-25 districts under Chapter 49, Water Code, and to municipal utility
597-26 districts under Chapter 54, Water Code;
598-1 (15) exercise the powers granted to road utility
598-2 districts under Chapter 441, Transportation Code; and
598-3 (16) exercise the powers granted to municipalities and
598-4 counties under Subchapter C, Chapter 271.
598-5 (b) The authority may not use the power of eminent domain.
598-6 Sec. 396.066. EXEMPTION FROM TAXATION. The properties,
598-7 revenues, and income of the authority are exempt from all taxes
598-8 levied by the state or a political subdivision of the state.
598-9 Sec. 396.067. DISSOLUTION. (a) The authority may be
598-10 dissolved by the board on approval of each eligible municipality
598-11 and the county after all debts or obligations have been satisfied
598-12 or retired. It is the intent of the legislature that the authority
598-13 be dissolved after conveyance and sale of all of the property with
598-14 the approval of the governing bodies of the county and eligible
598-15 municipalities.
598-16 (b) Assets of the authority remaining after all debts or
598-17 obligations have been satisfied are to be conveyed or transferred
598-18 to the county.
598-19 Sec. 396.068. SUCCESSOR. (a) The authority is the
598-20 successor in interest to the Red River Local Redevelopment
598-21 Authority, a planning authority organized under the county and
598-22 recognized by the United States Department of the Army, and
598-23 succeeds to all rights and liabilities of the Red River Local
598-24 Redevelopment Authority.
598-25 (b) Chapter 2311, Government Code, is repealed.
598-26 (c) Chapter 831, Acts of the 75th Legislature, Regular
599-1 Session, 1997 (Article 1269j-18, Vernon's Texas Civil Statutes),
599-2 and Chapter 1207, Acts of the 75th Legislature, Regular Session,
599-3 1997 (Article 1269j-19, Vernon's Texas Civil Statutes), are
599-4 repealed.
599-5 PART 2. DISPOSAL OF SECTION 81.028,
599-6 LOCAL GOVERNMENT CODE
599-7 SECTION 13.11. (a) Section 81.028, Local Government Code,
599-8 as renumbered as Section 81.027, Local Government Code, by Section
599-9 13.03(d) of this Act, is amended to read as follows:
599-10 Sec. 81.027 [81.028]. SUPPORT OF PAUPERS [CERTAIN POWERS
599-11 SPECIFIED]. Each commissioners court may[:]
599-12 [(1) establish public ferries whenever the public
599-13 interest may require;]
599-14 [(2) lay out and establish, change, discontinue,
599-15 close, abandon, or vacate public roads and highways;]
599-16 [(3) build bridges and keep them in repair;]
599-17 [(4) appoint road overseers and apportion hands;]
599-18 [(5) exercise general control over all roads,
599-19 highways, ferries, and bridges in their counties;]
599-20 [(6)] provide for the support of paupers, residents of
599-21 their county, who are unable to support themselves. [A county is
599-22 obligated to provide health care assistance to eligible residents
599-23 only to the extent prescribed by Chapter 61, Health and Safety
599-24 Code, but that chapter does not affect the authority of a
599-25 commissioners court to provide eligibility standards or other
599-26 requirements relating to other assistance programs or services that
600-1 are not covered by Chapter 61; and]
600-2 [(7) establish a least cost review program for public
600-3 improvements to be constructed by use of personnel, equipment, or
600-4 facilities of the county that may exceed a cost of $100,000 or a
600-5 lesser amount in the discretion of the commissioners court.]
600-6 (b) Subchapter A, Chapter 251, Transportation Code, is
600-7 amended by adding Section 251.016 to read as follows:
600-8 Sec. 251.016. GENERAL COUNTY AUTHORITY OVER ROADS, HIGHWAYS,
600-9 AND BRIDGES. The commissioners court of a county may exercise
600-10 general control over all roads, highways, and bridges in the
600-11 county.
600-12 (c) The subchapter heading to Subchapter A, Chapter 342,
600-13 Transportation Code, is amended to read as follows:
600-14 SUBCHAPTER A. GOVERNMENT-OWNED FERRIES [STATE-OWNED FERRY]
600-15 (d) Subchapter A, Chapter 342, Transportation Code, is
600-16 amended by adding Section 342.002, to read as follows:
600-17 Sec. 342.002. COUNTY FERRIES. The commissioners court of a
600-18 county may establish public ferries as required by the public
600-19 interest.
600-20 (e) Subchapter C, Chapter 342, Transportation Code, is
600-21 amended by adding Section 342.108 to read as follows:
600-22 Sec. 342.108. GENERAL COUNTY AUTHORITY OVER FERRIES. The
600-23 commissioners court of a county may exercise general control over
600-24 all ferries in the county.
600-25 (f) Subchapter A, Chapter 262, Local Government Code, is
600-26 amended by adding Section 262.006 to read as follows:
601-1 Sec. 262.006. LEAST COST REVIEW PROGRAM. The commissioners
601-2 court of a county may establish a least cost review program for
601-3 public improvements to be constructed by the use of personnel,
601-4 equipment, or facilities of the county that may exceed a cost of:
601-5 (1) $100,000; or
601-6 (2) an amount less than $100,000 as determined by the
601-7 commissioners court.
601-8 (g) Subchapter B, Chapter 61, Health and Safety Code, is
601-9 amended by adding Section 61.0221 to read as follows:
601-10 Sec. 61.0221. AUTHORITY RELATING TO OTHER ASSISTANCE
601-11 PROGRAMS. This subchapter does not affect the authority of the
601-12 commissioners court of a county to provide eligibility standards or
601-13 other requirements relating to assistance programs or services that
601-14 are not covered by this subchapter.
601-15 PART 3. CONFORMING TERMINOLOGY
601-16 SECTION 13.12. Section 43.0751(f), Local Government Code, is
601-17 amended to conform to the terminology of the Local Government Code
601-18 to read as follows:
601-19 (f) A strategic partnership agreement may provide for the
601-20 following:
601-21 (1) limited-purpose annexation of the district under
601-22 the provisions of Subchapter F provided that the district shall
601-23 continue in existence during the period of limited-purpose
601-24 annexation;
601-25 (2) such amendments to the timing requirements of
601-26 Sections 43.123(d)(2) and 43.127(b) as may be necessary or
602-1 convenient to effectuate the purposes of the agreement;
602-2 (3) payments by the municipality to the district for
602-3 services provided by the district;
602-4 (4) annexation of any commercial property in a
602-5 district for full purposes by the municipality, notwithstanding any
602-6 other provision of this code or the Water Code, except for the
602-7 obligation of the municipality to provide, directly or through
602-8 agreement with other units of government, full provision of
602-9 municipal services to annexed territory, in lieu of any annexation
602-10 of residential property or payment of any fee on residential
602-11 property in lieu of annexation of residential property in the
602-12 district authorized by this subsection;
602-13 (5) a full-purpose annexation provision that specifies
602-14 one of the following:
602-15 (A) the date on which the land included within
602-16 the district's boundaries shall be converted from the
602-17 municipality's limited-purpose jurisdiction to its full-purpose
602-18 jurisdiction, provided that such date shall not be later than 10
602-19 years after the effective date of the strategic partnership
602-20 agreement; or
602-21 (B)(i) terms for payment of an annual fee to the
602-22 municipality by the district in lieu of full-purpose annexation,
602-23 the form in which each such payment must be tendered, a method of
602-24 calculating the fee, and the date by which each such payment must
602-25 be made; failure by a district to timely make an annual payment in
602-26 lieu of full-purpose annexation in the amount and form required by
603-1 a strategic partnership agreement shall be the only ground for
603-2 termination of the agreement with respect to annexation at the
603-3 option of the municipality;
603-4 (ii) to determine a reasonable fee to be
603-5 derived from residential property in a district, the municipality
603-6 or the district may request a cost-of-service study by an
603-7 independent third party agreeable to both parties if
603-8 cost-of-service data prepared by the municipality is not
603-9 acceptable. Both parties shall be equally responsible for the cost
603-10 of the study, which shall include an evaluation of the estimated
603-11 annual cost of providing municipal services to the residential
603-12 portion of the district over the next 10 years and the estimated
603-13 annual amount of ad valorem taxes from residential property the
603-14 municipality [city] would receive on full-purpose annexation of the
603-15 district over the next 10 years. The fee shall not exceed the
603-16 estimated annual amount of residential ad valorem taxes that would
603-17 be derived by full-purpose annexation of the district, less the
603-18 estimated annual amount required to provide municipal services to
603-19 the residential property in the district if annexed for full
603-20 purposes. A fee determined through this methodology is subject to
603-21 renegotiation every 10 years at the request of either party to the
603-22 agreement following the same procedure used to set the fee in the
603-23 original agreement. This methodology does not apply to fees from
603-24 commercial property;
603-25 (6) conversion of the district to a limited district
603-26 including some or all of the land included within the boundaries of
604-1 the district, which conversion shall be effective on the
604-2 full-purpose annexation conversion date established under
604-3 Subdivision (5)(A);
604-4 (7) agreements existing between districts and
604-5 governmental bodies and private providers of municipal services in
604-6 existence on the date a municipality evidences its intention by
604-7 adopting a resolution to negotiate for a strategic partnership
604-8 agreement with the district shall be continued and provision made
604-9 for modifications to such existing agreements; and
604-10 (8) such other lawful terms that the parties consider
604-11 appropriate.
604-12 SECTION 13.13. Section 81.005(c), Local Government Code, is
604-13 amended to conform to the terminology of the Local Government Code
604-14 to read as follows:
604-15 (c) Except as provided by Subsection (f) of this section,
604-16 the term shall be held at:
604-17 (1) the county seat at the courthouse;
604-18 (2) an auxiliary courthouse, courthouse annex, or
604-19 another building in the county acquired by the county under Chapter
604-20 292, 293, or 305 or another law, that houses county administration
604-21 offices or county or district courts, located inside the
604-22 municipal [city] limits of the county seat;
604-23 (3) the regular meeting place of another political
604-24 subdivision if:
604-25 (A) the commissioners court meets with the
604-26 governing body of that political subdivision located wholly or
605-1 partly within the county; and
605-2 (B) the regular meeting place of that political
605-3 subdivision is in the county;
605-4 (4) a meeting place in the county in a building owned
605-5 by another political subdivision located wholly or partly in the
605-6 county if:
605-7 (A) the commissioners court meets with the
605-8 governing body of that political subdivision;
605-9 (B) the places where the commissioners court and
605-10 the governing body of the political subdivision regularly hold
605-11 their meetings are not large enough to accommodate the number of
605-12 persons expected to attend the meeting; and
605-13 (C) the meeting place in the building owned by
605-14 the political subdivision is large enough to accommodate the
605-15 expected number of persons; or
605-16 (5) a meeting place in the county in a building owned
605-17 by the county if:
605-18 (A) the place where the commissioners court
605-19 regularly holds its meetings is not large enough to accommodate the
605-20 number of persons expected to attend the meeting; and
605-21 (B) the meeting place in the building owned by
605-22 the county is large enough to accommodate the expected number of
605-23 persons.
605-24 SECTION 13.14. Section 101.0221, Local Government Code, is
605-25 amended to conform to the terminology of the Local Government Code
605-26 to read as follows:
606-1 Sec. 101.0221. FISCAL YEAR FOR CERTAIN MUNICIPALITIES.
606-2 Notwithstanding any fiscal year provision in the municipal [city]
606-3 charter, a municipality with a population in excess of 500,000
606-4 which is situated in a county bordering the Republic of Mexico may
606-5 prescribe its fiscal year by ordinance.
606-6 SECTION 13.15. Section 143.208, Local Government Code, is
606-7 amended to conform to the terminology of the Local Government Code
606-8 to read as follows:
606-9 Sec. 143.208. REPEAL OF AGREEMENT BY ELECTORATE. Within 45
606-10 days after an agreement is ratified and signed by both the
606-11 municipality and the fire fighters association recognized as the
606-12 sole and exclusive bargaining agent, a petition signed by a number
606-13 of registered voters equal to 10 percent of the votes cast at the
606-14 most recent mayoral general election may be presented to the
606-15 municipal [city] secretary calling an election for the repeal of
606-16 the agreement. Thereupon, the governing body shall reconsider the
606-17 agreement and, if it does not repeal the agreement, shall call an
606-18 election of the qualified voters to determine if they desire to
606-19 repeal the agreement. The election shall be called for the next
606-20 municipal election or a special election called by the governing
606-21 body for that purpose. If at the election a majority of the votes
606-22 are cast in favor of the repeal of the adoption of the agreement,
606-23 then the agreement shall become null and void. The ballot shall be
606-24 printed to provide for voting FOR or AGAINST the proposition:
606-25 "Repeal of the adoption of the agreement ratified by the
606-26 municipality and the fire fighters association concerning wages,
607-1 salaries, rates of pay, hours of work, and other terms and
607-2 conditions of employment."
607-3 SECTION 13.16. Section 174.003(5), Local Government Code, is
607-4 amended to conform to the terminology of the Local Government Code
607-5 to read as follows:
607-6 (5) "Public employer" means the official or group of
607-7 officials of a political subdivision whose duty is to establish the
607-8 compensation, hours, and other conditions of employment of fire
607-9 fighters, police officers, or both, and may include the mayor, city
607-10 manager, town manager, town administrator, municipal governing body
607-11 [city council], director of personnel, personnel board,
607-12 commissioners, or another official or combination of those persons.
607-13 SECTION 13.17. Section 232.033(c), Local Government Code, is
607-14 amended to conform to the terminology of the Local Government Code
607-15 to read as follows:
607-16 (c) Before an executory contract is signed by the purchaser,
607-17 the subdivider shall provide the purchaser with a written notice,
607-18 which must be attached to the executory contract, informing the
607-19 purchaser of the condition of the property that must, at a minimum,
607-20 be executed by the subdivider and purchaser, be acknowledged, and
607-21 read substantially similar to the following:
607-22 WARNING
607-23 IF ANY OF THE ITEMS BELOW HAVE NOT BEEN CHECKED, YOU
607-24 MAY NOT BE ABLE TO LIVE ON THE PROPERTY.
607-25 CONCERNING THE PROPERTY AT (street address or legal
607-26 description and municipality [city])
608-1 THIS DOCUMENT STATES THE TRUE FACTS ABOUT THE LAND YOU
608-2 ARE CONSIDERING PURCHASING.
608-3 CHECK OFF THE ITEMS THAT ARE TRUE:
608-4 ___ The property is in a recorded subdivision.
608-5 ___ The property has water service that provides
608-6 potable water.
608-7 ___ The property has sewer service or a septic
608-8 system.
608-9 ___ The property has electric service.
608-10 ___ The property is not in a flood-prone area.
608-11 ___ The roads are paved.
608-12 ___ No person other than the subdivider:
608-13 (1) owns the property;
608-14 (2) has a claim of ownership to the
608-15 property; or
608-16 (3) has an interest in the property.
608-17 ___ No person has a lien filed against the
608-18 property.
608-19 ___ There are no back taxes owed on the
608-20 property.
608-21 NOTICE
608-22 SELLER ADVISES PURCHASER TO:
608-23 (1) OBTAIN A TITLE ABSTRACT OR TITLE COMMITMENT
608-24 REVIEWED BY AN ATTORNEY BEFORE SIGNING A CONTRACT OF
608-25 THIS TYPE; AND
608-26 (2) PURCHASE AN OWNER'S POLICY OF TITLE
609-1 INSURANCE COVERING THE PROPERTY.
609-2 _______________ _________________________
609-3 (Date) (Signature of Subdivider)
609-4 _______________ _________________________
609-5 (Date) (Signature of Purchaser)
609-6 SECTION 13.18. Section 253.001(f), Local Government Code, is
609-7 amended to conform to the terminology of the Local Government Code
609-8 to read as follows:
609-9 (f) The election requirements of Subsection (b) do not apply
609-10 to a conveyance of a park if:
609-11 (1) the park is owned by a home-rule municipality with
609-12 a population of more than one million;
609-13 (2) it is a park of two acres or less;
609-14 (3) the park is no longer usable and functional as a
609-15 park;
609-16 (4) the proceeds of the sale will be used to acquire
609-17 land for park purposes;
609-18 (5) a public hearing on the proposed conveyance is
609-19 held by the governing body of the home-rule municipality and that
609-20 body finds that the property is no longer usable and functional as
609-21 a park; and
609-22 (6) the park is conveyed pursuant to an ordinance
609-23 adopted by the governing body of the home-rule municipality, unless
609-24 within 60 days from the date of the public hearing the governing
609-25 body of the home-rule municipality is presented with a petition
609-26 opposing the conveyance which contains the name, address, and date
610-1 of signature of no less than 1,500 registered voters residing
610-2 within the municipal [city] limits of the municipality; then, the
610-3 governing body of the home-rule municipality shall either deny the
610-4 conveyance or shall approve the conveyance subject to the election
610-5 required in Subsection (b); or
610-6 (7) the conveyance involves an exchange of two
610-7 existing parks, situated within a home-rule municipality with a
610-8 population of more than one million, that together total 1.5 acres
610-9 or less in size, that are located within 1,000 feet of each other,
610-10 that are located in an industrial area, that have been found in a
610-11 public hearing to no longer be usable and functional as parks, and
610-12 that are conveyed pursuant to an ordinance, adopted by the
610-13 governing body of that municipality, that has an effective date
610-14 before December 1, 1993.
610-15 SECTION 13.19. Section 361.051(3), Local Government Code, is
610-16 amended to conform to the terminology of the Local Government Code
610-17 to read as follows:
610-18 (3) "Entity" means a home-rule municipality [city] or
610-19 county or a nonprofit corporation acting on behalf of a home-rule
610-20 municipality [city] or county.
610-21 SECTION 13.20. Section 375.263(b), Local Government Code, is
610-22 amended to conform to the terminology of the Local Government Code
610-23 to read as follows:
610-24 (b) On the adoption of the ordinance, the district is
610-25 dissolved, and, in accordance with Section 43.075, the municipality
610-26 [city] succeeds to the property and assets of the district and
611-1 assumes all bonds, debts, obligations, and liabilities of the
611-2 district.
611-3 SECTION 13.21. Section 375.264, Local Government Code, is
611-4 amended to conform to the terminology of the Local Government Code
611-5 to read as follows:
611-6 Sec. 375.264. LIMITATION. A district may not be dissolved
611-7 by its board or by a municipality [city] if the district has any
611-8 outstanding bonded indebtedness until that bonded indebtedness has
611-9 been repaid or defeased in accordance with the order or resolution
611-10 authorizing the issuance of the bonds.
611-11 SECTION 13.22. Section 402.044(8), Local Government Code, is
611-12 amended to conform to the terminology of the Local Government Code
611-13 to read as follows:
611-14 (8) "Service area" means the municipal boundaries and
611-15 any other land areas outside the municipal boundaries which, as a
611-16 result of topography or hydraulics, contribute overland flow into
611-17 the watersheds served by the drainage system of a municipality;
611-18 provided, however, that in no event may a service area extend
611-19 farther than the boundaries of a municipality's current
611-20 extraterritorial jurisdiction, nor, except as provided by Section
611-21 402.0451, may a service area of one municipality extend into the
611-22 boundaries of another [incorporated town, city, or] municipality.
611-23 The service area is to be established in the ordinance establishing
611-24 the drainage utility. Provided, that no municipality shall extend
611-25 a service area outside of its municipal boundaries except:
611-26 (A) a municipality of more than 400,000
612-1 population located in one or more counties of less than 600,000
612-2 population according to the most recent federal census;
612-3 (B) a municipality all or part of which is
612-4 located over or within the Edwards Aquifer recharge zone or the
612-5 Edwards Aquifer transition zone, as designated by the Texas Natural
612-6 Resource Conservation Commission; or
612-7 (C) as provided by Section 402.0451.
612-8 ARTICLE 14. CHANGES RELATING TO NATURAL RESOURCES CODE
612-9 SECTION 14.01. (a) Section 31.1571, Natural Resources Code,
612-10 is amended to correct a reference to read as follows:
612-11 Sec. 31.1571. DISPOSAL OF UNUSED OR UNDERUSED PROPERTY.
612-12 (a) Notwithstanding any other law, after the division has reported
612-13 a property unused or underused and the commissioner has made a
612-14 recommendation to the governor for a real estate transaction
612-15 involving the property, the state agency that owns or controls the
612-16 property may not develop, sell, or otherwise dispose of the
612-17 property before the earlier of:
612-18 (1) the date the governor rejects a recommended real
612-19 estate transaction involving the property pursuant to Subchapter I
612-20 [Chapter 672, Acts of the 71st Legislature, Regular Session, 1989
612-21 (Article 5421t, Vernon's Texas Civil Statutes)]; or
612-22 (2) two years from the date the recommendation is
612-23 approved by operation of law under Subchapter I [Chapter 672, Acts
612-24 of the 71st Legislature, Regular Session, 1989 (Article 5421t,
612-25 Vernon's Texas Civil Statutes)].
612-26 (b) If a state agency that owns or controls property that
613-1 the division has reported as unused or underused intends to dispose
613-2 of or change the use of the property prior to the time provided by
613-3 Subsection (a), the state agency shall submit to the governor a
613-4 general development plan for future use of the property. The plan
613-5 shall be submitted no later than 30 days prior to the time that the
613-6 real estate transaction would be approved by operation of law if
613-7 not disapproved by the governor pursuant to Subchapter I [Chapter
613-8 672, Acts of the 71st Legislature, Regular Session, 1989 (Article
613-9 5421t, Vernon's Texas Civil Statutes)]. The governor may take such
613-10 plan into consideration in determining whether to reject the
613-11 commissioner's recommendation.
613-12 (b) Section 31.502, Natural Resources Code, is amended to
613-13 conform to Section 3, Chapter 484, Acts of the 74th Legislature,
613-14 Regular Session, 1995, to read as follows:
613-15 Sec. 31.502. INAPPLICABILITY OF SUBCHAPTER. This subchapter
613-16 does not apply to a real estate transaction involving real property
613-17 owned by this state that the division does not have a duty to
613-18 review under Section 31.155(d) [that:]
613-19 [(1) is administered by a state agency that under
613-20 Chapter 2201, Government Code, is ineligible to benefit from the
613-21 Texas capital trust fund; or]
613-22 [(2) involves permanent school fund land].
613-23 (c) Sections 31.504 and 31.505, Natural Resources Code, are
613-24 amended to conform to Section 4, Chapter 484, Acts of the 74th
613-25 Legislature, Regular Session, 1995, to read as follows:
613-26 Sec. 31.504. AUTHORITY TO CONDUCT TRANSACTION [DISAPPROVAL
614-1 BY GOVERNOR OF RECOMMENDATION]. If the division reports a property
614-2 as unused or underused and the commissioner recommends a real
614-3 estate transaction involving the property, the commissioner may
614-4 conduct the transaction unless the governor gives the commissioner
614-5 written notice of disapproval of the recommendation not later than
614-6 the 90th day after the date the governor receives the
614-7 commissioner's written recommendation. [(a) If, not later than
614-8 the 90th day after the date the governor receives the written
614-9 recommendation, the governor disapproves the recommended
614-10 alternative use, the division may not enter into a real estate
614-11 transaction involving the property until authorized by the
614-12 legislature.]
614-13 [(b) After the governor disapproves a recommendation, the
614-14 governor may request, and the division may make, additional
614-15 recommendations relating to the property.]
614-16 Sec. 31.505. CHARGE AND CONTROL OF PROPERTY [PROPOSAL BY
614-17 GOVERNOR]. If a real estate transaction is authorized under
614-18 Section 31.504, the division shall take appropriate charge and
614-19 control of the real property to undertake the transaction.
614-20 [(a) If the governor finds that a recommended real estate
614-21 transaction would be appropriate, the governor may propose that the
614-22 division complete the transaction.]
614-23 [(b) The governor may make the proposal at any time except
614-24 during a regular or special session of the legislature.]
614-25 [(c) The governor shall specify the details of the proposal,
614-26 give a legal description of the property, and direct the secretary
615-1 of state to publish the proposal in the Texas Register.]
615-2 (d) Section 31.515(a), Natural Resources Code, is amended to
615-3 conform to Section 3, Chapter 484, Acts of the 74th Legislature,
615-4 Regular Session, 1995, to read as follows:
615-5 (a) The expenses incurred by the division in conducting a
615-6 real estate transaction under this subchapter, including the
615-7 payment of reasonable brokerage fees, may be deducted from the
615-8 proceeds of the transaction before the proceeds are deposited [in
615-9 the Texas capital trust fund or other appropriate depository
615-10 account].
615-11 (e) Subchapter I, Chapter 31, Natural Resources Code, is
615-12 amended to conform to Section 3, Chapter 484, Acts of the 74th
615-13 Legislature, Regular Session, 1995, by adding Section 31.516 to
615-14 read as follows:
615-15 Sec. 31.516. DEPOSIT OF PROCEEDS OF TRANSACTION. Unless the
615-16 proceeds of the transaction are dedicated by the Texas
615-17 Constitution, the proceeds of the transaction shall be deposited:
615-18 (1) to the credit of the Texas capital trust fund if
615-19 the agency is eligible under Chapter 2201, Government Code, to
615-20 participate in that fund;
615-21 (2) in the state treasury to the credit of the
615-22 affected agency if the agency is not eligible under Chapter 2201,
615-23 Government Code, to participate in the Texas capital trust fund; or
615-24 (3) notwithstanding Subdivisions (1) and (2), as
615-25 otherwise directed under the procedures of Chapter 317, Government
615-26 Code.
616-1 (f) Sections 31.506, 31.507, 31.508, 31.509, and 31.510,
616-2 Natural Resources Code, are repealed to conform to Sections 4 and
616-3 5, Chapter 484, Acts of the 74th Legislature, Regular Session,
616-4 1995.
616-5 (g) Sections 3 and 4, Chapter 484, Acts of the 74th
616-6 Legislature, Regular Session, 1995, are repealed.
616-7 ARTICLE 15. CHANGES RELATING TO PENAL CODE
616-8 SECTION 15.01. Section 12.42(g), Penal Code, is amended to
616-9 correct a reference to read as follows:
616-10 (g) For the purposes of Subsection (c)(2) [(d)(2)]:
616-11 (1) a defendant has been previously convicted of an
616-12 offense listed under Subsection (c)(2)(B) [(d)(2)(B)] if the
616-13 defendant was adjudged guilty of the offense or entered a plea of
616-14 guilty or nolo contendere in return for a grant of deferred
616-15 adjudication, regardless of whether the sentence for the offense
616-16 was ever imposed or whether the sentence was probated and the
616-17 defendant was subsequently discharged from community supervision;
616-18 and
616-19 (2) a conviction under the laws of another state for
616-20 an offense containing elements that are substantially similar to
616-21 the elements of an offense listed under Subsection (c)(2)(B)
616-22 [(d)(2)(B)] is a conviction of an offense listed under Subsection
616-23 (c)(2)(B) [(d)(2)(B)].
616-24 SECTION 15.02. (a) Section 22.01(e), Penal Code, is amended
616-25 to conform to Section 1, Chapter 34, Acts of the 75th Legislature,
616-26 Regular Session, 1997, to read as follows:
617-1 (e) In this section, "family" has the meaning assigned by
617-2 Section 71.003 [71.01], Family Code.
617-3 (b) Section 22.04(k)(2), Penal Code, is amended to conform
617-4 to Section 1, Chapter 34, Acts of the 75th Legislature, Regular
617-5 Session, 1997, to read as follows:
617-6 (2) It is an affirmative defense to prosecution under
617-7 this section that the act or omission was based on treatment in
617-8 accordance with the tenets and practices of a recognized religious
617-9 method of healing with a generally accepted record of efficacy. It
617-10 is an affirmative defense to prosecution for a person charged with
617-11 an act of omission under this section causing to a child, elderly
617-12 individual, or disabled individual a condition described by
617-13 Subsection (a)(1), (2), or (3) that:
617-14 (A) there is no evidence that, on the date prior
617-15 to the offense charged, the defendant was aware of an incident of
617-16 injury to the child, elderly individual, or disabled individual and
617-17 failed to report the incident; and
617-18 (B) the person:
617-19 (i) was a victim of family violence, as
617-20 that term is defined by Section 71.004 [71.01], Family Code,
617-21 committed by a person who is also charged with an offense against
617-22 the child, elderly individual, or disabled individual under this
617-23 section or any other section of this title;
617-24 (ii) did not cause a condition described
617-25 by Subsection (a)(1), (2), or (3); and
617-26 (iii) did not reasonably believe at the
618-1 time of the omission that an effort to prevent the person also
618-2 charged with an offense against the child, elderly individual, or
618-3 disabled individual from committing the offense would have an
618-4 effect.
618-5 (c) Sections 25.07(b) and (f), Penal Code, are amended to
618-6 conform to Section 1, Chapter 34, Acts of the 75th Legislature,
618-7 Regular Session, 1997, to read as follows:
618-8 (b) For the purposes of this section, "family violence,"
618-9 "family," "household," and "member of a household" have the
618-10 meanings assigned by Chapter 71 [Section 71.01], Family Code.
618-11 (f) It is not a defense to prosecution under this section
618-12 that certain information has been excluded, as provided by Section
618-13 85.007 [71.111], Family Code, or Article 17.292, Code of Criminal
618-14 Procedure, from an order to which this section applies.
618-15 (d) Section 42.07(b), Penal Code, is amended to conform to
618-16 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
618-17 Session, 1997, to read as follows:
618-18 (b) For purposes of Subsection (a)(1), "obscene" means
618-19 containing a patently offensive description of or a solicitation to
618-20 commit an ultimate sex act, including sexual intercourse,
618-21 masturbation, cunnilingus, fellatio, or anilingus, or a description
618-22 of an excretory function. In this section, "family" has the
618-23 meaning assigned by Section 71.003 [71.01], Family Code.
618-24 (e) Section 42.072(c), Penal Code, is amended to conform to
618-25 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
618-26 Session, 1997, to read as follows:
619-1 (c) In this section, "family," "household," and "member of a
619-2 household" have the meanings assigned by Chapter 71 [Section
619-3 71.01], Family Code.
619-4 (f) Section 46.06(b), Penal Code, is amended to conform to
619-5 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
619-6 Session, 1997, to read as follows:
619-7 (b) In this section:
619-8 (1) "Intoxicated" means substantial impairment of
619-9 mental or physical capacity resulting from introduction of any
619-10 substance into the body.
619-11 (2) "Active protective order" means a protective order
619-12 issued under Title 4 [Chapter 71], Family Code, that is in effect.
619-13 The term does not include a temporary protective order issued
619-14 before the court holds a hearing on the matter.
619-15 (g) Section 46.13(f), Penal Code, is amended to conform to
619-16 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
619-17 Session, 1997, to read as follows:
619-18 (f) A peace officer or other person may not arrest the actor
619-19 before the seventh day after the date on which the offense is
619-20 committed if:
619-21 (1) the actor is a member of the family, as defined by
619-22 Section 71.003 [71.01], Family Code, of the child who discharged
619-23 the firearm; and
619-24 (2) the child in discharging the firearm caused the
619-25 death of or serious injury to the child.
620-1 ARTICLE 16. CHANGES RELATING TO TAX CODE
620-2 SECTION 16.01. Sections 11.26(g), (h), and (i), Tax Code, as
620-3 added by Chapter 1059, Acts of the 75th Legislature, Regular
620-4 Session, 1997, are repealed because they are substantively
620-5 duplicative of Subsections (i), (j), and (k), Section 11.26, Tax
620-6 Code, as added by Chapter 1039, Acts of the 75th Legislature,
620-7 Regular Session, 1997.
620-8 SECTION 16.02. Section 11.43(d), Tax Code, as amended by
620-9 Chapters 1039, 1059, and 1155, Acts of the 75th Legislature,
620-10 Regular Session, 1997, is reenacted to read as follows:
620-11 (d) To receive an exemption the eligibility for which is
620-12 determined by the claimant's qualifications on January 1 of the tax
620-13 year, a person required to claim an exemption must file a completed
620-14 exemption application form before May 1 and must furnish the
620-15 information required by the form. A person who after January 1 of
620-16 a tax year acquires property that qualifies for an exemption
620-17 covered by Section 11.42(c) must apply for the exemption for the
620-18 applicable portion of that tax year before the first anniversary of
620-19 the date the person acquires the property. For good cause shown
620-20 the chief appraiser may extend the deadline for filing an exemption
620-21 application by written order for a single period not to exceed 60
620-22 days.
620-23 SECTION 16.03. Section 11.43(j), Tax Code, as added by
620-24 Chapter 1059, Acts of the 75th Legislature, Regular Session, 1997,
620-25 is repealed because it is substantively duplicative of Subsection
620-26 (k), Section 11.43, Tax Code.
621-1 SECTION 16.04. Section 23.21, Tax Code, as added by Chapter
621-2 980, Acts of the 75th Legislature, Regular Session, 1997, and
621-3 Section 23.22, Tax Code, are revised as Section 23.21, Tax Code,
621-4 and amended to read as follows:
621-5 Sec. 23.21. Property Used to Provide Affordable Housing.
621-6 (a) In appraising real property that is rented or leased to a
621-7 low-income individual or family meeting income-eligibility
621-8 standards established by the owner of the property under
621-9 regulations or restrictions limiting to a percentage of the
621-10 individual's or the family's income the amount that the individual
621-11 or family may be required to pay for the rental or lease of the
621-12 property, the chief appraiser shall take into account the extent to
621-13 which that use and limitation reduce the market value of the
621-14 property.
621-15 (b) [Sec. 23.22. PROPERTY USED TO PROVIDE AFFORDABLE
621-16 HOUSING.] In appraising real property that is rented or leased to
621-17 a low-income individual or family meeting income-eligibility
621-18 standards established by a governmental entity or under a
621-19 governmental contract for affordable housing limiting the amount
621-20 that the individual or family may be required to pay for the rental
621-21 or lease of the property, the chief appraiser shall take into
621-22 account the extent to which that use and limitation reduce the
621-23 market value of the property.
621-24 SECTION 16.05. Section 23.21, Tax Code, as added by Chapter
621-25 1039, Acts of the 75th Legislature, Regular Session, 1997, is
621-26 renumbered as Section 23.22, Tax Code.
622-1 SECTION 16.06. Section 26.10(b), Tax Code, as added by
622-2 Section 30, Chapter 1039, and Section 5, Chapter 1059, Acts of the
622-3 75th Legislature, Regular Session, 1997, is reenacted and amended
622-4 to read as follows:
622-5 (b) If the appraisal roll shows that a property is eligible
622-6 for taxation at its full appraised value for only part of a year
622-7 because a residence homestead exemption for an individual 65 years
622-8 of age or older applicable on January 1 of that year terminated
622-9 during the year, the tax due against the property is calculated by:
622-10 (1) subtracting:
622-11 (A) the amount of the taxes that otherwise would
622-12 be imposed on the residence homestead for the entire year had the
622-13 individual qualified for the residence homestead exemption for the
622-14 entire year; from
622-15 (B) the amount of the taxes that otherwise would
622-16 be imposed on the residence homestead for the entire year had the
622-17 individual not qualified for the residence homestead exemption
622-18 during the year;
622-19 (2) multiplying the remainder determined under
622-20 Subdivision (1) by a fraction, the denominator of which is 365 and
622-21 the numerator of which is the number of days that elapsed after the
622-22 date the exemption terminated; and
622-23 (3) adding the product determined under Subdivision
622-24 (2) and the amount described by Subdivision (1)(A) [(1)(B)].
622-25 SECTION 16.07. Section 34.05(a), Tax Code, as amended by
622-26 Section 9, Chapter 906, and Section 5, Chapter 1111, Acts of the
623-1 75th Legislature, Regular Session, 1997, is reenacted to read as
623-2 follows:
623-3 (a) If property is sold to a taxing unit that is a party to
623-4 the judgment, the taxing unit may sell the property at any time and
623-5 in any manner, by public or private sale, except as otherwise
623-6 required by this section. In selling the property, the taxing unit
623-7 may, but is not required to, use the procedures provided by Section
623-8 263.001, Local Government Code, or Section 272.001, Local
623-9 Government Code. The sale is subject to any right of redemption of
623-10 the former owner. The redemption period begins on the date the
623-11 deed to the taxing unit is filed for record.
623-12 ARTICLE 17. CHANGES RELATING TO TRANSPORTATION CODE
623-13 SECTION 17.01. Section 361.003, Transportation Code, is
623-14 repealed to conform to the repeal of that section by Section 7.29,
623-15 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997.
623-16 SECTION 17.02. Section 364.042, Transportation Code, is
623-17 amended to more closely conform to the law from which that section
623-18 was derived to read as follows:
623-19 Sec. 364.042. AUTHORITY TO BORROW MONEY OR ACCEPT FEDERAL
623-20 ASSISTANCE. (a) To accomplish the purposes of this chapter, a
623-21 county may:
623-22 (1) borrow money from any person or corporation; or
623-23 (2) borrow money or accept grants from the United
623-24 States or a corporation or agency created by or authorized to act
623-25 as an agency of the United States.
623-26 (b) In connection with a loan or grant under Subsection
624-1 (a)(2) [from the United States], a county may enter into any
624-2 related agreement that the United States, corporation, or agency
624-3 requires.
624-4 SECTION 17.03. Section 391.063, Transportation Code, is
624-5 amended to more closely conform to the law from which that section
624-6 was derived to read as follows:
624-7 Sec. 391.063. LICENSE FEE. The commission may [shall] set
624-8 the amount of a license fee according to a scale graduated by the
624-9 number of units of outdoor advertising owned by a license
624-10 applicant.
624-11 SECTION 17.04. Section 431.023(d), Transportation Code, is
624-12 amended to more closely conform to the law from which it was
624-13 derived to read as follows:
624-14 (d) The commission may authorize the creation of more than
624-15 one corporation to act within the same designated area. The [if
624-16 the] resolution authorizing each corporation must specify
624-17 [specifies] the public purpose of that [the] corporation.
624-18 SECTION 17.05. Section 501.031(a), Transportation Code, is
624-19 amended to more accurately reflect the source law from which it was
624-20 derived to read as follows:
624-21 (a) The department shall include on each certificate of
624-22 title a rights of survivorship agreement form. The form must:
624-23 (1) provide that if the agreement is signed by a
624-24 husband and wife the motor vehicle is held jointly with the
624-25 interest of either spouse who dies to survive to the surviving
624-26 spouse; and
625-1 (2) provide blanks for the signatures of the husband
625-2 and wife.
625-3 SECTION 17.06. Section 502.202(a), Transportation Code, is
625-4 amended to correct a reference to read as follows:
625-5 (a) The owner of a motor vehicle, trailer, or semitrailer
625-6 may annually apply for registration under Section 502.201 and is
625-7 exempt from the payment of a registration fee under this chapter if
625-8 the vehicle is:
625-9 (1) owned by and used exclusively in the service of:
625-10 (A) the United States;
625-11 (B) this state; or
625-12 (C) a county, municipality, or school district
625-13 in this state;
625-14 (2) owned by a commercial transportation company and
625-15 used exclusively to provide public school transportation services
625-16 to a school district under Section 34.008 [21.181], Education Code;
625-17 (3) designed and used exclusively for fire fighting;
625-18 (4) owned by a volunteer fire department and used
625-19 exclusively in the conduct of department business; or
625-20 (5) privately owned and used by a volunteer
625-21 exclusively in county marine law enforcement activities, including
625-22 rescue operations, under the direction of the sheriff's department.
625-23 SECTION 17.07. Section 543.004, Transportation Code, is
625-24 amended to more accurately reflect the source law from which it was
625-25 derived by adding Subsection (c) to read as follows:
625-26 (c) The offenses specified by Subsection (a) are the only
626-1 offenses for which issuance of a written notice to appear is
626-2 mandatory.
626-3 SECTION 17.08. Section 544.011, Transportation Code, is
626-4 amended to correct a reference to the agency that administers that
626-5 section to read as follows:
626-6 Sec. 544.011. LANE USE SIGNS. If, on a highway having more
626-7 than one lane with vehicles traveling in the same direction, the
626-8 Texas Department of Transportation [department] or a local
626-9 authority places a sign that directs slower traffic to travel in a
626-10 lane other than the farthest left lane, the sign must read "left
626-11 lane for passing only."
626-12 SECTION 17.09. Section 621.401, Transportation Code, is
626-13 amended to correct a reference to read as follows:
626-14 Sec. 621.401. Definition. In this subchapter, "weight
626-15 enforcement officer" means:
626-16 (1) a license and weight inspector of the Department
626-17 of Public Safety;
626-18 (2) a highway patrol officer;
626-19 (3) a sheriff or sheriff's deputy;
626-20 (4) a municipal police officer in a municipality with
626-21 a population of 100,000 or more; or
626-22 (5) a police officer certified under Section 644.101
626-23 [Section 6, Article 6675d, Revised Statutes].
626-24 SECTION 17.10. (a) Section 643.002, Transportation Code, is
626-25 amended to conform to Section 1, Chapter 1061, Acts of the 75th
626-26 Legislature, Regular Session, 1997, to read as follows:
627-1 Sec. 643.002. EXEMPTIONS. This chapter does not apply to:
627-2 (1) a motor vehicle registered under the single state
627-3 registration system established under 49 U.S.C. Section 14504(c)
627-4 when operating exclusively in interstate or international commerce;
627-5 (2) a motor vehicle registered as a cotton vehicle
627-6 under Section 502.277; [or]
627-7 (3) a motor vehicle the department by rule exempts
627-8 because the vehicle is subject to comparable registration and a
627-9 comparable safety program administered by another governmental
627-10 entity;
627-11 (4) a motor vehicle used to transport passengers
627-12 operated by an entity whose primary function is not the
627-13 transportation of passengers, such as a vehicle operated by a
627-14 hotel, day-care center, public or private school, nursing home,
627-15 governmental entity, or similar organization; or
627-16 (5) a vehicle operating under a private carrier permit
627-17 issued under Chapter 42, Alcoholic Beverage Code [agency].
627-18 (b) Section 1, Chapter 1061, Acts of the 75th Legislature,
627-19 Regular Session, 1997, is repealed.
627-20 SECTION 17.11. (a) Section 643.004, Transportation Code, is
627-21 amended to conform to Section 8, Chapter 1061, Acts of the 75th
627-22 Legislature, Regular Session, 1997, to read as follows:
627-23 Sec. 643.004. PAYMENT OF FEES. (a) The department may
627-24 adopt rules on the method of payment of a fee under this chapter,
627-25 including:
627-26 (1) authorizing the use of:
628-1 (A) escrow accounts described by Subsection (b);
628-2 and
628-3 (B) electronic funds transfer or a credit card
628-4 issued by a financial institution chartered by a state or the
628-5 United States or by a nationally recognized credit organization
628-6 approved by the department; and
628-7 (2) requiring the payment of a discount or service
628-8 charge for a credit card payment in addition to the fee.
628-9 (b) The department may establish one or more escrow accounts
628-10 in the state highway fund for the prepayment of a fee under this
628-11 chapter. Prepaid fees and any fees established by the department
628-12 for the administration of this section shall be:
628-13 (1) administered under an agreement approved by the
628-14 department; and
628-15 (2) deposited to the credit of the state highway fund
628-16 to be appropriated only to the department for the purposes of
628-17 administering this chapter.
628-18 (b) Section 8, Chapter 1061, Acts of the 75th Legislature,
628-19 Regular Session, 1997, is repealed.
628-20 SECTION 17.12. (a) Section 643.054, Transportation Code, is
628-21 amended to conform to Section 1, Chapter 858, and Section 4.04,
628-22 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
628-23 by adding Subsection (c) to read as follows:
628-24 (c) To avoid multiple registrations of a single motor
628-25 carrier, the department shall adopt simplified procedures for the
628-26 registration of motor carriers transporting household goods as
629-1 agents for carriers required to register under this chapter.
629-2 (b) Section 1, Chapter 858, and Section 4.04, Chapter 1171,
629-3 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
629-4 SECTION 17.13. (a) Section 643.058, Transportation Code, is
629-5 amended to conform to Section 4.01, Chapter 1171, Acts of the 75th
629-6 Legislature, Regular Session, 1997, by redesignating Subsection (b)
629-7 as Subsection (c) and adding a new Subsection (b) to read as
629-8 follows:
629-9 (b) At least 30 days before the date on which a motor
629-10 carrier's registration expires, the department shall notify the
629-11 carrier of the impending expiration. The notice must be in writing
629-12 and sent to the motor carrier's last known address according to the
629-13 records of the department.
629-14 (c) A motor carrier may renew a registration under this
629-15 subchapter by:
629-16 (1) supplementing the application with any new
629-17 information required under Section 643.056;
629-18 (2) paying a $10 fee for each vehicle requiring
629-19 registration the carrier operates; and
629-20 (3) providing the department evidence of continuing
629-21 insurance or financial responsibility in an amount at least equal
629-22 to the amount set by the department under Section 643.101.
629-23 (b) Section 4.01, Chapter 1171, Acts of the 75th
629-24 Legislature, Regular Session, 1997, is repealed.
629-25 SECTION 17.14. (a) Subchapter B, Chapter 643,
629-26 Transportation Code, is amended to conform to Section 2, Chapter
630-1 1061, Acts of the 75th Legislature, Regular Session, 1997, by
630-2 adding Sections 643.061 and 643.062 to read as follows:
630-3 Sec. 643.061. LENGTH OF REGISTRATION PERIOD. The department
630-4 may vary the registration period under this subchapter by adopting
630-5 rules that provide for:
630-6 (1) an optional two-year registration; and
630-7 (2) the issuance of a temporary registration permit
630-8 that is valid for less than one year.
630-9 Sec. 643.062. LIMITATION ON INTERNATIONAL MOTOR CARRIER.
630-10 (a) A foreign-based international motor carrier required to
630-11 register under this chapter or registered under Chapter 645 may not
630-12 transport persons or cargo in intrastate commerce in this state.
630-13 (b) A person may not assist a foreign-based international
630-14 motor carrier in violating Subsection (a).
630-15 (b) Section 2, Chapter 1061, Acts of the 75th Legislature,
630-16 Regular Session, 1997, is repealed.
630-17 SECTION 17.15. (a) Subchapter B, Chapter 643,
630-18 Transportation Code, is amended to conform to Section 3, Chapter
630-19 1061, Acts of the 75th Legislature, Regular Session, 1997, by
630-20 adding Section 643.063 to read as follows:
630-21 Sec. 643.063. VEHICLES OPERATED UNDER SHORT-TERM LEASE AND
630-22 SUBSTITUTE VEHICLES. (a) In this section:
630-23 (1) "Leasing business" means a person that leases
630-24 vehicles requiring registration.
630-25 (2) "Short-term lease" means a lease of 30 days or
630-26 less.
631-1 (b) A vehicle requiring registration operated under a
631-2 short-term lease is exempt from the registration requirements of
631-3 Sections 643.052-643.059. The department shall adopt rules
631-4 providing for the operation of these vehicles under flexible
631-5 procedures. A vehicle requiring registration operated under a
631-6 short-term lease is not required to carry a cab card or other proof
631-7 of registration if a copy of the lease agreement is carried in the
631-8 cab of the vehicle.
631-9 (c) A motor carrier may operate a substitute vehicle without
631-10 notifying the department in advance if the substitute is a
631-11 temporary replacement because of maintenance, repair, or other
631-12 unavailability of the vehicle originally leased. A substitute
631-13 vehicle is not required to carry a cab card or other proof of
631-14 registration if a copy of the lease agreement for the vehicle
631-15 originally leased is carried in the cab of the substitute.
631-16 (d) Instead of the registration procedures described by
631-17 Sections 643.052-643.059, the department shall adopt rules that
631-18 allow a leasing business to report annually to the department on
631-19 the number of vehicles requiring registration that the leasing
631-20 business actually operated in the previous 12 months. The rules
631-21 may not require the vehicles operated to be described with
631-22 particularity. The registration fee for each vehicle operated may
631-23 be paid at the time the report is filed.
631-24 (e) A leasing business that registers its vehicles under
631-25 Subsection (d) may comply with the liability insurance requirements
631-26 of Subchapter C by filing evidence of a contingency liability
632-1 policy satisfactory to the department.
632-2 (f) Rules adopted by the department under this section:
632-3 (1) must be designed to avoid requiring a vehicle to
632-4 be registered more than once in a calendar year; and
632-5 (2) may allow a leasing business to register a
632-6 vehicle on behalf of a lessee.
632-7 (b) Section 3, Chapter 1061, Acts of the 75th Legislature,
632-8 Regular Session, 1997, is repealed.
632-9 SECTION 17.16. Section 2, Chapter 858, and Section 4.05,
632-10 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
632-11 are repealed.
632-12 SECTION 17.17. (a) Section 643.106(a), Transportation Code,
632-13 is amended to conform to Section 4, Chapter 1061, Acts of the 75th
632-14 Legislature, Regular Session, 1997, to read as follows:
632-15 (a) Notwithstanding any [contrary] provision of any law or
632-16 regulation, a motor carrier that is required to register under
632-17 Subchapter B and whose primary business is transportation for
632-18 compensation or hire between two or more municipalities shall
632-19 protect its employees by obtaining:
632-20 (1) workers' compensation insurance coverage as
632-21 defined under Subtitle A, Title 5, Labor Code; or
632-22 (2) accidental insurance coverage approved by the
632-23 department from a reliable insurance company authorized to write
632-24 accidental insurance policies in this state.
632-25 (b) Section 4, Chapter 1061, Acts of the 75th Legislature,
632-26 Regular Session, 1997, is repealed.
633-1 SECTION 17.18. Section 5, Chapter 1061, Acts of the 75th
633-2 Legislature, Regular Session, 1997, is repealed.
633-3 SECTION 17.19. (a) Sections 643.153(a), (b), (c), and (f),
633-4 Transportation Code, are amended to conform to Section 4, Chapter
633-5 858, and Section 4.06, Chapter 1171, Acts of the 75th Legislature,
633-6 Regular Session, 1997, to read as follows:
633-7 (a) The department shall adopt rules to protect a consumer
633-8 using the service of a motor carrier who is transporting [required
633-9 to register under Subchapter B and transports] household goods for
633-10 compensation. [The rules must be at least as stringent as the
633-11 corresponding provisions of 49 C.F.R. Part 375. The department may
633-12 adopt rules under this subsection that are more stringent than the
633-13 corresponding federal provisions.]
633-14 (b) [A motor carrier that transports household goods shall
633-15 list a place of business with a street address in this state and
633-16 the carrier's registration number issued under Subchapter B in any
633-17 printed advertising published in this state.]
633-18 [(c)] The department may adopt rules necessary to ensure
633-19 that a customer of a motor carrier transporting household goods is
633-20 protected from deceptive or unfair practices and unreasonably
633-21 hazardous activities. The rules must [may]:
633-22 (1) establish a formal process for resolving a dispute
633-23 over a fee or damage [apart from the method of mediation in Section
633-24 643.155];
633-25 (2) require a motor carrier to indicate clearly to a
633-26 customer whether an estimate is binding or nonbinding and disclose
634-1 the maximum price a customer could be required to pay; [and]
634-2 (3) create a centralized process for making complaints
634-3 about a motor carrier that also allows a customer to inquire about
634-4 a carrier's complaint record;
634-5 (4) require a motor carrier transporting household
634-6 goods to list a place of business with a street address in this
634-7 state and the carrier's registration number issued under this
634-8 article in any print advertising published in this state;
634-9 (5) require motor carriers that are required to
634-10 register under Subsection (c) to file proof of cargo insurance in
634-11 amounts to be determined by the department that do not exceed the
634-12 amount required for a motor carrier transporting household goods
634-13 under federal law and allow alternative evidence of financial
634-14 responsibility, through surety bonds, letters of credit, or other
634-15 means satisfactory to the department, for contractual obligations
634-16 to customers that do not exceed $5,000 aggregate loss or damage to
634-17 total cargo shipped at any one time;
634-18 (6) require motor carriers that are required to
634-19 register under Subsection (c) to conspicuously advise consumers
634-20 concerning limitation of any carrier liability for loss or damage
634-21 as determined under Subdivision (7); and
634-22 (7) determine reasonable provisions governing
634-23 limitation of liability for loss or damage of motor carriers
634-24 required to register under Subsection (c), not to exceed 60 cents
634-25 per pound per article.
634-26 (c) The department shall require motor carriers that are not
635-1 required to register under Subchapter B to register their
635-2 operations before transporting household goods for compensation.
635-3 The department shall determine the forms and procedures for
635-4 registration required under this subsection. The department shall
635-5 charge a motor carrier who registers under this subsection a fee
635-6 that does not exceed the total of the fees imposed in Subchapter B.
635-7 (f) The unauthorized practice of the insurance business
635-8 under Article 1.14-1, Insurance Code, does not include the offer of
635-9 insurance by a motor carrier transporting household goods for the
635-10 full value of a customer's property if the offer is authorized by a
635-11 rule adopted under Subsection (b) [(c)].
635-12 (b) Section 643.155, Transportation Code, is amended to
635-13 conform to Section 4, Chapter 858, and Section 4.06, Chapter 1171,
635-14 Acts of the 75th Legislature, Regular Session, 1997, to read as
635-15 follows:
635-16 Sec. 643.155. RULES ADVISORY COMMITTEE [MEDIATION REQUIRED].
635-17 (a) The department shall appoint a rules advisory committee
635-18 consisting of representatives of motor carriers transporting
635-19 household goods using small, medium, and large equipment, the
635-20 public, and the department.
635-21 (b) Members of the committee serve at the pleasure of the
635-22 department and are not entitled to compensation or reimbursement of
635-23 expenses for serving on the committee. The department may adopt
635-24 rules to govern the operations of the advisory committee.
635-25 (c) The committee shall:
635-26 (1) examine the rules adopted by the department under
636-1 Sections 643.153(a) and (b) and make recommendations to the
636-2 department on modernizing and streamlining the rules;
636-3 (2) conduct a study of the feasibility and necessity
636-4 of requiring any vehicle liability insurance for household goods
636-5 carriers required to register under Section 643.153(c); and
636-6 (3) recommend a maximum level of liability limitation
636-7 under Section 643.153(b)(7) that does not exceed 60 cents per pound
636-8 [A collective association of motor carriers transporting household
636-9 goods or agents of the carriers that are parties to a collective
636-10 agreement approved under Section 643.154(e) shall provide for a
636-11 method of mediation to resolve customer disputes over fees,
636-12 damages, and services. The association, the carriers, or their
636-13 agents shall pay for the cost of the mediation.]
636-14 [(b) A party to a collective agreement approved under
636-15 Section 643.154(e) shall participate in customer complaint
636-16 resolution, including participation in the mediation process and
636-17 advertisement of the availability of mediation in each contract or
636-18 estimate proposal.]
636-19 [(c) A complaint mediation that is not resolved to the
636-20 mutual agreement of all parties shall be reported to the
636-21 department.]
636-22 [(d) The department shall adopt rules that require parties
636-23 to a collective agreement to provide notice to customers of their
636-24 right to seek resolution of a complaint directly from the
636-25 department under Section 643.153(c)].
636-26 (c) Section 4, Chapter 858, and Section 4.06, Chapter 1171,
637-1 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
637-2 SECTION 17.20. (a) Subchapter D, Chapter 643,
637-3 Transportation Code, is amended to conform to Section 4.03, Chapter
637-4 1171, Acts of the 75th Legislature, Regular Session, 1997, by
637-5 adding Section 643.156 to read as follows:
637-6 Sec. 643.156. REGULATION OF ADVERTISING. (a) The
637-7 department may not by rule restrict competitive bidding or
637-8 advertising by a motor carrier except to prohibit false,
637-9 misleading, or deceptive practices.
637-10 (b) A rule to prohibit false, misleading, or deceptive
637-11 practices may not:
637-12 (1) restrict the use of:
637-13 (A) any medium for an advertisement;
637-14 (B) a motor carrier's advertisement under a
637-15 trade name; or
637-16 (C) a motor carrier's personal appearance or
637-17 voice in an advertisement, if the motor carrier is an individual;
637-18 or
637-19 (2) relate to the size or duration of an advertisement
637-20 by a motor carrier.
637-21 (b) Section 4.03, Chapter 1171, Acts of the 75th
637-22 Legislature, Regular Session, 1997, is repealed.
637-23 SECTION 17.21. (a) Section 643.252, Transportation Code, is
637-24 amended to conform to Section 4.02, Chapter 1171, Section 3,
637-25 Chapter 858, and Section 6, Chapter 1061, Acts of the 75th
637-26 Legislature, Regular Session, 1997, to read as follows:
638-1 Sec. 643.252. SUSPENSION AND REVOCATION OF REGISTRATION.
638-2 (a) The department may suspend or revoke a registration issued
638-3 under this chapter or place on probation a motor carrier whose
638-4 registration is suspended if a motor carrier:
638-5 (1) fails to maintain insurance or evidence of
638-6 financial responsibility as required by Section 643.101(a), (b), or
638-7 (c) or 643.153(b);
638-8 (2) fails to keep evidence of insurance in the cab of
638-9 each vehicle as required by Section 643.103(b);
638-10 (3) fails to register a vehicle requiring
638-11 registration; [or]
638-12 (4) knowingly provides false information on any form
638-13 filed with the department under this chapter; or
638-14 (5) violates a rule adopted under Section 643.063.
638-15 (b) The Department of Public Safety may request that the
638-16 department suspend or revoke a registration issued under this
638-17 chapter or place on probation a motor carrier whose registration is
638-18 suspended if a motor carrier has:
638-19 (1) an unsatisfactory safety rating under 49 C.F.R.
638-20 Part 385; or
638-21 (2) multiple violations of Chapter 644, a rule adopted
638-22 under that chapter, or Subtitle C.
638-23 (c) Except as provided by Subsection (d), a suspension or
638-24 revocation or the imposition of probation made under Subsection (a)
638-25 or (b) is a contested case under Chapter 2001, Government Code.
638-26 (d) The department may suspend or revoke a registration
639-1 issued under this chapter or place on probation a motor carrier
639-2 whose registration is suspended without a hearing under Chapter
639-3 2001, Government Code, if:
639-4 (1) the department provides notice to the motor
639-5 carrier of:
639-6 (A) the proposed suspension or revocation; and
639-7 (B) the right of the carrier to request a
639-8 hearing under Chapter 2001, Government Code; and
639-9 (2) the motor carrier fails to provide the department
639-10 with a written request for a hearing before the 11th day after the
639-11 date the carrier receives the notice described in Subdivision (1).
639-12 (e) If the suspension of a motor carrier's registration is
639-13 probated, the department may require the carrier to report
639-14 regularly to the department on any matter that is the basis of the
639-15 probation.
639-16 (b) Section 4.02, Chapter 1171, Section 3, Chapter 858, and
639-17 Section 6, Chapter 1061, Acts of the 75th Legislature, Regular
639-18 Session, 1997, are repealed.
639-19 SECTION 17.22. (a) Section 643.253, Transportation Code, is
639-20 amended to conform to Section 5, Chapter 858, and Section 4.07,
639-21 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
639-22 to read as follows:
639-23 Sec. 643.253. CRIMINAL PENALTY. (a) A person commits an
639-24 offense if the person fails to:
639-25 (1) register as required by Subchapter B or Section
639-26 643.153(c);
640-1 (2) maintain insurance or evidence of financial
640-2 responsibility as required by Subchapter C or Section 643.153; or
640-3 (3) keep a cab card in the cab of a vehicle as
640-4 required by Section 643.059.
640-5 (b) A person commits an offense if the person solicits the
640-6 transportation of household goods for compensation and is not
640-7 registered as required by Subchapter B or Section 643.153.
640-8 (c) An offense under this section is a Class C misdemeanor.
640-9 (b) Section 5, Chapter 858, and Section 4.07, Chapter 1171,
640-10 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
640-11 SECTION 17.23. Section 7, Chapter 1061, Acts of the 75th
640-12 Legislature, Regular Session, 1997, is repealed.
640-13 SECTION 17.24. (a) Section 644.001(1), Transportation Code,
640-14 is amended to conform to Section 6, Chapter 858, and Section 4.08,
640-15 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
640-16 to read as follows:
640-17 (1) "Commercial motor vehicle" means a motor vehicle
640-18 described [has the meaning assigned] by Section 548.001.
640-19 (b) Section 6, Chapter 858, and Section 4.08, Chapter 1171,
640-20 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
640-21 SECTION 17.25. (a) Section 644.001(5), Transportation Code,
640-22 is amended to conform to Section 12, Chapter 1061, Acts of the 75th
640-23 Legislature, Regular Session, 1997, to read as follows:
640-24 (5) "Federal motor carrier safety regulation" means a
640-25 federal regulation in Subchapter B, Chapter III, Subtitle B, Title
640-26 49, Code of Federal Regulations [49 C.F.R. Part 382, 385, or 386 or
641-1 Parts 388-399].
641-2 (b) Section 12, Chapter 1061, Acts of the 75th Legislature,
641-3 Regular Session, 1997, is repealed.
641-4 SECTION 17.26. (a) Subchapter A, Chapter 644,
641-5 Transportation Code, is amended to conform to Section 4.11(b),
641-6 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
641-7 by adding Section 644.004 to read as follows:
641-8 Sec. 644.004. APPLICABILITY TO FOREIGN COMMERCIAL MOTOR
641-9 VEHICLES. Except as otherwise provided by law, this chapter also
641-10 applies to a foreign commercial motor vehicle, as defined by
641-11 Section 648.001.
641-12 (b) Section 4.11(b), Chapter 1171, Acts of the 75th
641-13 Legislature, Regular Session, 1997, is repealed.
641-14 SECTION 17.27. (a) Section 644.053, Transportation Code, is
641-15 amended to conform to Section 10, Chapter 1061, Acts of the 75th
641-16 Legislature, Regular Session, 1997, by amending Subsection (a) and
641-17 adding Subsection (c) to read as follows:
641-18 (a) A rule adopted under this chapter may not:
641-19 (1) prevent an intrastate operator from operating a
641-20 vehicle up to 12 hours following eight consecutive hours off;
641-21 (2) require a person to meet the medical standards
641-22 provided in the federal motor carrier safety regulations if the
641-23 person:
641-24 (A) was regularly employed in this state as a
641-25 commercial motor vehicle operator in intrastate commerce before
641-26 August 28, 1989; and
642-1 (B) is not transporting property that requires a
642-2 hazardous material placard; [or]
642-3 (3) require a person to maintain a government form,
642-4 separate company form, operator's record of duty status, or
642-5 operator's daily log for operations within a 150-mile radius of the
642-6 normal work-reporting location if a general record of an operator's
642-7 hours of service can be compiled from:
642-8 (A) business records maintained by the owner
642-9 that provide the date, time, and location of the delivery of a
642-10 product or service; or
642-11 (B) documents required to be maintained by law,
642-12 including delivery tickets or sales invoices, that provide the date
642-13 of delivery and the quantity of merchandise delivered; or
642-14 (4) impose during a planting or harvesting season
642-15 maximum driving and on-duty times on an operator of a vehicle
642-16 transporting an agricultural commodity in intrastate commerce for
642-17 agricultural purposes from the source of the commodity to the first
642-18 place of processing or storage or the distribution point for the
642-19 commodity, if the place is located within 150 air miles of the
642-20 source.
642-21 (c) In this section, "agricultural commodity" means an
642-22 agricultural, horticultural, viticultural, silvicultural, or
642-23 vegetable product, bees or honey, planting seed, cottonseed, rice,
642-24 livestock or a livestock product, or poultry or a poultry product
642-25 that is produced in this state, either in its natural form or as
642-26 processed by the producer, including woodchips.
643-1 (b) Section 644.053, Transportation Code, is amended to
643-2 conform to Section 7, Chapter 858, and Section 4.09, Chapter 1171,
643-3 Acts of the 75th Legislature, Regular Session, 1997, by adding
643-4 Subsection (d) to read as follows:
643-5 (d) A rule adopted by the director under this chapter that
643-6 relates to hours of service, an operator's record of duty status,
643-7 or an operator's daily log, for operations outside a 150-mile
643-8 radius of the normal work-reporting location, also applies to and
643-9 must be complied with by a motor carrier of household goods not
643-10 using a commercial motor vehicle. In this subsection:
643-11 (1) "commercial motor vehicle" has the meaning
643-12 assigned by Section 548.001; and
643-13 (2) "motor carrier" has the meaning assigned by
643-14 Section 643.001.
643-15 (c) Section 10, Chapter 1061, Section 7, Chapter 858, and
643-16 Section 4.09, Chapter 1171, Acts of the 75th Legislature, Regular
643-17 Session, 1997, are repealed.
643-18 SECTION 17.28. (a) Subchapter B, Chapter 644,
643-19 Transportation Code, is amended to conform to Section 1, Chapter
643-20 476, Acts of the 75th Legislature, Regular Session, 1997, by adding
643-21 Section 644.054 to read as follows:
643-22 Sec. 644.054. REGULATION OF CONTRACT CARRIERS OF CERTAIN
643-23 PASSENGERS. (a) This section applies only to a contract carrier
643-24 that transports an operating employee of a railroad on a road or
643-25 highway of this state in a vehicle designed to carry 15 or fewer
643-26 passengers.
644-1 (b) The department shall adopt rules regulating the
644-2 operation of a contract carrier to which this section applies. The
644-3 rules must:
644-4 (1) prohibit a person from operating a vehicle for
644-5 more than 12 hours in a day;
644-6 (2) require a person who operates a vehicle for the
644-7 number of consecutive hours or days the department determines is
644-8 excessive to rest for a period determined by the department;
644-9 (3) require a contract carrier to keep a record of all
644-10 hours a vehicle subject to regulation under this section is
644-11 operated; and
644-12 (4) be determined by the department to be necessary to
644-13 protect the safety of a passenger being transported or the general
644-14 public.
644-15 (b) Section 1, Chapter 476, Acts of the 75th Legislature,
644-16 Regular Session, 1997, is repealed.
644-17 SECTION 17.29. (a) Section 644.101, Transportation Code, is
644-18 amended to conform to Section 1, Chapter 364, and Section 11,
644-19 Chapter 1061, Acts of the 75th Legislature, Regular Session, 1997,
644-20 to read as follows:
644-21 Sec. 644.101. CERTIFICATION OF MUNICIPAL POLICE [PEACE]
644-22 OFFICERS. (a) The department shall establish procedures,
644-23 including training, for the certification of municipal police
644-24 [peace] officers to enforce this chapter.
644-25 (b) A police [peace] officer of any of the following
644-26 municipalities is eligible to apply for certification under this
645-1 section:
645-2 (1) a municipality with a population of 100,000 or
645-3 more;
645-4 (2) a municipality with a population of 25,000 or more
645-5 any part of which is located in a county with a population of 2.4
645-6 million or more; or
645-7 (3) a municipality any part of which is located in a
645-8 county bordering the United Mexican States.
645-9 (c) The department by rule shall establish reasonable fees
645-10 sufficient to recover from a municipality the cost of certifying
645-11 its police [peace] officers under this section.
645-12 (b) Section 1, Chapter 364, and Section 11, Chapter 1061,
645-13 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
645-14 SECTION 17.30. Section 21.66, Chapter 1423, Acts of the 75th
645-15 Legislature, Regular Session, 1997, is repealed.
645-16 SECTION 17.31. (a) Section 644.103, Transportation Code, is
645-17 amended to conform to Section 2, Chapter 364, Acts of the 75th
645-18 Legislature, Regular Session, 1997, to read as follows:
645-19 Sec. 644.103. DETENTION OF VEHICLES. (a) An officer of the
645-20 department may enter or detain on a highway or at a port of entry a
645-21 motor vehicle that is subject to this chapter.
645-22 (b) A police [peace] officer who is certified under Section
645-23 644.101 may detain on a highway or at a port of entry within the
645-24 territory of the municipality a motor vehicle that is subject to
645-25 this chapter.
645-26 (c) An officer who detains a vehicle under this section may
646-1 prohibit the further operation of the vehicle on a highway if the
646-2 vehicle or operator of the vehicle is in violation of a federal
646-3 safety regulation or a rule adopted under this chapter.
646-4 (b) Section 2, Chapter 364, Acts of the 75th Legislature,
646-5 Regular Session, 1997, is repealed.
646-6 SECTION 17.32. (a) Chapter 644, Transportation Code, is
646-7 amended to conform to Section 1, Chapter 157, and Section 1,
646-8 Chapter 1364, Acts of the 75th Legislature, Regular Session, 1997,
646-9 by adding Subchapter E to read as follows:
646-10 SUBCHAPTER E. ROUTING OF HAZARDOUS MATERIALS
646-11 Sec. 644.201. ADOPTION OF RULES. (a) The Texas
646-12 Transportation Commission shall adopt rules under this subchapter
646-13 consistent with 49 C.F.R. Part 397 for the routing of
646-14 nonradioactive hazardous materials.
646-15 (b) Rules concerning signage, public participation, and
646-16 procedural requirements may impose more stringent requirements than
646-17 provided by 49 C.F.R. Part 397.
646-18 (c) The rules must provide for consultation with a political
646-19 subdivision when a route is being proposed within the jurisdiction
646-20 of the political subdivision.
646-21 Sec. 644.202. DESIGNATION OF ROUTE. (a) A political
646-22 subdivision of this state or a state agency may designate a route
646-23 for the transportation of nonradioactive hazardous materials over a
646-24 public road or highway in this state only if the Texas Department
646-25 of Transportation approves the route.
646-26 (b) A municipality with a population of more than 750,000
647-1 shall develop a route for commercial motor vehicles carrying
647-2 hazardous materials on a road or highway in the municipality and
647-3 submit the route to the Texas Department of Transportation for
647-4 approval. If the Texas Department of Transportation determines
647-5 that the route complies with all applicable federal and state
647-6 regulations regarding the transportation of hazardous materials,
647-7 the Texas Department of Transportation shall approve the route and
647-8 notify the municipality of the approved route.
647-9 (c) The Texas Transportation Commission may designate a
647-10 route for the transportation of nonradioactive hazardous materials
647-11 over any public road or highway in this state. The designation may
647-12 include a road or highway that is not a part of the state highway
647-13 system only on the approval of the governing body of the political
647-14 subdivision that maintains the road or highway.
647-15 Sec. 644.203. SIGNS. (a) The Texas Department of
647-16 Transportation shall provide signs for a designated route under
647-17 Section 644.202(c) over a road or highway that is not part of the
647-18 state highway system. Notwithstanding Section 222.001, the Texas
647-19 Department of Transportation may use money in the state highway
647-20 fund to pay for the signs.
647-21 (b) The political subdivision that maintains the road or
647-22 highway shall bear the costs for installation and maintenance of
647-23 the signs.
647-24 (b) Section 1, Chapter 157, and Section 1, Chapter 1364,
647-25 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
647-26 SECTION 17.33. (a) Section 645.002, Transportation Code, is
648-1 amended to conform to Section 9, Chapter 1061, Acts of the 75th
648-2 Legislature, Regular Session, 1997, by amending Subsection (b) and
648-3 adding Subsection (c) to read as follows:
648-4 (b) The department may adopt rules regarding the method of
648-5 payment of a fee under this chapter. The rules may:
648-6 (1) authorize the use of an escrow account described
648-7 by Subsection (c), an electronic funds transfer, or a valid credit
648-8 card issued by a financial institution chartered by a state or the
648-9 United States or by a nationally recognized credit organization
648-10 approved by the department; and
648-11 (2) require the payment of a discount or service
648-12 charge for a credit card payment in addition to the fee.
648-13 (c) The department may establish one or more escrow accounts
648-14 in the state highway fund for the prepayment of a fee under this
648-15 chapter. A prepaid fee or any fee established by the department
648-16 for the administration of this section shall be:
648-17 (1) administered under an agreement approved by the
648-18 department; and
648-19 (2) deposited to the credit of the state highway fund
648-20 to be appropriated only to the department for the purposes of
648-21 administering this chapter.
648-22 (b) Section 9, Chapter 1061, Acts of the 75th Legislature,
648-23 Regular Session, 1997, is repealed.
648-24 SECTION 17.34. (a) Subtitle F, Title 7, Transportation
648-25 Code, is amended to codify Chapter 421, Acts of the 61st
648-26 Legislature, Regular Session, 1969 (Article 911g, Vernon's Texas
649-1 Civil Statutes), by adding Chapter 647 to read as follows:
649-2 CHAPTER 647. MOTOR TRANSPORTATION OF MIGRANT
649-3 AGRICULTURAL WORKERS
649-4 Sec. 647.001. DEFINITIONS. In this chapter:
649-5 (1) "Bus" means a motor vehicle that is designed,
649-6 constructed, and used to transport passengers. The term does not
649-7 include a passenger automobile or a station wagon other than a
649-8 taxicab.
649-9 (2) "Highway" has the meaning assigned by Section
649-10 541.302.
649-11 (3) "Migrant agricultural worker" means a person who:
649-12 (A) performs or seeks to perform farm labor of a
649-13 seasonal nature, including labor necessary to process an
649-14 agricultural food product; and
649-15 (B) occupies living quarters other than the
649-16 individual's permanent home during the period of employment.
649-17 (4) "Motor vehicle" means any vehicle, machine,
649-18 tractor, trailer, or semitrailer propelled or drawn by mechanical
649-19 power and used on a highway to transport passengers or property or
649-20 both. The term does not include:
649-21 (A) a vehicle, locomotive, or car that operates
649-22 exclusively on one or more rails; or
649-23 (B) a trolley bus that operates on electricity
649-24 generated from a fixed overhead wire and that provides local
649-25 passenger transportation in street-railway service.
649-26 (5) "Operator" means a person who operates a motor
650-1 vehicle.
650-2 (6) "Semitrailer" has the meaning assigned by Section
650-3 541.201.
650-4 (7) "Truck" has the meaning assigned by Section
650-5 541.201.
650-6 (8) "Truck tractor" has the meaning assigned by
650-7 Section 541.201.
650-8 Sec. 647.002. APPLICATION OF CHAPTER. (a) This chapter
650-9 applies to any carrier, including a carrier under contract, who at
650-10 any time uses a motor vehicle to transport to or from a place of
650-11 employment in this state at least five migrant agricultural workers
650-12 for a total distance of more than 50 miles.
650-13 (b) This chapter does not apply if:
650-14 (1) the carrier is a common carrier;
650-15 (2) the motor vehicle used is a station wagon or
650-16 passenger automobile; or
650-17 (3) the carrier is a migrant agricultural worker
650-18 transporting the worker or a member of the worker's immediate
650-19 family.
650-20 Sec. 647.003. TYPE OF VEHICLE ALLOWED. (a) A carrier may
650-21 transport migrant agricultural workers only in a:
650-22 (1) bus;
650-23 (2) truck to which a trailer is not attached; or
650-24 (3) semitrailer attached to a truck tractor.
650-25 (b) A carrier may not:
650-26 (1) attach a trailer to a semitrailer described by
651-1 Subsection (a)(3); or
651-2 (2) use a closed van that does not have windows or a
651-3 method to ensure ventilation.
651-4 Sec. 647.004. COMPLIANCE WITH REQUIREMENTS OF CHAPTER.
651-5 (a) A carrier shall comply with the requirements and
651-6 specifications of this chapter.
651-7 (b) An officer, agent, representative, or employee of a
651-8 carrier who operates a motor vehicle used to transport migrant
651-9 agricultural workers or who hires, supervises, trains, assigns, or
651-10 dispatches operators of those motor vehicles shall comply with the
651-11 requirements of Sections 647.006, 647.007, and 647.008.
651-12 (c) An officer, agent, representative, operator, or employee
651-13 of a carrier who is directly involved in the management,
651-14 maintenance, or operation of a motor vehicle used to transport
651-15 migrant agricultural workers shall comply with the requirements of
651-16 Sections 647.003, 647.005, 647.009, 647.010, 647.011, 647.012,
651-17 647.014, 647.016, and 647.017. The carrier shall instruct its
651-18 officers, agents, representatives, and operators with the
651-19 requirements of those sections and shall take necessary measures to
651-20 ensure compliance with those requirements.
651-21 (d) An officer, agent, representative, operator, or employee
651-22 of a carrier who is directly involved with the installation or
651-23 maintenance of equipment and accessories of a motor vehicle used to
651-24 transport migrant agricultural workers shall comply with the
651-25 requirements and specifications of Sections 647.012, 647.013,
651-26 647.014, 647.015, and 647.016. A carrier may not operate a motor
652-1 vehicle transporting migrant agricultural workers or cause or
652-2 permit the vehicle to be operated unless the vehicle is equipped as
652-3 required by those sections.
652-4 (e) A carrier shall systematically inspect and maintain each
652-5 motor vehicle used to transport migrant agricultural workers and
652-6 their accessories subject to its control to ensure that the vehicle
652-7 and its accessories are in safe and proper operating condition.
652-8 Sec. 647.005. OPERATION IN ACCORDANCE WITH LAW. If this
652-9 chapter imposes a greater affirmative obligation or restraint on
652-10 the operation of a motor vehicle transporting migrant agricultural
652-11 workers than the laws, ordinances, and regulations of the
652-12 jurisdiction in which the vehicle is operated, the operator shall
652-13 comply with this chapter.
652-14 Sec. 647.006. OPERATOR AGE AND EXPERIENCE REQUIREMENTS. A
652-15 person may not operate a motor vehicle transporting migrant
652-16 agricultural workers and a carrier may not permit or require a
652-17 person to operate the motor vehicle unless the person:
652-18 (1) is at least 18 years of age;
652-19 (2) has at least one year of experience in operating
652-20 any type of motor vehicle, including a private automobile, during
652-21 the different seasons;
652-22 (3) is familiar with the law relating to operating a
652-23 motor vehicle; and
652-24 (4) is authorized by law to operate that type of motor
652-25 vehicle.
652-26 Sec. 647.007. OPERATOR PHYSICAL REQUIREMENTS. (a) A person
653-1 may not operate a motor vehicle transporting migrant agricultural
653-2 workers and a carrier may not permit or require a person to operate
653-3 the motor vehicle if the person:
653-4 (1) is missing a foot, leg, hand, or arm;
653-5 (2) has a mental, nervous, organic, or functional
653-6 disorder that is likely to interfere with the person's ability to
653-7 safely operate the motor vehicle;
653-8 (3) is missing fingers, has impaired use of a foot,
653-9 leg, finger, hand, or arm, or has another structural defect or
653-10 limitation likely to interfere with the person's ability to safely
653-11 operate the motor vehicle;
653-12 (4) has a visual acuity of less than 20/40 (Snellen)
653-13 in each eye either without glasses or with corrective lenses;
653-14 (5) has a form field of vision in the horizontal
653-15 median of less than a total of 140 degrees;
653-16 (6) cannot distinguish the colors red, green, and
653-17 yellow;
653-18 (7) has hearing ability of less than 10/20 in the
653-19 better ear for conversational tones without the use of a hearing
653-20 aid; or
653-21 (8) is addicted to alcohol, narcotics, or
653-22 habit-forming drugs.
653-23 (b) An operator who requires corrective lenses for vision
653-24 shall use properly prescribed corrective lenses when operating the
653-25 motor vehicle.
653-26 Sec. 647.008. PHYSICAL EXAMINATION REQUIREMENT. (a) A
654-1 person may not operate a motor vehicle transporting migrant
654-2 agricultural workers and a carrier may not permit or require a
654-3 person to operate the motor vehicle unless:
654-4 (1) the person has been physically examined by a
654-5 licensed doctor of medicine or osteopathy during the preceding 36
654-6 months; and
654-7 (2) the doctor certifies that the person is physically
654-8 qualified in accordance with Section 647.007.
654-9 (b) The doctor's certificate must state:
654-10 "Doctor's Certificate
654-11 (Operator of Migrant Agricultural Workers)
654-12 This is to certify that I have this day examined __________ in
654-13 accordance with the Texas law governing physical qualifications of
654-14 operators of migrant agricultural workers and that I find _________
654-15 Qualified under that law
654-16 Qualified only when wearing glasses or corrective lenses
654-17 I have kept on file in my office a completed examination.
654-18 _____________ _____________ (Signature of Examining Doctor)
654-19 (Date) (Place) _______________________________
654-20 _________________ (Address of Doctor)
654-21 Signature of Operator _____________________________________________
654-22 Address of Operator _____________________________________________"
654-23 (c) A carrier shall keep in its files at the carrier's
654-24 principal place of business a legible doctor's certificate or a
654-25 legible photographically reproduced copy of the doctor's
654-26 certificate for each operator it employs or uses.
655-1 (d) An operator shall carry the operator's legible doctor's
655-2 certificate or a legible photographically reproduced copy of the
655-3 doctor's certificate when operating the motor vehicle.
655-4 Sec. 647.009. LIMITATION ON OPERATION OF MOTOR VEHICLE.
655-5 (a) Except in an emergency, a person assigned to operate a motor
655-6 vehicle transporting migrant workers may not allow another
655-7 person to operate the motor vehicle without the carrier's
655-8 authorization.
655-9 (b) A person may not operate a motor vehicle if the person's
655-10 alertness or ability to operate the vehicle is impaired for any
655-11 reason, including fatigue or illness, to the extent that it is not
655-12 safe for the person to begin or to continue. This subsection does
655-13 not apply if there is a grave emergency in which failure to operate
655-14 a motor vehicle would result in a greater hazard to passengers.
655-15 However, the person may operate the motor vehicle only to the
655-16 nearest location at which the passengers' safety is ensured.
655-17 (c) A carrier may not permit or require a person to operate
655-18 a motor vehicle from one location to another in a period that would
655-19 necessitate the operation of the vehicle at a speed in excess of
655-20 the applicable speed limit.
655-21 (d) An operator shall make a meal stop of not less than 30
655-22 minutes at least every six hours. The carrier shall provide for
655-23 reasonable rest stops at least once between each meal stop.
655-24 (e) The operator of a truck transporting migrant
655-25 agricultural workers for more than 500 miles shall stop for at
655-26 least eight hours to provide rest for the operator and passengers
656-1 either before or at the completion of each 500 miles.
656-2 (f) A person may not operate and a carrier may not permit or
656-3 require the person to operate a motor vehicle for more than 10
656-4 hours in the aggregate, excluding meal and rest stops, during any
656-5 24-hour period unless the person rests for at least eight
656-6 consecutive hours at the end of the 10-hour period. For purposes
656-7 of this subsection, the 24-hour period begins at the time the
656-8 operator reports for duty.
656-9 Sec. 647.010. REQUIRED STOP AT RAILROAD CROSSING. (a) An
656-10 operator transporting migrant agricultural workers who approaches a
656-11 railroad grade crossing:
656-12 (1) shall stop the motor vehicle not less than 15 feet
656-13 or more than 50 feet from the nearest rail of the crossing; and
656-14 (2) may proceed only after the operator determines
656-15 that the course is clear.
656-16 (b) An operator is not required to stop at:
656-17 (1) a streetcar crossing that is in a municipal
656-18 business or residential district;
656-19 (2) a railroad grade crossing at which a police
656-20 officer or traffic-control signal other than a railroad flashing
656-21 signal directs traffic to proceed; or
656-22 (3) a grade crossing that the proper state authority
656-23 has clearly marked as being abandoned or exempted if the marking
656-24 can be read from the operator's position.
656-25 (c) The motor vehicle must display a sign on the rear of
656-26 the vehicle that states: "This Vehicle Stops at Railroad
657-1 Crossings."
657-2 Sec. 647.011. FUEL RESTRICTIONS. (a) An operator or
657-3 carrier employee fueling a motor vehicle used to transport migrant
657-4 agricultural workers may not:
657-5 (1) fuel the motor vehicle while the engine is running
657-6 unless running the engine is required to fuel the vehicle;
657-7 (2) smoke or expose any open flame in the vicinity of
657-8 the motor vehicle;
657-9 (3) fuel the motor vehicle when the nozzle of the fuel
657-10 hose is not in continuous contact with the intake pipe of the fuel
657-11 tank; or
657-12 (4) permit any other person to engage in an activity
657-13 that would likely result in a fire or explosion.
657-14 (b) A person may carry fuel on the motor vehicle for use in
657-15 the motor vehicle or an accessory only in a properly mounted fuel
657-16 tank.
657-17 Sec. 647.012. REQUIRED VEHICLE EQUIPMENT; USE OF REQUIRED
657-18 EQUIPMENT. (a) A motor vehicle used to transport migrant
657-19 agricultural workers must be equipped with:
657-20 (1) at least one properly mounted fire extinguisher;
657-21 (2) road warning devices, including at least one
657-22 red-burning fusee and at least three red flares, red electric
657-23 lanterns, or red emergency reflectors;
657-24 (3) coupling devices as prescribed by Subsection (c),
657-25 if the vehicle is a truck tractor or dolly; and
657-26 (4) tires as prescribed by Subsection (d).
658-1 (b) A person may not operate a motor vehicle unless the
658-2 person is satisfied that the equipment required under Subsection
658-3 (a) and the following equipment is in good working order:
658-4 (1) the brakes, including service brakes, trailer
658-5 brake connections, and hand parking brakes;
658-6 (2) lighting devices and reflectors;
658-7 (3) the steering mechanism;
658-8 (4) the horn;
658-9 (5) each windshield wiper; and
658-10 (6) each rearview mirror.
658-11 (c) Adequate means must be provided positively to prevent
658-12 the shifting of the lower half of each fifth wheel attached to the
658-13 frame of a truck tractor or dolly. The lower half of each fifth
658-14 wheel must be securely fastened to the frame by U-bolts that are of
658-15 adequate size and are securely tightened. Another method may be
658-16 used if the method provides equivalent security. A U-bolt may not
658-17 be of welded construction and must be installed so as not to crack,
658-18 warp, or deform the frame. The upper half of each fifth wheel must
658-19 be fastened with at least the security required for the lower half.
658-20 A locking means must be provided in each fifth wheel mechanism,
658-21 including adapters when used, so that the upper and lower half will
658-22 not separate without the use of a positive manual release, such as
658-23 a release mechanism that the operator uses from the cab. If the
658-24 fifth wheel is designed and constructed to be readily separable,
658-25 the requirement for a fifth wheel coupling device applies to a
658-26 vehicle manufactured after December 31, 1952.
659-1 (d) Vehicle tires must be of adequate capacity to support
659-2 the vehicle's gross weight. Each tire must have a tread
659-3 configuration on the part of the tire that is in contact with the
659-4 road and may not be so smooth as to expose any tread fabric. A
659-5 tire may not have a defect likely to cause failure. A front tire
659-6 may not be regrooved, recapped, or retreaded.
659-7 (e) An operator shall use required equipment as necessary.
659-8 Sec. 647.013. PASSENGER SAFETY PROVISIONS ON MOTOR VEHICLE
659-9 OTHER THAN BUS. (a) A motor vehicle other than a bus transporting
659-10 migrant agricultural workers must have a passenger compartment in
659-11 accordance with this section.
659-12 (b) The floor of the passenger compartment must be
659-13 substantially smooth and without cracks or holes. Except as
659-14 necessary to secure the seats or other devices attached to the
659-15 floor, the floor may not have any object that protrudes more than
659-16 two inches in height.
659-17 (c) The side walls and ends of the passenger compartment
659-18 must extend at least 60 inches from the floor. If necessary,
659-19 sideboards may be attached to the body of the motor vehicle. Stake
659-20 body construction meets the requirements of this subsection only if
659-21 the space six inches or larger between any two stakes is suitably
659-22 closed to prevent the passengers from falling off the vehicle.
659-23 (d) The floor and interior of the sides and ends of the
659-24 passenger compartment must be free of protruding nails, screws,
659-25 splinters, or any other protruding object that is likely to injure
659-26 a passenger or the passenger's clothes.
660-1 (e) The motor vehicle must have an adequate means of exiting
660-2 and entering the passenger compartment from the rear or from the
660-3 right side of the vehicle. Each exit and entrance must have a gate
660-4 or door that has at least one latch or fastening device that will
660-5 keep the gate or door securely closed during transportation. The
660-6 latch or fastening device must be readily operative without the use
660-7 of tools. An exit or entrance must:
660-8 (1) be at least 18 inches wide;
660-9 (2) have a top and clear opening of at least 60 inches
660-10 or as high as the passenger compartment side wall if the side wall
660-11 is less than 60 inches high; and
660-12 (3) have a bottom that is at the floor of the
660-13 passenger compartment.
660-14 (f) If the motor vehicle has a permanently attached roof,
660-15 the vehicle must have at least one emergency exit on a side or rear
660-16 of the vehicle that does not have a regular exit or entrance. The
660-17 exit must have a gate or door and a latch and hold as prescribed by
660-18 Subsection (e).
660-19 (g) If necessary, a ladder or steps shall be used to enter
660-20 and exit the passenger compartment. The maximum vertical spacing
660-21 of footholds may not exceed 12 inches and the lowest step may not
660-22 be more than 18 inches above the ground when the vehicle is empty.
660-23 (h) The motor vehicle must include handholds or other
660-24 devices that will enable passengers to enter and exit the vehicle
660-25 without hazard.
660-26 (i) The motor vehicle must have a way for passengers to
661-1 communicate with the operator, including a telephone, speaker tube,
661-2 buzzer, pull cord, or other mechanical or electrical device.
661-3 Sec. 647.014. PASSENGER SEATING. One seat must be provided
661-4 for each passenger. Passengers shall remain seated while the
661-5 vehicle is in motion.
661-6 Sec. 647.015. PASSENGER SEATING REQUIREMENTS FOR CERTAIN
661-7 TRIPS. (a) A motor vehicle transporting migrant agricultural
661-8 workers for a total distance of 100 miles or more must have a
661-9 passenger compartment in accordance with this section.
661-10 (b) Each passenger seat must:
661-11 (1) be securely attached to the vehicle during use;
661-12 (2) be not less than 16 or more than 19 inches above
661-13 the floor;
661-14 (3) be at least 13 inches deep;
661-15 (4) be equipped with backrests that extend at least 36
661-16 inches above the floor;
661-17 (5) have at least 24 inches of space between the
661-18 backrests or the edges of the opposite seats when positioned face
661-19 to face;
661-20 (6) provide at least 18 inches of seat area for each
661-21 passenger;
661-22 (7) not have any cracks that are more than one-fourth
661-23 inch wide;
661-24 (8) not have any cracks in the backrests, if slatted,
661-25 that are more than two inches wide; and
661-26 (9) have any exposed wood surfaces planed or sanded
662-1 smooth and free of splinters.
662-2 Sec. 647.016. PASSENGER PROTECTION FROM WEATHER. (a) If
662-3 necessary to protect passengers from inclement weather, including
662-4 rain, snow, or sleet, the passenger compartment must be equipped
662-5 with a top that is at least 80 inches above the floor and with a
662-6 means of closing the sides and ends. A tarpaulin or other
662-7 removable protective device may be used if secured in place.
662-8 (b) The motor vehicle must have a safe method of protecting
662-9 the passengers from cold or undue exposure. A motor vehicle may
662-10 not have a heater that:
662-11 (1) conducts engine exhaust gases or engine
662-12 compartment air into or through a space occupied by an individual;
662-13 (2) uses a flame that is not completely enclosed;
662-14 (3) might spill or leak fuel if the vehicle is tilted
662-15 or overturned;
662-16 (4) uses heated or unheated air that comes from or
662-17 through the engine compartment or from direct contact with any part
662-18 of the exhaust system unless the heater ducts prevent contamination
662-19 of the air from the exhaust or engine compartment gases; or
662-20 (5) is not securely fastened to the motor vehicle.
662-21 Sec. 647.017. OPERATIONAL REQUIREMENTS. (a) A person may
662-22 not operate a motor vehicle transporting migrant agricultural
662-23 workers that is loaded or that has a load that is distributed or
662-24 secured in a manner that prevents the vehicle's safe operation.
662-25 (b) A person may not operate a motor vehicle if:
662-26 (1) a tailgate, tailboard, tarpaulin, door, fastening
663-1 device, or equipment or rigging is not securely in place;
663-2 (2) an object:
663-3 (A) obscures the operator's view in any
663-4 direction;
663-5 (B) interferes with the free movement of the
663-6 operator's arms or legs;
663-7 (C) obstructs the operator's access to emergency
663-8 accessories; or
663-9 (D) obstructs a person's entrance or exit from
663-10 the cab or operator's compartment; or
663-11 (3) property on the vehicle is stowed so that it:
663-12 (A) restricts the operator's freedom of motion
663-13 in properly operating the vehicle;
663-14 (B) obstructs a person's exit from the vehicle;
663-15 or
663-16 (C) does not provide adequate protection to
663-17 passengers and others from injury resulting from a falling or
663-18 displaced article.
663-19 (c) An operator who leaves a motor vehicle unattended shall
663-20 securely set the parking brake, chock the wheels, and take all
663-21 reasonable precautions to prevent the vehicle from moving.
663-22 Sec. 647.018. CERTIFICATE OF COMPLIANCE. A carrier is
663-23 considered to be in compliance with this chapter if the carrier
663-24 holds a certificate of compliance with the United States Department
663-25 of Transportation regulations governing transportation of migrant
663-26 agricultural workers in interstate commerce.
664-1 Sec. 647.019. PENALTY. (a) A carrier who violates this
664-2 chapter commits an offense.
664-3 (b) An offense under this section is a misdemeanor
664-4 punishable by a fine of not less than $5 or more than $50.
664-5 (b) Chapter 421, Acts of the 61st Legislature, Regular
664-6 Session, 1969 (Article 911g, Vernon's Texas Civil Statutes), is
664-7 repealed.
664-8 SECTION 17.35. (a) Subtitle F, Title 7, Transportation
664-9 Code, is amended to codify Article 6675c-2, Revised Statutes, as
664-10 added by Section 4.11(a), Chapter 1171, Acts of the 75th
664-11 Legislature, Regular Session, 1997, by adding Chapter 648 to read
664-12 as follows:
664-13 CHAPTER 648. FOREIGN COMMERCIAL MOTOR TRANSPORTATION
664-14 SUBCHAPTER A. GENERAL PROVISIONS
664-15 Sec. 648.001. DEFINITIONS. In this chapter:
664-16 (1) "Border" means the border between this state and
664-17 the United Mexican States.
664-18 (2) "Border commercial zone" means a commercial zone
664-19 established under 49 C.F.R. Part 372, Subpart B, any portion of
664-20 which is contiguous to the border in this state.
664-21 (3) "Commercial motor vehicle" includes a foreign
664-22 commercial motor vehicle.
664-23 (4) "Foreign commercial motor vehicle" means a
664-24 commercial motor vehicle, as defined by 49 C.F.R. Section 390.5,
664-25 that is owned or controlled by a person or entity that is domiciled
664-26 in or a citizen of a country other than the United States.
665-1 (5) "Motor carrier" includes a foreign motor carrier
665-2 and a foreign motor private carrier, as defined in 49 U.S.C.
665-3 Sections 13102(6) and (7).
665-4 Sec. 648.002. RULES. In addition to rules required by this
665-5 chapter, the Texas Department of Transportation, the Department of
665-6 Public Safety, and the Texas Department of Insurance may adopt
665-7 other rules to carry out this chapter.
665-8 Sec. 648.003. REFERENCE TO FEDERAL STATUTE OR REGULATION. A
665-9 reference in this chapter to a federal statute or regulation
665-10 includes any subsequent amendment or redesignation of the statute
665-11 or regulation.
665-12 (Sections 648.004-648.050 reserved for expansion
665-13 SUBCHAPTER B. BORDER COMMERCIAL ZONE
665-14 Sec. 648.051. BORDER COMMERCIAL ZONE EXCLUSIVE; BOUNDARIES.
665-15 (a) A law or agreement of less than statewide application that is
665-16 adopted by an agency or political subdivision of this state and
665-17 that regulates motor carriers or commercial motor vehicles or the
665-18 operation of those carriers or vehicles in the transportation of
665-19 cargo across the border or within an area adjacent to the border by
665-20 foreign commercial motor vehicles has no effect unless the law or
665-21 agreement applies uniformly to an entire border commercial zone and
665-22 only in a border commercial zone.
665-23 (b) This subchapter supersedes that portion of any paired
665-24 city, paired state, or similar understanding governing foreign
665-25 commercial motor vehicles or motor carriers entered into under
665-26 Section 502.054 or any other law.
666-1 Sec. 648.052. MODIFICATION OF ZONE BOUNDARIES. The
666-2 boundaries of a border commercial zone may be modified or
666-3 established only as provided by federal law.
666-4 (Sections 648.053-648.100 reserved for expansion
666-5 SUBCHAPTER C. REGULATION OF OPERATION OF FOREIGN
666-6 COMMERCIAL MOTOR VEHICLES
666-7 Sec. 648.101. REGISTRATION EXEMPTION IN BORDER COMMERCIAL
666-8 ZONE. (a) A foreign commercial motor vehicle is exempt from
666-9 Chapter 502 and any other law of this state requiring the vehicle
666-10 to be registered in this state, including a law providing for a
666-11 temporary registration permit, if:
666-12 (1) the vehicle is engaged solely in transportation of
666-13 cargo across the border into or from a border commercial zone;
666-14 (2) for each load of cargo transported the vehicle
666-15 remains in this state:
666-16 (A) not more than 24 hours; or
666-17 (B) not more than 48 hours, if:
666-18 (i) the vehicle is unable to leave this
666-19 state within 24 hours because of circumstances beyond the control
666-20 of the motor carrier operating the vehicle; and
666-21 (ii) all financial responsibility
666-22 requirements applying to the vehicle are satisfied;
666-23 (3) the vehicle is registered and licensed as required
666-24 by the law of another state or country as evidenced by a valid
666-25 metal license plate attached to the front or rear of the exterior
666-26 of the vehicle; and
667-1 (4) the country in which the person that owns or
667-2 controls the vehicle is domiciled or is a citizen provides a
667-3 reciprocal exemption for commercial motor vehicles owned or
667-4 controlled by residents of this state.
667-5 (b) A foreign commercial motor vehicle operating under the
667-6 exemption provided by this section and the vehicle's driver may be
667-7 considered unregistered if the vehicle is operated in this state
667-8 outside a border commercial zone or in violation of United States
667-9 law.
667-10 Sec. 648.102. FINANCIAL RESPONSIBILITY. (a) The Texas
667-11 Department of Transportation shall adopt rules that conform with 49
667-12 C.F.R. Part 387 requiring motor carriers operating foreign
667-13 commercial motor vehicles in this state to maintain financial
667-14 responsibility.
667-15 (b) This chapter prevails over any other requirement of
667-16 state law relating to financial responsibility for operation of
667-17 foreign commercial motor vehicles in this state.
667-18 Sec. 648.103. DOMESTIC TRANSPORTATION. A foreign motor
667-19 carrier or foreign motor private carrier may not transport persons
667-20 or cargo in intrastate commerce in this state unless the carrier is
667-21 authorized to conduct operations in interstate and foreign commerce
667-22 domestically between points in the United States under federal law
667-23 or international agreement.
667-24 (b) Article 6675c-2, Revised Statutes, as added by Section
667-25 4.11(a), Chapter 1171, Acts of the 75th Legislature, Regular
667-26 Session, 1997, is repealed.
668-1 SECTION 17.36. Sections 661.003(d)-(g), Transportation Code,
668-2 are amended to conform those sections to the definition of
668-3 "department" provided by Section 661.001, Transportation Code, to
668-4 read as follows:
668-5 (d) The department [Department of Public Safety] shall issue
668-6 a sticker to a person who:
668-7 (1) applies to the department on a form provided by
668-8 the department;
668-9 (2) provides the department with evidence satisfactory
668-10 to the department showing that the person:
668-11 (A) is the owner of a motorcycle that is
668-12 currently registered in this state; and
668-13 (B) has successfully completed the training and
668-14 safety course described by Subsection (c) or has the insurance
668-15 coverage described by that subsection; and
668-16 (3) pays a fee of $5 for the sticker.
668-17 (e) A person may apply to the department [Department of
668-18 Public Safety] for a sticker for each motorcycle owned by the
668-19 applicant.
668-20 (f) A sticker issued by the department [Department of Public
668-21 Safety] under Subsection (d) expires on the third anniversary of
668-22 the date of issuance.
668-23 (g) A person operating or riding as a passenger on a
668-24 motorcycle that displays on the license plate of the motorcycle or
668-25 the license plate mounting bracket a sticker issued by the
668-26 department [Department of Public Safety] under Subsection (d) is
669-1 presumed to have successfully completed the training and safety
669-2 course described by Subsection (c) or to have the insurance
669-3 coverage described by that subsection.
669-4 SECTION 17.37. (a) Section 706.001, Transportation Code, is
669-5 amended to conform to Section 1, Chapter 457, Acts of the 75th
669-6 Legislature, Regular Session, 1997, to read as follows:
669-7 Sec. 706.001. DEFINITIONS. In this chapter:
669-8 (1) "Complaint" means a notice of an offense as
669-9 described by Article 27.14(d) or 45.01, Code of Criminal Procedure.
669-10 (2) "Department" means the Department of Public
669-11 Safety.
669-12 (3) "Driver's license" has the meaning assigned by
669-13 Section 521.001.
669-14 (4) "Highway or street" has the meaning assigned by
669-15 Section 541.302.
669-16 (5) "Motor vehicle" has the meaning assigned by
669-17 Section 541.201.
669-18 (6) "Operator" has the meaning assigned by Section
669-19 541.001.
669-20 (7) "Political subdivision" means a municipality or
669-21 county.
669-22 (8) "Public place" has the meaning assigned by Section
669-23 1.07, Penal Code.
669-24 (9) [(5)] "Traffic law" means a statute or ordinance,
669-25 a violation of which is a misdemeanor punishable by a fine in an
669-26 amount not to exceed $1,000, that [regulates]:
670-1 (A) regulates an operator's conduct or condition
670-2 while operating a motor vehicle on a highway or street or in a
670-3 public place [highway]; [or]
670-4 (B) regulates the condition of a motor vehicle
670-5 while it is being operated on a highway or street;
670-6 (C) relates to the driver's license status of an
670-7 operator while operating a motor vehicle on a highway or street; or
670-8 (D) relates to the registration status of a
670-9 motor vehicle while it is being operated on a highway or street [or
670-10 highway].
670-11 (b) Section 706.002(a), Transportation Code, is amended to
670-12 conform to Section 2, Chapter 457, Acts of the 75th Legislature,
670-13 Regular Session, 1997, to read as follows:
670-14 (a) A political subdivision may contract with the department
670-15 to provide information necessary for the department to deny renewal
670-16 of the driver's license of a person who fails to appear for a
670-17 complaint, citation, or court order to pay a fine involving:
670-18 (1) a violation of a traffic law;
670-19 (2) an offense under Section 543.009(b) or 543.107(b);
670-20 or
670-21 (3) an offense under Section 38.10, Penal Code, if the
670-22 underlying offense is a traffic offense.
670-23 (c) Sections 706.004 and 706.005, Transportation Code, are
670-24 amended to conform to Section 3, Chapter 457, Acts of the 75th
670-25 Legislature, Regular Session, 1997, to read as follows:
670-26 Sec. 706.004. DENIAL OF RENEWAL OF DRIVER'S LICENSE.
671-1 (a) If a political subdivision has contracted with the department,
671-2 on receiving the necessary information from the political
671-3 subdivision the department may deny renewal of the person's
671-4 driver's license for failure to appear based on a complaint,
671-5 citation, or court order to pay a fine involving a violation of a
671-6 traffic law or an offense described by Section 706.002(a)(2) or
671-7 (3).
671-8 (b) The information must include:
671-9 (1) the name, date of birth, and driver's license
671-10 number of the person;
671-11 (2) the nature and date of the alleged violation;
671-12 (3) a statement that the person failed to appear as
671-13 required by law for a traffic violation or an offense described by
671-14 Section 706.002(a)(2) or (3); and
671-15 (4) any other information required by the department.
671-16 Sec. 706.005. NOTICE TO DEPARTMENT. A political subdivision
671-17 shall notify the department that there is no cause to continue to
671-18 deny renewal of a person's driver's license based on the person's
671-19 previous failure to appear for a traffic violation or an offense
671-20 described by Section 706.002(a)(2) or (3), on payment of a fee as
671-21 provided by Section 706.006 and:
671-22 (1) the entry of a judgment against the person;
671-23 (2) the perfection of an appeal of the case for which
671-24 the warrant of arrest was issued;
671-25 (3) the dismissal of the charge for which the warrant
671-26 of arrest was issued;
672-1 (4) the acquittal of the charge on which the person
672-2 failed to appear;
672-3 (5) the posting of bond or the giving of other
672-4 security to reinstate the charge for which the warrant was issued;
672-5 or
672-6 (6) the payment of the fine owed on an outstanding
672-7 court order to pay a fine.
672-8 (d) Section 706.006(a), Transportation Code, is amended to
672-9 conform to Section 3, Chapter 457, Acts of the 75th Legislature,
672-10 Regular Session, 1997, to read as follows:
672-11 (a) Unless a person has been acquitted of the [traffic]
672-12 offense for which the person failed to appear for a complaint,
672-13 citation, or court order to pay a fine involving a violation of a
672-14 traffic law or an offense described by Section 706.002(a)(2) or
672-15 (3), the political subdivision shall require the person to pay an
672-16 administrative fee of $30 for each violation for which the person
672-17 failed to appear.
672-18 (e) Sections 1-3, Chapter 457, Acts of the 75th Legislature,
672-19 Regular Session, 1997, are repealed.
672-20 SECTION 17.38. Section 721.005(b), Transportation Code, as
672-21 amended by Chapters 46 and 355, Acts of the 75th Legislature,
672-22 Regular Session, 1997, is amended to properly letter paragraphs to
672-23 read as follows:
672-24 (b) The commissioners court of a county may exempt from the
672-25 requirements of Section 721.004:
672-26 (1) an automobile when used to perform an official
673-1 duty by a:
673-2 (A) police department;
673-3 (B) sheriff's office;
673-4 (C) constable's office;
673-5 (D) criminal district attorney's office;
673-6 (E) district attorney's office;
673-7 (F) county attorney's office;
673-8 (G) magistrate as defined by Article 2.09, Code
673-9 of Criminal Procedure; [or]
673-10 (H) county fire marshal's office; or
673-11 (I) [(H)] medical examiner; or
673-12 (2) a juvenile probation department vehicle used to
673-13 transport children, when used to perform an official duty.
673-14 ARTICLE 18. CHANGES RELATING TO UTILITIES CODE
673-15 SECTION 18.01. (a) Subchapter B, Chapter 14, Utilities
673-16 Code, is amended to conform to Section 26, Chapter 1206, Acts of
673-17 the 75th Legislature, Regular Session, 1997, by adding Section
673-18 14.058 to read as follows:
673-19 Sec. 14.058. FEES FOR ELECTRONIC ACCESS TO INFORMATION. The
673-20 fees charged by the commission for electronic access to information
673-21 that is stored in the system established by the commission using
673-22 funds from the Texas Public Finance Authority and approved by the
673-23 Department of Information Resources shall be established:
673-24 (1) by the commission in consultation with the General
673-25 Services Commission; and
673-26 (2) in an amount reasonable and necessary to retire
674-1 the debt to the Texas Public Finance Authority associated with
674-2 establishing the electronic access system.
674-3 (b) Section 26, Chapter 1206, Acts of the 75th Legislature,
674-4 Regular Session, 1997, is repealed.
674-5 SECTION 18.02. (a) Section 36.302, Utilities Code, is
674-6 amended to conform to Section 1, Chapter 1433, Acts of the 75th
674-7 Legislature, Regular Session, 1997, by adding Subsection (c) to
674-8 read as follows:
674-9 (c) Notwithstanding Subsection (a), the electric cooperative
674-10 may not be required to prepare or make available a cost-of-service
674-11 study if the rate change is uncontested and the commission
674-12 determines that a cost-of-service study is unnecessary. The
674-13 commission shall make any determination of necessity without a
674-14 hearing.
674-15 (b) Section 1, Chapter 1433, Acts of the 75th Legislature,
674-16 Regular Session, 1997, is repealed.
674-17 SECTION 18.03. Section 36.306(b), Utilities Code, is amended
674-18 to more closely conform to the law from which that subsection was
674-19 derived, to read as follows:
674-20 (b) The standards described in Sections 36.007(a)-(c)
674-21 [Section 36.007] apply to the review of rates adopted under
674-22 Subsection (a). In a review of the rates, the electric
674-23 cooperative's marginal cost shall be the lowest marginal cost of
674-24 any of the cooperative's wholesale power suppliers.
674-25 SECTION 18.04. (a) Section 52.102, Utilities Code, is
674-26 amended to conform to Section 2, Chapter 919, Acts of the 75th
675-1 Legislature, Regular Session, 1997, to read as follows:
675-2 Sec. 52.102. LIMITED REGULATORY AUTHORITY. Except as
675-3 otherwise provided by this subchapter, Subchapters D and K [and
675-4 Subchapter D], Chapter 55, and Section 55.011, the commission has
675-5 only the following jurisdiction over a telecommunications utility
675-6 subject to this subchapter:
675-7 (1) to require registration under Section 52.103;
675-8 (2) to conduct an investigation under Section 52.104;
675-9 (3) to require the filing of reports as the commission
675-10 periodically directs;
675-11 (4) to require the maintenance of statewide average
675-12 rates or prices of telecommunications service;
675-13 (5) to require access to telecommunications service
675-14 under Section 52.105; and
675-15 (6) to require the quality of telecommunications
675-16 service provided to be adequate under Section 52.106.
675-17 (b) Subchapter A, Chapter 55, Utilities Code, is amended to
675-18 conform to Section 1, Chapter 919, Acts of the 75th Legislature,
675-19 Regular Session, 1997, by adding Section 55.011 to read as follows:
675-20 Sec. 55.011. NOTICE OF IDENTITY OF INTEREXCHANGE CARRIER.
675-21 (a) A local exchange company shall print on the first page of each
675-22 bill sent to a customer of the local exchange company the name of
675-23 the customer's primary interexchange carrier if the company
675-24 provides billing services for that carrier.
675-25 (b) The bill must contain instructions on how the customer
675-26 can contact the commission if the customer believes that the named
676-1 carrier is not the customer's primary interexchange carrier.
676-2 (c) The commission may, for good cause, waive the billing
676-3 requirement prescribed by this section in exchanges served by local
676-4 exchange companies serving not more than 31,000 access lines.
676-5 (c) Chapter 55, Utilities Code, is amended to conform to
676-6 Section 1, Chapter 919, Acts of the 75th Legislature, Regular
676-7 Session, 1997, by adding Subchapter K to read as follows:
676-8 SUBCHAPTER K. SELECTION OF TELECOMMUNICATIONS UTILITIES
676-9 Sec. 55.301. STATE POLICY. It is the policy of this state
676-10 to ensure that all customers are protected from the unauthorized
676-11 switching of a telecommunications utility selected by the customer
676-12 to provide telecommunications service.
676-13 Sec. 55.302. COMMISSION RULES. (a) The commission shall
676-14 adopt nondiscriminatory and competitively neutral rules to
676-15 implement this subchapter, including rules that:
676-16 (1) ensure that customers are protected from deceptive
676-17 practices in the obtaining of authorizations and verifications
676-18 required by this subchapter;
676-19 (2) are applicable to all local exchange telephone
676-20 services, interexchange telecommunications service, and other
676-21 telecommunications service provided by telecommunications utilities
676-22 in this state;
676-23 (3) are consistent with the rules and regulations
676-24 prescribed by the Federal Communications Commission for the
676-25 selection of telecommunications utilities;
676-26 (4) permit telecommunications utilities to select any
677-1 method of verification of a carrier-initiated change order
677-2 authorized by Section 55.303;
677-3 (5) require telecommunications utilities to maintain
677-4 records relating to a customer-initiated change in accordance with
677-5 Section 55.304;
677-6 (6) require the reversal of certain changes in the
677-7 selection of a customer's telecommunications utility in accordance
677-8 with Section 55.305(a);
677-9 (7) prescribe, in accordance with Section 55.305(b),
677-10 the duties of a telecommunications utility that initiates an
677-11 unauthorized customer change; and
677-12 (8) provide for corrective action and the imposition
677-13 of penalties in accordance with Sections 55.306 and 55.307.
677-14 (b) The commission is granted all necessary jurisdiction to
677-15 adopt rules required by this subchapter and to enforce those rules
677-16 and this subchapter.
677-17 (c) The commission may notify customers of their rights
677-18 under the rules.
677-19 Sec. 55.303. VERIFICATION OF CARRIER-INITIATED CHANGE.
677-20 (a) A telecommunications utility may verify a carrier-initiated
677-21 change order by:
677-22 (1) obtaining written authorization from the customer;
677-23 (2) obtaining a toll-free electronic authorization
677-24 placed from the telephone number that is the subject of the change
677-25 order; or
677-26 (3) an oral authorization obtained by an independent
678-1 third party.
678-2 (b) In addition to the methods provided by Subsection (a), a
678-3 telecommunications utility may verify a carrier-initiated change
678-4 order by mailing to the customer an information package that is
678-5 consistent with the requirements of 47 C.F.R. Section 64.1100(d)
678-6 and that contains a postage-prepaid postcard or mailer. The change
678-7 is considered verified if the telecommunications utility does not
678-8 receive a cancellation of the change order from the customer within
678-9 14 days after the date of the mailing.
678-10 Sec. 55.304. CUSTOMER-INITIATED CHANGE. (a) A
678-11 telecommunications utility to whom a customer has changed its
678-12 service on the initiative of the customer shall maintain a record
678-13 of nonpublic customer-specific information that could be used to
678-14 establish that the customer authorized the change.
678-15 (b) Notwithstanding Subsection (a), if the Federal
678-16 Communications Commission requires verification, the
678-17 telecommunications utility shall use the verification methods
678-18 required by the Federal Communications Commission.
678-19 Sec. 55.305. UNAUTHORIZED CHANGE. (a) If a change in the
678-20 selection of a customer's telecommunications utility is not made or
678-21 verified in accordance with this subchapter, the change, on request
678-22 by the customer, shall be reversed within a period established by
678-23 commission ruling.
678-24 (b) A telecommunications utility that initiates an
678-25 unauthorized customer change shall:
678-26 (1) pay all usual and customary charges associated
679-1 with returning the customer to its original telecommunications
679-2 utility;
679-3 (2) pay the telecommunications utility from which the
679-4 customer was changed any amount paid by the customer that would
679-5 have been paid to that telecommunications utility if the
679-6 unauthorized change had not been made;
679-7 (3) return to the customer any amount paid by the
679-8 customer that exceeds the charges that would have been imposed for
679-9 identical services by the telecommunications utility from which the
679-10 customer was changed if the unauthorized change had not been made;
679-11 and
679-12 (4) provide to the original telecommunications utility
679-13 from which the customer was changed all billing records to enable
679-14 that telecommunications utility to comply with this subchapter.
679-15 (c) The telecommunications utility from which the customer
679-16 was changed shall provide to the customer all benefits associated
679-17 with the service on receipt of payment for service provided during
679-18 the unauthorized change.
679-19 Sec. 55.306. CORRECTIVE ACTION AND PENALTIES. (a) If the
679-20 commission finds that a telecommunications utility has repeatedly
679-21 violated the commission's telecommunications utility selection
679-22 rules, the commission shall order the utility to take corrective
679-23 action as necessary. In addition, the utility may be subject to
679-24 administrative penalties under Sections 15.023-15.027.
679-25 (b) An administrative penalty collected under this section
679-26 shall be used to enforce this subchapter.
680-1 Sec. 55.307. REPEATED AND RECKLESS VIOLATION. If the
680-2 commission finds that a telecommunications utility has repeatedly
680-3 and recklessly violated the commission's telecommunications utility
680-4 selection rules, the commission may, if consistent with the public
680-5 interest, suspend, restrict, or revoke the registration or
680-6 certificate of the telecommunications utility and, by taking that
680-7 action, deny the telecommunications utility the right to provide
680-8 service in this state.
680-9 (d) Sections 1 and 2, Chapter 919, Acts of the 75th
680-10 Legislature, Regular Session, 1997, are repealed.
680-11 SECTION 18.05. (a) Section 55.103, Utilities Code, is
680-12 amended to conform to Section 1, Chapter 1402, Acts of the 75th
680-13 Legislature, Regular Session, 1997, and to more closely conform to
680-14 the law from which that section was derived, to read as follows:
680-15 Sec. 55.103. PROVISION OF SERVICE. (a) A
680-16 telecommunications utility [or commercial mobile service provider]
680-17 may offer caller identification services under this subchapter only
680-18 if the utility [or provider] obtains written authorization from the
680-19 commission.
680-20 (b) A commercial mobile service provider may offer caller
680-21 identification services in accordance with Sections 55.104, 55.105,
680-22 55.106, 55.1065, and 55.107.
680-23 (b) Section 55.105, Utilities Code, is amended to conform to
680-24 Section 1, Chapter 1402, Acts of the 75th Legislature, Regular
680-25 Session, 1997, to read as follows:
680-26 Sec. 55.105. PER-CALL BLOCKING. Except as provided by
681-1 Section 55.1065, the [The] commission shall require that a provider
681-2 of caller identification service offer free per-call blocking to
681-3 each telephone subscriber in the specific area in which the service
681-4 is offered.
681-5 (c) Section 55.106(a), Utilities Code, is amended to conform
681-6 to Section 1, Chapter 1402, Acts of the 75th Legislature, Regular
681-7 Session, 1997, to read as follows:
681-8 (a) Except as provided by Section 55.1065, the [The]
681-9 commission shall require that a provider of caller identification
681-10 service offer free per-line blocking to a particular customer if
681-11 the commission receives from the customer written certification
681-12 that the customer has a compelling need for per-line blocking.
681-13 (d) Subchapter E, Chapter 55, Utilities Code, is amended to
681-14 conform to Section 1, Chapter 1402, Acts of the 75th Legislature,
681-15 Regular Session, 1997, by adding Section 55.1065 to read as
681-16 follows:
681-17 Sec. 55.1065. USE OF BLOCKING BY TELEPHONE SOLICITOR.
681-18 (a) A telephone solicitor may not use any method, including
681-19 per-call blocking or per-line blocking, that prevents caller
681-20 identification information for the telephone solicitor's lines used
681-21 to make consumer telephone calls from being shown by a device
681-22 capable of displaying caller identification information.
681-23 (b) The caller identification information displayed must
681-24 contain a telephone number at which the telephone solicitor may
681-25 receive telephone calls if the telephone solicitor leaves a message
681-26 on a telephone answering device or uses an automated dial
682-1 announcing device that plays a recorded message when a connection
682-2 is completed to a telephone number.
682-3 (c) A telephone solicitor who violates this section is
682-4 subject to an administrative penalty in an amount not to exceed
682-5 $1,000 for each day or portion of a day on which the person uses a
682-6 method prohibited by this section. Section 55.137 applies to the
682-7 imposition of a penalty under this section.
682-8 (d) In this section, "telephone solicitor" and "consumer
682-9 telephone call" have the meanings assigned by Section 37.01,
682-10 Business & Commerce Code.
682-11 (e) Section 55.107, Utilities Code, is amended to conform to
682-12 Section 1, Chapter 1402, Acts of the 75th Legislature, Regular
682-13 Session, 1997, to read as follows:
682-14 Sec. 55.107. LIMITATION ON COMMISSION AUTHORITY. The
682-15 commission may prescribe in relation to blocking only a requirement
682-16 authorized by Sections 55.105, [and] 55.106, and 55.1065.
682-17 (f) Section 55.128, Utilities Code, is amended to conform to
682-18 Section 2, Chapter 1402, Acts of the 75th Legislature, Regular
682-19 Session, 1997, to read as follows:
682-20 Sec. 55.128. DURATION OF RECORDED MESSAGE. A person may not
682-21 use an automated dial announcing device to make for solicitation
682-22 purposes a telephone call in which the device plays a recorded
682-23 message when the connection is completed unless:
682-24 (1) the recorded message is shorter than 30 seconds
682-25 [one minute]; or
682-26 (2) the device has the technical capacity to:
683-1 (A) recognize a telephone answering device on
683-2 the called person's line; and
683-3 (B) terminate the call within 30 seconds [one
683-4 minute].
683-5 (g) Section 55.137, Utilities Code, is amended to conform to
683-6 Section 3, Chapter 1402, Acts of the 75th Legislature, Regular
683-7 Session, 1997, by adding Subsection (f) to read as follows:
683-8 (f) The proceeds of administrative penalties collected under
683-9 this section shall be deposited to the credit of the commission.
683-10 The commission shall use the proceeds to enforce this subchapter.
683-11 (h) Subchapter G, Chapter 55, Utilities Code, is amended to
683-12 conform to Section 4, Chapter 1402, Acts of the 75th Legislature,
683-13 Regular Session, 1997, by adding Section 55.153 to read as follows:
683-14 Sec. 55.153. EDUCATIONAL PROGRAM. (a) In addition to the
683-15 notice required by Section 55.152, the commission shall conduct an
683-16 educational program designed to inform the public of their rights
683-17 under Section 55.151 and Section 37.02, Business & Commerce Code.
683-18 (b) The educational program shall be directed to all
683-19 residential telephone subscribers and shall be conducted at least
683-20 annually if funds are available.
683-21 (i) Sections 1-4, Chapter 1402, Acts of the 75th
683-22 Legislature, Regular Session, 1997, are repealed.
683-23 SECTION 18.06. (a) Section 55.203, Utilities Code, is
683-24 amended to conform to Section 2, Chapter 1186, Acts of the 75th
683-25 Legislature, Regular Session, 1997, to read as follows:
683-26 Sec. 55.203. DIRECTORY PUBLISHED BY PRIVATE PUBLISHER.
684-1 (a) A private for-profit publisher of a residential telephone
684-2 directory that is distributed to the public at minimal or no cost
684-3 shall include in the directory a listing of any toll-free and local
684-4 telephone numbers of:
684-5 (1) state agencies;
684-6 (2) state public services; and
684-7 (3) each state elected official who represents all or
684-8 part of the geographical area for which the directory contains
684-9 listings.
684-10 (b) The listing required by this section[:]
684-11 [(1)] must be:
684-12 (1) [(A)] clearly identified; and
684-13 (2) [(B)] located or clearly referenced at the front
684-14 of the directory before the main listing of residential and
684-15 business telephone numbers[; and]
684-16 [(2) is not required to exceed a length equivalent to
684-17 two 8-1/2-inch by 11-inch pages, single-spaced in eight-point
684-18 type].
684-19 (c) The commission by rule may specify:
684-20 (1) the format of the listing; and
684-21 (2) criteria for inclusion of agencies, services, and
684-22 officials.
684-23 (d) The commission's rules must require a publisher to list:
684-24 (1) the telephone number for state government
684-25 information; and
684-26 (2) telephone numbers alphabetically by:
685-1 (A) the subject matter of agency programs; and
685-2 (B) agency name.
685-3 (e) The commission, with the cooperation of other state
685-4 agencies, shall:
685-5 (1) compile relevant information to ensure accuracy of
685-6 information in the listing; and
685-7 (2) provide the information to a telecommunications
685-8 utility or telephone directory publisher within a reasonable time
685-9 after a request by the utility or publisher.
685-10 (f) The General Services Commission shall cooperate with the
685-11 commission and with publishers to ensure that the subject matter
685-12 listing of programs and telephone numbers in the telephone
685-13 directories are consistent with the categorization developed by the
685-14 Records Management Interagency Coordinating Council under Section
685-15 441.053, Government Code.
685-16 (b) Section 2, Chapter 1186, Acts of the 75th Legislature,
685-17 Regular Session, 1997, is repealed.
685-18 SECTION 18.07. (a) Section 55.252(a), Utilities Code, is
685-19 amended to conform to Section 12.21, Chapter 165, Acts of the 75th
685-20 Legislature, Regular Session, 1997, to read as follows:
685-21 (a) This section applies only to a telecommunications
685-22 utility that transports or provides an intrastate 900 service that
685-23 is:
685-24 (1) covered by a contract authorized by Chapter 76 or
685-25 508, Government Code[, or Section 28, Article 42.18, Code of
685-26 Criminal Procedure]; and
686-1 (2) used by a defendant under the supervision of a
686-2 community supervision and corrections department or the pardons and
686-3 paroles division of the Texas Department of Criminal Justice to:
686-4 (A) pay a fee or cost; or
686-5 (B) comply with telephone reporting
686-6 requirements.
686-7 (b) Section 12.21, Chapter 165, Acts of the 75th
686-8 Legislature, Regular Session, 1997, is repealed.
686-9 SECTION 18.08. (a) Section 56.021, Utilities Code, is
686-10 amended to conform to Section 4, Chapter 149, Acts of the 75th
686-11 Legislature, Regular Session, 1997, to read as follows:
686-12 Sec. 56.021. UNIVERSAL SERVICE FUND ESTABLISHED. The
686-13 commission shall adopt and enforce rules requiring local exchange
686-14 companies to establish a universal service fund to:
686-15 (1) assist local exchange companies in providing basic
686-16 local telecommunications service at reasonable rates in high cost
686-17 rural areas;
686-18 (2) reimburse local exchange companies for revenue
686-19 lost by providing tel-assistance service under Subchapter C;
686-20 (3) reimburse the telecommunications carrier that
686-21 provides the statewide telecommunications relay access service
686-22 under Subchapter D; [and]
686-23 (4) finance the specialized telecommunications device
686-24 assistance program established under Subchapter E; and
686-25 (5) reimburse the department, the Texas Commission for
686-26 the Deaf and Hard of Hearing, and the commission for costs incurred
687-1 in implementing this chapter and Chapter 57.
687-2 (b) Section 56.110(a), Utilities Code, is amended to conform
687-3 to Section 3, Chapter 149, Acts of the 75th Legislature, Regular
687-4 Session, 1997, to read as follows:
687-5 (a) An advisory committee to assist the commission in
687-6 administering this subchapter is composed of the following persons
687-7 appointed by the commission:
687-8 (1) one [two] deaf person [persons] recommended by the
687-9 Texas Deaf Caucus;
687-10 (2) one deaf person recommended by the Texas
687-11 Association of the Deaf;
687-12 (3) [(2)] one person with a hearing impairment
687-13 recommended by Self-Help for the Hard of Hearing;
687-14 (4) [(3)] one person with a hearing impairment
687-15 recommended by the American Association of Retired Persons;
687-16 (5) [(4)] one deaf and blind person recommended by the
687-17 Texas Deaf/Blind Association;
687-18 (6) [(5)] one person with a speech impairment and one
687-19 person with a speech and hearing impairment recommended by the
687-20 Coalition of Texans with Disabilities;
687-21 (7) [(6)] two representatives of telecommunications
687-22 utilities, one representing a nonlocal exchange utility and one
687-23 representing a local exchange company, chosen from a list of
687-24 candidates provided by the Texas Telephone Association;
687-25 (8) [(7)] two persons, at least one of whom is deaf,
687-26 with experience in providing relay services recommended by the
688-1 Texas Commission for the Deaf and Hard of Hearing; and
688-2 (9) [(8)] two public members recommended by
688-3 organizations representing consumers of telecommunications
688-4 services.
688-5 (c) Section 56.111, Utilities Code, is amended to conform
688-6 to Section 3, Chapter 149, Acts of the 75th Legislature, Regular
688-7 Session, 1997, to read as follows:
688-8 Sec. 56.111. ADVISORY COMMITTEE DUTIES. The advisory
688-9 committee shall:
688-10 (1) monitor the establishment, administration, and
688-11 promotion of the statewide telecommunications relay access service;
688-12 [and]
688-13 (2) advise the commission in pursuing a service that
688-14 meets the needs of persons with an impairment of hearing or speech
688-15 in communicating with other telecommunications services users; and
688-16 (3) advise the commission and the Texas Commission for
688-17 the Deaf and Hard of Hearing, at the request of either commission,
688-18 regarding any issue related to the specialized telecommunications
688-19 device assistance program established under Subchapter E,
688-20 including:
688-21 (A) devices suitable to meet the needs of the
688-22 hearing-impaired and speech-impaired in communicating with other
688-23 users of telecommunications services; and
688-24 (B) oversight and administration of the program.
688-25 (d) Section 56.112(b), Utilities Code, is amended to
688-26 conform to Section 3, Chapter 149, Acts of the 75th Legislature,
689-1 Regular Session, 1997, to read as follows:
689-2 (b) The [commission's] costs associated with the advisory
689-3 committee shall be reimbursed from the universal service fund.
689-4 (e) Chapter 56, Utilities Code, is amended to conform to
689-5 Section 1, Chapter 149, Acts of the 75th Legislature, Regular
689-6 Session, 1997, by adding Subchapter E to read as follows:
689-7 SUBCHAPTER E. SPECIALIZED TELECOMMUNICATIONS DEVICE
689-8 ASSISTANCE PROGRAM
689-9 Sec. 56.151. SPECIALIZED TELECOMMUNICATIONS DEVICE
689-10 ASSISTANCE PROGRAM. The commission and the Texas Commission for
689-11 the Deaf and Hard of Hearing by rule shall establish a program to
689-12 provide financial assistance to certain individuals who are deaf or
689-13 have an impairment of hearing or speech to enable the individuals
689-14 to purchase specialized equipment to provide telephone network
689-15 access that is functionally equivalent to that enjoyed by
689-16 individuals without an impairment of hearing or speech.
689-17 Sec. 56.152. ELIGIBILITY. The Texas Commission for the Deaf
689-18 and Hard of Hearing by rule shall prescribe eligibility standards
689-19 for deaf individuals and individuals who have an impairment of
689-20 hearing or speech to receive an assistance voucher under the
689-21 program. To be eligible, an individual must be a resident of this
689-22 state who has access to a telephone line in the individual's home
689-23 or place of business.
689-24 Sec. 56.153. VOUCHERS. (a) The Texas Commission for the
689-25 Deaf and Hard of Hearing shall determine a reasonable price for a
689-26 basic telecommunications device for the deaf (TDD or TTY) and
690-1 distribute to each eligible applicant a voucher that guarantees
690-2 payment of that amount to a distributor of new specialized
690-3 telecommunications devices.
690-4 (b) A voucher must have the value printed on its face. The
690-5 individual exchanging a voucher for the purchase of a specialized
690-6 telecommunications device is responsible for payment of the
690-7 difference between the voucher's value and the price of the device.
690-8 (c) The commission and the Texas Commission for the Deaf and
690-9 Hard of Hearing by rule shall provide that a distributor will
690-10 receive not more than the full price of a specialized
690-11 telecommunications device if the recipient of a voucher exchanges
690-12 the voucher for a device that the distributor sells for less than
690-13 the voucher's value.
690-14 (d) An individual who has exchanged a voucher for a
690-15 specialized telecommunications device is not eligible to receive
690-16 another voucher before the seventh anniversary of the date the
690-17 individual exchanged the previously issued voucher. An individual
690-18 is not eligible for a voucher if the Texas Commission for the Deaf
690-19 and Hard of Hearing has issued a voucher to another individual in
690-20 the individual's household for a device to serve the same telephone
690-21 line.
690-22 (e) The Texas Commission for the Deaf and Hard of Hearing
690-23 shall:
690-24 (1) process each application for a voucher to
690-25 determine eligibility of the applicant; and
690-26 (2) give each eligible applicant a voucher on payment
691-1 of a $35 fee.
691-2 (f) The Texas Commission for the Deaf and Hard of Hearing
691-3 shall maintain a record regarding each individual who receives a
691-4 voucher under the program.
691-5 (g) The Texas Commission for the Deaf and Hard of Hearing
691-6 shall deposit money collected under the program to the credit of
691-7 the universal service fund.
691-8 Sec. 56.154. COMMISSION DUTIES. (a) Not later than the
691-9 45th day after the date the commission receives a voucher a
691-10 telecommunications device distributor presents for payment, the
691-11 commission shall pay to the distributor the lesser of the value of
691-12 a voucher properly exchanged for a specialized telecommunications
691-13 device or the full price of the device for which a voucher
691-14 recipient exchanges the voucher. The payments must be made from
691-15 the universal service fund.
691-16 (b) The commission may investigate whether the presentation
691-17 of a voucher for payment represents a valid transaction for a
691-18 telecommunications device under the program. The Texas Commission
691-19 for the Deaf and Hard of Hearing shall cooperate with and assist
691-20 the commission in an investigation under this subsection.
691-21 Sec. 56.155. RECOVERY OF SPECIALIZED TELECOMMUNICATIONS
691-22 DEVICE ASSISTANCE PROGRAM SURCHARGE. (a) The commission shall
691-23 allow a telecommunications utility to recover the universal service
691-24 fund assessment related to the specialized telecommunications
691-25 device assistance program through a surcharge added to the
691-26 utility's customers' bills.
692-1 (b) The commission shall specify how each utility must
692-2 determine the amount of the surcharge and by rule shall prohibit a
692-3 utility from recovering an aggregation of more than 12 months of
692-4 assessments in a single surcharge. The rules must require a
692-5 utility to apply for approval of a surcharge before the 91st day
692-6 after the date the period during which the aggregated surcharges
692-7 were assessed closes.
692-8 (c) If a utility chooses to impose the surcharge, the
692-9 utility shall include the surcharge in the "universal service fund
692-10 surcharge" listing as provided by Section 56.107.
692-11 (f) Sections 1-4, Chapter 149, Acts of the 75th Legislature,
692-12 Regular Session, 1997, are repealed.
692-13 SECTION 18.09. (a) Section 57.042, Utilities Code, is
692-14 amended to conform to Section 1, Chapter 145, Acts of the 75th
692-15 Legislature, Regular Session, 1997, by amending Subdivision (8) and
692-16 adding Subdivisions (9) and (10) to read as follows:
692-17 (8) "Public school" means a public elementary or
692-18 secondary school, including an open-enrollment charter school, a
692-19 home-rule school district school, and a school with a campus or
692-20 campus program charter.
692-21 (9) "Taxable telecommunications receipts" means
692-22 taxable telecommunications receipts reported under Chapter 151, Tax
692-23 Code.
692-24 (10) "Telemedicine":
692-25 (A) means medical services delivered by
692-26 telecommunications technologies to rural or underserved public
693-1 not-for-profit health care facilities or primary health care
693-2 facilities in collaboration with an academic health center and an
693-3 associated teaching hospital or tertiary center; and
693-4 (B) includes consultive services, diagnostic
693-5 services, interactive video consultation, teleradiology,
693-6 telepathology, and distance education for working health care
693-7 professionals.
693-8 (b) Section 57.043, Utilities Code, is amended to conform to
693-9 Section 2, Chapter 145, Acts of the 75th Legislature, Regular
693-10 Session, 1997, to read as follows:
693-11 Sec. 57.043. TELECOMMUNICATIONS INFRASTRUCTURE FUND AND
693-12 ACCOUNTS. (a) The telecommunications infrastructure fund is
693-13 composed of the public schools [telecommunications utilities]
693-14 account and the qualifying entities [commercial mobile service
693-15 providers] account.
693-16 (b) The public schools account and qualifying entities
693-17 account are [The telecommunications utilities account is] financed
693-18 by an annual assessment imposed as prescribed by Section 57.048 on
693-19 each telecommunications utility and commercial mobile service
693-20 provider doing business in this state. [A telecommunications
693-21 utility shall pay the annual assessment according to the ratio that
693-22 the annual taxable telecommunications receipts reported by that
693-23 telecommunications utility under Chapter 151, Tax Code, bears to
693-24 the total annual taxable telecommunications receipts reported by
693-25 all telecommunications utilities under that chapter.]
693-26 (c) [The commercial mobile service providers account is
694-1 financed by an annual assessment on each commercial mobile service
694-2 provider doing business in this state. Each commercial mobile
694-3 service provider shall pay the annual assessment according to the
694-4 ratio that the annual taxable telecommunications receipts reported
694-5 by that provider under Chapter 151, Tax Code, bears to the total
694-6 annual taxable telecommunications receipts reported by all
694-7 commercial mobile service providers under that chapter.]
694-8 [(d)] Money in the fund may be appropriated only for a use
694-9 consistent with the purposes of this subchapter.
694-10 (c) Section 57.045(d), Utilities Code, is amended to conform
694-11 to Section 2, Chapter 145, Acts of the 75th Legislature, Regular
694-12 Session, 1997, to read as follows:
694-13 (d) The board may:
694-14 (1) enter into contracts with state agencies or
694-15 private entities necessary to perform the board's duties;
694-16 (2) adopt rules as necessary to administer this
694-17 subchapter;
694-18 (3) employ personnel reasonably necessary to perform
694-19 duties delegated by the board;
694-20 (4) [(3)] appoint one or more committees to assist the
694-21 board in performing the board's duties; and
694-22 (5) [(4)] accept a gift or grant and use it for the
694-23 purposes of this subchapter.
694-24 (d) Subchapter C, Chapter 57, Utilities Code, is amended to
694-25 conform to Section 2, Chapter 145, Acts of the 75th Legislature,
694-26 Regular Session, 1997, by adding Section 57.0455 to read as
695-1 follows:
695-2 Sec. 57.0455. MASTER PLAN FOR INFRASTRUCTURE DEVELOPMENT.
695-3 (a) The board shall adopt a master plan for infrastructure
695-4 development. The plan must:
695-5 (1) cover a five-year period;
695-6 (2) be updated annually; and
695-7 (3) describe the project, timeline, and resource
695-8 allocation targets for each year included in the plan.
695-9 (b) The board shall publish each proposed amendment to the
695-10 plan and each proposed annual update in the Texas Register in
695-11 accordance with Subchapter B, Chapter 2002, Government Code.
695-12 (e) Section 57.046, Utilities Code, is amended to conform to
695-13 Section 2, Chapter 145, Acts of the 75th Legislature, Regular
695-14 Session, 1997, to read as follows:
695-15 Sec. 57.046. USE OF ACCOUNTS. (a) The board shall use
695-16 money in the public schools [telecommunications utilities] account
695-17 to award grants and loans in accordance with this subchapter to
695-18 fund:
695-19 (1) [purchases of] equipment for public schools,
695-20 including computers, printers, computer labs, and video equipment;
695-21 and
695-22 (2) intracampus and intercampus wiring to enable those
695-23 public schools to use the equipment.
695-24 (b) The board shall use money in the qualifying entities
695-25 [commercial mobile service providers] account for any purpose
695-26 authorized by this subchapter, including:
696-1 (1) equipment [purchases];
696-2 (2) wiring;
696-3 (3) material;
696-4 (4) program development;
696-5 (5) training;
696-6 (6) installation costs; and
696-7 (7) a statewide telecommunications network.
696-8 (f) Section 57.047, Utilities Code, is amended to conform to
696-9 Section 2, Chapter 145, Acts of the 75th Legislature, Regular
696-10 Session, 1997, by amending Subsection (e) and adding Subsection (f)
696-11 to read as follows:
696-12 (e) If a board member is an employee of an entity that
696-13 applies for a grant or loan under this subchapter, the board
696-14 member, before a vote on the grant or loan, shall disclose the fact
696-15 of the member's employment. The disclosure must be entered into
696-16 the minutes of the meeting. The board member may not vote on or
696-17 otherwise participate in the awarding of the grant or loan. If the
696-18 board member does not comply with this subsection, the entity is
696-19 not eligible for the grant or loan.
696-20 (f) A grant or loan awarded under this section is subject to
696-21 the limitations prescribed by Section 57.046.
696-22 (g) Subchapter C, Chapter 57, Utilities Code, is amended to
696-23 conform to Section 2, Chapter 145, Acts of the 75th Legislature,
696-24 Regular Session, 1997, by amending Section 57.048 and adding
696-25 Section 57.0485 to read as follows:
696-26 Sec. 57.048. ASSESSMENTS AND COLLECTIONS. (a) An annual
697-1 assessment is imposed on each telecommunications utility and each
697-2 commercial mobile service provider doing business in this state.
697-3 (b) The assessment is imposed at the rate of 1.25 percent of
697-4 the taxable telecommunications receipts of the telecommunications
697-5 utility or commercial mobile service provider, subject to this
697-6 section.
697-7 (c) The total amount deposited to the credit of the fund,
697-8 excluding interest and loan repayments, may not exceed $1.5
697-9 billion. Not later than August 31 of each year, the comptroller
697-10 shall determine the total amount, excluding interest and loan
697-11 repayments, that has been deposited to the credit of the fund
697-12 during that fiscal year and the preceding fiscal years. If the
697-13 comptroller determines that a total of $1.2 billion or more,
697-14 excluding interest and loan repayments, has been deposited to the
697-15 credit of the fund, the comptroller shall impose the assessment
697-16 during the next fiscal year at a rate that the comptroller
697-17 estimates is sufficient to produce the amount necessary to result
697-18 in the deposit in the fund of a total of not more than $1.5
697-19 billion, excluding interest and loan repayments.
697-20 (d) The comptroller may not collect the assessment during a
697-21 fiscal year if the comptroller determines after the yearly review
697-22 that the total amount deposited to the credit of the fund during
697-23 that fiscal year and the preceding fiscal years is $1.49 billion or
697-24 more, excluding interest and loan repayments, and it is not
697-25 possible to impose the assessment during the next fiscal year at a
697-26 practical rate without collecting more than a total of $1.5
698-1 billion, excluding interest and loan repayments.
698-2 (e) [For each fiscal year beginning before September 1,
698-3 2005, the comptroller shall assess and collect an annual total of
698-4 $75 million from telecommunications utilities and an annual total
698-5 of $75 million from commercial mobile service providers.]
698-6 [(b) The comptroller shall assess and collect the money
698-7 each year without respect to whether the money previously collected
698-8 and deposited in either account has been disbursed or spent.]
698-9 [(c)] The comptroller may require a telecommunications
698-10 utility or commercial mobile service provider to provide any report
698-11 or information necessary to fulfill the comptroller's duties under
698-12 this section. Information provided to the comptroller under this
698-13 section is confidential and exempt from disclosure under Chapter
698-14 552, Government Code.
698-15 Sec. 57.0485. ACCOUNTS. (a) The comptroller shall deposit
698-16 50 percent of the money [(d) Money] collected by the comptroller
698-17 [from a telecommunications utility] under Section 57.048 [this
698-18 section shall be deposited] to the credit of the public schools
698-19 [telecommunications utilities] account in the fund. The
698-20 comptroller shall deposit the remainder of the money collected by
698-21 the comptroller under Section 57.048 to the credit of the
698-22 qualifying entities account in the fund.
698-23 (b) Interest earned on money in an account shall be
698-24 deposited to the credit of that account.
698-25 [(e) Money collected by the comptroller from a commercial
698-26 mobile service provider under this section shall be deposited to
699-1 the credit of the commercial mobile service providers account in
699-2 the fund.]
699-3 (h) Sections 1 and 2, Chapter 145, Acts of the 75th
699-4 Legislature, Regular Session, 1997, are repealed.
699-5 SECTION 18.10. (a) Section 57.051, Utilities Code, is
699-6 amended to conform to Section 3.02, Chapter 1169, Acts of the 75th
699-7 Legislature, Regular Session, 1997, to read as follows:
699-8 Sec. 57.051. SUNSET PROVISION. The Telecommunications
699-9 Infrastructure Fund Board [board] is subject to Chapter 325,
699-10 Government Code (Texas Sunset Act). Unless continued in existence
699-11 as provided by that chapter, the board is abolished and this
699-12 subchapter expires September 1, 2005 [2006].
699-13 (b) Section 3.02, Chapter 1169, Acts of the 75th
699-14 Legislature, Regular Session, 1997, is repealed.
699-15 SECTION 18.11. Section 58.024(c), Utilities Code, is amended
699-16 to correct a cross-reference to read as follows:
699-17 (c) The commission may not reclassify a service until each
699-18 competitive safeguard prescribed by Subchapters B-H [B-G], Chapter
699-19 60, is fully implemented.
699-20 SECTION 18.12. (a) Sections 121.201(a) and (b), Utilities
699-21 Code, are amended to conform to Section 1, Chapter 950, Acts of the
699-22 75th Legislature, Regular Session, 1997, to read as follows:
699-23 (a) The railroad commission by rule may:
699-24 (1) adopt safety standards for the transportation of
699-25 gas and for gas pipeline facilities;
699-26 (2) require record maintenance and reports;
700-1 (3) inspect records and facilities to determine
700-2 compliance with adopted safety standards; [and]
700-3 (4) make certifications and reports;
700-4 (5) seek designation by the United States secretary of
700-5 transportation as an agent to conduct safety inspections of
700-6 interstate gas pipeline facilities located in this state; and
700-7 (6) take any other requisite action in accordance with
700-8 49 U.S.C. Section 60101 et seq. [Chapter 601, Title 49, United
700-9 States Code (49 U.S.C. Section 60101 et seq.)], or a succeeding
700-10 law.
700-11 (b) The power granted by Subsection (a) does not apply to
700-12 the transportation of gas or to gas facilities subject to the
700-13 exclusive control of the United States but applies to the
700-14 transportation of gas and gas pipeline facilities in this state to
700-15 the maximum degree permissible under 49 U.S.C. Section 60101 et
700-16 seq. [Chapter 601, Title 49, United States Code (49 U.S.C. Section
700-17 60101 et seq.)], or a succeeding law.
700-18 (b) Subchapter E, Chapter 121, Utilities Code, is amended to
700-19 conform to Section 2, Chapter 950, Acts of the 75th Legislature,
700-20 Regular Session, 1997, by adding Section 121.2015 to read as
700-21 follows:
700-22 Sec. 121.2015. REQUIRED SAFETY RULES. The railroad
700-23 commission shall adopt rules regarding:
700-24 (1) public education and awareness relating to gas
700-25 pipeline facilities; and
700-26 (2) community liaison for responding to an emergency
701-1 relating to a gas pipeline facility.
701-2 (c) Sections 1 and 2, Chapter 950, Acts of the 75th
701-3 Legislature, Regular Session, 1997, are repealed.
701-4 SECTION 18.13. (a) Chapter 121, Utilities Code, is amended
701-5 to codify Article 6053-4, Revised Statutes, by adding Subchapter I
701-6 to read as follows:
701-7 SUBCHAPTER I. SOUR GAS PIPELINE FACILITIES
701-8 Sec. 121.451. DEFINITIONS. In this subchapter:
701-9 (1) "Affected party" means the owner or occupant of
701-10 real property located in the radius of exposure, as computed in
701-11 accordance with a methodology approved by the railroad commission,
701-12 of the proposed route of a sour gas pipeline facility.
701-13 (2) "Construction" includes any activity conducted
701-14 during the initial construction of a pipeline, including the
701-15 removal of earth, vegetation, or obstructions along the proposed
701-16 pipeline right-of-way. The term does not include:
701-17 (A) surveying or acquiring the right-of-way; or
701-18 (B) clearing the right-of-way with the consent
701-19 of the owner.
701-20 (3) "Low-pressure gathering system" means a pipeline
701-21 that operates at a working pressure of less than 50 pounds per
701-22 square inch.
701-23 (4) "Sour gas pipeline facility" means a pipeline
701-24 facility that contains a concentration of 100 parts per million or
701-25 more of hydrogen sulfide.
701-26 Sec. 121.452. APPLICABILITY. This subchapter does not apply
702-1 to:
702-2 (1) an extension of an existing sour gas pipeline
702-3 facility that is in compliance with the railroad commission's rules
702-4 for oil, gas, or geothermal resource operation in a hydrogen
702-5 sulfide area if:
702-6 (A) the extension is not longer than five miles;
702-7 (B) the nominal pipe size is not larger than six
702-8 inches in diameter; and
702-9 (C) the railroad commission is given notice of
702-10 the construction of the extension not later than 24 hours before
702-11 the start of construction;
702-12 (2) a new or an extension of a low-pressure gathering
702-13 system; or
702-14 (3) an interstate gas pipeline facility, as defined by
702-15 49 U.S.C. Section 60101, that is used for the transportation of
702-16 sour gas.
702-17 Sec. 121.453. PERMIT APPLICATION. (a) A person may not
702-18 begin construction of a sour gas pipeline facility before the
702-19 person obtains from the railroad commission a permit to construct
702-20 the facility.
702-21 (b) An applicant for a permit to construct a sour gas
702-22 pipeline facility must:
702-23 (1) publish notice of the application in a form
702-24 determined by the railroad commission in a newspaper of general
702-25 circulation in each county that contains part of the proposed route
702-26 of the sour gas pipeline facility; and
703-1 (2) provide a copy of the application to the county
703-2 clerk of each county that contains part of the proposed route.
703-3 Sec. 121.454. RAILROAD COMMISSION APPROVAL OR DENIAL.
703-4 (a) The railroad commission by order may approve an application
703-5 for a permit to construct a sour gas pipeline facility if the
703-6 railroad commission finds that the materials to be used in and
703-7 method of construction and operation of the facility comply with
703-8 the rules and safety standards adopted by the railroad commission.
703-9 (b) The railroad commission may issue an order under this
703-10 section without holding a hearing unless an affected party files a
703-11 written protest with the railroad commission not later than the
703-12 30th day after the date notice is published under Section 121.453.
703-13 If an affected party files a written protest, the railroad
703-14 commission shall:
703-15 (1) hold a hearing not later than the 60th day after
703-16 the date the protest is filed; and
703-17 (2) issue an order:
703-18 (A) approving the permit application; or
703-19 (B) denying the application and stating the
703-20 reasons for the denial.
703-21 (b) Section 121.206(a), Utilities Code, is amended to
703-22 conform to Section 2, Chapter 675, Acts of the 75th Legislature,
703-23 Regular Session, 1997, to read as follows:
703-24 (a) The railroad commission may assess an administrative
703-25 penalty against a person who violates Section 121.201 or Subchapter
703-26 I or a safety standard or rule relating to the transportation of
704-1 gas and gas pipeline facilities adopted under those provisions
704-2 [that section].
704-3 (c) Article 6053-4, Revised Statutes, and Section 2, Chapter
704-4 675, Acts of the 75th Legislature, Regular Session, 1997, are
704-5 repealed.
704-6 SECTION 18.14. (a) Chapter 121, Utilities Code, is amended
704-7 to codify Article 6053-2a, Revised Statutes, by adding Subchapter J
704-8 to read as follows:
704-9 SUBCHAPTER J. TESTING OF NATURAL GAS PIPING SYSTEMS IN
704-10 SCHOOL DISTRICT FACILITIES
704-11 Sec. 121.501. DEFINITION. In this subchapter, "supplier"
704-12 means an individual or company that sells and delivers natural gas
704-13 to a school district facility. If more than one individual or
704-14 company sells and delivers natural gas to a facility of a school
704-15 district, each individual or company is a supplier for purposes of
704-16 this subchapter.
704-17 Sec. 121.502. DUTY TO PRESSURE TEST. (a) Each school
704-18 district shall perform biennial pressure tests on the natural gas
704-19 piping system in each school district facility. The school
704-20 district shall perform the tests before the beginning of the school
704-21 year.
704-22 (b) The school district may perform the tests on a two-year
704-23 cycle under which the district pressure tests the natural gas
704-24 piping system in approximately one-half of the facilities each
704-25 year.
704-26 (c) If a school district operates one or more school
705-1 district facilities on a year-round calendar, the pressure test in
705-2 each of those facilities must be conducted and reported not later
705-3 than July 1 of the year in which the pressure test is performed.
705-4 (d) A test performed under a municipal code satisfies the
705-5 pressure testing requirements prescribed by this section.
705-6 Sec. 121.503. REQUIREMENTS OF TEST. (a) The school
705-7 district shall perform the pressure test to determine whether the
705-8 natural gas piping downstream of the school district's meter holds
705-9 at least normal operating pressure over a specified period
705-10 determined by the railroad commission.
705-11 (b) During the pressure test, each system supply inlet and
705-12 outlet in the facility must be closed.
705-13 (c) At the request of a school district, the railroad
705-14 commission shall assist the district in developing a procedure for
705-15 conducting the test.
705-16 Sec. 121.504. NOTICE OF TEST. (a) A school district shall
705-17 provide written notice to the district's natural gas supplier
705-18 specifying the date and result of each pressure test or other
705-19 inspection.
705-20 (b) The supplier shall maintain a copy of the notice until
705-21 at least the first anniversary of the date on which the supplier
705-22 received the notice.
705-23 Sec. 121.505. TERMINATION OF SERVICE. A supplier shall
705-24 terminate service to a school district facility if:
705-25 (1) the supplier receives official notification from
705-26 the firm or individual conducting the test of a hazardous natural
706-1 gas leakage in the facility piping system; or
706-2 (2) the district fails to perform a test or other
706-3 inspection at the facility as required by this subchapter.
706-4 Sec. 121.506. REPORT TO BOARD OF TRUSTEES. An identified
706-5 natural gas leakage in a school district facility must be reported
706-6 to the board of trustees of the district in which the facility is
706-7 located.
706-8 Sec. 121.507. ENFORCEMENT. The railroad commission shall
706-9 enforce this subchapter.
706-10 (b) Article 6053-2a, Revised Statutes, is repealed.
706-11 SECTION 18.15. (a) Section 161.121, Utilities Code, is
706-12 amended to conform to Section 4, Chapter 904, Acts of the 75th
706-13 Legislature, Regular Session, 1997, to read as follows:
706-14 Sec. 161.121. GENERAL POWERS. An electric cooperative may:
706-15 (1) sue and be sued in its corporate name;
706-16 (2) adopt and alter a corporate seal and use the seal
706-17 or a facsimile of the seal as required by law;
706-18 (3) acquire, own, hold, maintain, exchange, or use
706-19 property or an interest in property, including plants, buildings,
706-20 works, machinery, supplies, equipment, apparatus, and transmission
706-21 and distribution lines or systems that are necessary, convenient,
706-22 or useful;
706-23 (4) dispose of, mortgage, or lease as lessor any of
706-24 its property or assets;
706-25 (5) borrow money and otherwise contract indebtedness,
706-26 issue obligations for its indebtedness, and secure the payment of
707-1 indebtedness by mortgage, pledge, or deed of trust on any or all of
707-2 its property or revenue;
707-3 (6) accept gifts or grants of money, services, or
707-4 property;
707-5 (7) make any contracts necessary or convenient for the
707-6 exercise of the powers granted by this chapter;
707-7 (8) conduct its business and have offices inside or
707-8 outside this state;
707-9 (9) adopt and amend bylaws not inconsistent with the
707-10 articles of incorporation for the administration and regulation of
707-11 the affairs of the cooperative; and
707-12 (10) perform any other acts for the cooperative or its
707-13 members or for another electric cooperative or its members, and
707-14 exercise any other power, that may be necessary, convenient, or
707-15 appropriate to accomplish the purpose for which the cooperative is
707-16 organized, including other or additional purposes that benefit
707-17 members and nonmembers, either directly or through affiliates,
707-18 described in Section A, Article 2.01, Texas Non-Profit Corporation
707-19 Act (Article 1396-2.01, Vernon's Texas Civil Statutes).
707-20 (b) Section 4, Chapter 904, Acts of the 75th Legislature,
707-21 Regular Session, 1997, is repealed.
707-22 SECTION 18.16. (a) Subchapter B, Chapter 184, Utilities
707-23 Code, is amended to conform to Sections 1 and 2, Chapter 943, Acts
707-24 of the 75th Legislature, Regular Session, 1997, by adding Section
707-25 184.0125 to read as follows:
707-26 Sec. 184.0125. HOUSING FOR OLDER PERSONS. (a) Section
708-1 184.012 does not prohibit a political subdivision from issuing a
708-2 permit for the construction of housing for older persons with 100
708-3 or more dwelling units.
708-4 (b) Before issuing a permit, certificate, or other
708-5 authorization for the construction of housing for older persons, a
708-6 political subdivision shall require that the construction plan
708-7 provide for the requirements prescribed by this section.
708-8 (c) To qualify for the exemption provided by this section,
708-9 the housing, at a minimum, must have:
708-10 (1) significant facilities and services specifically
708-11 designed to meet the physical or social needs of older persons or,
708-12 if the provision of those facilities and services is not
708-13 practicable, the housing must be necessary to provide important
708-14 housing opportunities for older persons;
708-15 (2) at least 80 percent of the dwelling units set
708-16 aside for occupancy by at least one person 55 years of age or older
708-17 in each dwelling unit; and
708-18 (3) policies and procedures that demonstrate an
708-19 intent by the owner or manager to provide housing for persons 55
708-20 years of age or older.
708-21 (d) The owner or manager must adhere to the policies and
708-22 procedures required by Subsection (c)(3).
708-23 (e) In this section, "housing for older persons" means
708-24 housing:
708-25 (1) intended for and solely occupied by persons 62
708-26 years of age or older; or
709-1 (2) intended and operated for occupancy by at least
709-2 one person 55 years of age or older in each dwelling unit.
709-3 (b) Sections 1 and 2, Chapter 943, Acts of the 75th
709-4 Legislature, Regular Session, 1997, are repealed.
709-5 SECTION 18.17. (a) The Utilities Code is amended to codify
709-6 Chapter 1407, Acts of the 75th Legislature, Regular Session, 1997
709-7 (Article 9033, Vernon's Texas Civil Statutes), by adding Title 5 to
709-8 read as follows:
709-9 TITLE 5. PROVISIONS AFFECTING THE OPERATION OF
709-10 UTILITY FACILITIES
709-11 CHAPTER 251. UNDERGROUND FACILITY DAMAGE
709-12 PREVENTION AND SAFETY
709-13 SUBCHAPTER A. GENERAL PROVISIONS
709-14 Sec. 251.001. SHORT TITLE. This chapter may be cited as the
709-15 Underground Facility Damage Prevention and Safety Act.
709-16 Sec. 251.002. DEFINITIONS. In this chapter:
709-17 (1) "Class A underground facility" means an
709-18 underground facility that is used to produce, store, convey,
709-19 transmit, or distribute:
709-20 (A) electrical energy;
709-21 (B) natural or synthetic gas;
709-22 (C) petroleum or petroleum products;
709-23 (D) steam;
709-24 (E) any form of telecommunications service,
709-25 including voice, data, video, or optical transmission, or cable
709-26 television service; or
710-1 (F) any other liquid, material, or product not
710-2 defined as a Class B underground facility.
710-3 (2) "Class B underground facility" means an
710-4 underground facility that is used to produce, store, convey,
710-5 transmit, or distribute:
710-6 (A) water;
710-7 (B) slurry; or
710-8 (C) sewage.
710-9 (3) "Corporation" means the Texas Underground Facility
710-10 Notification Corporation.
710-11 (4) "Damage" means:
710-12 (A) the defacing, scraping, displacement,
710-13 penetration, destruction, or partial or complete severance of an
710-14 underground facility or of any protective coating, housing, or
710-15 other protective device of an underground facility;
710-16 (B) the weakening of structural or lateral
710-17 support of an underground facility; or
710-18 (C) the failure to properly replace the backfill
710-19 covering an underground facility.
710-20 (5) "Excavate" means to use explosives or a motor,
710-21 engine, hydraulic or pneumatically powered tool, or other
710-22 mechanized equipment of any kind and includes auguring,
710-23 backfilling, boring, compressing, digging, ditching, drilling,
710-24 dragging, dredging, grading, mechanical probing, plowing-in,
710-25 pulling-in, ripping, scraping, trenching, and tunneling to remove
710-26 or otherwise disturb soil to a depth of 16 or more inches.
711-1 (6) "Excavator" means a person that excavates or
711-2 intends to excavate in this state.
711-3 (7) "Exploration and production underground facility"
711-4 means an underground facility used by a person producing gas or
711-5 oil, or both, for the production of that gas or oil, including
711-6 facilities used for field separation, treatment, gathering, or
711-7 storage of gas or oil.
711-8 (8) "High speed data transmission" means a method of
711-9 data transmission that does not include facsimile or voice
711-10 transmission.
711-11 (9) "Legal holiday" means a holiday specified as a
711-12 legal holiday by Subchapter B, Chapter 662, Government Code.
711-13 (10) "Mechanized equipment" means equipment operated
711-14 by mechanical power, including a trencher, bulldozer, power shovel,
711-15 auger, backhoe, scraper, drill, cable or pipe plow, and other
711-16 equipment used to plow in or pull in cable or pipe.
711-17 (11) "Operator" means a person that operates an
711-18 underground facility.
711-19 (12) "Secured facility" means a parcel of land used
711-20 for commercial or industrial purposes that is surrounded entirely
711-21 by a fence or other means of preventing access, including a fence
711-22 with one or more gates that are locked at all times or monitored by
711-23 an individual who can prevent unauthorized access.
711-24 (13) "Underground facility" means a line, cable,
711-25 pipeline system, conduit, or structure that is located partially or
711-26 totally underground and that is used to produce, store, convey,
712-1 transmit, or distribute telecommunications, electricity, gas,
712-2 water, sewage, steam, or liquids such as petroleum, petroleum
712-3 products, or hazardous liquids.
712-4 (14) "Saturday notification" means a notice of intent
712-5 to excavate provided by an excavator to a notification center on a
712-6 Saturday before 11:59 a.m.
712-7 (15) "Violation" means a violation of Section 251.151,
712-8 251.152, or 251.159.
712-9 Sec. 251.003. EXEMPTIONS. The following are not subject to
712-10 this chapter as underground facilities:
712-11 (1) an aboveground or underground storage tank, sump,
712-12 or impoundment or piping connected to an aboveground or underground
712-13 storage tank, sump, or impoundment located in the same tract of
712-14 land as the storage tank, sump, or impoundment;
712-15 (2) an underground facility operated by the owner of a
712-16 secured facility and located entirely within the secured facility;
712-17 (3) an underground facility that serves only the owner
712-18 of the underground facility or the owner's tenant and that is
712-19 located solely on the owner's property;
712-20 (4) piping within a well bore;
712-21 (5) the portion of an exploration and production
712-22 underground facility that is located within the boundaries of the
712-23 oil or gas field from which the oil and gas is produced and that is
712-24 not located in the boundaries of an established easement or
712-25 right-of-way granted for the benefit of a governmental entity or a
712-26 private entity if the easement or right-of-way is granted for a
713-1 public purpose; or
713-2 (6) an underground facility that serves a cemetery and
713-3 is located solely on the cemetery's property.
713-4 Sec. 251.004. APPLICATION TO CERTAIN CONTRACTORS AND STATE
713-5 EMPLOYEES. (a) This chapter does not apply to a contractor
713-6 working in the public right-of-way under a contract with the Texas
713-7 Department of Transportation.
713-8 (b) Excavation by an employee of the Texas Department of
713-9 Transportation on a segment of the state highway system is not
713-10 subject to this chapter if the excavation is:
713-11 (1) less than 24 inches in depth; and
713-12 (2) no more than 10 feet from the right-of-way line.
713-13 Sec. 251.005. CONVERSION OF FACILITY OR OPERATOR. (a) An
713-14 operator of an underground facility that is exempted under this
713-15 subchapter may voluntarily convert that facility to a Class A
713-16 underground facility by sending written communication from a
713-17 competent authority of the operator to the corporation advising of
713-18 the status change.
713-19 (b) An operator of a Class B underground facility may
713-20 voluntarily convert to a Class A underground facility operator by
713-21 sending written communication from a competent authority of the
713-22 operator to the corporation advising of the status change.
713-23 Sec. 251.006. COMPLIANCE BY PERMIT HOLDERS. (a) The fact
713-24 that a person has a legal permit, permission from the owner of the
713-25 property or the owner's licensee, or an easement to conduct
713-26 excavation operations does not affect the person's duty to comply
714-1 with this chapter.
714-2 (b) Compliance with this chapter does not affect a person's
714-3 responsibility to obtain a permit required by law.
714-4 Sec. 251.007. FACILITY ON COUNTY OR MUNICIPAL ROAD. This
714-5 chapter does not affect a contractual or statutory right of a
714-6 county or municipality to require an operator to relocate, replace,
714-7 or repair its underground facility.
714-8 Sec. 251.008. EFFECT ON CIVIL REMEDIES. Except as otherwise
714-9 specifically provided by this chapter, this chapter, including
714-10 Section 251.201, does not affect any civil remedy for personal
714-11 injury or for property damage, including any damage to an
714-12 underground facility.
714-13 Sec. 251.009. PROVISION OF GENERAL INFORMATION. At least
714-14 once each calendar year, at intervals not exceeding 15 months, each
714-15 Class A underground facility operator who conveys, transmits, or
714-16 distributes by means of its underground facilities service directly
714-17 to more than one million residential customers within this state
714-18 shall provide all of its residential customers in this state
714-19 general information about excavation activities covered by this
714-20 chapter and the statewide toll-free telephone number established by
714-21 the corporation.
714-22 (Sections 251.010-251.050 reserved for expansion
714-23 SUBCHAPTER B. TEXAS UNDERGROUND FACILITY NOTIFICATION
714-24 CORPORATION
714-25 Sec. 251.051. PURPOSE. The Texas Underground Facility
714-26 Notification Corporation provides statewide notification services
715-1 under this chapter.
715-2 Sec. 251.052. NONPROFIT CORPORATION. The corporation is a
715-3 public nonprofit corporation and has all the powers and duties
715-4 incident to a nonprofit corporation under the Texas Non-Profit
715-5 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
715-6 Statutes), except that the corporation:
715-7 (1) may not make donations for the public welfare or
715-8 for charitable, scientific, or educational purposes or in aid of
715-9 war activities;
715-10 (2) may not merge or consolidate with another
715-11 corporation;
715-12 (3) is not subject to voluntary or involuntary
715-13 dissolution; and
715-14 (4) may not be placed in receivership.
715-15 Sec. 251.053. APPLICATION OF OPEN MEETINGS AND OPEN RECORDS
715-16 LAWS. The corporation is subject to Chapters 551 and 552,
715-17 Government Code, except that the corporation may not disseminate,
715-18 make available, or otherwise distribute service area map data or
715-19 information provided by an operator unless that action is necessary
715-20 to perform the corporation's specific obligations under this
715-21 chapter.
715-22 Sec. 251.054. EXPENSES AND LIABILITIES OF CORPORATION.
715-23 (a) All expenses of the corporation shall be paid from income of
715-24 the corporation.
715-25 (b) A liability created by the corporation is not a debt of
715-26 this state, and the corporation may not secure a liability with
716-1 funds or assets of this state.
716-2 Sec. 251.055. BOARD OF DIRECTORS. (a) The board of
716-3 directors of the corporation is composed of the following 12
716-4 members appointed by the governor:
716-5 (1) six representatives of the general public;
716-6 (2) one representative of the gas industry;
716-7 (3) one representative of the telecommunications
716-8 industry;
716-9 (4) one representative of the electric industry;
716-10 (5) one representative of cable television companies;
716-11 (6) one representative of municipalities; and
716-12 (7) one representative of persons who engage in
716-13 excavation operations who are not also facility operators.
716-14 (b) Board membership is voluntary and a director is not
716-15 entitled to receive compensation for serving on the board.
716-16 Sec. 251.056. TERMS. (a) Directors serve staggered
716-17 three-year terms, with the terms of four directors expiring each
716-18 August 31.
716-19 (b) A director serves until the director's successor is
716-20 appointed by the governor and assumes office.
716-21 Sec. 251.057. DECLARATION OF BOARD VACANCY. (a) The board
716-22 may declare a director's office vacant if the director ceases to be
716-23 associated with the industry or an operator the director
716-24 represents.
716-25 (b) Not later than the 60th day after the date a vacancy on
716-26 the board is declared, the governor shall appoint a person to fill
717-1 the vacancy for the remainder of the unexpired term.
717-2 Sec. 251.058. OFFICERS. (a) The board shall elect from
717-3 among its directors a chair and vice chair.
717-4 (b) The chair and vice chair serve for a term of one year
717-5 and may be reelected.
717-6 Sec. 251.059. ENTITLEMENT TO VOTE. The corporation's bylaws
717-7 must provide that each director is entitled to one vote.
717-8 Sec. 251.060. DUTIES OF CORPORATION. The corporation shall
717-9 develop and implement processes to:
717-10 (1) maintain a registration of:
717-11 (A) notification centers as provided by Section
717-12 251.101(a)(3);
717-13 (B) operators who elect to convert facilities to
717-14 Class A facilities under Section 251.005(a); or
717-15 (C) operators who elect to become Class A
717-16 underground facility operators under Section 251.005(b);
717-17 (2) establish minimum technical standards used by
717-18 notification centers;
717-19 (3) establish a statewide toll-free telephone number
717-20 to be used by excavators that incorporates the use of a call router
717-21 system that routes calls to the notification centers on a pro rata
717-22 basis;
717-23 (4) oversee the bid process and select the vendor for
717-24 the statewide toll-free telephone number;
717-25 (5) oversee the bid process and select the vendor for
717-26 the call router system;
718-1 (6) determine before May 1 of each year the
718-2 cost-sharing between the notification centers of:
718-3 (A) the toll-free telephone number; and
718-4 (B) the call router system prescribed by Section
718-5 251.102(4);
718-6 (7) develop public service announcements to educate
718-7 the public about statewide one-call notification and its
718-8 availability;
718-9 (8) establish a format for information transfer among
718-10 notification centers other than high speed data transmission, if
718-11 appropriate;
718-12 (9) on a complaint concerning charges, investigate and
718-13 determine appropriate charges;
718-14 (10) recommend a civil penalty against a notification
718-15 center that does not meet the requirements of this chapter of not
718-16 less than $1,000 or more than $5,000 for each violation;
718-17 (11) refer the recommended penalty to the attorney
718-18 general, who shall institute a suit in a court of competent
718-19 jurisdiction to recover the penalty;
718-20 (12) assist in dispute resolution among notification
718-21 centers or between a notification center and an operator;
718-22 (13) assist any operator who encounters difficulty in
718-23 joining a notification center; and
718-24 (14) review and study design standards for the
718-25 placement of underground facilities throughout this state.
718-26 Sec. 251.061. CONTRACT FOR STATEWIDE TOLL-FREE NUMBER AND
719-1 CALL ROUTER SYSTEM. (a) The corporation shall solicit proposals
719-2 for the contract to establish and operate the statewide toll-free
719-3 telephone number and the call router system by using a request for
719-4 proposals process that includes specifications that have been
719-5 approved by the board of directors in accordance with this chapter.
719-6 (b) The corporation is not required to award the contract to
719-7 the lowest offeror if the terms of another proposal would result in
719-8 a lower annual cost and are more advantageous to the corporation
719-9 and its members. The corporation may reject all proposals if the
719-10 corporation finds that none of the proposals is acceptable.
719-11 (c) After the proposals are opened, each document relating
719-12 to the consideration of a proposal or the award of a contract and
719-13 the text of the contract are considered books and records of the
719-14 corporation for the purposes of Article 2.23, Texas Non-Profit
719-15 Corporation Act (Article 1396-2.23, Vernon's Texas Civil Statutes).
719-16 Sec. 251.062. FEES AND RATES. (a) Except as provided by
719-17 this section, the corporation may not, for any reason, impose an
719-18 assessment, fee, or other charge, including a charge for inputting
719-19 data, against an operator.
719-20 (b) Before January 15 of each year, a Class A facility
719-21 operator shall pay to the corporation a fee of $50 for services to
719-22 be performed by the corporation during that calendar year. A fee
719-23 for a part of a year may not be prorated.
719-24 (Sections 251.063-251.100 reserved for expansion
719-25 SUBCHAPTER C. NOTIFICATION CENTERS
719-26 Sec. 251.101. NOTIFICATION CENTER. (a) A notification
720-1 center is a legal entity that:
720-2 (1) operates a notification system capable of serving
720-3 excavators and operators statewide;
720-4 (2) is created to:
720-5 (A) receive notification of an intent to
720-6 excavate and of damage to an underground facility and disseminate
720-7 that information to member operators that may be affected by the
720-8 excavation or damage and to other notification centers operating in
720-9 this state; and
720-10 (B) receive notification of an extraordinary
720-11 circumstance and disseminate that information to member operators
720-12 and to other notification centers operating in this state; and
720-13 (3) registers the following information with the
720-14 corporation:
720-15 (A) its name, address, and telephone number;
720-16 (B) the name of a contact person;
720-17 (C) a statement of compliance with Section
720-18 251.104; and
720-19 (D) a listing of the counties in which it
720-20 operates.
720-21 (b) A notification center operating on September 1, 1997,
720-22 may continue to operate if the notification center complies with
720-23 this chapter.
720-24 Sec. 251.102. GENERAL DUTIES OF NOTIFICATION CENTER. A
720-25 notification center shall:
720-26 (1) operate 24 hours a day every day of the year;
721-1 (2) have the capability to receive emergency
721-2 information 24 hours a day from excavators and disseminate the
721-3 information as soon as it is received to the appropriate operators
721-4 and to all registered and affected notification centers operating
721-5 in this state;
721-6 (3) have the capacity to receive extraordinary
721-7 circumstance information 24 hours a day from operators and
721-8 disseminate the information as soon as it is received to all
721-9 registered and affected notification centers;
721-10 (4) submit to the corporation, not later than May 15
721-11 of each year, a pro rata share of the expense, as established by
721-12 the corporation, of the statewide toll-free telephone number and
721-13 the call router;
721-14 (5) provide, on request of an excavator, a contact
721-15 name and telephone number of a representative of the operator for
721-16 special circumstances; and
721-17 (6) have personnel capable of assisting
721-18 Spanish-speaking customers.
721-19 Sec. 251.103. RECORDS. (a) A notification center shall
721-20 maintain for not less than four years a record to document:
721-21 (1) the receipt of a notice of:
721-22 (A) intent to excavate;
721-23 (B) damage to an underground facility;
721-24 (C) an emergency excavation; and
721-25 (D) an extraordinary circumstance;
721-26 (2) the information the excavator is required to
722-1 provide to the notification center under this chapter;
722-2 (3) contact with operators and other notification
722-3 centers; and
722-4 (4) the information the notification center provided
722-5 to the excavator.
722-6 (b) A notification center may not destroy records that
722-7 relate to any matter that is involved in litigation if the
722-8 notification center is placed on notice that the litigation has not
722-9 been finally resolved.
722-10 Sec. 251.104. INSURANCE. A notification center shall, at
722-11 all times, maintain a minimum of $5 million professional liability
722-12 and errors and omissions insurance to cover duties prescribed by
722-13 this chapter.
722-14 Sec. 251.105. FEES AND CHARGES. (a) A notification center
722-15 that notifies another notification center under Section 251.102(2)
722-16 or (3) or Section 251.153(b) shall recover an amount not exceeding
722-17 the actual cost of providing the notice from the notification
722-18 center receiving the notice.
722-19 (b) The notification center shall charge a Class A
722-20 underground facility operator not more than $1.25 for a call made
722-21 to the system that affects the operator. The board may increase or
722-22 decrease the maximum charge only on an affirmative vote of at least
722-23 two-thirds of the total number of votes entitled to be cast. A
722-24 notification center may petition the corporation for an increase in
722-25 the maximum charge and is entitled to the increase on proof that
722-26 costs exceed the maximum charge.
723-1 (c) The notification center may not charge an operator any
723-2 additional fee such as an initiation fee, a membership fee, or a
723-3 set-up fee.
723-4 Sec. 251.106. PAYMENTS TO CORPORATION. Each time a
723-5 notification center receives a call from an excavator under Section
723-6 251.151, the notification center shall pay the corporation one
723-7 cent. The corporation shall waive this charge for the remainder of
723-8 any year in which the corporation receives $500,000 under this
723-9 section.
723-10 Sec. 251.107. DUTY TO PARTICIPATE IN NOTIFICATION CENTER.
723-11 (a) Each operator of a Class A underground facility, including a
723-12 political subdivision of this state, shall participate in a
723-13 notification center as a condition of doing business in this state.
723-14 (b) Each operator of a Class A underground facility shall
723-15 provide to the notification center:
723-16 (1) maps or grid locations or other identifiers
723-17 determined by the operator indicating the location of the
723-18 operator's underground facilities;
723-19 (2) the name and telephone number of a contact person
723-20 or persons; and
723-21 (3) at least quarterly but, if possible, as those
723-22 changes occur, information relating to each change in the
723-23 operator's maps or grid locations or other identifiers or in the
723-24 person or persons designated as the operator's contact person or
723-25 persons.
723-26 (c) The notification center may not require an operator to
724-1 conduct a survey of the operator's underground facilities or alter
724-2 the operator's existing signage.
724-3 (d) A notification center may not disseminate, make
724-4 available, or otherwise distribute maps or information provided by
724-5 an operator unless that action is necessary to perform the
724-6 notification center's specific obligations under this chapter.
724-7 (Sections 251.108-251.150 reserved for expansion
724-8 SUBCHAPTER D. REQUIREMENTS RELATING TO EXCAVATION
724-9 Sec. 251.151. DUTY OF AN EXCAVATOR. (a) Except as provided
724-10 by Sections 251.155 and 251.156, a person who intends to excavate
724-11 shall notify a notification center not earlier than the 14th day
724-12 before the date the excavation is to begin or later than the 48th
724-13 hour before the time the excavation is to begin, excluding
724-14 Saturdays, Sundays, and legal holidays.
724-15 (b) Notwithstanding Subsection (a), if an excavator makes a
724-16 Saturday notification, the excavator may begin the excavation the
724-17 following Tuesday at 11:59 a.m. unless the intervening Monday is a
724-18 holiday. If the intervening Monday is a holiday, the excavator may
724-19 begin the excavation the following Wednesday at 11:59 a.m.
724-20 (c) To have a representative present during the excavation,
724-21 the operator shall contact the excavator and advise the excavator
724-22 of the operator's intent to be present during excavation and
724-23 confirm the start time of the excavation. If the excavator wants
724-24 to change the start time, the excavator shall notify the operator
724-25 to set a mutually agreed-to time to begin the excavation.
724-26 Sec. 251.152. INFORMATION INCLUDED IN NOTICE. The excavator
725-1 shall include in the notice required under Section 251.151:
725-2 (1) the name of the person serving the notice;
725-3 (2) the location of the proposed area of excavation,
725-4 including:
725-5 (A) the street address, if available, and the
725-6 location of the excavation at the street address; or
725-7 (B) if there is no street address, an accurate
725-8 description of the excavation area using any available designations
725-9 such as the closest street, road, or intersection;
725-10 (3) the name, address, and telephone number of the
725-11 excavator or the excavator's company;
725-12 (4) the excavator's field telephone number, if one is
725-13 available;
725-14 (5) the starting date and time and the anticipated
725-15 completion date of excavation; and
725-16 (6) a statement as to whether explosives will be used.
725-17 Sec. 251.153. DUTY OF NOTIFICATION CENTER. (a) At the time
725-18 an excavator provides a notification center with the excavator's
725-19 intent to excavate, the notification center shall advise the
725-20 excavator that water, slurry, and sewage underground facilities in
725-21 the area of the proposed excavation may not receive information
725-22 concerning the excavator's proposed excavation.
725-23 (b) Not later than two hours after the time the notification
725-24 center receives a notice of intent to excavate from an excavator,
725-25 the notification center shall provide to every other affected
725-26 notification center operating in this state the information
726-1 required by Section 251.152 and received from the excavator. The
726-2 notification center shall provide the information by the use of
726-3 high speed data transmission.
726-4 (c) Not later than two hours after the time the notification
726-5 center receives a notice of intent to excavate from an excavator or
726-6 from a different notification center, the notification center shall
726-7 notify each member operator that may have an underground facility
726-8 in the vicinity of the proposed excavation operation.
726-9 Sec. 251.154. NOTIFICATION BY AN EXCAVATOR. (a) A person
726-10 required to provide notice under this chapter is considered to
726-11 have provided the notice when the person delivers the required
726-12 information and a notification center receives that information
726-13 within the time limits prescribed by this chapter.
726-14 (b) A person may deliver information required under this
726-15 chapter by any appropriate method, including the use of any
726-16 electronic means of data transfer.
726-17 Sec. 251.155. EXCEPTION IN CASE OF EMERGENCY. (a) Section
726-18 251.151 does not apply to an emergency excavation that is necessary
726-19 to respond to a situation that endangers life, health, or property
726-20 or a situation in which the public need for uninterrupted service
726-21 and immediate reestablishment of service if service is interrupted
726-22 compels immediate action.
726-23 (b) The excavator may begin emergency excavation under
726-24 Subsection (a) immediately and shall take reasonable precautions to
726-25 protect underground facilities.
726-26 (c) When an emergency exists, the excavator shall notify a
727-1 notification center as promptly as reasonably possible.
727-2 Sec. 251.156. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS.
727-3 (a) Section 251.151 does not apply to:
727-4 (1) interment operations of a cemetery;
727-5 (2) operations at a secured facility if:
727-6 (A) the excavator operates each underground
727-7 facility at the secured facility, other than those within a
727-8 third-party underground facility easement or right-of-way; and
727-9 (B) the excavation activity is not within a
727-10 third-party underground facility or right-of-way;
727-11 (3) routine railroad maintenance within 15 feet of
727-12 either side of the midline of the track if the maintenance will not
727-13 disturb the ground at a depth of more than 18 inches;
727-14 (4) activities performed on private property in
727-15 connection with agricultural operations;
727-16 (5) operations associated with the exploration or
727-17 production of oil or gas if the operations are not conducted within
727-18 an underground facility easement or right-of-way;
727-19 (6) excavations by or for a person that:
727-20 (A) owns, leases, or owns a mineral leasehold
727-21 interest in the real property on which the excavation occurs; and
727-22 (B) operates all underground facilities located
727-23 at the excavation site; or
727-24 (7) routine maintenance by a county employee on a
727-25 county road right-of-way to a depth of not more than 24 inches.
727-26 (b) If a person excepted under Subsection (a)(4) elects to
728-1 comply with this chapter and the operator fails to comply with this
728-2 chapter, the person is not liable to the underground facility owner
728-3 for damages to the underground facility.
728-4 (c) In this section:
728-5 (1) "Agricultural operations" means activities
728-6 performed on land and described by Section 23.51(2), Tax Code.
728-7 (2) "Routine maintenance" means operations, not to
728-8 exceed 24 inches in depth, within a road or drainage ditch
728-9 involving grading and removal or replacement of pavement and
728-10 structures.
728-11 Sec. 251.157. DUTY OF OPERATOR TO PERSON EXCAVATING.
728-12 (a) Each Class A underground facility operator contacted by the
728-13 notification system shall mark the approximate location of its
728-14 underground facilities at or near the site of the proposed
728-15 excavation if the operator believes that marking the location is
728-16 necessary. The operator shall mark the location not later than:
728-17 (1) the 48th hour after the time the excavator gives
728-18 to the notification system notice of intent to excavate, excluding
728-19 Saturdays, Sundays, and legal holidays;
728-20 (2) 11:59 a.m. on the Tuesday following a Saturday
728-21 notification unless the intervening Monday is a holiday;
728-22 (3) 11:59 a.m. on the Wednesday following a Saturday
728-23 notification if the intervening Monday is a holiday; or
728-24 (4) a time agreed to by the operator and the
728-25 excavator.
728-26 (b) An operator shall refer to the American Public Works
729-1 Association color coding standards when marking.
729-2 (c) An excavator who has fully complied with this chapter
729-3 may not be liable for damage to an underground facility that was
729-4 not marked in accordance with this chapter.
729-5 Sec. 251.158. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY
729-6 CIRCUMSTANCE. (a) The deadline prescribed by Section 251.157(a)
729-7 does not apply if the operator experiences an extraordinary
729-8 circumstance due to an act of God, including a tornado, a
729-9 hurricane, an ice storm, or a severe flood, or a war, riot, work
729-10 stoppage, or strike that limits personnel or resources needed to
729-11 fulfill the operator's obligations under this chapter.
729-12 (b) The operator shall notify a notification center of the
729-13 extraordinary circumstance and shall include in the notification:
729-14 (1) the nature and location of the extraordinary
729-15 circumstance;
729-16 (2) the expected duration of the situation and the
729-17 approximate time at which the operator will be able to resume
729-18 location request activities; and
729-19 (3) the name and telephone number of the individual
729-20 that the notification system can contact if there is an emergency
729-21 that requires the operator's immediate attention.
729-22 (c) In addition to the notification required by Subsection
729-23 (b), the operator shall also notify each excavator that has a
729-24 pending location request in the location where an extraordinary
729-25 circumstance is being experienced and shall include in the
729-26 notification:
730-1 (1) the fact that the operator is experiencing an
730-2 extraordinary circumstance; and
730-3 (2) the approximate time at which the operator will
730-4 mark the requested location.
730-5 (d) A notification center shall inform each excavator
730-6 notifying the system under Section 251.151 that the operator's
730-7 location request activities are suspended until the extraordinary
730-8 circumstance has discontinued or has been corrected within the
730-9 affected location.
730-10 (e) An excavator is relieved from all provisions of this
730-11 chapter until the operator notifies the notification center that
730-12 the operator has resumed location request activities within the
730-13 affected location.
730-14 Sec. 251.159. EXCAVATION DAMAGE. (a) If an excavation
730-15 operation results in damage to an underground facility, the
730-16 excavator shall immediately contact the underground facility
730-17 operator to report the damage.
730-18 (b) If the excavator is not certain of the operator's
730-19 identity, the excavator shall contact a notification center to
730-20 report the damage, and the notification center shall immediately
730-21 notify all other affected notification centers. Immediately on
730-22 receiving notification, each notification center shall contact each
730-23 member operator that has underground facilities in or near the area
730-24 in which the damage occurred.
730-25 (c) Only the operator or a person authorized by the operator
730-26 may perform repairs, and the repairs must be made in an expeditious
731-1 manner.
731-2 (d) An excavator shall delay backfilling in the immediate
731-3 area of the damage until the damage is reported to the operator and
731-4 a repair schedule is mutually agreed to by the excavator and the
731-5 operator.
731-6 (e) If damage endangers life, health, or property because of
731-7 the presence of flammable material, the excavator shall keep
731-8 sources of ignition away.
731-9 (Sections 251.160-251.200 reserved for expansion
731-10 SUBCHAPTER E. PENALTIES
731-11 Sec. 251.201. CIVIL PENALTY. (a) An excavator that
731-12 violates Section 251.151, 251.152, or 251.159 is liable for a civil
731-13 penalty of not less than $50 or more than $100.
731-14 (b) If it is found at the trial on a civil penalty that the
731-15 excavator has violated this chapter and has been assessed a penalty
731-16 under this section one other time before the first anniversary of
731-17 the date of the most recent violation, the excavator is liable for
731-18 a civil penalty of not less than $100 or more than $200.
731-19 (c) If it is found at the trial on a civil penalty that the
731-20 excavator has violated this chapter and has been assessed a penalty
731-21 under this section at least two other times before the first
731-22 anniversary of the date of the most recent violation, the excavator
731-23 is liable for a civil penalty of not less than $200 or more than
731-24 $500.
731-25 (d) In assessing the penalty the court shall consider the
731-26 actual damage to the facility, the effect of the excavator's
732-1 actions on the public health and safety, whether the violation was
732-2 a wilful act, and any good faith of the excavator in attempting to
732-3 achieve compliance.
732-4 (e) Venue for a proceeding under this section is in the
732-5 county in which:
732-6 (1) all or part of the alleged violation occurred;
732-7 (2) the defendant has its principal place of business
732-8 in this state; or
732-9 (3) the defendant resides, if in this state.
732-10 (f) The appropriate county attorney or criminal district
732-11 attorney shall bring the action to recover the civil penalty.
732-12 (g) This section does not apply to a residential property
732-13 owner excavating on the property owner's own residential lot.
732-14 Sec. 251.202. ALLOCATION OF CIVIL PENALTY. (a) Fifty
732-15 percent of the civil penalty collected under Section 251.201 shall
732-16 be transferred to the county treasurer of the county prosecuting
732-17 the action and 50 percent of the civil penalty collected under
732-18 Section 251.201 shall be transferred to the corporation.
732-19 (b) The county treasurer shall deposit all money received
732-20 under this section in the county road and bridge fund.
732-21 (c) The corporation shall use the money received under this
732-22 section to develop public service announcements to educate the
732-23 public about the statewide one-call notification system and its
732-24 availability as prescribed by Section 251.060(7).
732-25 Sec. 251.203. CRIMINAL PENALTY FOR REMOVAL, DAMAGE, OR
732-26 CONCEALMENT OF MARKER OR SIGN. (a) A person commits an offense
733-1 if:
733-2 (1) the person without authorization from the owner or
733-3 operator of the facility intentionally removes, damages, or
733-4 conceals a marker or sign giving information about the location of
733-5 a Class A underground facility; and
733-6 (2) the marker or sign gives notice of the penalty for
733-7 intentional removal, damage, or concealment of the marker or sign.
733-8 (b) An offense under this section is a Class B misdemeanor.
733-9 (b) Chapter 1407, Acts of the 75th Legislature, Regular
733-10 Session, 1997 (Article 9033, Vernon's Texas Civil Statutes), is
733-11 repealed.
733-12 SECTION 18.18. (a) Section 67.006(a), Water Code, is
733-13 amended to conform to Section 1, Chapter 688, Acts of the 75th
733-14 Legislature, Regular Session, 1997, to read as follows:
733-15 (a) The board shall elect a president, a vice president, and
733-16 a secretary-treasurer following the issuance of a charter and after
733-17 each annual meeting of the membership or shareholders. At the
733-18 meeting, each member or stockholder may be allowed only one vote
733-19 regardless of the number of memberships or stock certificates held
733-20 by the person.
733-21 (b) Section 1, Chapter 688, Acts of the 75th Legislature,
733-22 Regular Session, 1997, is repealed.
733-23 SECTION 18.19. (a) Chapter 67, Water Code, is amended to
733-24 conform to Section 1, Chapter 532, Acts of the 75th Legislature,
733-25 Regular Session, 1997, by adding Section 67.0105 to read as
733-26 follows:
734-1 Sec. 67.0105. CONTRACT FOR WATER FOR FIRE SUPPRESSION.
734-2 (a) A corporation may enter into a contract with a municipality or
734-3 a volunteer fire department to supply water either to municipally
734-4 owned fire hydrants or to corporation fire hydrants for use in fire
734-5 suppression by the municipality's fire department or a volunteer
734-6 fire department. The contract must be under terms that are
734-7 mutually beneficial to the contracting parties.
734-8 (b) The furnishing of a water supply and fire hydrant
734-9 equipment by a municipality or a volunteer fire department directly
734-10 or through another entity by a lease, contract, or any other manner
734-11 is an essential governmental function and not a proprietary
734-12 function for all purposes, including the application of Chapter
734-13 101, Civil Practice and Remedies Code.
734-14 (c) A corporation that contracts with a municipality or
734-15 volunteer fire department to provide a water supply or fire hydrant
734-16 equipment may be liable for damages only to the extent that the
734-17 municipality or volunteer fire department would be liable if the
734-18 municipality or volunteer fire department were performing the
734-19 governmental function directly.
734-20 (b) Section 1, Chapter 532, Acts of the 75th Legislature,
734-21 Regular Session, 1997, is repealed.
734-22 SECTION 18.20. Section 1(7), Article 18.21, Code of Criminal
734-23 Procedure, is amended to conform to Chapter 166, Acts of the 75th
734-24 Legislature, Regular Session, 1997, to read as follows:
734-25 (7) "Trap and trace device" means a device that
734-26 records an incoming electronic or other impulse that identifies the
735-1 originating number of an instrument or device from which a wire or
735-2 electronic communication was transmitted. The term does not
735-3 include a device or telecommunications network used in providing:
735-4 (A) a caller identification service authorized
735-5 by the Public Utility Commission of Texas under Subchapter E,
735-6 Chapter 55, Utilities Code [Section 3.302, Public Utility
735-7 Regulatory Act of 1995 (Article 1446c-0, Vernon's Texas Civil
735-8 Statutes)];
735-9 (B) the services referenced in Section
735-10 55.102(b), Utilities Code [3.302(g), Public Utility Regulatory Act
735-11 of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes)]; or
735-12 (C) a caller identification service provided by
735-13 a commercial mobile radio service provider licensed by the Federal
735-14 Communications Commission.
735-15 SECTION 18.21. Section 466.105(b), Government Code, is
735-16 amended to conform to Chapter 166, Acts of the 75th Legislature,
735-17 Regular Session, 1997, to read as follows:
735-18 (b) Notwithstanding the provisions of Title 2, Utilities
735-19 Code [the Public Utility Regulatory Act (Article 1446c, Vernon's
735-20 Texas Civil Statutes)], the commission may negotiate rates and
735-21 execute contracts with telecommunications service providers for the
735-22 interexchange services necessary for the operation of the lottery.
735-23 The commission may acquire transmission facilities by lease,
735-24 purchase, or lease-purchase. The acquisition of transmission
735-25 facilities must be done on a competitive bid basis if possible.
735-26 SECTION 18.22. Subsection (e), Section 531.0216, Government
736-1 Code, as added by Chapter 1244, Acts of the 75th Legislature,
736-2 Regular Session, 1997, and renumbered by Section 19.01 of this Act
736-3 from Section 531.0215, Government Code, as added by Chapter 1244,
736-4 Acts of the 75th Legislature, Regular Session, 1997, is amended to
736-5 conform to Chapter 166, Acts of the 75th Legislature, Regular
736-6 Session, 1997, to read as follows:
736-7 (e) In this section, "telemedicine" has the meaning assigned
736-8 by Section 57.042, Utilities Code [3.606, Public Utility Regulatory
736-9 Act of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes)].
736-10 SECTION 18.23. Section 551.001(3), Government Code, is
736-11 amended to conform to Chapter 166, Acts of the 75th Legislature,
736-12 Regular Session, 1997, to read as follows:
736-13 (3) "Governmental body" means:
736-14 (A) a board, commission, department, committee,
736-15 or agency within the executive or legislative branch of state
736-16 government that is directed by one or more elected or appointed
736-17 members;
736-18 (B) a county commissioners court in the state;
736-19 (C) a municipal governing body in the state;
736-20 (D) a deliberative body that has rulemaking or
736-21 quasi-judicial power and that is classified as a department,
736-22 agency, or political subdivision of a county or municipality;
736-23 (E) a school district board of trustees;
736-24 (F) a county board of school trustees;
736-25 (G) a county board of education;
736-26 (H) the governing board of a special district
737-1 created by law; and
737-2 (I) a nonprofit corporation organized under
737-3 Chapter 67, Water Code [76, Acts of the 43rd Legislature, 1st
737-4 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
737-5 Statutes)], that provides a water supply or wastewater service, or
737-6 both, and is exempt from ad valorem taxation under Section 11.30,
737-7 Tax Code.
737-8 SECTION 18.24. Section 552.003(1), Government Code, is
737-9 amended to conform to Chapter 166, Acts of the 75th Legislature,
737-10 Regular Session, 1997, to read as follows:
737-11 (1) "Governmental body":
737-12 (A) means:
737-13 (i) a board, commission, department,
737-14 committee, institution, agency, or office that is within or is
737-15 created by the executive or legislative branch of state government
737-16 and that is directed by one or more elected or appointed members;
737-17 (ii) a county commissioners court in the
737-18 state;
737-19 (iii) a municipal governing body in the
737-20 state;
737-21 (iv) a deliberative body that has
737-22 rulemaking or quasi-judicial power and that is classified as a
737-23 department, agency, or political subdivision of a county or
737-24 municipality;
737-25 (v) a school district board of trustees;
737-26 (vi) a county board of school trustees;
738-1 (vii) a county board of education;
738-2 (viii) the governing board of a special
738-3 district;
738-4 (ix) the governing body of a nonprofit
738-5 corporation organized under Chapter 67, Water Code [76, Acts of the
738-6 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
738-7 Texas Civil Statutes)], that provides a water supply or wastewater
738-8 service, or both, and is exempt from ad valorem taxation under
738-9 Section 11.30, Tax Code; and
738-10 (x) the part, section, or portion of an
738-11 organization, corporation, commission, committee, institution, or
738-12 agency that spends or that is supported in whole or in part by
738-13 public funds; and
738-14 (B) does not include the judiciary.
738-15 SECTION 18.25. Section 2157.001(1), Government Code, is
738-16 amended to conform to Chapter 166, Acts of the 75th Legislature,
738-17 Regular Session, 1997, to read as follows:
738-18 (1) "Automated information system" includes:
738-19 (A) the computers on which the information
738-20 system is automated;
738-21 (B) a service related to the automation of the
738-22 system, including computer software, or the computers;
738-23 (C) a telecommunications apparatus or device
738-24 that serves as a component of a voice, data, or video
738-25 communications network for transmitting, switching, routing,
738-26 multiplexing, modulating, amplifying, or receiving signals on the
739-1 network; and
739-2 (D) for the General Services Commission, as
739-3 telecommunications provider for the State, the term includes any
739-4 service provided by a telecommunications provider, as that term is
739-5 defined by Section 51.002, Utilities Code [in the Public Utility
739-6 Regulatory Act of 1995 (Article 1446c-0, Vernon's Texas Civil
739-7 Statutes)].
739-8 SECTION 18.26. Section 2166.301, Government Code, is amended
739-9 to conform to Chapter 166, Acts of the 75th Legislature, Regular
739-10 Session, 1997, to read as follows:
739-11 Sec. 2166.301. EXCEPTIONS. Sections 2166.303 and 2166.304
739-12 do not apply to a contract made with a person subject to[:]
739-13 [(1)] the safety standards and administrative penalty
739-14 provisions of Subchapter E, Chapter 121, Utilities Code [Article
739-15 6053-1, Revised Statutes; and]
739-16 [(2) the administrative penalty provisions of Article
739-17 6053-2, Revised Statutes].
739-18 SECTION 18.27. Section 2170.053(b), Government Code, is
739-19 amended to conform to Chapter 166, Acts of the 75th Legislature,
739-20 Regular Session, 1997, to read as follows:
739-21 (b) Sharing or integrated use does not constitute the resale
739-22 or carriage of services and does not subject the system to
739-23 regulation or reporting under Title 2, Utilities Code [the Public
739-24 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
739-25 Statutes)].
739-26 SECTION 18.28. Section 2303.511(b), Government Code, is
740-1 amended to conform to Chapter 166, Acts of the 75th Legislature,
740-2 Regular Session, 1997, to read as follows:
740-3 (b) A reduction in utility rates under Subsection (a)(9)(B)
740-4 is subject to the agreement of the affected utility and the
740-5 approval of the appropriate regulatory authority under Title 2,
740-6 Utilities Code [Sections 16 and 17, Public Utility Regulatory Act
740-7 (Article 1446c, Vernon's Texas Civil Statutes)]. The rates may not
740-8 be reduced more than five percent below the lowest rate offered to
740-9 any customer located in the enterprise zone, including economic
740-10 development rates and standby rates. A qualified enterprise
740-11 project or the governing body of the enterprise zone may petition
740-12 the appropriate regulatory authority to receive a reduced rate
740-13 under this section, and the regulatory authority may order that
740-14 rates be reduced. In making its determination under this section,
740-15 the regulatory authority shall consider revitalization goals for
740-16 the enterprise zone. In setting the rates of the utility the
740-17 appropriate regulatory authority shall allow the utility to recover
740-18 the amount of the reduction.
740-19 SECTION 18.29. Section 2310.409(b), Government Code, is
740-20 amended to conform to Chapter 166, Acts of the 75th Legislature,
740-21 Regular Session, 1997, to read as follows:
740-22 (b) A reduction in utility rates under Subsection (a)(9)(B)
740-23 is subject to the agreement of the affected utility and the
740-24 approval of the appropriate regulatory authority under Title 2,
740-25 Utilities Code [the Public Utility Regulatory Act of 1995 (Article
740-26 1446c-0, Vernon's Texas Civil Statutes)]. The rates may be reduced
741-1 up to but not more than five percent below the lowest rate
741-2 allowable for that customer class. In making its determination
741-3 under this section, the regulatory authority shall consider
741-4 revitalization goals for the readjustment zone. In setting the
741-5 rates of the utility the appropriate regulatory authority shall
741-6 allow the utility to recover the amount of the reduction.
741-7 SECTION 18.30. Section 361.701(4), Health and Safety Code,
741-8 is amended to conform to Chapter 166, Acts of the 75th Legislature,
741-9 Regular Session, 1997, to read as follows:
741-10 (4) "Lender" means:
741-11 (A) an insured depository institution, as that
741-12 term is defined by Section 3, Federal Deposit Insurance Act (12
741-13 U.S.C. Section 1813);
741-14 (B) an insured credit union, as that term is
741-15 defined by Section 101, Federal Credit Union Act (12 U.S.C. Section
741-16 1752);
741-17 (C) a bank or association chartered under the
741-18 Farm Credit Act of 1971 (12 U.S.C. Section 2001 et seq.);
741-19 (D) a leasing or trust company that is an
741-20 affiliate of an insured depository institution;
741-21 (E) any person, including a successor or
741-22 assignee of any such person, that makes a bona fide extension of
741-23 credit to or takes or acquires a security interest from a
741-24 nonaffiliated person;
741-25 (F) the Federal National Mortgage Association,
741-26 the Federal Home Loan Mortgage Corporation, the Federal
742-1 Agricultural Mortgage Corporation, or any other entity that in a
742-2 bona fide manner buys or sells loans or interests in loans;
742-3 (G) a person that insures or guarantees against
742-4 a default in the repayment of an extension of credit, or acts as a
742-5 surety with respect to an extension of credit, to a nonaffiliated
742-6 person;
742-7 (H) a person that provides title insurance and
742-8 that acquires a solid waste facility as a result of assignment or
742-9 conveyance in the course of underwriting claims and claims
742-10 settlement; and
742-11 (I) an agency of this state that makes an
742-12 extension of credit to or acquires a security interest from:
742-13 (i) a federal or state agency;
742-14 (ii) a county, municipality, or other body
742-15 politic or corporate of this state, including:
742-16 (a) a district or authority
742-17 created under Section 52, Article III, or Section 59, Article XVI,
742-18 Texas Constitution;
742-19 (b) an interstate compact
742-20 commission to which this state is a party; or
742-21 (c) a nonprofit water
742-22 supply corporation created and operating under Chapter 67, Water
742-23 Code [76, Acts of the 43rd Legislature, 1st Called Session, 1933
742-24 (Article 1434a, Vernon's Texas Civil Statutes)]; or
742-25 (iii) another person.
742-26 SECTION 18.31. Section 756.022(d), Health and Safety Code,
743-1 is amended to conform to Chapter 166, Acts of the 75th Legislature,
743-2 Regular Session, 1997, to read as follows:
743-3 (d) This section does not apply to a contract:
743-4 (1) governed by Section 756.023;
743-5 (2) governed by Subtitle D, Title 10, Government Code;
743-6 or
743-7 (3) entered into by a person subject to[:]
743-8 [(A)] the safety standards adopted under and the
743-9 administrative penalty provisions of Subchapter E, Chapter 121,
743-10 Utilities Code [Article 6053-1, Revised Statutes; and]
743-11 [(B) the administrative penalty provisions of
743-12 Article 6053-2, Revised Statutes].
743-13 SECTION 18.32. Section 756.023(d), Health and Safety Code,
743-14 is amended to conform to Chapter 166, Acts of the 75th Legislature,
743-15 Regular Session, 1997, to read as follows:
743-16 (d) This section does not apply to a person subject to[:]
743-17 [(1)] the safety standards adopted under and the
743-18 administrative penalty provisions of Subchapter E, Chapter 121,
743-19 Utilities Code [Article 6053-1, Revised Statutes; and]
743-20 [(2) the administrative penalty provisions of Article
743-21 6053-2, Revised Statutes].
743-22 SECTION 18.33. Section 771.0725(d), Health and Safety Code,
743-23 is amended to conform to Chapter 166, Acts of the 75th Legislature,
743-24 Regular Session, 1997, to read as follows:
743-25 (d) The Public Utility Commission of Texas may review and
743-26 make comments regarding a rate or allocation under this section in
744-1 an informal proceeding. A proceeding in which a rate or allocation
744-2 is reviewed is not a contested case for purposes of Chapter 2001,
744-3 Government Code. A review of a rate or allocation is not a rate
744-4 change for purposes of Chapter 36 or 53, Utilities Code [Subtitle
744-5 E, Title II, or Subtitle E, Title III, Public Utility Regulatory
744-6 Act of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes)].
744-7 SECTION 18.34. Section 212.012(b), Local Government Code, is
744-8 amended to conform to Chapter 166, Acts of the 75th Legislature,
744-9 Regular Session, 1997, to read as follows:
744-10 (b) The prohibition established by Subsection (a) applies
744-11 only to:
744-12 (1) a municipality and officials of a municipality
744-13 that provides water, sewer, electricity, gas, or other utility
744-14 service;
744-15 (2) a municipally owned or municipally operated
744-16 utility that provides any of those services;
744-17 (3) a public utility that provides any of those
744-18 services;
744-19 (4) a water supply or sewer service corporation
744-20 organized and operating under Chapter 67, Water Code [76, Acts of
744-21 the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
744-22 Vernon's Texas Civil Statutes)], that provides any of those
744-23 services;
744-24 (5) a county that provides any of those services; and
744-25 (6) a special district or authority created by or
744-26 under state law that provides any of those services.
745-1 SECTION 18.35. Section 232.021(15), Local Government Code,
745-2 is amended to conform to Chapter 166, Acts of the 75th Legislature,
745-3 Regular Session, 1997, to read as follows:
745-4 (15) "Utility" means a person, including a legal
745-5 entity or political subdivision, that provides the services of:
745-6 (A) an electric utility, as defined by Section
745-7 31.002, Utilities Code [3(c)(1), Public Utility Regulatory Act
745-8 (Article 1446c, Vernon's Texas Civil Statutes)];
745-9 (B) a gas utility, as defined by Section
745-10 101.003, Utilities Code [1.03, Gas Utility Regulatory Act (Article
745-11 1446e, Vernon's Texas Civil Statutes)]; and
745-12 (C) a water and sewer utility, as defined by
745-13 Section 13.002, Water Code.
745-14 SECTION 18.36. Section 232.077(c), Local Government Code, is
745-15 amended to conform to Chapter 166, Acts of the 75th Legislature,
745-16 Regular Session, 1997, to read as follows:
745-17 (c) The prohibition established by Subsection (b) applies
745-18 only to:
745-19 (1) a municipality, and officials of the municipality,
745-20 that provides water, sewer, electricity, gas, or other utility
745-21 service;
745-22 (2) a municipally owned or municipally operated
745-23 utility that provides any of those services;
745-24 (3) a public utility that provides any of those
745-25 services;
745-26 (4) a water supply or sewer service corporation
746-1 organized and operating under Chapter 67, Water Code [76, Acts of
746-2 the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
746-3 Vernon's Texas Civil Statutes)], that provides any of those
746-4 services;
746-5 (5) a county that provides any of those services; and
746-6 (6) a special district or authority created by or
746-7 under state law that provides any of those services.
746-8 SECTION 18.37. Section 376.170, Local Government Code, as
746-9 renumbered by Section 19.01 of this Act from Section 376.140, Local
746-10 Government Code, as added by Chapter 275, Acts of the 75th
746-11 Legislature, Regular Session, 1997, is amended to conform to
746-12 Chapter 166, Acts of the 75th Legislature, Regular Session, 1997,
746-13 to read as follows:
746-14 Sec. 376.170. EXEMPTION OF PUBLIC UTILITY FROM FEE OR
746-15 ASSESSMENT. The district may not impose an impact fee or
746-16 assessment on the property, equipment, or facilities of an electric
746-17 [a public] utility as defined by Section 31.002, Utilities Code
746-18 [2.0011, Public Utility Regulatory Act of 1995 (Article 1446c-0,
746-19 Vernon's Texas Civil Statutes)].
746-20 SECTION 18.38. Section 376.230(b), Local Government Code, is
746-21 amended to conform to Chapter 166, Acts of the 75th Legislature,
746-22 Regular Session, 1997, to read as follows:
746-23 (b) The district may not impose an impact fee or assessment
746-24 on any property, equipment, or facilities of an electric [a public]
746-25 utility as defined by Section 31.002, Utilities Code [2.0011(1),
746-26 Public Utility Regulatory Act of 1995 (Article 1446c-0, Vernon's
747-1 Texas Civil Statutes)].
747-2 SECTION 18.39. Section 40.008, Natural Resources Code, is
747-3 amended to conform to Chapter 166, Acts of the 75th Legislature,
747-4 Regular Session, 1997, to read as follows:
747-5 Sec. 40.008. RAILROAD COMMISSION AUTHORITY. The Railroad
747-6 Commission of Texas shall continue to exercise its authority
747-7 pursuant to Section 91.101 of this code and Section 26.131, Water
747-8 Code, to issue and enforce rules, permits, and orders to prevent
747-9 pollution of surface and subsurface waters in the state by
747-10 activities associated with the exploration, development, or
747-11 production of oil, gas, or geothermal resources, including the
747-12 transportation of oil or gas by pipeline. Nothing in this chapter
747-13 preempts the jurisdiction of the Railroad Commission of Texas under
747-14 Subchapter E, Chapter 121, Utilities Code [Article 6053-1, Revised
747-15 Statutes], and Chapter 117, Natural Resources Code, over pipeline
747-16 transportation of gas and hazardous liquids and over gas and
747-17 hazardous liquid pipeline facilities.
747-18 SECTION 18.40. Section 51.121(e), Natural Resources Code, is
747-19 amended to conform to Chapter 166, Acts of the 75th Legislature,
747-20 Regular Session, 1997, to read as follows:
747-21 (e) Subject to the provisions of Title 2, Utilities Code
747-22 [the Public Utility Regulatory Act (Article 1446c, Vernon's Texas
747-23 Civil Statutes)], any district created by Article XVI, Section 59,
747-24 of the Texas Constitution that leases unsold public school or
747-25 asylum land for power generation through the use of renewable
747-26 energy sources, such as wind, solar, or geothermal energy and other
748-1 sustainable sources, or a district participating in a power
748-2 generation project using renewable energy sources which is located
748-3 on unsold public school or asylum lands may distribute and sell
748-4 electric energy generated on public school or asylum lands within
748-5 or without the boundaries of the district and may issue bonds to
748-6 accomplish such purposes pursuant to Chapter 656, Acts of the 68th
748-7 Legislature, Regular Session, 1983 (Article 717q, Vernon's Texas
748-8 Civil Statutes), or other applicable law. For any such power
748-9 generation project which is located on both public lands and
748-10 private lands, the district may sell outside its boundaries only
748-11 the pro rata portion of the total amount as is generated on the
748-12 public lands. All electric energy generated pursuant to this
748-13 section shall be sold for resale only to utilities authorized to
748-14 make retail sales under Title 2, Utilities Code, [the Public
748-15 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
748-16 Statutes)] and shall be subject to the solicitation process and
748-17 integrated resource planning process authorized by that title
748-18 [Act].
748-19 SECTION 18.41. Section 91.173(2), Natural Resources Code, is
748-20 amended to conform to Chapter 166, Acts of the 75th Legislature,
748-21 Regular Session, 1997, to read as follows:
748-22 (2) "Gas utility" means a gas utility as defined in
748-23 Section 101.003, Utilities Code, or Subchapter A, Chapter 121,
748-24 Utilities Code [3, Public Utility Regulatory Act (Article 1446c,
748-25 Vernon's Texas Civil Statutes), or Article 6050, Revised Civil
748-26 Statutes of Texas, 1925, as amended].
749-1 SECTION 18.42. Section 116.002, Natural Resources Code, is
749-2 amended to conform to Chapter 166, Acts of the 75th Legislature,
749-3 Regular Session, 1997, to read as follows:
749-4 Sec. 116.002. EXCEPTIONS. This chapter does not apply to:
749-5 (1) the production, transportation, storage, sale, or
749-6 distribution of natural gas that is not included in the definition
749-7 of compressed natural gas or liquefied natural gas;
749-8 (2) the production, transportation, storage, sale, or
749-9 distribution of natural gas that is subject to commission
749-10 jurisdiction under Subtitle A or B, Title 3, Utilities Code [the
749-11 Gas Utility Regulatory Act (Article 1446e, Revised Statutes) or the
749-12 Cox law (Title 102, Revised Statutes)];
749-13 (3) pipelines, fixtures, and other equipment used in
749-14 the natural gas industry that are not used or designed to be used
749-15 as part of a CNG or LNG system; or
749-16 (4) pipelines, fixtures, equipment, or facilities to
749-17 the extent that they are subject to the safety regulations
749-18 promulgated and enforced by the commission pursuant to Chapter 117,
749-19 Natural Resources Code, or Subchapter E, Chapter 121, Utilities
749-20 Code [Article 6053-1, Revised Statutes].
749-21 SECTION 18.43. Section 116.101, Natural Resources Code, is
749-22 amended to conform to Chapter 166, Acts of the 75th Legislature,
749-23 Regular Session, 1997, to read as follows:
749-24 Sec. 116.101. MALODORANTS. Compressed natural gas must be
749-25 odorized as provided by Subchapter F, Chapter 121, Utilities Code
749-26 [Section 2, Article 6053, Revised Statutes, as amended].
750-1 SECTION 18.44. Section 33.01(13), Penal Code, is amended to
750-2 conform to Chapter 166, Acts of the 75th Legislature, Regular
750-3 Session, 1997, to read as follows:
750-4 (13) "Electric utility" has the meaning assigned by
750-5 Section 31.002, Utilities Code [Subsection (c), Section 3, Public
750-6 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
750-7 Statutes)].
750-8 SECTION 18.45. Section 74.3013(h), Property Code, is amended
750-9 to conform to Chapter 166, Acts of the 75th Legislature, Regular
750-10 Session, 1997, to read as follows:
750-11 (h) In this section, a nonprofit cooperative corporation
750-12 means a cooperative corporation organized under Chapters 51 and 52,
750-13 Agriculture Code, the Texas Non-Profit Corporation Act (Article
750-14 1396-1.01 et seq., Vernon's Texas Civil Statutes), the Cooperative
750-15 Association Act (Article 1396-50.01, Vernon's Texas Civil
750-16 Statutes), and Chapter 161, Utilities Code [the Electric
750-17 Cooperative Corporation Act (Article 1528b, Vernon's Texas Civil
750-18 Statutes)].
750-19 SECTION 18.46. Section 11.30, Tax Code, is amended to
750-20 conform to Chapter 166, Acts of the 75th Legislature, Regular
750-21 Session, 1997, to read as follows:
750-22 Sec. 11.30. NONPROFIT WATER SUPPLY OR WASTEWATER SERVICE
750-23 CORPORATION. A corporation organized under Chapter 67, Water Code
750-24 [76, Acts of the 43rd Legislature, 1st Called Session, 1933
750-25 (Article 1434a, Vernon's Texas Civil Statutes)], that provides in
750-26 the bylaws of the corporation that on dissolution of the
751-1 corporation the assets of the corporation remaining after discharge
751-2 of the corporation's indebtedness shall be transferred to an entity
751-3 that provides a water supply or wastewater service, or both, that
751-4 is exempt from ad valorem taxation is entitled to an exemption from
751-5 taxation of property that the corporation owns and that is
751-6 reasonably necessary for and used in the operation of the
751-7 corporation:
751-8 (1) to acquire, treat, store, transport, sell, or
751-9 distribute water; or
751-10 (2) to provide wastewater service.
751-11 SECTION 18.47. Section 171.065, Tax Code, is amended to
751-12 conform to Chapter 166, Acts of the 75th Legislature, Regular
751-13 Session, 1997, to read as follows:
751-14 Sec. 171.065. EXEMPTION--NONPROFIT CORPORATION ORGANIZED TO
751-15 PROVIDE WATER SUPPLY OR SEWER SERVICES. A nonprofit water supply
751-16 or sewer service corporation organized in behalf of a city or town
751-17 under Chapter 67, Water Code [76, Acts of the 43rd Legislature, 1st
751-18 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
751-19 Statutes)], is exempted from the franchise tax.
751-20 SECTION 18.48. Section 171.079, Tax Code, is amended to
751-21 conform to Chapter 166, Acts of the 75th Legislature, Regular
751-22 Session, 1997, to read as follows:
751-23 Sec. 171.079. EXEMPTION--ELECTRIC COOPERATIVE CORPORATION.
751-24 An electric cooperative corporation incorporated under Chapter 161,
751-25 Utilities Code, [the Electric Cooperative Corporation Act (Article
751-26 1528b, Vernon's Texas Civil Statutes)] that is not a participant in
752-1 a joint powers agency is exempted from the franchise tax.
752-2 SECTION 18.49. Section 171.080, Tax Code, is amended to
752-3 conform to Chapter 166, Acts of the 75th Legislature, Regular
752-4 Session, 1997, to read as follows:
752-5 Sec. 171.080. EXEMPTION--TELEPHONE COOPERATIVE CORPORATIONS.
752-6 A telephone cooperative corporation incorporated under Chapter 162,
752-7 Utilities Code, [the Telephone Cooperative Act (Article 1528c,
752-8 Vernon's Texas Civil Statutes)] is exempted from the franchise tax.
752-9 SECTION 18.50. Section 361.234(d), Transportation Code, is
752-10 amended to conform to Chapter 166, Acts of the 75th Legislature,
752-11 Regular Session, 1997, to read as follows:
752-12 (d) Notwithstanding anything in this chapter to the
752-13 contrary, Subchapter C, Chapter 181, Utilities Code [Chapter 228,
752-14 Acts of the 51st Legislature, Regular Session, 1949 (Article 1436a,
752-15 Vernon's Texas Civil Statutes)], applies to the erection,
752-16 construction, maintenance, and operation of lines and poles owned
752-17 by an electric utility, as that term is defined [a corporation
752-18 described] by Section 181.041, Utilities Code, [1 of that Act]
752-19 over, under, across, on, and along a turnpike project constructed
752-20 by the authority. The authority has the powers and duties
752-21 delegated to the commission by Subchapter C, Chapter 181, Utilities
752-22 Code [Chapter 228, Acts of the 51st Legislature, Regular Session,
752-23 1949 (Article 1436a, Vernon's Texas Civil Statutes)].
752-24 SECTION 18.51. Sections 366.171(d) and (e), Transportation
752-25 Code, are amended to conform to Chapter 166, Acts of the 75th
752-26 Legislature, Regular Session, 1997, to read as follows:
753-1 (d) Subchapter C, Chapter 181, Utilities Code [Chapter 228,
753-2 Acts of the 51st Legislature, Regular Session, 1949 (Article 1436a,
753-3 Vernon's Texas Civil Statutes)], applies to the erection,
753-4 construction, maintenance, and operation of lines and poles owned
753-5 by an electric utility, as that term is defined [a corporation
753-6 described] by Section 181.041, Utilities Code, [1 of that Act]
753-7 over, under, across, on, and along a turnpike project or system
753-8 constructed by an authority. An authority has the powers and
753-9 duties delegated to the commissioners court by that subchapter
753-10 [Act], and an authority has exclusive jurisdiction and control of
753-11 utilities located in its rights-of-way.
753-12 (e) Subchapter B, Chapter 181, Utilities Code [Chapter 470,
753-13 Acts of the 52nd Legislature, 1951 (Article 1436b, Vernon's Texas
753-14 Civil Statutes)], applies to the laying and maintenance of
753-15 facilities used for conducting gas by a gas utility, as that term
753-16 is defined by Section 181.021, Utilities Code, [person, firm, or
753-17 corporation or municipality described in Section 1 of that Act]
753-18 through, under, along, across, and over a turnpike project or
753-19 system constructed by an authority except as otherwise provided by
753-20 this section. An authority has the power and duties delegated to
753-21 the commissioners court by that subchapter [Act] and an authority
753-22 has exclusive jurisdiction and control of utilities located in its
753-23 right-of-way.
753-24 SECTION 18.52. Section 13.002(24), Water Code, is amended to
753-25 conform to Chapter 166, Acts of the 75th Legislature, Regular
753-26 Session, 1997, to read as follows:
754-1 (24) "Water supply or sewer service corporation" means
754-2 a nonprofit corporation organized and operating under Chapter 67
754-3 [76, Acts of the 43rd Legislature, 1st Called Session, 1933
754-4 (Article 1434a, Vernon's Texas Civil Statutes)] that provides
754-5 potable water service or sewer service for compensation and that
754-6 has adopted and is operating in accordance with by-laws or articles
754-7 of incorporation which ensure that it is member-owned and
754-8 member-controlled. The term does not include a corporation that
754-9 provides retail water or sewer service to a person who is not a
754-10 member, except that the corporation may provide retail water or
754-11 sewer service to a person who is not a member if the person only
754-12 builds on or develops property to sell to another and the service
754-13 is provided on an interim basis before the property is sold.
754-14 SECTION 18.53. Section 13.043(b), Water Code, is amended to
754-15 conform to Chapter 166, Acts of the 75th Legislature, Regular
754-16 Session, 1997, to read as follows:
754-17 (b) Ratepayers of the following entities may appeal the
754-18 decision of the governing body of the entity affecting their water,
754-19 drainage, or sewer rates to the commission:
754-20 (1) a nonprofit water supply or sewer service
754-21 corporation created and operating under Chapter 67 [76, Acts of the
754-22 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
754-23 Texas Civil Statutes)];
754-24 (2) a utility under the jurisdiction of a municipality
754-25 inside the corporate limits of the municipality;
754-26 (3) a municipally owned utility, if the ratepayers
755-1 reside outside the corporate limits of the municipality;
755-2 (4) a district or authority created under Article III,
755-3 Section 52, or Article XVI, Section 59, of the Texas Constitution
755-4 that provides water or sewer service to household users; and
755-5 (5) a utility owned by an affected county, if the
755-6 ratepayer's rates are actually or may be adversely affected. For
755-7 the purposes of this section ratepayers who reside outside the
755-8 boundaries of the district or authority shall be considered a
755-9 separate class from ratepayers who reside inside those boundaries.
755-10 SECTION 18.54. Section 15.001(5), Water Code, is amended to
755-11 conform to Chapter 166, Acts of the 75th Legislature, Regular
755-12 Session, 1997, to read as follows:
755-13 (5) "Political subdivision" means a city, county,
755-14 district or authority created under Article III, Section 52, or
755-15 Article XVI, Section 59, of the Texas Constitution, any other
755-16 political subdivision of the state, any interstate compact
755-17 commission to which the state is a party, and any nonprofit water
755-18 supply corporation created and operating under Chapter 67 [76, Acts
755-19 of the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
755-20 Vernon's Texas Civil Statutes)].
755-21 SECTION 18.55. Section 15.201(a)(5), Water Code, is amended
755-22 to conform to Chapter 166, Acts of the 75th Legislature, Regular
755-23 Session, 1997, to read as follows:
755-24 (5) "Water supply corporation" means a nonprofit water
755-25 supply corporation created and operating under Chapter 67 [76, Acts
755-26 of the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
756-1 Vernon's Texas Civil Statutes)].
756-2 SECTION 18.56. Section 15.602(8), Water Code, is amended to
756-3 conform to Chapter 166, Acts of the 75th Legislature, Regular
756-4 Session, 1997, to read as follows:
756-5 (8) "Political subdivision" means a municipality,
756-6 intermunicipal, interstate, or state agency, any other public
756-7 entity eligible for assistance under this subchapter, or a
756-8 nonprofit water supply corporation created and operating under
756-9 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
756-10 1933 (Article 1434a, Vernon's Texas Civil Statutes)], if such
756-11 entity is eligible for financial assistance under federal law
756-12 establishing the state revolving fund or an additional state
756-13 revolving fund.
756-14 SECTION 18.57. Section 15.731(4), Water Code, is amended to
756-15 conform to Chapter 166, Acts of the 75th Legislature, Regular
756-16 Session, 1997, to read as follows:
756-17 (4) "Political subdivision" means a county, a
756-18 municipality, a nonprofit member-owned, member-controlled water
756-19 supply corporation organized and operating under Chapter 67 [76,
756-20 Acts of the 43rd Legislature, 1st Called Session, 1933 (Article
756-21 1434a, Vernon's Texas Civil Statutes)], or a district or authority
756-22 created and operating under Article III, Section 52, or Article
756-23 XVI, Section 59, of the Texas Constitution.
756-24 SECTION 18.58. Section 16.001(7), Water Code, is amended to
756-25 conform to Chapter 166, Acts of the 75th Legislature, Regular
756-26 Session, 1997, to read as follows:
757-1 (7) "Political subdivision" means a county, city, or
757-2 other body politic or corporate of the state, including any
757-3 district or authority created under Article III, Section 52 or
757-4 Article XVI, Section 59 of the Texas Constitution and including any
757-5 interstate compact commission to which the state is a party and any
757-6 nonprofit water supply corporation created and operating under
757-7 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
757-8 1933 (Article 1434a, Vernon's Texas Civil Statutes)].
757-9 SECTION 18.59. Section 16.341(3), Water Code, is amended to
757-10 conform to Chapter 166, Acts of the 75th Legislature, Regular
757-11 Session, 1997, to read as follows:
757-12 (3) "Political subdivision" means an affected county,
757-13 a municipality located in an affected county, a district or
757-14 authority created under Article III, Section 52, or Article XVI,
757-15 Section 59, of the Texas Constitution, located in an affected
757-16 county, or a nonprofit water supply corporation created and
757-17 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
757-18 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
757-19 Statutes)], located in an affected county, that receives funds for
757-20 facility engineering under Section 15.407 [of this code] or
757-21 financial assistance under Subchapter K, Chapter 17, [of this code]
757-22 or an economically distressed area in an affected county for which
757-23 financial assistance is received under Subchapter C, Chapter 15[,
757-24 of this code].
757-25 SECTION 18.60. Section 17.852(4), Water Code, is amended to
757-26 conform to Chapter 166, Acts of the 75th Legislature, Regular
758-1 Session, 1997, to read as follows:
758-2 (4) "Participant" means a political subdivision or
758-3 agency of the state or a nonprofit corporation organized pursuant
758-4 to Chapter 67 [76, Acts of the 43rd Legislature, 1st Called
758-5 Session, 1933 (Article 1434a, Vernon's Texas Civil Statutes)], that
758-6 is authorized to finance projects.
758-7 SECTION 18.61. Section 17.853(c), Water Code, is amended to
758-8 conform to Chapter 166, Acts of the 75th Legislature, Regular
758-9 Session, 1997, to read as follows:
758-10 (c) The board may use the fund only:
758-11 (1) to provide state matching funds for federal funds
758-12 provided to the state water pollution control revolving fund or to
758-13 any additional state revolving fund created under Subchapter J,
758-14 [of] Chapter 15 [of this code];
758-15 (2) to provide financial assistance from the proceeds
758-16 of taxable bond issues to water supply corporations organized under
758-17 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
758-18 1933 (Article 1434a, Vernon's Texas Civil Statutes)], and other
758-19 participants;
758-20 (3) to provide financial assistance to participants
758-21 for the construction of water supply projects and treatment works;
758-22 (4) to provide financial assistance for an interim
758-23 construction period to participants for projects for which the
758-24 board will provide long-term financing through the water
758-25 development fund; and
758-26 (5) to provide financial assistance for water supply
759-1 and sewer service projects in economically distressed areas as
759-2 provided by Subchapter K, [of] Chapter 17, [of this code] to the
759-3 extent the board can make that assistance without adversely
759-4 affecting the current or future integrity of the fund or of any
759-5 other financial assistance program of the board.
759-6 SECTION 18.62. Section 17.921(3), Water Code, is amended to
759-7 conform to Chapter 166, Acts of the 75th Legislature, Regular
759-8 Session, 1997, to read as follows:
759-9 (3) "Political subdivision" means a county,
759-10 municipality, a nonprofit water supply corporation created and
759-11 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
759-12 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
759-13 Statutes)], or district or authority created under Article III,
759-14 Section 52, or Article XVI, Section 59, of the Texas Constitution.
759-15 SECTION 18.63. Section 20.002(7), Water Code, is amended to
759-16 conform to Chapter 166, Acts of the 75th Legislature, Regular
759-17 Session, 1997, to read as follows:
759-18 (7) "Political subdivision" means a city, county, or
759-19 other body politic or corporate of the state, including any
759-20 district or authority created under Article III, Section 52, or
759-21 Article XVI, Section 59, of the Texas Constitution, a state agency,
759-22 an entity created by an interstate compact to which the state is a
759-23 party, and any nonprofit water supply corporation created and
759-24 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
759-25 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
759-26 Statutes)].
760-1 SECTION 18.64. Section 26.344(d), Water Code, is amended to
760-2 conform to Chapter 166, Acts of the 75th Legislature, Regular
760-3 Session, 1997, to read as follows:
760-4 (d) An intrastate pipeline facility or an aboveground
760-5 storage tank connected to such a facility is exempt from regulation
760-6 under this subchapter if the pipeline facility is regulated under
760-7 one of the following state laws:
760-8 (1) Chapter 111, Natural Resources Code;
760-9 (2) Chapter 117, Natural Resources Code; or
760-10 (3) Subchapter E, Chapter 121, Utilities Code
760-11 [Articles 6053-1 and 6053-2, Revised Statutes].
760-12 SECTION 18.65. Section 36.001(15), Water Code, is amended to
760-13 conform to Chapter 166, Acts of the 75th Legislature, Regular
760-14 Session, 1997, to read as follows:
760-15 (15) "Political subdivision" means a county,
760-16 municipality, or other body politic or corporate of the state,
760-17 including a district or authority created under Section 52, Article
760-18 III, or Section 59, Article XVI, Texas Constitution, a state
760-19 agency, or a nonprofit water supply corporation created under
760-20 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
760-21 1933 (Article 1434a, Vernon's Texas Civil Statutes)].
760-22 SECTION 18.66. Section 49.001(a)(5), Water Code, is amended
760-23 to conform to Chapter 166, Acts of the 75th Legislature, Regular
760-24 Session, 1997, to read as follows:
760-25 (5) "Water supply corporation" means a nonprofit water
760-26 supply or sewer service corporation created or operating under
761-1 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
761-2 1933 (Article 1434a, Vernon's Texas Civil Statutes)].
761-3 SECTION 18.67. Section 65.001(10), Water Code, is amended to
761-4 conform to Chapter 166, Acts of the 75th Legislature, Regular
761-5 Session, 1997, to read as follows:
761-6 (10) "Water supply corporation" means any
761-7 member-owned, consumer-owned water supply corporation created and
761-8 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
761-9 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
761-10 Statutes)], that:
761-11 (A) provides water supply services to
761-12 noncontiguous subdivisions in two or more counties, at least one of
761-13 which counties has a population greater than two million; or
761-14 (B) on or before January 1, 1985, was providing
761-15 the services of a water supply corporation under a certificate of
761-16 convenience and necessity issued by the Public Utility Commission
761-17 of Texas.
761-18 SECTION 18.68. The following are repealed:
761-19 (1) Chapter 1212, Acts of the 75th Legislature,
761-20 Regular Session, 1997; and
761-21 (2) Sections 21.55, 21.56, and 21.57, Chapter 1423,
761-22 Acts of the 75th Legislature, Regular Session, 1997.
761-23 ARTICLE 19. RENUMBERING
761-24 SECTION 19.01. The following provisions of enacted codes are
761-25 renumbered or relettered and appropriate cross-references are
761-26 changed to eliminate duplicate citations or to relocate misplaced
762-1 provisions:
762-2 (1) Chapter 151, Agriculture Code, as added by Chapter
762-3 780, Acts of the 75th Legislature, Regular Session, 1997, is
762-4 renumbered as Chapter 152, Agriculture Code, and Sections 151.001
762-5 and 151.002, Agriculture Code, as added by that Act, are renumbered
762-6 as Sections 152.001 and 152.002, Agriculture Code, respectively.
762-7 (2) Section 161.053, Agriculture Code, as added by
762-8 Chapter 31, Acts of the 74th Legislature, Regular Session, 1995, is
762-9 renumbered as Section 161.057, Agriculture Code.
762-10 (3) Chapter 11, Civil Practice and Remedies Code, as
762-11 added by Chapter 189, Acts of the 75th Legislature, Regular
762-12 Session, 1997, is renumbered as Chapter 12, Civil Practice and
762-13 Remedies Code, and Sections 11.001, 11.002, 11.003, 11.004, 11.005,
762-14 11.006, and 11.007, Civil Practice and Remedies Code, as added by
762-15 that Act, are renumbered as Sections 12.001, 12.002, 12.003,
762-16 12.004, 12.005, 12.006, and 12.007, Civil Practice and Remedies
762-17 Code, respectively.
762-18 (4) Section 63.006, Civil Practice and Remedies Code,
762-19 as added by Chapter 1409, Acts of the 75th Legislature, Regular
762-20 Session, 1997, is renumbered as Section 63.007, Civil Practice and
762-21 Remedies Code.
762-22 (5) Chapter 88, Civil Practice and Remedies Code, as
762-23 added by Chapter 662, Acts of the 75th Legislature, Regular
762-24 Session, 1997, is renumbered as Chapter 89, Civil Practice and
762-25 Remedies Code, and Sections 88.001, 88.002, and 88.003, Civil
762-26 Practice and Remedies Code, as added by that Act, are renumbered as
763-1 Sections 89.001, 89.002, and 89.003, Civil Practice and Remedies
763-2 Code, respectively.
763-3 (6) Article 13.26, Code of Criminal Procedure, as
763-4 added by Chapter 189, Acts of the 75th Legislature, Regular
763-5 Session, 1997, is renumbered as Article 13.27, Code of Criminal
763-6 Procedure.
763-7 (7) Subsection (h), Section 3, Article 37.07, Code of
763-8 Criminal Procedure, as added by Chapter 1086, Acts of the 75th
763-9 Legislature, Regular Session, 1997, is relettered as Subsection
763-10 (i), Section 3, Article 37.07, Code of Criminal Procedure.
763-11 (8)(A) Chapter 62, Code of Criminal Procedure, as
763-12 transferred by Chapter 1427, Acts of the 75th Legislature, Regular
763-13 Session, 1997, is renumbered as Chapter 63, Code of Criminal
763-14 Procedure, and Articles 62.001, 62.002, 62.003, 62.004, 62.005,
763-15 62.006, 62.007, 62.008, 62.009, 62.010, 62.011, 62.012, 62.013,
763-16 62.014, 62.015, 62.016, 62.017, and 62.018, Code of Criminal
763-17 Procedure, as transferred by that Act, are renumbered as Articles
763-18 63.001, 63.002, 63.003, 63.004, 63.005, 63.006, 63.007, 63.008,
763-19 63.009, 63.010, 63.011, 63.012, 63.013, 63.014, 63.015, 63.016,
763-20 63.017, and 63.018, Code of Criminal Procedure, respectively.
763-21 (B) Sections 79.017, 79.018, 79.019, and 79.020,
763-22 Human Resources Code, as added by Chapter 1084, Acts of the 75th
763-23 Legislature, Regular Session, 1997, are renumbered as Articles
763-24 63.019, 63.020, 63.021, and 63.022, Code of Criminal Procedure,
763-25 respectively.
763-26 (C) Sections 79.017 and 79.018, Human Resources
764-1 Code, as added by Chapter 1376, Acts of the 75th Legislature,
764-2 Regular Session, 1997, are renumbered as Articles 63.023 and
764-3 63.024, Code of Criminal Procedure, respectively.
764-4 (9) Subchapter S, Chapter 51, Education Code, as added
764-5 by Chapter 1179, Acts of the 75th Legislature, Regular Session,
764-6 1997, is relettered as Subchapter T, Chapter 51, Education Code.
764-7 (10) Subchapter S, Chapter 51, Education Code, as
764-8 added by Chapter 155, Acts of the 75th Legislature, Regular
764-9 Session, 1997, is relettered as Subchapter U, Chapter 51, Education
764-10 Code.
764-11 (11) Section 54.212, Education Code, as added by
764-12 Chapter 327, Acts of the 74th Legislature, Regular Session, 1995,
764-13 is renumbered as Section 54.217, Education Code.
764-14 (12) Section 54.214, Education Code, as added by
764-15 Chapter 1073, Acts of the 75th Legislature, Regular Session, 1997,
764-16 is renumbered as Section 54.218, Education Code.
764-17 (13) Section 58.009, Education Code, as added by
764-18 Chapter 787, Acts of the 75th Legislature, Regular Session, 1997,
764-19 is renumbered as Section 58.010, Education Code.
764-20 (14) Subchapter G, Chapter 88, Education Code, as
764-21 added by Chapter 292, Acts of the 74th Legislature, Regular
764-22 Session, 1995, is relettered as Subchapter H, Chapter 88, Education
764-23 Code.
764-24 (15) Subsection (c), Section 41.001, Election Code, as
764-25 added by Chapter 1219, Acts of the 75th Legislature, Regular
764-26 Session, 1997, is relettered as Subsection (d), Section 41.001,
765-1 Election Code.
765-2 (16) Chapter 105, Election Code, as added by Chapter
765-3 842, Acts of the 75th Legislature, Regular Session, 1997, is
765-4 renumbered as Chapter 106, Election Code, and Sections 105.001 and
765-5 105.002, Election Code, as added by that Act, are renumbered as
765-6 Sections 106.001 and 106.002, Election Code, respectively.
765-7 (17) Subsection (g), Section 53.03, Family Code, as
765-8 added by Chapter 593, Acts of the 75th Legislature, Regular
765-9 Session, 1997, is relettered as Subsection (h), Section 53.03,
765-10 Family Code.
765-11 (18) Subsection (f), Section 54.042, Family Code, as
765-12 added by Chapter 1013, Acts of the 75th Legislature, Regular
765-13 Session, 1997, is relettered as Subsection (h), Section 54.042,
765-14 Family Code.
765-15 (19) Section 54.046, Family Code, as added by Chapter
765-16 1013, Acts of the 75th Legislature, Regular Session, 1997, is
765-17 renumbered as Section 54.047, Family Code.
765-18 (20) Subsection (m), Section 58.003, Family Code, as
765-19 added by Chapter 1086, Acts of the 75th Legislature, Regular
765-20 Session, 1997, is relettered as Subsection (n), Section 58.003,
765-21 Family Code.
765-22 (21) Subsection (f), Section 105.006, Family Code, as
765-23 added by Chapter 786, Acts of the 75th Legislature, Regular
765-24 Session, 1997, is relettered as Subsection (h), Section 105.006,
765-25 Family Code.
765-26 (22) Subsection (c), Section 231.101, Family Code, as
766-1 added by Chapter 702, Acts of the 75th Legislature, Regular
766-2 Session, 1997, is relettered as Subsection (e), Section 231.101,
766-3 Family Code.
766-4 (23) Section 231.115, Family Code, as added by Chapter
766-5 165, Acts of the 75th Legislature, Regular Session, 1997, is
766-6 renumbered as Section 231.117, Family Code.
766-7 (24) Chapter 233, Family Code, as added by Chapter
766-8 420, Acts of the 75th Legislature, Regular Session, 1997, is
766-9 renumbered as Chapter 235, Family Code, and Sections 233.001,
766-10 233.002, 233.003, and 233.004, Family Code, as added by that Act,
766-11 are renumbered as Sections 235.001, 235.002, 235.003, and 235.004,
766-12 Family Code, respectively.
766-13 (25) Chapter 234, Family Code, as added by Chapter
766-14 420, Acts of the 75th Legislature, Regular Session, 1997, is
766-15 renumbered as Chapter 236, Family Code, and Sections 234.001,
766-16 234.002, and 234.003, Family Code, as added by that Act, are
766-17 renumbered as Sections 236.001, 236.002, and 236.003, Family Code,
766-18 respectively.
766-19 (26) Subdivision (7), Section 261.001, Family Code, as
766-20 added by Chapter 575, Acts of the 75th Legislature, Regular
766-21 Session, 1997, is renumbered as Subdivision (8), Section 261.001,
766-22 Family Code.
766-23 (27) Section 261.315, Family Code, as added by Chapter
766-24 575, Acts of the 75th Legislature, Regular Session, 1997, is
766-25 renumbered as Section 261.316, Family Code.
766-26 (28) Subchapter J, Chapter 51, Government Code, as
767-1 added by Chapter 699, Acts of the 75th Legislature, Regular
767-2 Session, 1997, is relettered as Subchapter L, Chapter 51,
767-3 Government Code, and Sections 51.901, 51.902, and 51.903,
767-4 Government Code, as added by that Act, are renumbered as Sections
767-5 51.941, 51.942, and 51.943, Government Code, respectively.
767-6 (29) Subsection (f), Section 76.006, Government Code,
767-7 as added by Chapter 1240, Acts of the 75th Legislature, Regular
767-8 Session, 1997, is relettered as Subsection (g), Section 76.006,
767-9 Government Code.
767-10 (30) Section 403.026, Government Code, as added by
767-11 Chapter 1252, Acts of the 75th Legislature, Regular Session, 1997,
767-12 is renumbered as Section 403.0221, Government Code.
767-13 (31) Section 403.026, Government Code, as added by
767-14 Chapter 167, Acts of the 75th Legislature, Regular Session, 1997,
767-15 is renumbered as Section 403.0231, Government Code.
767-16 (32) Section 403.026, Government Code, as added by
767-17 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
767-18 is renumbered as Section 403.028, Government Code.
767-19 (33) Section 411.132, Government Code, as added by
767-20 Chapter 18, Acts of the 75th Legislature, Regular Session, 1997, is
767-21 renumbered as Section 411.1105, Government Code.
767-22 (34) Section 411.132, Government Code, as added by
767-23 Chapter 320, Acts of the 75th Legislature, Regular Session, 1997,
767-24 is renumbered as Section 411.1141, Government Code.
767-25 (35) Section 411.132, Government Code, as added by
767-26 Chapter 923, Acts of the 75th Legislature, Regular Session, 1997,
768-1 is renumbered as Section 411.1142, Government Code.
768-2 (36) Section 411.132, Government Code, as added by
768-3 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
768-4 is renumbered as Section 411.1143, Government Code.
768-5 (37) Section 411.132, Government Code, as added by
768-6 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
768-7 is renumbered as Section 411.133, Government Code.
768-8 (38) Section 411.132, Government Code, as added by
768-9 Chapter 1366, Acts of the 75th Legislature, Regular Session, 1997,
768-10 is renumbered as Section 411.134, Government Code.
768-11 (39) Section 411.135, Government Code, as added by
768-12 Chapter 440, Acts of the 75th Legislature, Regular Session, 1997,
768-13 is renumbered as Section 411.1005, Government Code.
768-14 (40) Subchapter L, Chapter 441, Government Code, as
768-15 added by Chapter 250, Acts of the 75th Legislature, Regular
768-16 Session, 1997, is relettered as Subchapter M, Chapter 441,
768-17 Government Code, and Sections 441.201, 441.202, 441.203, 441.204,
768-18 441.205, 441.206, 441.207, 441.208, 441.209, and 441.210,
768-19 Government Code, as added by that Act, are renumbered as Sections
768-20 441.221, 441.222, 441.223, 441.224, 441.225, 441.226, 441.227,
768-21 441.228, 441.229, and 441.230, Government Code, respectively.
768-22 (41) Subchapter L, Chapter 441, Government Code, as
768-23 added by Chapter 872, Acts of the 75th Legislature, Regular
768-24 Session, 1997, is relettered as Subchapter N, Chapter 441,
768-25 Government Code, and Sections 441.201, 441.202, 441.203, 441.204,
768-26 441.205, and 441.206, Government Code, as added by that Act, are
769-1 renumbered as Sections 441.241, 441.242, 441.243, 441.244, 441.245,
769-2 and 441.246, Government Code, respectively.
769-3 (42) Section 443.015, Government Code, as added by
769-4 Chapter 1141, Acts of the 75th Legislature, Regular Session, 1997,
769-5 is renumbered as Section 443.024, Government Code.
769-6 (43) Section 493.0052, Government Code, as added by
769-7 Chapter 1360, Acts of the 75th Legislature, Regular Session, 1997,
769-8 is renumbered as Section 493.0053, Government Code.
769-9 (44) Section 493.0082, Government Code, as added by
769-10 Chapter 1360, Acts of the 75th Legislature, Regular Session, 1997,
769-11 is renumbered as Section 493.0083, Government Code.
769-12 (45) Section 501.061, Government Code, as added by
769-13 Chapter 257, Acts of the 75th Legislature, Regular Session, 1997,
769-14 is renumbered as Section 501.063, Government Code.
769-15 (46) Section 531.0215, Government Code, as added by
769-16 Chapter 1244, Acts of the 75th Legislature, Regular Session, 1997,
769-17 is renumbered as Section 531.0216, Government Code.
769-18 (47) Section 531.047, Government Code, as added by
769-19 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
769-20 is renumbered as Section 531.050, Government Code.
769-21 (48) Section 531.047, Government Code, as added by
769-22 Chapter 1251, Acts of the 75th Legislature, Regular Session, 1997,
769-23 is renumbered as Section 531.0217, Government Code.
769-24 (49) Section 532.112, Government Code, as added by
769-25 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
769-26 is renumbered as Section 532.114, Government Code.
770-1 (50) Section 551.126, Government Code, as added by
770-2 Chapter 1038, Acts of the 75th Legislature, Regular Session, 1997,
770-3 is renumbered as Section 551.127, Government Code.
770-4 (51) Section 552.127, Government Code, as added by
770-5 Chapter 1227, Acts of the 75th Legislature, Regular Session, 1997,
770-6 is renumbered as Section 552.128, Government Code.
770-7 (52) Section 552.127, Government Code, as added by
770-8 Chapter 1069, Acts of the 75th Legislature, Regular Session, 1997,
770-9 is renumbered as Section 552.129, Government Code.
770-10 (53) Section 612.004, Government Code, as added by
770-11 Chapter 760, Acts of the 75th Legislature, Regular Session, 1997,
770-12 is renumbered as Section 612.005, Government Code.
770-13 (54) Section 824.1012, Government Code, as added by
770-14 Chapter 401, Acts of the 75th Legislature, Regular Session, 1997,
770-15 is renumbered as Section 824.1013, Government Code.
770-16 (55) Chapter 2008, Government Code, as added by
770-17 Chapter 934, Acts of the 75th Legislature, Regular Session, 1997,
770-18 is renumbered as Chapter 2009, Government Code, and Sections
770-19 2008.001, 2008.002, 2008.003, 2008.004, 2008.005, 2008.051,
770-20 2008.052, 2008.053, 2008.054, and 2008.055, Government Code, as
770-21 added by that Act, are renumbered as Sections 2009.001, 2009.002,
770-22 2009.003, 2009.004, 2009.005, 2009.051, 2009.052, 2009.053,
770-23 2009.054, and 2009.055, Government Code, respectively.
770-24 (56) Section 2054.060, Government Code, as added by
770-25 Chapter 538, Acts of the 75th Legislature, Regular Session, 1997,
770-26 is renumbered as Section 2054.057, Government Code.
771-1 (57) Section 2155.074, Government Code, as added by
771-2 Chapter 508, Acts of the 75th Legislature, Regular Session, 1997,
771-3 is renumbered as Section 2155.083, Government Code.
771-4 (58) Section 2155.144, Government Code, as added by
771-5 Chapter 165, Acts of the 75th Legislature, Regular Session, 1997,
771-6 is renumbered as Section 2155.1441, Government Code.
771-7 (59) Subchapter Y, Chapter 2306, Government Code, as
771-8 added by Chapter 978, Acts of the 74th Legislature, Regular
771-9 Session, 1995, is relettered as Subchapter AA, Chapter 2306,
771-10 Government Code.
771-11 (60) Subchapter AA, Chapter 2306, Government Code, as
771-12 added by Chapter 980, Acts of the 75th Legislature, Regular
771-13 Session, 1997, is relettered as Subchapter CC, Chapter 2306,
771-14 Government Code.
771-15 (61) Subchapter BB, Chapter 2306, Government Code, as
771-16 added by Chapter 980, Acts of the 75th Legislature, Regular
771-17 Session, 1997, is relettered as Subchapter DD, Chapter 2306,
771-18 Government Code.
771-19 (62) Section 12.020, Health and Safety Code, as added
771-20 by Chapter 647, Acts of the 75th Legislature, Regular Session,
771-21 1997, is renumbered as Section 12.0122, Health and Safety Code.
771-22 (63) Subchapter E, Chapter 106, Health and Safety
771-23 Code, as added by Chapter 644, Acts of the 75th Legislature,
771-24 Regular Session, 1997, is relettered as Subchapter F, Chapter 106,
771-25 Health and Safety Code, and Sections 106.101, 106.102, 106.103,
771-26 106.104, 106.105, and 106.106, Health and Safety Code, as added by
772-1 that Act, are renumbered as Sections 106.151, 106.152, 106.153,
772-2 106.154, 106.155, and 106.156, Health and Safety Code,
772-3 respectively.
772-4 (64) Subchapter N, Chapter 161, Health and Safety
772-5 Code, as added by Chapter 1216, Acts of the 75th Legislature,
772-6 Regular Session, 1997, is relettered as Subchapter P, Chapter 161,
772-7 Health and Safety Code, and Sections 161.251, 161.252, 161.253,
772-8 161.254, and 161.255, Health and Safety Code, as added by that Act,
772-9 are renumbered as Sections 161.351, 161.352, 161.353, 161.354, and
772-10 161.355, Health and Safety Code, respectively.
772-11 (65) Section 245.017, Health and Safety Code, as added
772-12 by Chapter 1120, Acts of the 75th Legislature, Regular Session,
772-13 1997, is renumbered as Section 245.023, Health and Safety Code.
772-14 (66) Section 247.029, Health and Safety Code, as added
772-15 by Chapter 1088, Acts of the 75th Legislature, Regular Session,
772-16 1997, is renumbered as Section 247.030, Health and Safety Code.
772-17 (67) Section 361.116, Health and Safety Code, as added
772-18 by Chapter 276, Acts of the 75th Legislature, Regular Session,
772-19 1997, is renumbered as Section 361.117, Health and Safety Code.
772-20 (68) Subsection (d), Section 461.012, Health and
772-21 Safety Code, as added by Chapter 825, Acts of the 75th Legislature,
772-22 Regular Session, 1997, is relettered as Subsection (f), Section
772-23 461.012, Health and Safety Code.
772-24 (69) Section 22.0291, Human Resources Code, as added
772-25 by Chapter 1153, Acts of the 75th Legislature, Regular Session,
772-26 1997, is renumbered as Section 22.0292, Human Resources Code.
773-1 (70) Section 22.032, Human Resources Code, as added by
773-2 Chapter 1094, Acts of the 75th Legislature, Regular Session, 1997,
773-3 is renumbered as Section 22.0325, Human Resources Code.
773-4 (71) Section 31.0321, Human Resources Code, as added
773-5 by Chapter 1442, Acts of the 75th Legislature, Regular Session,
773-6 1997, is renumbered as Section 31.0322, Human Resources Code.
773-7 (72) Section 31.043, Human Resources Code, as added by
773-8 Chapters 322 and 458, Acts of the 75th Legislature, Regular
773-9 Session, 1997, is renumbered as Section 31.044, Human Resources
773-10 Code.
773-11 (73) Section 32.0246, Human Resources Code, as added
773-12 by Chapter 555, Acts of the 75th Legislature, Regular Session,
773-13 1997, is renumbered as Section 32.0244, Human Resources Code.
773-14 (74) Section 32.043, Human Resources Code, as added by
773-15 Chapter 618, Acts of the 75th Legislature, Regular Session, 1997,
773-16 is renumbered as Section 32.048, Human Resources Code.
773-17 (75) Section 32.043, Human Resources Code, as added by
773-18 Chapter 692, Acts of the 75th Legislature, Regular Session, 1997,
773-19 is renumbered as Section 32.049, Human Resources Code.
773-20 (76) Section 32.043, Human Resources Code, as added by
773-21 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
773-22 is renumbered as Section 32.050, Human Resources Code.
773-23 (77) Section 32.044, Human Resources Code, as added by
773-24 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
773-25 is renumbered as Section 32.051, Human Resources Code.
773-26 (78) Section 33.012, Human Resources Code, as added by
774-1 Chapter 456, Acts of the 75th Legislature, Regular Session, 1997,
774-2 is renumbered as Section 33.0125, Human Resources Code.
774-3 (79) Section 40.0563, Human Resources Code, as added
774-4 by Chapter 1022, Acts of the 75th Legislature, Regular Session,
774-5 1997, is renumbered as Section 40.0566, Human Resources Code.
774-6 (80) Section 61.051, Human Resources Code, as added by
774-7 Chapter 1093, Acts of the 75th Legislature, Regular Session, 1997,
774-8 is renumbered as Section 61.054, Human Resources Code.
774-9 (81) Section 301.067, Labor Code, as added by Chapter
774-10 228, Acts of the 75th Legislature, Regular Session, 1997, is
774-11 renumbered as Section 301.0671, Labor Code.
774-12 (82) Section 301.067, Labor Code, as added by Chapter
774-13 456, Acts of the 75th Legislature, Regular Session, 1997, is
774-14 renumbered as Section 301.0672, Labor Code.
774-15 (83) Section 302.003, Labor Code, as added by Chapter
774-16 684, Acts of the 75th Legislature, Regular Session, 1997, is
774-17 renumbered as Section 302.005, Labor Code.
774-18 (84) Section 51.002, Local Government Code, is
774-19 renumbered as Section 215.005, Local Government Code.
774-20 (85) Subsection (d), Section 262.030, Local Government
774-21 Code, as added by Chapter 746, Acts of the 74th Legislature,
774-22 Regular Session, 1995, is relettered as Subsection (e), Section
774-23 262.030, Local Government Code.
774-24 (86) Subchapter D, Chapter 376, Local Government Code,
774-25 as added by Chapter 275, Acts of the 75th Legislature, Regular
774-26 Session, 1997, is relettered as Subchapter E, Chapter 376, Local
775-1 Government Code, and Sections 376.121, 376.122, 376.123, 376.124,
775-2 376.125, 376.126, 376.127, 376.128, 376.129, 376.130, 376.131,
775-3 376.132, 376.133, 376.134, 376.135, 376.136, 376.137, 376.138,
775-4 376.139, and 376.140, Local Government Code, as added by that Act,
775-5 are renumbered as Sections 376.151, 376.152, 376.153, 376.154,
775-6 376.155, 376.156, 376.157, 376.158, 376.159, 376.160, 376.161,
775-7 376.162, 376.163, 376.164, 376.165, 376.166, 376.167, 376.168,
775-8 376.169, and 376.170, Local Government Code, respectively.
775-9 (87) Section 402.906, Local Government Code, as added
775-10 by Chapter 171, Acts of the 75th Legislature, Regular Session,
775-11 1997, is renumbered as Section 402.907, Local Government Code.
775-12 (88) Section 32.49, Penal Code, as added by Chapter
775-13 730, Acts of the 75th Legislature, Regular Session, 1997, is
775-14 renumbered as Section 32.50, Penal Code.
775-15 (89) Section 5.010, Property Code, as added by Chapter
775-16 1239, Acts of the 75th Legislature, Regular Session, 1997, is
775-17 renumbered as Section 5.011, Property Code.
775-18 (90) Subsection (f), Section 74.705, Property Code, as
775-19 added by Chapter 888, Acts of the 75th Legislature, Regular
775-20 Session, 1997, is relettered as Subsection (g), Section 74.705,
775-21 Property Code.
775-22 (91) Section 25, Chapter 141, Property Code, as added
775-23 by Chapter 221, Acts of the 75th Legislature, Regular Session,
775-24 1997, is renumbered as Section 141.025, Property Code.
775-25 (92) Subsection (r), Section 151.318, Tax Code, as
775-26 added by Chapter 1040, Acts of the 75th Legislature, Regular
776-1 Session, 1997, is relettered as Subsection (t), Section 151.318,
776-2 Tax Code.
776-3 (93) Section 201.610, Transportation Code, as added by
776-4 Chapter 165, Acts of the 75th Legislature, Regular Session, 1997,
776-5 is renumbered as Section 201.612, Transportation Code.
776-6 (94) Section 201.905, Transportation Code, as added by
776-7 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
776-8 is renumbered as Section 201.906, Transportation Code.
776-9 (95) Section 225.034, Transportation Code, as added by
776-10 Chapter 44, Acts of the 75th Legislature, Regular Session, 1997, is
776-11 renumbered as Section 225.036, Transportation Code.
776-12 (96) Section 225.034, Transportation Code, as added by
776-13 Chapter 57, Acts of the 75th Legislature, Regular Session, 1997, is
776-14 renumbered as Section 225.037, Transportation Code.
776-15 (97) Section 225.034, Transportation Code, as added by
776-16 Chapter 190, Acts of the 75th Legislature, Regular Session, 1997,
776-17 is renumbered as Section 225.038, Transportation Code.
776-18 (98) Section 225.034, Transportation Code, as added by
776-19 Chapter 519, Acts of the 75th Legislature, Regular Session, 1997,
776-20 is renumbered as Section 225.039, Transportation Code.
776-21 (99) Section 225.034, Transportation Code, as added by
776-22 Chapter 595, Acts of the 75th Legislature, Regular Session, 1997,
776-23 is renumbered as Section 225.040, Transportation Code.
776-24 (100) Section 502.009, Transportation Code, as added
776-25 by Chapter 625, Acts of the 75th Legislature, Regular Session,
776-26 1997, is renumbered as Section 502.0021, Transportation Code.
777-1 (101) Section 502.291, Transportation Code, as added
777-2 by Chapter 165, Acts of the 75th Legislature, Regular Session,
777-3 1997, is renumbered as Section 502.2704, Transportation Code.
777-4 (102) Section 502.292, Transportation Code, as added
777-5 by Chapter 61, Acts of the 75th Legislature, Regular Session, 1997,
777-6 is renumbered as Section 502.2921, Transportation Code.
777-7 (103) Section 502.292, Transportation Code, as added
777-8 by Chapter 1312, Acts of the 75th Legislature, Regular Session,
777-9 1997, is renumbered as Section 502.2661, Transportation Code.
777-10 (104) Section 502.293, Transportation Code, as added
777-11 by Chapter 1222, Acts of the 75th Legislature, Regular Session,
777-12 1997, is renumbered as Section 502.2951, Transportation Code.
777-13 (105) Section 502.293, Transportation Code, as added
777-14 by Chapter 1247, Acts of the 75th Legislature, Regular Session,
777-15 1997, and Section 502.294, Transportation Code, as added by Chapter
777-16 1222, Acts of the 75th Legislature, Regular Session, 1997, are
777-17 renumbered as Section 502.2721, Transportation Code.
777-18 (106) Section 502.295, Transportation Code, as added
777-19 by Chapter 581, Acts of the 75th Legislature, Regular Session,
777-20 1997, is renumbered as Section 502.2732, Transportation Code.
777-21 (107) Subsection (d), Section 623.093, Transportation
777-22 Code, as added by Chapter 165, Acts of the 75th Legislature,
777-23 Regular Session, 1997, is relettered as Subsection (f), Section
777-24 623.093, Transportation Code.
777-25 (108) Section 5.123, Water Code, as added by Chapters
777-26 304 and 1082, Acts of the 75th Legislature, Regular Session, 1997,
778-1 is renumbered as Section 5.124, Water Code.
778-2 (109) Section 5.238, Water Code, as added by Chapter
778-3 302, Acts of the 75th Legislature, Regular Session, 1997, is
778-4 renumbered as Section 5.222, Water Code.
778-5 (110) Section 13.143, Water Code, as added by Chapter
778-6 1010, Acts of the 75th Legislature, Regular Session, 1997, is
778-7 renumbered as Section 13.144, Water Code.
778-8 SECTION 19.02. The following cross-reference changes are
778-9 made to conform the provisions amended to the renumbering changes
778-10 made by Section 19.01 of this Act.
778-11 (1) Article 62.012, Code of Criminal Procedure, as
778-12 transferred by Chapter 1427, Acts of the 75th Legislature, Regular
778-13 Session, 1997, is renumbered as Article 63.012, Code of Criminal
778-14 Procedure, and amended to read as follows:
778-15 Art. 63.012 [62.012]. REPORT OF INQUIRY. A law enforcement
778-16 agency to which a request has been made under Article 63.011
778-17 [62.011] of this code shall report to the parent on the results of
778-18 its inquiry within 14 days after the day that the written request
778-19 is filed with the law enforcement agency.
778-20 (2) Subsection (c), Article 63.023, Code of Criminal
778-21 Procedure, as renumbered from Section 79.017, Human Resources Code,
778-22 by Section 19.01 of this Act, is amended to read as follows:
778-23 (c) Notice of a proceeding shall be issued and served as
778-24 provided by Section 63.024 [79.018].
778-25 (3) Subsection (a), Article 63.024, Code of Criminal
778-26 Procedure, as renumbered from Section 79.018, Human Resources Code,
779-1 by Section 19.01 of this Act, is amended to read as follows:
779-2 (a) On the filing of an application under Section 63.023
779-3 [79.017], the court clerk shall issue a citation that states that
779-4 the application for receivership was filed and includes:
779-5 (1) the name of the missing person; and
779-6 (2) the name of the applicant.
779-7 (4) Subsection (a), Section 235.001, Family Code, as
779-8 renumbered from Section 233.001, Family Code, by Section 19.01 of
779-9 this Act, is amended to read as follows:
779-10 (a) The state case registry shall provide information under
779-11 this chapter on the written request of a custodial parent whose
779-12 case:
779-13 (1) is included in the state case registry established
779-14 under 42 U.S.C. Section 654a and for whom the Title IV-D agency is
779-15 not providing enforcement services; or
779-16 (2) would otherwise not be required to be included in
779-17 the state case registry under 42 U.S.C. Section 654a but who has
779-18 applied for inclusion under Section 235.002 [233.002].
779-19 (5) Section 233.003, Family Code, as added by Chapter
779-20 420, Acts of the 75th Legislature, Regular Session, 1997, is
779-21 renumbered as Section 235.003, Family Code, and amended to read as
779-22 follows:
779-23 Sec. 235.003 [233.003]. APPLICATION FOR SERVICES NOT
779-24 REQUIRED. The Title IV-D agency may not require an application for
779-25 services as a condition for:
779-26 (1) releasing information under Section 235.001
780-1 [233.001] to a custodial parent or to the person designated by the
780-2 parent; or
780-3 (2) including a case in the state case registry under
780-4 Section 235.002 [233.002].
780-5 (6) Subsection (a), Section 235.004, Family Code, as
780-6 renumbered from Section 233.004, Family Code, by Section 19.01 of
780-7 this Act, is amended to read as follows:
780-8 (a) The state case registry may charge a fee for:
780-9 (1) including in the registry a child support case
780-10 entered in the registry under Section 235.002 [233.002]; and
780-11 (2) providing information concerning a case as
780-12 authorized by Section 235.001 [233.001].
780-13 (7) Section 413.022(a), Government Code, is amended to
780-14 read as follows:
780-15 (a) The policy council shall develop methods for measuring
780-16 the success of each program or service determined by the Texas
780-17 Board of Criminal Justice under Section 493.0053 [493.0052] to be
780-18 designed for the primary purpose of rehabilitating inmates. On
780-19 request of the policy council, the provider of a program or service
780-20 or a representative of Sam Houston State University, the Texas
780-21 Workforce Commission, or the Texas Department of Criminal Justice
780-22 shall assist the policy council in developing the methods required
780-23 by this section. The Texas Department of Criminal Justice shall
780-24 assist the council by collecting data in accordance with those
780-25 methods.
780-26 (8) Section 501.014(g), Government Code, is amended to
781-1 read as follows:
781-2 (g) The department shall withdraw money from an inmate's
781-3 trust fund under Subsection (e) before the department applies a
781-4 deposit to that fund toward any unpaid balance owed to the
781-5 department by the inmate under Section 501.063 [501.061].
781-6 (9) Section 2003.001(2), Government Code, is amended
781-7 to read as follows:
781-8 (2) "Alternative dispute resolution procedure" has the
781-9 meaning assigned by Section 2009.003 [2008.003].
781-10 (10) Section 2003.042(a), Government Code, is amended
781-11 to read as follows:
781-12 (a) An administrative law judge employed by the office or a
781-13 temporary administrative law judge may:
781-14 (1) administer an oath;
781-15 (2) take testimony;
781-16 (3) rule on a question of evidence;
781-17 (4) issue an order relating to discovery or another
781-18 hearing or prehearing matter, including an order imposing a
781-19 sanction;
781-20 (5) issue an order that refers a case to an
781-21 alternative dispute resolution procedure, determines how the costs
781-22 of the procedure will be apportioned, and appoints an impartial
781-23 third party as described by Section 2009.053 [2008.053] to
781-24 facilitate that procedure;
781-25 (6) issue a proposal for decision that includes
781-26 findings of fact and conclusions of law;
782-1 (7) [(6)] if expressly authorized by a state agency
782-2 rule adopted under Section 2001.058(f), make the final decision in
782-3 a contested case;[.]
782-4 (8) [(7)] serve as an impartial third party as
782-5 described by Section 2009.053 [2008.053] for a dispute referred by
782-6 an administrative law judge, unless one of the parties objects to
782-7 the appointment; and
782-8 (9) [(8)] serve as an impartial third party as
782-9 described by Section 2009.053 [2008.053] for a dispute referred by
782-10 a government agency under a contract.
782-11 (11) Section 12.035(a), Health and Safety Code, is
782-12 amended to read as follows:
782-13 (a) The department shall deposit all money collected for
782-14 fees and charges collected under Sections 12.0122(d) [12.020(d)]
782-15 and 12.032(a) in the state treasury to the credit of the Texas
782-16 Department of Health public health services fee fund.
782-17 (12) Subsection (a), Section 161.352, Health and
782-18 Safety Code, as renumbered from Section 161.252, Health and Safety
782-19 Code, by Section 19.01 of this Act, is amended to read as follows:
782-20 (a) Each manufacturer shall file with the department an
782-21 annual report for each cigarette or tobacco product distributed in
782-22 this state, stating:
782-23 (1) the identity of each ingredient in the cigarette
782-24 or tobacco product, listed in descending order according to weight,
782-25 measure, or numerical count, other than:
782-26 (A) tobacco;
783-1 (B) water; or
783-2 (C) a reconstituted tobacco sheet made wholly
783-3 from tobacco; and
783-4 (2) a nicotine yield rating for the cigarette or
783-5 tobacco product established under Section 161.353 [161.253].
783-6 (13) Subsection (a), Section 161.355, Health and
783-7 Safety Code, as renumbered from Section 161.255, Health and Safety
783-8 Code, by Section 19.01 of this Act, is amended to read as follows:
783-9 (a) A district court, on petition of the department and on a
783-10 finding by the court that a manufacturer has failed to file the
783-11 report required by Section 161.352 [161.252], may by injunction:
783-12 (1) prohibit the sale or distribution in this state of
783-13 a cigarette or tobacco product manufactured by the manufacturer; or
783-14 (2) grant any other injunctive relief warranted by the
783-15 facts.
783-16 (14) Section 245.011(d), Health and Safety Code, is
783-17 amended to read as follows:
783-18 (d) Except as provided by Section 245.023 [245.017], all
783-19 information and records held by the department under this chapter
783-20 are confidential and are not open records for the purposes of
783-21 Chapter 552, Government Code. That information may not be released
783-22 or made public on subpoena or otherwise, except that release may be
783-23 made:
783-24 (1) for statistical purposes, but only if a person,
783-25 patient, or abortion facility is not identified;
783-26 (2) with the consent of each person, patient, and
784-1 abortion facility identified in the information released;
784-2 (3) to medical personnel, appropriate state agencies,
784-3 or county and district courts to enforce this chapter; or
784-4 (4) to appropriate state licensing boards to enforce
784-5 state licensing laws.
784-6 (15) Subsection (a), Section 376.167, Local Government
784-7 Code, as renumbered from Section 376.137, Local Government Code, by
784-8 Section 19.01 of this Act, is amended to read as follows:
784-9 (a) If authorized at an election held in accordance with
784-10 Section 376.166 [376.136], the district may impose and collect an
784-11 annual ad valorem tax on taxable property in the district for the
784-12 maintenance, restoration, replacement, or operation of the district
784-13 and the improvements constructed or acquired by the district or the
784-14 facilities, works, or services of the district.
784-15 SECTION 19.03. If the number, letter, or designation
784-16 assigned by this article conflicts with a number, letter, or
784-17 designation assigned by another Act of the 76th Legislature, the
784-18 other Act controls, and the number, letter, or designation assigned
784-19 by this article has no effect.
784-20 ARTICLE 20. EFFECTIVE DATE; EMERGENCY
784-21 SECTION 20.01. This Act takes effect September 1, 1999.
784-22 SECTION 20.02. The importance of this legislation and the
784-23 crowded condition of the calendars in both houses create an
784-24 emergency and an imperative public necessity that the
784-25 constitutional rule requiring bills to be read on three several
784-26 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1368 passed the Senate on
March 30, 1999, by the following vote: Yeas 30, Nays 0.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1368 passed the House on
April 23, 1999, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor