By Harris S.B. No. 1368
76R5 DWS-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to nonsubstantive additions to and corrections in enacted
1-3 codes, including the nonsubstantive codification of various laws
1-4 omitted from enacted codes, and to conforming codifications enacted
1-5 by the 75th Legislature to other Acts of that legislature.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 ARTICLE 1. GENERAL PROVISIONS
1-8 SECTION 1.01. This Act is enacted as part of the state's
1-9 continuing statutory revision program under Chapter 323, Government
1-10 Code. This Act is a revision for purposes of Section 43, Article
1-11 III, Texas Constitution, and has the purposes of:
1-12 (1) codifying without substantive change various
1-13 statutes that were omitted from enacted codes;
1-14 (2) conforming codifications enacted by the 75th
1-15 Legislature to other Acts of that legislature that amended the laws
1-16 codified or added new law to subject matter codified;
1-17 (3) making necessary corrections to enacted
1-18 codifications; and
1-19 (4) renumbering titles, chapters, and sections of
1-20 codes that duplicate title, chapter, or section numbers.
1-21 SECTION 1.02. (a) The repeal of a statute by this Act does
1-22 not affect an amendment, revision, or reenactment of the statute by
1-23 the 76th Legislature, Regular Session, 1999. The amendment,
1-24 revision, or reenactment is preserved and given effect as part of
2-1 the code provision that revised the statute so amended, revised, or
2-2 reenacted.
2-3 (b) If any provision of this Act conflicts with a statute
2-4 enacted by the 76th Legislature, Regular Session, 1999, the statute
2-5 controls.
2-6 SECTION 1.03. (a) A transition or saving provision of a law
2-7 codified by this Act applies to the codified law to the same extent
2-8 as it applied to the original law.
2-9 (b) The repeal of a transition or saving provision by this
2-10 Act does not affect the application of the provision to the
2-11 codified law.
2-12 (c) In this section, "transition provision" includes any
2-13 temporary provision providing for a special situation in the
2-14 transition period between the existing law and the establishment or
2-15 implementation of the new law.
2-16 ARTICLE 2. CHANGES RELATING TO ALCOHOLIC BEVERAGE CODE
2-17 SECTION 2.01. Section 106.115, Alcoholic Beverage Code, as
2-18 amended by Chapters 577 and 1013, Acts of the 75th Legislature,
2-19 Regular Session, 1997, is amended and reenacted to read as follows:
2-20 Sec. 106.115. ATTENDANCE AT ALCOHOL AWARENESS COURSE;
2-21 LICENSE SUSPENSION. (a) On conviction of a minor of an offense
2-22 under Section 106.02, 106.025, 106.04, 106.041, 106.05, or 106.07
2-23 the court, in addition to assessing a fine as provided by those
2-24 sections, shall require a defendant who has not been previously
2-25 convicted of an offense under one of those sections to attend an
2-26 alcohol awareness program approved by the Texas Commission on
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3-1 Alcohol and Drug Abuse. If the defendant has been previously
3-2 convicted once or more of an offense under one or more of those
3-3 sections, the court may require the defendant to attend the alcohol
3-4 awareness course. If the defendant is younger than 18 years of
3-5 age, the court may require the parent or guardian of the defendant
3-6 to attend the program with the defendant. The Texas Commission on
3-7 Alcohol and Drug Abuse:
3-8 (1) is responsible for the administration of the
3-9 certification of approved alcohol awareness programs;
3-10 (2) may charge a nonrefundable application fee for:
3-11 (A) initial certification of the approval; or
3-12 (B) renewal of the certification;
3-13 (3) shall adopt rules regarding alcohol awareness
3-14 programs approved under this section; and
3-15 (4) shall monitor, coordinate, and provide training to
3-16 a person who provides an alcohol awareness program.
3-17 [(b) If the defendant resides in a rural or other area in
3-18 which access to an alcohol awareness program is not readily
3-19 available, the court shall require the defendant to perform eight
3-20 to 12 hours of community service instead of participating in an
3-21 alcohol awareness program.]
3-22 (b) When requested, an alcohol awareness program may be
3-23 taught in languages other than English.
3-24 (c) The court shall require the defendant to present to the
3-25 court, within 90 days of the date of final conviction, evidence in
3-26 the form prescribed by the court that the defendant, as ordered by
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4-1 the court, has satisfactorily completed an alcohol awareness
4-2 program or performed the required hours of community service. For
4-3 good cause the court may extend this period by not more than 90
4-4 days. If the defendant presents the required evidence within the
4-5 prescribed period, the court may reduce the assessed fine to an
4-6 amount equal to no less than one-half of the amount of the initial
4-7 fine.
4-8 (d) If the defendant does not present the required evidence
4-9 within the prescribed period, the court shall order the Department
4-10 of Public Safety to suspend the defendant's driver's license or
4-11 permit for a period not to exceed six months or, if the defendant
4-12 does not have a license or permit, to deny the issuance of a
4-13 license or permit to the defendant for that period.
4-14 (e) The Department of Public Safety shall send notice of the
4-15 suspension or prohibition order issued under Subsection (d) by
4-16 certified mail, return receipt requested, to the defendant. The
4-17 notice must include the date of the suspension or prohibition
4-18 order, the reason for the suspension or prohibition, and the period
4-19 covered by the suspension or prohibition.
4-20 ARTICLE 3. CHANGES RELATING TO CODE OF
4-21 CRIMINAL PROCEDURE
4-22 SECTION 3.01. Subsection (c), Article 2.121, Code of
4-23 Criminal Procedure, is amended to correct references to read as
4-24 follows:
4-25 (c) A railroad peace officer may not issue a traffic
4-26 citation for a violation of Chapter 521, Transportation Code [173,
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5-1 Acts of the 47th Legislature, Regular Session, 1941 (Article 6687b,
5-2 Vernon's Texas Civil Statutes)], or Subtitle C, Title 7,
5-3 Transportation Code [the Uniform Act Regulating Traffic on Highways
5-4 (Article 6701d, Vernon's Texas Civil Statutes)].
5-5 SECTION 3.02. Subsection (g), Article 14.03, Code of
5-6 Criminal Procedure, is amended to correct a reference to read as
5-7 follows:
5-8 (g) A peace officer [who is] listed in Subdivision (1), (2),
5-9 (3), or (4), Article 2.12, who is licensed under Chapter 415,
5-10 Government Code, and is outside of the officer's jurisdiction may
5-11 arrest without a warrant a person who commits any offense within
5-12 the officer's presence or view, except that an officer who is
5-13 outside the officer's jurisdiction may arrest a person for a
5-14 violation of Subtitle C, Title 7, Transportation Code, [the Uniform
5-15 Act Regulating Traffic on Highways (Article 6701d, Vernon's Texas
5-16 Civil Statutes)] only if the officer is listed in Subdivision (4),
5-17 Article 2.12. A peace officer making an arrest under this
5-18 subsection shall as soon as practicable after making the arrest
5-19 notify a law enforcement agency having jurisdiction where the
5-20 arrest was made. The law enforcement agency shall then take
5-21 custody of the person committing the offense and take the person
5-22 before a magistrate in compliance with Article 14.06.
5-23 SECTION 3.03. Article 42.111, Code of Criminal Procedure, is
5-24 amended to correct references to read as follows:
5-25 Art. 42.111. DEFERRAL OF PROCEEDINGS IN CASES APPEALED TO
5-26 COUNTY COURT. If a defendant convicted of a misdemeanor punishable
76R5 GWK-D 5
6-1 by fine only appeals the conviction to a county court, on the trial
6-2 in county court the defendant may enter a plea of guilty or nolo
6-3 contendere to the offense. If the defendant enters a plea of
6-4 guilty or nolo contendere, the court may defer further proceedings
6-5 without entering an adjudication of guilt in the same manner as
6-6 provided for the deferral of proceedings in justice court or
6-7 municipal court under Article 45.54 of this code. This article
6-8 does not apply to a misdemeanor case disposed of under Subchapter
6-9 B, Chapter 543, Transportation Code [by Section 143A, Uniform Act
6-10 Regulating Traffic on Highways (Article 6701d, Vernon's Texas Civil
6-11 Statutes)], or a serious traffic violation as defined in Section
6-12 522.003 of that code [3(26), Texas Commercial Driver's License Act
6-13 (Article 6687b-2, Revised Statutes)].
6-14 SECTION 3.04. Subsections (g), (h), (i), (j), (k), and (m),
6-15 Section 13, Article 42.12, Code of Criminal Procedure, are amended
6-16 to correct references to read as follows:
6-17 (g) A jury that recommends community supervision for a
6-18 person convicted of an offense under Sections 49.04-49.08, Penal
6-19 Code, may recommend that any driver's license issued to the
6-20 defendant under Chapter 521, Transportation Code [173, Acts of the
6-21 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
6-22 Texas Civil Statutes)], not be suspended.
6-23 (h) If a person convicted of an offense under Sections
6-24 49.04-49.08, Penal Code, is placed on community supervision, the
6-25 judge shall require, as a condition of the community supervision,
6-26 that the defendant attend and successfully complete before the
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7-1 181st day after the day community supervision is granted an
7-2 educational program jointly approved by the Texas Commission on
7-3 Alcohol and Drug Abuse, the Department of Public Safety, the
7-4 Traffic Safety Section of the Texas Department of Transportation,
7-5 and the community justice assistance division of the Texas
7-6 Department of Criminal Justice designed to rehabilitate persons who
7-7 have driven while intoxicated. The Texas Commission on Alcohol and
7-8 Drug Abuse shall publish the jointly approved rules and shall
7-9 monitor, coordinate, and provide training to persons providing the
7-10 educational programs. The Texas Commission on Alcohol and Drug
7-11 Abuse is responsible for the administration of the certification of
7-12 approved educational programs and may charge a nonrefundable
7-13 application fee for the initial certification of approval and for
7-14 renewal of a certificate. The judge may waive the educational
7-15 program requirement or may grant an extension of time to
7-16 successfully complete the program that expires not later than one
7-17 year after the beginning date of the person's community supervision
7-18 [probation], however, if the defendant by a motion in writing shows
7-19 good cause. In determining good cause, the judge may consider but
7-20 is not limited to: the defendant's school and work schedule, the
7-21 defendant's health, the distance that the defendant must travel to
7-22 attend an educational program, and the fact that the defendant
7-23 resides out of state, has no valid driver's license, or does not
7-24 have access to transportation. The judge shall set out the finding
7-25 of good cause for waiver in the judgment. If a defendant is
7-26 required, as a condition of community supervision, to attend an
76R5 GWK-D 7
8-1 educational program or if the court waives the educational program
8-2 requirement, the court clerk shall immediately report that fact to
8-3 the Department of Public Safety, on a form prescribed by the
8-4 department, for inclusion in the person's driving record. If the
8-5 court grants an extension of time in which the person may complete
8-6 the program, the court clerk shall immediately report that fact to
8-7 the Department of Public Safety on a form prescribed by the
8-8 department. The report must include the beginning date of the
8-9 person's community supervision. Upon the successful completion of
8-10 the educational program, the person shall give notice to the
8-11 community supervision and corrections department. The department
8-12 shall then forward the notice to the court clerk. The court clerk
8-13 shall then report the date of successful completion of the
8-14 educational program to the Department of Public Safety for
8-15 inclusion in the defendant's driving record. If the department
8-16 does not receive notice that a defendant required to complete an
8-17 educational program has successfully completed the program within
8-18 the period required by this section, as shown on department
8-19 records, the department shall revoke the defendant's driver's
8-20 license, permit, or privilege or prohibit the person from obtaining
8-21 a license or permit, as provided by Sections 521.344(e) and (f),
8-22 Transportation Code [Section 24(g)(2), Chapter 173, Acts of the
8-23 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
8-24 Texas Civil Statutes)]. The department may not reinstate a license
8-25 suspended under this subsection unless the person whose license was
8-26 suspended makes application to the department for reinstatement of
76R5 GWK-D 8
9-1 the person's license and pays to the department a reinstatement fee
9-2 of $50. The department shall remit all fees collected under this
9-3 subsection to the comptroller for deposit in the general revenue
9-4 fund. This subsection does not apply to a defendant if a jury
9-5 recommends community supervision for the defendant and also
9-6 recommends that the defendant's driver's license not be suspended.
9-7 (i) If a person convicted of an offense under Sections
9-8 49.04-49.08, Penal Code, is placed on community supervision, the
9-9 court may require as a condition of community supervision that the
9-10 defendant have a device installed, on the motor vehicle owned by
9-11 the defendant or on the vehicle most regularly driven by the
9-12 defendant, that uses a deep-lung breath analysis mechanism to make
9-13 impractical the operation of the motor vehicle if ethyl alcohol is
9-14 detected in the breath of the operator and that the defendant not
9-15 operate any motor vehicle that is not equipped with that device.
9-16 If the person is convicted of an offense under Sections
9-17 49.04-49.06, Penal Code, and punished under Section 49.09(a) or
9-18 (b), Penal Code, or of a second or subsequent offense under Section
9-19 49.07 or 49.08, Penal Code, and the person after conviction of
9-20 either offense is placed on community supervision, the court shall
9-21 require as a condition of community supervision that the defendant
9-22 have the device installed on the appropriate vehicle and that the
9-23 defendant not operate any motor vehicle unless the vehicle is
9-24 equipped with that device. Before placing on community supervision
9-25 a person convicted of an offense under Sections 49.04-49.08, Penal
9-26 Code, the court shall determine from criminal history record
76R5 GWK-D 9
10-1 information maintained by the Department of Public Safety whether
10-2 the person has one or more previous convictions under Sections
10-3 49.04-49.08, Penal Code, or has one previous conviction under
10-4 Sections 49.04-49.07, Penal Code, or one previous conviction under
10-5 Section 49.08, Penal Code. If the court determines that the person
10-6 has one or more such previous convictions, the court shall require
10-7 as a condition of community supervision that the defendant have
10-8 that device installed on the motor vehicle owned by the defendant
10-9 or on the vehicle most regularly driven by the defendant and that
10-10 the defendant not operate any motor vehicle unless the vehicle is
10-11 equipped with the device described in this subsection. The court
10-12 shall require the defendant to obtain the device at the defendant's
10-13 own cost before the 30th day after the date of conviction unless
10-14 the court finds that to do so would not be in the best interest of
10-15 justice and enters its findings on record. The court shall require
10-16 the defendant to provide evidence to the court within the 30-day
10-17 period that the device has been installed on the appropriate
10-18 vehicle and order the device to remain installed on that vehicle
10-19 for a period not less than 50 percent of the supervision period.
10-20 If the court determines the offender is unable to pay for the
10-21 device, the court may impose a reasonable payment schedule not to
10-22 exceed twice the period of the court's order. The Department of
10-23 Public Safety shall approve devices for use under this subsection.
10-24 Section 521.247, Transportation Code, applies [The provisions of
10-25 Section 23A(f), Chapter 173, Acts of the 47th Legislature, Regular
10-26 Session, 1941 (Article 6687b, Vernon's Texas Civil Statutes),
76R5 GWK-D 10
11-1 apply] to the approval of a device under this subsection and the
11-2 consequences of that approval. Notwithstanding the provisions of
11-3 this section, if a person is required to operate a motor vehicle in
11-4 the course and scope of the person's employment and if the vehicle
11-5 is owned by the employer, the person may operate that vehicle
11-6 without installation of an approved ignition interlock device if
11-7 the employer has been notified of that driving privilege
11-8 restriction and if proof of that notification is with the vehicle.
11-9 This employment exemption does not apply, however, if the business
11-10 entity that owns the vehicle is owned or controlled by the person
11-11 whose driving privilege has been restricted.
11-12 (j) The judge shall require a defendant who is punished
11-13 under Section 49.09, Penal Code, as a condition of community
11-14 supervision, to attend and successfully complete an educational
11-15 program for repeat offenders approved by the Texas Commission on
11-16 Alcohol and Drug Abuse. The Texas Commission on Alcohol and Drug
11-17 Abuse shall adopt rules and shall monitor, coordinate, and provide
11-18 training to persons providing the educational programs. The Texas
11-19 Commission on Alcohol and Drug Abuse is responsible for the
11-20 administration of the certification of approved educational
11-21 programs and may charge a nonrefundable application fee for initial
11-22 certification of approval or for renewal of the certification. The
11-23 judge may waive the educational program requirement only if the
11-24 defendant by a motion in writing shows good cause. In determining
11-25 good cause, the judge may consider the defendant's school and work
11-26 schedule, the defendant's health, the distance that the defendant
76R5 GWK-D 11
12-1 must travel to attend an educational program, and whether the
12-2 defendant resides out of state or does not have access to
12-3 transportation. The judge shall set out the finding of good cause
12-4 in the judgment. If a defendant is required, as a condition of
12-5 community supervision, to attend an educational program, the court
12-6 clerk shall immediately report that fact to the Department of
12-7 Public Safety, on a form prescribed by the department, for
12-8 inclusion in the defendant's driving record. The report must
12-9 include the beginning date of the defendant's community
12-10 supervision. On the successful completion of the educational
12-11 program for repeat offenders, the defendant shall give notice to
12-12 the community supervision and corrections department. The
12-13 community supervision and corrections department shall then forward
12-14 the notice to the court clerk. The court clerk shall then report
12-15 the date of successful completion of the educational program to the
12-16 Department of Public Safety for inclusion in the defendant's
12-17 driving record. If the Department of Public Safety does not
12-18 receive notice that a defendant required to complete an educational
12-19 program has successfully completed the program for repeat offenders
12-20 within the period required by the judge, as shown on department
12-21 records, the department shall revoke the defendant's driver's
12-22 license, permit, or privilege or prohibit the defendant from
12-23 obtaining a license or permit, as provided by Sections 521.344(e)
12-24 and (f), Transportation Code [Section 24(g)(2), Chapter 173, Acts
12-25 of the 47th Legislature, Regular Session, 1941 (Article 6687b,
12-26 Vernon's Texas Civil Statutes)].
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13-1 (k) Notwithstanding Sections 521.344(d)-(i), Transportation
13-2 Code [Section 24(g), Chapter 173, Acts of the 47th Legislature,
13-3 Regular Session, 1941 (Article 6687b, Vernon's Texas Civil
13-4 Statutes)], if the judge, under Subsection (h) or (j) of this
13-5 section, permits or requires a defendant punished under Section
13-6 49.09, Penal Code, to attend an educational program as a condition
13-7 of community supervision, or waives the required attendance for
13-8 such a program, and the defendant has previously been required to
13-9 attend such a program, or the required attendance at the program
13-10 had been waived, the judge nonetheless shall order the suspension
13-11 of the driver's license, permit, or operating privilege of that
13-12 person for a period determined by the judge according to the
13-13 following schedule:
13-14 (1) not less than 90 days or more than 365 days, if
13-15 the defendant is convicted under Sections 49.04-49.08, Penal Code;
13-16 or
13-17 (2) not less than 180 days or more than two years, if
13-18 the defendant is punished under Section 49.09, Penal Code.
13-19 (m) If a judge revokes the community supervision of a
13-20 defendant for an offense under Section 49.04, Penal Code, or an
13-21 offense involving the operation of a motor vehicle under Section
13-22 49.07, Penal Code, and the driver's license or privilege to operate
13-23 a motor vehicle has not previously been ordered by the judge to be
13-24 suspended, or if the suspension was previously probated, the judge
13-25 shall suspend the license or privilege for a period provided under
13-26 Subchapter O, Chapter 521, Transportation Code [Section 24, Chapter
76R5 GWK-D 13
14-1 173, Acts of the 47th Legislature, Regular Session, 1941 (Article
14-2 6687b, Vernon's Texas Civil Statutes)]. The suspension shall be
14-3 reported to the Department of Public Safety as provided under
14-4 Section 521.347, Transportation Code [25, Chapter 173, Acts of the
14-5 47th Legislature, Regular Session, 1941 (Article 6687b, Vernon's
14-6 Texas Civil Statutes)].
14-7 SECTION 3.05. Article 45.06, Code of Criminal Procedure, is
14-8 amended to correct references to read as follows:
14-9 Art. 45.06. FINES AND SPECIAL EXPENSES. The governing body
14-10 of each incorporated city, town or village shall by ordinance
14-11 prescribe such rules, not inconsistent with any law of this State,
14-12 as may be proper to enforce, by execution against the property of
14-13 the defendant, or imprisonment of the defendant, the collection of
14-14 all fines imposed by such court, and shall also have power to adopt
14-15 such rules and regulations concerning the practice and procedure in
14-16 such court as said governing body may deem proper, not inconsistent
14-17 with any law of this State. All such fines; a special expense, not
14-18 to exceed $25 for the issuance and service of a warrant of arrest
14-19 for an offense under Section 38.10, Penal Code, or under Section
14-20 543.009, Transportation Code [149, Uniform Act Regulating Traffic
14-21 on Highways (Article 6701d, Vernon's Texas Civil Statutes)]; and
14-22 the special expenses described in Article 17.04 dealing with the
14-23 requisites of a personal bond and a special expense for the
14-24 issuance and service of a warrant of arrest, after due notice, not
14-25 to exceed $25, shall be paid into the city treasury for the use and
14-26 benefit of the city, town or village. The governing body of each
76R5 GWK-D 14
15-1 incorporated city, town or village may by ordinance authorize a
15-2 municipal court to collect a special expense for services performed
15-3 in cases in which the laws of this State require that the case be
15-4 dismissed because of actions by or on behalf of the defendant which
15-5 were subsequent to the date of the alleged offense. Such actions
15-6 are limited to compliance with Sections 543.102-543.104,
15-7 Transportation Code [the provisions of Subsection (a), Section
15-8 143A, Uniform Act Regulating Traffic on Highways (Article 6701d,
15-9 Vernon's Texas Civil Statutes)]. Such special expense shall not
15-10 exceed the actual expenses incurred for the services or $10,
15-11 whichever is less.
15-12 SECTION 3.06. Subdivisions (1), (2), and (3), Article 45.54,
15-13 Code of Criminal Procedure, are amended to correct references to
15-14 read as follows:
15-15 (1) On a plea of guilty or nolo contendere by a
15-16 defendant or on a finding of guilt in a misdemeanor case punishable
15-17 by fine only and payment of all court costs, the justice may defer
15-18 further proceedings without entering an adjudication of guilt and
15-19 place the defendant on probation for a period not to exceed 180
15-20 days. This article does not apply to a misdemeanor case disposed
15-21 of under Subchapter B, Chapter 543, Transportation Code [by Section
15-22 143A, Uniform Act Regulating Traffic on Highways (Article 6701d,
15-23 Vernon's Texas Civil Statutes)], or a serious traffic violation as
15-24 defined in Section 522.003 of that code [3(26), Texas Commercial
15-25 Driver's License Act (Article 6687b-2, Revised Statutes)].
15-26 (2) During the deferral period, the justice shall
76R5 GWK-D 15
16-1 require the defendant to successfully complete a Texas [Central]
16-2 Education Agency-approved driving safety course, if the offense
16-3 alleged is an offense involving the operation of a motor vehicle,
16-4 other than a commercial motor vehicle, as defined in Section
16-5 522.003, Transportation Code [Subdivision (6), Section 3, Texas
16-6 Commercial Driver's License Act (Article 6687b-2, Revised
16-7 Statutes)], and the defendant:
16-8 (A) has completed an approved driving safety
16-9 course within the preceding 12 months; or
16-10 (B) is a first-time offender who elects deferred
16-11 adjudication.
16-12 (3) During said deferral period, the justice may
16-13 require the defendant to:
16-14 (a) post a bond in the amount of the fine
16-15 assessed to secure payment of the fine;
16-16 (b) pay restitution to the victim of the offense
16-17 in an amount not to exceed the fine assessed;
16-18 (c) submit to professional counseling;
16-19 (d) comply with any other reasonable condition;
16-20 and
16-21 (e) require the defendant to successfully
16-22 complete a Texas [Central] Education Agency approved driving safety
16-23 course, if:
16-24 (1) the offense alleged is an offense
16-25 involving the operation of a motor vehicle, other than a commercial
16-26 motor vehicle, as defined in Section 522.003, Transportation Code
76R5 GWK-D 16
17-1 [Subdivision (6), Section 3, Texas Commercial Driver's License Act
17-2 (Article 6687b-2, Revised Statutes)]; and
17-3 (2) the defendant has not completed an
17-4 approved driving safety course within the preceding 12 months.
17-5 SECTION 3.07. Article 47.01, Code of Criminal Procedure, is
17-6 amended to correct a reference to read as follows:
17-7 Art. 47.01. SUBJECT TO ORDER OF COURT. An officer who comes
17-8 into custody of property alleged to have been stolen must hold it
17-9 subject to the order of the proper court, except that if the
17-10 officer recovers, within 14 days from the date it was reported
17-11 stolen, property which is subject to Chapter 501, Transportation
17-12 Code [the Certificate of Title Act (Article 6687-1, Vernon's Texas
17-13 Civil Statutes)], [then] the officer need not hold the property
17-14 subject to the order of the proper court but may release the
17-15 property to the owner, as shown on the certificate of title.
17-16 SECTION 3.08. Article 55.06, Code of Criminal Procedure, is
17-17 amended to correct references to read as follows:
17-18 Art. 55.06. LICENSE SUSPENSIONS AND REVOCATIONS. A person
17-19 may not use the provisions of this chapter to expunge records
17-20 relating to the suspension or revocation of a driver's license,
17-21 permit, or privilege to operate a motor vehicle except as provided
17-22 in Section 524.015, Transportation Code [5(d), Article 6687b-1,
17-23 Revised Statutes], or Section 724.048 of that code [2(r), Chapter
17-24 434, Acts of the 61st Legislature, Regular Session, 1969 (Article
17-25 6701l-5, Vernon's Texas Civil Statutes)].
17-26 SECTION 3.09. Subdivision (3), Article 59.01, Code of
76R5 GWK-D 17
18-1 Criminal Procedure, is amended to correct a reference to read as
18-2 follows:
18-3 (3) "Crime of violence" means:
18-4 (A) any criminal offense defined in the Penal
18-5 Code or in a federal criminal law that results in a personal injury
18-6 to a victim; or
18-7 (B) an act that is not an offense under the
18-8 Penal Code involving the operation of a motor vehicle, aircraft, or
18-9 water vehicle that results in injury or death sustained in an
18-10 accident caused by a driver in violation of Section 550.021,
18-11 Transportation Code [38, Uniform Act Regulating Traffic on Highways
18-12 (Article 6701d, Vernon's Texas Civil Statutes)].
18-13 SECTION 3.10. Article 62.001(3), Code of Criminal Procedure
18-14 (formerly Section 79.001(3), Human Resources Code, redesignated as
18-15 Article 62.001(3) by Chapter 1427, Acts of the 75th Legislature,
18-16 Regular Session, 1997), is redesignated as Article 63.001(3), Code
18-17 of Criminal Procedure, and amended and reenacted to conform to
18-18 Chapters 51 and 1427, Acts of the 75th Legislature, Regular
18-19 Session, 1997, to read as follows:
18-20 (3) "Missing child" means a child whose whereabouts
18-21 are unknown to the child's legal custodian, the circumstances of
18-22 whose absence indicate that:
18-23 (A) the child did not voluntarily leave the care
18-24 and control of the custodian, and the taking of the child was not
18-25 authorized by law;
18-26 (B) the child voluntarily left the care and
76R5 GWK-D 18
19-1 control of his legal custodian without the custodian's consent and
19-2 without intent to return; or
19-3 (C) the child was taken or retained in violation
19-4 of the [express] terms of a court order [or judgment governing
19-5 custody of] for possession of or access to the child.
19-6 SECTION 3.11. Article 62.009(a), Code of Criminal Procedure
19-7 (formerly Section 79.008(a), Human Resources Code, redesignated as
19-8 Article 62.009(a) by Chapter 1427, Acts of the 75th Legislature,
19-9 Regular Session, 1997), is redesignated as Article 63.009(a), Code
19-10 of Criminal Procedure, and amended and reenacted to conform to
19-11 Chapters 51 and 771, Acts of the 75th Legislature, Regular Session,
19-12 1997, to read as follows:
19-13 (a) Local law enforcement agencies, on receiving a report of
19-14 a missing child or a missing person, shall:
19-15 (1) if the subject of the report is a child and the
19-16 well-being of the child is in danger, immediately start an
19-17 investigation in order to determine the present location of the
19-18 child;
19-19 (2) if the subject of the report is a person other
19-20 than a child or if the subject of the report is a child whose
19-21 well-being is not considered to be in danger, start an
19-22 investigation with due diligence in order to determine the present
19-23 location of the person;
19-24 (3) immediately enter the name of the child or person
19-25 into the clearinghouse and the national crime information center
19-26 missing person file if the child or person meets the center's
76R5 GWK-D 19
20-1 criteria, with all available identifying features such as dental
20-2 records, fingerprints, other physical characteristics, and a
20-3 description of the clothing worn when last seen, and all available
20-4 information describing any person reasonably believed to have taken
20-5 or retained the missing child or missing person; and
20-6 [(4) on determining the location of a child under
20-7 Subdivision (1) or (2), other than a child who is subject to the
20-8 continuing jurisdiction of a district court, an officer may take
20-9 possession of the child and shall deliver or arrange for the
20-10 delivery of the child to a person entitled to possession of the
20-11 child. If the person entitled to possession of the child is not
20-12 immediately available, the law enforcement officer shall deliver
20-13 the child to the Department of Protective and Regulatory Services.]
20-14 (4) inform the person who filed the report of the
20-15 missing child or missing person that the information will be
20-16 entered into the clearinghouse and the national crime information
20-17 center missing person file.
20-18 SECTION 3.12. Article 62.009, Code of Criminal Procedure
20-19 (formerly Section 79.008, Human Resources Code, redesignated as
20-20 Article 62.009 by Chapter 1427, Acts of the 75th Legislature,
20-21 Regular Session, 1997), is redesignated as Article 63.009, Code of
20-22 Criminal Procedure, and amended to conform to Chapter 51, Acts of
20-23 the 75th Legislature, Regular Session, 1997, by adding Subsection
20-24 (g) to read as follows:
20-25 (g) On determining the location of a child under Subsection
20-26 (a)(1) or (2), other than a child who is subject to the continuing
76R5 GWK-D 20
21-1 jurisdiction of a district court, an officer may take possession of
21-2 the child and shall deliver or arrange for the delivery of the
21-3 child to a person entitled to possession of the child. If the
21-4 person entitled to possession of the child is not immediately
21-5 available, the law enforcement officer shall deliver the child to
21-6 the Department of Protective and Regulatory Services.
21-7 ARTICLE 4. CHANGES RELATING TO EDUCATION CODE
21-8 SECTION 4.01. Section 29.153(g), Education Code, is amended
21-9 to properly reflect the name of the agency to which the section
21-10 refers to read as follows:
21-11 (g) If a school district contracts with a private entity for
21-12 the operation of the district's prekindergarten program, the
21-13 program must at a minimum comply with the applicable child-care
21-14 licensing standards adopted by the [Texas] Department of Protective
21-15 and Regulatory [Human] Services under Section 42.042, Human
21-16 Resources Code.
21-17 SECTION 4.02. (a) Section 51.751(b), Education Code, is
21-18 amended to conform to Section 7.10, Chapter 347, Acts of the 73rd
21-19 Legislature, Regular Session, 1993, to read as follows:
21-20 (b) The center shall examine the efficiency of the public
21-21 school system and the effectiveness of instructional methods and
21-22 curricular programs and[. The center shall] promote the use of
21-23 successful methods and programs. The center shall monitor and
21-24 evaluate the implementation of the accountability system under
21-25 Chapter 39 and provide annual progress reports to the governor,
21-26 Legislative Budget Board, and commissioner of education.
76R5 DWS-D 21
22-1 (b) Section 7.10, Chapter 347, Acts of the 73rd Legislature,
22-2 Regular Session, 1993, is repealed.
22-3 SECTION 4.03. Sections 51.927(e)-(k), Education Code, as
22-4 amended by Chapters 627 and 1142, Acts of the 75th Legislature,
22-5 Regular Session, 1997, are reenacted and amended to read as
22-6 follows:
22-7 (e) Before entering into a contract for energy conservation
22-8 measures, the board shall require the provider of the energy
22-9 conservation measures to file with the board a payment and
22-10 performance bond that is in an amount the board finds reasonable
22-11 and necessary to protect the interests of the institution and is
22-12 conditioned on the faithful execution of the terms of the contract.
22-13 (f) The board may enter into a contract for a period of more
22-14 than one year for energy conservation measures with an entity if
22-15 the board finds that the amount the institution would spend on the
22-16 energy conservation measures will not exceed the amount to be saved
22-17 in energy and operating costs over 10 years from the date of
22-18 installation. If the term of a contract for energy conservation
22-19 measures exceeds one year, the board's contractual obligation in
22-20 any year during the term of the contract beginning after the final
22-21 date of installation may not exceed the total energy and operating
22-22 cost savings, including but not limited to electrical, gas, or
22-23 other utility cost savings and operating cost savings resulting
22-24 from automatic monitoring and control, as determined by the board
22-25 in this subsection, divided by the number of years in the contract
22-26 term beginning after the final date of installation. The board
76R5 DWS-D 22
23-1 shall consider all costs of the energy conservation measures,
23-2 including costs of design, engineering, installation, maintenance,
23-3 repairs, and debt service.
23-4 (g) A contract for energy conservation measures may be a
23-5 lease/purchase contract, with a term not to exceed 10 years after
23-6 the final date of installation, that meets federal tax requirements
23-7 for tax-free municipal leasing or long-term financing. The
23-8 contract shall contain provisions pursuant to which the provider of
23-9 the energy conservation measures guarantees the amount of the
23-10 savings to be realized by the institution of higher education under
23-11 the contract. The Master Equipment Lease Purchase Program operated
23-12 by the Texas Public Finance Authority may be utilized by an
23-13 institution to fund a contract for energy conservation measures so
23-14 long as the costs of the energy conservation measures, including
23-15 costs of design, engineering, installation, maintenance, repairs,
23-16 and anticipated debt service requirements of the Master Equipment
23-17 Lease Purchase Program, do not exceed the total energy and
23-18 operating cost savings, as described in Subsection (f) [(e)],
23-19 beginning after the final date of installation.
23-20 (h) A contract under this section may be let under
23-21 competitive sealed proposal procedures. Notice of the request for
23-22 proposals shall be given in the manner provided for in Chapter
23-23 2156, Government Code. The Texas Higher Education Coordinating
23-24 Board, in consultation with the State Energy Conservation Office
23-25 and the Texas Energy Coordination Council, shall establish
23-26 guidelines and an approval process for contracts awarded under this
76R5 DWS-D 23
24-1 section. The State Energy Conservation Office and the Texas Energy
24-2 Coordination Council shall review the selected proposal before a
24-3 contract is awarded. The State Energy Conservation Office may
24-4 provide a cost-benefit analysis of the proposals and analysis of
24-5 the guaranteed savings projected by offerors and may charge a fee
24-6 for this service. The contract shall be awarded to the
24-7 responsible offeror whose proposal, following negotiations, is
24-8 determined by the institution to be the most advantageous to the
24-9 institution considering the guaranteed savings and other evaluation
24-10 factors set forth in the request for proposals, except that if the
24-11 institution finds that no offer is acceptable, it shall refuse all
24-12 offers.
24-13 (i) In accordance with regulations adopted by the
24-14 institution, the institution may conduct discussions with offerors
24-15 who submit proposals and who are determined to be reasonably
24-16 qualified for the award of the contract. Offerors shall be treated
24-17 fairly and equally with respect to any opportunity for discussion
24-18 and revision of proposals. To obtain the best final offers, the
24-19 institution may allow proposal revisions after submissions and
24-20 before the award of the contract.
24-21 (j) If provided in a request for proposals under Subsection
24-22 (h) [(g) of this section], proposals shall be opened in a manner
24-23 that avoids disclosure of the contents to competing offerors and
24-24 keeps the proposals secret during negotiations. All proposals are
24-25 open for public inspection after a contract is awarded unless the
24-26 information is excepted from disclosure under Chapter 552,
76R5 DWS-D 24
25-1 Government Code.
25-2 (k) The legislature shall base an institution's
25-3 appropriation for energy costs during a fiscal year on the sum of:
25-4 (1) the institution's estimated energy costs for that
25-5 fiscal year; and
25-6 (2) if a contract under this section is in effect, the
25-7 institution's estimated net savings resulting from the contract
25-8 during the contract term, divided by the number of years in the
25-9 contract term.
25-10 ARTICLE 5. CHANGES RELATING TO ELECTION CODE
25-11 SECTION 5.01. Section 13.146(b), Election Code, is amended
25-12 to be consistent with the terminology used elsewhere in the code in
25-13 similar contexts, to read as follows:
25-14 (b) If the applicant fails to submit [deliver] a response to
25-15 the registrar in accordance with Section 15.053, the registrar
25-16 shall enter the applicant's name on the suspense list.
25-17 SECTION 5.02. Section 14.023(b), Election Code, is amended
25-18 to be consistent with the terminology used elsewhere in the code in
25-19 similar contexts, to read as follows:
25-20 (b) If the voter fails to submit [deliver] a response to the
25-21 registrar in accordance with Section 15.053, the voter's name
25-22 remains on the suspense list.
25-23 SECTION 5.03. Section 15.021(a), Election Code, is amended
25-24 to be consistent with the terminology used elsewhere in the code in
25-25 similar contexts, to read as follows:
25-26 (a) If a voter discovers incorrect information on the
76R5 GGS-D 25
26-1 voter's registration certificate or if any of the information
26-2 becomes incorrect because of a change in circumstances, the voter
26-3 shall promptly submit [deliver] to the registrar a written, signed
26-4 notice of the incorrect information and the corresponding
26-5 correction.
26-6 SECTION 5.04. Section 15.052(a), Election Code, is amended
26-7 to be consistent with the terminology used elsewhere in the code in
26-8 similar contexts, to read as follows:
26-9 (a) The officially prescribed form for a confirmation notice
26-10 must include:
26-11 (1) a statement that, if the voter fails to submit
26-12 [deliver] to the registrar a written, signed response confirming
26-13 the voter's current residence on or before the 30th day after the
26-14 date the confirmation notice is mailed:
26-15 (A) the voter is subject to submission of a
26-16 statement of residence before the voter may be accepted for voting
26-17 in an election held after that deadline; or
26-18 (B) for a notice delivered under Section 14.023,
26-19 the voter will remain subject to submission of a statement of
26-20 residence before the voter may be accepted for voting in an
26-21 election; and
26-22 (2) a warning that the voter's registration is subject
26-23 to cancellation if the voter fails to confirm the voter's current
26-24 residence either by notifying the registrar in writing or voting on
26-25 a statement of residence before November 30 following the second
26-26 general election for state and county officers that occurs after
76R5 GGS-D 26
27-1 the date the confirmation notice is mailed.
27-2 SECTION 5.05. Section 15.053(a), Election Code, is amended
27-3 to be consistent with the terminology used elsewhere in the code in
27-4 similar contexts, to read as follows:
27-5 (a) Not later than the 30th day after the date a
27-6 confirmation notice is mailed, the voter shall submit [deliver] to
27-7 the registrar a written, signed response to the notice that
27-8 confirms the voter's current residence.
27-9 SECTION 5.06. Section 15.081(a), Election Code, is amended
27-10 to be consistent with the terminology used elsewhere in the code in
27-11 similar contexts, to read as follows:
27-12 (a) The registrar shall maintain a suspense list containing
27-13 the name of each voter who fails to submit [deliver] a response to
27-14 the registrar in accordance with Section 15.053 or whose renewal
27-15 certificate is returned to the registrar in accordance with
27-16 Subchapter B, Chapter 14.
27-17 SECTION 5.07. Section 16.0921(b), Election Code, is amended
27-18 to be consistent with the terminology used elsewhere in the code in
27-19 similar contexts, to read as follows:
27-20 (b) If the voter fails to submit [deliver] a response to the
27-21 registrar in accordance with Section 15.053, the registrar shall
27-22 enter the voter's name on the suspense list.
27-23 SECTION 5.08. Section 31.002(a), Election Code, is amended
27-24 to conform to changes made by Chapter 304, Acts of the 72nd
27-25 Legislature, Regular Session, 1991, to read as follows:
27-26 (a) The secretary of state shall prescribe the design and
76R5 GGS-D 27
28-1 content, consistent with this code, of the forms necessary for the
28-2 administration of this code other than Title 15. The design and
28-3 content must enhance the ability of a person to understand the
28-4 applicable requirements and to physically furnish the required
28-5 information in the space provided.
28-6 SECTION 5.09. Section 52.068(a), Election Code, is amended
28-7 to be consistent with the terminology used elsewhere in the code in
28-8 similar contexts, to read as follows:
28-9 (a) If no candidate's name is to appear on the ballot for a
28-10 particular office to be voted on at an election in which write-in
28-11 votes for the office are permitted by law, the authority
28-12 responsible for having the official ballot prepared shall have the
28-13 office title printed on the ballot and shall provide a space for a
28-14 write-in vote as required by this code. However, in an election in
28-15 which write-in votes may be counted only for names appearing on a
28-16 list of write-in candidates, if no candidate's name is to appear on
28-17 the ballot or the list of write-in candidates for a particular
28-18 office, the office title is not printed on the ballot.
28-19 SECTION 5.10. Section 101.004(j), Election Code, is amended
28-20 to be consistent with the terminology used elsewhere in the code in
28-21 similar contexts, to read as follows:
28-22 (j) If the early voting clerk determines that an application
28-23 that is submitted before the time prescribed by Subsection (e)(1)
28-24 does not contain the information that is required for registration
28-25 under Title 2, the clerk shall notify the applicant of that fact.
28-26 If the applicant submits the missing information before the time
76R5 GGS-D 28
29-1 prescribed by Subsection (e)(1), the applicant is entitled to
29-2 receive a full ballot to be voted by mail under this chapter. If
29-3 the applicant submits the missing information after the time
29-4 prescribed by Subsection (e)(1), the applicant is entitled to
29-5 receive a full ballot to be voted by mail for the next election
29-6 that occurs:
29-7 (1) in the same calendar year; and
29-8 (2) at least 30 days after the date the information is
29-9 submitted.
29-10 SECTION 5.11. Section 105.002(a), Election Code, as added by
29-11 Section 45, Chapter 1349, Acts of the 75th Legislature, Regular
29-12 Session, 1997, is amended to be consistent with the terminology
29-13 used elsewhere in the code in similar contexts, to read as follows:
29-14 (a) The secretary of state shall prescribe procedures to
29-15 allow a voter to apply for and cast a state write-in ballot before
29-16 the time a voter may receive a regular ballot to be voted by mail
29-17 if the voter:
29-18 (1) is a member of the armed forces of the United
29-19 States or the spouse or a dependent of a member;
29-20 (2) is unable to cast a ballot on election day or
29-21 during the regular period for early voting because of a military
29-22 contingency; and
29-23 (3) makes an application on an official [a] federal
29-24 postcard application form that:
29-25 (A) indicates that the person desires a state
29-26 write-in ballot; and
76R5 GGS-D 29
30-1 (B) contains the information that is required
30-2 for registration under Title 2.
30-3 SECTION 5.12. The heading of Section 171.023, Election Code,
30-4 is amended to conform to the changes in terminology made by Chapter
30-5 864, Acts of the 75th Legislature, Regular Session, 1997, to read
30-6 as follows:
30-7 Sec. 171.023. RESIDENCE OF PRECINCT CHAIR [CHAIRMAN].
30-8 SECTION 5.13. Section 172.021(c), Election Code, is amended
30-9 to be consistent with the terminology used elsewhere in the code in
30-10 similar contexts, to read as follows:
30-11 (c) An application filed by mail is considered to be filed
30-12 at the time of its receipt by the appropriate authority.
30-13 SECTION 5.14. Section 174.022(d), Election Code, is amended
30-14 to be consistent with the terminology used elsewhere in the code in
30-15 similar contexts, to read as follows:
30-16 (d) The place [location] selected for a precinct convention
30-17 must meet the same requirements for access by elderly and
30-18 physically handicapped persons as a polling place under Section
30-19 43.034(a) unless the state executive committee for a political
30-20 party issues an order that the places [locations] for precinct
30-21 conventions for that political party are [do] not required [have]
30-22 to meet the same requirements as a polling place under Section
30-23 43.034(a). The order must be entered in the minutes of the state
30-24 executive committee not later than the 30th day [30 days] before
30-25 the date precinct conventions are to be held.
30-26 SECTION 5.15. The heading of Subchapter B, Chapter 251,
76R5 GGS-D 30
31-1 Election Code, is amended to be consistent with terminology used
31-2 elsewhere in the code in similar contexts, to read as follows:
31-3 SUBCHAPTER B. DUTIES OF [THE] COMMISSION
31-4 SECTION 5.16. Section 253.157(a), Election Code, as amended
31-5 by Section 2, Chapter 552, Acts of the 75th Legislature, Regular
31-6 Session, 1997, is amended to reconcile the amendment to
31-7 Subsection (a) by Section 5, Chapter 479, Acts of the 75th
31-8 Legislature, Regular Session, 1997, to read as follows:
31-9 (a) A judicial candidate or officeholder or a
31-10 specific-purpose committee for supporting or opposing a judicial
31-11 candidate may not accept a political contribution in excess of $50
31-12 from a person if:
31-13 (1) the person is a law firm, a member of a law firm,
31-14 or a general-purpose committee established or controlled by a law
31-15 firm; and
31-16 (2) the contribution when aggregated with all
31-17 political contributions accepted by the candidate, officeholder, or
31-18 committee from the law firm, other members of the law firm, or
31-19 [from] a general-purpose committee established or controlled by the
31-20 law firm in connection with the election would exceed six times the
31-21 applicable contribution limit under Section 253.155.
31-22 SECTION 5.17. Sections 255.006(a), (b), and (c), Election
31-23 Code, are amended to be consistent with the terminology used
31-24 elsewhere in the code in similar contexts, to read as follows:
31-25 (a) A person commits an offense if the person knowingly
31-26 enters into a contract or other agreement to print, publish, or
76R5 GGS-D 31
32-1 broadcast political advertising with the intent to represent to an
32-2 ordinary and prudent person that a candidate holds a public office
32-3 that the candidate does not hold at the time the agreement is made.
32-4 (b) A person commits an offense if the person knowingly
32-5 represents in a campaign communication that a candidate holds a
32-6 public office that the candidate does not hold at the time the
32-7 representation is made.
32-8 (c) For purposes of this section, a person represents that a
32-9 candidate holds a public office that the candidate does not hold
32-10 if:
32-11 (1) the candidate does not hold the office that the
32-12 candidate seeks; and
32-13 (2) the political advertising or campaign
32-14 communication states the public office sought but does not use the
32-15 word "for" to clarify that the candidate does not hold that office.
32-16 ARTICLE 6. CHANGES RELATING TO FAMILY CODE
32-17 SECTION 6.01. (a) Section 2.009(c), Family Code, is amended
32-18 to conform to Chapter 698, Acts of the 75th Legislature, Regular
32-19 Session, 1997, to read as follows:
32-20 (c) On the proper execution of the application, the clerk
32-21 shall:
32-22 (1) prepare the license;
32-23 (2) enter on [record on the reverse side of] the
32-24 license the names of the licensees, the date that the license is
32-25 issued, and, if applicable, the name of the person appointed to act
32-26 as proxy for an absent applicant, if any;
76R5 MCK-D 32
33-1 (3) record the time at which the license was issued;
33-2 and
33-3 (4) distribute to each applicant printed materials
33-4 about acquired immune deficiency syndrome (AIDS) and human
33-5 immunodeficiency virus (HIV) and note on the license that the
33-6 distribution was made.
33-7 (b) Chapter 698, Acts of the 75th Legislature, Regular
33-8 Session, 1997, is repealed.
33-9 SECTION 6.02. Section 32.101, Family Code, is amended to
33-10 conform to Section 4, Chapter 123, Acts of the 74th Legislature,
33-11 Regular Session, 1995, by adding Subsection (f) to read as follows:
33-12 (f) Consent to immunization must meet the requirements of
33-13 Section 32.002(a).
33-14 SECTION 6.03. Section 6.404(c), Family Code, is amended to
33-15 correct a reference to read as follows:
33-16 (c) The statement prescribed by Subsection (a) is not
33-17 required for:
33-18 (1) a pleading in which citation on all respondents
33-19 entitled to service of citation is requested, issued, and given by
33-20 publication;
33-21 (2) a motion or pleading that seeks a protective order
33-22 as provided by Title 4 [Chapter 71]; or
33-23 (3) a special appearance under Rule 120a, Texas Rules
33-24 of Civil Procedure.
33-25 SECTION 6.04. Section 6.405, Family Code, is amended to
33-26 correct a reference to read as follows:
76R5 MCK-D 33
34-1 Sec. 6.405. PROTECTIVE ORDER. (a) The petition in a suit
34-2 for dissolution of a marriage must state whether a protective order
34-3 under Title 4 [Chapter 71] is in effect or if an application for a
34-4 protective order is pending with regard to the parties to the suit.
34-5 (b) The petitioner shall attach to the petition a copy of
34-6 each protective order issued under Title 4 [Chapter 71] in which
34-7 one of the parties to the suit was the applicant and the other
34-8 party was the respondent without regard to the date of the order.
34-9 If a copy of the protective order is not available at the time of
34-10 filing, the petition must state that a copy of the order will be
34-11 filed with the court before any hearing.
34-12 SECTION 6.05. Section 8.002, Family Code, is amended to
34-13 correct a reference to read as follows:
34-14 Sec. 8.002. ELIGIBILITY FOR MAINTENANCE. In a suit for
34-15 dissolution of a marriage or in a proceeding for maintenance in a
34-16 court with personal jurisdiction over both former spouses following
34-17 the dissolution of their marriage by a court that lacked personal
34-18 jurisdiction over an absent spouse, the court may order maintenance
34-19 for either spouse only if:
34-20 (1) the spouse from whom maintenance is requested was
34-21 convicted of or received deferred adjudication for a criminal
34-22 offense that also constitutes an act of family violence under Title
34-23 4 [Chapter 71] and the offense occurred:
34-24 (A) within two years before the date on which a
34-25 suit for dissolution of the marriage is filed; or
34-26 (B) while the suit is pending; or
76R5 MCK-D 34
35-1 (2) the duration of the marriage was 10 years or
35-2 longer, the spouse seeking maintenance lacks sufficient property,
35-3 including property distributed to the spouse under this code, to
35-4 provide for the spouse's minimum reasonable needs, as limited by
35-5 Section 8.005, and the spouse seeking maintenance:
35-6 (A) is unable to support himself or herself
35-7 through appropriate employment because of an incapacitating
35-8 physical or mental disability;
35-9 (B) is the custodian of a child who requires
35-10 substantial care and personal supervision because a physical or
35-11 mental disability makes it necessary, taking into consideration the
35-12 needs of the child, that the spouse not be employed outside the
35-13 home; or
35-14 (C) clearly lacks earning ability in the labor
35-15 market adequate to provide support for the spouse's minimum
35-16 reasonable needs, as limited by Section 8.005.
35-17 SECTION 6.06. Section 45.106(a), Family Code, is amended to
35-18 correct a reference to read as follows:
35-19 (a) A person whose name is changed under Section 6.706
35-20 [3.64] or 45.105 may apply to the clerk of the court ordering the
35-21 name change for a change of name certificate.
35-22 SECTION 6.07. Section 51.12, Family Code, as amended by
35-23 Chapters 772 and 1374, Acts of the 75th Legislature, Regular
35-24 Session, 1997, is amended and reenacted to read as follows:
35-25 Sec. 51.12. PLACE AND CONDITIONS OF DETENTION. (a) Except
35-26 as provided by Subsection (h), a child may be detained only in a:
76R5 MCK-D 35
36-1 (1) juvenile processing office in compliance with
36-2 Section 52.025;
36-3 (2) place of nonsecure custody in compliance with
36-4 Section 52.027;
36-5 (3) certified juvenile detention facility that
36-6 complies with the requirements of Subsection (f); or
36-7 (4) secure detention facility as provided by
36-8 Subsection (j) [(i)].
36-9 (b) The proper authorities in each county shall provide a
36-10 suitable place of detention for children who are parties to
36-11 proceedings under this title, but the juvenile court shall control
36-12 the conditions and terms of detention and detention supervision and
36-13 shall permit visitation with the child at all reasonable times.
36-14 (c) In each county, each judge of the juvenile court and the
36-15 members of the juvenile board shall personally inspect the juvenile
36-16 pre-adjudication secure detention facilities and any public or
36-17 private juvenile secure correctional facilities used for
36-18 post-adjudication confinement that are located in the county and
36-19 operated under authority of the juvenile board at least annually
36-20 and shall certify in writing to the authorities responsible for
36-21 operating and giving financial support to the facilities and to the
36-22 Texas Juvenile Probation Commission that they are suitable or
36-23 unsuitable for the detention of children in accordance with:
36-24 (1) the requirements of Subsections (a), (f), and (g);
36-25 and
36-26 (2) minimum professional standards for the detention
76R5 MCK-D 36
37-1 of children in pre-adjudication or post-adjudication secure
37-2 confinement promulgated by the Texas Juvenile Probation Commission
37-3 or, at the election of the juvenile board, the current standards
37-4 promulgated by the American Correctional Association.
37-5 (d) Except as provided by Subsection (j) [(i)], a child may
37-6 not be placed in a facility that has not been certified under
37-7 Subsection (c) as suitable for the detention of children and
37-8 registered under Subsection (i) [of this section]. Except as
37-9 provided by Subsection (j) [(i)], a child detained in a facility
37-10 that has not been certified under Subsection (c) as suitable for
37-11 the detention of children or that has not been registered under
37-12 Subsection (i) [of this section] shall be entitled to immediate
37-13 release from custody in that facility.
37-14 (e) If there is no certified place of detention in the
37-15 county in which the petition is filed, the designated place of
37-16 detention may be in another county.
37-17 (f) A child detained in a building that contains a jail,
37-18 lockup, or other place of secure confinement, including an alcohol
37-19 or other drug treatment facility, shall be separated by sight and
37-20 sound from adults detained in the same building. Children and
37-21 adults are separated by sight and sound only if they are unable to
37-22 see each other and conversation between them is not possible. The
37-23 separation must extend to all areas of the facility, including
37-24 sally ports and passageways, and those areas used for admission,
37-25 counseling, sleeping, toileting, showering, dining, recreational,
37-26 educational, or vocational activities, and health care. The
76R5 MCK-D 37
38-1 separation may be accomplished through architectural design.
38-2 (g) Except for a child detained in a juvenile processing
38-3 office, a place of nonsecure custody, or a secure detention
38-4 facility as provided by Subsection (j) [(i)], a child detained in a
38-5 building that contains a jail or lockup may not have any contact
38-6 with:
38-7 (1) part-time or full-time security staff, including
38-8 management, who have contact with adults detained in the same
38-9 building; or
38-10 (2) direct-care staff who have contact with adults
38-11 detained in the same building.
38-12 (h) This section does not apply to a person:
38-13 (1) after transfer to criminal court for prosecution
38-14 under Section 54.02; or
38-15 (2) who is at least 18 years of age and who has been
38-16 taken into custody after having:
38-17 (A) escaped from a juvenile facility; or
38-18 (B) violated a condition of probation or of
38-19 release under supervision of the Texas Youth Commission.
38-20 (i) Except for a facility operated or certified by the Texas
38-21 Youth Commission, a governmental unit or private entity that
38-22 operates or contracts for the operation of a juvenile
38-23 pre-adjudication secure detention facility or a juvenile
38-24 post-adjudication secure correctional facility in this state shall:
38-25 (1) register the facility annually with the Texas
38-26 Juvenile Probation Commission; and
76R5 MCK-D 38
39-1 (2) adhere to all applicable minimum standards for the
39-2 facility.
39-3 (j) [(i)] After being taken into custody, a child may be
39-4 detained in a secure detention facility until the child is released
39-5 under Section 53.01, 53.012, or 53.02 or until a detention hearing
39-6 is held under Section 54.01(a), regardless of whether the facility
39-7 has been certified under Subsection (c), if:
39-8 (1) a certified juvenile detention facility is not
39-9 available in the county in which the child is taken into custody;
39-10 (2) the detention facility complies with:
39-11 (A) the short-term detention standards adopted
39-12 by the Texas Juvenile Probation Commission; and
39-13 (B) the requirements of Subsection (f); and
39-14 (3) the detention facility has been designated by the
39-15 county juvenile board for the county in which the facility is
39-16 located.
39-17 (k) [(j)] If a child who is detained under Subsection (j)
39-18 [(i)] is not released from detention at the conclusion of the
39-19 detention hearing for a reason stated in Section 54.01(e), the
39-20 child may be detained after the hearing only in a certified
39-21 juvenile detention facility.
39-22 SECTION 6.08. Section 52.02(a), Family Code, is amended to
39-23 correct a reference to read as follows:
39-24 (a) Except as provided by Subsection (c), a person taking a
39-25 child into custody, without unnecessary delay and without first
39-26 taking the child to any place other than a juvenile processing
76R5 MCK-D 39
40-1 office designated under Section 52.025, shall do one of the
40-2 following:
40-3 (1) release the child to a parent, guardian, custodian
40-4 of the child, or other responsible adult upon that person's promise
40-5 to bring the child before the juvenile court as requested by the
40-6 court;
40-7 (2) bring the child before the office or official
40-8 designated by the juvenile court if there is probable cause to
40-9 believe that the child engaged in delinquent conduct or conduct
40-10 indicating a need for supervision;
40-11 (3) bring the child to a detention facility designated
40-12 by the juvenile court;
40-13 (4) bring the child to a secure detention facility as
40-14 provided by Section 51.12(j) [51.12(i)];
40-15 (5) bring the child to a medical facility if the child
40-16 is believed to suffer from a serious physical condition or illness
40-17 that requires prompt treatment; or
40-18 (6) dispose of the case under Section 52.03.
40-19 SECTION 6.09. Section 52.026(b), Family Code, is amended to
40-20 correct a reference to read as follows:
40-21 (b) If the juvenile detention facility is located outside
40-22 the county in which the child is taken into custody, it shall be
40-23 the duty of the sheriff of that county to transport the child to
40-24 the appropriate juvenile detention facility unless the child is:
40-25 (1) detained in a secure detention facility under
40-26 Section 51.12(j) [51.12(i)]; or
76R5 MCK-D 40
41-1 (2) released to the parent, guardian, or custodian of
41-2 the child.
41-3 SECTION 6.10. (a) Chapter 84, Family Code, is amended to
41-4 conform to Section 4, Chapter 752, Acts of the 75th Legislature,
41-5 Regular Session, 1997, by adding Section 84.005 to read as follows:
41-6 Sec. 84.005. LEGISLATIVE CONTINUANCE. If a proceeding for
41-7 which a legislative continuance is sought under Section 30.003,
41-8 Civil Practice and Remedies Code, includes an application for a
41-9 protective order, the continuance is discretionary with the court.
41-10 (b) Section 4, Chapter 752, Acts of the 75th Legislature,
41-11 Regular Session, 1997, is repealed.
41-12 SECTION 6.11. Section 102.0085(a), Family Code, is amended
41-13 to correct a reference to read as follows:
41-14 (a) A party to a proceeding brought under this title
41-15 [chapter and Chapters 151, 153, 154, 156, 160, and 161] shall
41-16 include in the first pleading filed by the party in the proceeding
41-17 the following statement:
41-18 "I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS
41-19 TO PROMOTE THE AMICABLE AND NONJUDICIAL SETTLEMENT OF
41-20 DISPUTES INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF
41-21 ALTERNATIVE DISPUTE RESOLUTION METHODS, INCLUDING
41-22 MEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE
41-23 RESOLUTION IS AN ALTERNATIVE TO AND NOT A SUBSTITUTE
41-24 FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS
41-25 NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL
41-26 ATTEMPT IN GOOD FAITH TO RESOLVE BEFORE FINAL TRIAL
76R5 MCK-D 41
42-1 CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTE
42-2 RESOLUTION WITHOUT THE NECESSITY OF COURT
42-3 INTERVENTION."
42-4 SECTION 6.12. Section 102.009(a), Family Code, as amended by
42-5 Section 1, Chapter 561, Acts of the 75th Legislature, Regular
42-6 Session, 1997, and Section 1, Chapter 599, Acts of the 75th
42-7 Legislature, Regular Session, 1997, is reenacted and amended to
42-8 read as follows:
42-9 (a) Except as provided by Subsection (b), the following are
42-10 entitled to service of citation on the filing of a petition in an
42-11 original suit:
42-12 (1) a managing conservator;
42-13 (2) a possessory conservator;
42-14 (3) a person having possession of or access to the
42-15 child under an order;
42-16 (4) a person required by law or by order to provide
42-17 for the support of the child;
42-18 (5) a guardian of the person of the child;
42-19 (6) a guardian of the estate of the child;
42-20 (7) each parent as to whom the parent-child
42-21 relationship has not been terminated or process has not been waived
42-22 under Chapter 161;
42-23 (8) an alleged father, unless there is attached to the
42-24 petition an affidavit of waiver of interest in a child executed by
42-25 the alleged father as provided by Chapter 161 or unless the
42-26 petitioner has complied with the provisions of Section
76R5 MCK-D 42
43-1 161.002(b)(2) or (b)(3);
43-2 (9) a man who has filed a notice of intent to claim
43-3 paternity as provided by Subchapter D, Chapter 160; [and]
43-4 (10) the Department of Protective and Regulatory
43-5 Services, if the petition requests that the department be appointed
43-6 as managing conservator of the child; and [.]
43-7 (11) [(10)] the attorney general, if the petition
43-8 requests the termination of the parent-child relationship and the
43-9 Title IV-D agency has filed with the court a notice of assignment
43-10 under Chapter 231 with respect to the support rights of the child.
43-11 SECTION 6.13. Section 102.012(b), Family Code, is amended to
43-12 correct a reference to read as follows:
43-13 (b) The court's authority to resolve all issues in
43-14 controversy between the parties may be restricted because the court
43-15 lacks:
43-16 (1) the required personal jurisdiction over a
43-17 nonresident party;
43-18 (2) the required jurisdiction under Chapter 152; or
43-19 (3) the required jurisdiction under Chapter 159 [157].
43-20 SECTION 6.14. Section 103.001(a), Family Code, is amended to
43-21 correct a reference to read as follows:
43-22 (a) Except as otherwise provided by this title, an original
43-23 suit shall be filed in the county where the child resides, unless:
43-24 (1) another court has continuing exclusive
43-25 jurisdiction under Chapter 155; or
43-26 (2) venue is fixed in a suit for dissolution of a
76R5 MCK-D 43
44-1 marriage under Subchapter D, Chapter 6 [Chapter 3].
44-2 SECTION 6.15. Section 107.0135, Family Code, is amended to
44-3 correct a reference to read as follows:
44-4 Sec. 107.0135. Appointment of Attorney ad Litem Not
44-5 Required; Certain Cases. A court is not required under this
44-6 chapter [section] to appoint an attorney ad litem in a proceeding
44-7 in which:
44-8 (1) a suit for the dissolution of a marriage is
44-9 uncontested; or
44-10 (2) the issues of possession of and access to a child
44-11 are agreed to by both parents.
44-12 SECTION 6.16. Section 108.003(a), Family Code, is amended to
44-13 correct a reference to read as follows:
44-14 (a) The clerk of a court that renders a decree of adoption
44-15 shall, not later than the 10th day of the first month after the
44-16 month in which the adoption is rendered, transmit to the central
44-17 registry of the bureau of vital statistics certified report of
44-18 adoption that includes:
44-19 (1) the name of the adopted child after adoption as
44-20 shown in the adoption order;
44-21 (2) the birth date of the adopted child;
44-22 (3) the docket number of the adoption suit;
44-23 (4) the identity of the court rendering the adoption;
44-24 (5) the date of the adoption order;
44-25 (6) the name and address of each parent, guardian,
44-26 managing conservator, or other person whose consent to adoption was
76R5 MCK-D 44
45-1 required or waived under Chapter 162 [159], or whose parental
45-2 rights were terminated in the adoption suit;
45-3 (7) the identity of the licensed child placing agency,
45-4 if any, through which the adopted child was placed for adoption;
45-5 and
45-6 (8) the identity, address, and telephone number of the
45-7 registry through which the adopted child may register as an
45-8 adoptee.
45-9 SECTION 6.17. Section 109.002(b), Family Code, is amended to
45-10 correct a reference to read as follows:
45-11 (b) An appeal may be taken by any party to a suit from a
45-12 final order rendered under this title [subtitle].
45-13 SECTION 6.18. (a) Subchapter A, Chapter 151, Family Code,
45-14 is amended to conform to Section 3(b), Chapter 1225, Acts of the
45-15 75th Legislature, Regular Session, 1997, by adding Section 151.005
45-16 to read as follows:
45-17 Sec. 151.005. LIMITATION ON STATE AGENCY ACTION. A state
45-18 agency may not adopt rules or policies or take any other action
45-19 that violates the fundamental right and duty of a parent to direct
45-20 the upbringing of the parent's child.
45-21 (b) Section 3(b), Chapter 1225, Acts of the 75th
45-22 Legislature, Regular Session, 1997, is repealed.
45-23 SECTION 6.19. Section 155.001(a), Family Code, is amended to
45-24 correct a reference to read as follows:
45-25 (a) Except as otherwise provided by this section, a court
45-26 acquires continuing, exclusive jurisdiction over the matters
76R5 MCK-D 45
46-1 provided for by this title [subtitle] in connection with a child on
46-2 the rendition of a final order.
46-3 SECTION 6.20. Section 155.002, Family Code, is amended to
46-4 correct a reference to read as follows:
46-5 Sec. 155.002. RETAINING CONTINUING, EXCLUSIVE JURISDICTION.
46-6 Except as otherwise provided by this subchapter, a court with
46-7 continuing, exclusive jurisdiction retains jurisdiction of the
46-8 parties and matters provided by this title [subtitle].
46-9 SECTION 6.21. Section 156.301, Family Code, is amended to
46-10 correct a reference to read as follows:
46-11 Sec. 156.301. GROUNDS FOR MODIFICATION OF POSSESSION AND
46-12 ACCESS. The court may modify an order that sets the terms and
46-13 conditions for possession of or access to a child or that
46-14 prescribes the relative rights, privileges, duties, and powers of
46-15 conservators if:
46-16 (1) the circumstances of the child or a person
46-17 affected by the order have materially and substantially changed
46-18 since the date of the rendition of the order;
46-19 (2) the order has become unworkable or inappropriate
46-20 under existing circumstances;
46-21 (3) the notice of change of a conservator's residence
46-22 required by Chapter 105 [153] was not given or there was a change
46-23 in a conservator's residence to a place outside this state; or
46-24 (4) a conservator has repeatedly failed to give notice
46-25 of an inability to exercise possessory rights.
46-26 SECTION 6.22. Section 156.402(a), Family Code, is amended to
76R5 MCK-D 46
47-1 correct a reference to read as follows:
47-2 (a) The court may consider the child support guidelines in
47-3 Chapter 154 [153] to determine whether there has been a material or
47-4 substantial change of circumstances under this chapter that
47-5 warrants a modification of an existing child support order if the
47-6 modification is in the best interest of the child.
47-7 SECTION 6.23. Section 156.406, Family Code, is amended to
47-8 correct a reference to read as follows:
47-9 Sec. 156.406. USE OF GUIDELINES FOR CHILDREN IN MORE THAN
47-10 ONE HOUSEHOLD. In applying the child support guidelines in a suit
47-11 under this subchapter, if the obligor has the duty to support
47-12 children in more than one household, the court shall apply the
47-13 percentage guidelines for multiple families in Chapter 154 [153].
47-14 SECTION 6.24. Section 157.003(a), Family Code, is amended to
47-15 correct a reference to read as follows:
47-16 (a) A party requesting enforcement may join in the same
47-17 proceeding any claim and remedy provided for in this chapter, other
47-18 provisions of this title [subtitle], or other rules of law.
47-19 SECTION 6.25. Section 157.165, Family Code, is amended to
47-20 correct a reference to read as follows:
47-21 Sec. 157.165. PROBATION OF CONTEMPT ORDER. The court may
47-22 place the respondent on community supervision and suspend
47-23 commitment if the court finds that the respondent is in contempt of
47-24 court for failure or refusal to obey an order rendered as provided
47-25 in this title [subtitle].
47-26 SECTION 6.26. Section 201.1085, Family Code, as added by
76R5 MCK-D 47
48-1 Section 62, Chapter 1022, Acts of the 75th Legislature, Regular
48-2 Session, 1997, is repealed because it is substantively identical to
48-3 Section 201.1085, Family Code, as added by Section 3, Chapter 600,
48-4 Acts of the 75th Legislature, Regular Session, 1997.
48-5 SECTION 6.27. Section 231.002(e), Family Code, as relettered
48-6 by Section 1, Chapter 874, Acts of the 75th Legislature, Regular
48-7 Session, 1997, and amended by Section 68, Chapter 911, Acts of the
48-8 75th Legislature, Regular Session, 1997; Section 231.002(e), Family
48-9 Code, as added by Section 68, Chapter 911, Acts of the 75th
48-10 Legislature, Regular Session, 1997; and Section 231.002(f), Family
48-11 Code, are relettered and amended to correct a reference to read as
48-12 follows:
48-13 (e) The Title IV-D agency may take the following
48-14 administrative actions with respect to the location of a parent,
48-15 the determination of parentage, and the establishment,
48-16 modification, and enforcement of child support and medical support
48-17 orders required by 42 U.S.C. Section 666(c), without obtaining an
48-18 order from any other judicial or administrative tribunal:
48-19 (1) issue an administrative subpoena, as provided by
48-20 Section 231.303, to obtain financial or other information;
48-21 (2) order genetic testing for parentage determination,
48-22 as provided by Chapter 233;
48-23 (3) order income withholding, as provided by Chapter
48-24 233, and issue an administrative writ of withholding, as provided
48-25 by Chapter 158; and
48-26 (4) take any action with respect to execution,
76R5 MCK-D 48
49-1 collection, and release of a judgment or lien for child support
49-2 necessary to satisfy the judgment or lien, as provided by Chapter
49-3 157.
49-4 (f) [(e)] The Title IV-D agency shall recognize and enforce
49-5 the authority of the Title IV-D agency of another state to take
49-6 actions similar to the actions listed in Subsection (e) [(d)].
49-7 (g) [(f)] The Title IV-D agency shall develop and use
49-8 procedures for the administrative enforcement of interstate cases
49-9 meeting the requirements of 42 U.S.C. Section 666(a)(14) under
49-10 which the agency:
49-11 (1) shall respond within five business days to a
49-12 request made by another state for assistance in a Title IV-D case;
49-13 and
49-14 (2) may, by electronic or other means, transmit to
49-15 another state a request for assistance in a Title IV-D case.
49-16 SECTION 6.28. Section 231.302(b), Family Code, as amended by
49-17 Section 20, Chapter 420, Acts of the 75th Legislature, Regular
49-18 Session, 1997, and Section 77, Chapter 911, Acts of the 75th
49-19 Legislature, Regular Session, 1997, is reenacted to read as
49-20 follows:
49-21 (b) A government agency, private company, institution, or
49-22 other entity shall provide the information requested under
49-23 Subsection (a) and shall, subject to safeguards on privacy and
49-24 information security, provide the information in the most efficient
49-25 and expeditious manner available, including electronic or automated
49-26 transfer and interface. Any individual or entity disclosing
76R5 MCK-D 49
50-1 information under this section in response to a request from a
50-2 Title IV-D agency may not be held liable in any civil action or
50-3 proceeding to any person for the disclosure of information under
50-4 this subsection.
50-5 SECTION 6.29. Section 261.101(b), Family Code, as amended by
50-6 Section 1, Chapter 162, and Section 65, Chapter 1022, Acts of the
50-7 75th Legislature, Regular Session, 1997, is amended and reenacted
50-8 to read as follows:
50-9 (b) If a professional has cause to believe that a child has
50-10 been abused or neglected or may be abused or neglected or that a
50-11 child is a victim of an offense under Section 21.11, Penal Code,
50-12 [and that the professional has cause to believe that the child has
50-13 been abused as defined by Section 261.001,] the professional shall
50-14 make a report not later than the 48th hour after the hour the
50-15 professional first suspects that the child has been or may be
50-16 abused or neglected or is a victim of an offense under Section
50-17 21.11, Penal Code. A professional may not delegate to or rely on
50-18 another person to make the report. In this subsection,
50-19 "professional" means an individual who is licensed or certified by
50-20 the state or who is an employee of a facility licensed, certified,
50-21 or operated by the state and who, in the normal course of official
50-22 duties or duties for which a license or certification is required,
50-23 has direct contact with children. The term includes teachers,
50-24 nurses, doctors, day-care employees, employees of a clinic or
50-25 health care facility that provides reproductive services, juvenile
50-26 probation officers, and juvenile detention or correctional
76R5 MCK-D 50
51-1 officers.
51-2 SECTION 6.30. Section 261.107, Family Code, as amended by
51-3 Section 2, Chapter 575, and Section 68, Chapter 1022, Acts of the
51-4 75th Legislature, Regular Session, 1997, is reenacted to read as
51-5 follows:
51-6 Sec. 261.107. FALSE REPORT; PENALTY. (a) A person commits
51-7 an offense if the person knowingly or intentionally makes a report
51-8 as provided in this chapter that the person knows is false or lacks
51-9 factual foundation. An offense under this section is a Class A
51-10 misdemeanor unless it is shown on the trial of the offense that the
51-11 person has previously been convicted under this section, in which
51-12 case the offense is a state jail felony.
51-13 (b) A finding by a court in a suit affecting the
51-14 parent-child relationship that a report made under this chapter
51-15 before or during the suit was false or lacking factual foundation
51-16 may be grounds for the court to modify an order providing for
51-17 possession of or access to the child who was the subject of the
51-18 report by restricting further access to the child by the person who
51-19 made the report.
51-20 (c) The appropriate county prosecuting attorney shall be
51-21 responsible for the prosecution of an offense under this section.
51-22 SECTION 6.31. (a) Section 262.201(c), Family Code, as
51-23 amended by Section 5, Chapter 600; Section 1, Chapter 603; Section
51-24 77, Chapter 1022; and Section 3, Chapter 752, Acts of the 75th
51-25 Legislature, Regular Session, 1997, is reenacted and amended to
51-26 correct references to read as follows:
76R5 MCK-D 51
52-1 (c) If the court finds sufficient evidence to satisfy a
52-2 person of ordinary prudence and caution that there is a continuing
52-3 danger to the physical health or safety of the child and for the
52-4 child to remain in the home is contrary to the welfare of the
52-5 child, the court shall issue an appropriate temporary order under
52-6 Chapter 105 and inform each parent in open court that parental and
52-7 custodial rights and duties may be subject to restriction or to
52-8 termination unless the parent or parents are willing and able to
52-9 provide the child with a safe environment. If the court finds that
52-10 the child requires protection from family violence by a member of
52-11 the child's family or household, the court shall render a
52-12 protective order under Title 4 [Chapter 71] for the child. In this
52-13 subsection, "family violence" has the meaning assigned by Section
52-14 71.004 [71.01].
52-15 (b) Subsection (e), Section 262.201, Family Code, as added
52-16 by Section 21, Chapter 575, Acts of the 75th Legislature, Regular
52-17 Session, 1997, is relettered as Subsection (f), Section 262.201,
52-18 Family Code.
52-19 ARTICLE 7. CHANGES RELATING TO FINANCE CODE
52-20 PART 1. CHANGES RELATING TO CREDIT UNIONS
52-21 PART 2. CHANGES RELATING TO TRUST COMPANIES
52-22 PART 3. CHANGES RELATING TO CREDIT
52-23 PART 4. CODIFICATION OF CERTAIN ARTICLES
52-24 PART 5. OTHER CHANGES RELATING TO FINANCE CODE
52-25 PART 6. CROSS-REFERENCE CHANGES
52-26 PART 1. CHANGES RELATING TO CREDIT UNIONS
76R5 DWS-D 52
53-1 SECTION 7.01. (a) Section 122.005, Finance Code, is amended
53-2 to conform to Sections 1 and 17, Chapter 338, Acts of the 75th
53-3 Legislature, Regular Session, 1997, to read as follows:
53-4 Sec. 122.005. PROCEDURE FOR CERTAIN APPROVALS. (a) This
53-5 section applies to a request for approval by the commissioner of:
53-6 (1) an application for incorporation under this
53-7 subchapter;
53-8 (2) a request for approval of an amendment to a credit
53-9 union's articles of incorporation under Section 122.011, including
53-10 an amendment to expand the credit union's field of membership; and
53-11 (3) a merger or consolidation under Subchapter D.
53-12 (b) Before approving a request to which this section
53-13 applies, the commissioner shall submit notice of the request to the
53-14 secretary of state for publication in the Texas Register. The
53-15 commission by rule shall provide for other appropriate public
53-16 notice of the request. The commissioner may waive the requirements
53-17 of this subsection or permit delayed public notice on a
53-18 determination that waiver or delay is in the public interest. If
53-19 the requirements of this subsection are waived, the information
53-20 that would be contained in a public notice becomes public
53-21 information under Chapter 552, Government Code, on the 35th day
53-22 after the date the request is made.
53-23 (c) Before making a determination on a request to which this
53-24 section applies, the commissioner must accept comment from any
53-25 interested party that wishes to comment. This comment may be in
53-26 the form of written testimony or may be provided at a meeting with
76R5 DWS-D 53
54-1 the commissioner held for the purpose of receiving the comment.
54-2 This meeting shall be held if requested by any interested party.
54-3 The commissioner may hold the meeting regardless of whether an
54-4 interested party requests the meeting. The commission may
54-5 establish reasonable rules governing the circumstances and conduct
54-6 of the meeting. Chapter 2001, Government Code, does not apply to
54-7 the meeting. Not later than the 60th day after the date the notice
54-8 is published in the Texas Register, or if the notice is not
54-9 published, after the date the request is received, the commissioner
54-10 shall approve or disapprove the application. [NOTICE OF
54-11 APPLICATION; HEARING. The commission by rule shall establish:]
54-12 [(1) procedures for giving notice of an application to
54-13 incorporate; and]
54-14 [(2) conditions under which a hearing may be
54-15 available.]
54-16 (b) Sections 122.006(b) and (c), Finance Code, are amended
54-17 to conform to Section 1, Chapter 338, Acts of the 75th Legislature,
54-18 Regular Session, 1997, to read as follows:
54-19 (b) In addition to the findings under Subsection (a) and in
54-20 accordance with commission rules, the commissioner shall consider
54-21 the effect of overlapping fields of membership on the applicant
54-22 credit union and existing state or federal credit unions doing
54-23 business in this state. The commissioner may consider the
54-24 availability and adequacy of financial services in the local
54-25 community and the effect that the incorporation of the credit union
54-26 would have on the local community. As a condition of approval of
76R5 DWS-D 54
55-1 the application, the commissioner may require the applicant credit
55-2 union to limit or eliminate overlaps, in accordance with the rules,
55-3 to achieve the purposes of this subtitle and promote the welfare
55-4 and stability of those credit unions.
55-5 (c) The [Not later than the 90th day after the date an
55-6 application is filed or the date a hearing on the application is
55-7 held, whichever is later, the] commissioner by written order shall
55-8 state the findings required by Subsection (a) and approve or deny
55-9 the application.
55-10 (c) Sections 1 and 17, Chapter 338, Acts of the 75th
55-11 Legislature, Regular Session, 1997, are repealed.
55-12 SECTION 7.02. (a) Section 122.011(b), Finance Code, is
55-13 amended to conform to Section 2, Chapter 338, Acts of the 75th
55-14 Legislature, Regular Session, 1997, to read as follows:
55-15 (b) The commissioner in writing shall approve or disapprove
55-16 an amendment [not later than the 60th day after the date of
55-17 submission, the date of required publication in the department's
55-18 newsletter, or the date of a hearing on the amendment, whichever is
55-19 latest].
55-20 (b) Section 2, Chapter 338, Acts of the 75th Legislature,
55-21 Regular Session, 1997, is repealed.
55-22 SECTION 7.03. (a) Subchapter D, Chapter 122, Finance Code,
55-23 is amended to conform to Section 3, Chapter 338, Acts of the 75th
55-24 Legislature, Regular Session, 1997, by adding Sections 122.1531 and
55-25 122.156 to read as follows:
55-26 Sec. 122.1531. CONSIDERATIONS IN DETERMINATION. In
76R5 DWS-D 55
56-1 determining whether to approve or disapprove the merger or
56-2 consolidation, the commissioner shall consider the availability and
56-3 adequacy of financial services in the local community and the
56-4 effect that the merger or consolidation would have on the local
56-5 community. The commission by rule shall establish other
56-6 appropriate criteria that the commissioner must consider in making
56-7 the determination.
56-8 Sec. 122.156. RULES TO ADDRESS CERTAIN PROCEDURES. The
56-9 rules adopted under this subchapter must specify in detail the
56-10 procedures that:
56-11 (1) a credit union must follow to obtain commissioner
56-12 approval of a merger or consolidation; and
56-13 (2) the commissioner must follow in approving or
56-14 disapproving the merger or consolidation.
56-15 (b) Section 3, Chapter 338, Acts of the 75th Legislature,
56-16 Regular Session, 1997, is repealed.
56-17 SECTION 7.04. (a) Section 15.104, Finance Code, is amended
56-18 to conform to Section 4, Chapter 338, Acts of the 75th Legislature,
56-19 Regular Session, 1997, to read as follows:
56-20 Sec. 15.104. FISCAL REPORT. (a) The [During January of
56-21 each year, the] department shall annually prepare [file with the
56-22 governor and the presiding officer of each house of the
56-23 legislature] a complete and detailed written report accounting for
56-24 all money received and disbursed by the department during the
56-25 preceding year.
56-26 (b) The report must meet the reporting requirements
76R5 DWS-D 56
57-1 applicable to financial reporting provided by the General
57-2 Appropriations Act.
57-3 (b) Section 15.212, Finance Code, is amended to conform to
57-4 Section 4, Chapter 338, Acts of the 75th Legislature, Regular
57-5 Session, 1997, to read as follows:
57-6 Sec. 15.212. SUNSET PROVISION. The Credit Union Commission
57-7 is subject to Chapter 325, Government Code (Texas Sunset Act).
57-8 Unless continued in existence as provided by that chapter, the
57-9 commission is abolished [and this chapter and Subtitle D, Title 3,
57-10 expire] September 1, 2009 [1997].
57-11 (c) Section 4, Chapter 338, Acts of the 75th Legislature,
57-12 Regular Session, 1997, is repealed.
57-13 SECTION 7.05. (a) Section 15.001, Finance Code, is amended
57-14 to conform to Section 5, Chapter 338, Acts of the 75th Legislature,
57-15 Regular Session, 1997, to read as follows:
57-16 Sec. 15.001. DEFINITIONS. (a) In this chapter, "trade
57-17 association" means a nonprofit, cooperative, and voluntarily
57-18 joined association of business or professional competitors designed
57-19 to assist its members and its industry or profession in dealing
57-20 with mutual business or professional problems and in promoting
57-21 their common interest.
57-22 (b) The definitions provided by Section 121.002 apply to
57-23 this chapter.
57-24 (b) Section 15.202(b), Finance Code, is amended to conform
57-25 to Section 5, Chapter 338, Acts of the 75th Legislature, Regular
57-26 Session, 1997, to read as follows:
76R5 DWS-D 57
58-1 (b) A commission member may not be:
58-2 (1) an officer, [or] employee, or paid consultant of a
58-3 [state] trade association representing or affiliated with a
58-4 financial institution group or an entity affiliated with financial
58-5 institutions [in the credit union industry]; [or]
58-6 (2) a spouse of an officer, manager, or paid
58-7 consultant of a trade association representing or affiliated with a
58-8 financial institution group or an entity affiliated with financial
58-9 institutions; or
58-10 (3) a person who is required to register as a lobbyist
58-11 under Chapter 305, Government Code, because of the person's
58-12 activities for compensation on behalf of a profession related to
58-13 the operation of the commission.
58-14 (c) Section 15.203(a), Finance Code, is amended to conform
58-15 to Section 5, Chapter 338, Acts of the 75th Legislature, Regular
58-16 Session, 1997, to read as follows:
58-17 (a) Four [Six] commission members must be individuals who:
58-18 (1) have five years or more of active experience as a
58-19 director, officer, or committee member of a credit union that:
58-20 (A) is organized and doing business in this
58-21 state under Subtitle D, Title 3, or the Federal Credit Union Act
58-22 (12 U.S.C. Section 1751 et seq.); and
58-23 (B) has its principal office in this state; and
58-24 (2) are engaged in exercising the powers and duties of
58-25 a director, officer, or committee member of such a credit union.
58-26 (d) Section 15.204(a), Finance Code, is amended to conform
76R5 DWS-D 58
59-1 to Section 5, Chapter 338, Acts of the 75th Legislature, Regular
59-2 Session, 1997, to read as follows:
59-3 (a) Five [Three] commission members must be representatives
59-4 of the public. A person is not eligible for appointment as a
59-5 public member of the commission if the person or the person's
59-6 spouse [who, at the time of appointment or while serving on the
59-7 commission]:
59-8 (1) is employed by or participates [are not engaged]
59-9 in managing or directing:
59-10 (A) a financial institution; or
59-11 (B) an organization, other than a financial
59-12 institution, regulated by or receiving money from a financial
59-13 institution regulatory agency; [and]
59-14 (2) has [do not have], other than as a member or
59-15 customer, a financial interest in:
59-16 (A) a financial institution; or
59-17 (B) an organization, other than a financial
59-18 institution, regulated by or receiving money from a financial
59-19 institution regulatory agency; or
59-20 (3) uses or receives a substantial amount of tangible
59-21 goods, services, or money from the department, other than
59-22 compensation or reimbursement authorized by law for commission
59-23 membership, attendance, or expenses.
59-24 (e) Section 15.305, Finance Code, is amended to conform to
59-25 Section 5, Chapter 338, Acts of the 75th Legislature, Regular
59-26 Session, 1997, to read as follows:
76R5 DWS-D 59
60-1 Sec. 15.305. GENERAL COUNSEL. A person who is required to
60-2 register as a lobbyist under Chapter 305, Government Code, because
60-3 of the person's activities for compensation on behalf of a
60-4 profession related to the operation of the commission, may not
60-5 serve as general counsel to the commission.
60-6 (f) Subchapter D, Chapter 15, Finance Code, is amended to
60-7 conform to Section 5, Chapter 338, Acts of the 75th Legislature,
60-8 Regular Session, 1997, by adding Section 15.311 to read as follows:
60-9 Sec. 15.311. QUALIFICATIONS OF EMPLOYEES. A person may not
60-10 be an employee of the department who is exempt from the state's
60-11 position classification plan or is compensated at or above the
60-12 amount prescribed by the General Appropriations Act for step 1,
60-13 salary group 17, of the position classification salary schedule, if
60-14 the person is:
60-15 (1) an officer, employee, or paid consultant of a
60-16 trade association representing or affiliated with a financial
60-17 institution group or an entity affiliated with financial
60-18 institutions; or
60-19 (2) a spouse of an officer, manager, or paid
60-20 consultant of a trade association representing or affiliated with a
60-21 financial institution group or an entity affiliated with financial
60-22 institutions.
60-23 (g) Section 5, Chapter 338, Acts of the 75th Legislature,
60-24 Regular Session, 1997, is repealed.
60-25 SECTION 7.06. (a) Section 15.201(c), Finance Code, is
60-26 amended to conform to Section 6, Chapter 338, Acts of the 75th
76R5 DWS-D 60
61-1 Legislature, Regular Session, 1997, to read as follows:
61-2 (c) An appointment to the commission must be made without
61-3 regard to the race, color, creed, disability, sex, religion, age,
61-4 or national origin of the appointee.
61-5 (b) Section 6, Chapter 338, Acts of the 75th Legislature,
61-6 Regular Session, 1997, is repealed.
61-7 SECTION 7.07. (a) Subchapter C, Chapter 15, Finance Code,
61-8 is amended to conform to Section 7, Chapter 338, Acts of the 75th
61-9 Legislature, Regular Session, 1997, by adding Section 15.2041 to
61-10 read as follows:
61-11 Sec. 15.2041. TRAINING PROGRAM. (a) To be eligible to take
61-12 office as a member of the commission, a person appointed to the
61-13 commission must complete at least one course of a training program
61-14 that complies with this section. A commission member must complete
61-15 a training program that complies with Subsection (b) not later than
61-16 the 180th day after the date on which the person takes office.
61-17 (b) A training program established under this section must
61-18 provide information to the member regarding:
61-19 (1) the enabling legislation that created the
61-20 department and its policy-making body to which the member is
61-21 appointed to serve;
61-22 (2) the programs operated by the department;
61-23 (3) the role and functions of the department;
61-24 (4) the rules of the commission with an emphasis on
61-25 the rules that relate to disciplinary and investigatory authority;
61-26 (5) the current budget for the department;
76R5 DWS-D 61
62-1 (6) the results of the most recent formal audit of the
62-2 department;
62-3 (7) the requirements of the:
62-4 (A) open meetings law, Chapter 551, Government
62-5 Code;
62-6 (B) open records law, Chapter 552, Government
62-7 Code; and
62-8 (C) administrative procedure law, Chapter 2001,
62-9 Government Code;
62-10 (8) the requirements of the conflict of interest laws
62-11 and other laws relating to public officials;
62-12 (9) any applicable ethics policies adopted by the
62-13 department or the Texas Ethics Commission; and
62-14 (10) the basic principles and responsibilities of
62-15 credit union management.
62-16 (c) A person appointed to the commission is entitled to
62-17 reimbursement for travel expenses incurred in attending the
62-18 training program, as provided by the General Appropriations Act and
62-19 as if the person were a member of the commission.
62-20 (b) Section 7, Chapter 338, Acts of the 75th Legislature,
62-21 Regular Session, 1997, is repealed.
62-22 SECTION 7.08. (a) Section 15.205, Finance Code, is amended
62-23 to conform to Section 8, Chapter 338, Acts of the 75th Legislature,
62-24 Regular Session, 1997, to read as follows:
62-25 Sec. 15.205. VACANCIES. The office of a commission member
62-26 becomes vacant:
76R5 DWS-D 62
63-1 (1) on the death, resignation, or removal of the
63-2 member; or
63-3 (2) if the member ceases to have the qualifications
63-4 required for service as a member[; or]
63-5 [(3) on January 1 if the member has failed to attend
63-6 more than half of the meetings of the commission held during the
63-7 preceding calendar year, excluding a meeting held before the member
63-8 assumed office].
63-9 (b) Section 15.206, Finance Code, is amended to conform to
63-10 Section 8, Chapter 338, Acts of the 75th Legislature, Regular
63-11 Session, 1997, to read as follows:
63-12 Sec. 15.206. REMOVAL. (a) A ground for removal of a
63-13 commission member by the governor exists if a member:
63-14 (1) neglects the member's duty;
63-15 (2) is incompetent; or
63-16 (3) commits fraudulent or criminal conduct[; or]
63-17 [(4) is a person required to register as a lobbyist
63-18 under Chapter 305, Government Code].
63-19 (b) It is grounds for removal from the commission if a
63-20 member:
63-21 (1) does not have at the time of appointment the
63-22 applicable qualifications required by Sections 15.202, 15.203, and
63-23 15.204;
63-24 (2) does not maintain during service on the commission
63-25 the applicable qualifications required by Sections 15.202, 15.203,
63-26 and 15.204;
76R5 DWS-D 63
64-1 (3) violates a prohibition established by Section
64-2 15.202, 15.203, or 15.204;
64-3 (4) cannot because of illness or disability discharge
64-4 the member's duties for a substantial part of the term for which
64-5 the member is appointed; or
64-6 (5) is absent from more than half of the regularly
64-7 scheduled commission meetings that the member is eligible to attend
64-8 during a calendar year.
64-9 (c) The validity of an action of the commission is not
64-10 affected by the fact that it was taken when a ground for removal of
64-11 a commission member existed.
64-12 (d) If the commissioner has knowledge that a potential
64-13 ground for removal exists, the commissioner shall notify the
64-14 presiding officer of the commission of the potential ground. The
64-15 presiding officer shall then notify the governor and the attorney
64-16 general that a potential ground for removal exists. If the
64-17 potential ground for removal involves the presiding officer, the
64-18 commissioner shall notify the next highest officer of the
64-19 commission, who shall notify the governor and the attorney general
64-20 that a potential ground for removal exists.
64-21 (c) Section 8, Chapter 338, Acts of the 75th Legislature,
64-22 Regular Session, 1997, is repealed.
64-23 SECTION 7.09. (a) Section 15.208, Finance Code, is amended
64-24 to conform to Section 9, Chapter 338, Acts of the 75th Legislature,
64-25 Regular Session, 1997, to read as follows:
64-26 Sec. 15.208. MATTER IN WHICH COMMISSION MEMBER HAS PERSONAL
76R5 DWS-D 64
65-1 INTEREST. (a) A commission member may not act on a matter under
65-2 the commission's consideration that directly affects [and
65-3 specifically relates to] a credit union of which the member is an
65-4 officer, director, or member.
65-5 (b) The commission shall adopt rules relating to recusal of
65-6 members, requiring that a member who has a personal or private
65-7 interest in a measure, proposal, or decision pending before the
65-8 commission shall publicly disclose the fact to the commission at a
65-9 meeting held in compliance with Chapter 551, Government Code. The
65-10 member may not vote or otherwise participate in the decision. The
65-11 disclosure shall be entered into the minutes of the meeting.
65-12 (b) Section 15.209, Finance Code, is amended to conform to
65-13 Section 9, Chapter 338, Acts of the 75th Legislature, Regular
65-14 Session, 1997, by adding Subsection (d) to read as follows:
65-15 (d) The commission is subject to the:
65-16 (1) open meetings law, Chapter 551, Government Code;
65-17 and
65-18 (2) administrative procedure law, Chapter 2001,
65-19 Government Code.
65-20 (c) Section 15.210, Finance Code, is amended to conform to
65-21 Section 9, Chapter 338, Acts of the 75th Legislature, Regular
65-22 Session, 1997, to read as follows:
65-23 Sec. 15.210. PRESIDING OFFICER. The governor shall
65-24 designate a member of the commission as presiding officer of the
65-25 commission to serve in that capacity at the will of the governor.
65-26 [OFFICERS. (a) The commission annually shall elect a chairman and
76R5 DWS-D 65
66-1 vice chairman from its members.]
66-2 [(b) The chairman presides at each meeting of the
66-3 commission, and the vice chairman presides in the absence of the
66-4 chairman. If both the chairman and the vice chairman are absent
66-5 from a meeting, the most senior commission member attending the
66-6 meeting presides.]
66-7 (d) Section 9, Chapter 338, Acts of the 75th Legislature,
66-8 Regular Session, 1997, is repealed.
66-9 SECTION 7.10. (a) Subchapter E, Chapter 15, Finance Code,
66-10 is amended to conform to Sections 10, 11, and 12, Chapter 338, Acts
66-11 of the 75th Legislature, Regular Session, 1997, by adding Sections
66-12 15.4021, 15.4022, and 15.4023 to read as follows:
66-13 Sec. 15.4021. RECEIPT OF PUBLIC COMMENTS; NOTICE OF
66-14 COMMISSION ACTIVITIES. (a) The commission shall develop and
66-15 implement policies that provide the public with a reasonable
66-16 opportunity to appear before the commission and to speak on any
66-17 issue under the jurisdiction of the department.
66-18 (b) The commission shall adopt rules providing for public
66-19 notice of department activities.
66-20 Sec. 15.4022. RULES RELATING TO COMPETITIVE BIDDING AND
66-21 ADVERTISING. (a) The commission may not adopt rules restricting
66-22 competitive bidding or advertising by a credit union except to
66-23 prohibit false, misleading, or deceptive practices.
66-24 (b) In its rules to prohibit false, misleading, or deceptive
66-25 practices, the commission may not include a rule that:
66-26 (1) restricts the use of any medium for advertising;
76R5 DWS-D 66
67-1 (2) relates to the size or duration of an
67-2 advertisement by the credit union; or
67-3 (3) restricts the credit union's advertisement under a
67-4 trade name.
67-5 Sec. 15.4023. SEPARATION OF RESPONSIBILITIES. The
67-6 commission shall develop and implement policies that clearly
67-7 separate the policy-making responsibilities of the commission and
67-8 the management responsibilities of the commissioner and the staff
67-9 of the department.
67-10 (b) Sections 10, 11, and 12, Chapter 338, Acts of the 75th
67-11 Legislature, Regular Session, 1997, are repealed.
67-12 SECTION 7.11. (a) Subchapter D, Chapter 15, Finance Code,
67-13 is amended to conform to Section 13, Chapter 338, Acts of the 75th
67-14 Legislature, Regular Session, 1997, by adding Section 15.312 to
67-15 read as follows:
67-16 Sec. 15.312. INFORMATION PROVIDED TO MEMBERS AND EMPLOYEES.
67-17 The commissioner or the commissioner's designee shall provide to
67-18 members of the commission and to department employees, as often as
67-19 necessary, information regarding their qualification for office or
67-20 employment under this chapter and their responsibilities under
67-21 applicable laws relating to standards of conduct for state officers
67-22 or employees.
67-23 (b) Section 15.408, Finance Code, is amended to conform to
67-24 Section 13, Chapter 338, Acts of the 75th Legislature, Regular
67-25 Session, 1997, to read as follows:
67-26 Sec. 15.408. COLLECTION OF MONEY. The commissioner shall
76R5 DWS-D 67
68-1 collect all supervision fees, charges, and revenues required to be
68-2 paid by a credit union under Section 15.402(c). All money paid to
68-3 the department under this chapter and Subtitle D, Title 3, is
68-4 subject to Subchapter F, Chapter 404, Government Code.
68-5 (c) Section 15.409, Finance Code, is amended to conform to
68-6 Section 13, Chapter 338, Acts of the 75th Legislature, Regular
68-7 Session, 1997, by amending Subsections (a), (b), (d), and (e) and
68-8 adding Subsections (f) and (g) to read as follows:
68-9 (a) The commissioner shall [supervise]:
68-10 (1) supervise the preparation of public interest
68-11 information describing [regarding]:
68-12 (A) [regulatory] functions of the department;
68-13 (B) procedures for filing and resolving
68-14 complaints; and
68-15 (C) other matters of general interest relating
68-16 to credit unions; and
68-17 (2) make the information prepared under Subdivision
68-18 (1) available [the dissemination] to the public and appropriate
68-19 state agencies [of information prepared under Subdivision (1)].
68-20 (b) The commissioner shall supervise the establishment and
68-21 maintenance of files regarding each written complaint [complaints]
68-22 filed with the department that the department has authority to
68-23 resolve [relating to a credit union regulated by the department].
68-24 (d) The department [commissioner] shall provide to a person
68-25 filing a complaint and the persons complained about the
68-26 department's policies and procedures concerning complaint
76R5 DWS-D 68
69-1 investigation and resolution [notify each complainant of the
69-2 procedures and remedies available for resolving a complaint].
69-3 (e) At least quarterly until final disposition of any
69-4 written complaint that is filed with the department [commission],
69-5 the department [commissioner] shall notify the parties to the
69-6 complaint of its status unless the notice would jeopardize an
69-7 undercover investigation.
69-8 (f) The department shall keep information about each
69-9 complaint filed with the department. The information must include:
69-10 (1) the date the complaint is received;
69-11 (2) the name of the complainant;
69-12 (3) the subject matter of the complaint;
69-13 (4) a record of all persons contacted in relation to
69-14 the complaint;
69-15 (5) a summary of the results of the review or
69-16 investigation of the complaint; and
69-17 (6) for a complaint that the department closed without
69-18 taking action, an explanation of the reason the complaint was
69-19 closed without action.
69-20 (g) The commission by rule shall establish methods by which
69-21 consumers and service recipients are notified of the name, mailing
69-22 address, and telephone number of the department for the purpose of
69-23 directing complaints to the department. The commission may provide
69-24 for that notification:
69-25 (1) on each registration form, application, or written
69-26 contract for services of a credit union regulated under this
76R5 DWS-D 69
70-1 chapter and Subtitle D, Title 3;
70-2 (2) on a sign prominently displayed in the place of
70-3 business of each credit union regulated under this chapter and
70-4 Subtitle D, Title 3; or
70-5 (3) in a bill for service provided by a credit union
70-6 regulated under this chapter and Subtitle D, Title 3.
70-7 (d) Subchapter E, Chapter 15, Finance Code, is amended to
70-8 conform to Section 13, Chapter 338, Acts of the 75th Legislature,
70-9 Regular Session, 1997, by adding Section 15.4091 to read as
70-10 follows:
70-11 Sec. 15.4091. ACCESS TO DEPARTMENT FACILITIES, PROGRAMS, AND
70-12 SERVICES. (a) The department shall comply with federal and state
70-13 laws related to program and facility accessibility.
70-14 (b) The commissioner shall prepare and maintain a written
70-15 plan that describes how a person who does not speak English can be
70-16 provided reasonable access to the department's programs and
70-17 services.
70-18 (e) Section 13, Chapter 338, Acts of the 75th Legislature,
70-19 Regular Session, 1997, is repealed.
70-20 SECTION 7.12. (a) Section 15.309, Finance Code, is amended
70-21 to conform to Section 14, Chapter 338, Acts of the 75th
70-22 Legislature, Regular Session, 1997, to read as follows:
70-23 Sec. 15.309. INTRA-AGENCY CAREER LADDER. (a) The
70-24 commissioner or a person designated by the commissioner shall
70-25 develop an intra-agency career ladder program that addresses
70-26 opportunities for mobility and advancement for employees within the
76R5 DWS-D 70
71-1 department.
71-2 (b) The program must require [include] intra-agency posting
71-3 of all non-entry-level positions concurrently with [for at least 10
71-4 days before] public posting.
71-5 (b) Section 15.310(a), Finance Code, is amended to conform
71-6 to Section 14, Chapter 338, Acts of the 75th Legislature, Regular
71-7 Session, 1997, to read as follows:
71-8 (a) The commissioner or a person designated by the
71-9 commissioner shall develop a system of annual performance
71-10 evaluations that are based on documented employee performance
71-11 [measurable job tasks].
71-12 (c) Section 14, Chapter 338, Acts of the 75th Legislature,
71-13 Regular Session, 1997, is repealed.
71-14 SECTION 7.13. (a) Subchapter D, Chapter 15, Finance Code,
71-15 is amended to conform to Section 15, Chapter 338, Acts of the 75th
71-16 Legislature, Regular Session, 1997, by adding Section 15.313 to
71-17 read as follows:
71-18 Sec. 15.313. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a) The
71-19 commissioner or a person designated by the commissioner shall
71-20 prepare and maintain a written policy statement to assure
71-21 implementation of a program of equal employment opportunity under
71-22 which all personnel transactions are made without regard to race,
71-23 color, disability, sex, religion, age, or national origin. The
71-24 policy statement must include:
71-25 (1) personnel policies, including policies relating to
71-26 recruitment, evaluation, selection, appointment, training, and
76R5 DWS-D 71
72-1 promotion of personnel that comply with requirements of Chapter 21,
72-2 Labor Code;
72-3 (2) a comprehensive analysis of the department
72-4 workforce that meets federal and state law, including rules and
72-5 regulations, and instructions adopted directly from that law;
72-6 (3) procedures by which a determination can be made
72-7 about the extent of underuse in the department workforce of all
72-8 persons for whom federal or state laws, including rules and
72-9 regulations, and instructions adopted directly from that law,
72-10 encourage a more equitable balance; and
72-11 (4) reasonable methods to appropriately address those
72-12 areas of underuse.
72-13 (b) A policy statement prepared under Subsection (a) must:
72-14 (1) cover an annual period;
72-15 (2) be updated annually and reviewed by the Commission
72-16 on Human Rights for compliance with Subsection (a)(1); and
72-17 (3) be filed with the governor's office.
72-18 (c) The governor's office shall deliver a biennial report to
72-19 the legislature based on the information received under Subsection
72-20 (b). The report may be made separately or as a part of other
72-21 biennial reports made to the legislature.
72-22 (b) Section 15, Chapter 338, Acts of the 75th Legislature,
72-23 Regular Session, 1997, is repealed.
72-24 SECTION 7.14. (a) Section 121.005, Finance Code, is amended
72-25 to conform to Section 16, Chapter 338, Acts of the 75th
72-26 Legislature, Regular Session, 1997, by adding Subsection (c) to
76R5 DWS-D 72
73-1 read as follows:
73-2 (c) This section does not apply to a meeting under Section
73-3 122.005.
73-4 (b) Chapter 121, Finance Code, is amended to conform to
73-5 Section 16, Chapter 338, Acts of the 75th Legislature, Regular
73-6 Session, 1997, by adding Section 121.006 to read as follows:
73-7 Sec. 121.006. PROCEDURE AND RULES APPLICABLE TO CERTAIN
73-8 PROCEEDINGS. (a) If the commission proposes to suspend or revoke
73-9 a credit union's certificate of incorporation, the credit union is
73-10 entitled to a hearing conducted by the State Office of
73-11 Administrative Hearings.
73-12 (b) A proceeding for a disciplinary action is governed by
73-13 Chapter 2001, Government Code. Rules of practice adopted by the
73-14 commission under Section 2001.004, Government Code, applicable to a
73-15 proceeding for a disciplinary action may not conflict with rules
73-16 adopted by the State Office of Administrative Hearings.
73-17 (c) Section 16, Chapter 338, Acts of the 75th Legislature,
73-18 Regular Session, 1997, is repealed.
73-19 SECTION 7.15. Chapter 121, Finance Code, is amended to more
73-20 closely conform to the law from which it was derived by adding
73-21 Section 121.0011 to read as follows:
73-22 Sec. 121.0011. POLICY. The purposes of this subtitle are to
73-23 safeguard the public interest, to promote public confidence in
73-24 credit unions doing business in this state, to provide for the
73-25 protection of the interests, shares, and deposits of credit unions,
73-26 to delegate to the department rulemaking and discretionary
76R5 DWS-D 73
74-1 authority that may be necessary to assure that credit unions
74-2 operating under this subtitle may be sufficiently flexible and
74-3 readily responsive to changes in economic conditions and practices,
74-4 to maintain sound credit union growth and financial integrity,
74-5 fiscal responsibility, and independent judgment in the management
74-6 of the business affairs of credit unions, to permit credit unions
74-7 to effectively provide a full array of financial and
74-8 financially-related services, to provide effective supervision and
74-9 regulation of credit unions and their fields of membership, and to
74-10 clarify and modernize the law governing the credit unions doing
74-11 business in this state. This subtitle is the public policy of this
74-12 state and necessary to the public welfare.
74-13 PART 2. CHANGES RELATING TO TRUST COMPANIES
74-14 SECTION 7.16. (a) Title 3, Finance Code, is amended to
74-15 codify Section 1, Chapter 769, Acts of the 75th Legislature,
74-16 Regular Session, 1997 (Article 342a-1.001 et seq., Vernon's Texas
74-17 Civil Statutes), by adding Subtitle F to read as follows:
74-18 SUBTITLE F. TRUST COMPANIES
74-19 CHAPTER 181. GENERAL PROVISIONS
74-20 SUBCHAPTER A. GENERAL PROVISIONS
74-21 Sec. 181.001. SHORT TITLE. This subtitle may be cited as
74-22 the Texas Trust Company Act.
74-23 Sec. 181.002. DEFINITIONS. (a) In this subtitle:
74-24 (1) "Account" means the client relationship
74-25 established with a trust company involving the transfer of funds or
74-26 property to the trust company, including a relationship in which
76R5 DWS-D 74
75-1 the trust company acts as trustee, executor, administrator,
75-2 guardian, custodian, conservator, receiver, registrar, or agent.
75-3 (2) "Affiliate" means a company that directly or
75-4 indirectly controls, is controlled by, or is under common control
75-5 with a state trust company or other company.
75-6 (3) "Bank" means a state or national bank.
75-7 (4) "Banking commissioner" means the banking
75-8 commissioner of Texas or a person designated by the banking
75-9 commissioner and acting under the banking commissioner's direction
75-10 and authority.
75-11 (5) "Board" means the board of directors, managers, or
75-12 managing participants of, or a person or group of persons acting in
75-13 a comparable capacity for, a state trust company or other entity.
75-14 (6) "Branch" means a location of a state trust
75-15 company, other than the trust company's home office, at which the
75-16 state trust company engages in the trust business.
75-17 (7) "Capital" means:
75-18 (A) the sum of:
75-19 (i) the par value of all shares or
75-20 participation shares of a state trust company having a par value
75-21 that have been issued;
75-22 (ii) the consideration set by the board in
75-23 the manner provided by the Texas Business Corporation Act for all
75-24 shares or participation shares of the state trust company without
75-25 par value that have been issued, except the part of that
75-26 consideration that:
76R5 DWS-D 75
76-1 (a) has been actually
76-2 received;
76-3 (b) is less than all of
76-4 that consideration; and
76-5 (c) the board, by
76-6 resolution adopted not later than the 60th day after the date of
76-7 issuance of those shares, has allocated to surplus with the prior
76-8 approval of the banking commissioner; and
76-9 (iii) an amount not included in
76-10 Subparagraphs (i) and (ii) that has been transferred to capital of
76-11 the state trust company, on the payment of a share dividend or on
76-12 adoption by the board of a resolution directing that all or part of
76-13 surplus be transferred to capital, minus each reduction made as
76-14 permitted by law; less
76-15 (B) all amounts otherwise included in Paragraphs
76-16 (A)(i) and (ii) that are attributable to the issuance of securities
76-17 by the state trust company and that the banking commissioner
76-18 determines, after notice and an opportunity for hearing, should be
76-19 classified as debt rather than equity securities.
76-20 (8) "Certified surplus" means the part of surplus
76-21 designated by a vote of the board of a state trust company under
76-22 Section 182.105 and recorded in the board minutes as certified.
76-23 (9) "Charter" means a corporate charter issued under
76-24 this subtitle to engage in a trust business.
76-25 (10) "Client" means a person to whom a trust company
76-26 owes a duty or obligation under a trust or other account
76R5 DWS-D 76
77-1 administered by the trust company, regardless of whether the trust
77-2 company owes a fiduciary duty to the person. The term includes a
77-3 beneficiary of a trust for whom the trust company acts as trustee
77-4 and a person for whom the trust company acts as agent, custodian,
77-5 or bailee.
77-6 (11) "Company" includes a bank, trust company,
77-7 corporation, partnership, association, business trust, or another
77-8 trust.
77-9 (12) "Conservator" means the banking commissioner or
77-10 an agent of the banking commissioner exercising the powers and
77-11 duties provided by Subchapter B, Chapter 185.
77-12 (13) "Control" means:
77-13 (A) the ownership of or ability or power to
77-14 vote, directly, acting through one or more other persons, or
77-15 otherwise indirectly, 25 percent or more of the outstanding shares
77-16 of a class of voting securities of a state trust company or other
77-17 company;
77-18 (B) the ability to control the election of a
77-19 majority of the board of the state trust company or other company;
77-20 (C) the power to exercise, directly or
77-21 indirectly, a controlling influence over the management or policies
77-22 of the state trust company or other company as determined by the
77-23 banking commissioner after notice and an opportunity for hearing;
77-24 or
77-25 (D) the conditioning of the transfer of 25
77-26 percent or more of the outstanding shares or participation shares
76R5 DWS-D 77
78-1 of a class of voting securities of the state trust company or other
78-2 company on the transfer of 25 percent or more of the outstanding
78-3 shares of a class of voting securities of another state trust
78-4 company or other company.
78-5 (14) "Department" means the Texas Department of
78-6 Banking.
78-7 (15) "Depository institution" means an entity with the
78-8 power to accept deposits under applicable law.
78-9 (16) "Equity capital" means the amount by which the
78-10 total assets of a state trust company exceed the total liabilities
78-11 of the state trust company.
78-12 (17) "Equity security" means:
78-13 (A) stock or a similar security, any security
78-14 convertible, with or without consideration, into such a security, a
78-15 warrant or right to subscribe to or purchase such a security, or a
78-16 security carrying such a warrant or right;
78-17 (B) a certificate of interest or participation
78-18 in a profit-sharing agreement, collateral-trust certificate,
78-19 preorganization certificate or subscription, transferable share or
78-20 participation share, investment contract, voting-trust certificate,
78-21 or partnership interest; and
78-22 (C) a certificate of interest or participation
78-23 in, temporary or interim certificate for, or receipt for a security
78-24 described by this subdivision that evidences an existing or
78-25 contingent equity ownership interest.
78-26 (18) "Fiduciary record" means a matter written,
76R5 DWS-D 78
79-1 transcribed, recorded, received, or otherwise in the possession of
79-2 a trust company that is necessary to preserve information
79-3 concerning an act or event relevant to an account of a trust
79-4 company.
79-5 (19) "Finance commission" means the Finance Commission
79-6 of Texas.
79-7 (20) "Foreign corporation" means a company
79-8 incorporated or organized under the laws of a jurisdiction other
79-9 than this state. The term does not include a depository
79-10 institution incorporated or organized under the laws of the United
79-11 States and domiciled in this state.
79-12 (21) "Full liability participant" means a participant
79-13 that agrees under the terms of a participation agreement to be
79-14 liable under a judgment, decree, or order of court for the entire
79-15 amount of all debts, obligations, or liabilities of a limited trust
79-16 association.
79-17 (22) "Hazardous condition" means:
79-18 (A) a refusal by a trust company or an affiliate
79-19 of a trust company to permit an examination of its books, papers,
79-20 accounts, records, or affairs by the banking commissioner as
79-21 provided by Section 181.104;
79-22 (B) a violation by a trust company of a
79-23 condition of its chartering or an agreement entered into between
79-24 the trust company and the banking commissioner or the department;
79-25 or
79-26 (C) a circumstance or condition in which an
76R5 DWS-D 79
80-1 unreasonable risk of loss is threatened to clients or creditors of
80-2 a trust company, excluding risk of loss to a client that arises as
80-3 a result of the client's decisions or actions, but including a
80-4 circumstance or condition in which a trust company:
80-5 (i) is unable or lacks the means to meet
80-6 its current obligations as they come due in the regular and
80-7 ordinary course of business, even if the book or fair market value
80-8 of its assets exceeds its liabilities;
80-9 (ii) has equity capital less than the
80-10 amount of restricted capital the trust company is required to
80-11 maintain under Section 182.008, or has equity capital the adequacy
80-12 of which is threatened, as determined under regulatory accounting
80-13 principles;
80-14 (iii) has concentrated an excessive or
80-15 unreasonable portion of its assets in a particular type or
80-16 character of investment;
80-17 (iv) violates or refuses to comply with
80-18 this subtitle, another statute or regulation applicable to trust
80-19 companies, or a final and enforceable order of the banking
80-20 commissioner;
80-21 (v) is in a condition that renders the
80-22 continuation of a particular business practice hazardous to its
80-23 clients and creditors; or
80-24 (vi) conducts business in an unsafe or
80-25 unsound manner, including conducting business with:
80-26 (a) inexperienced or
76R5 DWS-D 80
81-1 inattentive management;
81-2 (b) weak or potentially
81-3 dangerous operating practices;
81-4 (c) infrequent or
81-5 inadequate audits;
81-6 (d) administration of
81-7 assets that is notably deficient in relation to the volume and
81-8 character of or responsibility for asset holdings;
81-9 (e) unsound administrative
81-10 practices;
81-11 (f) frequent and
81-12 uncorrected material occurrences of violations of law, including
81-13 rules, or terms of the governing instruments; or
81-14 (g) a notable degree of
81-15 conflicts of interest and engaging in self-dealing.
81-16 (23) "Home office" means a location registered with
81-17 the banking commissioner as a state trust company's home office at
81-18 which:
81-19 (A) the trust company does business;
81-20 (B) the trust company keeps its corporate books
81-21 and records; and
81-22 (C) at least one executive officer of the trust
81-23 company maintains an office.
81-24 (24) "Insider" means:
81-25 (A) each director, manager, managing
81-26 participant, officer, and principal shareholder or participant of a
76R5 DWS-D 81
82-1 state trust company;
82-2 (B) each affiliate of the state trust company
82-3 and each director, officer, and employee of the affiliate;
82-4 (C) any person who participates or has authority
82-5 to participate, other than in the capacity of a director, in major
82-6 policy-making functions of the state trust company, whether or not
82-7 the person has an official title or the officer is serving without
82-8 salary or compensation; or
82-9 (D) each company controlled by a person
82-10 described by Paragraph (A), (B), or (C).
82-11 (25) "Insolvent" means a circumstance or condition in
82-12 which a state trust company:
82-13 (A) is unable or lacks the means to meet its
82-14 current obligations as they come due in the regular and ordinary
82-15 course of business, even if the value of its assets exceeds its
82-16 liabilities;
82-17 (B) has equity capital less than $500,000, as
82-18 determined under regulatory accounting principles;
82-19 (C) fails to maintain deposit insurance for its
82-20 deposits with the Federal Deposit Insurance Corporation or its
82-21 successor, or fails to maintain adequate security for its deposits
82-22 as provided by Section 184.301(c);
82-23 (D) sells or attempts to sell substantially all
82-24 of its assets or merges or attempts to merge substantially all of
82-25 its assets or business with another entity other than as provided
82-26 by Chapter 182; or
76R5 DWS-D 82
83-1 (E) attempts to dissolve or liquidate other than
83-2 as provided by Chapter 186.
83-3 (26) "Investment security" means a marketable
83-4 obligation evidencing indebtedness of a person in the form of a
83-5 bond, note, debenture, or other debt instrument not otherwise
83-6 classified as a loan or extension of credit.
83-7 (27) "Limited trust association" means a state trust
83-8 company organized as a limited trust association, authorized to
83-9 issue participation shares, and controlled by its participants.
83-10 (28) "Loans and extensions of credit" means direct or
83-11 indirect advances of money by a state trust company to a person
83-12 that are conditioned on the obligation of the person to repay the
83-13 funds or that are repayable from specific property pledged by or on
83-14 behalf of the person.
83-15 (29) "Manager" means a person elected to the board of
83-16 a limited trust association.
83-17 (30) "Managing participant" means a participant in a
83-18 limited trust association in which management has been retained by
83-19 the participants.
83-20 (31) "Mutual funds" means equity securities of an
83-21 investment company registered under the Investment Company Act of
83-22 1940 (15 U.S.C. Section 80a-1 et seq.) and the Securities Act of
83-23 1933 (15 U.S.C. Section 77a et seq.). The term does not include
83-24 money market funds.
83-25 (32) "Officer" means the presiding officer of the
83-26 board, the principal executive officer, or another officer
76R5 DWS-D 83
84-1 appointed by the board of a state trust company or other company,
84-2 or a person or group of persons acting in a comparable capacity for
84-3 the state trust company or other company.
84-4 (33) "Operating subsidiary" means a company for which
84-5 a state trust company has the ownership, ability, or power to vote,
84-6 directly, acting through one or more other persons, or otherwise
84-7 indirectly, more than 50 percent of the outstanding shares of each
84-8 class of voting securities or its equivalent of the company.
84-9 (34) "Participant" means an owner of a participation
84-10 share in a limited trust association.
84-11 (35) "Participant-transferee" means a transferee of a
84-12 participation share who has not received the unanimous consent of
84-13 all participants to be a participant, or who becomes a
84-14 participant-transferee under Subchapter C, Chapter 183.
84-15 (36) "Participation agreement" means the instrument
84-16 stating the agreement among the participants of a limited trust
84-17 association relating to the rights and duties of the participants
84-18 and participant-transferees, including allocations of income, loss,
84-19 deduction, credit, distributions, liquidation rights, redemption
84-20 rights, liabilities of participants, priority rights of
84-21 participant-transferees to transfer participation shares, rights of
84-22 participants to purchase participation shares of
84-23 participant-transferees, the procedures for elections and voting by
84-24 participants, and any other matter not prohibited by or
84-25 inconsistent with this subtitle.
84-26 (37) "Participation shares" means the units into which
76R5 DWS-D 84
85-1 the proprietary interests of a limited trust association are
85-2 divided or subdivided by means of classes, series, relative rights,
85-3 or preferences.
85-4 (38) "Principal shareholder" means a person who owns
85-5 or has the ability or power to vote, directly, acting through one
85-6 or more other persons, or otherwise indirectly, 10 percent or more
85-7 of the outstanding shares or participation shares of any class of
85-8 voting securities of a state trust company or other company.
85-9 (39) "Restricted capital" means the sum of capital and
85-10 certified surplus.
85-11 (40) "Regulatory accounting principles" means
85-12 generally accepted accounting principles as modified by rules
85-13 adopted under:
85-14 (A) this subtitle; or
85-15 (B) an applicable federal statute or regulation.
85-16 (41) "Secondary capital" means the amount by which the
85-17 assets of a state trust company exceed restricted capital, required
85-18 by Section 182.008, and liabilities.
85-19 (42) "Shareholder" means an owner of a share in a
85-20 state trust company.
85-21 (43) "Shares" means the units into which the
85-22 proprietary interests of a state trust company are divided or
85-23 subdivided by means of classes, series, relative rights, or
85-24 preferences.
85-25 (44) "State bank" means a banking association or
85-26 limited banking association organized or reorganized under Subtitle
76R5 DWS-D 85
86-1 A, including an association organized under the laws of this state
86-2 before September 1, 1997, with the express power to receive and
86-3 accept deposits and possessing other rights and powers granted by
86-4 that subtitle expressly or by implication. The term does not
86-5 include a savings association, savings bank, or credit union.
86-6 (45) "State trust company" means a trust association
86-7 or limited trust association organized or reorganized under this
86-8 subtitle, including an association organized under the laws of this
86-9 state before September 1, 1997.
86-10 (46) "Subsidiary" means a state trust company or other
86-11 company that is controlled by another person. The term includes a
86-12 subsidiary of a subsidiary.
86-13 (47) "Supervisor" means the banking commissioner or an
86-14 agent of the banking commissioner exercising the powers and duties
86-15 specified in Subchapter B, Chapter 185.
86-16 (48) "Trust association" means a trust company
86-17 organized as a trust association, authorized to issue shares of
86-18 stock, and controlled by its shareholders.
86-19 (49) "Trust business" means the business of a company
86-20 holding itself out to the public as a fiduciary for hire or
86-21 compensation to hold or administer accounts.
86-22 (50) "Trust deposits" means client funds held by a
86-23 state trust company and authorized to be deposited with itself as a
86-24 permanent investment or pending investment, distribution, or
86-25 payment of debts on behalf of the client.
86-26 (51) "Unauthorized trust activity" means an act or
76R5 DWS-D 86
87-1 practice within this state by a person without a charter, license,
87-2 permit, registration, or other authority issued or granted by the
87-3 banking commissioner or other appropriate regulatory authority for
87-4 which such a charter, license, permit, registration, or other
87-5 authority is required to conduct trust business.
87-6 (52) "Undivided profits" means the part of equity
87-7 capital of a state trust company equal to the balance of its net
87-8 profits, income, gains, and losses since the date of its formation
87-9 minus subsequent distributions to shareholders or participants and
87-10 transfers to surplus or capital under share dividends or
87-11 appropriate board resolutions. The term includes amounts allocated
87-12 to undivided profits as a result of a merger.
87-13 (53) "Voting security" means a share, participation
87-14 share, or other evidence of proprietary interest in a state trust
87-15 company or other company that has as an attribute the right to vote
87-16 or participate in the election of the board of the trust company or
87-17 other company, regardless of whether the right is limited to the
87-18 election of fewer than all of the board members. The term includes
87-19 a security that is convertible or exchangeable into a voting
87-20 security and a nonvoting participation share of a managing
87-21 participant.
87-22 (b) The definitions provided by this section shall be
87-23 liberally construed to accomplish the purposes of this subtitle.
87-24 (c) The finance commission by rule may adopt other
87-25 definitions to accomplish the purposes of this subtitle.
87-26 Sec. 181.003. TRUST COMPANY RULES. (a) The finance
76R5 DWS-D 87
88-1 commission may adopt rules to accomplish the purposes of this
88-2 subtitle, including rules necessary or reasonable to:
88-3 (1) implement and clarify this subtitle;
88-4 (2) preserve or protect the safety and soundness of
88-5 state trust companies;
88-6 (3) grant the same rights and privileges to state
88-7 trust companies with respect to the exercise of fiduciary powers
88-8 that are or may be granted to a state or national bank that is
88-9 domiciled in this state and exercising fiduciary powers;
88-10 (4) provide for recovery of the cost of maintenance
88-11 and operation of the department and the cost of enforcing this
88-12 subtitle through the imposition and collection of ratable and
88-13 equitable fees for notices, applications, and examinations; and
88-14 (5) facilitate the fair hearing and adjudication of
88-15 matters before the banking commissioner and the finance
88-16 commission.
88-17 (b) The presence or absence in this subtitle of a specific
88-18 reference to rules regarding a particular subject does not enlarge
88-19 or diminish the rulemaking authority conferred by this section.
88-20 Sec. 181.004. IMPLYING THAT PERSON IS TRUST COMPANY. (a) A
88-21 person or company may not use in a business name or advertising the
88-22 words "trust," "trust company," or any similar term or phrase, any
88-23 word pronounced "trust" or "trust company," any foreign word that
88-24 means "trust" or "trust company," or any term that tends to imply
88-25 that the business is holding out to the public that it engages in
88-26 the business of a fiduciary for hire unless the banking
76R5 DWS-D 88
89-1 commissioner has approved the use in writing after finding that the
89-2 use will not be misleading. This subsection does not prohibit an
89-3 individual from engaging in the business of a fiduciary for
89-4 compensation or from using the words "trust" or "trustee" for the
89-5 purpose of identifying assets held or actions taken in an existing
89-6 capacity.
89-7 (b) Subsection (a) does not apply to:
89-8 (1) a state or national bank, a state or federal
89-9 savings bank, a state or federal savings association, a state or
89-10 federal credit union, or a depository or trust company institution
89-11 authorized under this subtitle to conduct a trust business in this
89-12 state; or
89-13 (2) another entity organized under the laws of this
89-14 state, another state, the United States, or a foreign sovereign
89-15 state to the extent that:
89-16 (A) the entity is authorized under its charter
89-17 or the laws of this state or the United States to use a term, word,
89-18 character, ideogram, phonogram, or phrase prohibited by Subsection
89-19 (a); and
89-20 (B) the entity is authorized by the laws of this
89-21 state or the United States to conduct the activities in which the
89-22 entity is engaged in this state.
89-23 Sec. 181.005. LIABILITY OF TRUST COMPANY DIRECTORS AND
89-24 PERSONNEL. (a) The provisions of the Texas Business Corporation
89-25 Act regarding liability, defenses, and indemnification of a
89-26 director, officer, agent, or employee apply to a director, officer,
76R5 DWS-D 89
90-1 agent, or employee of a state trust company in this state. Except
90-2 as limited by those provisions, a disinterested director, manager,
90-3 managing participant, officer, or employee of a state trust company
90-4 may not be held personally liable in an action seeking monetary
90-5 damages arising from the conduct of the state trust company's
90-6 affairs unless the damages resulted from the gross negligence or
90-7 wilful or intentional misconduct of the person during the person's
90-8 term of office or service with the state trust company.
90-9 (b) A director, manager, managing participant, officer, or
90-10 employee of a state trust company is disinterested with respect to
90-11 a decision or transaction if:
90-12 (1) the person fully discloses any interest in the
90-13 decision or transaction and does not participate in the decision or
90-14 transaction; or
90-15 (2) the decision or transaction does not involve any
90-16 of the following:
90-17 (A) personal profit for the person through
90-18 dealing with the state trust company or usurping an opportunity of
90-19 the trust company;
90-20 (B) buying or selling assets of the state trust
90-21 company in a transaction in which the person has a direct or
90-22 indirect pecuniary interest;
90-23 (C) dealing with another state trust company or
90-24 other person in which the person is a director, manager, managing
90-25 participant, officer, or employee or otherwise has a significant
90-26 direct or indirect financial interest; or
76R5 DWS-D 90
91-1 (D) dealing with a family member of the person.
91-2 (c) A director, manager, managing participant, or officer
91-3 who, in performing the person's duties and functions, acts in good
91-4 faith and reasonably believes that reliance is warranted is
91-5 entitled to rely on information, including an opinion, report,
91-6 financial statement or other type of statement or financial data,
91-7 decision, judgment, or performance, that is prepared, presented,
91-8 made, or rendered by:
91-9 (1) one or more directors, managers, managing
91-10 participants, officers, or employees of the state trust company, or
91-11 of an entity under joint or common control with the state trust
91-12 company, whom the director, manager, managing participant, or
91-13 officer reasonably believes merits confidence;
91-14 (2) legal counsel, a public accountant, or another
91-15 person whom the director, manager, managing participant, or officer
91-16 reasonably believes merits confidence; or
91-17 (3) a committee of the board of the state trust
91-18 company of which the director, manager, or managing participant is
91-19 not a member.
91-20 (d) In this section, "family member" means a person's:
91-21 (1) spouse;
91-22 (2) minor child; or
91-23 (3) adult child who resides in the person's home.
91-24 Sec. 181.006. EXEMPTION OF TRUST COMPANY DIRECTORS AND
91-25 PERSONNEL FROM SECURITIES LAW. An officer, director, manager,
91-26 managing participant, or employee of a state trust company with
76R5 DWS-D 91
92-1 fewer than 500 shareholders or participants or a holding company
92-2 with fewer than 500 shareholders or participants that controls a
92-3 state trust company is exempt from the registration and licensing
92-4 provisions of The Securities Act (Article 581-1 et seq., Vernon's
92-5 Texas Civil Statutes) with respect to that person's participation
92-6 in a transaction, including a sale, involving securities issued by
92-7 the state trust company or the holding company of which that person
92-8 is an officer, director, manager, managing participant, or employee
92-9 if the person is not compensated for the person's participation in
92-10 the transaction.
92-11 Sec. 181.007. ATTACHMENT, INJUNCTION, OR EXECUTION. (a) An
92-12 attachment, injunction, or execution may not be issued against a
92-13 state trust company located in this state to collect a money
92-14 judgment or secure a prospective money judgment against the state
92-15 trust company before the judgment is final and all appeals have
92-16 been exhausted or foreclosed by law.
92-17 (b) This section does not affect an attachment, injunction,
92-18 execution, or writ of garnishment issued to or served on a state
92-19 trust company for the purpose of collecting a money judgment or
92-20 securing a prospective money judgment against a client of or client
92-21 account in the state trust company.
92-22 (Sections 181.008-181.100 reserved for expansion
92-23 SUBCHAPTER B. REGULATION OF TRUST COMPANIES BY BANKING
92-24 DEPARTMENT
92-25 Sec. 181.101. ISSUANCE OF INTERPRETIVE STATEMENTS. (a) The
92-26 banking commissioner:
76R5 DWS-D 92
93-1 (1) may issue interpretive statements containing
93-2 matters of general policy for the guidance of state trust
93-3 companies;
93-4 (2) shall file the statements for publication in the
93-5 Texas Register; and
93-6 (3) may amend or repeal a published interpretive
93-7 statement by issuing an amended statement or notice of repeal of a
93-8 statement and filing the statement or notice for publication in the
93-9 Texas Register.
93-10 (b) The secretary of state shall publish the filed
93-11 statements and notices in the Texas Register and in a designated
93-12 chapter of the Texas Administrative Code.
93-13 Sec. 181.102. ISSUANCE OF OPINION. (a) In response to a
93-14 specific request from a member of the public or the state trust
93-15 company industry, the banking commissioner may issue an opinion
93-16 directly or through the deputy banking commissioner or the
93-17 department's attorneys.
93-18 (b) If the banking commissioner determines that the opinion
93-19 is useful for the general guidance of trust companies, the banking
93-20 commissioner may file the opinion for publication in the Texas
93-21 Register. A published opinion must be redacted to preserve the
93-22 confidentiality of the requesting party unless the requesting party
93-23 consents to be identified in the published opinion.
93-24 (c) The banking commissioner may amend or repeal a published
93-25 opinion by issuing an amended opinion or notice of repeal of an
93-26 opinion and filing the opinion or notice for publication in the
76R5 DWS-D 93
94-1 Texas Register. The requesting party, however, may rely on the
94-2 original opinion if:
94-3 (1) all material facts were originally disclosed to
94-4 the banking commissioner;
94-5 (2) the safety and soundness of the affected trust
94-6 companies will not be affected by further reliance on the original
94-7 opinion; and
94-8 (3) the text and interpretation of relevant governing
94-9 provisions of this subtitle have not been changed by legislative or
94-10 judicial action.
94-11 (d) The secretary of state shall publish the filed opinions
94-12 and notices in the Texas Register and a designated chapter of the
94-13 Texas Administrative Code.
94-14 Sec. 181.103. EFFECT OF INTERPRETIVE STATEMENT OR OPINION.
94-15 An interpretive statement or opinion issued under this subchapter
94-16 does not have the force of law and is not a rule for the purposes
94-17 of Chapter 2001, Government Code, unless adopted as a rule by the
94-18 finance commission as provided by Chapter 2001, Government Code.
94-19 An interpretive statement or opinion is an administrative
94-20 construction of this subtitle entitled to great weight if the
94-21 construction is reasonable and does not conflict with this
94-22 subtitle.
94-23 Sec. 181.104. EXAMINATION REQUIREMENT. (a) The banking
94-24 commissioner shall examine each state trust company annually.
94-25 (b) The banking commissioner may examine a state trust
94-26 company more often than annually as the banking commissioner
76R5 DWS-D 94
95-1 considers necessary to:
95-2 (1) safeguard the interests of clients, creditors,
95-3 shareholders, participants, or participant-transferees; and
95-4 (2) enforce this subtitle.
95-5 (c) The banking commissioner may defer an examination for
95-6 not more than six months if the banking commissioner considers the
95-7 deferment necessary for the efficient enforcement of this subtitle.
95-8 (d) The banking commissioner shall report the results of the
95-9 examination in writing to the officers and directors, managers, or
95-10 managing participants of the state trust company. A report of an
95-11 examination under this section is confidential and may be disclosed
95-12 only under the circumstances provided by this subchapter.
95-13 (e) The banking commissioner may:
95-14 (1) accept an examination of a state trust company, a
95-15 third-party contractor, or an affiliate of the state trust company
95-16 by a federal or other governmental agency in lieu of an examination
95-17 under this section; or
95-18 (2) conduct an examination of a state trust company, a
95-19 third-party contractor, or an affiliate of the state trust company
95-20 jointly with a federal or other governmental agency.
95-21 (f) The banking commissioner may administer oaths and
95-22 examine persons under oath on any subject that the banking
95-23 commissioner considers pertinent to the financial condition or the
95-24 safety and soundness of the activities of a state trust company.
95-25 Sec. 181.105. COST OF REGULATION. Each state
95-26 trust company shall pay, through the imposition and collection of
76R5 DWS-D 95
96-1 fees established by the finance commission under Section
96-2 181.003(a)(4):
96-3 (1) the cost of examination;
96-4 (2) the equitable or proportionate cost of maintenance
96-5 and operation of the department; and
96-6 (3) the cost of enforcement of this subtitle.
96-7 Sec. 181.106. REGULATION AND EXAMINATION OF RELATED
96-8 ENTITIES. (a) The banking commissioner may regulate and examine,
96-9 to the same extent as if the services or activities were performed
96-10 by a state trust company on its own premises:
96-11 (1) the activities of a state trust company affiliate;
96-12 and
96-13 (2) the performance of data processing, electronic
96-14 fund transfers, or other services or activities performed on behalf
96-15 of a state trust company by a third-party contractor.
96-16 (b) The banking commissioner may collect a fee from the
96-17 state trust company to cover the cost of the examination.
96-18 Sec. 181.107. STATEMENTS OF CONDITION AND INCOME; PENALTY.
96-19 (a) Each state trust company periodically shall file with the
96-20 banking commissioner a copy of its statement of condition and
96-21 income.
96-22 (b) The finance commission by rule may:
96-23 (1) require the statement to be filed with the banking
96-24 commission at the intervals the finance commission determines;
96-25 (2) specify the form of the statement of condition and
96-26 income, including specified confidential and public information to
76R5 DWS-D 96
97-1 be in the statement; and
97-2 (3) require public information in the statement to be
97-3 published at the times and in the publications and locations the
97-4 finance commission determines.
97-5 (c) Except for portions designated to be confidential by the
97-6 banking commissioner, a statement of condition and income is a
97-7 public record.
97-8 (d) A state trust company that fails to file a statement of
97-9 condition and income on or before the date it is due is, after
97-10 notice and hearing, subject to a penalty of not more than $500 a
97-11 day for each day of noncompliance.
97-12 Sec. 181.108. LIABILITY OF COMMISSION AND DEPARTMENT
97-13 OFFICERS AND PERSONNEL LIMITED. (a) The banking commissioner, a
97-14 member of the finance commission, the deputy banking commissioner,
97-15 or an examiner, assistant examiner, supervisor, conservator, agent,
97-16 or other officer or employee of the department is not personally
97-17 liable for damages arising from the person's official act or
97-18 omission, unless the act or omission is corrupt or malicious.
97-19 (b) The attorney general shall defend an action brought
97-20 against a person because of an official act or omission under
97-21 Subsection (a), regardless of whether the defendant has terminated
97-22 service with the department before the action commences.
97-23 (Sections 181.109-181.200 reserved for expansion
97-24 SUBCHAPTER C. ADMINISTRATIVE PROCEDURE
97-25 Sec. 181.201. BANKING COMMISSIONER HEARING. (a) The
97-26 banking commissioner may convene a hearing to receive evidence and
76R5 DWS-D 97
98-1 argument regarding any matter before the banking commissioner for
98-2 decision or review under this subtitle. The hearing must be
98-3 conducted under Chapter 2001, Government Code. A matter made
98-4 confidential by law must be considered by the banking commissioner
98-5 in a closed hearing.
98-6 (b) A hearing before the banking commissioner that is
98-7 required or authorized by law may be conducted by a hearings
98-8 officer on behalf of the banking commissioner.
98-9 (c) This section does not grant a right to hearing to a
98-10 person that is not otherwise granted by governing law.
98-11 Sec. 181.202. APPEAL OF BANKING COMMISSIONER DECISION OR
98-12 ORDER. Except as expressly provided otherwise by this subtitle, a
98-13 person affected by a decision or order of the banking commissioner
98-14 made under this subtitle after hearing may appeal the decision or
98-15 order:
98-16 (1) to the finance commission; or
98-17 (2) directly to a district court in Travis County as
98-18 provided by Section 181.204.
98-19 Sec. 181.203. APPEAL TO FINANCE COMMISSION. (a) In an
98-20 appeal to the finance commission, the finance commission shall
98-21 consider the questions raised by the application for review and may
98-22 also consider additional matters pertinent to the appeal.
98-23 (b) An order of the banking commissioner continues in effect
98-24 pending review unless the order is stayed by the finance
98-25 commission. The finance commission may impose any condition before
98-26 granting a stay of the appealed order.
76R5 DWS-D 98
99-1 (c) The finance commission may not be required to accept
99-2 additional evidence or hold an evidentiary hearing if a hearing was
99-3 held and a record made before the banking commissioner. The
99-4 finance commission shall remand the proceeding to the banking
99-5 commissioner to receive any additional evidence the finance
99-6 commission chooses to consider.
99-7 (d) A hearing before the finance commission that is required
99-8 or authorized by law may be conducted by a hearings officer on
99-9 behalf of the finance commission.
99-10 (e) A matter made confidential by law must be considered by
99-11 the finance commission in a closed hearing.
99-12 Sec. 181.204. DIRECT APPEAL TO COURT OR APPEAL OF FINANCE
99-13 COMMISSION ORDER. A person affected by a final order of the
99-14 banking commissioner who elects to appeal directly to district
99-15 court, or a person affected by a final order of the finance
99-16 commission under this subchapter, may appeal the final order by
99-17 filing a petition for judicial review as provided by Chapter 2001,
99-18 Government Code. A petition for judicial review filed in the
99-19 district court does not stay or vacate the appealed order unless
99-20 the court, after notice and hearing, expressly stays or vacates the
99-21 order.
99-22 (Sections 181.205-181.300 reserved for expansion
99-23 SUBCHAPTER D. CONFIDENTIALITY OF INFORMATION
99-24 Sec. 181.301. DISCLOSURE BY DEPARTMENT PROHIBITED.
99-25 (a) Except as expressly provided otherwise by this subtitle or a
99-26 rule adopted under Section 181.003(a)(1), the following are
76R5 DWS-D 99
100-1 confidential and may not be disclosed by the banking commissioner
100-2 or an employee of the department:
100-3 (1) information directly or indirectly obtained by the
100-4 department in any manner, including through an application or
100-5 examination, concerning the financial condition or business affairs
100-6 of a state trust company or a present, former, or prospective
100-7 shareholder, participant, officer, director, manager, affiliate, or
100-8 service provider of the state trust company, other than the public
100-9 portions of a report of condition or income statement; and
100-10 (2) each related file or record of the department.
100-11 (b) Information obtained by the department from a federal or
100-12 state regulatory agency that is confidential under federal or state
100-13 law may not be disclosed except as provided by federal or state
100-14 law.
100-15 Sec. 181.302. DISCLOSURE TO FINANCE COMMISSION.
100-16 Confidential information may not be disclosed to a member of the
100-17 finance commission. A member of the finance commission may not be
100-18 given access to the files and records of the department except that
100-19 the banking commissioner may disclose to the finance commission
100-20 information, files, and records pertinent to a hearing or matter
100-21 pending before the finance commission.
100-22 Sec. 181.303. DISCLOSURE TO OTHER AGENCIES. (a) On request
100-23 and on execution of an appropriate confidentiality agreement
100-24 approved by the banking commissioner, the banking commissioner may:
100-25 (1) disclose to a federal banking regulatory agency
100-26 confidential information concerning a state trust company within
76R5 DWS-D 100
101-1 the agency's jurisdiction or an affiliate or service provider of
101-2 the state trust company; and
101-3 (2) permit the agency access to files and records or
101-4 reports relating to the state trust company or its affiliate or
101-5 service provider.
101-6 (b) The banking commissioner may, as the banking
101-7 commissioner considers necessary or proper to the enforcement of
101-8 the laws of this state, another state, the United States, or a
101-9 foreign sovereign state, or in the best interest of the public,
101-10 disclose or authorize release of confidential information to
101-11 another department of this state, another state, the United States,
101-12 a foreign sovereign state, or any related agency or
101-13 instrumentality.
101-14 Sec. 181.304. OTHER DISCLOSURE PROHIBITED; PENALTY.
101-15 (a) Confidential information that is provided to a state trust
101-16 company, affiliate, or service provider of the state trust company,
101-17 whether in the form of a report of examination or otherwise, is the
101-18 confidential property of the department. The information may not
101-19 be made public or disclosed by the recipient or by an officer,
101-20 director, manager, employee, or agent of the recipient to a person
101-21 not officially connected to the recipient as officer, director,
101-22 employee, attorney, auditor, independent auditor, or bonding
101-23 company, except as authorized by rules adopted under this subtitle.
101-24 (b) A person commits an offense if the person discloses or
101-25 uses the confidential information in violation of this section. An
101-26 offense under this subsection is punishable as if it were an
76R5 DWS-D 101
102-1 offense under Section 37.10, Penal Code.
102-2 Sec. 181.305. CIVIL DISCOVERY. Discovery of confidential
102-3 information from a person subject to this subchapter under subpoena
102-4 or other legal process in a civil proceeding must comply with rules
102-5 adopted under this subtitle and other applicable law. The rules
102-6 may:
102-7 (1) restrict release of confidential information to
102-8 the portion directly relevant to the legal dispute at issue; and
102-9 (2) require that a protective order, in the form and
102-10 under circumstances specified by the rules, be issued by a court
102-11 before release of the confidential information.
102-12 Sec. 181.306. INVESTIGATIVE INFORMATION. Notwithstanding
102-13 any other law, the banking commissioner may refuse to release
102-14 information or records concerning a state trust company in the
102-15 custody of the department if, in the opinion of the banking
102-16 commissioner, release of the information or records might
102-17 jeopardize an ongoing investigation of potentially unlawful
102-18 activity.
102-19 Sec. 181.307. EMPLOYMENT INFORMATION. (a) A person may
102-20 provide employment information concerning the known or suspected
102-21 involvement of a present or former employee, officer, or director
102-22 of a state trust company in a violation of any state or federal
102-23 law, rule, or regulation that has been reported to appropriate
102-24 state or federal authorities to:
102-25 (1) a state trust company; or
102-26 (2) a person providing employment information to a
76R5 DWS-D 102
103-1 state trust company.
103-2 (b) A person may not be held liable for providing
103-3 information under Subsection (a) unless the information provided is
103-4 false and the person provided the information with disregard for
103-5 the truth.
103-6 Sec. 181.308. SHAREHOLDER INSPECTION RIGHTS.
103-7 (a) Notwithstanding Article 2.44, Texas Business Corporation Act,
103-8 a shareholder or participant of a state trust company may not
103-9 examine:
103-10 (1) a report of examination or other confidential
103-11 property of the department that is in the possession of the state
103-12 trust company; or
103-13 (2) a book or record of the state trust company that
103-14 directly or indirectly pertains to financial or other information
103-15 maintained by the state trust company on behalf of its clients,
103-16 including a specific item in the minutes of the board or a
103-17 committee of the board regarding client account review and approval
103-18 or any report that would tend to identify the state trust company's
103-19 client.
103-20 (b) This section does not affect the rights of a shareholder
103-21 or participant of a state trust company acting in another capacity.
103-22 CHAPTER 182. POWERS, ORGANIZATION, AND FINANCIAL REQUIREMENTS
103-23 SUBCHAPTER A. ORGANIZATION AND POWERS IN GENERAL
103-24 Sec. 182.001. ORGANIZATION AND GENERAL POWERS OF STATE TRUST
103-25 COMPANY. (a) Subject to the other provisions of this chapter, one
103-26 or more persons may organize and charter a state trust company as a
76R5 DWS-D 103
104-1 state trust association or a limited trust association.
104-2 (b) A state trust company may perform any act as a fiduciary
104-3 that a state bank or national bank exclusively exercising trust
104-4 powers may perform under the laws of this state, including:
104-5 (1) acting as trustee under a written agreement;
104-6 (2) receiving money and other property in its capacity
104-7 as trustee for investment in real or personal property;
104-8 (3) acting as trustee and performing the fiduciary
104-9 duties committed or transferred to it by order of a court;
104-10 (4) acting as executor, administrator, or trustee of
104-11 the estate of a deceased person;
104-12 (5) acting as a custodian, guardian, conservator, or
104-13 trustee for a minor or incapacitated person;
104-14 (6) acting as a successor fiduciary to a depository
104-15 institution;
104-16 (7) receiving for safekeeping personal property;
104-17 (8) acting as custodian, assignee, transfer agent,
104-18 escrow agent, registrar, or receiver;
104-19 (9) acting as investment advisor, agent, or attorney
104-20 in fact according to an applicable agreement;
104-21 (10) exercising additional powers expressly conferred
104-22 by rule of the finance commission; and
104-23 (11) exercising any incidental power that is
104-24 reasonably necessary to enable it to fully exercise the powers
104-25 expressly conferred according to commonly accepted fiduciary
104-26 customs and usages.
76R5 DWS-D 104
105-1 (c) Subject to Section 182.009, a state trust company may
105-2 exercise the powers of a Texas business corporation that are
105-3 reasonably necessary to enable exercise of its specific powers
105-4 under this subtitle.
105-5 (d) A state trust company may contribute to a community fund
105-6 or to a charitable, philanthropic, or benevolent instrumentality
105-7 conducive to public welfare an amount that the state trust
105-8 company's board considers appropriate and in the interests of the
105-9 state trust company.
105-10 (e) Subject to Section 184.301, a state trust company may
105-11 deposit trust funds with itself.
105-12 (f) A state trust company insured by the Federal Deposit
105-13 Insurance Corporation may receive and pay deposits, with or without
105-14 interest, made by the United States, the state, a county, or a
105-15 municipality.
105-16 Sec. 182.002. ARTICLES OF ASSOCIATION OF STATE TRUST
105-17 COMPANY. (a) The articles of association of a state trust company
105-18 must be signed and acknowledged by each organizer and must contain:
105-19 (1) the name of the state trust company, subject to
105-20 Subsection (b);
105-21 (2) the period of the state trust company's duration,
105-22 which may be perpetual;
105-23 (3) the powers of the state trust company, which may
105-24 be stated as:
105-25 (A) all powers granted to a state trust company
105-26 in this state; or
76R5 DWS-D 105
106-1 (B) a list of the specific powers that the state
106-2 trust company chooses and is authorized to exercise;
106-3 (4) the aggregate number of shares, or participation
106-4 shares in the case of a limited trust association, that the state
106-5 trust company will be authorized to issue, and the number of
106-6 classes of shares or participation shares, which may be one or
106-7 more;
106-8 (5) if the shares or participation shares are to be
106-9 divided into classes:
106-10 (A) the designation of each class and statement
106-11 of the preferences, limitations, and relative rights of the shares
106-12 or participation shares of each class, which in the case of a
106-13 limited trust association may be more fully set forth in the
106-14 participation agreement;
106-15 (B) the number of shares or participation shares
106-16 of each class; and
106-17 (C) a statement of the par value of the shares
106-18 or participation shares of each class or that the shares or
106-19 participation shares are to be without par value;
106-20 (6) any provision limiting or denying to shareholders
106-21 or participants the preemptive right to acquire additional or
106-22 treasury shares or participation shares of the state trust company;
106-23 (7) any provision granting the right of shareholders
106-24 or participants to cumulative voting in the election of directors
106-25 or managers;
106-26 (8) the aggregate amount of consideration to be
76R5 DWS-D 106
107-1 received for all shares or participation shares initially issued by
107-2 the state trust company and a statement that:
107-3 (A) all authorized shares or participation
107-4 shares have been subscribed; and
107-5 (B) all subscriptions received provide for the
107-6 consideration to be fully paid in cash before issuance of the
107-7 charter;
107-8 (9) any provision consistent with law that the
107-9 organizers elect to set forth in the articles of association for
107-10 the regulation of the internal affairs of the state trust company
107-11 or that is otherwise required by this subtitle to be set forth in
107-12 the articles of association;
107-13 (10) the street address of the state trust company's
107-14 home office; and
107-15 (11) either:
107-16 (A) the number of directors or managers
107-17 constituting the initial board and the names and street addresses
107-18 of the persons who are to serve as directors or managers until the
107-19 first annual meeting of shareholders or participants or until
107-20 successor directors or managers have been elected and qualified; or
107-21 (B) the statement described by Subsection (c).
107-22 (b) The banking commissioner may determine that a proposed
107-23 state trust company name is potentially misleading to the public
107-24 and require the organizers to select a different name.
107-25 (c) The organizers of a limited trust association that will
107-26 have not fewer than five or more than 25 participants may include
76R5 DWS-D 107
108-1 in the articles of association a statement that management is
108-2 vested in a board composed of all participants, with management
108-3 authority vested in each participant in proportion to the
108-4 participant's contribution to capital as adjusted from time to time
108-5 to properly reflect any additional contribution, and the names and
108-6 street addresses of the persons who are to be the initial managing
108-7 participants.
108-8 Sec. 182.003. APPLICATION FOR STATE TRUST COMPANY CHARTER;
108-9 STANDARDS FOR APPROVAL. (a) An application for a state trust
108-10 company charter must be made under oath and in the form required by
108-11 the banking commissioner. The application must be supported by
108-12 information, records, and opinions of counsel that the banking
108-13 commissioner requires. The application must be accompanied by all
108-14 charter fees and deposits required by statute or rule.
108-15 (b) The banking commissioner shall grant a state trust
108-16 company charter only on proof satisfactory to the banking
108-17 commissioner that public convenience and advantage will be promoted
108-18 by the establishment of the state trust company. In determining
108-19 whether public convenience and advantage will be promoted, the
108-20 banking commissioner shall consider the convenience of the public
108-21 to be served and whether:
108-22 (1) the organizational and capital structure and
108-23 amount of initial capitalization is adequate for the business and
108-24 location;
108-25 (2) the anticipated volume and nature of business
108-26 indicates a reasonable probability of success and profitability
76R5 DWS-D 108
109-1 based on the market sought to be served;
109-2 (3) the proposed officers, directors, and managers, or
109-3 managing participants, as a group have sufficient fiduciary
109-4 experience, ability, standing, competence, trustworthiness, and
109-5 integrity to justify a belief that the state trust company will
109-6 operate in compliance with law and that success of the state trust
109-7 company is probable;
109-8 (4) each principal shareholder or participant has
109-9 sufficient experience, ability, standing, competence,
109-10 trustworthiness, and integrity to justify a belief that the state
109-11 trust company will be free from improper or unlawful influence or
109-12 interference with respect to the state trust company's operation in
109-13 compliance with law; and
109-14 (5) the organizers are acting in good faith.
109-15 (c) The organizers bear the burden of proof to establish
109-16 that public convenience and advantage will be promoted by the
109-17 establishment of the state trust company. The failure of an
109-18 applicant to furnish required information, opinions of counsel, and
109-19 other material, or the required fee, is considered an abandonment
109-20 of the application.
109-21 Sec. 182.004. NOTICE AND INVESTIGATION OF CHARTER
109-22 APPLICATION. (a) The banking commissioner shall notify the
109-23 organizers when the application is complete and accepted for filing
109-24 and all required fees and deposits have been paid. Promptly after
109-25 the notification, the organizers shall publish notice of the
109-26 application and solicit comments and protests, in the form
76R5 DWS-D 109
110-1 specified by the banking commissioner, in a newspaper of general
110-2 circulation in the county where the initial home office of the
110-3 proposed state trust company is to be located. The banking
110-4 commissioner may require the organizers to publish the notice at
110-5 other locations reasonably necessary to solicit the views of
110-6 potentially affected persons.
110-7 (b) At the expense of the organizers, the banking
110-8 commissioner shall thoroughly investigate the application and
110-9 inquire fully into the identity and character of each proposed
110-10 director, manager, officer, managing participant, and principal
110-11 shareholder or participant. The banking commissioner shall prepare
110-12 a written report of the investigation, and any person, other than a
110-13 person protesting under Section 182.005, may request a copy of the
110-14 nonconfidential portions of the application and written report as
110-15 provided by Chapter 552, Government Code.
110-16 (c) Rules adopted under this subtitle may specify the
110-17 confidential or nonconfidential character of information obtained
110-18 by the department under this section. Except as provided by
110-19 Subchapter D, Chapter 181, or in rules regarding confidential
110-20 information, the financial statement of a proposed officer,
110-21 director, manager, or managing participant is confidential and not
110-22 subject to public disclosure.
110-23 Sec. 182.005. PROTEST; HEARING; DECISION ON CHARTER
110-24 APPLICATION. (a) Any person may file a protest of an application
110-25 with the banking commissioner.
110-26 (b) If a protest of the application is not filed on or
76R5 DWS-D 110
111-1 before the 15th day after the last date the notice was published
111-2 under Section 182.004, the banking commissioner may immediately
111-3 determine whether all of the necessary conditions set forth in
111-4 Section 182.003(b) have been established, based on the application
111-5 and investigation. The banking commissioner shall approve the
111-6 application for charter or set the charter application for hearing.
111-7 (c) If a protest of the application is timely filed,
111-8 accompanied by the fees and deposits required by statute or rule,
111-9 or if the banking commissioner sets a hearing, the banking
111-10 commissioner shall conduct a public hearing and as many prehearing
111-11 conferences and opportunities for discovery as the banking
111-12 commissioner considers advisable and consistent with governing
111-13 statutes and rules. A person protesting the application is
111-14 entitled to the confidential portions of the application under a
111-15 protective order that restricts the use of confidential information
111-16 to the charter proceedings.
111-17 (d) Based on the record of the hearing, the banking
111-18 commissioner shall determine whether all of the necessary
111-19 conditions set forth in Section 182.003(b) have been established
111-20 and shall enter an order granting or denying the charter.
111-21 (e) The banking commissioner may make approval of any
111-22 application conditional. The banking commissioner shall include any
111-23 conditions in the order granting the charter.
111-24 (f) Chapter 2001, Government Code, does not apply to a
111-25 charter application filed for the purpose of assuming all or any
111-26 portion of the assets, liabilities, and accounts of any depository
76R5 DWS-D 111
112-1 institution or state trust company considered by the banking
112-2 commissioner to be in hazardous condition.
112-3 Sec. 182.006. ISSUANCE OF CHARTER. A state trust company
112-4 may not engage in the trust business until it receives its charter
112-5 from the banking commissioner. The banking commissioner may not
112-6 deliver the charter until the state trust company has:
112-7 (1) received cash in at least the full amount of
112-8 restricted capital from subscriptions for the issuance of shares
112-9 or participation shares;
112-10 (2) elected or qualified the initial officers and
112-11 directors or managers, as appropriate, named in the application for
112-12 charter or other officers and directors or managers approved by the
112-13 banking commissioner; and
112-14 (3) complied with all other requirements of this
112-15 subtitle relating to the organization of the state trust company.
112-16 Sec. 182.007. DEADLINE TO BEGIN BUSINESS. If a state trust
112-17 company does not open and engage in the trust business within six
112-18 months after the date it receives its charter or conditional
112-19 approval of application for charter, the banking commissioner may
112-20 revoke the charter or cancel the conditional approval of
112-21 application for charter without judicial action.
112-22 Sec. 182.008. RESTRICTED CAPITAL. (a) The banking
112-23 commissioner may not issue a charter to a state trust company
112-24 having restricted capital of less than $1 million.
112-25 (b) The banking commissioner may, on a case-by-case basis,
112-26 require additional restricted capital for a proposed or existing
76R5 DWS-D 112
113-1 state trust company if the banking commissioner finds the condition
113-2 and operations of the existing state trust company or the proposed
113-3 scope or type of operations of the proposed state trust company
113-4 requires additional restricted capital to protect the safety and
113-5 soundness of the state trust company. The safety and soundness
113-6 factors to be considered by the banking commissioner in the
113-7 exercise of discretion include:
113-8 (1) the nature and type of business the state trust
113-9 company conducts;
113-10 (2) the nature and degree of liquidity in assets held
113-11 in a corporate capacity;
113-12 (3) the amount, type, and depository of fiduciary
113-13 assets that the state trust company manages;
113-14 (4) the complexity of the state trust company's
113-15 fiduciary duties and degree of discretion undertaken;
113-16 (5) the competence and experience of the state trust
113-17 company's management;
113-18 (6) the extent and adequacy of internal controls
113-19 maintained by the state trust company;
113-20 (7) the presence or absence of annual unqualified
113-21 audits by an independent certified public accountant;
113-22 (8) the reasonableness of the state trust company's
113-23 business plans for retaining or acquiring additional restricted
113-24 capital; and
113-25 (9) the existence and adequacy of insurance obtained
113-26 or held by the state trust company to protect its clients,
76R5 DWS-D 113
114-1 beneficiaries, and grantors.
114-2 (c) The effective date of an order under Subsection (b) must
114-3 be stated in the order and must be on or after the 21st day after
114-4 the date the order is mailed or delivered. Unless the state trust
114-5 company requests a hearing before the banking commissioner in
114-6 writing before the effective date of the order, the order takes
114-7 effect and is final and nonappealable. This subsection does not
114-8 prohibit an application to reduce capital requirements of an
114-9 existing state trust company under Subsection (e) or under Section
114-10 182.011.
114-11 (d) Subject to Subsection (e) and Section 182.011, a state
114-12 trust company to which the banking commissioner issues a charter
114-13 shall at all times maintain restricted capital in at least the
114-14 amount required under Subsection (a) and in any additional amount
114-15 the banking commissioner requires under Subsection (b).
114-16 (e) Notwithstanding Subsection (a), on application, the
114-17 banking commissioner may, on a case-by-case basis in the exercise
114-18 of discretion, reduce the amount of minimum restricted capital
114-19 required for a state trust company in a manner consistent with
114-20 protecting the state trust company's safety and soundness. In
114-21 making a determination under this subsection, the banking
114-22 commissioner shall consider the factors listed by Subsection (b).
114-23 Sec. 182.009. APPLICATION OF LAWS RELATING TO GENERAL
114-24 BUSINESS CORPORATIONS. (a) The Texas Business Corporation Act and
114-25 the Texas Miscellaneous Corporation Laws Act (Article 1302-1.01 et
114-26 seq., Vernon's Texas Civil Statutes) are incorporated into this
76R5 DWS-D 114
115-1 chapter and apply to a state trust company as if they were part of
115-2 this subtitle to the extent not inconsistent with this subtitle or
115-3 the proper business of a state trust company, except that:
115-4 (1) a reference to the secretary of state means the
115-5 banking commissioner unless the context requires otherwise; and
115-6 (2) the right of shareholders or participants to
115-7 cumulative voting in the election of directors or managers exists
115-8 only if granted by the state trust company's articles of
115-9 association.
115-10 (b) Unless expressly authorized by this subtitle or a rule
115-11 of the finance commission, a state trust company may not take an
115-12 action authorized by the Texas Business Corporation Act regarding
115-13 its corporate status, capital structure, or a matter of corporate
115-14 governance, of the type for which the Texas Business Corporation
115-15 Act would require a filing with the secretary of state if the state
115-16 trust company were a business corporation, without submitting the
115-17 filing to the banking commissioner for prior written approval of
115-18 the action.
115-19 (c) The finance commission may adopt rules to alter or
115-20 supplement the procedures and requirements of the Texas Business
115-21 Corporation Act or the Texas Miscellaneous Corporation Laws Act
115-22 (Article 1302-1.01 et seq., Vernon's Texas Civil Statutes)
115-23 applicable to an action taken under this chapter by a state trust
115-24 company.
115-25 (d) This chapter may not be construed to mean that a state
115-26 trust company is a corporation incorporated under or governed by
76R5 DWS-D 115
116-1 the Texas Business Corporation Act or the Texas Miscellaneous
116-2 Corporation Laws Act (Article 1302-1.01 et seq., Vernon's Texas
116-3 Civil Statutes).
116-4 Sec. 182.010. PARITY. (a) A state trust company has the
116-5 same rights and privileges with respect to the exercise of
116-6 fiduciary powers that are or may be granted to a state or national
116-7 bank that is domiciled in this state and exercising fiduciary
116-8 powers.
116-9 (b) A state trust company that intends to exercise a right
116-10 or privilege with respect to the exercise of fiduciary powers
116-11 granted to a regulated financial institution described in
116-12 Subsection (a) that is not authorized for state trust companies
116-13 under the statutes and rules of this state other than under this
116-14 section shall submit a letter to the banking commissioner,
116-15 describing in detail the activity in which the state trust company
116-16 intends to engage and the specific authority for the regulated
116-17 financial institution described in Subsection (a) to undertake the
116-18 proposed activity. The state trust company shall attach copies, if
116-19 available, of relevant state and federal law, including regulations
116-20 and interpretive letters. The state trust company may begin to
116-21 perform the proposed activity after the 30th day after the date the
116-22 banking commissioner receives the state trust company's letter
116-23 unless the banking commissioner specifies an earlier or later date
116-24 or prohibits the activity. The banking commissioner may prohibit
116-25 the state trust company from performing the activity only if the
116-26 banking commissioner finds that:
76R5 DWS-D 116
117-1 (1) a regulated financial institution described in
117-2 Subsection (a) that is domiciled in this state does not possess the
117-3 specific right or privilege to perform the activity the state trust
117-4 company seeks to perform; or
117-5 (2) the performance of the activity by the state trust
117-6 company would adversely affect the safety and soundness of the
117-7 requesting state trust company.
117-8 (c) The banking commissioner may extend the 30-day period
117-9 under Subsection (b) if the banking commissioner determines that
117-10 the state trust company's letter raises issues requiring additional
117-11 information or additional time for analysis. If the 30-day period
117-12 is extended, the state trust company may perform the proposed
117-13 activity only on prior written approval by the banking
117-14 commissioner, except that the banking commissioner must approve or
117-15 prohibit the proposed activity or convene a hearing under Section
117-16 181.201 not later than the 60th day after the date the commissioner
117-17 receives the state trust company's letter. If a hearing is
117-18 convened, the banking commissioner must approve or prohibit the
117-19 proposed activity not later than the 30th day after the date the
117-20 hearing is completed.
117-21 (d) A state trust company that is denied the requested right
117-22 or privilege to engage in an activity by the banking commissioner
117-23 under this section may appeal as provided by Sections
117-24 181.202-181.204 or may resubmit a letter under this section with
117-25 additional information or authority relevant to the banking
117-26 commissioner's determination. A denial is immediately final for
76R5 DWS-D 117
118-1 purposes of appeal.
118-2 (e) The finance commission may adopt rules implementing the
118-3 method or manner in which a state trust company exercises specific
118-4 rights and privileges, including rules regarding the exercise of
118-5 rights and privileges that would be prohibited to state trust
118-6 companies. The finance commission may not adopt rules under this
118-7 subsection unless it finds that:
118-8 (1) regulated financial institutions described in
118-9 Subsection (a) that are domiciled in this state possess the rights
118-10 or privileges to perform activities the rules would permit state
118-11 trust companies to perform; and
118-12 (2) the rules contain adequate safeguards and
118-13 controls, consistent with safety and soundness, to address the
118-14 concern of the legislature evidenced by the state law the rules
118-15 would impact.
118-16 (f) The exercise of rights and privileges by a state trust
118-17 company in compliance with and in the manner authorized by this
118-18 section is not a violation of any statute of this state.
118-19 Sec. 182.011. EXEMPTION FROM STATUTORY PROVISIONS FOR
118-20 CERTAIN STATE TRUST COMPANIES. (a) A state trust company may
118-21 request in writing that it be exempted from specified provisions of
118-22 this subtitle. The banking commissioner may grant the exemption in
118-23 whole or in part if the banking commissioner finds that the state
118-24 trust company does not transact business with the public. A state
118-25 trust company does not transact business with the public if it does
118-26 not make any sale, solicitation, arrangement, agreement, or
76R5 DWS-D 118
119-1 transaction to provide a trust or other business service, whether
119-2 or not for a fee, commission, or any other type of remuneration,
119-3 with:
119-4 (1) an individual who is not related within the fourth
119-5 degree of affinity or consanguinity to an individual who controls
119-6 the state trust company; or
119-7 (2) a sole proprietorship, partnership, joint venture,
119-8 association, trust, estate, business trust, or corporation that is
119-9 not wholly owned by one or more individuals related within the
119-10 fourth degree of affinity or consanguinity to an individual who
119-11 controls the state trust company.
119-12 (b) At the expense of a state trust company, the banking
119-13 commissioner may examine or investigate the state trust company in
119-14 connection with an application for an exemption. Unless the
119-15 application presents novel or unusual questions, the banking
119-16 commissioner shall approve the application for exemption or set the
119-17 application for hearing not later than the 61st day after the date
119-18 the banking commissioner considers the application complete and
119-19 accepted for filing. The banking commissioner may require the
119-20 submission of additional information as considered necessary to an
119-21 informed decision.
119-22 (c) An exemption granted under this section may be made
119-23 subject to conditions or limitations imposed by the banking
119-24 commissioner consistent with this subtitle.
119-25 (d) A state trust company that is or has been exempt from a
119-26 provision of this subtitle under this section or a predecessor
76R5 DWS-D 119
120-1 statute may not transact business with the public unless the
120-2 banking commissioner determines, as provided by Section 182.003,
120-3 that public convenience and advantage will be promoted by
120-4 permitting the state trust company to engage in the trust business
120-5 with the public.
120-6 (e) The finance commission may adopt rules:
120-7 (1) defining other circumstances under which a state
120-8 trust company may be exempted from a provision of this subtitle
120-9 because it does not transact business with the public;
120-10 (2) specifying the provisions of this subtitle that
120-11 are subject to an exemption request; and
120-12 (3) establishing procedures and requirements for
120-13 obtaining, maintaining, or revoking an exemption.
120-14 Sec. 182.012. APPLICATION FOR EXEMPTION. (a) A state trust
120-15 company requesting an exemption under Section 182.011 shall file an
120-16 application with the banking commissioner that includes:
120-17 (1) a nonrefundable application fee set by the finance
120-18 commission;
120-19 (2) a detailed sworn statement showing the state trust
120-20 company's assets and liabilities as of the end of the calendar
120-21 month preceding the filing of the application;
120-22 (3) a sworn statement of the reason for requesting the
120-23 exemption;
120-24 (4) a sworn statement that the state trust company is
120-25 not transacting business with the public and that the company will
120-26 not transact business with the public without the prior written
76R5 DWS-D 120
121-1 permission of the banking commissioner;
121-2 (5) the current street mailing address and telephone
121-3 number of the physical location in this state at which the state
121-4 trust company will maintain its books and records, with a sworn
121-5 statement that the address given is true and correct and is not a
121-6 United States Postal Service post office box or a private mail box,
121-7 postal box, or mail drop; and
121-8 (6) a list of the specific provisions of this subtitle
121-9 for which the request for an exemption is made.
121-10 (b) The banking commissioner may not approve an exemption
121-11 unless the application is completed as required by Subsection (a).
121-12 Sec. 182.013. ANNUAL CERTIFICATION FOR EXEMPT STATE TRUST
121-13 COMPANY. (a) Before June 30 of each year, an exempt state trust
121-14 company shall file a certification on a form provided by the
121-15 banking commissioner that it is maintaining the conditions and
121-16 limitations of its exemption. The certification must be accompanied
121-17 by a fee set by the finance commission. The certification is not
121-18 valid unless it bears an acknowledgment 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
76R5 DWS-D 121
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.
76R5 DWS-D 122
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
76R5 DWS-D 123
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
76R5 DWS-D 124
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
76R5 DWS-D 125
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);
76R5 DWS-D 126
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
76R5 DWS-D 127
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";
76R5 DWS-D 128
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
76R5 DWS-D 129
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
76R5 DWS-D 130
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
76R5 DWS-D 131
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
76R5 DWS-D 132
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.
76R5 DWS-D 133
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
76R5 DWS-D 134
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
76R5 DWS-D 135
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
76R5 DWS-D 136
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
76R5 DWS-D 137
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. (a)
138-9 The purchasing state trust company may hold the purchase price and
138-10 any additional funds delivered to it by the selling institution in
138-11 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
76R5 DWS-D 138
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.
76R5 DWS-D 139
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
76R5 DWS-D 140
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:
76R5 DWS-D 141
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
76R5 DWS-D 142
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
76R5 DWS-D 143
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
76R5 DWS-D 144
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;
76R5 DWS-D 145
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
76R5 DWS-D 146
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
76R5 DWS-D 147
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
76R5 DWS-D 148
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,
76R5 DWS-D 149
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
76R5 DWS-D 150
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
76R5 DWS-D 151
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:
76R5 DWS-D 152
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
76R5 DWS-D 153
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
76R5 DWS-D 154
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
76R5 DWS-D 155
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
76R5 DWS-D 156
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.
76R5 DWS-D 157
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
76R5 DWS-D 158
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 report
159-8 is promptly confirmed in writing. The state trust company or a
159-9 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
76R5 DWS-D 159
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 filed
160-10 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
76R5 DWS-D 160
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.
76R5 DWS-D 161
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
76R5 DWS-D 162
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
76R5 DWS-D 163
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
76R5 DWS-D 164
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
76R5 DWS-D 165
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;
76R5 DWS-D 166
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
76R5 DWS-D 167
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
76R5 DWS-D 168
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
76R5 DWS-D 169
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
76R5 DWS-D 170
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);
76R5 DWS-D 171
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 Association, 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;
76R5 DWS-D 172
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
76R5 DWS-D 173
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
76R5 DWS-D 174
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.
76R5 DWS-D 175
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
76R5 DWS-D 176
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.
76R5 DWS-D 177
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.
76R5 DWS-D 178
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
76R5 DWS-D 179
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:
76R5 DWS-D 180
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
76R5 DWS-D 181
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
76R5 DWS-D 182
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;
76R5 DWS-D 183
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
76R5 DWS-D 184
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
76R5 DWS-D 185
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
76R5 DWS-D 186
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.
76R5 DWS-D 187
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
76R5 DWS-D 188
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.
76R5 DWS-D 189
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
76R5 DWS-D 190
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
76R5 DWS-D 191
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
76R5 DWS-D 192
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
76R5 DWS-D 193
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
76R5 DWS-D 194
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.
76R5 DWS-D 195
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
76R5 DWS-D 196
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
76R5 DWS-D 197
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
76R5 DWS-D 198
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,
76R5 DWS-D 199
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
200-24 SUBCHAPTER C. UNAUTHORIZED TRUST ACTIVITY: INVESTIGATION
200-25 AND ENFORCEMENT
200-26 Sec. 185.201. INVESTIGATION OF UNAUTHORIZED TRUST ACTIVITY.
76R5 DWS-D 200
201-1 (a) If the banking commissioner has reason to believe that a
201-2 person has engaged, is engaging, or is likely to engage in an
201-3 unauthorized trust activity, the banking commissioner may:
201-4 (1) investigate as necessary within or outside this
201-5 state to:
201-6 (A) determine whether the unauthorized trust
201-7 activity has occurred or is likely to occur; or
201-8 (B) aid in the enforcement of the laws
201-9 administered by the banking commissioner;
201-10 (2) initiate appropriate disciplinary action as
201-11 provided by this subchapter; and
201-12 (3) report any unauthorized trust activity to a law
201-13 enforcement agency or another regulatory agency with appropriate
201-14 jurisdiction.
201-15 (b) The banking commissioner may:
201-16 (1) on written request furnish to a law enforcement
201-17 agency evidence the banking commissioner has compiled in connection
201-18 with the unauthorized activity, including materials, documents,
201-19 reports, and complaints; and
201-20 (2) assist the law enforcement agency or other
201-21 regulatory agency as requested.
201-22 (c) A person acting without malice, fraudulent intent, or
201-23 bad faith is not subject to liability, including liability for
201-24 libel, slander, or other relevant tort, because the person files a
201-25 report or furnishes, orally or in writing, information concerning a
201-26 suspected, anticipated, or completed unauthorized activity to a law
76R5 DWS-D 201
202-1 enforcement agency, the banking commissioner or another regulatory
202-2 agency with appropriate jurisdiction, or an agent or employee of a
202-3 law enforcement agency, the banking commissioner, or other
202-4 regulatory agency. The person is entitled to attorney's fees and
202-5 court costs if the person prevails in an action for libel, slander,
202-6 or any other relevant tort based on the report or other information
202-7 the person furnished as provided by this subchapter.
202-8 (d) This section does not:
202-9 (1) affect or modify a common law or statutory
202-10 privilege or immunity;
202-11 (2) preempt the authority or relieve the duty of a law
202-12 enforcement agency or other regulatory agency with appropriate
202-13 jurisdiction to investigate and prosecute suspected criminal acts;
202-14 (3) prohibit a person from voluntarily disclosing
202-15 information to a law enforcement agency or other regulatory agency;
202-16 or
202-17 (4) limit a power or duty granted to the banking
202-18 commissioner under this subtitle or other law.
202-19 Sec. 185.202. SUBPOENA AUTHORITY. (a) This section applies
202-20 only to an investigation of an unauthorized trust activity as
202-21 provided by Section 185.201, and does not affect the conduct of a
202-22 contested case under Chapter 2001, Government Code.
202-23 (b) The banking commissioner may issue a subpoena to compel
202-24 the attendance and testimony of a witness or the production of a
202-25 book, account, record, paper, or correspondence relating to a
202-26 matter that the banking commissioner has authority to consider or
76R5 DWS-D 202
203-1 investigate at the department's offices in Austin or at another
203-2 place the banking commissioner designates.
203-3 (c) The subpoena must be signed and issued by the banking
203-4 commissioner or the deputy banking commissioner.
203-5 (d) A person who is required by subpoena to attend a
203-6 proceeding before the banking commissioner is entitled to receive:
203-7 (1) reimbursement for mileage, in the amount provided
203-8 for travel by a state employee, for traveling to or returning from
203-9 a proceeding that is more than 25 miles from the witness's
203-10 residence; and
203-11 (2) a fee for each day or part of a day the witness is
203-12 necessarily present as a witness in an amount equal to the per diem
203-13 travel allowance of a state employee.
203-14 (e) The banking commissioner may serve the subpoena or have
203-15 it served by an authorized agent of the banking commissioner, a
203-16 sheriff, or a constable. The sheriff or constable's fee for
203-17 serving the subpoena is the same as the fee paid the sheriff or
203-18 constable for similar services.
203-19 (f) A person possessing materials located outside this state
203-20 that are requested by the banking commissioner may make the
203-21 materials available to the banking commissioner or a representative
203-22 of the banking commissioner for examination at the place where the
203-23 materials are located. The banking commissioner may:
203-24 (1) designate a representative, including an official
203-25 of the state in which the materials are located, to examine the
203-26 materials; and
76R5 DWS-D 203
204-1 (2) respond to a similar request from an official of
204-2 another state, the United States, or a foreign country.
204-3 (g) A subpoena issued under this section to a financial
204-4 institution is not subject to Section 30.007, Civil Practice and
204-5 Remedies Code.
204-6 Sec. 185.203. ENFORCEMENT OF SUBPOENA. (a) If necessary,
204-7 the banking commissioner may apply to a district court in Travis
204-8 County or in the county in which the subpoena was served for
204-9 enforcement of the subpoena, and the court may issue an order
204-10 compelling compliance.
204-11 (b) If the court orders compliance with the subpoena or
204-12 finds the person in contempt for failure to obey the order, the
204-13 banking commissioner, or the attorney general if representing the
204-14 banking commissioner, may recover reasonable court costs,
204-15 attorney's fees, and investigative costs incurred in the
204-16 proceeding.
204-17 Sec. 185.204. CONFIDENTIALITY OF SUBPOENAED RECORDS. (a) A
204-18 book, account, record, paper, correspondence, or other document
204-19 subpoenaed and produced under Section 185.202 that is otherwise
204-20 made privileged or confidential by law remains privileged or
204-21 confidential unless admitted into evidence at an administrative
204-22 hearing or in a court. The banking commissioner may issue an order
204-23 protecting the confidentiality or privilege of the document and
204-24 restricting its use or distribution by any person or in any
204-25 proceeding, other than a proceeding before the banking
204-26 commissioner.
76R5 DWS-D 204
205-1 (b) Subject to Subchapter D, Chapter 181, and
205-2 confidentiality provisions of other law administered by the banking
205-3 commissioner, information or material acquired under Section
205-4 185.202 under a subpoena is not a public record for the period the
205-5 banking commissioner considers reasonably necessary to complete the
205-6 investigation, protect the person being investigated from
205-7 unwarranted injury, or serve the public interest. The information
205-8 or material is not subject to a subpoena, except a grand jury
205-9 subpoena, until released for public inspection by the banking
205-10 commissioner or, after notice and a hearing, a district court
205-11 determines that the public interest and any investigation by the
205-12 banking commissioner would not be jeopardized by obeying the
205-13 subpoena. The district court order may not apply to:
205-14 (1) a record or communication received from another
205-15 law enforcement or regulatory agency except on compliance with the
205-16 confidentiality laws governing the records of the other agency; or
205-17 (2) an internal note, memorandum, report, or
205-18 communication made in connection with a matter that the banking
205-19 commissioner has the authority to consider or investigate, except
205-20 on good cause and compliance with applicable confidentiality laws.
205-21 Sec. 185.205. EVIDENCE. (a) On certification by the
205-22 banking commissioner, a book, record, paper, or document produced
205-23 or testimony taken as provided by Section 185.202 and held by the
205-24 department is admissible as evidence in any case without prior
205-25 proof of its correctness and without other proof. The certified
205-26 book, record, document, or paper, or a certified copy, is prima
76R5 DWS-D 205
206-1 facie evidence of the facts it contains.
206-2 (b) This section does not limit another provision of this
206-3 subtitle or a law that provides for the admission of evidence or
206-4 its evidentiary value.
206-5 Sec. 185.206. CEASE AND DESIST ORDER REGARDING UNAUTHORIZED
206-6 TRUST ACTIVITY. (a) The banking commissioner may serve a proposed
206-7 cease and desist order on a person the banking commissioner
206-8 believes is engaging or is likely to engage in an unauthorized
206-9 trust activity. The order must:
206-10 (1) be delivered by personal delivery or registered or
206-11 certified mail, return receipt requested, to the person's last
206-12 known address;
206-13 (2) state the acts or practices alleged to be an
206-14 unauthorized activity; and
206-15 (3) state the effective date of the order, which may
206-16 not be earlier than the 21st day after the date the proposed order
206-17 is mailed or delivered.
206-18 (b) Unless the person against whom the proposed order is
206-19 directed requests a hearing in writing before the effective date of
206-20 the proposed order, the order takes effect and is final and
206-21 nonappealable as to that person.
206-22 (c) A requested hearing on a proposed order shall be held
206-23 not later than the 30th day after the date the first written
206-24 request for a hearing on the order is received by the banking
206-25 commissioner unless the parties agree to a later hearing date. At
206-26 the hearing, the banking commissioner has the burden of proof and
76R5 DWS-D 206
207-1 must present evidence in support of the order. Each person against
207-2 whom the order is directed may cross-examine witnesses and show
207-3 cause why the order should not be issued.
207-4 (d) After the hearing, the banking commissioner shall issue
207-5 or decline to issue a cease and desist order. The proposed order
207-6 may be modified as necessary to conform to the findings at the
207-7 hearing. An order issued under this subsection:
207-8 (1) is immediately final for purposes of enforcement
207-9 and appeal; and
207-10 (2) must require the person to immediately cease and
207-11 desist from the unauthorized trust activity.
207-12 (e) The banking commissioner may release a final cease and
207-13 desist order issued under this section or information relating to
207-14 the existence of the order to the public if the banking
207-15 commissioner finds that the release would enhance the effective
207-16 enforcement of the order or will serve the public interest.
207-17 Sec. 185.207. EMERGENCY CEASE AND DESIST ORDER. (a) The
207-18 banking commissioner may issue an emergency cease and desist order
207-19 to a person who the banking commissioner reasonably believes is
207-20 engaging in a continuing unauthorized trust activity that is
207-21 fraudulent or threatens immediate and irreparable public harm.
207-22 (b) The order must:
207-23 (1) be delivered on issuance to each person affected
207-24 by the order by personal delivery or registered or certified mail,
207-25 return receipt requested, to the person's last known address;
207-26 (2) state the specific charges and require the person
76R5 DWS-D 207
208-1 immediately to cease and desist from the unauthorized activity; and
208-2 (3) contain a notice that a request for hearing may be
208-3 filed under this section.
208-4 (c) Unless a person against whom the emergency order is
208-5 directed requests a hearing in writing before the 11th day after
208-6 the date it is served on the person, the emergency order is final
208-7 and nonappealable as to that person. A request for a hearing must:
208-8 (1) be in writing and directed to the banking
208-9 commissioner; and
208-10 (2) state the grounds for the request to set aside or
208-11 modify the order.
208-12 (d) On receiving a request for a hearing, the banking
208-13 commissioner shall serve notice of the time and place of the
208-14 hearing by personal delivery or registered or certified mail,
208-15 return receipt requested. The hearing must be held not later than
208-16 the 10th day after the date the banking commissioner receives the
208-17 request for a hearing unless the parties agree to a later hearing
208-18 date. At the hearing, the banking commissioner has the burden of
208-19 proof and must present evidence in support of the order. The
208-20 person requesting the hearing may cross-examine witnesses and show
208-21 cause why the order should not be affirmed.
208-22 (e) After the hearing, the banking commissioner shall
208-23 affirm, modify, or set aside in whole or part the emergency cease
208-24 and desist order. An order affirming or modifying the emergency
208-25 cease and desist order is immediately final for purposes of
208-26 enforcement and appeal.
76R5 DWS-D 208
209-1 (f) An order continues in effect unless the order is stayed
209-2 by the banking commissioner. The banking commissioner may impose
209-3 any condition before granting a stay of the order.
209-4 (g) The banking commissioner may release a final cease and
209-5 desist order issued under this section or information regarding the
209-6 existence of the order to the public if the banking commissioner
209-7 finds that the release would enhance the effective enforcement of
209-8 the order or will serve the public interest.
209-9 Sec. 185.208. APPEAL OF CEASE AND DESIST ORDER. (a) A
209-10 person affected by a cease and desist order issued, affirmed, or
209-11 modified after a hearing may file a petition for judicial review.
209-12 (b) A filed petition for judicial review does not stay or
209-13 vacate the order unless the court, after hearing, specifically
209-14 stays or vacates the order.
209-15 Sec. 185.209. VIOLATION OF FINAL CEASE AND DESIST ORDER.
209-16 (a) If the banking commissioner reasonably believes that a person
209-17 has violated a final and enforceable cease and desist order, the
209-18 banking commissioner may:
209-19 (1) initiate administrative penalty proceedings under
209-20 Section 185.210;
209-21 (2) refer the matter to the attorney general for
209-22 enforcement by injunction and any other available remedy; or
209-23 (3) pursue any other action the banking commissioner
209-24 considers appropriate under applicable law.
209-25 (b) If the attorney general prevails in an action brought
209-26 under Subsection (a)(2), the attorney general is entitled to
76R5 DWS-D 209
210-1 reasonable attorney's fees.
210-2 Sec. 185.210. ADMINISTRATIVE PENALTY. (a) The banking
210-3 commissioner may initiate an action for an administrative penalty
210-4 against a person for a violation of a cease and desist order by
210-5 serving on the person notice of the time and place of a hearing on
210-6 the penalty. The notice must be delivered by personal delivery or
210-7 registered or certified mail, return receipt requested, to the
210-8 person's last known address. The hearing may not be held earlier
210-9 than the 20th day after the date the notice is served. The notice
210-10 must contain a statement of the facts or conduct alleged to be in
210-11 violation of the cease and desist order.
210-12 (b) In determining whether a cease and desist order has been
210-13 violated, the banking commissioner shall consider the maintenance
210-14 of procedures reasonably adopted to ensure compliance with the
210-15 order.
210-16 (c) If the banking commissioner after the hearing determines
210-17 that a cease and desist order has been violated, the banking
210-18 commissioner may:
210-19 (1) impose an administrative penalty in an amount not
210-20 to exceed $25,000 for each separate act of unauthorized activity;
210-21 (2) direct the person against whom the order was
210-22 issued to make complete restitution, in the form and amount and
210-23 within the period determined by the banking commissioner, to each
210-24 resident of this state and entity operating in this state damaged
210-25 by the violation; or
210-26 (3) both impose the penalty and direct restitution.
76R5 DWS-D 210
211-1 (d) In determining the amount of the penalty and whether to
211-2 impose restitution, the banking commissioner shall consider:
211-3 (1) the seriousness of the violation, including the
211-4 nature, circumstances, extent, and gravity of any prohibited act;
211-5 (2) the economic harm caused by the violation;
211-6 (3) the history of previous violations;
211-7 (4) the amount necessary to deter future violations;
211-8 (5) efforts to correct the violation;
211-9 (6) whether the violation was intentional or
211-10 unintentional;
211-11 (7) the financial ability of the person against whom
211-12 the penalty is to be assessed; and
211-13 (8) any other matter that justice may require.
211-14 Sec. 185.211. PAYMENT AND APPEAL OF ADMINISTRATIVE PENALTY.
211-15 (a) When an administrative penalty order under Section 185.210
211-16 becomes final, a person affected by the order, within the time
211-17 permitted by law for appeal, shall:
211-18 (1) pay the amount of the penalty;
211-19 (2) pay the amount of the penalty and file a petition
211-20 for judicial review contesting the occurrence of the violation, the
211-21 amount of the penalty, or both; or
211-22 (3) without paying the amount of the penalty, file a
211-23 petition for judicial review contesting the occurrence of the
211-24 violation, the amount of the penalty, or both.
211-25 (b) Within the time permitted by law for appeal, a person
211-26 who acts under Subsection (a)(3) may:
76R5 DWS-D 211
212-1 (1) stay enforcement of the penalty by:
212-2 (A) paying the amount of the penalty to the
212-3 court for placement in an escrow account; or
212-4 (B) giving the court a supersedeas bond that is
212-5 approved by the court for the amount of the penalty and that is
212-6 effective until all judicial review of the order is final; or
212-7 (2) request the court to stay enforcement of the
212-8 penalty by:
212-9 (A) filing with the court a sworn affidavit of
212-10 the person stating that the person is financially unable to pay the
212-11 amount of the penalty and is financially unable to give the
212-12 supersedeas bond; and
212-13 (B) giving a copy of the affidavit to the
212-14 banking commissioner by certified mail.
212-15 (c) Not later than the fifth day after the date the banking
212-16 commissioner receives a copy of an affidavit under Subsection
212-17 (b)(2), the banking commissioner may file with the court a contest
212-18 to the affidavit. The court shall hold a hearing on the facts
212-19 alleged in the affidavit as soon as practicable and shall stay the
212-20 enforcement of the penalty on finding that the alleged facts are
212-21 true. The person who files an affidavit has the burden of proving
212-22 that the person is financially unable to pay the amount of the
212-23 penalty and to give a supersedeas bond.
212-24 (d) If the person does not pay the amount of the penalty and
212-25 the enforcement of the penalty is not stayed, the banking
212-26 commissioner may refer the matter to the attorney general for
76R5 DWS-D 212
213-1 collection of the amount of the penalty.
213-2 Sec. 185.212. JUDICIAL REVIEW OF ADMINISTRATIVE PENALTY.
213-3 (a) If on judicial review the court sustains the penalty order,
213-4 the court shall order the person to pay the full amount of the
213-5 penalty or a lower amount determined by the court. If the court
213-6 does not sustain the order, a penalty is not owed.
213-7 (b) When the judgment of the court becomes final, if the
213-8 person paid the amount of the penalty and if that amount is reduced
213-9 or is not upheld by the court, the court shall order that the
213-10 appropriate amount plus accrued interest computed at the annual
213-11 rate of 10 percent be remitted to the person. The interest shall
213-12 be paid for the period beginning on the date the penalty was paid
213-13 and ending on the date the penalty is remitted. If the person gave
213-14 a supersedeas bond and the amount of the penalty is not upheld by
213-15 the court, the court shall order the release of the bond. If the
213-16 person gave a supersedeas bond and the amount of the penalty is
213-17 reduced, the court shall order the release of the bond after the
213-18 person pays the amount of the penalty.
213-19 (c) If the judgment of the court requires payment of a
213-20 penalty that has not previously been paid, the court shall order as
213-21 part of its judgment that interest accrues on the penalty at the
213-22 annual rate of 10 percent, beginning on the date the judgment is
213-23 final and ending on the date the penalty and interest are paid.
213-24 CHAPTER 186. DISSOLUTION AND RECEIVERSHIP
213-25 SUBCHAPTER A. GENERAL PROVISIONS
213-26 Sec. 186.001. DEFINITION. In this chapter, "administrative
76R5 DWS-D 213
214-1 expense" means:
214-2 (1) an expense designated as an administrative expense
214-3 by Subchapter C or D;
214-4 (2) court costs and expenses of operation and
214-5 liquidation of a state trust company estate;
214-6 (3) wages owed to an employee of a state trust company
214-7 for services rendered within three months before the date the state
214-8 trust company was closed for liquidation and not exceeding:
214-9 (A) $2,000 to each employee; or
214-10 (B) another amount set by rules adopted under
214-11 this subtitle;
214-12 (4) current wages owed to a state trust company
214-13 employee whose services are retained by the receiver for services
214-14 rendered after the date the state trust company is closed for
214-15 liquidation;
214-16 (5) an unpaid expense of supervision or
214-17 conservatorship of the state trust company before its closing for
214-18 liquidation; and
214-19 (6) any unpaid fees or assessments owed to the
214-20 department.
214-21 Sec. 186.002. REMEDIES EXCLUSIVE. (a) Unless the banking
214-22 commissioner so requests, a court may not:
214-23 (1) order the closing or suspension of operation of a
214-24 state trust company; or
214-25 (2) appoint for a state trust company a receiver,
214-26 supervisor, conservator, or liquidator, or other person with
76R5 DWS-D 214
215-1 similar responsibility.
215-2 (b) A person may not be designated receiver, supervisor,
215-3 conservator, or liquidator without the voluntary approval and
215-4 concurrence of the banking commissioner.
215-5 (c) This chapter prevails over any other conflicting law of
215-6 this state.
215-7 Sec. 186.003. FEDERAL DEPOSIT INSURANCE CORPORATION AS
215-8 LIQUIDATOR. (a) The banking commissioner without court action may
215-9 tender a state trust company that has been closed for liquidation
215-10 to the Federal Deposit Insurance Corporation or its successor as
215-11 receiver and liquidating agent if the trust deposits of the state
215-12 trust company were insured by the Federal Deposit Insurance
215-13 Corporation or its successor on the date of closing.
215-14 (b) After acceptance of tender of the state trust company,
215-15 the Federal Deposit Insurance Corporation or its successor shall
215-16 perform the acts and duties as receiver of the state trust company
215-17 that it considers necessary or desirable and that are permitted or
215-18 required by federal law or this chapter.
215-19 (c) If the Federal Deposit Insurance Corporation or its
215-20 successor refuses to accept tender of the state trust company, the
215-21 banking commissioner shall act as receiver.
215-22 Sec. 186.004. APPOINTMENT OF INDEPENDENT RECEIVER. (a) On
215-23 request of the banking commissioner, the court in which a
215-24 liquidation proceeding is pending may:
215-25 (1) appoint an independent receiver; and
215-26 (2) require a suitable bond of the independent
76R5 DWS-D 215
216-1 receiver.
216-2 (b) On appointment of an independent receiver, the banking
216-3 commissioner is discharged as receiver and remains a party to the
216-4 liquidation proceeding with standing to initiate or contest any
216-5 motion. The views of the banking commissioner are entitled to
216-6 deference unless they are inconsistent with the plain meaning of
216-7 this chapter.
216-8 Sec. 186.005. SUCCESSION OF TRUST POWERS. (a) If a state
216-9 trust company in the process of voluntary or involuntary
216-10 dissolution and liquidation is acting as trustee, guardian,
216-11 executor, administrator, or escrow agent, or in another fiduciary
216-12 or custodial capacity, the banking commissioner may authorize the
216-13 sale of the state trust company's administration of fiduciary
216-14 accounts to a successor entity with fiduciary powers.
216-15 (b) The successor entity, without the necessity of action by
216-16 a court or the creator or a beneficiary of the fiduciary
216-17 relationship, shall:
216-18 (1) continue the office, trust, or fiduciary
216-19 relationship; and
216-20 (2) perform all the duties and exercise all the powers
216-21 connected with or incidental to the fiduciary relationship as if
216-22 the successor entity had been originally designated as the
216-23 fiduciary.
216-24 (c) This section applies to all fiduciary relationships,
216-25 including a trust established for the benefit of a minor by court
216-26 order under Section 142.005, Property Code. This section does not
76R5 DWS-D 216
217-1 affect any right of a court or a party to the instrument governing
217-2 the fiduciary relationship to subsequently designate another
217-3 trustee as the successor fiduciary.
217-4 (Sections 186.006-186.100 reserved for expansion
217-5 SUBCHAPTER B. VOLUNTARY DISSOLUTION
217-6 Sec. 186.101. INITIATING VOLUNTARY DISSOLUTION. (a) A
217-7 state trust company may initiate voluntary dissolution and
217-8 surrender its charter as provided by this subchapter:
217-9 (1) with the approval of the banking commissioner;
217-10 (2) after complying with the provisions of the Texas
217-11 Business Corporation Act regarding board and shareholder approval
217-12 for voluntary dissolution; and
217-13 (3) by filing the notice of dissolution as provided by
217-14 Section 186.102.
217-15 (b) The shareholders or participants of a state trust
217-16 company initiating voluntary dissolution by resolution shall
217-17 appoint one or more persons to act as liquidating agent or
217-18 committee. The liquidating agent or committee shall conduct the
217-19 liquidation as provided by law and under the supervision of the
217-20 board. The board, in consultation with the banking commissioner,
217-21 shall require the liquidating agent or committee to give a suitable
217-22 bond.
217-23 Sec. 186.102. FILING RESOLUTIONS WITH BANKING COMMISSIONER.
217-24 After resolutions to dissolve and liquidate a state trust company
217-25 have been adopted by the board and shareholders or participants, a
217-26 majority of the directors, managers, or managing participants shall
76R5 DWS-D 217
218-1 verify and file with the banking commissioner duplicate certified
218-2 copies of:
218-3 (1) the resolutions of the shareholders or
218-4 participants that:
218-5 (A) are adopted at a meeting for which proper
218-6 notice was given or by unanimous written consent; and
218-7 (B) approve the dissolution and liquidation of
218-8 the state trust company;
218-9 (2) the resolutions of the board approving the
218-10 dissolution and liquidation of the state trust company if the
218-11 trust company is operated by a board of directors or managers;
218-12 (3) a copy of the notice to the shareholders or
218-13 participants informing them of the meeting described by Subdivision
218-14 (1)(A); and
218-15 (4) a plan of liquidation.
218-16 Sec. 186.103. BANKING COMMISSIONER INVESTIGATION AND
218-17 CONSENT. The banking commissioner shall review the documentation
218-18 submitted under Section 186.102 and conduct any necessary
218-19 investigation or examination. If the proceedings appear to have
218-20 been properly conducted and the bond to be given by the liquidating
218-21 agent or committee is adequate for its purposes, the banking
218-22 commissioner shall consent to dissolution and direct the state
218-23 trust company to publish notice of its pending dissolution.
218-24 Sec. 186.104. NOTICE OF PENDING DISSOLUTION. (a) A state
218-25 trust company shall publish notice of its pending dissolution in a
218-26 newspaper of general circulation in each community where its home
76R5 DWS-D 218
219-1 office or a branch is located:
219-2 (1) at least once each week for eight consecutive
219-3 weeks; or
219-4 (2) at other times specified by the banking
219-5 commissioner or rules adopted under this subtitle.
219-6 (b) The notice must:
219-7 (1) be in the form and include the information
219-8 required by the banking commissioner; and
219-9 (2) state that:
219-10 (A) the state trust company is liquidating;
219-11 (B) clients, depositors, and creditors must
219-12 present their claims for payment on or before a specific date; and
219-13 (C) all safe deposit box holders and bailors of
219-14 property left with the state trust company should remove their
219-15 property on or before a specified date.
219-16 (c) The dates selected by the state trust company under
219-17 Subsection (b) must:
219-18 (1) be approved by the banking commissioner;
219-19 (2) allow the affairs of the state trust company to be
219-20 wound up as quickly as feasible; and
219-21 (3) allow creditors, clients, and owners of property
219-22 adequate time for presentation of claims, withdrawal of accounts,
219-23 and redemption of property.
219-24 (d) The banking commissioner may adjust the dates under
219-25 Subsection (b) with or without republication of notice if
219-26 additional time appears needed for the activities to which the
76R5 DWS-D 219
220-1 dates pertain.
220-2 (e) At the time of or promptly after publication of the
220-3 notice, the state trust company shall mail to each of the state
220-4 trust company's known clients, depositors, creditors, safe deposit
220-5 box holders, and bailors of property left with the state trust
220-6 company, at the mailing address shown on the state trust company's
220-7 records, an individual notice containing:
220-8 (1) the information required in a notice under
220-9 Subsection (b); and
220-10 (2) specific information pertinent to the account or
220-11 property of the addressee.
220-12 Sec. 186.105. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
220-13 contract between the state trust company and a person for bailment,
220-14 of deposit for hire, or for the lease of a safe, vault, or box,
220-15 ceases on the date specified in the notice as the date for removal
220-16 of property or a later date approved by the banking commissioner.
220-17 A person who has paid rental or storage charges for a period
220-18 extending beyond the date designated for removal of property has an
220-19 unsecured claim against the state trust company for a refund of the
220-20 unearned amount paid.
220-21 (b) If the property is not removed by the date the contract
220-22 ceases, an officer of the state trust company shall inventory the
220-23 property. In making the inventory, the officer may open a safe,
220-24 vault, box, package, parcel, or receptacle in the custody or
220-25 possession of the state trust company. The inventory must be made
220-26 in the presence of a notary public who is not an officer or
76R5 DWS-D 220
221-1 employee of the state trust company and who is bonded in an amount
221-2 and by sureties approved by the banking commissioner. The property
221-3 shall be marked to identify, to the extent possible, its owner or
221-4 the person who left it with the state trust company.
221-5 (c) After all property belonging to others that is in the
221-6 state trust company's custody and control has been inventoried, a
221-7 master list certified by the state trust company officer and the
221-8 notary public shall be furnished to the banking commissioner. The
221-9 master list shall be kept in a place and dealt with in a manner the
221-10 banking commissioner specifies pending delivery of the property to
221-11 its owner or to the comptroller as unclaimed property.
221-12 Sec. 186.106. OFFICES TO REMAIN OPEN. Unless the banking
221-13 commissioner directs or consents otherwise, the home office and all
221-14 branch offices of a state trust company initiating voluntary
221-15 dissolution shall remain open for business during normal business
221-16 hours until the last date specified in published notices for
221-17 presentation of claims, withdrawal of accounts, and redemption of
221-18 property.
221-19 Sec. 186.107. FIDUCIARY ACTIVITIES. (a) As soon as
221-20 practicable after publication of the notice of dissolution, the
221-21 state trust company shall:
221-22 (1) terminate all fiduciary positions it holds;
221-23 (2) surrender all property held by it as a fiduciary;
221-24 and
221-25 (3) settle its fiduciary accounts.
221-26 (b) Unless all fiduciary accounts are settled and
76R5 DWS-D 221
222-1 transferred by the last date specified in published notices or by
222-2 the banking commissioner and unless the banking commissioner
222-3 directs otherwise, the state trust company shall mail a notice to
222-4 each trustor and beneficiary of any remaining trust, escrow
222-5 arrangement, or other fiduciary relationship. The notice must
222-6 state:
222-7 (1) the location of an office open during normal
222-8 business hours where administration of the remaining fiduciary
222-9 accounts will continue until settled or transferred; and
222-10 (2) a telephone number at that office.
222-11 Sec. 186.108. FINAL LIQUIDATION. (a) After the state trust
222-12 company has taken all of the actions specified by Sections 186.102,
222-13 186.104, 186.105, and 186.107, paid all its debts and obligations,
222-14 and transferred all property for which a legal claimant has been
222-15 found after the time for presentation of claims has expired, the
222-16 state trust company shall make a list from its books of the names
222-17 of each depositor, creditor, owner of personal property in the
222-18 state trust company's possession or custody, or lessee of any safe,
222-19 vault, or box, who has not claimed or has not received a deposit,
222-20 debt, dividend, interest, balance, or other amount or property due
222-21 to the person. The list must be sworn to or affirmed by a majority
222-22 of the board or managing participants of the state trust company.
222-23 (b) The bank shall:
222-24 (1) file the list and any necessary identifying
222-25 information with the banking commissioner;
222-26 (2) pay any unclaimed money and deliver any unclaimed
76R5 DWS-D 222
223-1 property to the comptroller as provided by Chapter 74, Property
223-2 Code; and
223-3 (3) certify to the banking commissioner that the
223-4 unclaimed money has been paid and unclaimed property has been
223-5 delivered to the comptroller.
223-6 (c) After the banking commissioner has reviewed the list and
223-7 has reconciled the unclaimed cash and property with the amounts of
223-8 money and property reported and transferred to the comptroller, the
223-9 banking commissioner shall allow the state trust company to
223-10 distribute the state trust company's remaining assets, if any,
223-11 among its shareholders, participants, or participant-transferees as
223-12 their ownership interests appear.
223-13 (d) After distribution of all remaining assets under
223-14 Subsection (c), the state trust company shall file with the
223-15 department:
223-16 (1) an affidavit and schedules sworn to or affirmed by
223-17 a majority of the board or managing participants, showing the
223-18 distribution to each shareholder, participant, or
223-19 participant-transferee;
223-20 (2) all copies of reports of examination of the state
223-21 trust company in its possession;
223-22 (3) its original charter or an affidavit stating that
223-23 the original charter is lost; and
223-24 (4) any branch certificates of authority.
223-25 (e) After verifying the submitted information and documents,
223-26 the banking commissioner shall issue a certificate canceling the
76R5 DWS-D 223
224-1 charter of the state trust company.
224-2 Sec. 186.109. APPLICATION OF LAW TO STATE TRUST COMPANY IN
224-3 DISSOLUTION. A state trust company in the process of voluntary
224-4 dissolution and liquidation remains subject to this subtitle,
224-5 including provisions for examination by the banking commissioner,
224-6 and the state trust company shall furnish reports required by the
224-7 banking commissioner.
224-8 Sec. 186.110. AUTHORIZATION OF DEVIATION FROM PROCEDURES.
224-9 The banking commissioner may authorize a deviation from the
224-10 procedures for voluntary dissolution provided by this subchapter if
224-11 the banking commissioner determines that the interests of claimants
224-12 are not jeopardized by the deviation.
224-13 Sec. 186.111. CLOSURE BY BANKING COMMISSIONER FOR
224-14 INVOLUNTARY DISSOLUTION AND LIQUIDATION. The banking commissioner
224-15 may close the state trust company for involuntary dissolution and
224-16 liquidation under this chapter if the banking commissioner
224-17 determines that:
224-18 (1) the voluntary liquidation is:
224-19 (A) being conducted in an improper or illegal
224-20 manner; or
224-21 (B) not in the best interests of the state trust
224-22 company's clients and creditors; or
224-23 (2) the state trust company is insolvent or imminently
224-24 insolvent.
224-25 Sec. 186.112. APPLICATION FOR NEW CHARTER. After a state
224-26 trust company's charter has been voluntarily surrendered and
76R5 DWS-D 224
225-1 canceled, the state trust company may not resume business or reopen
225-2 except on application for and approval of a new charter.
225-3 (Sections 186.113-186.200 reserved for expansion
225-4 SUBCHAPTER C. INVOLUNTARY DISSOLUTION AND LIQUIDATION
225-5 Sec. 186.201. ACTION TO CLOSE STATE TRUST COMPANY. (a) The
225-6 banking commissioner may close and liquidate a state trust company
225-7 on finding that:
225-8 (1) the interests of its clients and creditors are
225-9 jeopardized by the state trust company's insolvency or imminent
225-10 insolvency; and
225-11 (2) the best interests of clients and creditors would
225-12 be served by requiring that the state trust company be closed and
225-13 its assets liquidated.
225-14 (b) A majority of the state trust company's directors,
225-15 managers, or managing participants may voluntarily close the state
225-16 trust company and place it with the banking commissioner for
225-17 liquidation.
225-18 Sec. 186.202. NOTICE AND EFFECT OF CLOSURE; APPOINTMENT OF
225-19 RECEIVER. (a) After closing a state trust company under Section
225-20 186.201, the banking commissioner shall place a sign at its main
225-21 entrance stating that the state trust company has been closed and
225-22 the findings on which the closing of the state trust company is
225-23 based. A correspondent bank of the closed state trust company may
225-24 not pay an item drawn on the account of the closed state trust
225-25 company that is presented for payment after the correspondent has
225-26 received actual notice of closing unless it previously certified
76R5 DWS-D 225
226-1 the item for payment.
226-2 (b) As soon as practicable after posting the sign at the
226-3 state trust company's main entrance, the banking commissioner shall
226-4 tender the state trust company to the Federal Deposit Insurance
226-5 Corporation as provided by Section 186.003 or initiate a
226-6 receivership proceeding by filing a copy of the notice contained on
226-7 the sign in district court in the county where the state trust
226-8 company's home office is located. The court in which the notice is
226-9 filed shall docket it as a case styled, "In re liquidation of ____"
226-10 (inserting the name of the state trust company). When the notice
226-11 is filed, the court has constructive custody of all the state trust
226-12 company's assets and any action that seeks to directly or
226-13 indirectly affect state trust company assets is considered an
226-14 intervention in the receivership proceeding and subject to this
226-15 subchapter and Subchapter D.
226-16 (c) Venue for an action instituted to effect, contest, or
226-17 intervene in the liquidation of a state trust company is in Travis
226-18 County, except that on motion filed and served concurrently with or
226-19 before the filing of the answer, the court may, on a finding of
226-20 good cause, transfer the action to the county of the state trust
226-21 company's home office.
226-22 Sec. 186.203. NATURE AND DURATION OF RECEIVERSHIP. (a) The
226-23 court may not require a bond from the banking commissioner as
226-24 receiver.
226-25 (b) A reference in this chapter to the receiver is a
226-26 reference to the banking commissioner as receiver and to any
76R5 DWS-D 226
227-1 successors in office, the Federal Deposit Insurance Corporation if
227-2 acting as receiver as provided by Section 186.003 and federal law,
227-3 or an independent receiver appointed at the request of the banking
227-4 commissioner as provided by Section 186.004.
227-5 (c) The receiver has all the powers of the directors,
227-6 managers, managing participants, officers, and shareholders or
227-7 participants of the state trust company as necessary to support an
227-8 action taken on behalf of the state trust company.
227-9 (d) The receiver and all employees and agents acting on
227-10 behalf of the receiver are acting in an official capacity and are
227-11 protected by Section 12.106. An act of the receiver is an act of
227-12 the state trust company in liquidation. This state or a political
227-13 subdivision of this state is not liable and may not be held
227-14 accountable for any debt or obligation of a state trust company in
227-15 receivership.
227-16 (e) Section 64.072, Civil Practice and Remedies Code,
227-17 applies to the receivership of a state trust company except as
227-18 provided by this subsection. A state trust company receivership
227-19 shall be administered continuously for the length of time necessary
227-20 to complete its purposes, and a period prescribed by other law
227-21 limiting the time for the administration of a receivership or of
227-22 corporate affairs generally, including Section 64.072(d), Civil
227-23 Practice and Remedies Code, does not apply.
227-24 Sec. 186.204. CONTEST OF LIQUIDATION. (a) A state trust
227-25 company, acting through a majority of its directors, managers, or
227-26 managing participants, may intervene in an action filed by the
76R5 DWS-D 227
228-1 banking commissioner closing a state trust company to challenge the
228-2 banking commissioner's closing of the state trust company and to
228-3 enjoin the banking commissioner or other receiver from liquidating
228-4 its assets. The state trust company must file the intervention not
228-5 later than the second business day after the closing of the state
228-6 trust company, excluding legal holidays. The court may issue an ex
228-7 parte order restraining the receiver from liquidating state trust
228-8 company assets pending a hearing on the injunction. The receiver
228-9 shall comply with the restraining order but may petition the court
228-10 for permission to liquidate an asset as necessary to prevent its
228-11 loss or diminution pending the outcome of the injunction action.
228-12 (b) The court shall hear an action under Subsection (a) as
228-13 quickly as possible and shall give it priority over other business.
228-14 (c) The state trust company or receiver may appeal the
228-15 court's judgment as in other civil cases, except that the receiver
228-16 shall retain all state trust company assets pending a final
228-17 appellate court order even if the banking commissioner does not
228-18 prevail in the trial court. If the banking commissioner prevails
228-19 in the trial court, liquidation of the state trust company may
228-20 proceed unless the trial court or appellate court orders otherwise.
228-21 If liquidation is enjoined or stayed pending appeal, the trial
228-22 court retains jurisdiction to permit liquidation of an asset as
228-23 necessary to prevent its loss or diminution pending the outcome of
228-24 the appeal.
228-25 Sec. 186.205. NOTICE OF STATE TRUST COMPANY CLOSING. (a)
228-26 As soon as reasonably practicable after initiation of the
76R5 DWS-D 228
229-1 receivership proceeding, the receiver shall publish notice, in a
229-2 newspaper of general circulation in each community where the state
229-3 trust company's home office or a branch is located. The notice
229-4 must state that:
229-5 (1) the state trust company has been closed for
229-6 liquidation;
229-7 (2) clients and creditors must present their claims
229-8 for payment on or before a specific date; and
229-9 (3) all safe deposit box holders and bailors of
229-10 property left with the state trust company should remove their
229-11 property not later than a specified date.
229-12 (b) A date that the receiver selects under Subsection (a):
229-13 (1) may not be earlier than the 121st day after the
229-14 date of the notice; and
229-15 (2) must allow:
229-16 (A) the affairs of the state trust company to be
229-17 wound up as quickly as feasible; and
229-18 (B) creditors, clients, and owners of property
229-19 adequate time for presentation of claims, withdrawal of accounts,
229-20 and redemption of property.
229-21 (c) The receiver may adjust the dates under Subsection (a)
229-22 with the approval of the court and with or without republication of
229-23 notice if additional time appears needed for those activities.
229-24 (d) As soon as reasonably practicable given the state of
229-25 state trust company records and the adequacy of staffing, the
229-26 receiver shall mail to each of the state trust company's known
76R5 DWS-D 229
230-1 clients, creditors, safe deposit box holders, and bailors of
230-2 property left with the state trust company, at the mailing address
230-3 shown on the state trust company's records, an individual notice
230-4 containing the information required in a notice under Subsection
230-5 (a) and specific information pertinent to the account or property
230-6 of the addressee.
230-7 (e) The receiver may determine the form and content of
230-8 notices under this section.
230-9 Sec. 186.206. INVENTORY. As soon as reasonably practicable
230-10 given the state of state trust company records and the adequacy of
230-11 staffing, the receiver shall prepare a comprehensive inventory of
230-12 the state trust company's assets for filing with the court. The
230-13 inventory is open to inspection.
230-14 Sec. 186.207. RECEIVER'S TITLE AND PRIORITY. (a) The
230-15 receiver has the title to all the state trust company's property,
230-16 contracts, and rights of action, wherever located, beginning on the
230-17 date the state trust company is closed for liquidation.
230-18 (b) The rights of the receiver have priority over a
230-19 contractual lien or statutory landlord's lien under Chapter 54,
230-20 Property Code, judgment lien, attachment lien, or voluntary lien
230-21 that arises after the date of the closing of the state trust
230-22 company for liquidation.
230-23 (c) The filing or recording of a receivership order in a
230-24 record office of this state gives the same notice that would be
230-25 given by a deed, bill of sale, or other evidence of title filed or
230-26 recorded by the state trust company in liquidation. The recording
76R5 DWS-D 230
231-1 clerk shall index a recorded receivership order in the records to
231-2 which the order relates.
231-3 Sec. 186.208. RIGHTS FIXED. The rights and liabilities of
231-4 the state trust company in liquidation and of a client, creditor,
231-5 officer, director, manager, managing participant, employee,
231-6 shareholder, participant, participant-transferee, agent, or other
231-7 person interested in the state trust company's estate are fixed on
231-8 the date of closing of the state trust company for liquidation
231-9 except as otherwise directed by the court or as expressly provided
231-10 otherwise by this subchapter or Subchapter D.
231-11 Sec. 186.209. DEPOSITORIES. (a) The receiver may deposit
231-12 money collected on behalf of the state trust company estate in:
231-13 (1) the Texas Treasury Safekeeping Trust Company in
231-14 accordance with procedures established by the comptroller; or
231-15 (2) one or more depository institutions in this state,
231-16 the deposits of which are insured by the Federal Deposit Insurance
231-17 Corporation or its successor, if the receiver, using sound
231-18 financial judgment, determines that it would be advantageous to do
231-19 so.
231-20 (b) If receivership money deposited in an account at a state
231-21 bank exceeds the maximum insured amount, the receiver shall require
231-22 the excess deposit to be adequately secured through pledge of
231-23 securities or otherwise, without approval of the court. The
231-24 depository bank may secure the deposits of the state trust company
231-25 in liquidation on behalf of the receiver, notwithstanding any other
231-26 provision of this subtitle.
76R5 DWS-D 231
232-1 Sec. 186.210. PENDING LAWSUIT. (a) A judgment or order of
232-2 a court of this state or of another jurisdiction in an action
232-3 pending by or against the state trust company, rendered after the
232-4 date the state trust company was closed for liquidation, is not
232-5 binding on the receiver unless the receiver was made a party to the
232-6 suit.
232-7 (b) Before the first anniversary of the date the state trust
232-8 company was closed for liquidation, the receiver may not be
232-9 required to plead to any suit pending against the state trust
232-10 company in a court in this state on the date the state trust
232-11 company was closed for liquidation and in which the receiver is a
232-12 proper plaintiff or defendant.
232-13 (c) Sections 64.052, 64.053, and 64.056, Civil Practice and
232-14 Remedies Code, do not apply to a state trust company estate being
232-15 administered under this subchapter and Subchapter D.
232-16 Sec. 186.211. NEW LAWSUIT. (a) Except as otherwise
232-17 provided by this section, the court in which a receivership
232-18 proceeding is pending under this subchapter has exclusive
232-19 jurisdiction to hear and determine all actions or proceedings
232-20 instituted by or against the state trust company or receiver after
232-21 the receivership proceeding begins.
232-22 (b) The receiver may file in any jurisdiction an ancillary
232-23 suit that may be helpful to obtain jurisdiction or venue over a
232-24 person or property.
232-25 (c) Exclusive venue lies in Travis County for an action or
232-26 proceeding instituted against the receiver or the receiver's
76R5 DWS-D 232
233-1 employee, including an employee of the department, that asserts
233-2 personal liability on the part of the receiver or employee.
233-3 Sec. 186.212. OBTAINING RECORD OR OTHER PROPERTY IN
233-4 POSSESSION OF OTHER PERSON. (a) Each state trust company
233-5 affiliate, officer, director, manager, managing participant,
233-6 employee, shareholder, participant, participant-transferee,
233-7 trustee, agent, servant, employee, attorney, attorney-in-fact, or
233-8 correspondent shall immediately deliver to the receiver, without
233-9 cost to the receiver, any record or other property of the state
233-10 trust company or that relates to the business of the state trust
233-11 company.
233-12 (b) If by contract or otherwise a record or other property
233-13 that can be copied is the property of a person listed in Subsection
233-14 (a), it shall be copied and the copy shall be delivered to the
233-15 receiver. The owner shall retain the original until notification
233-16 by the receiver that it is no longer required in the administration
233-17 of the state trust company's estate or until another time the
233-18 court, after notice and hearing, directs. The copy is considered
233-19 to be a record of the state trust company in liquidation under
233-20 Section 186.225.
233-21 Sec. 186.213. INJUNCTION IN AID OF LIQUIDATION. (a) On
233-22 application by the receiver, the court with or without notice may
233-23 issue an injunction:
233-24 (1) restraining each state trust company officer,
233-25 director, manager, managing participant, employee, shareholder,
233-26 participant, participant-transferee, trustee, agent, servant,
76R5 DWS-D 233
234-1 employee, attorney, attorney-in-fact, accountant or accounting
234-2 firm, correspondent, or other person from transacting the state
234-3 trust company's business or wasting or disposing of its property;
234-4 or
234-5 (2) requiring the delivery of the state trust
234-6 company's property or assets to the receiver subject to the further
234-7 order of the court.
234-8 (b) At any time during a proceeding under this subchapter,
234-9 the court may issue another injunction or order considered
234-10 necessary or desirable to prevent:
234-11 (1) interference with the receiver or the proceeding;
234-12 (2) waste of the assets of the state trust company;
234-13 (3) the beginning or prosecution of an action;
234-14 (4) the obtaining of a preference, judgment,
234-15 attachment, garnishment, or other lien; or
234-16 (5) the making of a levy against the state trust
234-17 company or against its assets.
234-18 Sec. 186.214. SUBPOENA. (a) The receiver may request the
234-19 court ex parte to issue a subpoena to compel the attendance and
234-20 testimony of a witness before the receiver and the production of a
234-21 record relating to the receivership estate. For that purpose the
234-22 receiver or the receiver's designated representative may administer
234-23 an oath or affirmation, examine a witness, or receive evidence.
234-24 The court has statewide subpoena power and may compel attendance
234-25 and production of a record before the receiver at the state trust
234-26 company, the office of the receiver, or another location.
76R5 DWS-D 234
235-1 (b) A person served with a subpoena under this section may
235-2 file a motion with the court for a protective order as provided by
235-3 Rule 166b, Texas Rules of Civil Procedure. In a case of
235-4 disobedience of a subpoena or the contumacy of a witness appearing
235-5 before the receiver or the receiver's designated representative,
235-6 the receiver may request and the court may issue an order requiring
235-7 the person subpoenaed to obey the subpoena, give evidence, or
235-8 produce a record relating to the matter in question.
235-9 (c) A witness who is required to appear before the receiver
235-10 is entitled to receive:
235-11 (1) reimbursement for mileage, in the amount for
235-12 travel by a state employee, for traveling to or returning from a
235-13 proceeding that is more than 25 miles from the witness's residence;
235-14 and
235-15 (2) a fee for each day or part of a day the witness is
235-16 necessarily present as a witness in an amount set by the receiver
235-17 with the approval of the court of not less than $10 a day and not
235-18 more than an amount equal to the per diem travel allowance of a
235-19 state employee.
235-20 (d) A payment of fees under Subsection (c) is an
235-21 administrative expense.
235-22 (e) The receiver may serve the subpoena or have it served by
235-23 the receiver's authorized agent, a sheriff, or a constable. The
235-24 sheriff's or constable's fee for serving a subpoena must be the
235-25 same as the fee paid the sheriff or constable for similar services.
235-26 (f) A subpoena issued under this section to a financial
76R5 DWS-D 235
236-1 institution is not subject to Section 30.007, Civil Practice and
236-2 Remedies Code.
236-3 (g) On certification by the receiver under official seal, a
236-4 record produced or testimony taken as provided by this section and
236-5 held by the receiver is admissible in evidence in any case without
236-6 proof of its correctness or other proof, except the certificate of
236-7 the receiver that the record or testimony was received from the
236-8 person producing the record or testifying. The certified record or
236-9 a certified copy of the record is prima facie evidence of the facts
236-10 it contains. This section does not limit another provision of this
236-11 subchapter, Subchapter D, or another law that provides for the
236-12 admission of evidence or its evidentiary value.
236-13 Sec. 186.215. EXECUTORY CONTRACT; ORAL AGREEMENT. (a) Not
236-14 later than six months after the date the receivership proceeding
236-15 begins, the receiver may terminate any executory contract to which
236-16 the state trust company is a party or any obligation of the state
236-17 trust company as a lessee. A lessor who receives notice of the
236-18 receiver's election to terminate the lease before the 60th day
236-19 before the termination date is not entitled to rent or damages for
236-20 termination, other than rent accrued to the date of termination.
236-21 (b) An agreement that tends to diminish or defeat the
236-22 interest of the estate in a state trust company asset is not valid
236-23 against the receiver unless the agreement:
236-24 (1) is in writing;
236-25 (2) was executed by the state trust company and any
236-26 person claiming an adverse interest under the agreement, including
76R5 DWS-D 236
237-1 the obligor, when the state trust company acquired the asset;
237-2 (3) was approved by the board of the state trust
237-3 company or its designated committee, and the approval is reflected
237-4 in the minutes of the board or committee; and
237-5 (4) has been continuously since its execution an
237-6 official record of the state trust company.
237-7 Sec. 186.216. PREFERENCES. (a) A transfer of or lien on
237-8 the property or assets of a state trust company is voidable by the
237-9 receiver if the transfer or lien:
237-10 (1) was made or created after:
237-11 (A) four months before the date the state trust
237-12 company is closed for liquidation; or
237-13 (B) one year before the date the state trust
237-14 company is closed for liquidation if the receiving creditor was at
237-15 the time an affiliate, officer, director, manager, managing
237-16 participant, principal shareholder, or participant of the state
237-17 trust company or an affiliate of the trust company;
237-18 (2) was made or created with the intent of giving to a
237-19 creditor or depositor, or enabling a creditor or depositor to
237-20 obtain, a greater percentage of the claimant's debt than is given
237-21 or obtained by another claimant of the same class; and
237-22 (3) is accepted by a creditor or depositor having
237-23 reasonable cause to believe that a preference will occur.
237-24 (b) Each state trust company officer, director, manager,
237-25 managing participant, employee, shareholder, participant,
237-26 participant-transferee, trustee, agent, servant, employee,
76R5 DWS-D 237
238-1 attorney-in-fact, or correspondent, or other person acting on
238-2 behalf of the state trust company, who has participated in
238-3 implementing a voidable transfer or lien, and each person receiving
238-4 property or the benefit of property of the state trust company as a
238-5 result of the voidable transfer or lien, is personally liable for
238-6 the property or benefit received and shall account to the receiver
238-7 for the benefit of the clients and creditors of the state trust
238-8 company.
238-9 (c) The receiver may avoid a transfer of or lien on the
238-10 property or assets of a state trust company that a client,
238-11 creditor, shareholder, participant, or participant-transferee of
238-12 the state trust company could have avoided and may recover the
238-13 property transferred or its value from the person to whom it was
238-14 transferred or from a person who has received it unless the
238-15 transferee or recipient was a bona fide holder for value before the
238-16 date the state trust company was closed for liquidation.
238-17 Sec. 186.217. EMPLOYEES OF RECEIVER. The receiver may
238-18 employ agents, legal counsel, accountants, appraisers, consultants,
238-19 and other personnel the receiver considers necessary to assist in
238-20 the performance of the receiver's duties. The receiver may use
238-21 personnel of the department if the receiver considers the use to be
238-22 advantageous or desirable. The expense of employing those persons
238-23 is an administrative expense.
238-24 Sec. 186.218. DISPOSAL OF PROPERTY; SETTLING OF CLAIM.
238-25 (a) In liquidating a state trust company, the receiver on order of
238-26 the court entered with or without hearing may:
76R5 DWS-D 238
239-1 (1) sell all or part of the property of the state
239-2 trust company;
239-3 (2) borrow money and pledge all or part of the assets
239-4 of the state trust company to secure the debt created, except that
239-5 the receiver may not be held personally liable to repay borrowed
239-6 funds;
239-7 (3) compromise or compound a doubtful or uncollectible
239-8 debt or claim owed by or owing to the state trust company; and
239-9 (4) enter another agreement on behalf of the state
239-10 trust company that the receiver considers necessary or proper to
239-11 the management, conservation, or liquidation of its assets.
239-12 (b) If the amount of a debt or claim owed by or owing to the
239-13 state trust company or the value of an item of property of the
239-14 trust company does not exceed $20,000, excluding interest, the
239-15 receiver may compromise or compound the debt or claim or sell the
239-16 property on terms the receiver considers to be in the best interest
239-17 of the state trust company estate without obtaining the approval of
239-18 the court.
239-19 (c) With the approval of the court, the receiver may sell or
239-20 offer or agree to sell an asset of the state trust company, other
239-21 than a fiduciary asset, to a depositor or creditor of the state
239-22 trust company. Payment may be in whole or in part out of
239-23 distributions payable to the purchasing creditor or depositor on
239-24 account of an approved claim against the state trust company's
239-25 estate. On application by the receiver, the court may designate
239-26 one or more representatives to act for certain clients or creditors
76R5 DWS-D 239
240-1 as a class in the purchase, holding, and management of assets
240-2 purchased by the class under this section, and the receiver may
240-3 with the approval of the court advance the expenses of the
240-4 appointed representative against the security of the claims of the
240-5 class.
240-6 Sec. 186.219. COURT ORDER; NOTICE AND HEARING. If the court
240-7 requires notice and hearing before entering an order, the court
240-8 shall set the time and place of the hearing and prescribe whether
240-9 the notice is to be given by service on specific parties, by
240-10 publication, or by a combination of those methods. The court may
240-11 not enter an order requested by a person other than the receiver
240-12 without notice to the receiver and an opportunity for the receiver
240-13 to be heard.
240-14 Sec. 186.220. RECEIVER'S REPORTS; EXPENSES. (a) The
240-15 receiver shall file with the court:
240-16 (1) a quarterly report showing the operation,
240-17 receipts, expenditures, and general condition of the state trust
240-18 company in liquidation; and
240-19 (2) a final report regarding the liquidated state
240-20 trust company showing all receipts and expenditures and giving a
240-21 full explanation and a statement of the disposition of all assets
240-22 of the state trust company.
240-23 (b) The receiver shall pay all administrative expenses out
240-24 of money or other assets of the state trust company. Each quarter
240-25 the receiver shall swear to and submit to the court an itemized
240-26 report of those expenses. The court shall approve the report
76R5 DWS-D 240
241-1 unless an objection is filed before the 11th day after the date it
241-2 is submitted. An objection may be made only by a party in interest
241-3 and must specify each item objected to and the ground for the
241-4 objection. The court shall set the objection for hearing and
241-5 notify the parties of this action. The objecting party has the
241-6 burden of proof to show that the item objected to is improper,
241-7 unnecessary, or excessive.
241-8 (c) The court may prescribe whether the notice of the
241-9 receiver's report is to be given by service on specific parties, by
241-10 publication, or by a combination of those methods.
241-11 Sec. 186.221. COURT-ORDERED AUDIT. (a) The court may order
241-12 an audit of the books and records of the receiver that relate to
241-13 the receivership. A report of an audit ordered under this section
241-14 shall be filed with the court. The receiver shall make the books
241-15 and records relating to the receivership available to the auditor
241-16 as required by the court order.
241-17 (b) The receiver shall pay the expenses of an audit ordered
241-18 under this section as an administrative expense.
241-19 Sec. 186.222. SAFE DEPOSITS AND OTHER BAILMENTS. (a) A
241-20 contract between the state trust company and another person for
241-21 bailment, of deposit for hire, or for the lease of a safe, vault,
241-22 or box ceases on the date specified for removal of property in the
241-23 notices that were published and mailed or a later date approved by
241-24 the receiver or the court. A person who has paid rental or storage
241-25 charges for a period extending beyond the date designated for
241-26 removal of property has a claim against the state trust company
76R5 DWS-D 241
242-1 estate for a refund of the unearned amount paid.
242-2 (b) If the property is not removed by the date the contract
242-3 ceases, the receiver shall inventory the property. In making the
242-4 inventory, the receiver may open a safe, vault, or box, or any
242-5 package, parcel, or receptacle, in the custody or possession of the
242-6 receiver. The property shall be marked to identify, to the extent
242-7 possible, its owner or the person who left it with the state trust
242-8 company. After all property belonging to others that is in the
242-9 receiver's custody and control has been inventoried, the receiver
242-10 shall compile a master list that is divided for each office of the
242-11 state trust company that received property that remains unclaimed.
242-12 The receiver shall publish, in a newspaper of general circulation
242-13 in each community in which the state trust company had an office
242-14 that received property that remains unclaimed, the list and the
242-15 names of the owners of the property as shown in the state trust
242-16 company's records. The published notice shall specify a procedure
242-17 for claiming the property unless the court, on application of the
242-18 receiver, approves an alternate procedure.
242-19 Sec. 186.223. FIDUCIARY ACTIVITIES. (a) As soon after
242-20 beginning the receivership proceeding as is practicable, the
242-21 receiver shall:
242-22 (1) terminate all fiduciary positions the state trust
242-23 company holds;
242-24 (2) surrender all property held by the state trust
242-25 company as a fiduciary; and
242-26 (3) settle the state trust company's fiduciary
76R5 DWS-D 242
243-1 accounts.
243-2 (b) The receiver shall release all segregated and
243-3 identifiable fiduciary property held by the state trust company to
243-4 successor fiduciaries.
243-5 (c) With the approval of the court, the receiver may sell
243-6 the administration of all or substantially all remaining fiduciary
243-7 accounts to one or more successor fiduciaries on terms that appear
243-8 to be in the best interest of the state trust company's estate and
243-9 the persons interested in the fiduciary accounts.
243-10 (d) If commingled fiduciary money held by the state trust
243-11 company as trustee is insufficient to satisfy all fiduciary claims
243-12 to the commingled money, the receiver shall distribute commingled
243-13 money pro rata to all fiduciary claimants of commingled money based
243-14 on their proportionate interests after payment of administrative
243-15 expenses related solely to the fiduciary claims. The fictional
243-16 tracing rule does not apply.
243-17 (e) The receiver may require a fiduciary claimant to file a
243-18 proof of claim if the records of the state trust company are
243-19 insufficient to identify the claimant's interest.
243-20 Sec. 186.224. DISPOSITION AND MAINTENANCE OF RECORDS.
243-21 (a) On approval by the court, the receiver may dispose of records
243-22 of the state trust company in liquidation that are obsolete and
243-23 unnecessary to the continued administration of the receivership
243-24 proceeding.
243-25 (b) The receiver may devise a method for the effective,
243-26 efficient, and economical maintenance of the records of the state
76R5 DWS-D 243
244-1 trust company and of the receiver's office. The methods may
244-2 include maintaining those records on any medium approved by the
244-3 records management division of the Texas State Library.
244-4 (c) To maintain the records of the liquidated state trust
244-5 company after the closing of the receivership proceeding, the
244-6 receiver may reserve assets of an estate, deposit them in an
244-7 account, and use them for maintenance, storage, and disposal of
244-8 records in closed receivership estates.
244-9 (d) Records of a liquidated state trust company are not
244-10 government records for any purpose, including Chapter 552,
244-11 Government Code, but shall be preserved and disposed of as if they
244-12 were records of the department under Chapter 441, Government Code.
244-13 Those records are confidential as provided by:
244-14 (1) Subchapter D, Chapter 181;
244-15 (2) rules adopted under this subtitle; and
244-16 (3) Section 30.007, Civil Practice and Remedies Code.
244-17 Sec. 186.225. RECORDS ADMITTED. (a) A record of a state
244-18 trust company in liquidation obtained by the receiver and held in
244-19 the course of the receivership proceeding or a certified copy of
244-20 the record under the official seal of the receiver is admissible in
244-21 evidence in all cases without proof of correctness or other proof,
244-22 except the certificate of the receiver that the record was received
244-23 from the custody of the state trust company or found among its
244-24 effects.
244-25 (b) The receiver may certify the correctness of a record of
244-26 the receiver's office, including a record described by Subsection
76R5 DWS-D 244
245-1 (a), and may certify any fact contained in the record. The record
245-2 is admissible in evidence in all cases in which the original would
245-3 be evidence.
245-4 (c) The original record or a certified copy of the record is
245-5 prima facie evidence of the facts it contains.
245-6 (d) A copy of an original record or another record that is
245-7 maintained on a medium approved by the records management division
245-8 of the Texas State Library, within the scope of this section, and
245-9 produced by the receiver or the receiver's authorized
245-10 representative under this section:
245-11 (1) has the same effect as the original record; and
245-12 (2) may be used the same as the original record in a
245-13 judicial or administrative proceeding in this state.
245-14 Sec. 186.226. RESUMPTION OF BUSINESS. (a) A state trust
245-15 company closed under Section 186.201 may not be reopened without
245-16 the approval of the banking commissioner unless a contest of
245-17 liquidation under Section 186.204 is finally resolved adversely to
245-18 the banking commissioner and the court authorizes its reopening.
245-19 (b) The banking commissioner may place temporary limits on
245-20 the right of withdrawals by, or payments to, individual clients and
245-21 creditors of a state trust company reopened under this section, in
245-22 accordance with applicable law.
245-23 (c) As a depositor or creditor of a reopened state trust
245-24 company, this state or a political subdivision of this state may
245-25 agree to temporary limits that the banking commissioner places on
245-26 payments or withdrawals.
76R5 DWS-D 245
246-1 Sec. 186.227. ASSETS DISCOVERED AFTER CLOSE OF RECEIVERSHIP.
246-2 (a) The banking commissioner shall report to the court discovery
246-3 of an asset having value that:
246-4 (1) the banking commissioner discovers after the
246-5 receivership was closed by final order of the court; and
246-6 (2) was abandoned as worthless or unknown during
246-7 receivership.
246-8 (b) The court may reopen the receivership proceeding for
246-9 continued liquidation if the value of the after-discovered assets
246-10 justifies the reopening.
246-11 (c) If the banking commissioner suspects that the
246-12 information concerning after-disclosed assets may have been
246-13 intentionally or fraudulently concealed, the banking commissioner
246-14 shall notify appropriate civil and criminal authorities to
246-15 determine any applicable penalties.
246-16 (Sections 186.228-186.300 reserved for expansion
246-17 SUBCHAPTER D. CLAIMS AGAINST RECEIVERSHIP ESTATE
246-18 Sec. 186.301. FILING CLAIM. (a) This section applies only
246-19 to a claim by a person, other than a shareholder, participant, or
246-20 participant-transferee acting in that capacity, who has a claim
246-21 against a state trust company in liquidation, including a claimant
246-22 with a secured claim or a claimant under a fiduciary relationship
246-23 that has been ordered by the receiver to file a claim pursuant to
246-24 Section 186.223.
246-25 (b) To receive payment of a claim, the person must present
246-26 proof of the claim to the receiver:
76R5 DWS-D 246
247-1 (1) at a place specified by the receiver; and
247-2 (2) within the period specified by the receiver under
247-3 Section 186.205.
247-4 (c) Receipt of the required proof of claim by the receiver
247-5 is a condition precedent to the payment of the claim.
247-6 (d) A claim that is not filed within the period specified by
247-7 the receiver may not participate in a distribution of the assets by
247-8 the receiver, except that, subject to court approval, the receiver
247-9 may accept a claim filed not later than the 180th day after the
247-10 date notice of the claimant's right to file a proof of claim is
247-11 mailed to the claimant.
247-12 (e) A claim accepted under this section and approved is
247-13 subordinate to an approved claim of a general creditor.
247-14 (f) Interest does not accrue on a claim after the date the
247-15 state trust company is closed for liquidation.
247-16 Sec. 186.302. PROOF OF CLAIM. (a) A proof of claim must be
247-17 in writing, be signed by the claimant, and include:
247-18 (1) a statement of the claim;
247-19 (2) a description of the consideration for the claim;
247-20 (3) a statement of whether collateral is held or a
247-21 security interest is asserted against the claim and, if so, a
247-22 description of the collateral or security interest;
247-23 (4) a statement of any right of priority of payment
247-24 for the claim or other specific right asserted by the claimant;
247-25 (5) a statement of whether a payment has been made on
247-26 the claim and, if so, the amount and source of the payment, to the
76R5 DWS-D 247
248-1 extent known by the claimant;
248-2 (6) a statement that the amount claimed is justly owed
248-3 by the state trust company in liquidation to the claimant; and
248-4 (7) any other matter that is required by the court.
248-5 (b) The receiver may designate the form of the proof of
248-6 claim. A proof of claim must be filed under oath unless the oath
248-7 is waived by the receiver. A proof of claim filed with the
248-8 receiver is considered filed in an official proceeding for purposes
248-9 of Chapter 37, Penal Code.
248-10 (c) If a claim is founded on a written instrument, the
248-11 original instrument, unless lost or destroyed, must be filed with
248-12 the proof of claim. After the instrument is filed, the receiver
248-13 may permit the claimant to substitute a copy of the instrument
248-14 until the final disposition of the claim. If the instrument is
248-15 lost or destroyed, a statement of that fact and of the
248-16 circumstances of the loss or destruction must be filed under oath
248-17 with the claim.
248-18 Sec. 186.303. JUDGMENT AS PROOF OF CLAIM. (a) A judgment
248-19 entered against a state trust company in liquidation before the
248-20 date the state trust company was closed for liquidation may not be
248-21 given higher priority than a claim of an unsecured creditor unless
248-22 the judgment creditor in a proof of claim proves the allegations
248-23 supporting the judgment to the receiver's satisfaction.
248-24 (b) A judgment against the state trust company taken by
248-25 default or by collusion before the date the state trust company was
248-26 closed for liquidation may not be considered as conclusive evidence
76R5 DWS-D 248
249-1 of the liability of the state trust company to the judgment
249-2 creditor or of the amount of damages to which the judgment creditor
249-3 is entitled.
249-4 (c) A judgment against the state trust company entered after
249-5 the date the state trust company was closed for liquidation may not
249-6 be considered as evidence of liability or of the amount of damages.
249-7 Sec. 186.304. SECURED CLAIM. (a) The owner of a secured
249-8 deposit may file a claim as a creditor against a state trust
249-9 company in liquidation. The value of security shall be determined
249-10 under supervision of the court by converting the security into
249-11 money.
249-12 (b) The owner of a secured claim against a state trust
249-13 company in liquidation may:
249-14 (1) surrender the security and file a claim as a
249-15 general creditor; or
249-16 (2) apply the security to the claim and discharge the
249-17 claim.
249-18 (c) If the owner applies the security and discharges the
249-19 claim under Subsection (b), any deficiency shall be treated as a
249-20 claim against the general assets of the state trust company on the
249-21 same basis as a claim of an unsecured creditor. The amount of the
249-22 deficiency shall be determined as provided by Section 186.305,
249-23 except that if the amount of the deficiency has been adjudicated by
249-24 a court in a proceeding in which the receiver has had notice and
249-25 an opportunity to be heard, the court's decision is conclusive as
249-26 to the amount.
76R5 DWS-D 249
250-1 (d) The value of security held by a secured creditor shall
250-2 be determined under supervision of the court by:
250-3 (1) converting the security into money according to
250-4 the terms of the agreement under which the security was delivered
250-5 to the creditor; or
250-6 (2) agreement, arbitration, compromise, or litigation
250-7 between the creditor and the receiver.
250-8 Sec. 186.305. UNLIQUIDATED OR UNDETERMINED CLAIM. (a) A
250-9 claim based on an unliquidated or undetermined demand shall be
250-10 filed within the period provided by Subchapter C for the filing of
250-11 a claim. The claim may not share in any distribution to claimants
250-12 until the claim is definitely liquidated, determined, and allowed.
250-13 After the claim is liquidated, determined, and allowed, the claim
250-14 shares ratably with the claims of the same class in all subsequent
250-15 distributions.
250-16 (b) For the purposes of this section, a demand is considered
250-17 unliquidated or undetermined if the right of action on the demand
250-18 accrued while a state trust company was closed for liquidation and
250-19 the liability on the demand has not been determined or the amount
250-20 of the demand has not been liquidated.
250-21 (c) If the receiver in all other respects is in a position
250-22 to close the receivership proceeding, the proposed closing is
250-23 sufficient grounds for the rejection of any remaining claim based
250-24 on an unliquidated or undetermined demand. The receiver shall
250-25 notify the claimant of the intention to close the proceeding. If
250-26 the demand is not liquidated or determined before the 61st day
76R5 DWS-D 250
251-1 after the date of the notice, the receiver may reject the claim.
251-2 Sec. 186.306. SET-OFF. (a) Mutual credits and mutual debts
251-3 shall be set off and only the balance allowed or paid, except that
251-4 a set-off may not be allowed in favor of a person if:
251-5 (1) the obligation of a state trust company to the
251-6 person on the date the state trust company was closed for
251-7 liquidation did not entitle the person to share as a claimant in
251-8 the assets of the state trust company;
251-9 (2) the obligation of the state trust company to the
251-10 person was purchased by or transferred to the person after the date
251-11 the state trust company was closed for liquidation or for the
251-12 purpose of increasing set-off rights; or
251-13 (3) the obligation of the person or the state trust
251-14 company is as a trustee or fiduciary.
251-15 (b) On request, the receiver shall provide a person with an
251-16 accounting statement identifying each debt that is due and payable.
251-17 A person who owes a state trust company an amount that is due and
251-18 payable against which the person asserts set-off of mutual credits
251-19 that may become due and payable from the state trust company in the
251-20 future shall promptly pay to the receiver the amount due and
251-21 payable. The receiver shall promptly refund, to the extent of the
251-22 person's prior payment, mutual credits that become due and payable
251-23 to the person by the state trust company in liquidation.
251-24 Sec. 186.307. ACTION ON CLAIM. (a) Not later than six
251-25 months after the last day permitted for the filing of claims or a
251-26 later date allowed by the court, the receiver shall accept or
76R5 DWS-D 251
252-1 reject in whole or in part each claim filed against the state trust
252-2 company in liquidation, except for an unliquidated or undetermined
252-3 claim governed by Section 186.305. The receiver shall reject a
252-4 claim if the receiver doubts its validity.
252-5 (b) The receiver shall mail written notice to each claimant,
252-6 specifying the disposition of the person's claim. If a claim is
252-7 rejected in whole or in part, the receiver in the notice shall
252-8 specify the basis for rejection and advise the claimant of the
252-9 procedures and deadline for appeal.
252-10 (c) The receiver shall send each claimant a summary schedule
252-11 of approved and rejected claims by priority class and notify the
252-12 claimant:
252-13 (1) that a copy of a schedule of claims disposition
252-14 including only the name of the claimant, the amount of the claim
252-15 allowed, and the amount of the claim rejected is available on
252-16 request; and
252-17 (2) of the procedure and deadline for filing an
252-18 objection to an approved claim.
252-19 (d) The receiver or an agent or employee of the receiver,
252-20 including an employee of the department, is not liable, and a cause
252-21 of action may not be brought against the person, for an act or
252-22 omission of the person relating to the adjustment, negotiation, or
252-23 settlement of a claim.
252-24 Sec. 186.308. OBJECTION TO APPROVED CLAIM. The receiver
252-25 with court approval shall set a deadline for an objection to an
252-26 approved claim. On or before that date a depositor, creditor,
76R5 DWS-D 252
253-1 other claimant, shareholder, participant, or participant-transferee
253-2 of the state trust company may file an objection to an approved
253-3 claim. The objection shall be heard and determined by the court.
253-4 If the objection is sustained, the court shall direct an
253-5 appropriate modification of the schedule of claims.
253-6 Sec. 186.309. APPEAL OF REJECTED CLAIM. (a) The receiver's
253-7 rejection of a claim may be appealed in the court in which the
253-8 receivership proceeding is pending. The appeal must be brought
253-9 within three months after the date of service of notice of the
253-10 rejection.
253-11 (b) If the appeal is timely brought, review is de novo as if
253-12 it were an action originally filed in the court, and is subject to
253-13 the rules of procedure and appeal applicable to civil cases. An
253-14 action to appeal rejection of a claim by the receiver is separate
253-15 from the receivership proceeding, and may not be initiated by a
253-16 claimant intervening in the receivership proceeding.
253-17 (c) If the action is not timely brought, the action of the
253-18 receiver is final and not subject to review.
253-19 Sec. 186.310. PAYMENT OF CLAIM. (a) Except as expressly
253-20 provided otherwise by this subchapter or Subchapter C, without the
253-21 approval of the court the receiver may not make a payment on a
253-22 claim, other than a claim for an obligation incurred by the
253-23 receiver for administrative expenses.
253-24 (b) The banking commissioner shall deposit in one or more
253-25 banks located in this state all money available for the benefit of
253-26 nonclaiming depositors and creditors. The banking commissioner
76R5 DWS-D 253
254-1 shall pay the depositors or creditors on demand any amount held for
254-2 their benefit.
254-3 (c) The receiver may periodically make partial distribution
254-4 to the holders of approved claims if:
254-5 (1) all objections have been heard and decided as
254-6 provided by Section 186.308;
254-7 (2) the time for filing appeals has expired as
254-8 provided by Section 186.309;
254-9 (3) money has been made available to provide for the
254-10 payment of all nonclaiming depositors and creditors in accordance
254-11 with Subsection (b); and
254-12 (4) a proper reserve is established for the pro rata
254-13 payment of:
254-14 (A) rejected claims that have been appealed; and
254-15 (B) any claims based on unliquidated or
254-16 undetermined demands governed by Section 186.305.
254-17 (d) As soon as practicable after the determination of all
254-18 objections, appeals, and claims based on previously unliquidated or
254-19 undetermined demands governed by Section 186.305 and money has been
254-20 made available to provide for the payment of all nonclaiming
254-21 depositors and creditors in accordance with Subsection (b), the
254-22 receiver shall distribute the assets of the state trust company in
254-23 satisfaction of approved claims other than claims asserted in a
254-24 person's capacity as a shareholder, participant, or
254-25 participant-transferee.
254-26 Sec. 186.311. PRIORITY OF CLAIMS AGAINST INSURED STATE TRUST
76R5 DWS-D 254
255-1 COMPANY. The distribution of assets from the estate of a state
255-2 trust company the trust deposits of which are insured by the
255-3 Federal Deposit Insurance Corporation or its successor shall be
255-4 made in the same order of priority as assets would be distributed
255-5 on liquidation or purchase of assets and assumption of liabilities
255-6 of a national bank under federal law.
255-7 Sec. 186.312. PRIORITY OF CLAIMS AGAINST UNINSURED STATE
255-8 TRUST COMPANY. (a) The priority of distribution of assets from
255-9 the estate of a state trust company the trust deposits of which are
255-10 not insured by the Federal Deposit Insurance Corporation or its
255-11 successor shall be in accordance with the order of each class as
255-12 provided by this section. Every claim in each class shall be paid
255-13 in full, or adequate money shall be retained for that payment,
255-14 before a member of the next class may receive any payment. A
255-15 subclass may not be established within a class, except for a
255-16 preference or subordination within a class expressly created by
255-17 contract or other instrument or in the articles of association.
255-18 (b) Assets shall be distributed in the following order of
255-19 priority:
255-20 (1) administrative expenses;
255-21 (2) approved claims of secured trust deposits to the
255-22 extent of the value of the security as provided by Section
255-23 186.304(a);
255-24 (3) approved claims of secured creditors to the extent
255-25 of the value of the security as provided by Section 186.304(b);
255-26 (4) approved claims by beneficiaries of insufficient
76R5 DWS-D 255
256-1 commingled fiduciary money or missing fiduciary property and
256-2 approved claims of clients of the state trust company;
256-3 (5) other approved claims of general creditors not
256-4 falling within a higher priority under this section, including
256-5 unsecured claims for taxes and debts due the federal government or
256-6 a state or local government;
256-7 (6) approved claims of a type described by
256-8 Subdivisions (1)-(5) that were not filed within the period
256-9 prescribed by this subchapter; and
256-10 (7) claims of capital note or debenture holders or
256-11 holders of similar obligations and proprietary claims of
256-12 shareholders, participants, participant-transferees, or other
256-13 owners according to the terms established by issue, class, or
256-14 series.
256-15 (c) Subject to Sections 186.310 and 186.313, the banking
256-16 commissioner may make a ratable distribution to approved claimants
256-17 within a particular class or priority if:
256-18 (1) all timely filed and approved claims of a higher
256-19 priority have been satisfied; and
256-20 (2) there is insufficient money to fully satisfy all
256-21 of those claims, after reserving money for administrative expenses
256-22 as necessary.
256-23 Sec. 186.313. EXCESS ASSETS. (a) If state trust company
256-24 assets remain after the receiver has provided for unclaimed
256-25 distributions and all of the liabilities of the state trust company
256-26 in liquidation, the receiver shall distribute the remaining assets
76R5 DWS-D 256
257-1 to the shareholders or participants of the state trust company.
257-2 (b) If the remaining assets are not liquid or if they
257-3 otherwise require continuing administration, the receiver may call
257-4 a meeting of the shareholders or participants and
257-5 participant-transferees of the state trust company. The receiver
257-6 shall give notice of the meeting:
257-7 (1) in a newspaper of general circulation in the
257-8 county where the home office of the state trust company was
257-9 located; and
257-10 (2) by written notice to the shareholders or
257-11 participants and participant-transferees of record at their last
257-12 known addresses.
257-13 (c) At the meeting, the shareholders or participants shall
257-14 appoint one or more agents to take over the affairs to continue the
257-15 liquidation for the benefit of the shareholders or participants and
257-16 participant-transferees. Voting privileges are governed by the
257-17 state trust company's bylaws and articles of association. If a
257-18 quorum cannot be obtained at the meeting, the banking commissioner
257-19 shall appoint an agent. An agent appointed under this subsection
257-20 shall execute and file with the court a bond approved by the court,
257-21 conditioned on the faithful performance of all the duties of the
257-22 trust.
257-23 (d) Under order of the court the receiver shall transfer and
257-24 deliver to one or more agents for continued liquidation under the
257-25 court's supervision all assets of the state trust company remaining
257-26 in the receiver's hands. The court shall discharge the receiver
76R5 DWS-D 257
258-1 from further liability to the state trust company and its clients,
258-2 creditors, shareholders, participants, and participant-transferees.
258-3 (e) The state trust company may not resume business and the
258-4 charter of the state trust company is void on the date the court
258-5 issues the order directing the receiver to transfer and deliver the
258-6 remaining assets of the state trust company to one or more agents.
258-7 Sec. 186.314. UNCLAIMED PROPERTY. After completion of the
258-8 liquidation, any unclaimed property remaining with the receiver
258-9 shall be delivered to the comptroller as provided by Chapter 74,
258-10 Property Code.
258-11 CHAPTER 199. MISCELLANEOUS PROVISIONS
258-12 Sec. 199.001. SLANDER OR LIBEL OF STATE TRUST COMPANY.
258-13 (a) A person commits an offense if the person:
258-14 (1) knowingly makes, circulates, or transmits to
258-15 another person an untrue statement that is derogatory to the
258-16 financial condition of a state trust company located in this state;
258-17 or
258-18 (2) intentionally, to injure the state trust company,
258-19 counsels, aids, procures, or induces another person to knowingly
258-20 make, circulate, or transmit to another person an untrue statement
258-21 that is derogatory to the financial condition of a state trust
258-22 company located in this state.
258-23 (b) An offense under this section is a state jail felony.
258-24 Sec. 199.002. AUTHORITY TO ACT AS NOTARY PUBLIC. A notary
258-25 public is not disqualified from taking an acknowledgment or proof
258-26 of a written instrument as provided by Section 406.016, Government
76R5 DWS-D 258
259-1 Code, solely because of the person's ownership of stock or
259-2 participation interest in or employment by a state trust company
259-3 that is an interested party in the underlying transaction.
259-4 Sec. 199.003. SUCCESSION OF TRUST POWERS. (a) If, at the
259-5 time of a merger, reorganization, conversion, or sale of
259-6 substantially all of its assets under Chapter 182 or other
259-7 applicable law, a reorganizing or selling state trust company is
259-8 acting as trustee, guardian, executor, or administrator, or in
259-9 another fiduciary capacity, the successor entity with fiduciary
259-10 powers may, without the necessity of judicial action or action by
259-11 the creator of the trust, continue the office, trust, or fiduciary
259-12 relationship.
259-13 (b) The successor entity may perform all the duties and
259-14 exercise all the powers connected with or incidental to the
259-15 fiduciary relationship in the same manner as if the successor
259-16 entity had been originally designated as the fiduciary.
259-17 Sec. 199.004. DISCOVERY OF CLIENT RECORDS. Civil discovery
259-18 of a client record maintained by a state trust company is governed
259-19 by Section 30.007, Civil Practice and Remedies Code.
259-20 Sec. 199.005. COMPLIANCE REVIEW COMMITTEE. (a) A state
259-21 trust company or an affiliate of a state trust company, including
259-22 its holding company, may establish a compliance review committee to
259-23 test, review, or evaluate the institution's conduct, transactions,
259-24 or potential transactions for the purpose of monitoring and
259-25 improving or enforcing compliance with:
259-26 (1) a statutory or regulatory requirement;
76R5 DWS-D 259
260-1 (2) financial reporting to a governmental agency;
260-2 (3) the policies and procedures of the state trust
260-3 company or its affiliates; or
260-4 (4) safe, sound, and fair lending practices.
260-5 (b) Except as provided by Subsection (c):
260-6 (1) a compliance review document is confidential and
260-7 is not discoverable or admissible in evidence in a civil action;
260-8 (2) an individual serving on a compliance review
260-9 committee or acting under the direction of a compliance review
260-10 committee may not be required to testify in a civil action as to:
260-11 (A) the contents or conclusions of a compliance
260-12 review document; or
260-13 (B) an action taken or discussions conducted by
260-14 or for a compliance review committee; and
260-15 (3) a compliance review document or an action taken or
260-16 discussion conducted by or for a compliance review committee that
260-17 is disclosed to a governmental agency remains confidential and is
260-18 not discoverable or admissible in a civil action.
260-19 (c) Subsection (b)(2) does not apply to an individual who
260-20 has management responsibility for the operations, records,
260-21 employees, or activities being examined or evaluated by the
260-22 compliance review committee.
260-23 (d) This section does not limit the discovery or
260-24 admissibility in a civil action of a document that is not a
260-25 compliance review document.
260-26 (e) In this section:
76R5 DWS-D 260
261-1 (1) "Civil action" means a civil proceeding pending in
261-2 a court or other adjudicatory tribunal with jurisdiction to issue a
261-3 request or subpoena for records, including a voluntary or required
261-4 alternative dispute resolution mechanism under which a party may
261-5 compel the production of records. The term does not include an
261-6 examination or enforcement proceeding initiated by the Federal
261-7 Deposit Insurance Corporation or its successor and the board of
261-8 governors of the Federal Reserve System or its successor, in
261-9 exercise of their jurisdiction.
261-10 (2) "Compliance review document" means a document
261-11 prepared for or created by a compliance review committee.
261-12 (b) Section 1, Chapter 769, Acts of the 75th Legislature,
261-13 Regular Session, 1997 (Article 342a-1.001 et seq., Vernon's Texas
261-14 Civil Statutes), is repealed.
261-15 SECTION 7.17. Chapter 151, Finance Code, is repealed.
261-16 PART 3. CHANGES RELATING TO CREDIT
261-17 SECTION 7.18. (a) Subtitle A, Title 4, Finance Code, is
261-18 amended to conform to Sections 1 and 48, Chapter 1396; Section 1,
261-19 Chapter 81; Section 4, Chapter 906; and Section 7, Chapter 1111,
261-20 Acts of the 75th Legislature, Regular Session, 1997, to read as
261-21 follows:
261-22 SUBTITLE A. INTEREST
261-23 CHAPTER 301. GENERAL PROVISIONS
261-24 Sec. 301.001. SHORT TITLE. This title may be cited as the
261-25 Texas Credit Title.
261-26 Sec. 301.002. DEFINITIONS. (a) In this subtitle:
76R5 DWS-D 261
262-1 (1) "Contract interest" means interest that an obligor
262-2 has paid or agreed to pay to a creditor under a written contract of
262-3 the parties. The term does not include judgment interest.
262-4 (2) "Credit card transaction" means a transaction for
262-5 personal, family, or household use in which a credit card, plate,
262-6 coupon book, or credit card cash advance check may be used or is
262-7 used to debit an open-end account in connection with:
262-8 (A) a purchase or lease of goods or services; or
262-9 (B) a loan of money.
262-10 (3) "Creditor" means a person who loans money or
262-11 otherwise extends credit. The term does not include a judgment
262-12 creditor.
262-13 (4) "Interest" means compensation for the use,
262-14 forbearance, or detention of money. The term does not include time
262-15 price differential, regardless of how it is denominated.
262-16 (5) "Judgment creditor" means a person to whom a money
262-17 judgment is payable.
262-18 (6) "Judgment debtor" means a person obligated to pay
262-19 a money judgment.
262-20 (7) "Judgment interest" means interest on a money
262-21 judgment, whether the interest accrues before, on, or after the
262-22 date the judgment is rendered.
262-23 (8) "Legal interest" means interest charged or
262-24 received in the absence of any agreement by an obligor to pay
262-25 contract interest. The term does not include judgment interest.
262-26 (9) "Lender credit card agreement":
76R5 DWS-D 262
263-1 (A) means an agreement between a creditor and an
263-2 obligor that provides that:
263-3 (i) the obligor, by means of a credit card
263-4 transaction for personal, family, or household use, may:
263-5 (a) obtain loans from the
263-6 creditor directly or through other participating persons; and
263-7 (b) lease or purchase goods
263-8 or services from more than one participating lessor or seller who
263-9 honors the creditor's credit card;
263-10 (ii) the creditor or another person acting
263-11 in cooperation with the creditor is to reimburse the participating
263-12 persons, lessors, or sellers for the loans or the goods or
263-13 services purchased or leased;
263-14 (iii) the obligor is to pay the creditor
263-15 the amount of the loan or cost of the lease or purchase;
263-16 (iv) the unpaid balance of the loan,
263-17 lease, or purchase and interest on that unpaid balance are debited
263-18 to the obligor's account under the agreement;
263-19 (v) interest may be computed on the
263-20 balances of the obligor's account but is not precomputed; and
263-21 (vi) the obligor and the creditor may
263-22 agree that payment of part of the balance may be deferred;
263-23 (B) includes an agreement under Section 342.455
263-24 or Section 346.003(b) or (c) for an open-end account under which
263-25 credit card transactions may be made or a merchant discount may be
263-26 taken; and
76R5 DWS-D 263
264-1 (C) does not include:
264-2 (i) an agreement, including an open-end
264-3 account credit agreement, between a seller and a buyer or between a
264-4 lessor and a lessee; or
264-5 (ii) an agreement under which:
264-6 (a) the entire balance is
264-7 due in full each month; and
264-8 (b) no interest is charged
264-9 if the obligor pays the entire balance each month.
264-10 (10) "Loan" means an advance of money that is made to
264-11 or on behalf of an obligor, the principal amount of which the
264-12 obligor has an obligation to pay the creditor. The term does not
264-13 include a judgment.
264-14 (11) "Merchant discount" means the consideration,
264-15 including a fee, charge, discount, or compensating balance, that a
264-16 creditor requires, or that a creditor, subsidiary, or parent
264-17 company of the creditor, or subsidiary of the creditor's parent
264-18 company, receives directly or indirectly from a person other than
264-19 the obligor in connection with a credit card transaction under a
264-20 lender credit card agreement between the obligor and the creditor.
264-21 The term does not include consideration received by a creditor from
264-22 the obligor in connection with the credit card transaction.
264-23 (12) "Money judgment" means a judgment for money. For
264-24 purposes of this subtitle, the term includes legal interest or
264-25 contract interest, if any, that is payable to a judgment creditor
264-26 under a judgment.
76R5 DWS-D 264
265-1 (13) "Obligor" means a person to whom money is loaned
265-2 or credit is otherwise extended. The term does not include:
265-3 (A) a judgment debtor; or
265-4 (B) a surety, guarantor, or similar person.
265-5 (14) "Open-end account":
265-6 (A) means an account under a written contract
265-7 between a creditor and an obligor in connection with which:
265-8 (i) the creditor reasonably contemplates
265-9 repeated transactions and the obligor is authorized to make
265-10 purchases or borrow money;
265-11 (ii) interest or time price differential
265-12 may be charged from time to time on an outstanding unpaid balance;
265-13 and
265-14 (iii) the amount of credit that may be
265-15 extended during the term of the account is generally made available
265-16 to the extent that any outstanding balance is repaid; and
265-17 (B) includes an account under an agreement
265-18 described by Section 342.455 or Chapter 345 or 346.
265-19 (15) "Prepayment penalty" means consideration agreed
265-20 on and contracted for a discharge of a loan, other than a loan
265-21 governed by Chapter 306, before its maturity or a regularly
265-22 scheduled date of payment, as a result of an obligor's election to
265-23 pay all of the principal amount before its stated maturity or a
265-24 regularly scheduled date of payment.
265-25 (16) "Time price differential" means an amount,
265-26 however denominated or expressed, that is:
76R5 DWS-D 265
266-1 (A) added to the price at which a seller offers
266-2 to sell services or property to a purchaser for cash payable at the
266-3 time of sale; and
266-4 (B) paid or payable to the seller by the
266-5 purchaser for the privilege of paying the offered sales price after
266-6 the time of sale.
266-7 (17) "Usurious interest" means interest that exceeds
266-8 the applicable maximum amount allowed by law.
266-9 (b) These definitions shall be liberally construed to
266-10 accomplish the purposes of this subtitle.
266-11 (c) The Finance Commission of Texas by rule may adopt other
266-12 definitions to accomplish the purposes of this subtitle.
266-13 CHAPTER 302. INTEREST RATES
266-14 SUBCHAPTER A. USURIOUS INTEREST
266-15 Sec. 302.001. CONTRACTING FOR, CHARGING, OR RECEIVING
266-16 INTEREST OR TIME PRICE DIFFERENTIAL; USURIOUS INTEREST. (a) A
266-17 creditor may contract for, charge, and receive from an obligor
266-18 interest or time price differential.
266-19 (b) The maximum rate or amount of interest is 10 percent a
266-20 year except as otherwise provided by law. A greater rate of
266-21 interest than 10 percent a year is usurious unless otherwise
266-22 provided by law. All contracts for usurious interest are contrary
266-23 to public policy and subject to the appropriate penalty prescribed
266-24 by Chapter 305.
266-25 (c) To determine the interest rate of a loan under this
266-26 subtitle, all interest at any time contracted for shall be
76R5 DWS-D 266
267-1 aggregated and amortized using the actuarial method during the
267-2 stated term of the loan.
267-3 Sec. 302.002. ACCRUAL OF INTEREST WHEN NO RATE SPECIFIED.
267-4 If a creditor has not agreed with an obligor to charge the obligor
267-5 any interest, the creditor may charge and receive from the obligor
267-6 legal interest at the rate of six percent a year on the principal
267-7 amount of the credit extended beginning on the 30th day after the
267-8 date on which the amount is due. If an obligor has agreed to pay
267-9 to a creditor any compensation that constitutes interest, the
267-10 obligor is considered to have agreed on the rate produced by the
267-11 amount of that interest, regardless of whether that rate is stated
267-12 in the agreement.
267-13 SUBCHAPTER B. OTHER RATES AND PROVISIONS
267-14 ON LOANS SECURED BY REAL PROPERTY
267-15 Sec. 302.101. DETERMINING RATES OF INTEREST BY SPREADING.
267-16 (a) To determine whether a loan secured in any part by an interest
267-17 in real property, including a lien, mortgage, or security interest,
267-18 is usurious, the interest rate is computed by amortizing or
267-19 spreading, using the actuarial method during the stated term of the
267-20 loan, all interest at any time contracted for, charged, or received
267-21 in connection with the loan.
267-22 (b) If a loan described by Subsection (a) is paid in full
267-23 before the end of the stated term of the loan and the amount of
267-24 interest received for the period that the loan exists exceeds the
267-25 amount that produces the maximum rate authorized by law for that
267-26 period, the lender shall:
76R5 DWS-D 267
268-1 (1) refund the amount of the excess to the borrower;
268-2 or
268-3 (2) credit the amount of the excess against amounts
268-4 owing under the loan.
268-5 (c) A lender who complies with Subsection (b) is not subject
268-6 to any of the penalties provided by law for contracting for,
268-7 charging, or receiving interest in excess of the maximum rate
268-8 authorized.
268-9 Sec. 302.102. PROHIBITION ON PREPAYMENT PENALTY. If the
268-10 interest rate on a loan for property that is to be the residential
268-11 homestead of the borrower is greater than 12 percent a year, a
268-12 prepayment penalty may not be collected on the loan unless the
268-13 penalty is required by an agency created by federal law.
268-14 Sec. 302.103. EFFECT OF FEDERAL PREEMPTION ON LATE CHARGES.
268-15 On loans subject to 12 U.S.C. Sections 1735f-7 and 1735f-7a, as
268-16 amended, any late charges assessed are interest that is included in
268-17 computing the amount or rate of interest on the loan and,
268-18 therefore, covered by the federal preemption of state interest rate
268-19 limitations.
268-20 Sec. 302.104. LOAN TO PURCHASE INTEREST IN ENTITY WITH
268-21 FOREIGN REAL PROPERTY AS PRINCIPAL ASSET. (a) A loan the proceeds
268-22 of which are used primarily to purchase an interest in a trust or
268-23 other entity that has as its principal asset real property located
268-24 outside the United States is:
268-25 (1) not subject to Subtitle B; and
268-26 (2) subject to the interest rate limitations of
76R5 DWS-D 268
269-1 Chapter 303.
269-2 (b) For the purpose of determining the interest rate on a
269-3 loan to which this section applies, all interest contracted for,
269-4 charged, or received shall be amortized, prorated, allocated, and
269-5 spread over the full stated term of the loan.
269-6 (c) This section does not affect application of a law of
269-7 this state governing collateral that may be used to secure a loan
269-8 to which this section applies.
269-9 CHAPTER 303. OPTIONAL RATE CEILINGS
269-10 SUBCHAPTER A. RATE CEILINGS: APPLICABILITY, COMPUTATION,
269-11 AND PUBLICATION
269-12 Sec. 303.001. USE OF CEILINGS. (a) Except as provided by
269-13 Subchapter B, a person may contract for, charge, or receive a rate
269-14 or amount that does not exceed the applicable interest rate ceiling
269-15 provided by this chapter. The use of a ceiling provided by this
269-16 chapter for any contract is optional, and a contract may provide
269-17 for a rate or amount allowed by other applicable law.
269-18 (b) A contract that is subject to Chapter 342, 345, 347, or
269-19 348, including a contract for an open-end account, may, as an
269-20 alternative to an interest rate or amount of time price
269-21 differential allowed under that chapter, provide for a simple or
269-22 precomputed rate or amount of time price differential that does not
269-23 exceed the applicable ceiling provided by this chapter or by the
269-24 equivalent yield authorized by Chapter 342, 345, 347, or 348.
269-25 (c) Except as inconsistent with this chapter, a party to a
269-26 contract that is subject to Chapter 342, 345, 347, or 348, or the
76R5 DWS-D 269
270-1 party's assignee, has all rights, duties, and obligations under the
270-2 applicable chapter, including those relating to refund credits on
270-3 prepayment or acceleration.
270-4 Sec. 303.002. WEEKLY CEILING. The parties to a written
270-5 agreement may agree to an interest rate, or in an agreement
270-6 described by Chapter 345, 347, or 348, an amount of time price
270-7 differential producing a rate, that does not exceed the applicable
270-8 weekly ceiling.
270-9 Sec. 303.003. COMPUTATION OF WEEKLY CEILING. (a) The
270-10 weekly ceiling is computed by:
270-11 (1) multiplying the auction rate by two; and
270-12 (2) rounding the result obtained under Subdivision (1)
270-13 to the nearest one-quarter of one percent.
270-14 (b) The weekly rate ceiling becomes effective on Monday of
270-15 each week and remains in effect through the following Sunday.
270-16 (c) In this section, "auction rate" means the auction
270-17 average rate quoted on a bank discount basis for 26-week treasury
270-18 bills issued by the United States government, as published by the
270-19 Federal Reserve Board, for the week preceding the week in which the
270-20 weekly rate ceiling is to take effect.
270-21 Sec. 303.004. MONTHLY CEILING. (a) The monthly ceiling may
270-22 be used as an alternative to the weekly ceiling only for a contract
270-23 that:
270-24 (1) provides for a variable rate, including a contract
270-25 for an open-end account; and
270-26 (2) is not made for personal, family, or household
76R5 DWS-D 270
271-1 use.
271-2 (b) A contract that provides for the use of the monthly
271-3 ceiling may not provide for the use of another rate ceiling
271-4 provided under this subchapter.
271-5 (c) If the parties agree that the rate may be adjusted
271-6 monthly, they may agree that the rate from time to time in effect
271-7 may not exceed the monthly ceiling from time to time in effect, and
271-8 the monthly ceiling is the ceiling on those contracts.
271-9 Sec. 303.005. COMPUTATION OF MONTHLY CEILING. (a) The
271-10 consumer credit commissioner shall compute the monthly ceiling on
271-11 the first business day of the calendar month in which the rate
271-12 applies. The monthly ceiling is effective for one month beginning
271-13 on the first calendar day of each month.
271-14 (b) The monthly ceiling is computed by averaging all of the
271-15 weekly ceilings computed using rates from auctions held during the
271-16 calendar month preceding the computation date of the monthly
271-17 ceiling.
271-18 Sec. 303.006. QUARTERLY CEILING. (a) A written contract,
271-19 including a contract that involves an open-end account, may, as an
271-20 alternative to the weekly ceiling, provide for an interest rate or
271-21 an amount of time price differential producing a rate that does not
271-22 exceed the applicable quarterly ceiling.
271-23 (b) A variable rate contract authorized under Section
271-24 303.015 may not provide for use of both the weekly ceiling and the
271-25 quarterly ceiling.
271-26 (c) Notwithstanding other provisions of this subchapter, the
76R5 DWS-D 271
272-1 rate of interest on an open-end account authorized under Section
272-2 342.455 or 346.003, or an amount owed for a credit card transaction
272-3 under another type of credit card agreement, in connection with
272-4 which a merchant discount is imposed or received by the creditor
272-5 may not exceed the applicable quarterly ceiling.
272-6 Sec. 303.007. ANNUALIZED CEILING. The annualized ceiling
272-7 may be used as an alternative to the weekly ceiling only for a
272-8 written contract that involves an open-end account.
272-9 Sec. 303.008. COMPUTATION OF QUARTERLY AND ANNUALIZED
272-10 CEILING. (a) On December 1, March 1, June 1, and September 1 of
272-11 each year, the consumer credit commissioner shall compute the
272-12 quarterly ceiling and annualized ceiling for the calendar quarter
272-13 effective the following January 1, April 1, July 1, and October 1,
272-14 respectively. The quarterly ceiling becomes effective for
272-15 three-month periods beginning on the effective dates set out in
272-16 this subsection and is subject to adjustment after each three-month
272-17 period. The annualized ceiling becomes effective on each of the
272-18 effective dates set out in this subsection and remains in effect
272-19 for a period of 12 months, after which it is subject to adjustment.
272-20 (b) The quarterly ceiling and annualized ceiling are
272-21 computed by averaging all of the weekly ceilings computed using
272-22 average auction rates during the three calendar months preceding
272-23 the computation date of the ceiling.
272-24 Sec. 303.009. MAXIMUM AND MINIMUM WEEKLY, MONTHLY,
272-25 QUARTERLY, OR ANNUALIZED CEILING. (a) Except as provided by
272-26 Subsection (e), if the rate computed for the weekly, monthly,
76R5 DWS-D 272
273-1 quarterly, or annualized ceiling is less than 18 percent a year,
273-2 the ceiling is 18 percent a year.
273-3 (b) Except as provided by Subsection (c), (d), or (e), if
273-4 the rate computed for the weekly, monthly, quarterly, or annualized
273-5 ceiling is more than 24 percent a year, the ceiling is 24 percent a
273-6 year.
273-7 (c) For a contract made, extended, or renewed under which
273-8 credit is extended for a business, commercial, investment, or
273-9 similar purpose and the amount of the credit extension is $250,000
273-10 or more, the 24-percent limitation on the ceilings in Subsection
273-11 (b) does not apply, and the limitation on the ceilings determined
273-12 by those computations is 28 percent a year.
273-13 (d) For an open-end account credit agreement that provides
273-14 for credit card transactions on which a merchant discount is not
273-15 imposed or received by the creditor, if the rate computed for the
273-16 weekly ceiling, monthly ceiling, quarterly ceiling, or annualized
273-17 ceiling is more than 21 percent a year, the ceiling is 21 percent a
273-18 year.
273-19 (e) For an open-end account authorized under Section 342.455
273-20 or 346.003, in connection with which credit card transactions are
273-21 authorized or a merchant discount is imposed or received by the
273-22 creditor:
273-23 (1) if the rate computed for the quarterly ceiling is
273-24 less than 14 percent a year, the quarterly ceiling is 14 percent a
273-25 year; and
273-26 (2) if the rate computed for the quarterly ceiling is
76R5 DWS-D 273
274-1 more than 22 percent a year, the quarterly ceiling is 22 percent a
274-2 year.
274-3 (f) In this chapter, "weekly ceiling," "monthly ceiling,"
274-4 "quarterly ceiling," or "annualized ceiling" refers to that ceiling
274-5 as determined after the application of this section.
274-6 Sec. 303.010. COMPUTATION OF CEILING IF INFORMATION
274-7 UNAVAILABLE. If any of the information required to compute a
274-8 ceiling is discontinued or is otherwise not available to the
274-9 consumer credit commissioner from the Federal Reserve Board in the
274-10 time required for the computation, the ceiling last computed
274-11 remains in effect until the information becomes available and a new
274-12 ceiling is computed from the obtained information.
274-13 Sec. 303.011. PUBLICATION OF RATE CEILINGS. (a) The
274-14 consumer credit commissioner shall send the rate ceilings computed
274-15 under this subchapter to the secretary of state for publication in
274-16 the Texas Register.
274-17 (b) The monthly, quarterly, or annualized ceiling shall be
274-18 published before the 11th day after the date on which the ceiling
274-19 is computed.
274-20 Sec. 303.012. JUDICIAL NOTICE. A court may take judicial
274-21 notice of interpretations issued by the consumer credit
274-22 commissioner or information published in the Texas Register under
274-23 Section 303.011.
274-24 Sec. 303.013. DETERMINATION OF CEILING FOR CONTRACT TO RENEW
274-25 OR EXTEND DEBT PAYMENT. The rate ceiling for a contract to renew
274-26 or extend the terms of payment of a debt is the ceiling in effect
76R5 DWS-D 274
275-1 under this chapter when the contract for renewal or extension is
275-2 made, regardless of when the debt is incurred.
275-3 Sec. 303.014. RATE FOR LENDER CREDIT CARD AGREEMENT WITH
275-4 MERCHANT DISCOUNT. On an amount owed for a credit card transaction
275-5 under a lender credit card agreement that imposes or allows the
275-6 creditor to receive a merchant discount, the creditor may not
275-7 contract for, charge, or receive:
275-8 (1) a rate that exceeds the ceiling provided under
275-9 Section 303.006(c); or
275-10 (2) a fee or charge that:
275-11 (A) is not allowed under Chapter 346; or
275-12 (B) exceeds the amount allowed under Chapter
275-13 346.
275-14 Sec. 303.015. VARIABLE RATE. (a) The parties to a contract,
275-15 including a contract for an open-end account, may agree to any
275-16 index, formula, or provision of law by which the interest rate or
275-17 amount of time price differential will be determined, but the
275-18 agreed rate of interest or yield from an amount of time price
275-19 differential may not exceed the amount that would be produced by
275-20 the rate ceiling applicable to the contract.
275-21 (b) A variable contract rate described by this section may
275-22 not be used in a contract in which the interest or time price
275-23 differential is precomputed and added into the amount of the
275-24 contract at the time the contract is made.
275-25 (c) A variable rate agreement for credit extended primarily
275-26 for personal, family, or household use must include the disclosures
76R5 DWS-D 275
276-1 identified for variable rate contracts required by regulations
276-2 issued by the Federal Reserve Board under the Truth in Lending Act
276-3 (15 U.S.C. Section 1601 et seq.), as amended, except that if that
276-4 Act does not apply because of the amount of the transaction, the
276-5 following disclosure must be included in a size equal to at least
276-6 10-point type that is boldface, capitalized, underlined, or
276-7 otherwise set out from surrounding material so as to be
276-8 conspicuous:
276-9 "NOTICE TO CONSUMER: UNDER TEXAS LAW, IF YOU CONSENT TO
276-10 THIS AGREEMENT, YOU MAY BE SUBJECT TO A FUTURE RATE AS
276-11 HIGH AS 24 PERCENT PER YEAR."
276-12 Sec. 303.016. CHARGING OF RATE LOWER THAN AGREED RATE. A
276-13 creditor may charge an interest rate or amount of time price
276-14 differential that is lower than the rate or amount agreed to in the
276-15 contract.
276-16 SUBCHAPTER B. OPEN-END ACCOUNTS
276-17 Sec. 303.101. OPEN-END ACCOUNT: CEILINGS. (a) To use the
276-18 quarterly or annualized ceiling for setting the interest rate on
276-19 current and future open-end account balances, the agreement must
276-20 provide for use of the ceiling, and the creditor must give notice
276-21 of the interest rate after the date on which the quarterly or
276-22 annualized ceiling is computed but before the last day of the next
276-23 succeeding calendar quarter.
276-24 (b) If the annualized ceiling is used, the rate is effective
276-25 for the 12-month period beginning on the date on which the rate
276-26 takes effect for the account.
76R5 DWS-D 276
277-1 (c) If the quarterly ceiling is used, the rate is effective
277-2 for the three-month period beginning on the date on which the rate
277-3 takes effect for the account. For an open-end account authorized
277-4 under Section 342.455 or 346.003, in connection with which credit
277-5 card transactions are authorized or a merchant discount is imposed
277-6 or received by the creditor, the quarterly ceiling shall be
277-7 adjusted, at the option of the creditor, on:
277-8 (1) the effective dates provided by Section 303.008;
277-9 or
277-10 (2) the first day of the first billing cycle of the
277-11 account beginning after those dates.
277-12 (d) If a quarterly or annualized ceiling is being used for
277-13 an account and if the rate for the applicable period is less than
277-14 or equal to the ceiling to be in effect for the succeeding period
277-15 of equal length, the creditor may leave that rate in effect for the
277-16 succeeding period.
277-17 (e) A creditor who has disclosed to an obligor that an
277-18 election may be renewed under Subsection (d) is not required to
277-19 give additional notice of a renewal under that subsection.
277-20 (f) To increase a previously agreed rate, a creditor shall
277-21 comply with Section 303.103 before the end of the last calendar
277-22 quarter of the period in which the rate previously agreed to is in
277-23 effect. The ceiling in effect for that period remains the ceiling
277-24 until the parties to the agreement agree to a new rate.
277-25 Sec. 303.102. VARIABLE RATE OPEN-END ACCOUNT: CEILINGS. The
277-26 applicable rate ceiling for an open-end account agreement that
76R5 DWS-D 277
278-1 provides for a variable rate or amount according to an index,
278-2 formula, or provision of law disclosed to the obligor, other than a
278-3 variable rate commercial contract that is subject to Section
278-4 303.004, is the annualized, quarterly, or weekly ceiling as
278-5 disclosed to the obligor. The annualized ceiling shall be adjusted
278-6 after each 12-month period, the quarterly ceiling shall be adjusted
278-7 after each three-month period, and the weekly ceiling shall be
278-8 adjusted weekly.
278-9 Sec. 303.103. OPEN-END ACCOUNT: CHANGE OF AGREEMENT TERM.
278-10 (a) An agreement covering an open-end account may provide that the
278-11 creditor may change the terms of the agreement for current and
278-12 future balances of that account by giving notice of the change to
278-13 the obligor.
278-14 (b) A notice under this section to change a provision of an
278-15 account, including the rate, or the index or formula used to
278-16 compute the rate, must include:
278-17 (1) the new provision, the new rate, or the index or
278-18 formula to be used to compute the rate;
278-19 (2) the date on which the change is to take effect;
278-20 (3) the period for which the change is to be effective
278-21 or after which the rate will be adjusted;
278-22 (4) a statement of whether the change is to affect
278-23 current and future balances; and
278-24 (5) the obligor's rights under this section and the
278-25 procedures for the obligor to exercise those rights.
278-26 (c) A creditor who increases a rate shall include with a
76R5 DWS-D 278
279-1 notice required by this section a form that may be returned at the
279-2 expense of the creditor and on which the obligor may indicate by
279-3 checking or marking an appropriate box or by a similar arrangement
279-4 the obligor's decision not to continue the account. The form may
279-5 be included on a part of the account statement that is to be
279-6 returned to the creditor or on a separate sheet. In addition to
279-7 the requirements of Subsection (b), the notice must include:
279-8 (1) the address to which the obligor may send notice
279-9 of the obligor's election not to continue the open-end account; and
279-10 (2) the following statement printed in not less than
279-11 10-point type or computer equivalent:
279-12 "YOU MAY TERMINATE THIS AGREEMENT IF YOU DO NOT WISH TO
279-13 PAY THE NEW RATE."
279-14 (d) An obligor is considered to have agreed to a change
279-15 under this section if the creditor mails a notice required by this
279-16 section to the obligor's most recent address shown in the
279-17 creditor's records and:
279-18 (1) the obligor chooses to retain the privilege of
279-19 using the open-end account;
279-20 (2) the obligor or a person authorized by the obligor
279-21 accepts or uses an extension of credit after the fifth day after
279-22 the date on which the notice is mailed; or
279-23 (3) the obligor does not notify the creditor in
279-24 writing before the 21st day after the date on which the notice is
279-25 mailed that the obligor does not wish to continue to use the
279-26 open-end account.
76R5 DWS-D 279
280-1 (e) An obligor who rejects a rate change in accordance with
280-2 this section is entitled to pay the balance on the open-end account
280-3 at the rate and over the period in effect immediately before the
280-4 date of the proposed change and under the same minimum payment
280-5 terms provided by the agreement. Rejection of a new rate does not
280-6 accelerate payment of the balance due.
280-7 (f) The procedure provided by this section for changing the
280-8 terms of an agreement is in addition to other means of amending the
280-9 agreement provided by law.
280-10 Sec. 303.104. DISCLOSURE OF DECREASE IN INTEREST RATE NOT
280-11 REQUIRED ON OPEN-END ACCOUNTS INVOLVING CREDIT CARD TRANSACTION OR
280-12 MERCHANT DISCOUNT. On an open-end account authorized under Section
280-13 342.455 or 346.003, in connection with which credit card
280-14 transactions are authorized or a merchant discount is imposed or
280-15 received by the creditor and on which interest is charged under
280-16 this chapter, the creditor is not required to disclose a decrease
280-17 in the applicable interest rate.
280-18 Sec. 303.105. OPEN-END ACCOUNT: DISCLOSURE OF CERTAIN RATE
280-19 VARIATIONS. (a) Except as provided by Subsection (b), a variation
280-20 in an interest rate on an account resulting from operation of the
280-21 previously disclosed index, formula, or provision of law is not
280-22 required to be disclosed under Section 303.101 or 303.103.
280-23 (b) Except as inconsistent with federal law, the creditor on
280-24 an open-end account agreement that provides for a variable interest
280-25 rate according to an index, formula, or provision of law, that is
280-26 primarily for personal, family, or household use, and that is
76R5 DWS-D 280
281-1 subject to this chapter shall give to the obligor notice of a
281-2 change in the rate resulting from operation of the index, formula,
281-3 or provision of law. The notice must be given:
281-4 (1) by a document mailed on or before the beginning of
281-5 the first cycle for which the change becomes effective; or
281-6 (2) on or with:
281-7 (A) the billing statement for a billing cycle
281-8 that precedes the cycle for which the change becomes effective, if
281-9 the account is covered by Section 303.006(c); or
281-10 (B) any billing statement, if the account is not
281-11 covered by Section 303.006(c).
281-12 Sec. 303.106. OPEN-END ACCOUNT: CEILING FOR PLAN OR
281-13 ARRANGEMENT. If a creditor implements a quarterly or annualized
281-14 ceiling for a majority of the creditor's open-end accounts that are
281-15 under a particular plan or arrangement and that are for obligors in
281-16 this state, that ceiling is also the ceiling for all open-end
281-17 accounts that are opened or activated under that plan for obligors
281-18 in this state during the period that the election is in effect.
281-19 SUBCHAPTER C. PROVISIONS APPLICABLE TO CERTAIN
281-20 CONSUMER LOANS AND SECONDARY MORTGAGE LOANS
281-21 Sec. 303.201. LICENSE REQUIRED. A person engaged in the
281-22 business of making loans for which the rate is authorized under
281-23 this chapter must obtain a license under Chapter 342 unless the
281-24 person is not required to obtain a license under Section 342.051.
281-25 Sec. 303.202. APPLICABILITY OF SUBTITLE B. Except as
281-26 inconsistent with this chapter:
76R5 DWS-D 281
282-1 (1) a person engaged in the business of extending
282-2 open-end credit primarily for personal, family, or household use
282-3 and who charges on an open-end account a rate or amount under
282-4 authority of this chapter is subject to the applicable chapter in
282-5 Subtitle B; and
282-6 (2) a party to an account described by Subdivision (1)
282-7 or the party's assignees have all the rights, duties, and
282-8 obligations under that applicable chapter.
282-9 SUBCHAPTER D. LIMITATIONS ON APPLICABILITY OF CHAPTER
282-10 Sec. 303.301. AGREEMENT TO WHICH CHAPTER DOES NOT APPLY.
282-11 The rate ceilings provided by this chapter do not apply to an
282-12 agreement:
282-13 (1) under which credit is extended by the seller, or
282-14 an owner, subsidiary, or corporate affiliate of the seller, for a
282-15 transaction governed by Chapter 39, Business & Commerce Code; and
282-16 (2) that is secured by a lien on the obligor's
282-17 homestead.
282-18 Sec. 303.302. REQUIREMENTS INCONSISTENT WITH FEDERAL LAW.
282-19 (a) A person is not required to comply with a disclosure or notice
282-20 requirement of this chapter that is inconsistent with federal
282-21 statute or regulation.
282-22 (b) A creditor may modify a disclosure or notice requirement
282-23 of this chapter to conform to federal law.
282-24 SUBCHAPTER E. ENFORCEMENT
282-25 Sec. 303.401. WHEN ACT OR OMISSION NOT VIOLATION. An act or
282-26 omission does not violate this title if the act or omission
76R5 DWS-D 282
283-1 conforms to an interpretation of this title that is in effect at
283-2 the time of the act or omission and that was made by:
283-3 (1) the consumer credit commissioner under Section
283-4 14.108; or
283-5 (2) an appellate court of this state or the United
283-6 States.
283-7 Sec. 303.402. PENALTY FOR VIOLATION OF CHAPTER FOR CERTAIN
283-8 CONTRACTS SUBJECT TO SUBTITLE B. (a) A person who contracts for,
283-9 charges, or receives under a contract subject to Chapter 342, 345,
283-10 346, 347, or 348, including a contract for an open-end account, a
283-11 rate or amount of time price differential that exceeds the maximum
283-12 applicable rate or amount authorized by the applicable chapter or
283-13 this chapter is subject to a penalty for that violation determined
283-14 under Chapter 349.
283-15 (b) For a contract described by Subsection (a) that contains
283-16 a rate or amount authorized under this chapter, the failure to
283-17 perform a duty or comply with a prohibition provided by this
283-18 chapter is subject to Chapter 349 as if this chapter were in
283-19 Subtitle B.
283-20 Sec. 303.403. PENALTY FOR VIOLATION OF CEILING IN CERTAIN
283-21 CONTRACTS. A written contract, other than a contract to which
283-22 Section 303.402 applies, that directly or indirectly provides for a
283-23 rate that exceeds the rate authorized by this chapter and that is
283-24 not otherwise authorized by law, is subject to the penalty
283-25 prescribed by Chapter 305.
283-26 Sec. 303.404. ENFORCEMENT BY CONSUMER CREDIT COMMISSIONER.
76R5 DWS-D 283
284-1 Subject to Subchapter B, Chapter 341, the consumer credit
284-2 commissioner shall enforce Subtitles B and C as they apply to
284-3 contracts subject to those chapters.
284-4 Sec. 303.405. EXAMINATION OF RECORDS; INSPECTIONS; RULES.
284-5 (a) Section 342.552 applies to a transaction:
284-6 (1) that is made by a person who holds a license under
284-7 Chapter 342;
284-8 (2) that is subject to Chapter 342 or 346; and
284-9 (3) the rate of which is authorized by this chapter.
284-10 (b) Subchapter L, Chapter 342, applies to a loan:
284-11 (1) that is subject to Chapter 342; and
284-12 (2) the rate of which is authorized by this chapter.
284-13 Sec. 303.406. ENFORCEMENT BY CREDIT UNION COMMISSIONER. The
284-14 credit union commissioner shall enforce this chapter as it applies
284-15 to contracts subject to Subtitle D, Title 3.
284-16 Sec. 303.407. ENFORCEMENT BY DEPARTMENT OF INSURANCE. The
284-17 Texas Department of Insurance shall enforce this chapter as it
284-18 applies to contracts subject to Chapter 24, Insurance Code.
284-19 SUBCHAPTER F. EFFECT ON OTHER STATUTES OF USING OPTIONAL RATE
284-20 Sec. 303.501. APPLICABILITY OF CREDIT UNION ACT. Except as
284-21 inconsistent with this chapter:
284-22 (1) a person subject to Subtitle D, Title 3, who
284-23 contracts for, charges, or receives a rate or amount authorized by
284-24 this chapter remains subject to that subtitle; and
284-25 (2) a party to a transaction described by Subdivision
284-26 (1) has all the rights provided by that subtitle.
76R5 DWS-D 284
285-1 Sec. 303.502. APPLICABILITY OF CHAPTER 24, INSURANCE CODE.
285-2 (a) Except as inconsistent with this chapter:
285-3 (1) a person subject to Chapter 24, Insurance Code,
285-4 who contracts for, charges, or receives an interest rate authorized
285-5 by this chapter remains subject to that chapter; and
285-6 (2) a party to an insurance premium finance agreement,
285-7 including an agreement for an open-end account, has all the rights
285-8 provided by Chapter 24, Insurance Code.
285-9 (b) The licensing requirements of Chapter 342 do not apply
285-10 to a transaction described by Subsection (a)(1). The penalty
285-11 provisions of this title do not apply to a transaction described by
285-12 Subsection (a)(1).
285-13 CHAPTER 304. JUDGMENT INTEREST
285-14 SUBCHAPTER A. GENERAL PROVISIONS
285-15 Sec. 304.001. INTEREST RATE REQUIRED IN JUDGMENT. A money
285-16 judgment of a court in this state must specify the postjudgment
285-17 interest rate applicable to that judgment.
285-18 Sec. 304.002. JUDGMENT INTEREST RATE: INTEREST RATE OR TIME
285-19 PRICE DIFFERENTIAL IN CONTRACT. A money judgment of a court of
285-20 this state on a contract that provides for interest or time price
285-21 differential earns postjudgment interest at a rate equal to the
285-22 lesser of:
285-23 (1) the rate specified in the contract, which may be a
285-24 variable rate; or
285-25 (2) 18 percent a year.
285-26 Sec. 304.003. JUDGMENT INTEREST RATE: INTEREST RATE OR TIME
76R5 DWS-D 285
286-1 PRICE DIFFERENTIAL NOT IN CONTRACT. (a) A money judgment of a
286-2 court of this state to which Section 304.002 does not apply,
286-3 including court costs awarded in the judgment and prejudgment
286-4 interest, if any, earns postjudgment interest at the rate
286-5 determined under this section.
286-6 (b) On the 15th day of each month, the consumer credit
286-7 commissioner shall determine the postjudgment interest rate to be
286-8 applied to a money judgment rendered during the succeeding calendar
286-9 month.
286-10 (c) The postjudgment interest rate is:
286-11 (1) the auction rate quoted on a discount basis for
286-12 52-week treasury bills issued by the United States government as
286-13 most recently published by the Federal Reserve Board before the
286-14 date of computation;
286-15 (2) 10 percent a year if the auction rate described by
286-16 Subdivision (1) is less than 10 percent; or
286-17 (3) 20 percent a year if the auction rate described by
286-18 Subdivision (1) is more than 20 percent.
286-19 Sec. 304.004. PUBLICATION OF JUDGMENT INTEREST RATE. The
286-20 consumer credit commissioner shall send to the secretary of state
286-21 the postjudgment interest rate for publication, and the secretary
286-22 shall publish the rate in the Texas Register.
286-23 Sec. 304.005. ACCRUAL OF JUDGMENT INTEREST. (a) Except as
286-24 provided by Subsection (b), postjudgment interest on a money
286-25 judgment of a court in this state accrues during the period
286-26 beginning on the date the judgment is rendered and ending on the
76R5 DWS-D 286
287-1 date the judgment is satisfied.
287-2 (b) If a case is appealed and a motion for extension of time
287-3 to file a brief is granted for a party who was a claimant at trial,
287-4 interest does not accrue for the period of extension.
287-5 Sec. 304.006. COMPOUNDING OF JUDGMENT INTEREST.
287-6 Postjudgment interest on a judgment of a court in this state
287-7 compounds annually.
287-8 Sec. 304.007. JUDICIAL NOTICE OF JUDGMENT INTEREST RATE. A
287-9 court of this state shall take judicial notice of a published
287-10 postjudgment interest rate.
287-11 SUBCHAPTER B. PREJUDGMENT INTEREST IN WRONGFUL DEATH,
287-12 PERSONAL INJURY, OR PROPERTY DAMAGE CASE
287-13 Sec. 304.101. APPLICABILITY OF SUBCHAPTER. This subchapter
287-14 applies only to a wrongful death, personal injury, or property
287-15 damage case of a court of this state.
287-16 Sec. 304.102. PREJUDGMENT INTEREST REQUIRED IN CERTAIN
287-17 CASES. A judgment in a wrongful death, personal injury, or
287-18 property damage case earns prejudgment interest.
287-19 Sec. 304.103. PREJUDGMENT INTEREST RATE FOR WRONGFUL DEATH,
287-20 PERSONAL INJURY, OR PROPERTY DAMAGE CASE. The prejudgment interest
287-21 rate is equal to the postjudgment interest rate applicable at the
287-22 time of judgment.
287-23 Sec. 304.104. ACCRUAL OF PREJUDGMENT INTEREST. Except as
287-24 provided by Section 304.105 or 304.108, prejudgment interest
287-25 accrues on the amount of a judgment during the period beginning on
287-26 the earlier of the 180th day after the date the defendant receives
76R5 DWS-D 287
288-1 written notice of a claim or the date the suit is filed and ending
288-2 on the day preceding the date judgment is rendered. Prejudgment
288-3 interest is computed as simple interest and does not compound.
288-4 Sec. 304.105. EFFECT OF SETTLEMENT OFFER ON ACCRUAL OF
288-5 PREJUDGMENT INTEREST. (a) If judgment for a claimant is equal to
288-6 or less than the amount of a settlement offer of the defendant,
288-7 prejudgment interest does not accrue on the amount of the judgment
288-8 during the period that the offer may be accepted.
288-9 (b) If judgment for a claimant is more than the amount of a
288-10 settlement offer of the defendant, prejudgment interest does not
288-11 accrue on the amount of the settlement offer during the period that
288-12 the offer may be accepted.
288-13 Sec. 304.106. SETTLEMENT OFFER REQUIREMENTS TO PREVENT
288-14 PREJUDGMENT INTEREST ACCRUAL. To prevent the accrual of
288-15 prejudgment interest under this subchapter, a settlement offer must
288-16 be in writing and delivered to the claimant or the claimant's
288-17 attorney or representative.
288-18 Sec. 304.107. VALUE OF SETTLEMENT OFFER FOR COMPUTING
288-19 PREJUDGMENT INTEREST. If a settlement offer does not provide for
288-20 cash payment at the time of settlement, the amount of the
288-21 settlement offer for the purpose of computing prejudgment interest
288-22 is the cost or fair market value of the settlement offer at the
288-23 time it is made.
288-24 Sec. 304.108. ACCRUAL OF PREJUDGMENT INTEREST DURING PERIODS
288-25 OF TRIAL DELAY. (a) In addition to the exceptions provided by
288-26 Section 304.105, a court may order that prejudgment interest does
76R5 DWS-D 288
289-1 not accrue during periods of delay in the trial.
289-2 (b) A court shall consider:
289-3 (1) periods of delay caused by a defendant; and
289-4 (2) periods of delay caused by a claimant.
289-5 SUBCHAPTER C. OTHER PREJUDGMENT INTEREST PROVISIONS
289-6 Sec. 304.201. PREJUDGMENT INTEREST RATE FOR CONDEMNATION
289-7 CASE. The prejudgment interest rate in a condemnation case is
289-8 equal to the postjudgment interest rate at the time of judgment and
289-9 is computed as simple interest.
289-10 SUBCHAPTER D. EXCEPTIONS TO APPLICATION OF CHAPTER
289-11 Sec. 304.301. EXCEPTION FOR DELINQUENT TAXES. This chapter
289-12 does not apply to a judgment:
289-13 (1) in favor of a taxing unit in a delinquent tax suit
289-14 under Subchapter C, Chapter 33, Tax Code; or
289-15 (2) that earns interest at a rate set by Title 2, Tax
289-16 Code.
289-17 Sec. 304.302. EXCEPTION FOR DELINQUENT CHILD SUPPORT. This
289-18 chapter does not apply to interest that accrues on an amount of
289-19 unpaid child support under Section 157.265, Family Code.
289-20 CHAPTER 305. PENALTIES AND REMEDIES
289-21 SUBCHAPTER A. CIVIL LIABILITY; CRIMINAL PENALTY
289-22 Sec. 305.001. LIABILITY FOR USURIOUS INTEREST. (a) A
289-23 creditor who contracts for, charges, or receives interest that is
289-24 greater than the amount authorized by this subtitle is liable to
289-25 the obligor for an amount that is equal to the greater of:
289-26 (1) three times the amount computed by subtracting the
76R5 DWS-D 289
290-1 amount of interest allowed by law from the total amount of interest
290-2 contracted for, charged, or received; or
290-3 (2) $2,000 or 20 percent of the amount of the
290-4 principal, whichever is less.
290-5 (b) This section applies only to a contract or transaction
290-6 subject to this subtitle.
290-7 (c) A creditor who charges or receives interest in excess of
290-8 the amount contracted for, but not in excess of the maximum amount
290-9 authorized by law, is not subject to penalties for usurious
290-10 interest but may be liable for other remedies and relief as
290-11 provided by law.
290-12 Sec. 305.002. ADDITIONAL LIABILITY FOR MORE THAN TWICE
290-13 AUTHORIZED RATE OF INTEREST. (a) In addition to the amount
290-14 determined under Section 305.001, a creditor who charges and
290-15 receives interest that is greater than twice the amount authorized
290-16 by this subtitle is liable to the obligor for:
290-17 (1) the principal amount on which the interest is
290-18 charged and received; and
290-19 (2) the interest and all other amounts charged and
290-20 received.
290-21 (b) This section applies only to a contract or transaction
290-22 subject to this subtitle.
290-23 Sec. 305.003. LIABILITY FOR USURIOUS LEGAL INTEREST. (a) A
290-24 creditor who charges or receives legal interest that is greater
290-25 than the amount authorized by this subtitle is liable to the
290-26 obligor for an amount that is equal to the greater of:
76R5 DWS-D 290
291-1 (1) three times the amount computed by subtracting the
291-2 amount of legal interest allowed by law from the total amount of
291-3 interest charged or received; or
291-4 (2) $2,000 or 20 percent of the amount of the
291-5 principal, whichever is less.
291-6 (b) This section applies only to a transaction subject to
291-7 this subtitle.
291-8 Sec. 305.004. ADDITIONAL LIABILITY FOR MORE THAN TWICE
291-9 AUTHORIZED RATE OF LEGAL INTEREST. (a) In addition to the amount
291-10 determined under Section 305.003, a creditor who charges and
291-11 receives legal interest that is greater than twice the amount
291-12 authorized by this subtitle is liable to the obligor for:
291-13 (1) the principal amount on which the interest is
291-14 charged and received; and
291-15 (2) the interest and all other amounts charged and
291-16 received.
291-17 (b) This section applies only to a transaction subject to
291-18 this subtitle.
291-19 Sec. 305.005. ATTORNEY'S FEES. A creditor who is liable
291-20 under Section 305.001 or 305.003 is also liable to the obligor for
291-21 reasonable attorney's fees set by the court.
291-22 Sec. 305.006. LIMITATION ON FILING SUIT. (a) An action
291-23 under this chapter must be brought within four years after the date
291-24 on which the usurious interest was contracted for, charged, or
291-25 received. The action must be brought in the county in which:
291-26 (1) the transaction was entered into;
76R5 DWS-D 291
292-1 (2) the usurious interest was charged or received;
292-2 (3) the creditor resides at the time of the cause of
292-3 action, if the creditor is an individual;
292-4 (4) the creditor maintains its principal office, if
292-5 the creditor is not an individual; or
292-6 (5) the obligor resides at the time of the accrual of
292-7 the cause of action.
292-8 (b) Not later than the 61st day before the date an obligor
292-9 files a suit seeking penalties for a transaction in which a
292-10 creditor has contracted for or charged usurious interest, the
292-11 obligor shall give the creditor written notice stating in
292-12 reasonable detail the nature and amount of the violation.
292-13 (c) A creditor who receives a notice under this section may
292-14 correct the violation as provided by Section 305.103 during the
292-15 period beginning on the date the notice is received and ending on
292-16 the 60th day after that date. A creditor who corrects a violation
292-17 as provided by this section is not liable to an obligor for the
292-18 violation.
292-19 (d) The notice requirement of Subsection (b) does not apply
292-20 to a defendant filing a counterclaim action alleging usurious
292-21 interest in an original action by the creditor.
292-22 Sec. 305.007. PENALTIES EXCLUSIVE. The penalties provided
292-23 by this chapter are the only penalties for violation of this
292-24 subtitle for contracting for, charging, or receiving interest in an
292-25 amount that produces a rate in excess of the maximum rate allowed
292-26 by law. Common law penalties do not apply.
76R5 DWS-D 292
293-1 Sec. 305.008. CRIMINAL PENALTY. (a) A person commits an
293-2 offense if the person contracts for, charges, or receives interest
293-3 on a transaction for personal, family, or household use that is
293-4 greater than twice the amount authorized by this subtitle.
293-5 (b) An offense under this section is a misdemeanor
293-6 punishable by a fine of not more than $1,000.
293-7 (c) Each contract or transaction that violates this section
293-8 is a separate offense.
293-9 (d) This section applies only to a contract or transaction
293-10 subject to this subtitle.
293-11 SUBCHAPTER B. EXCEPTION FROM LIABILITY
293-12 Sec. 305.101. ACCIDENTAL AND BONA FIDE ERROR. A creditor is
293-13 not subject to penalty under this chapter for any usurious interest
293-14 that results from an accidental and bona fide error.
293-15 Sec. 305.102. LEGAL INTEREST DURING INTEREST-FREE PERIOD. A
293-16 person is not liable to an obligor solely because the person
293-17 charges or receives legal interest before the 30th day after the
293-18 date on which the debt is due.
293-19 Sec. 305.103. CORRECTION OF VIOLATION. (a) A creditor is
293-20 not liable to an obligor for a violation of this subtitle if:
293-21 (1) not later than the 60th day after the date the
293-22 creditor actually discovered the violation, the creditor corrects
293-23 the violation as to that obligor by taking any necessary action and
293-24 making any necessary adjustment, including the payment of interest
293-25 on a refund, if any, at the applicable rate provided for in the
293-26 contract of the parties; and
76R5 DWS-D 293
294-1 (2) the creditor gives written notice to the obligor
294-2 of the violation before the obligor gives written notice of the
294-3 violation or files an action alleging the violation.
294-4 (b) For the purposes of Subsection (a), a violation is
294-5 actually discovered at the time of the discovery of the violation
294-6 in fact and not at the time when an ordinarily prudent person,
294-7 through reasonable diligence, could or should have discovered or
294-8 known of the violation. Actual discovery of a violation in one
294-9 transaction may constitute actual discovery of the same violation
294-10 in other transactions if the violation is of such a nature that it
294-11 would necessarily be repeated and would be clearly apparent in the
294-12 other transactions without the necessity of examining all the other
294-13 transactions.
294-14 (c) For purposes of Subsection (a), written notice is given
294-15 when the notice is delivered to the person or to the person's
294-16 authorized agent or attorney of record personally, by telecopier,
294-17 or by United States mail to the address shown on the most recent
294-18 documents in the transaction. Deposit of the notice as registered
294-19 or certified mail in a postage paid, properly addressed wrapper in
294-20 a post office or official depository under the care and custody of
294-21 the United States Postal Service is prima facie evidence of the
294-22 delivery of the notice to the person to whom the notice is
294-23 addressed.
294-24 Sec. 305.104. CORRECTION EXCEPTION AVAILABLE TO ALL
294-25 SIMILARLY SITUATED. If in a single transaction more than one
294-26 creditor may be liable for a violation of this subtitle, compliance
76R5 DWS-D 294
295-1 with Section 305.103 by any of those creditors entitles each to the
295-2 same protection provided by that section.
295-3 Sec. 305.105. AMOUNTS PAYABLE PURSUANT TO A FINAL JUDGMENT.
295-4 A creditor is not liable to an obligor for a violation of this
295-5 subtitle if the creditor receives interest that has been awarded
295-6 pursuant to a final judgment that is no longer subject to
295-7 modification or reversal.
295-8 CHAPTER 306. COMMERCIAL TRANSACTIONS
295-9 SUBCHAPTER A. GENERAL PROVISIONS
295-10 Sec. 306.001. DEFINITIONS. In this chapter:
295-11 (1) "Account purchase transaction" means an agreement
295-12 under which a person engaged in a commercial enterprise sells
295-13 accounts, instruments, documents, or chattel paper subject to this
295-14 subtitle at a discount, regardless of whether the person has a
295-15 repurchase obligation related to the transaction.
295-16 (2) "Affiliate of an obligor" means a person who
295-17 directly or indirectly, through one or more intermediaries,
295-18 controls, is controlled by, or is under common control with the
295-19 obligor. In this subdivision "control" means the possession,
295-20 directly or indirectly, of the power to direct or cause the
295-21 direction of the management and policies of a person, whether
295-22 through the ownership of voting securities, by contract, or
295-23 otherwise.
295-24 (3) "Asset-backed securities" means debt obligations
295-25 or certificates of beneficial ownership that:
295-26 (A) are a part of a single issue or single
76R5 DWS-D 295
296-1 series of securities in an aggregate of $1 million or more and
296-2 issuable in one or more classes;
296-3 (B) are secured by a pledge of, or represent an
296-4 undivided ownership interest in:
296-5 (i) one or more fixed or revolving
296-6 financial assets that by their terms convert into cash within a
296-7 definite period; and
296-8 (ii) rights or other assets designed to
296-9 assure the servicing or timely distribution of proceeds to security
296-10 holders; and
296-11 (C) are issued for a business, commercial,
296-12 agricultural, investment, or similar purpose by a pass-through
296-13 entity.
296-14 (4) "Business entity" means a partnership,
296-15 corporation, joint venture, limited liability company, or other
296-16 business organization or business association, however organized.
296-17 (5) "Commercial loan" means a loan that is made
296-18 primarily for business, commercial, investment, agricultural, or
296-19 similar purposes. The term does not include a loan made primarily
296-20 for personal, family, or household use.
296-21 (6) "Guaranty" means an agreement under which a
296-22 person:
296-23 (A) assumes, guarantees, or otherwise becomes
296-24 primarily or contingently liable for the payment or performance of
296-25 an obligation of another person;
296-26 (B) provides security, by creation of a lien or
76R5 DWS-D 296
297-1 security interest or otherwise, for the payment or performance of
297-2 an obligation of another person; or
297-3 (C) agrees to purchase or to advance
297-4 consideration to purchase an obligation of another person or
297-5 property that is security for the payment or performance of the
297-6 obligation.
297-7 (7) "Pass-through entity" means a business entity,
297-8 association, grantor or common-law trust under state law, or
297-9 segregated pool of assets under federal tax law that, on the date
297-10 of original issuance of asset-backed securities, does not have
297-11 significant assets other than:
297-12 (A) assets pledged to or held for the benefit of
297-13 holders of the asset-backed securities; or
297-14 (B) assets pledged to or held for the benefit of
297-15 holders of other asset-backed securities previously issued.
297-16 (8) "Prepayment penalty" means compensation paid by or
297-17 that is or will become due from an obligor to a creditor solely as
297-18 a result or condition of the payment or maturity of all or a
297-19 portion of the principal amount of a loan before its stated
297-20 maturity or a regularly scheduled date of payment, as a result of
297-21 an obligor's election to pay all or a portion of the principal
297-22 amount before its stated maturity or a regularly scheduled date of
297-23 payment.
297-24 (9) "Qualified commercial loan" means:
297-25 (A) a commercial loan in the original principal
297-26 amount of $3 million or more; or
76R5 DWS-D 297
298-1 (B) a renewal or extension of a commercial loan
298-2 in the original principal amount of $3 million or more, regardless
298-3 of whether the principal amount of the loan when renewed or
298-4 extended is $3 million or more.
298-5 Sec. 306.002. INTEREST; APPLICATION OF OTHER PROVISIONS OF
298-6 SUBTITLE. (a) A creditor may contract for, charge, and receive
298-7 from an obligor on a commercial loan a rate or amount of interest
298-8 that does not exceed the applicable ceilings computed in accordance
298-9 with Chapter 303.
298-10 (b) All other applicable provisions, remedies, and penalties
298-11 of this subtitle apply to a commercial loan unless this chapter
298-12 expressly provides otherwise.
298-13 Sec. 306.003. COMPUTATION OF TERM. A creditor and an
298-14 obligor may agree to compute the term and rate of a commercial loan
298-15 based on a 360-day year consisting of 12 30-day months. For
298-16 purposes of this chapter, each rate ceiling expressed as a rate per
298-17 year may mean a rate per year consisting of 360 days and of 12
298-18 30-day months.
298-19 Sec. 306.004. DETERMINING RATES OF INTEREST BY SPREADING.
298-20 (a) To determine whether a commercial loan is usurious, the
298-21 interest rate is computed by amortizing or spreading, using the
298-22 actuarial method during the stated term of the loan, all interest
298-23 at any time contracted for, charged, or received in connection with
298-24 the loan.
298-25 (b) If a commercial loan is paid in full before the end of
298-26 the stated term of the loan and the amount of interest received for
76R5 DWS-D 298
299-1 the period that the loan exists exceeds the amount that produces
299-2 the maximum rate authorized by law for that period, the lender
299-3 shall:
299-4 (1) refund the amount of the excess to the borrower;
299-5 or
299-6 (2) credit the amount of the excess against amounts
299-7 owing under the loan.
299-8 (c) A lender who complies with Subsection (b) is not subject
299-9 to any of the penalties provided by law for contracting for,
299-10 charging, or receiving interest in excess of the maximum rate
299-11 authorized.
299-12 Sec. 306.005. PREPAYMENT PENALTY. A creditor and an obligor
299-13 may agree to a prepayment penalty in a loan subject to this
299-14 chapter. A prepayment penalty is not interest.
299-15 Sec. 306.006. CERTAIN AUTHORIZED CHARGES ON COMMERCIAL
299-16 LOANS. In addition to the interest authorized by this chapter, the
299-17 parties to a commercial loan may agree and stipulate for:
299-18 (1) a delinquency charge on the amount of any
299-19 installment or other amount in default for a period of not less
299-20 than 10 days in a reasonable amount not to exceed five percent of
299-21 the total amount of the installment; and
299-22 (2) a returned check fee in an amount not to exceed
299-23 $25 on any check, draft, order, or other instrument or form of
299-24 remittance that is returned unpaid or dishonored for any reason.
299-25 SUBCHAPTER B. PROVISIONS RELATING TO SPECIFIC TYPES OF
299-26 COMMERCIAL LOANS OR TRANSACTIONS
76R5 DWS-D 299
300-1 Sec. 306.101. QUALIFIED COMMERCIAL LOAN. (a) The parties
300-2 to a qualified commercial loan agreement may contract for a rate or
300-3 amount of interest that does not exceed the applicable rate
300-4 ceiling.
300-5 (b) The parties to a qualified commercial loan agreement may
300-6 contract for the following charges:
300-7 (1) a discount or commission that an obligor has paid
300-8 or agreed to pay to one or more underwriters of securities issued
300-9 by the obligor;
300-10 (2) an option or right to exchange, redeem, or convert
300-11 all or a portion of the principal amount of the loan, or interest
300-12 on the principal amount, for or into capital stock or other equity
300-13 securities of an obligor or of an affiliate of an obligor;
300-14 (3) an option or right to purchase capital stock or
300-15 other equity securities of an obligor or of an affiliate of an
300-16 obligor;
300-17 (4) an option or other right created by contract,
300-18 conveyance, or otherwise, to participate in or own a share of the
300-19 income, revenues, production, or profits:
300-20 (A) of an obligor or of an affiliate of an
300-21 obligor;
300-22 (B) of any segment of the business or operations
300-23 of an obligor or of an affiliate of an obligor; or
300-24 (C) derived or to be derived from ownership
300-25 rights of an obligor or of an affiliate of an obligor in property,
300-26 including any proceeds of the sale or other disposition of
76R5 DWS-D 300
301-1 ownership rights; or
301-2 (5) compensation realized as a result of the receipt,
301-3 exercise, sale, or other disposition of an option or other right
301-4 described by this subsection.
301-5 (c) A charge under Subsection (b) is not interest.
301-6 Sec. 306.102. ASSET-BACKED SECURITIES TRANSACTION. An
301-7 amount that is paid, passed through, or obligated to be paid or to
301-8 be passed through in connection with asset-backed securities or
301-9 that is not paid as a result of a discounted sale price to the
301-10 holders of asset-backed securities by a pass-through entity is not
301-11 interest. This section does not affect interest that is agreed on
301-12 and fixed by the parties to a written contract and paid, charged,
301-13 or received on the ultimate underlying assets pledged to or held
301-14 for the benefit of holders of asset-backed securities.
301-15 Sec. 306.103. ACCOUNT PURCHASE TRANSACTION. (a) An amount
301-16 of a discount in, or charged under, an account purchase transaction
301-17 is not interest.
301-18 (b) For the purposes of this chapter, the parties'
301-19 characterization of an account purchase transaction as a purchase
301-20 is conclusive that the account purchase transaction is not a
301-21 transaction for the use, forbearance, or detention of money.
301-22 CHAPTER 339. MISCELLANEOUS PROVISIONS RELATING TO INTEREST
301-23 Sec. 339.001. IMPOSITION OF SURCHARGE FOR USE OF CREDIT
301-24 CARD. (a) In a sale of goods or services, a seller may not impose
301-25 a surcharge on a buyer who uses a credit card for an extension of
301-26 credit instead of cash, a check, or a similar means of payment.
76R5 DWS-D 301
302-1 (b) This section does not apply to a state agency, county,
302-2 local governmental entity, or other governmental entity that
302-3 accepts a credit card for the payment of fees, taxes, or other
302-4 charges.
302-5 Sec. 339.002. BILLING CYCLE INTEREST LIMITATION ON OPEN-END
302-6 ACCOUNT WITHOUT MERCHANT DISCOUNT. (a) This section applies to an
302-7 open-end account agreement that provides for credit card
302-8 transactions:
302-9 (1) in which the creditor relies on one of the
302-10 ceilings authorized by Chapter 303 for the rate of interest; and
302-11 (2) in connection with which the creditor does not
302-12 impose or receive a merchant discount.
302-13 (b) Interest or time price differential may not be charged
302-14 for a billing cycle of an open-end account credit agreement if:
302-15 (1) the total amount of the obligor's payments during
302-16 the cycle equal or exceed the balance owed under the agreement at
302-17 the end of the preceding billing cycle; or
302-18 (2) an amount is not owed under the agreement at the
302-19 end of the preceding billing cycle.
302-20 Sec. 339.003. SALE OF OPEN-END ACCOUNT WITHOUT MERCHANT
302-21 DISCOUNT. A seller or lessor may sell an open-end account credit
302-22 agreement described by Section 339.002(a) or any balance under that
302-23 agreement to a purchaser who purchases a substantial part of the
302-24 seller's or lessor's open-end account credit agreements or balances
302-25 under those agreements in accordance with Subchapter G, Chapter
302-26 345. A charge, fee, or discount on that sale:
76R5 DWS-D 302
303-1 (1) is not a merchant discount;
303-2 (2) does not disqualify the open-end account credit
303-3 agreement or a balance under that agreement from being subject to
303-4 Chapter 303 or from coverage under this section; and
303-5 (3) does not subject the account to the limitations
303-6 provided by Section 303.006(c).
303-7 Sec. 339.004. APPLICATION OF LICENSING REQUIREMENT AND
303-8 SUBTITLE B TO CREDIT UNION OR EMPLOYEE BENEFIT PLAN. (a) A credit
303-9 union is not subject to Subtitle B and is not required to obtain a
303-10 license under this title.
303-11 (b) With respect to a loan that an employee benefit plan
303-12 that is subject to Title I of the Employee Retirement Income
303-13 Security Act of 1974 (29 U.S.C. Sections 1001-1114) makes to a
303-14 participant in the plan or a participant's beneficiary, the plan is
303-15 not subject to Subtitle B and is not required to obtain a license
303-16 under this title.
303-17 [SUBTITLE A. INTEREST]
303-18 [CHAPTER 301. GENERAL PROVISIONS]
303-19 [Sec. 301.001. DEFINITIONS. In Subtitles A and B:]
303-20 [(1) "Credit card transaction" means a transaction in
303-21 which a card that may be used for personal, family, or household
303-22 use is used to debit an open-end account in connection with:]
303-23 [(A) a purchase or lease of goods or services;
303-24 or]
303-25 [(B) a loan of money.]
303-26 [(2) "Merchant discount" means the consideration,
76R5 DWS-D 303
304-1 including a charge, fee, discount, or compensating balance, that a
304-2 creditor requires, or that a creditor, subsidiary or parent company
304-3 of the creditor, or subsidiary of the creditor's parent company
304-4 receives directly or indirectly, from a person other than the
304-5 obligor in connection with a credit card transaction under a lender
304-6 credit card agreement between the obligor and the creditor. The
304-7 term does not include consideration received by a creditor from the
304-8 obligor in connection with the credit card transaction.]
304-9 [(3) "Open-end account" means an account under a
304-10 written contract between a creditor and an obligor that authorizes
304-11 the obligor to make purchases or borrow money from time to time and
304-12 authorizes the charging of interest or time price differential
304-13 computed on an outstanding unpaid balance. The term includes an
304-14 account under an agreement described by Section 342.610 or 343.305
304-15 or Chapter 345 or 346.]
304-16 [(4) "Usury" means interest that exceeds the
304-17 applicable maximum amount allowed by law.]
304-18 [Sec. 301.002. INTEREST. (a) Interest is the compensation
304-19 allowed by law for the use, forbearance, or detention of money.]
304-20 [(b) Time price differential, regardless of how it is
304-21 denominated, arising out of a credit sale is not interest.]
304-22 [(c) An amount that is paid, passed through, or obligated to
304-23 be paid or passed through in connection with asset-backed
304-24 securities or that is not paid as a result of a discounted sale
304-25 price to the holders of asset-backed securities by a pass-through
304-26 entity, regardless of the denomination of the amount under the
76R5 DWS-D 304
305-1 terms of the asset-backed securities, is not interest. This
305-2 subsection does not affect interest that is agreed on and fixed by
305-3 the parties to a written contract and paid, charged, or received on
305-4 the ultimate underlying assets pledged to or held for the benefit
305-5 of the holders of asset-backed securities.]
305-6 [(d) In this section:]
305-7 [(1) "Asset-backed securities" means debt obligations
305-8 or certificates of beneficial ownership that:]
305-9 [(A) are a part of a single issue or single
305-10 series of securities in an aggregate of $1 million or more and
305-11 issuable in one or more classes;]
305-12 [(B) are secured by a pledge of, or represent an
305-13 undivided ownership interest in:]
305-14 [(i) one or more fixed or revolving
305-15 financial assets that by their terms convert into cash within a
305-16 definite period; and]
305-17 [(ii) rights or other assets designed to
305-18 assure the servicing or timely distribution of proceeds to security
305-19 holders; and]
305-20 [(C) are issued for a business, commercial,
305-21 agricultural, investment, or similar purpose by a pass-through
305-22 entity.]
305-23 [(2) "Pass-through entity" means a corporation,
305-24 limited liability company, association, general partnership,
305-25 registered limited liability partnership, limited partnership or
305-26 business, grantor or common-law trust under state law, or
76R5 DWS-D 305
306-1 segregated pool of assets under federal tax law that on the date of
306-2 original issuance of asset-backed securities does not have
306-3 significant assets other than:]
306-4 [(A) assets pledged to or held for the benefit
306-5 of holders of the asset-backed securities; or]
306-6 [(B) assets pledged to or held for the benefit
306-7 of holders of other asset-backed securities previously issued.]
306-8 [Sec. 301.003. LENDER CREDIT CARD AGREEMENT. (a) An
306-9 agreement between a creditor and an obligor is a lender credit card
306-10 agreement if the agreement provides that:]
306-11 [(1) the obligor, by means of a credit card and for
306-12 personal, family, or household use, may:]
306-13 [(A) obtain loans from the creditor directly or
306-14 through other participating persons; and]
306-15 [(B) lease or purchase goods or services from
306-16 more than one participating lessor or seller who honors the
306-17 creditor's credit card;]
306-18 [(2) the creditor or another person acting in
306-19 cooperation with the creditor is to reimburse the participating
306-20 persons, lessors, or sellers for the loans or the goods or services
306-21 purchased or leased;]
306-22 [(3) the obligor is to pay the creditor the amount of
306-23 the loan or cost of the lease or purchase;]
306-24 [(4) the unpaid balance of the loan, lease, or
306-25 purchase and interest on that unpaid balance are debited to the
306-26 obligor's account under the agreement;]
76R5 DWS-D 306
307-1 [(5) interest may be computed on the balances of the
307-2 obligor's account from time to time outstanding but is not
307-3 precomputed; and]
307-4 [(6) the obligor may defer payment of any part of the
307-5 balance.]
307-6 [(b) An agreement under Section 342.610, 343.305, or 346.003
307-7 for an open-end account under which credit card transactions may be
307-8 made or a merchant discount may be taken is a lender credit card
307-9 agreement.]
307-10 [(c) The following is not a lender credit card agreement:]
307-11 [(1) an agreement, including an open-end account
307-12 credit agreement, between a seller and a buyer or between a lessor
307-13 and a lessee; or]
307-14 [(2) an agreement under which:]
307-15 [(A) the entire balance is due in full each
307-16 month; and]
307-17 [(B) no interest is charged if the obligor pays
307-18 the entire balance each month.]
307-19 [(d) On an amount owed for a credit card transaction under a
307-20 lender credit card agreement in connection with which a merchant
307-21 discount is imposed or received by the creditor, the creditor may
307-22 not contract for, charge, or receive a fee or charge that:]
307-23 [(1) is not allowed under Chapter 346; or]
307-24 [(2) exceeds the amount allowed under Chapter 346.]
307-25 [CHAPTER 302. INTEREST RATES]
307-26 [SUBCHAPTER A. GENERAL PROVISIONS]
76R5 DWS-D 307
308-1 [Sec. 302.001. ALLOWABLE INTEREST IN ABSENCE OF OTHER LAW.
308-2 (a) Except as otherwise fixed by law, the maximum rate of interest
308-3 is 10 percent per year.]
308-4 [(b) Unless otherwise authorized by law, a rate of interest
308-5 greater than 10 percent per year is usurious. A contract for usury
308-6 is contrary to public policy and is subject to the appropriate
308-7 penalties under Chapter 305.]
308-8 [Sec. 302.002. ALLOWABLE INTEREST WHEN NO RATE SPECIFIED.
308-9 When no specified rate of interest is agreed on by the parties,
308-10 interest at the rate of six percent per year is allowed on all
308-11 accounts and contracts ascertaining the amount payable, beginning
308-12 on the 30th day after the date on which the amount is due and
308-13 payable.]
308-14 [SUBCHAPTER B. INTEREST PROVISIONS APPLICABLE TO CERTAIN LOANS]
308-15 [Sec. 302.101. DETERMINING USURY BY AMORTIZING, PRORATING,
308-16 ALLOCATING, AND SPREADING INTEREST. (a) To determine whether a
308-17 loan secured, in whole or part, by an interest, including a lien,
308-18 mortgage, or security interest, in real property is usurious, the
308-19 interest rate is computed by amortizing, prorating, allocating, and
308-20 spreading, in equal parts during the stated term of the loan, all
308-21 interest at any time contracted for, charged, or received in
308-22 connection with the loan.]
308-23 [(b) If a loan described by Subsection (a) is paid in full
308-24 before the end of the loan's stated term and the amount of interest
308-25 received for the period that the loan exists exceeds the amount
308-26 that produces the maximum lawful rate for that period, the lender
76R5 DWS-D 308
309-1 shall:]
309-2 [(1) refund the amount of the excess to the borrower;
309-3 or]
309-4 [(2) credit the amount of the excess against amounts
309-5 owing under the loan.]
309-6 [(c) A lender who complies with Subsection (b) is not
309-7 subject to any of the penalties provided by law for contracting
309-8 for, charging, or receiving interest in excess of the maximum
309-9 lawful rate.]
309-10 [Sec. 302.102. INTEREST RATE ON AMOUNTS OF $250,000 OR MORE.
309-11 (a) The maximum interest rate under such an agreement is 18
309-12 percent a year if the loan's interest rate is set out in a written
309-13 contract, including a bond or note, that provides for:]
309-14 [(1) a loan or other extension of credit the original
309-15 principal amount of which is $250,000 or more;]
309-16 [(2) a series of advances the total amount of which is
309-17 to be $250,000 or more; or]
309-18 [(3) an extension or renewal of a loan or other
309-19 extension of credit described by this subsection, regardless of the
309-20 amount of outstanding principal balance at the time of the renewal
309-21 or extension.]
309-22 [(b) As to a contract that satisfies Subsection (a), the
309-23 claim or defense of usury may not be used by:]
309-24 [(1) a party to the agreement or that person's heirs,
309-25 personal representatives, successors, or substitute or another
309-26 person acting on that person's behalf;]
76R5 DWS-D 309
310-1 [(2) a person acting with respect to the agreement as
310-2 a guarantor, surety, accommodation maker, or endorser;]
310-3 [(3) a person who becomes liable for payment of the
310-4 obligation; or]
310-5 [(4) a person owning or acquiring property that is
310-6 subject to a lien securing the obligation.]
310-7 [(c) This section does not apply to a loan or other
310-8 extension of credit secured by a lien on:]
310-9 [(1) a building, constructed or to be constructed,
310-10 that is:]
310-11 [(A) used or intended to be used as a single
310-12 one-to-four-family residence; and]
310-13 [(B) occupied or intended to be occupied by a
310-14 person obligated to pay the loan or other extension of credit; or]
310-15 [(2) land intended to be used primarily for
310-16 agricultural or ranching purposes.]
310-17 [Sec. 302.103. INTEREST RATE ON OIL AND GAS LOANS OF
310-18 $500,000 OR MORE. (a) The maximum interest rate on a loan for the
310-19 payment of the direct or indirect costs of exploration for oil and
310-20 gas, the development of oil and gas properties, or the reworking of
310-21 oil or gas wells is equal to the maximum rate applicable to a
310-22 corporation, other than a nonprofit corporation, if:]
310-23 [(1) the principal amount of the loan is $500,000 or
310-24 more; and]
310-25 [(2) at the time the loan is made the lender
310-26 reasonably estimates that the value of the collateral securing the
76R5 DWS-D 310
311-1 loan is more than the amount of the loan.]
311-2 [(b) A loan that satisfies Subsection (a) is not subject to
311-3 the defense of usury or a penalty for usury.]
311-4 [Sec. 302.104. INTEREST RATE ON LOAN MADE ON OR BEFORE
311-5 AUGUST 31, 1981, AND SECURED BY RESIDENCE. (a) The maximum
311-6 interest rate on a loan that is secured in any part by an interest,
311-7 including a lien, mortgage, or security interest, in real property
311-8 on which one or more single-family dwellings or dwelling units for
311-9 not more than four families in the aggregate are located is a rate
311-10 permitted by other applicable law or the lesser of:]
311-11 [(1) 12 percent a year; or]
311-12 [(2) the rate computed by:]
311-13 [(A) adding two percent a year to the average
311-14 annual market yield rate adjusted to constant maturities on 10-year
311-15 United States Treasury notes and bonds as published by the board of
311-16 governors of the Federal Reserve System for the second calendar
311-17 month preceding the month in which the lender becomes legally bound
311-18 to make the loan; and]
311-19 [(B) rounding the result under Paragraph (A) to
311-20 the nearest quarter of one percent a year.]
311-21 [(b) Before the 20th day of each month, the savings and loan
311-22 commissioner shall publish in the Texas Register the average annual
311-23 market yield rate adjusted to constant maturities on 10-year United
311-24 States Treasury notes and bonds for the preceding calendar month.]
311-25 [(c) On a loan described by Subsection (a) that has an
311-26 interest rate that is more than the applicable rate authorized by
76R5 DWS-D 311
312-1 Chapter 303, a prepayment charge or penalty may not be collected
312-2 unless the collection of the charge or penalty is required by an
312-3 agency created by federal law.]
312-4 [(d) The interest rates authorized by this section are not
312-5 applicable to a loan made after August 31, 1981, unless the lender
312-6 became legally bound to make that loan before September 1, 1981.]
312-7 [(e) In this section, "dwelling unit" means a unified
312-8 combination of rooms that is designed for residential use by one
312-9 family.]
312-10 [Sec. 302.105. INTEREST RATE ON LOANS FOR RESIDENCES BY
312-11 FINANCIAL INSTITUTIONS USING CERTAIN DISCRIMINATORY PRACTICES. (a)
312-12 A financial institution may not charge interest on a loan under
312-13 Section 302.104 and the maximum interest rate on the loan is 10
312-14 percent a year if in connection with the loan the financial
312-15 institution:]
312-16 [(1) discriminates in providing or granting financial
312-17 assistance to purchase, rehabilitate, improve, or refinance a
312-18 housing accommodation due, in whole or part, to the consideration
312-19 of:]
312-20 [(A) conditions, characteristics, or trends in
312-21 the neighborhood where the property is located, unless the
312-22 financial institution can demonstrate that such a consideration for
312-23 that loan is required to avoid an unsafe or unsound business
312-24 practice; or]
312-25 [(B) race, color, religion, sex, marital status,
312-26 national origin, or ancestry; or]
76R5 DWS-D 312
313-1 [(2) in appraising a housing accommodation or in
313-2 determining whether, or under what conditions, to provide financial
313-3 assistance to purchase, rehabilitate, improve, or refinance a
313-4 housing accommodation, considers:]
313-5 [(A) the racial, ethnic, religious, or national
313-6 origin composition of the neighborhood or geographic area
313-7 surrounding the property; or]
313-8 [(B) whether the composition described by
313-9 Paragraph (A) is undergoing or is expected to undergo change.]
313-10 [(b) In this section:]
313-11 [(1) "Financial institution" means a state or national
313-12 bank, state or federal savings and loan association, mortgage
313-13 banking institution, or credit union.]
313-14 [(2) "Housing accommodation" means improved or
313-15 unimproved real property, or a part of that property, that is used
313-16 or occupied or is intended, arranged, or designed to be used or
313-17 occupied as the residence of one or more individuals.]
313-18 [Sec. 302.106. OPTIONAL INTEREST RATES. The optional
313-19 interest rate ceilings provided by Chapter 303 apply to a loan or
313-20 other extension of credit described by this subchapter regardless
313-21 of whether the rates provided by this subchapter are applicable to
313-22 the loan or extension of credit.]
313-23 [Sec. 302.107. PROHIBITION ON PREPAYMENT CHARGE OR PENALTY.
313-24 If a loan for property that is to be the residential homestead of
313-25 the borrower is made at an interest rate that is greater than the
313-26 rate provided by Section 302.104, a prepayment charge or penalty
76R5 DWS-D 313
314-1 may not be collected on the loan unless the charge or penalty is
314-2 required by an agency created by federal law.]
314-3 [SUBCHAPTER C. OTHER SPECIAL RATES]
314-4 [Sec. 302.201. INTEREST CHARGED BY REGISTERED SECURITIES
314-5 BROKERS OR DEALERS. (a) A broker or dealer registered under the
314-6 federal Securities Exchange Act of 1934 (15 U.S.C. Section 77b et
314-7 seq.), including subsequent amendments to that Act, and The
314-8 Securities Act (Article 581-1 et seq., Vernon's Texas Civil
314-9 Statutes) may charge in accordance with this section interest for
314-10 carrying in an account for a customer a debit balance that is:]
314-11 [(1) payable on demand or at will by the customer
314-12 without penalty; and]
314-13 [(2) secured by stocks, bonds, or other securities.]
314-14 [(b) The interest rate charged under this section may not
314-15 exceed the greater of:]
314-16 [(1) the rate authorized under Chapter 303; or]
314-17 [(2) 1-1/2 percent a month on the monthly debit
314-18 balance.]
314-19 [(c) Interest charged under this section is not subject to
314-20 any other provision of this title.]
314-21 [Sec. 302.202. LOANS GUARANTEED OR INSURED BY AN AGENCY OF
314-22 THE UNITED STATES. (a) A loan insured by the Department of
314-23 Housing and Urban Development under the National Housing Act (12
314-24 U.S.C. Section 1701 et seq.), including subsequent amendments to
314-25 that Act, may accrue interest, or be discounted, at a rate
314-26 permitted under that Act and regulations adopted under it.]
76R5 DWS-D 314
315-1 [(b) A loan guaranteed or insured by the Department of
315-2 Veterans Affairs or its successor under the federal veterans'
315-3 benefits laws (38 U.S.C. Section 3701 et seq.), including
315-4 subsequent amendments, may accrue interest, or be discounted, at a
315-5 rate permitted under those laws and regulations adopted under those
315-6 laws.]
315-7 [CHAPTER 303. OPTIONAL INTEREST RATE CEILINGS]
315-8 [SUBCHAPTER A. GENERAL PROVISIONS]
315-9 [Sec. 303.001. USE OF CEILINGS. (a) Except as provided by
315-10 Subchapter B, a person may contract for, charge, or receive a rate
315-11 or amount that does not exceed the applicable ceiling provided by
315-12 this chapter. The use of a ceiling provided by this chapter for a
315-13 contract, including a contract for an open-end account, is
315-14 optional. A contract may provide for any rate or amount allowed by
315-15 other applicable law.]
315-16 [(b) A contract that is subject to Chapter 343, 344, 345,
315-17 347, or 348, including a contract for an open-end account, may, as
315-18 an alternative to a rate or amount allowed under that chapter,
315-19 provide for a simple or precomputed rate or amount that does not
315-20 exceed the applicable ceiling provided by this chapter.]
315-21 [(c) Except as inconsistent with this chapter, a party to a
315-22 contract that is subject to Chapter 342, 343, 344, 345, 347, or 348
315-23 or the party's assignee has all the rights, duties, and obligations
315-24 under the applicable chapter, including those relating to refund
315-25 credits on prepayment or acceleration.]
315-26 [Sec. 303.002. CHARGING OF RATE LOWER THAN AGREED RATE.
76R5 DWS-D 315
316-1 Unless the creditor and debtor agree otherwise, an agreement by the
316-2 creditor and debtor to a rate is considered an agreement to any
316-3 lower rate that the creditor may elect or that is required under
316-4 Section 303.401 or 303.402.]
316-5 [Sec. 303.003. DETERMINATION OF CEILING FOR CONTRACT TO
316-6 RENEW OR EXTEND DEBT PAYMENT. The ceiling for a contract to renew
316-7 or extend the terms of payment of a debt is the ceiling in effect
316-8 under this chapter when the contract for renewal or extension is
316-9 made, regardless of when the debt was incurred.]
316-10 [SUBCHAPTER B. LIMITATIONS ON APPLICABILITY OF CHAPTER]
316-11 [Sec. 303.101. AGREEMENT TO WHICH CHAPTER DOES NOT APPLY.
316-12 The ceilings provided by this chapter do not apply to an agreement:]
316-13 [(1) under which credit is extended by the seller or
316-14 an owner, subsidiary, or corporate affiliate of the seller for a
316-15 transaction to which Chapter 39, Business & Commerce Code, applies;
316-16 and]
316-17 [(2) that is secured by a lien on the obligor's
316-18 homestead.]
316-19 [Sec. 303.102. RATE FOR LENDER CREDIT CARD AGREEMENT WITH
316-20 MERCHANT DISCOUNT. On an amount owed for a credit card transaction
316-21 under a lender credit card agreement in connection with which a
316-22 merchant discount is imposed or received by the creditor, the
316-23 creditor may not contract for, charge, or receive:]
316-24 [(1) a rate that exceeds the ceiling provided under
316-25 Section 303.205, subject to Sections 303.304(b) and 303.305(d); or]
316-26 [(2) a fee or charge that:]
76R5 DWS-D 316
317-1 [(A) is not allowed under Chapter 346; or]
317-2 [(B) exceeds the amount allowed under Chapter
317-3 346.]
317-4 [SUBCHAPTER C. INTEREST RATE CEILINGS; VARIABLE INTEREST
317-5 RATE]
317-6 [Sec. 303.201. WEEKLY CEILING. The parties to a written
317-7 contract may agree to an interest rate, or in an agreement under
317-8 Chapter 345, 347, or 348, an amount of time price differential
317-9 producing a rate, that does not exceed the applicable weekly
317-10 ceiling.]
317-11 [Sec. 303.202. QUARTERLY CEILING. A written contract,
317-12 including a contract that involves an open-end account, may as an
317-13 alternative to the weekly ceiling provide for an interest rate, or
317-14 in an agreement under Chapter 345, 347, or 348, an amount of time
317-15 price differential producing a rate, that does not exceed the
317-16 applicable quarterly ceiling.]
317-17 [Sec. 303.203. ANNUALIZED CEILING. The annualized ceiling
317-18 may be used as an alternative to the weekly ceiling only for a
317-19 written contract, including an agreement under Chapter 345, 347, or
317-20 348, that involves an open-end account.]
317-21 [Sec. 303.204. MONTHLY CEILING. (a) The monthly ceiling
317-22 may be used as an alternative to the weekly ceiling only for a
317-23 contract:]
317-24 [(1) that provides for a variable rate, including a
317-25 contract for an open-end account;]
317-26 [(2) that is not made for personal, family, or
76R5 DWS-D 317
318-1 household use; and]
318-2 [(3) under which the parties agree that the interest
318-3 rate is subject to monthly adjustment and that the monthly ceiling
318-4 applies.]
318-5 [(b) A contract that provides for the use of the monthly
318-6 ceiling may not provide for the use of another ceiling provided
318-7 under this subchapter.]
318-8 [Sec. 303.205. CEILING ON OPEN-END ACCOUNT INVOLVING CREDIT
318-9 CARD TRANSACTION OR MERCHANT DISCOUNT. Notwithstanding other
318-10 provisions of this subchapter, the rate of interest on an open-end
318-11 account authorized under Section 342.610, 343.305, or 346.003, or
318-12 an amount owed for a lender credit card transaction under another
318-13 type of credit card agreement, in connection with which a merchant
318-14 discount is imposed or received by the creditor may not exceed the
318-15 quarterly ceiling, subject to Sections 303.304(b) and 303.305(d).]
318-16 [Sec. 303.206. VARIABLE RATE. (a) A contract, including a
318-17 contract for an open-end account, may provide for any index,
318-18 formula, or provision of law by which the rate or amount is
318-19 determined.]
318-20 [(b) The rate or amount determined under Subsection (a) may
318-21 not exceed the applicable ceiling from time to time in effect, for
318-22 as long as the debt is outstanding under the contract.]
318-23 [(c) A variable contract rate described by this section may
318-24 not be used in a contract in which the interest or time price
318-25 differential is precomputed and added into the amount of the
318-26 contract at the time the contract is made.]
76R5 DWS-D 318
319-1 [(d) A variable rate contract described by this section that
319-2 does not involve an open-end account may not provide for use of
319-3 both the weekly ceiling and the quarterly ceiling.]
319-4 [Sec. 303.207. EFFECT OF APPLYING MAXIMUM AND MINIMUM TO
319-5 CEILINGS. In this chapter, "weekly ceiling," "monthly ceiling,"
319-6 "quarterly ceiling," or "annualized ceiling" refers to that ceiling
319-7 as determined after the application of Sections 303.304 and
319-8 303.305.]
319-9 [SUBCHAPTER D. COMPUTATION AND PUBLICATION OF CEILINGS]
319-10 [Sec. 303.301. COMPUTATION OF WEEKLY CEILING. (a) The
319-11 weekly ceiling is computed by:]
319-12 [(1) multiplying the auction rate by two; and]
319-13 [(2) rounding the result obtained under Subdivision
319-14 (1) to the nearest one-quarter of one percent.]
319-15 [(b) In this section, "auction rate" means the auction
319-16 average rate quoted on a bank discount basis for 26-week treasury
319-17 bills issued by the United States government, as published by the
319-18 Board of Governors of the Federal Reserve System, for the week
319-19 preceding the week in which the weekly ceiling is to take effect.]
319-20 [Sec. 303.302. COMPUTATION OF QUARTERLY AND ANNUALIZED
319-21 CEILING. (a) On December 1, March 1, June 1, and September 1 of
319-22 each year, the consumer credit commissioner shall compute the
319-23 quarterly ceiling and annualized ceiling for the calendar quarter
319-24 beginning the following January 1, April 1, July 1, and October 1,
319-25 respectively.]
319-26 [(b) The quarterly ceiling or annualized ceiling is computed
76R5 DWS-D 319
320-1 by averaging all of the weekly ceilings computed using average
320-2 rates from auctions held during the three calendar months preceding
320-3 the computation date of the ceiling.]
320-4 [Sec. 303.303. COMPUTATION OF MONTHLY CEILING. (a) The
320-5 consumer credit commissioner shall compute the monthly ceiling on
320-6 the first business day of the calendar month in which the rate
320-7 applies.]
320-8 [(b) The monthly ceiling is computed by averaging all of the
320-9 weekly ceilings computed using rates from auctions held during the
320-10 calendar month preceding the computation date of the monthly
320-11 ceiling.]
320-12 [Sec. 303.304. MINIMUM WEEKLY, MONTHLY, QUARTERLY, OR
320-13 ANNUALIZED CEILING. (a) Except as provided by Subsection (b), if
320-14 the rate computed for the weekly ceiling, monthly ceiling,
320-15 quarterly ceiling, or annualized ceiling is less than 18 percent a
320-16 year, the ceiling is 18 percent a year.]
320-17 [(b) For an open-end account authorized under Section
320-18 342.610, 343.305, or 346.003, in connection with which credit card
320-19 transactions are authorized or a merchant discount is imposed or
320-20 received by the creditor, if the rate computed for the quarterly
320-21 ceiling is less than 14 percent a year, the quarterly ceiling is 14
320-22 percent a year.]
320-23 [Sec. 303.305. MAXIMUM WEEKLY, MONTHLY, QUARTERLY, OR
320-24 ANNUALIZED CEILING. (a) Except as provided by Subsection (b),
320-25 (c), or (d), if the rate computed for the weekly ceiling, monthly
320-26 ceiling, quarterly ceiling, or annualized ceiling is more than 24
76R5 DWS-D 320
321-1 percent a year, the ceiling is 24 percent a year.]
321-2 [(b) For a contract made, extended, or renewed under which
321-3 credit is extended in any part for a business, commercial,
321-4 investment, or similar purpose, but excluding a contract that is
321-5 not for any of those purposes and is primarily for personal,
321-6 family, household, or agricultural use, and the amount of the
321-7 credit extension is more than $250,000, if the rate computed for
321-8 the weekly ceiling, monthly ceiling, quarterly ceiling, or
321-9 annualized ceiling is more than 28 percent a year, the ceiling is
321-10 28 percent a year.]
321-11 [(c) For an open-end account credit agreement that provides
321-12 for credit card transactions on which a merchant discount is not
321-13 imposed or received by the creditor, if the rate computed for the
321-14 weekly ceiling, monthly ceiling, quarterly ceiling, or annualized
321-15 ceiling is more than 21 percent a year, the ceiling is 21 percent a
321-16 year.]
321-17 [(d) For an open-end account authorized under Section
321-18 342.610, 343.305, or 346.003, in connection with which credit card
321-19 transactions are authorized or a merchant discount is imposed or
321-20 received by the creditor, if the rate computed for the quarterly
321-21 ceiling is more than 22 percent a year, the quarterly ceiling is 22
321-22 percent a year.]
321-23 [Sec. 303.306. COMPUTATION OF CEILING IF INFORMATION
321-24 UNAVAILABLE. (a) If any of the information required to compute a
321-25 ceiling under this subchapter is not available to the consumer
321-26 credit commissioner from the Federal Reserve Board in the time
76R5 DWS-D 321
322-1 required for the computation, the consumer credit commissioner
322-2 shall obtain that information from a reliable source satisfactory
322-3 to the commissioner.]
322-4 [(b) If information is not available, the ceiling last
322-5 computed remains in effect until the ceiling is computed from the
322-6 obtained information.]
322-7 [Sec. 303.307. PUBLICATION OF CEILINGS. (a) The consumer
322-8 credit commissioner shall send the ceilings computed under this
322-9 subchapter to the secretary of state for publication in the Texas
322-10 Register.]
322-11 [(b) The monthly, quarterly, or annualized ceiling shall be
322-12 published before the 11th day after the day on which the ceiling is
322-13 computed and the weekly ceiling shall be published from time to
322-14 time.]
322-15 [Sec. 303.308. JUDICIAL NOTICE. A court may take judicial
322-16 notice of information published in the Texas Register under Section
322-17 303.307.]
322-18 [SUBCHAPTER E. OPEN-END ACCOUNTS]
322-19 [Sec. 303.401. OPEN-END ACCOUNT: CEILINGS. (a) To use the
322-20 quarterly or annualized ceiling for setting the rate on the current
322-21 and future balances of an open-end account, the agreement for the
322-22 account must provide for use of the ceiling, and the creditor must
322-23 give notice of the rate after the date on which the quarterly or
322-24 annualized ceiling is computed and before the last day of the next
322-25 succeeding calendar quarter.]
322-26 [(b) If the annualized ceiling is used, the rate is
76R5 DWS-D 322
323-1 effective for the 12-month period beginning on the date on which
323-2 the rate takes effect for the account.]
323-3 [(c) If the quarterly ceiling is used, the rate is effective
323-4 for the three-month period beginning on the date on which the rate
323-5 takes effect for the account. For an open-end account authorized
323-6 under Section 342.610, 343.305, or 346.003, in connection with
323-7 which credit card transactions are authorized or a merchant
323-8 discount is imposed or received by the creditor, the quarterly
323-9 ceiling shall be adjusted, at the option of the creditor, on:]
323-10 [(1) the effective dates provided by Section 303.302;
323-11 or]
323-12 [(2) the first day of the first billing cycle of the
323-13 account beginning after those dates.]
323-14 [(d) If a quarterly or annualized ceiling is being used for
323-15 an account and if the rate for the applicable period is less than
323-16 or equal to the ceiling to be in effect for the succeeding period
323-17 of equal length, the creditor may leave that rate in effect for
323-18 that succeeding period.]
323-19 [(e) A creditor who has disclosed to an obligor that an
323-20 election may be renewed under Subsection (d) is not required to
323-21 give additional notice of a renewal under that subsection.]
323-22 [(f) To increase a previously agreed rate, a creditor shall
323-23 comply with Section 303.403 before the end of the last calendar
323-24 quarter of the period in which the rate previously agreed to is in
323-25 effect. The ceiling in effect for that period remains the ceiling
323-26 until the parties to the agreement agree to a new rate.]
76R5 DWS-D 323
324-1 [Sec. 303.402. VARIABLE RATE OPEN-END ACCOUNT: CEILINGS.
324-2 The applicable ceiling for an open-end account agreement that
324-3 provides for a variable rate or amount according to an index,
324-4 formula, or provision of law disclosed to the obligor, other than a
324-5 variable rate commercial contract that is subject to Section
324-6 303.204, is the annualized ceiling, quarterly ceiling, or weekly
324-7 ceiling as disclosed to the obligor. The annualized ceiling shall
324-8 be adjusted after each 12-month period, the quarterly ceiling shall
324-9 be adjusted after each three-month period, and the weekly ceiling
324-10 shall be adjusted weekly.]
324-11 [Sec. 303.403. OPEN-END ACCOUNT: CHANGE OF AGREEMENT TERM.
324-12 (a) An agreement covering an open-end account may provide that the
324-13 creditor may change the terms of the agreement for current and
324-14 future balances of that account by giving notice of the change to
324-15 the obligor.]
324-16 [(b) A notice under this section to change the rate on an
324-17 account or the index, formula, or provision of law used to compute
324-18 the rate must include:]
324-19 [(1) the new rate, or the new index, formula, or
324-20 provision to be used to compute the rate;]
324-21 [(2) the date on which the change is to take effect;]
324-22 [(3) the period for which the change is to be
324-23 effective or after which the rate will be adjusted;]
324-24 [(4) a statement of whether the change is to affect
324-25 current and future balances or only future balances;]
324-26 [(5) the obligor's rights under this section and the
76R5 DWS-D 324
325-1 procedures for the obligor to exercise those rights;]
325-2 [(6) the address to which the obligor may send notice
325-3 of the obligor's election not to continue the open-end account; and]
325-4 [(7) if the rate is increased, the following statement
325-5 printed in not less than 10-point type or computer equivalent:]
325-6 ["YOU MAY TERMINATE THIS AGREEMENT IF YOU DO NOT WISH
325-7 TO PAY THE NEW RATE."]
325-8 [(c) A creditor shall include with a notice required by this
325-9 section a form that may be returned at the expense of the creditor
325-10 and on which the obligor may indicate by checking or marking an
325-11 appropriate box or by a similar arrangement the obligor's decision
325-12 not to continue the account. The form may be included on a part of
325-13 the account statement that is to be returned to the creditor or on
325-14 a separate sheet.]
325-15 [(d) An obligor is considered to have agreed to a change
325-16 under this section if the creditor mails a notice required by this
325-17 section to the obligor's most recent address shown in the
325-18 creditor's records and:]
325-19 [(1) the obligor chooses to retain the privilege of
325-20 using the open-end account;]
325-21 [(2) the obligor or a person authorized by the obligor
325-22 accepts or uses an extension of credit after the fifth day after
325-23 the date on which the notice is mailed; or]
325-24 [(3) the obligor does not notify the creditor in
325-25 writing before the 21st day after the date on which the notice is
325-26 mailed that the obligor does not wish to continue to use the
76R5 DWS-D 325
326-1 open-end account.]
326-2 [(e) An obligor who rejects a rate change in accordance with
326-3 this section is entitled to pay the balance existing on the
326-4 open-end account at the rate and over the period in effect
326-5 immediately before the date of the proposed change and under the
326-6 same minimum payment terms provided by the agreement. Rejection of
326-7 a new rate does not accelerate payment of the balance due.]
326-8 [(f) The procedure provided by this section for changing the
326-9 terms of an agreement is in addition to other means of amending the
326-10 agreement provided by law.]
326-11 [Sec. 303.404. DISCLOSURE OF DECREASE IN INTEREST RATE NOT
326-12 REQUIRED ON OPEN-END ACCOUNTS INVOLVING CREDIT CARD TRANSACTION OR
326-13 MERCHANT DISCOUNT. On an open-end account authorized under Section
326-14 342.610, 343.305, or 346.003, in connection with which credit card
326-15 transactions are authorized or a merchant discount is imposed or
326-16 received by the creditor and on which interest is charged under
326-17 this chapter, the creditor is not required to disclose a decrease
326-18 in the applicable interest rate.]
326-19 [Sec. 303.405. OPEN-END ACCOUNT: DISCLOSURE OF CERTAIN RATE
326-20 VARIATIONS. (a) Except as provided by Subsection (b), a variation
326-21 in a rate on an account resulting from operation of the previously
326-22 disclosed index, formula, or provision of law is not required to be
326-23 disclosed under Section 303.401 or 303.403.]
326-24 [(b) The creditor on an open-end account agreement that
326-25 provides for a variable rate according to an index, formula, or
326-26 provision of law, that is primarily for personal, family, or
76R5 DWS-D 326
327-1 household use, and that is subject to this chapter shall give to
327-2 the obligor notice of a change in the rate resulting from operation
327-3 of the index, formula, or provision of law. The notice must be
327-4 given:]
327-5 [(1) by a document mailed on or before the beginning
327-6 of the first cycle for which the change becomes effective; or]
327-7 [(2) on or with:]
327-8 [(A) the billing statement for a billing cycle
327-9 that precedes the cycle for which the change becomes effective, if
327-10 the account is covered by Section 339.002 or 303.205; or]
327-11 [(B) any billing statement, if the account is
327-12 not covered by Section 339.002 or 303.205.]
327-13 [Sec. 303.406. OPEN-END ACCOUNT: CEILING FOR PLAN OR
327-14 ARRANGEMENT. If a creditor implements a quarterly or annualized
327-15 ceiling for a majority of the creditor's open-end accounts that are
327-16 under a particular plan or arrangement and that are for obligors in
327-17 this state, that ceiling is also the ceiling for all open-end
327-18 accounts that are opened or activated under that plan for obligors
327-19 in this state during the period that ceiling is in effect.]
327-20 [SUBCHAPTER F. ADDITIONAL REQUIREMENTS FOR CERTAIN
327-21 CONSUMER AND OTHER LOAN AGREEMENTS]
327-22 [Sec. 303.501. NOTICE FOR VARIABLE RATE CONSUMER AGREEMENT.
327-23 (a) This section applies only to an agreement for the extension of
327-24 credit, or an amendment to such an agreement, that:]
327-25 [(1) is primarily for personal, family, or household
327-26 use;]
76R5 DWS-D 327
328-1 [(2) provides for a variable rate or amount; and]
328-2 [(3) provides for a rate that is authorized by this
328-3 chapter.]
328-4 [(b) An agreement or amendment must contain or be
328-5 accompanied by the following statement in not less than 10-point
328-6 type or computer equivalent:]
328-7 ["NOTICE TO CONSUMER: UNDER TEXAS LAW, IF YOU CONSENT
328-8 TO THIS AGREEMENT, YOU MAY BE SUBJECT TO A FUTURE RATE
328-9 AS HIGH AS 24 PERCENT A YEAR."]
328-10 [(c) If the agreement or amendment provides for a maximum
328-11 rate of less than 24 percent a year, the statement required by this
328-12 section may be amended to set out that maximum rate.]
328-13 [(d) This section does not apply to an agreement or
328-14 amendment for which a disclosure relating to variable rates or
328-15 amounts is required or provided by federal law, including a
328-16 regulation or interpretation.]
328-17 [Sec. 303.502. CONSUMER INSTALLMENT AND SECONDARY MORTGAGE
328-18 LOANS; OPEN-END CONSUMER ACCOUNTS. (a) A loan the rate of which
328-19 is authorized under this chapter is subject to:]
328-20 [(1) Chapter 343 if the loan is:]
328-21 [(A) extended primarily for:]
328-22 [(i) personal, family, or household use
328-23 and not extended for a business, commercial, investment,
328-24 agricultural, or similar purpose; or]
328-25 [(ii) the purchase of a motor vehicle
328-26 other than a heavy commercial vehicle as defined by Section
76R5 DWS-D 328
329-1 348.001;]
329-2 [(B) payable in two or more installments;]
329-3 [(C) not secured by a lien on real estate; and]
329-4 [(D) made by a person engaged in the business of
329-5 making or negotiating those types of loans; or]
329-6 [(2) Chapter 344 if the loan is:]
329-7 [(A) extended primarily for personal, family, or
329-8 household use and not for a business, commercial, investment,
329-9 agricultural, or similar purpose;]
329-10 [(B) predominantly payable in monthly
329-11 installments;]
329-12 [(C) described by Sections 344.001, 344.101,
329-13 344.102, and 344.405; and]
329-14 [(D) made, negotiated, or arranged by a person
329-15 engaged in the business of making, negotiating, or arranging those
329-16 types of loans.]
329-17 [(b) A person other than a bank or savings and loan
329-18 association engaged in the business of making loans described by
329-19 Subsection (a) must obtain a license under Chapter 342.]
329-20 [(c) Except as inconsistent with this chapter:]
329-21 [(1) a person engaged in the business of extending
329-22 open-end credit primarily for personal, family, or household use
329-23 who charges on an open-end account a rate or amount under authority
329-24 of this chapter is subject to the applicable chapter in Subtitle B;
329-25 and]
329-26 [(2) a party to an account described by Subdivision
76R5 DWS-D 329
330-1 (1) or the party's assignee has all the rights, duties, and
330-2 obligations under that applicable chapter.]
330-3 [(d) Subsection (c) does not apply to a person who is
330-4 subject to Chapter 24, Insurance Code.]
330-5 [Sec. 303.503. EXAMINATIONS; RULES. (a) Sections 342.502
330-6 and 342.606 apply to a transaction:]
330-7 [(1) that is made by a person who holds a license
330-8 under Chapter 342;]
330-9 [(2) that is subject to Chapter 343, 344, or 346; and]
330-10 [(3) the rate of which is authorized by this chapter.]
330-11 [(b) Sections 342.501, 342.504, and 342.505 apply to a loan:]
330-12 [(1) that is subject to Chapter 343; and]
330-13 [(2) the rate of which is authorized by this chapter.]
330-14 [SUBCHAPTER G. ENFORCEMENT]
330-15 [Sec. 303.601. WHEN ACT OR OMISSION NOT VIOLATION. An act
330-16 or omission does not violate this title if the act or omission
330-17 conforms to:]
330-18 [(1) this chapter;]
330-19 [(2) a provision determined by the consumer credit
330-20 commissioner; or]
330-21 [(3) an interpretation of this title that is in effect
330-22 at the time of the act or omission and that was made by:]
330-23 [(A) the consumer credit commissioner under
330-24 Section 14.108; or]
330-25 [(B) an appellate court of this state or the
330-26 United States.]
76R5 DWS-D 330
331-1 [Sec. 303.602. PENALTY FOR VIOLATION OF CHAPTER FOR CERTAIN
331-2 CONTRACTS SUBJECT TO SUBTITLE B. (a) A person who contracts for,
331-3 charges, or receives under a contract subject to Chapter 343, 344,
331-4 345, 346, 347, or 348, including a contract for an open-end
331-5 account, an interest rate or amount of time price differential that
331-6 exceeds the maximum applicable rate or amount authorized by that
331-7 chapter or this chapter is subject to a penalty for that violation
331-8 determined under Chapter 349.]
331-9 [(b) For a contract that contains a rate or amount
331-10 authorized under this chapter, the failure to perform a duty or
331-11 comply with a prohibition provided by this chapter is subject to
331-12 Chapter 349 as if this chapter were in Subtitle B.]
331-13 [Sec. 303.603. PENALTY FOR VIOLATION OF CEILING IN CERTAIN
331-14 CONTRACTS. A written contract, other than a contract to which
331-15 Section 303.602 applies, that directly or indirectly provides for a
331-16 rate that exceeds the rate authorized by this chapter and that is
331-17 not otherwise authorized by law is subject to the penalty
331-18 prescribed by Chapter 305.]
331-19 [Sec. 303.604. ENFORCEMENT BY CONSUMER CREDIT COMMISSIONER.
331-20 Subject to Subchapters C and D, Chapter 14, the consumer credit
331-21 commissioner shall enforce this chapter as it applies to contracts
331-22 subject to Subtitle B or C.]
331-23 [Sec. 303.605. ENFORCEMENT BY CREDIT UNION COMMISSIONER.
331-24 The credit union commissioner shall enforce this chapter as it
331-25 applies to contracts subject to Subtitle D, Title 3.]
331-26 [Sec. 303.606. ENFORCEMENT BY DEPARTMENT OF INSURANCE. The
76R5 DWS-D 331
332-1 Texas Department of Insurance shall enforce this chapter as it
332-2 applies to contracts subject to Chapter 24, Insurance Code.]
332-3 [SUBCHAPTER H. EFFECT ON OTHER STATUTES]
332-4 [Sec. 303.701. RETAIL INSTALLMENT SALES AND MANUFACTURED
332-5 HOME AND MOTOR VEHICLE TRANSACTIONS. A contract subject to Chapter
332-6 345, 347, or 348, including a contract for an open-end account,
332-7 that provides for an interest rate or amount of time price
332-8 differential authorized under this chapter is not subject to
332-9 Chapter 342, 343, or 344.]
332-10 [Sec. 303.702. APPLICABILITY OF CREDIT UNION ACT. Except as
332-11 inconsistent with this chapter:]
332-12 [(1) a person subject to Subtitle D, Title 3, who
332-13 contracts for, charges, or receives a rate authorized by this
332-14 chapter remains subject to that subtitle; and]
332-15 [(2) a party to a transaction described by Subdivision
332-16 (1) has all the rights provided by Subtitle D, Title 3.]
332-17 [Sec. 303.703. APPLICABILITY OF CHAPTER 24, INSURANCE CODE.
332-18 (a) Except as inconsistent with this chapter:]
332-19 [(1) a person subject to Chapter 24, Insurance Code,
332-20 who contracts for, charges, or receives a rate authorized by this
332-21 chapter remains subject to that chapter; and]
332-22 [(2) a party to an insurance premium finance
332-23 agreement, including an agreement for an open-end account, has all
332-24 the rights provided by Chapter 24, Insurance Code.]
332-25 [(b) The licensing requirements of Subtitle B do not apply
332-26 to a transaction described by Subsection (a)(1).]
76R5 DWS-D 332
333-1 [Sec. 303.704. NOTICE REQUIREMENTS IN FEDERAL LAW. (a) If
333-2 a disclosure or notice requirement of this chapter is inconsistent
333-3 with or conflicts with a disclosure or notice requirement of
333-4 federal statute, regulation, or interpretation, the federal
333-5 statute, regulation, or interpretation controls, and a person is
333-6 not required to comply with the inconsistent or conflicting
333-7 requirement of this chapter.]
333-8 [(b) A creditor may modify the disclosure and notice
333-9 requirements of this chapter to conform to the terminology or other
333-10 provisions required or provided under federal statute, regulation,
333-11 or interpretation.]
333-12 [CHAPTER 304. JUDGMENT INTEREST]
333-13 [SUBCHAPTER A. GENERAL PROVISIONS]
333-14 [Sec. 304.001. INTEREST RATE REQUIRED IN JUDGMENT. A
333-15 judgment of a court of this state must state the interest rate
333-16 applicable to that judgment.]
333-17 [Sec. 304.002. JUDGMENT INTEREST RATE: INTEREST RATE IN
333-18 CONTRACT. A judgment of a court of this state on a contract that
333-19 provides for a specific interest rate earns interest at a rate
333-20 equal to the lesser of:]
333-21 [(1) the rate specified in the contract; or]
333-22 [(2) 18 percent a year.]
333-23 [Sec. 304.003. JUDGMENT INTEREST RATE: INTEREST RATE NOT IN
333-24 CONTRACT. (a) A judgment of a court of this state to which
333-25 Section 304.002 does not apply, including court costs awarded in
333-26 the judgment, earns interest at the rate determined under this
76R5 DWS-D 333
334-1 section.]
334-2 [(b) On the 15th of each month, the consumer credit
334-3 commissioner shall determine the interest rate to be applied to a
334-4 judgment rendered during the succeeding calendar month.]
334-5 [(c) The judgment interest rate is:]
334-6 [(1) the auction rate quoted on a discount basis for
334-7 52-week treasury bills issued by the United States government as
334-8 most recently published by the Federal Reserve Board before the
334-9 date of the computation;]
334-10 [(2) 10 percent if the auction rate described by
334-11 Subdivision (1) is less than 10 percent; or]
334-12 [(3) 20 percent if the auction rate described by
334-13 Subdivision (1) is more than 20 percent.]
334-14 [Sec. 304.004. PUBLICATION OF JUDGMENT INTEREST RATE. The
334-15 consumer credit commissioner shall send to the secretary of state
334-16 the judgment interest rate for publication in the Texas Register at
334-17 the same time other rates computed by the consumer credit
334-18 commissioner under this code are required to be published.]
334-19 [Sec. 304.005. ACCRUAL OF JUDGMENT INTEREST. (a) Except as
334-20 provided by Subsection (b), interest on a judgment of a court of
334-21 this state accrues during the period beginning on the day the
334-22 judgment is rendered and ending on the day the judgment is
334-23 satisfied.]
334-24 [(b) If a case is appealed and a motion for extension of
334-25 time to file a brief is granted for a party who was a plaintiff at
334-26 trial, interest does not accrue for the period of extension.]
76R5 DWS-D 334
335-1 [Sec. 304.006. COMPOUNDING OF JUDGMENT INTEREST. Interest
335-2 on a judgment of a court of this state compounds annually.]
335-3 [Sec. 304.007. JUDICIAL NOTICE OF JUDGMENT INTEREST RATE. A
335-4 court of this state shall take judicial notice of a published
335-5 judgment interest rate.]
335-6 [SUBCHAPTER B. PREJUDGMENT INTEREST IN WRONGFUL DEATH,
335-7 PERSONAL INJURY, OR PROPERTY DAMAGE CASE]
335-8 [Sec. 304.101. APPLICABILITY OF SUBCHAPTER. This subchapter
335-9 applies only to a wrongful death, personal injury, or property
335-10 damage case.]
335-11 [Sec. 304.102. PREJUDGMENT INTEREST REQUIRED IN CERTAIN
335-12 CASES. A judgment in a wrongful death, personal injury, or
335-13 property damage case must include prejudgment interest.]
335-14 [Sec. 304.103. PREJUDGMENT INTEREST RATE FOR WRONGFUL DEATH,
335-15 PERSONAL INJURY, OR PROPERTY DAMAGE CASE. The prejudgment interest
335-16 rate is equal to the postjudgment interest rate applicable at the
335-17 time of judgment and is computed as simple interest.]
335-18 [Sec. 304.104. ACCRUAL OF PREJUDGMENT INTEREST. Except as
335-19 provided by Section 304.105 or 304.108, prejudgment interest
335-20 accrues on the amount of a judgment during the period beginning on
335-21 the 180th day after the date the defendant receives written notice
335-22 of a claim or on the date the suit is filed, whichever is earlier,
335-23 and ending on the day preceding the date judgment is rendered.]
335-24 [Sec. 304.105. EFFECT OF SETTLEMENT OFFER ON ACCRUAL OF
335-25 PREJUDGMENT INTEREST. (a) If judgment for a claimant is less than
335-26 the amount of a settlement offer of the defendant, prejudgment
76R5 DWS-D 335
336-1 interest does not accrue on the amount of the judgment during the
336-2 period that the offer may be accepted.]
336-3 [(b) If judgment for a claimant is more than the amount of a
336-4 settlement offer of the defendant, prejudgment interest does not
336-5 accrue on the amount of the settlement offer during the period that
336-6 the offer may be accepted.]
336-7 [Sec. 304.106. SETTLEMENT OFFER REQUIREMENTS TO PREVENT
336-8 PREJUDGMENT INTEREST ACCRUAL. To prevent the accrual of
336-9 prejudgment interest under this subchapter, a settlement offer must
336-10 be in writing and delivered to the claimant or the claimant's
336-11 attorney or representative.]
336-12 [Sec. 304.107. VALUE OF SETTLEMENT OFFER FOR COMPUTING
336-13 PREJUDGMENT INTEREST. If a settlement offer does not provide for
336-14 cash payment at the time of settlement, the amount of the
336-15 settlement offer for the purpose of computing prejudgment interest
336-16 is the cost or fair market value of the settlement offer at the
336-17 time it is made.]
336-18 [Sec. 304.108. ACCRUAL OF PREJUDGMENT INTEREST DURING
336-19 PERIODS OF TRIAL DELAY. (a) In addition to the exceptions
336-20 provided by Section 304.105, a court may order that prejudgment
336-21 interest does not accrue during periods of delay in the trial.]
336-22 [(b) A court shall consider:]
336-23 [(1) periods of delay caused by a defendant; and]
336-24 [(2) periods of delay caused by a claimant.]
336-25 [SUBCHAPTER C. OTHER PREJUDGMENT INTEREST PROVISIONS]
336-26 [Sec. 304.201. PREJUDGMENT INTEREST RATE FOR CONDEMNATION
76R5 DWS-D 336
337-1 CASE. The prejudgment interest rate in a condemnation case is
337-2 equal to the postjudgment interest rate applicable at the time of
337-3 judgment and is computed as simple interest.]
337-4 [SUBCHAPTER D. EXCEPTIONS TO APPLICATION OF CHAPTER]
337-5 [Sec. 304.301. EXCEPTION FOR DELINQUENT TAXES. This chapter
337-6 does not apply to a judgment that earns interest at a rate set by
337-7 Title 2, Tax Code.]
337-8 [Sec. 304.302. EXCEPTION FOR DELINQUENT CHILD SUPPORT. This
337-9 chapter does not apply to interest that accrues on an amount of
337-10 unpaid child support under Section 157.265, Family Code.]
337-11 [CHAPTER 305. PENALTIES AND LIABILITIES]
337-12 [SUBCHAPTER A. CIVIL LIABILITY; CRIMINAL PENALTY]
337-13 [Sec. 305.001. LIABILITY FOR CONTRACTING FOR, CHARGING, OR
337-14 RECEIVING EXCESSIVE INTEREST. (a) A person who contracts for,
337-15 charges, or receives interest that is greater than the amount
337-16 authorized by this subtitle is liable to the obligor for an amount
337-17 that is equal to the greater of:]
337-18 [(1) three times the amount computed by subtracting
337-19 the amount of interest allowed by law from the total amount of the
337-20 interest contracted for, charged, or received; or]
337-21 [(2) $2,000 or 20 percent of the amount of the
337-22 principal, whichever is less.]
337-23 [(b) This section applies only to a contract or transaction
337-24 subject to this subtitle.]
337-25 [Sec. 305.002. ADDITIONAL LIABILITY FOR INTEREST GREATER
337-26 THAN TWICE AMOUNT AUTHORIZED. (a) In addition to the amount
76R5 DWS-D 337
338-1 determined under Section 305.001, a person who contracts for,
338-2 charges, or receives interest that is greater than twice the amount
338-3 authorized by this subtitle is liable to the obligor for the
338-4 principal amount on which the interest is contracted for, charged,
338-5 or received as well as interest and all other charges.]
338-6 [(b) This section applies only to a contract or transaction
338-7 subject to this subtitle.]
338-8 [Sec. 305.003. ATTORNEY'S FEES. A person who is liable
338-9 under Section 305.001 or 305.002 is also liable for reasonable
338-10 attorney's fees set by the court.]
338-11 [Sec. 305.004. LIMITATION ON FILING SUIT. An action under
338-12 this chapter must be brought before the fourth anniversary of the
338-13 date on which the usurious interest was received or collected. The
338-14 action must be brought in the county in which:]
338-15 [(1) the defendant resides;]
338-16 [(2) the usurious interest was received or collected;]
338-17 [(3) the transaction was entered into; or]
338-18 [(4) the person who paid the usurious interest:]
338-19 [(A) resides; or]
338-20 [(B) resided when the transaction occurred.]
338-21 [Sec. 305.005. CRIMINAL PENALTY. (a) A person commits an
338-22 offense if the person contracts for, charges, or receives interest
338-23 that is greater than twice the amount authorized by this subtitle.]
338-24 [(b) Contracting for, charging, or receiving interest
338-25 authorized under Section 302.001 before the 30th day after the date
338-26 on which the debt is due is not an offense.]
76R5 DWS-D 338
339-1 [(c) An offense under this section is a misdemeanor
339-2 punishable by a fine of not more than $1,000.]
339-3 [(d) Each contract or transaction that violates this section
339-4 is a separate offense.]
339-5 [(e) This section applies only to a contract or transaction
339-6 subject to this subtitle.]
339-7 [SUBCHAPTER B. EXCEPTION FROM LIABILITY]
339-8 [Sec. 305.101. ACCIDENTAL AND BONA FIDE ERROR. A person is
339-9 not subject to penalty under this chapter for any usurious interest
339-10 that results from an accidental and bona fide error.]
339-11 [Sec. 305.102. INTEREST IF NO RATE SPECIFIED. A person is
339-12 not liable to an obligor solely because the person contracts for,
339-13 charges, or receives the interest authorized under Section 302.002
339-14 before the 30th day after the date on which the debt is due.]
339-15 [Sec. 305.103. CORRECTION OF VIOLATION. (a) A person is
339-16 not liable to an obligor for a violation of this subtitle if:]
339-17 [(1) not later than the 60th day after the date that
339-18 the person actually discovered the violation, the person corrects
339-19 the violation as to that obligor by taking any necessary action and
339-20 making any necessary adjustment, including the payment of interest
339-21 on a refund, if any, at the applicable rate provided for in the
339-22 contract of the parties; and]
339-23 [(2) the person gives written notice to the obligor of
339-24 the violation before the obligor gives written notice of the
339-25 violation or files an action alleging the violation.]
339-26 [(b) For the purposes of Subsection (a), "actually
76R5 DWS-D 339
340-1 discovered" refers to the time of the discovery of the violation in
340-2 fact and not to the time when an ordinarily prudent person, through
340-3 reasonable diligence, could or should have discovered or known of
340-4 the violation. Actual discovery of a violation in one transaction
340-5 may constitute actual discovery of the same violation in other
340-6 transactions if the violation is of such a nature that it would
340-7 necessarily be repeated and would be clearly apparent in the other
340-8 transactions without the necessity of examining all the other
340-9 transactions.]
340-10 [(c) For the purposes of Subsection (a), written notice is
340-11 given when the notice is delivered to the person or to the person's
340-12 duly authorized agent or attorney of record personally or by United
340-13 States mail to the address shown on the most recent documents in
340-14 the transaction. Deposit of the notice as registered or certified
340-15 mail in a postage paid, properly addressed wrapper in a post office
340-16 or official depository under the care and custody of the United
340-17 States Postal Service is prima facie evidence of the delivery of
340-18 the notice to the person to whom the notice is addressed.]
340-19 [(d) A person is not liable to an obligor for a violation of
340-20 this subtitle if:]
340-21 [(1) before March 1, 1994, the person corrected the
340-22 violation as to the obligor by taking actions and making
340-23 adjustments necessary to correct the violation, including the
340-24 payment of interest on a refund, if any, at the applicable rate
340-25 provided for in the contract of the parties; and]
340-26 [(2) the person gives written notice to the obligor of
76R5 DWS-D 340
341-1 the correction before the obligor has given written notice of or
341-2 has filed an action alleging the violation of this subtitle.]
341-3 [Sec. 305.104. CORRECTION EXCEPTION AVAILABLE TO ALL PERSONS
341-4 SIMILARLY SITUATED. If in a single transaction more than one
341-5 person may be liable for a violation of this subtitle, compliance
341-6 with Section 305.103 by any of those persons entitles each to the
341-7 protection provided by that section.]
341-8 [CHAPTER 339. MISCELLANEOUS PROVISIONS RELATING TO INTEREST]
341-9 [Sec. 339.001. IMPOSITION OF SURCHARGE FOR USE OF CREDIT
341-10 CARD. (a) In a sale of goods or services, a seller may not
341-11 impose a surcharge on a buyer who uses a credit card for an
341-12 extension of credit instead of cash, a check, or a similar means of
341-13 payment.]
341-14 [(b) This section does not apply to a state agency, county,
341-15 local governmental entity, or other governmental entity that
341-16 accepts a credit card for the payment of fees, taxes, or other
341-17 charges.]
341-18 [Sec. 339.002. BILLING CYCLE INTEREST LIMITATION ON OPEN-END
341-19 ACCOUNT WITHOUT MERCHANT DISCOUNT. (a) This section applies to an
341-20 open-end account agreement that provides for credit card
341-21 transactions:]
341-22 [(1) in which the creditor relies on one of the
341-23 ceilings authorized by Chapter 303 for the rate of interest; and]
341-24 [(2) in connection with which the creditor does not
341-25 impose or receive a merchant discount.]
341-26 [(b) Interest or time price differential may not be charged
76R5 DWS-D 341
342-1 for a billing cycle of an open-end account credit agreement if:]
342-2 [(1) the total amount of the obligor's payments during
342-3 the cycle equal or exceed the balance owed under the agreement at
342-4 the end of the preceding billing cycle; or]
342-5 [(2) an amount is not owed under the agreement at the
342-6 end of the preceding billing cycle.]
342-7 [Sec. 339.003. SALE OF OPEN-END ACCOUNT WITHOUT MERCHANT
342-8 DISCOUNT. A seller or lessor may sell an open-end account credit
342-9 agreement described by Section 339.002(a) or any balance under that
342-10 agreement to a purchaser who purchases a substantial part of the
342-11 seller's or lessor's open-end account credit agreements or balances
342-12 under those agreements in accordance with Subchapter G, Chapter
342-13 345. A charge, fee, or discount on that sale:]
342-14 [(1) is not a merchant discount;]
342-15 [(2) does not disqualify the open-end account credit
342-16 agreement or a balance under that agreement from being subject to
342-17 Chapter 303 or from coverage under this section; and]
342-18 [(3) does not subject the account to the limitations
342-19 provided by Section 303.205.]
342-20 [Sec. 339.004. ACCOUNT PURCHASE TRANSACTION. (a) In this
342-21 section, "account purchase transaction" means an agreement under
342-22 which a person engaged in a commercial enterprise sells accounts,
342-23 instruments, documents, or chattel paper subject to this subtitle
342-24 at a discount, regardless of whether the person has a related
342-25 repurchase obligation.]
342-26 [(b) For the purposes of this subtitle, the amount of a
76R5 DWS-D 342
343-1 discount in, or charged under, an account purchase transaction is
343-2 not compensation contracted for, charged, or received with respect
343-3 to that account purchase transaction.]
343-4 [(c) For the purposes of this subtitle, the parties'
343-5 characterization of an account purchase transaction as a purchase
343-6 is conclusive that the account purchase transaction is not a
343-7 transaction for the use, forbearance, or detention of money.]
343-8 [Sec. 339.005. APPLICATION OF LICENSING REQUIREMENTS AND
343-9 SUBTITLE B TO CREDIT UNION OR EMPLOYEE BENEFIT PLAN. (a) A credit
343-10 union is not subject to Subtitle B and is not required to obtain a
343-11 license under this title.]
343-12 [(b) With respect to a loan that an employee benefit plan
343-13 that is subject to Title I of the Employee Retirement Income
343-14 Security Act of 1974 (29 U.S.C. Sections 1001-1114) makes to a
343-15 participant in the plan or a participant's beneficiary, the plan is
343-16 not subject to Subtitle B and is not required to obtain a license
343-17 under this title.]
343-18 (b) Section 1, Chapter 1396; Section 1, Chapter 81; Section
343-19 4, Chapter 906; and Section 7, Chapter 1111, Acts of the 75th
343-20 Legislature, Regular Session, 1997, are repealed.
343-21 SECTION 7.19. (a) Chapter 342, Finance Code, is amended to
343-22 conform to Sections 2 and 48, Chapter 1396, and Section 2, Chapter
343-23 164, Acts of the 75th Legislature, Regular Session, 1997, to read
343-24 as follows:
343-25 CHAPTER 342. CONSUMER LOANS
343-26 SUBCHAPTER A. GENERAL PROVISIONS; APPLICABILITY OF CHAPTER
76R5 DWS-D 343
344-1 Sec. 342.001. DEFINITIONS. In this chapter:
344-2 (1) "Irregular transaction" means a loan:
344-3 (A) that is payable in installments that are not
344-4 consecutive, monthly, and substantially equal in amount; or
344-5 (B) the first scheduled installment of which is
344-6 due later than one month and 15 days after the date of the loan.
344-7 (2) "Regular transaction" means a loan:
344-8 (A) that is payable in installments that are
344-9 consecutive, monthly, and substantially equal in amount; and
344-10 (B) the first scheduled installment of which is
344-11 due within one month and 15 days after the date of the loan.
344-12 (3) "Secondary mortgage loan" means a loan that is:
344-13 (A) secured in whole or in part by an interest,
344-14 including a lien or security interest, in real property that is:
344-15 (i) improved by a dwelling designed for
344-16 occupancy by four or fewer families; and
344-17 (ii) subject to one or more liens,
344-18 security interests, prior mortgages, or deeds of trust; and
344-19 (B) not to be repaid before the 91st day after
344-20 the date of the loan.
344-21 Sec. 342.002. INTEREST COMPUTATION METHODS. (a) The
344-22 scheduled installment earnings method is a method to compute an
344-23 interest charge by applying a daily rate to the unpaid balance of
344-24 the amount financed as if each payment will be made on its
344-25 scheduled installment date. A payment received before or after the
344-26 due date does not affect the amount of the scheduled principal
76R5 DWS-D 344
345-1 reduction.
345-2 (b) The true daily earnings method is a method to compute an
345-3 interest charge by applying a daily rate to the unpaid balance of
345-4 the amount financed. The earned finance charge is computed by
345-5 multiplying the daily rate by the number of days the principal
345-6 balance is outstanding.
345-7 (c) For the purposes of Subsections (a) and (b), the daily
345-8 rate is 1/365th of the equivalent contract rate.
345-9 Sec. 342.003. PURCHASE FROM MORTGAGEE. For the purposes of
345-10 this chapter, a purchase from a mortgagee of an interest in a
345-11 secondary mortgage loan that was made to secure that loan is
345-12 treated as if it were a secondary mortgage loan.
345-13 Sec. 342.004. CONSTITUTIONAL INTEREST; EXEMPTION FOR LOAN
345-14 WITH INTEREST RATE OF 10 PERCENT OR LESS. (a) Except as otherwise
345-15 fixed by law, the maximum rate of interest is 10 percent a year.
345-16 (b) A loan providing for a rate of interest that is 10
345-17 percent a year or less is not subject to this chapter.
345-18 Sec. 342.005. APPLICABILITY OF CHAPTER. A loan is subject
345-19 to this chapter if the loan:
345-20 (1) provides for interest in excess of 10 percent a
345-21 year;
345-22 (2) is extended primarily for personal, family, or
345-23 household use;
345-24 (3) is made by a person engaged in the business of
345-25 making, arranging, or negotiating those types of loans; and
345-26 (4) either:
76R5 DWS-D 345
346-1 (A) is not secured by a lien on real property;
346-2 or
346-3 (B) is described by Section 342.001(3), 342.301,
346-4 or 342.456 and is predominantly payable in monthly installments.
346-5 Sec. 342.006. EXEMPTION FOR CERTAIN SECONDARY MORTGAGE
346-6 LOANS. This chapter does not apply to a secondary mortgage loan
346-7 made by a seller of property to secure all or part of the unpaid
346-8 purchase price.
346-9 SUBCHAPTER B. AUTHORIZED ACTIVITIES; LICENSE
346-10 Sec. 342.051. LICENSE REQUIRED. (a) A person must hold a
346-11 license issued under this chapter to:
346-12 (1) engage in the business of making, transacting, or
346-13 negotiating loans subject to this chapter; and
346-14 (2) contract for, charge, or receive, directly or
346-15 indirectly, in connection with a loan subject to this chapter, a
346-16 charge, including interest, compensation, consideration, or another
346-17 expense, authorized under this chapter that in the aggregate
346-18 exceeds the charges authorized under other law.
346-19 (b) A person may not use any device, subterfuge, or pretense
346-20 to evade the application of this section.
346-21 (c) A person is not required to obtain a license under
346-22 Subsection (a) if the person is:
346-23 (1) a bank, savings bank, or savings and loan
346-24 association; or
346-25 (2) subject to Chapter 24, Insurance Code.
346-26 (d) An insurance agent licensed under Article 21.14,
76R5 DWS-D 346
347-1 Insurance Code, is not required to obtain a license to negotiate or
347-2 arrange a loan on behalf of a bank, savings bank, or savings and
347-3 loan association provided that the insurance agent or the bank,
347-4 savings bank, or savings and loan association does not make the
347-5 provision of insurance a condition to apply for or obtain a loan or
347-6 service from the bank, savings bank, or savings and loan
347-7 association.
347-8 Sec. 342.052. ISSUANCE OF MORE THAN ONE LICENSE FOR A
347-9 PERSON. (a) The commissioner may issue more than one license to a
347-10 person on compliance with this chapter for each license.
347-11 (b) A person who is required to hold a license under this
347-12 chapter must hold a separate license for each office at which loans
347-13 are made, negotiated, or collected under this chapter.
347-14 (c) A license is not required under this chapter for a place
347-15 of business:
347-16 (1) devoted to accounting or other recordkeeping; and
347-17 (2) at which loans are not made, negotiated, or
347-18 collected under this chapter or Chapter 346.
347-19 Sec. 342.053. AREA OF BUSINESS; LOANS BY MAIL. (a) A lender
347-20 is not limited to making loans to residents of the community in
347-21 which the office for which the license or other authority is
347-22 granted.
347-23 (b) A lender may make, negotiate, arrange, and collect loans
347-24 by mail from a licensed office.
347-25 SUBCHAPTER C. APPLICATION FOR AND ISSUANCE OF LICENSE
347-26 Sec. 342.101. APPLICATION REQUIREMENTS. (a) The
76R5 DWS-D 347
348-1 application for a license under this chapter must:
348-2 (1) be under oath;
348-3 (2) give the approximate location from which business
348-4 is to be conducted;
348-5 (3) identify the business's principal parties in
348-6 interest; and
348-7 (4) contain other relevant information that the
348-8 commissioner requires for the findings required under Section
348-9 342.104.
348-10 (b) On the filing of one or more license applications, the
348-11 applicant shall pay to the commissioner an investigation fee of
348-12 $200.
348-13 (c) On the filing of each license application, the applicant
348-14 shall pay to the commissioner for the license's year of issuance a
348-15 license fee of:
348-16 (1) $100 if the license is granted not later than June
348-17 30; or
348-18 (2) $50 if the license is granted after June 30.
348-19 Sec. 342.102. BOND. (a) If the commissioner requires, an
348-20 applicant for a license under this chapter shall file with the
348-21 application a bond that is:
348-22 (1) in an amount not to exceed the total of:
348-23 (A) $5,000 for the first license; and
348-24 (B) $1,000 for each additional license;
348-25 (2) satisfactory to the commissioner; and
348-26 (3) issued by a surety company qualified to do
76R5 DWS-D 348
349-1 business as a surety in this state.
349-2 (b) The bond must be in favor of this state for the use of
349-3 this state and the use of a person who has a cause of action under
349-4 this chapter against the license holder.
349-5 (c) The bond must be conditioned on:
349-6 (1) the license holder's faithful performance under
349-7 this chapter and rules adopted under this chapter; and
349-8 (2) the payment of all amounts that become due to the
349-9 state or another person under this chapter during the calendar year
349-10 for which the bond is given.
349-11 (d) The aggregate liability of a surety to all persons
349-12 damaged by the license holder's violation of this chapter may not
349-13 exceed the amount of the bond.
349-14 Sec. 342.103. INVESTIGATION OF APPLICATION. On the filing
349-15 of an application and, if required, a bond, and on payment of the
349-16 required fees, the commissioner shall conduct an investigation to
349-17 determine whether to issue the license.
349-18 Sec. 342.104. APPROVAL OR DENIAL OF APPLICATION. (a) The
349-19 commissioner shall approve the application and issue to the
349-20 applicant a license to make loans under this chapter if the
349-21 commissioner finds that:
349-22 (1) the financial responsibility, experience,
349-23 character, and general fitness of the applicant are sufficient to:
349-24 (A) command the confidence of the public; and
349-25 (B) warrant the belief that the business will be
349-26 operated lawfully and fairly, within the purposes of this chapter;
76R5 DWS-D 349
350-1 and
350-2 (2) the applicant has net assets of at least $25,000
350-3 available for the operation of the business.
350-4 (b) If the commissioner does not find the eligibility
350-5 requirements of Subsection (a), the commissioner shall notify the
350-6 applicant.
350-7 (c) If an applicant requests a hearing on the application
350-8 not later than the 30th day after the date of notification under
350-9 Subsection (b), the applicant is entitled to a hearing not later
350-10 than the 60th day after the date of the request.
350-11 (d) The commissioner shall approve or deny the application
350-12 not later than the 60th day after the date of the filing of a
350-13 completed application with payment of the required fees, or if a
350-14 hearing is held, after the date of the completion of the hearing on
350-15 the application. The commissioner and the applicant may agree to a
350-16 later date in writing.
350-17 Sec. 342.105. DISPOSITION OF FEES ON DENIAL OF APPLICATION.
350-18 If the commissioner denies the application, the commissioner shall
350-19 retain the investigation fee and shall return to the applicant the
350-20 license fee submitted with the application.
350-21 SUBCHAPTER D. LICENSE
350-22 Sec. 342.151. NAME AND PLACE ON LICENSE. (a) A license
350-23 must state:
350-24 (1) the name of the license holder; and
350-25 (2) the address of the office from which the business
350-26 is to be conducted.
76R5 DWS-D 350
351-1 (b) A license holder may not conduct business under this
351-2 chapter under a name or at a place of business in this state other
351-3 than the name or office stated on the license.
351-4 Sec. 342.152. LICENSE DISPLAY. A license holder shall
351-5 display a license at the place of business provided on the license.
351-6 Sec. 342.153. MINIMUM ASSETS FOR LICENSE. (a) Except as
351-7 provided by Subsection (b) or (c), a license holder shall maintain
351-8 for each office for which a license is held net assets of at least
351-9 $25,000 that are used or readily available for use in conducting
351-10 the business of that office.
351-11 (b) A license holder who held a license under the Texas
351-12 Regulatory Loan Act and was issued a license to make loans under
351-13 that chapter as provided by Section 4, Chapter 274, Acts of the
351-14 60th Legislature, Regular Session, 1967, shall maintain for the
351-15 office for which that license is held net assets of at least
351-16 $15,000 that are used or readily available for use in conducting
351-17 the business of that office.
351-18 (c) A license holder who paid the pawnbroker's occupational
351-19 tax for 1967 and was issued a license to make loans under that
351-20 chapter as provided by Section 4, Chapter 274, Acts of the 60th
351-21 Legislature, Regular Session, 1967, is exempt from the minimum
351-22 assets requirement of Subsection (a) for the office for which that
351-23 license is held.
351-24 (d) If a license holder holds a license to which Subsection
351-25 (b) or (c) applies and subsequently transfers the license to
351-26 another person, the minimum assets required under Subsection (a)
76R5 DWS-D 351
352-1 shall apply to the license and the subsequent license holder.
352-2 Sec. 342.154. ANNUAL LICENSE FEE. (a) Not later than
352-3 December 1, a license holder shall pay to the commissioner for each
352-4 license held an annual fee for the year beginning the next January
352-5 1.
352-6 (b) The annual fee for a license under this chapter is $200
352-7 except that if, on September 30 preceding the date on which the
352-8 annual fee is due, the gross unpaid balance of loans regulated
352-9 under this chapter in the office for which the license is issued is
352-10 $100,000 or less, the annual fee is $100.
352-11 Sec. 342.155. EXPIRATION OF LICENSE ON FAILURE TO PAY ANNUAL
352-12 FEE. If the annual fee for a license is not paid before the 16th
352-13 day after the date on which the written notice of delinquency of
352-14 payment has been given to the license holder, the license expires
352-15 on the later of:
352-16 (1) that day; or
352-17 (2) December 31 of the last year for which an annual
352-18 fee was paid.
352-19 Sec. 342.156. LICENSE SUSPENSION OR REVOCATION. After
352-20 notice and a hearing the commissioner may suspend or revoke a
352-21 license if the commissioner finds that:
352-22 (1) the license holder failed to pay the annual
352-23 license fee, an examination fee, an investigation fee, or another
352-24 charge imposed by the commissioner under this chapter;
352-25 (2) the license holder, knowingly or without the
352-26 exercise of due care, violated this chapter or a rule adopted or
76R5 DWS-D 352
353-1 order issued under this chapter; or
353-2 (3) a fact or condition exists that, if it had existed
353-3 or had been known to exist at the time of the original application
353-4 for the license, clearly would have justified the commissioner's
353-5 denial of the application.
353-6 Sec. 342.157. CORPORATE CHARTER FORFEITURE. (a) A license
353-7 holder who violates this chapter is subject to revocation of the
353-8 holder's license and, if the license holder is a corporation,
353-9 forfeiture of its charter.
353-10 (b) When the attorney general is notified of a violation of
353-11 this chapter and revocation of a license, the attorney general
353-12 shall file suit in a district court in Travis County, if the
353-13 license holder is a corporation, for forfeiture of the license
353-14 holder's charter.
353-15 Sec. 342.158. LICENSE SUSPENSION OR REVOCATION FILED WITH
353-16 PUBLIC RECORDS. The decision of the commissioner on the suspension
353-17 or revocation of a license and the evidence considered by the
353-18 commissioner in making the decision shall be filed in the public
353-19 records of the commissioner.
353-20 Sec. 342.159. REINSTATEMENT OF SUSPENDED LICENSE; ISSUANCE
353-21 OF NEW LICENSE AFTER REVOCATION. The commissioner may reinstate a
353-22 suspended license or issue a new license on application to a person
353-23 whose license has been revoked if at the time of the reinstatement
353-24 or issuance no fact or condition exists that clearly would have
353-25 justified the commissioner's denial of an original application for
353-26 the license.
76R5 DWS-D 353
354-1 Sec. 342.160. SURRENDER OF LICENSE. A license holder may
354-2 surrender a license issued under this chapter by delivering to the
354-3 commissioner:
354-4 (1) the license; and
354-5 (2) a written notice of the license's surrender.
354-6 Sec. 342.161. EFFECT OF LICENSE SUSPENSION, REVOCATION, OR
354-7 SURRENDER. (a) The suspension, revocation, or surrender of a
354-8 license issued under this chapter does not affect the obligation of
354-9 a contract between the license holder and a debtor entered into
354-10 before the revocation, suspension, or surrender.
354-11 (b) Surrender of a license does not affect the license
354-12 holder's civil or criminal liability for an act committed before
354-13 surrender.
354-14 Sec. 342.162. MOVING AN OFFICE. (a) A license holder shall
354-15 give written notice to the commissioner before the 30th day
354-16 preceding the date the license holder moves an office from the
354-17 location provided on the license.
354-18 (b) The commissioner shall amend a license holder's license
354-19 accordingly.
354-20 Sec. 342.163. TRANSFER OR ASSIGNMENT OF LICENSE. A license
354-21 may be transferred or assigned only with the approval of the
354-22 commissioner.
354-23 SUBCHAPTER E. INTEREST CHARGES ON NON-REAL PROPERTY LOANS
354-24 Sec. 342.201. MAXIMUM INTEREST CHARGE. (a) A loan contract
354-25 under this chapter that is a regular transaction and is not secured
354-26 by real property may provide for an interest charge on the cash
76R5 DWS-D 354
355-1 advance that does not exceed the amount of add-on interest equal to
355-2 the amount computed for the full term of the contract at an add-on
355-3 interest amount equal to:
355-4 (1) $18 for each $100 per year on the part of the cash
355-5 advance that is less than or equal to the amount computed under
355-6 Subchapter C, Chapter 341, using the reference base amount of $300;
355-7 and
355-8 (2) $8 for each $100 per year on the part of the cash
355-9 advance that is more than the amount computed for Subdivision (1)
355-10 but less than or equal to an amount computed under Subchapter C,
355-11 Chapter 341, using the reference base amount of $2,500.
355-12 (b) For the purpose of Subsection (a):
355-13 (1) when the loan is made an interest charge may be
355-14 computed for the full term of the loan contract;
355-15 (2) if the period before the first installment due
355-16 date includes a part of a month that is longer than 15 days, that
355-17 portion of a month may be considered a full month; and
355-18 (3) if a loan contract provides for precomputed
355-19 interest, the amount of the loan is the total of:
355-20 (A) the cash advance; and
355-21 (B) the amount of precomputed interest.
355-22 (c) A loan contract under this chapter that is an irregular
355-23 transaction and is not secured by real property may provide for an
355-24 interest charge, using any method or formula, that does not exceed
355-25 the amount that, having due regard for the schedule of installment
355-26 payments, would produce the same effective return as allowed under
76R5 DWS-D 355
356-1 Subsection (a) if the loan were payable in equal successive monthly
356-2 installments beginning one month from the date of the contract.
356-3 (d) A loan contract under this chapter that is not secured
356-4 by real property may provide for a rate or amount of interest
356-5 computed using the true daily earnings method or the scheduled
356-6 installment earnings method that does not exceed the alternative
356-7 interest rate as computed under Subchapter A, Chapter 303.
356-8 Interest may accrue on the principal balance and amounts added to
356-9 principal after the date of the loan contract from time to time
356-10 unpaid at the rate provided for by the contract until the date of
356-11 payment in full or demand for payment in full.
356-12 Sec. 342.202. MAXIMUM CHARGE FOR LOAN WITH SINGLE REPAYMENT.
356-13 A loan contract that exceeds the maximum cash advance under Section
356-14 342.251 and that is payable in a single installment may provide for
356-15 an interest charge on the cash advance that does not exceed a rate
356-16 or amount that would produce the same effective return as allowed
356-17 under Section 342.201 considering the amount and term of the loan.
356-18 If a loan under this section is prepaid in full, the lender may
356-19 earn a minimum interest charge of $25.
356-20 Sec. 342.203. ADDITIONAL INTEREST FOR DEFAULT: REGULAR
356-21 TRANSACTION. (a) A loan contract that includes precomputed
356-22 interest and that is a regular transaction may provide for
356-23 additional interest for default if any part of an installment
356-24 remains unpaid after the 10th day after the date on which the
356-25 installment is due, including Sundays and holidays.
356-26 (b) A loan contract that uses the scheduled installment
76R5 DWS-D 356
357-1 earnings method and that is a regular transaction may provide for
357-2 additional interest for default if any part of an installment
357-3 remains unpaid after the 10th day after the date on which the
357-4 installment is due, including Sundays and holidays.
357-5 (c) The additional interest may not exceed five cents for
357-6 each $1 of a scheduled installment.
357-7 (d) Interest under this section may not be collected more
357-8 than once on the same installment.
357-9 Sec. 342.204. ADDITIONAL INTEREST FOR INSTALLMENT DEFERMENT:
357-10 REGULAR TRANSACTION. (a) On a loan contract that includes
357-11 precomputed interest and is a regular transaction, an authorized
357-12 lender may charge additional interest for the deferment of an
357-13 installment if:
357-14 (1) the entire amount of the installment is unpaid;
357-15 (2) no interest for default has been collected on the
357-16 installment; and
357-17 (3) payment of the installment is deferred for one or
357-18 more full months and the maturity of the contract is extended for a
357-19 corresponding period.
357-20 (b) The interest for deferment under Subsection (a) may not
357-21 exceed the amount computed by:
357-22 (1) taking the difference between the refund that
357-23 would be required for prepayment in full as of the date of
357-24 deferment and the refund that would be required for prepayment in
357-25 full one month before the date of deferment; and
357-26 (2) multiplying the results under Subdivision (1) by
76R5 DWS-D 357
358-1 the number of months in the deferment period.
358-2 (c) The amount of interest applicable to each deferred
358-3 balance or installment period occurring after a deferment period
358-4 remains the amount applicable to that balance or period under the
358-5 original loan contract.
358-6 (d) If a loan is prepaid in full during the deferment
358-7 period, the borrower shall receive, in addition to the refund
358-8 required under Subchapter H, a pro rata refund of that part of the
358-9 interest for deferment applicable to the number of full months
358-10 remaining in the deferment period on the payment date.
358-11 (e) For the purposes of this section, a deferment period is
358-12 the period during which a payment is not required or made because
358-13 of the deferment and begins on the day after the due date of the
358-14 scheduled installment that precedes the first installment being
358-15 deferred.
358-16 Sec. 342.205. COLLECTION OF DEFAULT OR DEFERMENT INTEREST.
358-17 Interest for default under Section 342.203 or for installment
358-18 deferment under Section 342.204 may be collected when it accrues or
358-19 at any time after it accrues.
358-20 Sec. 342.206. ADDITIONAL INTEREST FOR DEFAULT: IRREGULAR
358-21 TRANSACTION. A loan contract that includes precomputed interest
358-22 and that is an irregular transaction may provide for additional
358-23 interest for default using the true daily earnings method for the
358-24 period from the maturity date of an installment until the date the
358-25 installment is paid. The rate of the additional interest may not
358-26 exceed the maximum contract interest rate.
76R5 DWS-D 358
359-1 SUBCHAPTER F. ALTERNATE CHARGES FOR CERTAIN LOANS
359-2 Sec. 342.251. MAXIMUM CASH ADVANCE. The maximum cash
359-3 advance of a loan made under this subchapter is an amount computed
359-4 under Subchapter C, Chapter 341, using the reference base amount of
359-5 $100.
359-6 Sec. 342.252. ALTERNATE INTEREST CHARGE. Instead of the
359-7 charges authorized by Section 342.201, a loan contract may provide
359-8 for:
359-9 (1) on a cash advance of less than $30, an acquisition
359-10 charge that is not more than $1 for each $5 of the cash advance;
359-11 (2) on a cash advance equal to or more than $30 but
359-12 not more than $100:
359-13 (A) an acquisition charge that is not more than
359-14 the amount equal to one-tenth of the amount of the cash advance;
359-15 and
359-16 (B) an installment account handling charge that
359-17 is not more than:
359-18 (i) $3 a month if the cash advance is not
359-19 more than $35;
359-20 (ii) $3.50 a month if the cash advance is
359-21 more than $35 but not more than $70; or
359-22 (iii) $4 a month if the cash advance is
359-23 more than $70; or
359-24 (3) on a cash advance of more than $100:
359-25 (A) an acquisition charge that is not more than
359-26 $10; and
76R5 DWS-D 359
360-1 (B) an installment account handling charge that
360-2 is not more than the ratio of $4 a month for each $100 of cash
360-3 advance.
360-4 Sec. 342.253. MAXIMUM INTEREST CHARGE FOR LOAN WITH SINGLE
360-5 REPAYMENT. A loan contract to which Section 342.251 applies and
360-6 that is payable in a single installment may provide for an
360-7 acquisition charge and an interest charge on the cash advance that
360-8 does not exceed a rate or amount that would produce the same
360-9 effective return as allowed under Section 342.252 considering the
360-10 amount and term of the loan. If a loan under this section is
360-11 prepaid in full, the lender may earn a minimum of the acquisition
360-12 charge and interest charge for one month.
360-13 Sec. 342.254. NO OTHER CHARGES AUTHORIZED. (a) On a loan
360-14 made under this subchapter a lender may not contract for, charge,
360-15 or receive an amount unless this subchapter authorizes the amount
360-16 to be charged.
360-17 (b) An insurance charge is not authorized on a loan made
360-18 under this subchapter.
360-19 Sec. 342.255. MAXIMUM LOAN TERM. The maximum term of a loan
360-20 made under this subchapter is:
360-21 (1) for a loan of $100 or less the lesser of:
360-22 (A) one month for each multiple of $10 of cash
360-23 advance; or
360-24 (B) six months; and
360-25 (2) for a loan of more than $100, one month for each
360-26 multiple of $20 of cash advance.
76R5 DWS-D 360
361-1 Sec. 342.256. REFUND. (a) An acquisition charge authorized
361-2 under Section 342.252(1) or (2) is considered to be earned at the
361-3 time a loan is made and is not subject to refund.
361-4 (b) On the prepayment of a loan with a cash advance of $30
361-5 or more but not more than $100, the installment account handling
361-6 charge authorized under Section 342.252(2) is subject to refund in
361-7 accordance with Subchapter H.
361-8 (c) On the prepayment of a loan with a cash advance of more
361-9 than $100, the acquisition charge and the installment account
361-10 handling charge authorized under Section 342.252(3) are subject to
361-11 refund in accordance with Subchapter H.
361-12 Sec. 342.257. DEFAULT CHARGE; DEFERMENT OF PAYMENT. The
361-13 provisions of Subchapter E relating to additional interest for
361-14 default and additional interest for the deferment of installments
361-15 apply to a loan made under this subchapter.
361-16 Sec. 342.258. SCHEDULES FOR WEEKLY, BIWEEKLY, OR SEMIMONTHLY
361-17 INSTALLMENTS. The commissioner may prepare schedules that may be
361-18 used by an authorized lender for the repayment of a loan made under
361-19 this subchapter by weekly, biweekly, or semimonthly installments.
361-20 SUBCHAPTER G. INTEREST AND OTHER CHARGES ON SECONDARY
361-21 MORTGAGE LOANS
361-22 Sec. 342.301. MAXIMUM INTEREST CHARGE. (a) A secondary
361-23 mortgage loan that is a regular transaction may provide for an
361-24 interest charge on the cash advance that is precomputed and that
361-25 does not exceed a rate or amount that would produce the same
361-26 effective return as allowed under Subchapter A, Chapter 303.
76R5 DWS-D 361
362-1 (b) For the purpose of Subsection (a):
362-2 (1) when the loan is made an interest charge may be
362-3 computed for the full term of the loan contract;
362-4 (2) if the period before the first installment due
362-5 date includes a part of a month that is longer than 15 days, that
362-6 portion of a month may be considered a full month; and
362-7 (3) if a loan contract provides for precomputed
362-8 interest, the amount of the loan is the total of:
362-9 (A) the cash advance; and
362-10 (B) the amount of precomputed interest.
362-11 (c) A secondary mortgage loan may provide for a rate or
362-12 amount of interest calculated using the true daily earnings method
362-13 or the scheduled installment earnings method that does not exceed
362-14 the alternative rate ceiling in Subchapter A, Chapter 303.
362-15 Interest may accrue on the principal balance and amounts added to
362-16 principal after the date of the loan contract from time to time
362-17 unpaid at the rate provided for by the contract until the date of
362-18 payment in full or demand for payment in full. An interest charge
362-19 under this subsection may not be precomputed.
362-20 Sec. 342.302. ADDITIONAL INTEREST FOR DEFAULT: REGULAR
362-21 TRANSACTION. (a) A secondary mortgage loan that includes
362-22 precomputed interest and that is a regular transaction may provide
362-23 for additional interest for default if any part of an installment
362-24 remains unpaid after the 10th day after the date on which the
362-25 installment is due, including Sundays and holidays.
362-26 (b) A secondary mortgage loan contract that uses the
76R5 DWS-D 362
363-1 scheduled installment earnings method and that is a regular
363-2 transaction may provide for additional interest for default if any
363-3 part of an installment remains unpaid after the 10th day after the
363-4 date on which the installment is due, including Sundays and
363-5 holidays.
363-6 (c) The additional interest for default may not exceed five
363-7 cents for each $1 of a scheduled installment.
363-8 (d) Interest under this section may not be collected more
363-9 than once on the same installment.
363-10 Sec. 342.303. ADDITIONAL INTEREST FOR INSTALLMENT DEFERMENT:
363-11 REGULAR TRANSACTIONS. (a) On a secondary mortgage loan that
363-12 includes precomputed interest and is a regular transaction, an
363-13 authorized lender may charge additional interest for the deferment
363-14 of an installment if:
363-15 (1) the entire amount of the installment is unpaid;
363-16 (2) no interest for default has been collected on the
363-17 installment; and
363-18 (3) payment of the installment is deferred for one or
363-19 more full months and the maturity of the contract is extended for a
363-20 corresponding period.
363-21 (b) The interest for deferment under Subsection (a) may not
363-22 exceed the amount computed by:
363-23 (1) taking the difference between the refund that
363-24 would be required for prepayment in full as of the date of
363-25 deferment and the refund that would be required for prepayment in
363-26 full one month before the date of deferment; and
76R5 DWS-D 363
364-1 (2) multiplying the results under Subdivision (1) by
364-2 the number of months in the deferment period.
364-3 (c) The amount of interest applicable to each deferred
364-4 balance or installment period occurring after a deferment period
364-5 remains the amount applicable to that balance or period under the
364-6 original loan contract.
364-7 (d) If a loan is prepaid in full during the deferment
364-8 period, the borrower shall receive, in addition to the refund
364-9 required under Subchapter H, a pro rata refund of that part of the
364-10 interest for deferment applicable to the number of full months
364-11 remaining in the deferment period on the payment date.
364-12 (e) For the purposes of this section, a deferment period is
364-13 the period during which a payment is not required or made because
364-14 of the deferment and begins on the day after the due date of the
364-15 scheduled installment that precedes the first installment being
364-16 deferred.
364-17 Sec. 342.304. COLLECTION OF DEFAULT OR DEFERMENT INTEREST.
364-18 Interest for default under Section 342.302 or for installment
364-19 deferment under Section 342.303 may be collected when it accrues or
364-20 at any time after it accrues.
364-21 Sec. 342.305. ADDITIONAL INTEREST FOR DEFAULT: IRREGULAR
364-22 TRANSACTION. A secondary mortgage loan that includes precomputed
364-23 interest and that is an irregular transaction may provide for
364-24 additional interest for default using the true daily earnings
364-25 method for the period from the maturity date of an installment
364-26 until the date the installment is paid. The rate of the additional
76R5 DWS-D 364
365-1 interest may not exceed the maximum contract interest rate.
365-2 Sec. 342.306. DATE OF FIRST SCHEDULED INSTALLMENT. On a
365-3 secondary mortgage loan made under this chapter the due date of the
365-4 first installment may not be scheduled later than three months
365-5 after the date of the loan.
365-6 Sec. 342.307. AMOUNTS AUTHORIZED TO BE INCLUDED IN CONTRACT.
365-7 A secondary mortgage loan contract may provide for:
365-8 (1) reasonable fees or charges paid to the trustee in
365-9 connection with a deed of trust or similar instrument executed in
365-10 connection with the secondary mortgage loan, including fees for
365-11 enforcing the lien against or posting for sale, selling, or
365-12 releasing the property secured by the deed of trust;
365-13 (2) reasonable fees paid to an attorney who is not an
365-14 employee of the creditor in the collection of a delinquent
365-15 secondary mortgage loan;
365-16 (3) court costs and fees incurred in the collection of
365-17 the loan or foreclosure of a lien created by the loan; and
365-18 (4) a fee that does not exceed $15 for the return by a
365-19 depository institution of a dishonored check, negotiable order of
365-20 withdrawal, or share draft offered in full or partial payment of a
365-21 secondary mortgage loan.
365-22 Sec. 342.308. AMOUNTS AUTHORIZED TO BE COLLECTED OR ADDED TO
365-23 LOAN. (a) A lender or a person who is assigned a secondary
365-24 mortgage loan may collect on or before the closing of the loan, or
365-25 include in the principal of the loan:
365-26 (1) reasonable fees for:
76R5 DWS-D 365
366-1 (A) title examination and preparation of an
366-2 abstract of title by:
366-3 (i) an attorney who is not an employee of
366-4 the lender; or
366-5 (ii) a title company or property search
366-6 company authorized to do business in this state; or
366-7 (B) premiums or fees for title insurance or
366-8 title search for the benefit of the mortgagee and, at the
366-9 mortgagor's option, for title insurance or title search for the
366-10 benefit of the mortgagor;
366-11 (2) reasonable fees charged to the lender by an
366-12 attorney who is not a salaried employee of the lender for
366-13 preparation of the loan documents in connection with the mortgage
366-14 loan if the fees are evidenced by a statement for services rendered
366-15 addressed to the lender;
366-16 (3) charges prescribed by law that are paid to public
366-17 officials for determining the existence of a security interest or
366-18 for perfecting, releasing, or satisfying a security interest;
366-19 (4) reasonable fees for an appraisal of real property
366-20 offered as security for the loan prepared by a certified appraiser
366-21 who is not a salaried employee of the lender;
366-22 (5) the reasonable cost of a credit report;
366-23 (6) reasonable fees for a survey of real property
366-24 offered as security for the loan prepared by a registered surveyor
366-25 who is not a salaried employee of the lender;
366-26 (7) the premiums received in connection with the sale
76R5 DWS-D 366
367-1 of credit life insurance, credit accident and health insurance, or
367-2 other insurance that protects the mortgagee against default by the
367-3 mortgagor, the benefits of which are applied in whole or in part to
367-4 reduce or extinguish the loan balance; and
367-5 (8) reasonable fees relating to real property offered
367-6 as security for the loan that are incurred to comply with a
367-7 federally mandated program if the collection of the fees or the
367-8 participation in the program is required by a federal agency.
367-9 (b) Premiums for property insurance that conform with
367-10 Section 342.401 may be added to the loan contract.
367-11 SUBCHAPTER H. REFUND OF PRECOMPUTED INTEREST
367-12 Sec. 342.351. REFUND OF PRECOMPUTED INTEREST: REGULAR
367-13 TRANSACTION. (a) This section applies to a loan contract that
367-14 includes precomputed interest and that is a regular transaction.
367-15 (b) If the contract is prepaid in full, including payment in
367-16 cash or by a new loan or renewal of the loan, or if the lender
367-17 demands payment in full of the unpaid balance, after the first
367-18 installment due date but before the final installment due date, the
367-19 lender shall refund or credit to the borrower the amount computed
367-20 by:
367-21 (1) dividing the sum of the periodic balances
367-22 scheduled to follow the installment date after the date of the
367-23 prepayment or demand, as appropriate, by the sum of all the
367-24 periodic balances under the schedule of payments set out in the
367-25 loan contract; and
367-26 (2) multiplying the total interest contracted for
76R5 DWS-D 367
368-1 under Section 342.201, 342.252, or 342.301, as appropriate, by the
368-2 result under Subdivision (1).
368-3 (c) If the prepayment in full or demand for payment in full
368-4 occurs before the first installment due date, the lender shall:
368-5 (1) retain an amount computed by:
368-6 (A) dividing 30 into the amount that could be
368-7 retained if the first installment period were one month and the
368-8 loan were prepaid in full on the date the first installment is due;
368-9 and
368-10 (B) multiplying the result under Paragraph (A)
368-11 by the number of days in the period beginning on the date the loan
368-12 was made and ending on the date of the prepayment or demand; and
368-13 (2) refund or credit to the borrower the amount
368-14 computed by subtracting the amount retained under Subdivision (1)
368-15 from the interest contracted for under Section 342.201, 342.252, or
368-16 342.301, as appropriate.
368-17 Sec. 342.352. REFUND OF PRECOMPUTED INTEREST ON CONTRACT:
368-18 IRREGULAR TRANSACTION OR TERM OF MORE THAN 60 MONTHS. (a) This
368-19 section applies to a loan contract:
368-20 (1) that includes precomputed interest and to which
368-21 Section 342.351 does not apply; or
368-22 (2) that has a term of more than 60 months.
368-23 (b) If the contract is prepaid in full, including payment in
368-24 cash or by a new loan or renewal of the loan, or if the lender
368-25 demands payment in full of the unpaid balance before final maturity
368-26 of the contract, the lender earns interest for the period beginning
76R5 DWS-D 368
369-1 on the date of the loan and ending on the date of the prepayment or
369-2 demand, as applicable, an amount that does not exceed the amount
369-3 allowed by Subsection (f) using the simple annual interest rate
369-4 under the contract.
369-5 (c) If prepayment in full or demand for payment in full
369-6 occurs during an installment period, the lender may retain, in
369-7 addition to interest that accrued during any elapsed installment
369-8 periods, an amount computed by:
369-9 (1) multiplying the simple annual interest rate under
369-10 the contract by the unpaid principal balance of the loan determined
369-11 according to the schedule of payments to be outstanding on the
369-12 preceding installment due date;
369-13 (2) dividing 365 into the product under Subdivision
369-14 (1); and
369-15 (3) multiplying the number of days in the period
369-16 beginning on the day after the installment due date and ending on
369-17 the date of the prepayment or demand, as appropriate, by the result
369-18 obtained under Subdivision (2).
369-19 (d) The lender may also earn interest on an addition to
369-20 principal, or other permissible charges, added to the loan after
369-21 the date of the loan contract, accruing at the simple annual
369-22 interest rate under the contract from the date of the addition
369-23 until the date paid or the date the lender demands payment in full
369-24 of the total unpaid balance under the loan contract.
369-25 (e) The lender shall refund or credit to the borrower the
369-26 amount computed by subtracting the total amount retained under
76R5 DWS-D 369
370-1 Subsections (b), (c), and (d) from the total amount of interest
370-2 contracted for and precomputed in the amount of the loan.
370-3 (f) For the purposes of this section, the simple annual
370-4 interest rate under a contract is equal to the rate that the
370-5 contract would have produced over its full term if, assuming that
370-6 each scheduled payment under the contract is paid on the date due
370-7 and considering the amount of each scheduled installment and the
370-8 time of each scheduled installment period, the rate were applied to
370-9 the unpaid principal amounts determined to be outstanding from time
370-10 to time according to the schedule of payments.
370-11 Sec. 342.353. NO REFUND ON PARTIAL PREPAYMENT OR OF AMOUNT
370-12 LESS THAN $1. A refund is not required under this subchapter for a
370-13 partial prepayment or if the amount to be refunded is less than $1.
370-14 SUBCHAPTER I. INSURANCE
370-15 Sec. 342.401. REQUIRED PROPERTY INSURANCE. (a) On a loan
370-16 that is subject to Subchapter E with a cash advance of $300 or
370-17 more, a lender may request or require a borrower to insure tangible
370-18 personal property offered as security for the loan.
370-19 (b) On a secondary mortgage loan, a lender may request or
370-20 require a borrower to provide property insurance as security
370-21 against reasonable risks of loss, damage, and destruction.
370-22 (c) The insurance coverage and the premiums or charges for
370-23 the coverage must bear a reasonable relationship to:
370-24 (1) the amount, term, and conditions of the loan;
370-25 (2) the value of the collateral; and
370-26 (3) the existing hazards or risk of loss, damage, or
76R5 DWS-D 370
371-1 destruction.
371-2 (d) The insurance may not:
371-3 (1) cover unusual or exceptional risks; or
371-4 (2) provide coverage not ordinarily included in
371-5 policies issued to the general public.
371-6 (e) A creditor may not require the purchase of duplicate
371-7 property insurance if the creditor has knowledge that the borrower:
371-8 (1) has valid and collectible insurance covering the
371-9 property; and
371-10 (2) has provided a loss payable endorsement sufficient
371-11 to protect the creditor.
371-12 (f) For purposes of determining the knowledge required under
371-13 Subsection (e), a creditor may rely on a written consent to
371-14 purchase insurance in which the borrower is given the opportunity
371-15 to disclose the existence of other coverage.
371-16 Sec. 342.402. CREDIT LIFE INSURANCE, CREDIT HEALTH AND
371-17 ACCIDENT INSURANCE, OR INVOLUNTARY UNEMPLOYMENT INSURANCE. (a) On
371-18 a loan made under this chapter that is subject to Subchapter E with
371-19 a cash advance of $100 or more, a lender may:
371-20 (1) offer or request that a borrower provide credit
371-21 life insurance and credit health and accident insurance as
371-22 additional protection for the loan; and
371-23 (2) offer involuntary unemployment insurance to the
371-24 borrower at the time the loan is made.
371-25 (b) A lender may not require that the borrower accept or
371-26 provide the insurance described by Subsection (a).
76R5 DWS-D 371
372-1 (c) On a secondary mortgage loan made under this chapter, a
372-2 lender may request or require that a borrower provide credit life
372-3 insurance and credit accident and health insurance as additional
372-4 protection for the loan.
372-5 Sec. 342.403. MAXIMUM AMOUNT OF INSURANCE COVERAGE. (a) At
372-6 any time the total amount of the policies of credit life insurance
372-7 in force on one borrower on one loan contract may not exceed the
372-8 greater of:
372-9 (1) the total amount repayable under the loan contract
372-10 if the loan is an irregular transaction; or
372-11 (2) the greater of the scheduled or actual amount of
372-12 unpaid indebtedness if the loan is a regular transaction.
372-13 (b) At any time the total amount of the policies of credit
372-14 accident and health insurance or involuntary unemployment insurance
372-15 in force on one borrower on one loan contract may not exceed the
372-16 total amount repayable under the loan contract, and the amount of
372-17 each periodic indemnity payment may not exceed the scheduled
372-18 periodic installment payment on the loan.
372-19 Sec. 342.404. INSURANCE NOTICE. (a) If insurance is
372-20 required on a loan made under this chapter, the lender shall give
372-21 to the borrower written notice that clearly and conspicuously
372-22 states that:
372-23 (1) insurance is required in connection with the loan;
372-24 and
372-25 (2) the borrower as an option may furnish the required
372-26 insurance coverage through an insurance policy that is in existence
76R5 DWS-D 372
373-1 and that is owned or controlled by the borrower or an insurance
373-2 policy obtained from an insurance company authorized to do business
373-3 in this state.
373-4 (b) If insurance requested or required on a loan made under
373-5 this chapter is sold or obtained by a lender at a premium or rate
373-6 of charge that is not fixed or approved by the commissioner of
373-7 insurance, the lender shall notify the borrower of that fact. If
373-8 notice is required under Subsection (a), the lender shall include
373-9 that fact in the notice required by Subsection (a).
373-10 (c) A notice required under this section may be:
373-11 (1) a separate writing delivered with the loan
373-12 contract; or
373-13 (2) a part of the loan contract.
373-14 Sec. 342.405. INSURANCE MAY BE FURNISHED BY BORROWER. (a)
373-15 If insurance is required on a loan made under this chapter, the
373-16 borrower may furnish the insurance coverage through an insurance
373-17 policy that is in existence and that is owned or controlled by the
373-18 borrower or an insurance policy obtained by the borrower from an
373-19 insurance company authorized to do business in this state.
373-20 (b) If insurance is required on a loan made under this
373-21 chapter and the insurance is sold or obtained by the lender at a
373-22 premium or rate of charge that is not fixed or approved by the
373-23 commissioner of insurance, the borrower has the option of
373-24 furnishing the required insurance under this section at any time
373-25 before the sixth day after the date of the loan.
373-26 Sec. 342.406. BORROWER'S FAILURE TO PROVIDE REQUIRED
76R5 DWS-D 373
374-1 INSURANCE. (a) If a borrower fails to obtain or maintain
374-2 insurance coverage required under a loan contract or requests the
374-3 lender to obtain that coverage, the lender may obtain substitute
374-4 insurance coverage that is substantially equivalent to or more
374-5 limited than the coverage originally required.
374-6 (b) If a loan is subject to Subchapter E, the lender may
374-7 obtain insurance to cover only the interest of the lender as a
374-8 secured party if the borrower does not request that the borrower's
374-9 interest be covered.
374-10 (c) Insurance obtained under this section must comply with
374-11 Sections 342.407 and 342.408.
374-12 (d) The lender may add the amount advanced by the lender for
374-13 insurance coverage obtained under this section to the unpaid
374-14 balance of the loan contract and may charge interest on that amount
374-15 from the time it is added to the unpaid balance until it is paid.
374-16 The rate of additional interest may not exceed the rate that the
374-17 loan contract would produce over its full term if each scheduled
374-18 payment were paid on the due date.
374-19 Sec. 342.407. REQUIREMENTS FOR INCLUDING INSURANCE CHARGE IN
374-20 CONTRACT. Insurance for which a charge is included in a loan
374-21 contract must be written:
374-22 (1) at lawful rates;
374-23 (2) in accordance with the Insurance Code; and
374-24 (3) by a company authorized to do business in this
374-25 state.
374-26 Sec. 342.408. FURNISHING OF INSURANCE DOCUMENT TO BORROWER.
76R5 DWS-D 374
375-1 If a lender obtains insurance for which a charge is included in the
375-2 loan contract, the lender, not later than the 30th day after the
375-3 date on which the loan contract is executed, shall deliver, mail,
375-4 or cause to be mailed to the borrower at the borrower's address
375-5 specified in the contract one or more policies or certificates of
375-6 insurance that clearly set forth:
375-7 (1) the amount of the premium;
375-8 (2) the kind of insurance provided;
375-9 (3) the coverage of the insurance; and
375-10 (4) all terms, including options, limitations,
375-11 restrictions, and conditions, of each insurance policy.
375-12 Sec. 342.409. LENDER'S DUTY IF INSURANCE IS ADJUSTED OR
375-13 TERMINATED. (a) If insurance for which a charge is included in or
375-14 added to the loan contract is canceled, adjusted, or terminated,
375-15 the lender shall:
375-16 (1) credit to the amount unpaid on the loan the amount
375-17 of the refund received by the lender for unearned insurance
375-18 premiums, less the amount of the refund that is applied to the
375-19 purchase by the lender of similar insurance; and
375-20 (2) if the amount to be credited under Subdivision (1)
375-21 is more than the unpaid balance, refund promptly to the borrower
375-22 the difference between those amounts.
375-23 (b) A cash refund is not required under this section if the
375-24 amount of the refund is less than $1.
375-25 Sec. 342.410. PAYMENT FOR INSURANCE FROM LOAN PROCEEDS. A
375-26 lender, including an officer, agent, or employee of the lender, who
76R5 DWS-D 375
376-1 accepts insurance under this subchapter as protection for a loan:
376-2 (1) may deduct the premium or identifiable charge for
376-3 the insurance from the proceeds of the loan; and
376-4 (2) shall pay the deducted amounts to the insurance
376-5 company writing the insurance.
376-6 Sec. 342.411. INSURANCE GAIN NOT INTEREST. Any gain or
376-7 advantage to the lender or the lender's employee, officer,
376-8 director, agent, general agent, affiliate, or associate from
376-9 insurance under this subchapter or the provision or sale of
376-10 insurance under this subchapter is not additional interest or an
376-11 additional charge in connection with a loan made under this chapter
376-12 except as specifically provided by this chapter.
376-13 Sec. 342.412. ACTION UNDER SUBCHAPTER NOT SALE OF INSURANCE.
376-14 Arranging for insurance or collecting an identifiable charge as
376-15 authorized by this subchapter is not a sale of insurance.
376-16 Sec. 342.413. REQUIRED AGENT OR BROKER PROHIBITED. A lender
376-17 may not by any direct or indirect method require the purchase of
376-18 insurance from an agent or broker designated by the lender.
376-19 Sec. 342.414. DECLINATION OF EQUAL INSURANCE COVERAGE
376-20 PROHIBITED. A lender may not decline at any time existing
376-21 insurance coverage providing substantially equal benefits that
376-22 comply with this subchapter.
376-23 Sec. 342.415. EFFECT OF UNAUTHORIZED INSURANCE CHARGE. (a)
376-24 If a lender charges for insurance an amount that is not authorized
376-25 under this subchapter, the lender:
376-26 (1) is not entitled to collect an amount for insurance
76R5 DWS-D 376
377-1 or interest on an amount for insurance; and
377-2 (2) shall refund to the borrower or credit to the
377-3 borrower's account all amounts collected for insurance and interest
377-4 collected on those amounts.
377-5 (b) An overcharge that results from an accidental or bona
377-6 fide error may be corrected as provided by Subchapter C, Chapter
377-7 349.
377-8 (c) The remedy provided by this section is not exclusive of
377-9 any other remedy or penalty provided by this subtitle.
377-10 Sec. 342.416. NONFILING INSURANCE. (a) Instead of charging
377-11 fees for the filing, recording, and releasing of a document
377-12 securing a loan to which Subchapter E applies, an authorized lender
377-13 may include in the loan contract a charge for a nonfiling insurance
377-14 premium.
377-15 (b) The amount of a charge under Subsection (a) may not
377-16 exceed the amount of fees authorized for filing and recording an
377-17 original financing statement in the standard form prescribed by the
377-18 secretary of state.
377-19 (c) A lender may receive an amount authorized under this
377-20 section only if the lender purchases nonfiling insurance in
377-21 connection with the loan contract.
377-22 (d) A lender is not required to furnish to a borrower a
377-23 policy or certificate of insurance evidencing nonfiling insurance.
377-24 SUBCHAPTER J. AUTHORIZED LENDER'S DUTIES AND AUTHORITY
377-25 Sec. 342.451. DELIVERY OF INFORMATION TO BORROWER. (a)
377-26 When a loan is made under this chapter, the lender shall deliver to
76R5 DWS-D 377
378-1 the borrower, or to one borrower if there is more than one, a copy
378-2 of each document signed by the borrower, including the note or loan
378-3 contract, and a written statement in English that contains:
378-4 (1) the names and addresses of the borrower and the
378-5 lender; and
378-6 (2) any type of insurance for which a charge is
378-7 included in the loan contract and the charge to the borrower for
378-8 the insurance.
378-9 (b) If the note or loan contract shows the information
378-10 required by Subsection (a), the written statement is not required.
378-11 Sec. 342.452. RECEIPT FOR CASH PAYMENT. A lender shall give
378-12 a receipt to a person making a cash payment on a loan.
378-13 Sec. 342.453. ACCEPTANCE OF PREPAYMENT. At any time during
378-14 regular business hours, the lender shall accept prepayment of a
378-15 loan in full or, if the amount tendered is less than the amount
378-16 required to prepay the loan in full, prepayment of an amount equal
378-17 to one or more full installments.
378-18 Sec. 342.454. RETURN OF INSTRUMENTS TO BORROWER ON
378-19 REPAYMENT. Within a reasonable time after a loan is repaid in full
378-20 or an open-end account is terminated according to the terms of the
378-21 contract, a lender shall cancel and return to a borrower any
378-22 instrument, including a note, assignment, security agreement, or
378-23 mortgage, or pledged property that:
378-24 (1) secured the loan; and
378-25 (2) does not secure another indebtedness of the
378-26 borrower to the lender.
76R5 DWS-D 378
379-1 Sec. 342.455. AGREEMENT FOR MORE THAN ONE LOAN OR CASH
379-2 ADVANCE. (a) A lender and a borrower may enter an agreement under
379-3 which one or more loans or cash advances are from time to time made
379-4 to or for the account of the borrower.
379-5 (b) An agreement under this section may provide for a
379-6 maximum loan charge on the unpaid principal amounts from time to
379-7 time outstanding at a rate that does not exceed the rate that
379-8 produces the maximum interest charge computed under Section 342.201
379-9 for an equivalent loan amount.
379-10 (c) An agreement under this section must be written and
379-11 signed by the lender and borrower.
379-12 (d) An agreement under this section must contain:
379-13 (1) the date of the agreement;
379-14 (2) the name and address of each borrower; and
379-15 (3) the name and address of the lender.
379-16 (e) If a charge for insurance coverage is to be included in
379-17 a loan contract, an agreement under this section must clearly set
379-18 forth a simple statement of the amount of the charge or the method
379-19 by which the charge is to be computed.
379-20 (f) The lender shall deliver a copy of an agreement under
379-21 this section to the borrower.
379-22 (g) The commissioner may prescribe monthly rates of charge
379-23 that produce the maximum interest charge computed under Section
379-24 342.201 for use under Subsection (b).
379-25 Sec. 342.456. AGREEMENT TO MODIFY TERM OF SECONDARY MORTGAGE
379-26 LOAN CONTRACT. (a) A lender and a borrower may enter into an
76R5 DWS-D 379
380-1 agreement under which a term of a secondary mortgage loan contract
380-2 is amended, restated, or rescheduled.
380-3 (b) An agreement under this section must be written and
380-4 signed by the lender and borrower.
380-5 (c) An agreement under this section must contain:
380-6 (1) the date of the agreement;
380-7 (2) the name and address of the lender; and
380-8 (3) the name and address of each borrower.
380-9 (d) The lender shall deliver a copy of an agreement under
380-10 this section to the borrower.
380-11 SUBCHAPTER K. LIMITATIONS ON AUTHORIZED LENDER
380-12 Sec. 342.501. OBLIGATION UNDER MORE THAN ONE CONTRACT. (a)
380-13 An authorized lender may not induce or permit a person or a husband
380-14 and wife to be directly or indirectly obligated under more than one
380-15 loan contract at any time for the purpose or with the effect of
380-16 obtaining an amount of interest greater than the amount of interest
380-17 otherwise authorized under this chapter for a loan of that
380-18 aggregate amount with a maximum interest charge computed under
380-19 Section 342.201(a), Section 342.252, or both of those sections.
380-20 (b) Subsection (a) does not prohibit the purchase of a bona
380-21 fide retail installment contract or revolving charge agreement of a
380-22 borrower for the purchase of goods or services.
380-23 (c) A lender who purchases all or substantially all of the
380-24 loan contracts of another authorized lender and who at the time of
380-25 purchase has a loan contract with a borrower whose loan contract is
380-26 purchased may collect principal and authorized charges according to
76R5 DWS-D 380
381-1 the terms of each loan contract.
381-2 Sec. 342.502. AMOUNT AUTHORIZED. (a) A lender may not
381-3 directly or indirectly charge, contract for, or receive an amount
381-4 that is not authorized under this chapter in connection with a loan
381-5 to which this chapter applies, including any fee, compensation,
381-6 bonus, commission, brokerage, discount, expense, and any other
381-7 charge of any nature, whether or not listed by this subsection.
381-8 (b) On a loan subject to Subchapter E or a secondary
381-9 mortgage loan subject to Subchapter G a lender may assess and
381-10 collect from the borrower:
381-11 (1) an amount incurred by the lender for:
381-12 (A) court costs;
381-13 (B) attorney's fees assessed by a court;
381-14 (C) a fee authorized by law for filing,
381-15 recording, or releasing in a public office a security for a loan;
381-16 (D) a reasonable amount spent for repossessing,
381-17 storing, preparing for sale, or selling any security;
381-18 (E) a fee for recording a lien on or
381-19 transferring a certificate of title to a motor vehicle offered as
381-20 security for a loan made under this chapter; or
381-21 (F) a premium or an identifiable charge received
381-22 in connection with the sale of insurance authorized under this
381-23 chapter; and
381-24 (2) an administrative fee, subject to Subsection (c),
381-25 in an amount not to exceed:
381-26 (A) $25 for a loan of more than $1,000; or
76R5 DWS-D 381
382-1 (B) $10 for a loan of $1,000 or less.
382-2 (c) An administrative fee under Subsection (b)(2) is
382-3 considered earned when the loan is made or refinanced and is not
382-4 subject to refund. A lender refinancing the loan may not contract
382-5 for or receive an administrative fee for the loan more than once in
382-6 a 180-day period. Fifty cents of each administrative fee shall be
382-7 deposited with the comptroller for use in carrying out the finance
382-8 commission's responsibilities under Section 11.305.
382-9 Sec. 342.503. SECURITY FOR LOAN. (a) A lender may not take
382-10 as security for a loan made under this chapter an assignment of
382-11 wages.
382-12 (b) A lender may not take as security for a loan made under
382-13 Subchapter E or F a lien on real property other than a lien created
382-14 by law on the recording of an abstract of judgment.
382-15 (c) A lender may take as security for a loan made under
382-16 Subchapter E or F an assignment of:
382-17 (1) a warrant drawn against a state fund; or
382-18 (2) a claim against a state fund or a state agency.
382-19 Sec. 342.504. CONFESSION OF JUDGMENT; POWER OF ATTORNEY. A
382-20 lender may not take a confession of judgment or a power of attorney
382-21 authorizing the lender or a third person to confess judgment or to
382-22 appear for a borrower in a judicial proceeding.
382-23 Sec. 342.505. DISCLOSURE OF AMOUNT FINANCED AND SCHEDULE OF
382-24 PAYMENTS. A lender may not take a promise to pay or loan
382-25 obligation that does not disclose the amount financed and the
382-26 schedule of payments, except for an open-end account.
76R5 DWS-D 382
383-1 Sec. 342.506. INSTRUMENT WITH BLANK PROHIBITED. A lender
383-2 may not take an instrument in which a blank is left to be filled in
383-3 after the loan is made.
383-4 Sec. 342.507. WAIVER OF BORROWER'S RIGHT PROHIBITED. A
383-5 lender may not take an instrument in which a borrower waives any
383-6 right accruing to the borrower under this chapter.
383-7 Sec. 342.508. MAXIMUM LOAN TERM. A lender may not enter a
383-8 loan contract under Section 342.201(a) under which the borrower
383-9 agrees to make a scheduled payment of principal more than:
383-10 (1) 37 calendar months after the date on which the
383-11 contract is made, if the contract is for a cash advance of $1,500
383-12 or less;
383-13 (2) 49 calendar months after the date on which the
383-14 contract is made, if the contract is for a cash advance of more
383-15 than $1,500 but not more than $3,000; or
383-16 (3) 60 months after the date on which the contract is
383-17 made, if the contract is for a cash advance of more than $3,000.
383-18 SUBCHAPTER L. ADMINISTRATION OF CHAPTER
383-19 Sec. 342.551. ADOPTION OF RULES. (a) The Finance
383-20 Commission of Texas may adopt rules to enforce this chapter.
383-21 (b) The commissioner shall recommend proposed rules to the
383-22 Finance Commission of Texas.
383-23 (c) A rule shall be entered in a permanent book. The book
383-24 is a public record and shall be kept in the office of the
383-25 commissioner.
383-26 Sec. 342.552. EXAMINATION OF LENDERS; ACCESS TO RECORDS.
76R5 DWS-D 383
384-1 (a) The commissioner or the commissioner's representative shall,
384-2 at the times the commissioner considers necessary:
384-3 (1) examine each place of business of each authorized
384-4 lender; and
384-5 (2) investigate the lender's transactions, including
384-6 loans, and records, including books, accounts, papers, and
384-7 correspondence, to the extent the transactions and records pertain
384-8 to the business regulated under this chapter.
384-9 (b) The lender shall:
384-10 (1) give the commissioner or the commissioner's
384-11 representative free access to the lender's office, place of
384-12 business, files, safes, and vaults; and
384-13 (2) allow the commissioner or the commissioner's
384-14 authorized representative to make a copy of an item that may be
384-15 investigated under Subsection (a)(2).
384-16 (c) During an examination the commissioner or the
384-17 commissioner's representative may administer oaths and examine any
384-18 person under oath on any subject pertinent to a matter that the
384-19 commissioner is authorized or required to consider, investigate, or
384-20 secure information about under this chapter.
384-21 (d) Information obtained under this section is confidential.
384-22 (e) A lender's violation of Subsection (b) is a ground for
384-23 the suspension or revocation of the lender's license.
384-24 Sec. 342.553. GENERAL INVESTIGATION. (a) To discover a
384-25 violation of this chapter or to obtain information required under
384-26 this chapter, the commissioner or the commissioner's representative
76R5 DWS-D 384
385-1 may investigate the records, including books, accounts, papers, and
385-2 correspondence, of a person, including an authorized lender, who
385-3 the commissioner has reasonable cause to believe is violating this
385-4 chapter regardless of whether the person claims to not be subject
385-5 to this chapter.
385-6 (b) For the purposes of this section, a person who
385-7 advertises, solicits, or otherwise represents that the person is
385-8 willing to make a loan with a cash advance less than or equal to
385-9 the amount computed under Subchapter C, Chapter 341, using the
385-10 reference base amount of $2,500 is presumed to be engaged in the
385-11 business described by Section 342.051.
385-12 Sec. 342.554. CERTIFICATE; CERTIFIED DOCUMENT. On
385-13 application by any person and on payment of any associated cost,
385-14 the commissioner shall furnish under the commissioner's seal and
385-15 signed by the commissioner or an assistant of the commissioner:
385-16 (1) a certificate of good standing; or
385-17 (2) a certified copy of a license, rule, or order.
385-18 Sec. 342.555. TRANSCRIPT OF HEARING: PUBLIC. The
385-19 transcript of a hearing held by the commissioner under this chapter
385-20 is a public record.
385-21 Sec. 342.556. APPOINTMENT OF AGENT. (a) An authorized
385-22 lender shall maintain on file with the commissioner a written
385-23 appointment of a resident of this state as the lender's agent for
385-24 service of all judicial or other process or legal notice, unless
385-25 the lender has appointed an agent under another statute of this
385-26 state.
76R5 DWS-D 385
386-1 (b) If an authorized lender does not comply with this
386-2 section, service of all judicial or other process or legal notice
386-3 may be made on the commissioner.
386-4 Sec. 342.557. PAYMENT OF EXAMINATION COSTS AND
386-5 ADMINISTRATION EXPENSES. An authorized lender shall pay to the
386-6 commissioner an amount assessed by the commissioner to cover the
386-7 direct and indirect cost of an examination of the lender under
386-8 Section 342.552 and a proportionate share of general administrative
386-9 expense.
386-10 Sec. 342.558. AUTHORIZED LENDER'S RECORDS. (a) An
386-11 authorized lender shall maintain a record of each loan made under
386-12 this chapter as is necessary to enable the commissioner to
386-13 determine whether the lender is complying with this chapter.
386-14 (b) An authorized lender shall keep the record, make it
386-15 available in this state, or, if the lender makes, transacts, or
386-16 negotiates loans principally by mail, keep the record or make it
386-17 available at the lender's principal place of business, until the
386-18 later of:
386-19 (1) the fourth anniversary of the date of the loan; or
386-20 (2) the second anniversary of the date on which the
386-21 final entry is made in the record.
386-22 (c) A record described by Subsection (a) must be prepared in
386-23 accordance with accepted accounting practices.
386-24 (d) The commissioner shall accept a lender's system of
386-25 records if the system discloses the information reasonably required
386-26 under Subsection (a).
76R5 DWS-D 386
387-1 (e) An authorized lender shall keep each obligation signed
387-2 by a borrower at an office in this state designated by the lender
387-3 unless the obligation is transferred under an agreement that gives
387-4 the commissioner access to the obligation.
387-5 Sec. 342.559. ANNUAL REPORT. (a) Each year, not later than
387-6 May 1 or a later date set by the commissioner, an authorized lender
387-7 shall file with the commissioner a report that contains relevant
387-8 information required by the commissioner concerning the lender's
387-9 business and operations during the preceding calendar year for each
387-10 office of the lender in this state where business is conducted
387-11 under this chapter.
387-12 (b) A report under this section must be:
387-13 (1) under oath; and
387-14 (2) in the form prescribed by the commissioner.
387-15 (c) A report under this section is confidential.
387-16 (d) Annually the commissioner shall prepare and publish a
387-17 consolidated analysis and recapitulation of reports filed under
387-18 this section.
387-19 Sec. 342.560. CONDUCTING ASSOCIATED BUSINESS. An authorized
387-20 lender may conduct business under this chapter in an office, office
387-21 suite, room, or place of business in which any other business is
387-22 conducted or in combination with any other business unless the
387-23 commissioner:
387-24 (1) finds after a hearing that the lender's conducting
387-25 of the other business in that office, office suite, room, or place
387-26 of business has concealed an evasion of this chapter; and
76R5 DWS-D 387
388-1 (2) orders the lender in writing to desist from that
388-2 conduct in that office, office suite, room, or place of business.
388-3 [CHAPTER 342. CERTAIN CASH ADVANCE LOANS]
388-4 [SUBCHAPTER A. DESCRIPTION OF AND REQUIREMENTS FOR
388-5 AUTHORIZED ACTIVITIES]
388-6 [Sec. 342.001. AUTHORIZED ACTIVITIES; CEILING AMOUNT. (a)
388-7 Only an authorized lender may:]
388-8 [(1) engage in the business of making, transacting, or
388-9 negotiating loans with cash advances less than or equal to the
388-10 amount computed under Subchapter C, Chapter 341, using the
388-11 reference amount of $2,500; and]
388-12 [(2) contract for, charge, or receive, directly or
388-13 indirectly, in connection with a loan described by Subdivision (1),
388-14 charges, including interest, compensation, consideration, or other
388-15 expenses, authorized under this chapter that in the aggregate
388-16 exceed the charges authorized under other law.]
388-17 [(b) A person may not use any device, subterfuge, or
388-18 pretense to evade the application of this section.]
388-19 [Sec. 342.002. ISSUANCE OF MORE THAN ONE LICENSE FOR A
388-20 PERSON. (a) The commissioner may issue more than one license to a
388-21 person on compliance with this chapter for each license.]
388-22 [(b) A person who is required to hold a license must hold a
388-23 separate license for each office at which operations requiring a
388-24 license are conducted.]
388-25 [(c) A license is not required under this chapter for a
388-26 place of business devoted to accounting or other recordkeeping and
76R5 DWS-D 388
389-1 at which loans are not made under this chapter.]
389-2 [Sec. 342.003. AREA OF BUSINESS; LOANS BY MAIL. This
389-3 chapter does not:]
389-4 [(1) limit the loans of an authorized lender to
389-5 residents of the community in which the office for which the
389-6 license or other authority is granted is located; or]
389-7 [(2) prohibit an authorized lender from making loans
389-8 by mail.]
389-9 [SUBCHAPTER B. APPLICATION FOR AND ISSUANCE OF LICENSE]
389-10 [Sec. 342.101. APPLICATION REQUIREMENTS. (a) The
389-11 application for a license under this chapter must:]
389-12 [(1) be under oath;]
389-13 [(2) give the approximate location from which business
389-14 is to be conducted;]
389-15 [(3) identify the business's principal parties in
389-16 interest; and]
389-17 [(4) contain other relevant information that the
389-18 commissioner requires for the findings required under Section
389-19 342.104.]
389-20 [(b) On the filing of one or more license applications, the
389-21 applicant shall pay to the consumer credit commissioner an
389-22 investigation fee of $200.]
389-23 [(c) On the filing of each license application, the
389-24 applicant shall pay to the commissioner for the license's year of
389-25 issuance a license fee of:]
389-26 [(1) $100 if the license is granted not later than
76R5 DWS-D 389
390-1 June 30; or]
390-2 [(2) $50 if the license is granted after June 30.]
390-3 [Sec. 342.102. BOND. (a) If the commissioner requires, an
390-4 applicant for a license under this chapter shall file with the
390-5 application a bond that is:]
390-6 [(1) in an amount not to exceed the total of:]
390-7 [(A) $5,000 for the first license; and]
390-8 [(B) $1,000 for each additional license;]
390-9 [(2) satisfactory to the commissioner; and]
390-10 [(3) issued by a surety company qualified to do
390-11 business as surety in this state.]
390-12 [(b) The bond must be in favor of this state for the use of
390-13 this state and the use of a person who has a cause of action under
390-14 this chapter against the license holder.]
390-15 [(c) The bond must be conditioned on:]
390-16 [(1) the license holder's faithful performance under
390-17 this chapter and rules adopted under this chapter; and]
390-18 [(2) the payment of all amounts that become due to the
390-19 state or another person under this chapter during the calendar year
390-20 for which the bond is given.]
390-21 [(d) The aggregate liability of a surety to all persons
390-22 damaged by the license holder's violation of this chapter may not
390-23 exceed the amount of the bond.]
390-24 [Sec. 342.103. INVESTIGATION OF APPLICATION. On the filing
390-25 of an application and, if required, a bond and on payment of the
390-26 required fees, the commissioner shall conduct an investigation to
76R5 DWS-D 390
391-1 determine whether to issue the license.]
391-2 [Sec. 342.104. APPROVAL OR DENIAL OF APPLICATION. (a) The
391-3 commissioner shall approve the application and issue to the
391-4 applicant a license to make loans under this chapter if the
391-5 commissioner finds that:]
391-6 [(1) the financial responsibility, experience,
391-7 character, and general fitness of the applicant are sufficient to:]
391-8 [(A) command the confidence of the public; and]
391-9 [(B) warrant the belief that the business will
391-10 be operated lawfully and fairly, within the purposes of this
391-11 chapter; and]
391-12 [(2) the applicant has net assets of at least $25,000
391-13 available for the operation of the business.]
391-14 [(b) If the commissioner does not so find, the commissioner
391-15 shall notify the applicant.]
391-16 [(c) If an applicant requests a hearing on the application
391-17 not later than the 30th day after the date of notification under
391-18 Subsection (b), the applicant is entitled to a hearing within 60
391-19 days after the date of the request.]
391-20 [(d) Unless the applicant and the commissioner agree in
391-21 writing to a later date, the commissioner shall approve or deny the
391-22 application within 60 days after the later of the date on which:]
391-23 [(1) the application is filed and the required fees
391-24 are paid; or]
391-25 [(2) a hearing on the application is completed.]
391-26 [Sec. 342.105. DISPOSITION OF FEES ON DENIAL OF APPLICATION.
76R5 DWS-D 391
392-1 If the commissioner denies the application, the commissioner shall
392-2 retain the investigation fee and shall return to the applicant the
392-3 license fee submitted with the application.]
392-4 [SUBCHAPTER C. LICENSE]
392-5 [Sec. 342.151. NAME AND PLACE ON LICENSE. (a) A license
392-6 must state:]
392-7 [(1) the name of the license holder; and]
392-8 [(2) the address of the office from which the business
392-9 is to be conducted.]
392-10 [(b) A license holder may not conduct business under a name
392-11 or at a place of business in this state other than the name or
392-12 office stated on the license.]
392-13 [Sec. 342.152. LICENSE DISPLAY. A license holder shall
392-14 display a license at the place of business provided on the license.]
392-15 [Sec. 342.153. MINIMUM ASSETS FOR LICENSE. (a) Except as
392-16 provided by Subsection (b) or (c), a license holder shall maintain
392-17 for each office for which a license is held net assets of at least
392-18 $25,000 that are used or readily available for use in conducting
392-19 the business of that office.]
392-20 [(b) A license holder who held a license under the Texas
392-21 Regulatory Loan Act and was issued a license to make loans under
392-22 this chapter as provided by Section 4, Chapter 274, Acts of the
392-23 60th Legislature, Regular Session, 1967, shall maintain for the
392-24 office for which that license is held net assets of at least
392-25 $15,000 that are used or readily available for use in conducting
392-26 the business of that office.]
76R5 DWS-D 392
393-1 [(c) A license holder who paid the pawnbroker's occupational
393-2 tax for 1967 and was issued a license to make loans under this
393-3 chapter as provided by Section 4, Chapter 274, Acts of the 60th
393-4 Legislature, Regular Session, 1967, is exempt from the minimum
393-5 assets requirement of Subsection (a) for the office for which that
393-6 license is held.]
393-7 [(d) If a license holder to which Subsection (b) or (c)
393-8 applies transfers the license, the person to whom the license is
393-9 transferred is subject to the minimum net assets requirement of
393-10 Subsection (a).]
393-11 [Sec. 342.154. ANNUAL LICENSE FEE. (a) Not later than
393-12 December 1, a license holder shall pay to the commissioner for each
393-13 license held an annual fee for the year beginning the next January
393-14 1.]
393-15 [(b) The annual fee for a license under this chapter is $200
393-16 except that if, on September 30 preceding the date on which the
393-17 annual fee is due, the gross unpaid balance of loans regulated
393-18 under this chapter in the office for which the license is issued is
393-19 $100,000 or less, the annual fee is $100.]
393-20 [Sec. 342.155. EXPIRATION OF LICENSE ON FAILURE TO PAY
393-21 ANNUAL FEE. If the annual fee for a license is not paid before the
393-22 16th day after the date on which written notice of delinquency of
393-23 payment has been given to the license holder by the commissioner,
393-24 the license expires on the later of:]
393-25 [(1) that day; or]
393-26 [(2) December 31 of the last year for which an annual
76R5 DWS-D 393
394-1 fee was paid.]
394-2 [Sec. 342.156. LICENSE FORFEITURE. (a) A license holder
394-3 who violates this chapter is subject to forfeiture of the holder's
394-4 license and, if the license holder is a corporation, forfeiture of
394-5 its charter.]
394-6 [(b) When the attorney general is notified of a violation of
394-7 this chapter, the attorney general shall file suit in a district
394-8 court in Travis County for forfeiture of the license holder's
394-9 license and, if the license holder is a corporation, for forfeiture
394-10 of the license holder's charter.]
394-11 [Sec. 342.157. LICENSE SUSPENSION OR REVOCATION. After
394-12 notice and a hearing the commissioner may suspend or revoke a
394-13 license if the commissioner finds that:]
394-14 [(1) the license holder failed to pay the annual
394-15 license fee or an examination fee, investigation fee, or other
394-16 charge imposed by the commissioner under this chapter;]
394-17 [(2) the license holder, knowingly or without the
394-18 exercise of due care, violated this chapter or a rule adopted or
394-19 order issued under this chapter; or]
394-20 [(3) a fact or condition exists that, if it had
394-21 existed or had been known to exist at the time of the original
394-22 application for the license, clearly would have justified the
394-23 commissioner's denial of the application.]
394-24 [Sec. 342.158. LICENSE SUSPENSION OR REVOCATION FILED WITH
394-25 PUBLIC RECORDS. The decision of the commissioner on the suspension
394-26 or revocation of a license and the evidence considered by the
76R5 DWS-D 394
395-1 commissioner in making the decision shall be filed with the public
395-2 records of the commissioner.]
395-3 [Sec. 342.159. REINSTATEMENT OF SUSPENDED LICENSE; ISSUANCE
395-4 OF NEW LICENSE AFTER REVOCATION. The commissioner may reinstate a
395-5 suspended license or issue a new license to a person whose license
395-6 has been revoked if at the time of the reinstatement or issuance no
395-7 fact or condition exists that clearly would have justified the
395-8 commissioner's denial of an original application for the license.]
395-9 [Sec. 342.160. SURRENDER OF LICENSE. A license holder may
395-10 surrender a license issued under this chapter by delivering to the
395-11 commissioner:]
395-12 [(1) the license; and]
395-13 [(2) a written notice of the license's surrender.]
395-14 [Sec. 342.161. EFFECT OF LICENSE SUSPENSION, REVOCATION, OR
395-15 SURRENDER. (a) The suspension, revocation, or surrender of a
395-16 license issued under this chapter does not affect the obligation of
395-17 a contract between the license holder and a debtor entered into
395-18 before the revocation, suspension, or surrender.]
395-19 [(b) Surrender of a license does not affect the license
395-20 holder's civil or criminal liability for an act committed before
395-21 surrender.]
395-22 [Sec. 342.162. MOVING AN OFFICE. (a) A license holder
395-23 shall give written notice to the commissioner before the 30th day
395-24 preceding the date the license holder moves an office from the
395-25 location provided on the license.]
395-26 [(b) The commissioner shall amend a holder's license
76R5 DWS-D 395
396-1 accordingly.]
396-2 [Sec. 342.163. TRANSFER OR ASSIGNMENT OF LICENSE. A license
396-3 may be transferred or assigned only with the approval of the
396-4 commissioner.]
396-5 [SUBCHAPTER D. INTEREST CHARGES]
396-6 [Sec. 342.201. MAXIMUM INTEREST CHARGE. (a) A loan
396-7 contract under this chapter that is payable in consecutive monthly
396-8 installments, substantially equal in amount, may provide for an
396-9 interest charge that does not exceed an add-on charge, computed for
396-10 the full term of the contract as follows:]
396-11 [(1) $18 per $100 per year on the part of the cash
396-12 advance that is less than or equal to the amount computed under
396-13 Subchapter C, Chapter 341, using the reference amount of $300; and]
396-14 [(2) $8 per $100 per year on the part of the cash
396-15 advance that is more than the amount computed for Subdivision (1)
396-16 but less than or equal to an amount computed under Subchapter C,
396-17 Chapter 341, using the reference amount of $2,500.]
396-18 [(b) For the purpose of Subsection (a):]
396-19 [(1) when the loan is made, an interest charge may be
396-20 computed for the full term of the loan contract;]
396-21 [(2) a part of a month that is longer than 15 days may
396-22 be considered a full month; and]
396-23 [(3) if a loan contract provides for precomputed
396-24 interest, the amount of the loan is the total of:]
396-25 [(A) the cash advance; and]
396-26 [(B) the amount of precomputed interest.]
76R5 DWS-D 396
397-1 [(c) A loan contract under this chapter that is payable
397-2 other than in substantially equal consecutive monthly installments
397-3 may provide for an interest charge, using any method or formula,
397-4 that does not exceed the amount that, having due regard for the
397-5 schedule of installment payments, would produce the same effective
397-6 return under Subsection (a) if the loan were payable in
397-7 substantially equal successive monthly installments beginning one
397-8 month from the date of the contract.]
397-9 [Sec. 342.202. ADDITIONAL INTEREST FOR DEFAULT: CONTRACT
397-10 WITH EQUAL MONTHLY INSTALLMENTS. (a) A loan contract that
397-11 includes precomputed interest and that is payable in substantially
397-12 equal successive monthly installments may provide for additional
397-13 interest for default if any part of an installment remains unpaid
397-14 after the 10th day after the date on which the installment is due,
397-15 including Sundays and holidays. The additional interest may not
397-16 exceed five cents for each $1 of a scheduled installment.]
397-17 [(b) Interest under Subsection (a) may not be collected more
397-18 than once on the same installment.]
397-19 [Sec. 342.203. ADDITIONAL INTEREST FOR INSTALLMENT
397-20 DEFERMENT: CONTRACT WITH EQUAL MONTHLY INSTALLMENTS. (a) On a
397-21 loan contract that includes precomputed interest and is payable in
397-22 substantially equal successive monthly installments, an authorized
397-23 lender may charge additional interest for the deferment of an
397-24 installment if:]
397-25 [(1) the entire amount of the installment is unpaid;]
397-26 [(2) no interest for default has been collected on the
76R5 DWS-D 397
398-1 installment; and]
398-2 [(3) payment of the installment is deferred for one or
398-3 more full months and the maturity of the contract is extended for a
398-4 corresponding period.]
398-5 [(b) The interest for deferment under Subsection (a) may not
398-6 exceed the amount computed by:]
398-7 [(1) taking the difference between the refund that
398-8 would be required for prepayment in full on the date of deferment
398-9 and the refund that would be required for prepayment in full one
398-10 month before the date of deferment; and]
398-11 [(2) multiplying the results under Subdivision (1) by
398-12 the number of months in the deferment period.]
398-13 [(c) The amount of interest applicable to each deferred
398-14 balance or installment period occurring after a deferment period
398-15 remains the amount applicable to that balance or period under the
398-16 original loan contract.]
398-17 [(d) If a loan is prepaid in full during the deferment
398-18 period, the borrower shall receive, in addition to the refund
398-19 required under Subchapter E, a pro rata refund of that part of the
398-20 interest for deferment applicable to the number of full months
398-21 remaining in the deferment period on the payment date.]
398-22 [(e) For the purposes of this section, a deferment period is
398-23 the period during which a payment is not required or made because
398-24 of the deferment and begins on the day after the due date of the
398-25 scheduled installment that precedes the first installment being
398-26 deferred.]
76R5 DWS-D 398
399-1 [Sec. 342.204. COLLECTION OF DEFAULT OR DEFERMENT INTEREST.
399-2 Interest for default under Section 342.202 or for installment
399-3 deferment under Section 342.203 may be collected when it accrues or
399-4 at any time after it accrues.]
399-5 [Sec. 342.205. ADDITIONAL INTEREST FOR CONTRACT WITHOUT
399-6 EQUAL MONTHLY INSTALLMENTS. A loan contract that includes
399-7 precomputed interest and that is not payable in substantially equal
399-8 successive monthly installments may provide for additional interest
399-9 for default for the period from the maturity date of an installment
399-10 until the date the installment is paid. The rate of the additional
399-11 interest may not exceed the highest lawful contract rate.]
399-12 [Sec. 342.206. ADDITIONAL INTEREST FOR CONTRACT WITHOUT
399-13 PRECOMPUTED INTEREST. On a loan contract that does not contain
399-14 precomputed interest, interest may accrue on the principal balance
399-15 and amounts added to principal after the date of the loan contract,
399-16 from time to time unpaid, at the rate provided for by the contract,
399-17 until the date of payment in full or demand for payment in full.]
399-18 [SUBCHAPTER E. REFUND OF PRECOMPUTED INTEREST]
399-19 [Sec. 342.251. REFUND OF PRECOMPUTED INTEREST ON CONTRACT
399-20 WITH EQUAL MONTHLY INSTALLMENTS. (a) This section applies to a
399-21 loan contract that includes precomputed interest and that is
399-22 payable in substantially equal successive monthly installments
399-23 beginning within one month and 15 days after the date of the
399-24 contract.]
399-25 [(b) If the contract is prepaid in full, including payment
399-26 in cash or by a new loan or renewal of the loan, or if the lender
76R5 DWS-D 399
400-1 demands payment in full of the unpaid balance, after the first
400-2 installment due date but before the final installment due date, the
400-3 lender shall refund or credit to the borrower the amount computed
400-4 by:]
400-5 [(1) dividing the total amount of the periodic
400-6 balances scheduled to follow the installment date after the date of
400-7 the prepayment or demand, as appropriate, by the total amount of
400-8 all the periodic balances under the schedule of payments set out in
400-9 the loan contract; and]
400-10 [(2) multiplying the total interest contracted for
400-11 under Section 342.201 by the result under Subdivision (1).]
400-12 [(c) If the prepayment in full or demand for payment in full
400-13 occurs before the first installment due date, the lender shall:]
400-14 [(1) retain an amount computed by:]
400-15 [(A) dividing 30 into the amount that could be
400-16 retained if the first installment period were one month and the
400-17 loan were prepaid in full on the date the first installment is due;
400-18 and]
400-19 [(B) multiplying the result under Paragraph (A)
400-20 by the number of days in the period beginning on the date the loan
400-21 was made and ending on the date of the prepayment or demand; and]
400-22 [(2) refund or credit to the borrower the amount
400-23 computed by subtracting the amount retained under Subdivision (1)
400-24 from the interest contracted for under Section 342.201.]
400-25 [Sec. 342.252. REFUND OF PRECOMPUTED INTEREST ON CONTRACT
400-26 WITHOUT EQUAL MONTHLY INSTALLMENTS. (a) This section applies to a
76R5 DWS-D 400
401-1 loan contract that includes precomputed interest and to which
401-2 Section 342.251 does not apply.]
401-3 [(b) If the contract is prepaid in full, including payment
401-4 in cash or by a new loan or renewal of the loan, or if the lender
401-5 demands payment in full of the unpaid balance before final maturity
401-6 of the contract, the lender may retain as interest for the period
401-7 beginning on the date of the loan and ending on the date of the
401-8 prepayment or demand, as applicable, an amount that does not exceed
401-9 the amount computed using the simple annual interest rate described
401-10 by Subsection (f).]
401-11 [(c) If prepayment in full or demand for payment in full
401-12 occurs during an installment period, the lender may retain, in
401-13 addition to interest that accrued during any elapsed installment
401-14 periods, an amount computed by:]
401-15 [(1) multiplying the simple annual interest rate
401-16 described by Subsection (f) by the unpaid principal balance of the
401-17 loan determined according to the schedule of payments to be
401-18 outstanding on the preceding installment due date;]
401-19 [(2) dividing 365 into the product under Subdivision
401-20 (1); and]
401-21 [(3) multiplying the number of days in the period
401-22 beginning on the day after the installment due date and ending on
401-23 the date of the prepayment or demand, as appropriate, by the result
401-24 obtained under Subdivision (2).]
401-25 [(d) The lender may also retain interest on any additions to
401-26 principal or other permissible charges, added to the loan after the
76R5 DWS-D 401
402-1 date of the loan contract, accruing at the simple annual interest
402-2 rate under the contract described by Subsection (f) from the date
402-3 of the addition until the date paid or the date the lender demands
402-4 payment in full of the total unpaid balance under the loan
402-5 contract.]
402-6 [(e) The lender shall refund or credit to the borrower the
402-7 amount computed by subtracting the total amount retained under
402-8 Subsections (b), (c), and (d) from the total amount of interest
402-9 contracted for and precomputed in the amount of loan.]
402-10 [(f) For the purposes of this section, the simple annual
402-11 interest rate is equal to the rate that the contract would have
402-12 produced over its full term if, assuming that each scheduled
402-13 payment under the contract is paid on the date due and considering
402-14 the amount of each scheduled installment and the time of each
402-15 scheduled installment period, the rate were applied to the unpaid
402-16 principal amounts determined to be outstanding from time to time
402-17 according to the schedule of payments.]
402-18 [Sec. 342.253. NO REFUND ON PARTIAL PREPAYMENT OR OF AMOUNT
402-19 LESS THAN $1. A refund is not required under this subchapter for a
402-20 partial prepayment or if the amount to be refunded is less than $1.]
402-21 [SUBCHAPTER F. ALTERNATE CHARGES FOR CERTAIN LOANS]
402-22 [Sec. 342.301. MAXIMUM CASH ADVANCE. The maximum cash
402-23 advance of a loan made under this subchapter is an amount computed
402-24 under Subchapter C, Chapter 341, using the reference amount of
402-25 $100.]
402-26 [Sec. 342.302. ALTERNATE INTEREST CHARGE. Instead of the
76R5 DWS-D 402
403-1 charges authorized by Section 342.201, a loan contract may provide
403-2 for:]
403-3 [(1) on a cash advance of less than $30, an
403-4 acquisition charge that is not more than $1 for each $5 of the cash
403-5 advance;]
403-6 [(2) on a cash advance equal to or more than $30 but
403-7 not more than $100:]
403-8 [(A) an acquisition charge that is not more than
403-9 the amount equal to one-tenth of the amount of the cash advance;
403-10 and]
403-11 [(B) an installment account handling charge that
403-12 is not more than:]
403-13 [(i) $3 a month if the cash advance is not
403-14 more than $35;]
403-15 [(ii) $3.50 a month if the cash advance is
403-16 more than $35 but not more than $70; or]
403-17 [(iii) $4 a month if the cash advance is
403-18 more than $70; or]
403-19 [(3) on a cash advance of more than $100:]
403-20 [(A) an acquisition charge that is not more than
403-21 $10; and]
403-22 [(B) an installment account handling charge that
403-23 is not more than the ratio of $4 a month for each $100 of cash
403-24 advance.]
403-25 [Sec. 342.303. NO OTHER CHARGES AUTHORIZED. (a) On a loan
403-26 made under this subchapter a lender may not contract for, charge,
76R5 DWS-D 403
404-1 or receive an amount unless this subchapter authorizes the amount
404-2 to be charged.]
404-3 [(b) An insurance charge is not authorized on a loan made
404-4 under this subchapter.]
404-5 [Sec. 342.304. MAXIMUM LOAN TERM. The maximum term of a
404-6 loan made under this subchapter is:]
404-7 [(1) for a loan of $100 or less the lesser of:]
404-8 [(A) one month for each $10 of cash advance; or]
404-9 [(B) six months; and]
404-10 [(2) for a loan of more than $100, one month for each
404-11 $20 of cash advance.]
404-12 [Sec. 342.305. REFUND. (a) An acquisition charge
404-13 authorized under Section 342.302(1) or (2) is considered to be
404-14 earned at the time a loan is made and is not subject to refund.]
404-15 [(b) On the prepayment of a loan with a cash advance of $30
404-16 or more but not more than $100, the installment account handling
404-17 charge authorized under Section 342.302(2) is subject to refund in
404-18 accordance with Subchapter E.]
404-19 [(c) On the prepayment of a loan with a cash advance of more
404-20 than $100, the acquisition charge and the installment account
404-21 handling charge authorized under Section 342.302(3) are subject to
404-22 refund in accordance with Subchapter E.]
404-23 [Sec. 342.306. DEFAULT CHARGE; DEFERMENT OF PAYMENT. The
404-24 provisions of Subchapter D relating to additional interest for
404-25 default and additional interest for the deferment of installments
404-26 apply to a loan made under this subchapter.]
76R5 DWS-D 404
405-1 [Sec. 342.307. SCHEDULES FOR WEEKLY, BIWEEKLY, OR
405-2 SEMIMONTHLY INSTALLMENTS. The commissioner may prepare schedules
405-3 that may be used by an authorized lender for the repayment of a
405-4 loan made under this subchapter by weekly, biweekly, or semimonthly
405-5 installments.]
405-6 [SUBCHAPTER G. INSURANCE]
405-7 [Sec. 342.401. PROPERTY INSURANCE. (a) On a loan with a
405-8 cash advance of $300 or more, a lender may request or require a
405-9 borrower to insure tangible personal property offered as security
405-10 for the loan.]
405-11 [(b) The insurance and the premiums or charges for the
405-12 coverage must bear a reasonable relationship to:]
405-13 [(1) the amount, term, and conditions of the loan;]
405-14 [(2) the value of the collateral; and]
405-15 [(3) the existing hazards or risk of loss, damage, or
405-16 destruction.]
405-17 [(c) The insurance may not:]
405-18 [(1) cover unusual or exceptional risks; or]
405-19 [(2) provide coverage not ordinarily included in
405-20 policies issued to the general public.]
405-21 [Sec. 342.402. CREDIT LIFE, CREDIT HEALTH AND ACCIDENT, OR
405-22 INVOLUNTARY UNEMPLOYMENT INSURANCE. (a) On a loan made under this
405-23 chapter with a cash advance of $100 or more, a lender may:]
405-24 [(1) offer or request that a borrower provide credit
405-25 life insurance and credit health and accident insurance as
405-26 additional protection for the loan; and]
76R5 DWS-D 405
406-1 [(2) offer involuntary unemployment insurance to the
406-2 borrower at the time the loan is made and include the premium for
406-3 that insurance, if accepted, in the loan contract.]
406-4 [(b) A lender may not require that the borrower accept or
406-5 provide the insurance described by Subsection (a).]
406-6 [Sec. 342.403. MAXIMUM AMOUNT OF INSURANCE COVERAGE. (a)
406-7 At any time the total amount of the policies of credit life
406-8 insurance in force on one borrower on one loan contract may not
406-9 exceed the total amount repayable under the loan contract, and if
406-10 the loan is repayable in substantially equal installments, the
406-11 greater of the scheduled or actual amount of unpaid indebtedness.]
406-12 [(b) At any time the total amount of the policies of credit
406-13 accident and health insurance or involuntary unemployment insurance
406-14 in force on one borrower on one loan contract may not exceed the
406-15 total amount repayable under the loan contract, and the amount of
406-16 each periodic indemnity payment may not exceed the scheduled
406-17 periodic installment payment on the loan.]
406-18 [Sec. 342.404. INSURANCE STATEMENT. (a) If insurance is
406-19 required on a loan made under this chapter, the lender shall give
406-20 to the borrower a written statement that clearly and conspicuously
406-21 states that:]
406-22 [(1) insurance is required in connection with the
406-23 loan; and]
406-24 [(2) the borrower as an option may furnish the
406-25 required insurance coverage through:]
406-26 [(A) an existing policy of insurance owned or
76R5 DWS-D 406
407-1 controlled by the borrower; or]
407-2 [(B) an insurance policy obtained from an
407-3 insurance company authorized to do business in this state.]
407-4 [(b) If requested or required insurance is sold or obtained
407-5 by a lender at a premium or rate of charge that is not fixed or
407-6 approved by the commissioner of insurance, the lender shall include
407-7 that fact in the statement.]
407-8 [(c) A statement under this section may be provided with or
407-9 as part of the loan contract or separately.]
407-10 [Sec. 342.405. INSURANCE MAY BE FURNISHED BY BORROWER. If
407-11 insurance is requested or required on a loan made under this
407-12 chapter and the loan contract includes a premium or rate of charge
407-13 that is not fixed or approved by the commissioner of insurance, the
407-14 borrower is entitled to furnish the insurance coverage not later
407-15 than the fifth day after the date of the loan through:]
407-16 [(1) an existing policy of insurance owned or
407-17 controlled by the borrower; or]
407-18 [(2) an insurance policy obtained from an insurance
407-19 company authorized to do business in this state.]
407-20 [Sec. 342.406. BORROWER'S FAILURE TO PROVIDE REQUIRED
407-21 INSURANCE. (a) If a borrower fails to obtain or maintain
407-22 insurance coverage required under a loan contract or requests the
407-23 lender to obtain that coverage, the lender may obtain:]
407-24 [(1) substitute insurance coverage that is
407-25 substantially equivalent to or more limited than the coverage
407-26 originally required; or]
76R5 DWS-D 407
408-1 [(2) insurance to cover only the interest of the
408-2 lender as a secured party if the borrower does not request that the
408-3 borrower's interest be covered.]
408-4 [(b) Insurance obtained under this section must comply with
408-5 Sections 342.407 and 342.408.]
408-6 [(c) The lender may add the amount advanced by the lender
408-7 for insurance coverage obtained under Subsection (a) to the unpaid
408-8 balance of the loan contract and may charge interest on that amount
408-9 from the time it is added to the unpaid balance until it is paid.
408-10 The rate of additional interest may not exceed the rate that the
408-11 loan contract would produce over its full term if each scheduled
408-12 payment were paid on the due date.]
408-13 [Sec. 342.407. REQUIREMENTS FOR INCLUDING INSURANCE CHARGE
408-14 IN CONTRACT. If insurance is included as a charge in a loan
408-15 contract, the insurance must be written:]
408-16 [(1) at lawful rates;]
408-17 [(2) in accordance with the Insurance Code; and]
408-18 [(3) by a company authorized to do business in this
408-19 state.]
408-20 [Sec. 342.408. DELIVERY OF INSURANCE DOCUMENT TO BORROWER.
408-21 If a lender obtains insurance for which a charge is included in the
408-22 loan contract, the lender, not later than the 30th day after the
408-23 date on which the loan contract is executed, shall deliver, mail,
408-24 or cause to be mailed to the borrower at the borrower's address
408-25 specified in the contract one or more policies or certificates of
408-26 insurance that clearly set forth:]
76R5 DWS-D 408
409-1 [(1) the amount of the premium;]
409-2 [(2) the kind of insurance provided;]
409-3 [(3) the coverage of the insurance; and]
409-4 [(4) all terms, including options, limitations,
409-5 restrictions, and conditions, of each insurance policy.]
409-6 [Sec. 342.409. LENDER'S DUTY IF INSURANCE IS ADJUSTED OR
409-7 TERMINATED. (a) If insurance for which a charge is included in or
409-8 added to the loan contract is canceled, adjusted, or terminated,
409-9 the lender shall:]
409-10 [(1) credit to the amount unpaid on the loan the
409-11 amount of the refund received by the lender for unearned insurance
409-12 premiums, except for the amount of the refund that is applied to
409-13 the purchase by the lender of similar insurance; and]
409-14 [(2) if the amount to be credited under Subdivision
409-15 (1) is more than the unpaid balance, refund promptly to the
409-16 borrower the difference between those amounts.]
409-17 [(b) A cash refund is not required under this section if the
409-18 amount of the refund is less than $1.]
409-19 [Sec. 342.410. PAYMENT FOR INSURANCE FROM LOAN PROCEEDS. A
409-20 lender, including an officer, agent, or employee of the lender, who
409-21 accepts insurance under this subchapter as protection for a loan:]
409-22 [(1) may deduct the premium or identifiable charge for
409-23 the insurance from the proceeds of the loan; and]
409-24 [(2) shall pay the deducted amounts to the insurance
409-25 company writing the insurance.]
409-26 [Sec. 342.411. GAIN OR ADVANTAGE FROM INSURANCE NOT
76R5 DWS-D 409
410-1 INTEREST. Any gain or advantage to the lender or the lender's
410-2 employee, officer, director, agent, general agent, affiliate, or
410-3 associate from insurance under this subchapter or the provision or
410-4 sale of insurance under this subchapter is not additional interest
410-5 or an additional charge in connection with a loan made under this
410-6 chapter except as specifically provided by this chapter.]
410-7 [Sec. 342.412. ACTION UNDER SUBCHAPTER NOT SALE OF
410-8 INSURANCE. Arranging for insurance or collecting an identifiable
410-9 charge as authorized by this subchapter is not a sale of insurance.]
410-10 [Sec. 342.413. REQUIRED AGENT OR BROKER PROHIBITED. A
410-11 lender may not by any direct or indirect method require the
410-12 purchase of insurance from an agent or broker designated by the
410-13 lender.]
410-14 [Sec. 342.414. DECLINATION OF EQUAL INSURANCE COVERAGE
410-15 PROHIBITED. A lender may not decline at any time existing
410-16 insurance coverage that:]
410-17 [(1) provides benefits substantially equal to the
410-18 benefits of coverage required by the lender; or]
410-19 [(2) complies with this subchapter.]
410-20 [Sec. 342.415. EFFECT OF UNAUTHORIZED INSURANCE CHARGE. (a)
410-21 If a lender charges for insurance an amount that is not authorized
410-22 under this subchapter, the lender:]
410-23 [(1) is not entitled to collect an amount for
410-24 insurance or interest on an amount for insurance; and]
410-25 [(2) shall refund to the borrower or credit to the
410-26 borrower's account all amounts collected for insurance and interest
76R5 DWS-D 410
411-1 collected on those amounts.]
411-2 [(b) An overcharge that results from an accidental or bona
411-3 fide error may be corrected as provided by Subchapter C, Chapter
411-4 349.]
411-5 [(c) The remedy provided by this section is not exclusive of
411-6 any other remedy or penalty provided by this subtitle.]
411-7 [Sec. 342.416. NONFILING INSURANCE. (a) Instead of
411-8 charging fees for the filing, recording, and releasing of a
411-9 document securing a loan to which Subchapter D applies, an
411-10 authorized lender may include in the loan contract a charge for a
411-11 nonfiling insurance premium.]
411-12 [(b) The amount of a charge under Subsection (a) may not
411-13 exceed the amount of fees authorized for filing and recording an
411-14 original financing statement in the standard form prescribed by the
411-15 secretary of state.]
411-16 [(c) An authorized lender may include a charge for nonfiling
411-17 insurance only if the lender purchases nonfiling insurance in
411-18 connection with the loan contract.]
411-19 [(d) A lender is not required to furnish to a borrower a
411-20 policy or certificate of insurance evidencing nonfiling insurance.]
411-21 [SUBCHAPTER H. ADMINISTRATION OF CHAPTER]
411-22 [Sec. 342.501. ADOPTION OF RULES. (a) The Finance
411-23 Commission of Texas may adopt rules to enforce this chapter.]
411-24 [(b) The commissioner shall recommend proposed rules to the
411-25 Finance Commission of Texas.]
411-26 [(c) A rule shall be entered in a permanent book. The book
76R5 DWS-D 411
412-1 is a public record and shall be kept in the office of the
412-2 commissioner.]
412-3 [(d) A copy of a rule shall be mailed to each authorized
412-4 lender.]
412-5 [Sec. 342.502. EXAMINATION OF LENDERS; ACCESS TO RECORDS.
412-6 (a) The commissioner or the commissioner's representative shall,
412-7 at the times the commissioner considers necessary:]
412-8 [(1) examine each place of business of each authorized
412-9 lender; and]
412-10 [(2) investigate the lender's transactions, including
412-11 loans, and records, including books, accounts, papers, and
412-12 correspondence, to the extent the transactions and records pertain
412-13 to the business regulated under this chapter.]
412-14 [(b) The lender shall:]
412-15 [(1) give the commissioner or the commissioner's
412-16 representative free access to the lender's office, place of
412-17 business, files, safes, and vaults; and]
412-18 [(2) allow the commissioner or the commissioner's
412-19 authorized representative to make a copy of an item that may be
412-20 investigated under Subsection (a)(2).]
412-21 [(c) During an examination the commissioner or the
412-22 commissioner's representative may administer oaths and examine any
412-23 person under oath on any subject pertinent to a matter about which
412-24 the commissioner is authorized or required to consider,
412-25 investigate, or secure information under this chapter.]
412-26 [(d) Information obtained under this section is
76R5 DWS-D 412
413-1 confidential.]
413-2 [(e) A lender's violation of Subsection (b) is a ground for
413-3 the suspension or revocation of the lender's license.]
413-4 [Sec. 342.503. GENERAL INVESTIGATION. (a) To discover a
413-5 violation of this chapter or to obtain information required under
413-6 this chapter, the commissioner or the commissioner's representative
413-7 may investigate the records, including books, accounts, papers, and
413-8 correspondence, of a person, including an authorized lender, whom
413-9 the commissioner has reasonable cause to believe is violating this
413-10 chapter regardless of whether the person claims to not be subject
413-11 to this chapter.]
413-12 [(b) For the purposes of this section, a person who
413-13 advertises, solicits, or otherwise represents that the person is
413-14 willing to make a loan with a cash advance in an amount to which
413-15 Section 342.001 applies is presumed to be engaged in the business
413-16 described by Section 342.001.]
413-17 [Sec. 342.504. CERTIFICATE; CERTIFIED DOCUMENT. On
413-18 application by any person and on payment of any associated cost,
413-19 the commissioner shall furnish under the commissioner's seal and
413-20 signed by the commissioner or an assistant of the commissioner:]
413-21 [(1) a certificate of good standing; or]
413-22 [(2) a certified copy of a license, rule, or order.]
413-23 [Sec. 342.505. TRANSCRIPT OF HEARING: PUBLIC. The
413-24 transcript of a hearing held by the commissioner under this chapter
413-25 is a public record.]
413-26 [SUBCHAPTER I. AUTHORIZED LENDER'S DUTIES AND AUTHORITY]
76R5 DWS-D 413
414-1 [Sec. 342.601. DELIVERY OF INFORMATION TO BORROWER. (a)
414-2 When a loan is made under this chapter, the lender shall deliver to
414-3 the borrower, or to one borrower if there is more than one, a copy
414-4 of each document signed by the borrower, including the note or loan
414-5 contract, and a written statement in English that contains:]
414-6 [(1) the names and addresses of the borrower and the
414-7 lender; and]
414-8 [(2) any type of insurance for which a charge is
414-9 included in the loan contract and the charge to the borrower for
414-10 the insurance.]
414-11 [(b) If the note or loan contract shows the information
414-12 required by Subsection (a), the written statement is not required.]
414-13 [Sec. 342.602. RECEIPT FOR CASH PAYMENT. A lender shall
414-14 give a receipt to a person making a cash payment on a loan.]
414-15 [Sec. 342.603. ACCEPTANCE OF PREPAYMENT. At any time during
414-16 regular business hours, the lender shall accept prepayment of a
414-17 loan in full or, if the amount tendered is less than the amount
414-18 required to prepay the loan in full, prepayment of an amount equal
414-19 to one or more full installments.]
414-20 [Sec. 342.604. RETURN OF INSTRUMENTS TO BORROWER ON
414-21 REPAYMENT. Within a reasonable time after a loan is repaid in
414-22 full, a lender shall cancel and return to a borrower any
414-23 instrument, including a note, assignment, security agreement, or
414-24 mortgage, or pledged property that:]
414-25 [(1) secured the loan; and]
414-26 [(2) does not secure another indebtedness of the
76R5 DWS-D 414
415-1 borrower to the lender.]
415-2 [Sec. 342.605. APPOINTMENT OF AGENT. (a) An authorized
415-3 lender shall maintain on file with the commissioner a written
415-4 appointment of a resident of this state as the lender's agent for
415-5 service of all judicial or other process or legal notice, unless
415-6 the lender has appointed an agent under another statute of this
415-7 state.]
415-8 [(b) If an authorized lender does not comply with this
415-9 section, service of all judicial or other process or legal notice
415-10 may be made on the commissioner.]
415-11 [Sec. 342.606. PAYMENT OF EXAMINATION COSTS AND
415-12 ADMINISTRATION EXPENSES. An authorized lender shall pay to the
415-13 commissioner an amount assessed by the commissioner to cover the
415-14 direct and indirect cost of an examination of the lender under
415-15 Section 342.502 and a proportionate share of general administrative
415-16 expense.]
415-17 [Sec. 342.607. AUTHORIZED LENDER'S RECORDS. (a) An
415-18 authorized lender shall maintain records relating to loans made
415-19 under this chapter as is necessary to enable the commissioner to
415-20 determine whether the lender is complying with this chapter.]
415-21 [(b) An authorized lender shall keep each record, make it
415-22 available in this state, or, if the lender makes, transacts, or
415-23 negotiates loans principally by mail, keep the record or make it
415-24 available at the lender's principal place of business, until the
415-25 later of:]
415-26 [(1) the fourth anniversary of the date of the loan;
76R5 DWS-D 415
416-1 or]
416-2 [(2) the second anniversary of the date on which the
416-3 final entry is made in the record.]
416-4 [(c) Each record described by Subsection (a) must be
416-5 prepared in accordance with accepted accounting practices.]
416-6 [(d) The commissioner shall accept a lender's system of
416-7 records if the system discloses the information reasonably required
416-8 under Subsection (a).]
416-9 [(e) An authorized lender shall keep all obligations signed
416-10 by borrowers at an office in this state designated by the lender
416-11 unless an obligation is transferred under an agreement that gives
416-12 the commissioner access to the obligation.]
416-13 [Sec. 342.608. ANNUAL REPORT. (a) Each year, not later
416-14 than April 1, or a subsequent date set by the commissioner, an
416-15 authorized lender shall file with the commissioner a report that
416-16 contains relevant information required by the commissioner
416-17 concerning the business and operations during the preceding
416-18 calendar year for each office of the lender in this state where
416-19 business is conducted under this chapter.]
416-20 [(b) A report under this section must be:]
416-21 [(1) under oath; and]
416-22 [(2) in the form prescribed by the commissioner.]
416-23 [(c) A report under this section is confidential.]
416-24 [(d) Annually the commissioner shall prepare and publish a
416-25 consolidated analysis and recapitulation of reports filed under
416-26 this section.]
76R5 DWS-D 416
417-1 [Sec. 342.609. CONDUCTING ASSOCIATED BUSINESS. An
417-2 authorized lender may conduct business under this chapter in an
417-3 office, office suite, room, or place of business in which any other
417-4 business is conducted or in combination with any other business
417-5 unless the commissioner:]
417-6 [(1) after a hearing, finds that the lender's
417-7 conducting of the other business in that office, office suite,
417-8 room, or place of business has concealed evasions of this chapter;
417-9 and]
417-10 [(2) orders the lender in writing to desist from that
417-11 conduct in that office, office suite, room, or place of business.]
417-12 [Sec. 342.610. AGREEMENT FOR MORE THAN ONE LOAN OR CASH
417-13 ADVANCE. (a) An authorized lender and a borrower may enter an
417-14 agreement under which one or more loans or cash advances are from
417-15 time to time made to or for the account of the borrower.]
417-16 [(b) An agreement under this section may provide for a
417-17 maximum loan charge on the unpaid principal amounts from time to
417-18 time outstanding at a rate that does not exceed the rate that
417-19 produces the maximum interest charge computed under Section 342.201
417-20 for an equivalent loan amount.]
417-21 [(c) An agreement under this section must be written and
417-22 signed by the lender and borrower.]
417-23 [(d) An agreement under this section must contain:]
417-24 [(1) the date of the agreement;]
417-25 [(2) the name and address of each borrower; and]
417-26 [(3) the name and address of the lender.]
76R5 DWS-D 417
418-1 [(e) An agreement under this section must clearly set forth:]
418-2 [(1) the insurance coverage made available to the
418-3 borrower through the lender; and]
418-4 [(2) if the borrower is to be charged for the
418-5 insurance coverage, a simple statement of the amount of the charge
418-6 or the method by which the charge is to be computed.]
418-7 [(f) The lender shall deliver a copy of an agreement under
418-8 this section to the borrower.]
418-9 [(g) The commissioner shall prescribe monthly rates of
418-10 charge that produce the maximum interest charge computed under
418-11 Section 342.201 for use under Subsection (b).]
418-12 [SUBCHAPTER J. PROHIBITIONS ON AUTHORIZED LENDER]
418-13 [Sec. 342.651. OBLIGATION UNDER MORE THAN ONE CONTRACT. (a)
418-14 An authorized lender may not induce or permit a person or a husband
418-15 and wife to be directly or indirectly obligated under more than one
418-16 loan contract under this chapter simultaneously for the purpose or
418-17 with the effect of obtaining an amount of interest that is more
418-18 than the amount of interest that is otherwise authorized under this
418-19 chapter for a loan of that aggregate amount.]
418-20 [(b) Subsection (a) does not prohibit the purchase of a bona
418-21 fide retail installment contract or revolving charge agreement of a
418-22 borrower for the purchase of goods or services.]
418-23 [(c) An authorized lender who purchases all or substantially
418-24 all of the loan contracts of another authorized lender and who at
418-25 the time of purchase has a loan contract with a borrower whose loan
418-26 contract is purchased may collect principal and authorized charges
76R5 DWS-D 418
419-1 according to the terms of each loan contract.]
419-2 [Sec. 342.652. AMOUNT AUTHORIZED. (a) An authorized lender
419-3 may not directly or indirectly charge, contract for, or receive an
419-4 amount that is not authorized under this chapter in connection with
419-5 a loan to which this chapter applies, including a fee,
419-6 compensation, bonus, commission, brokerage, discount, expense, and
419-7 any other amount, regardless of the form of the amount or whether
419-8 it is contracted for, that is received by the lender or any other
419-9 person:]
419-10 [(1) in connection with the investigating, arranging,
419-11 negotiating, procuring, guaranteeing, making, servicing,
419-12 collecting, or enforcing of a loan;]
419-13 [(2) for the forbearance of money, credit, goods, or
419-14 things in action; or]
419-15 [(3) for any other service performed or offered.]
419-16 [(b) Subsection (a) does not apply to an amount incurred by
419-17 the lender for:]
419-18 [(1) court costs;]
419-19 [(2) attorney's fees assessed by a court;]
419-20 [(3) a fee authorized by law for filing, recording, or
419-21 releasing in a public office a security for a loan;]
419-22 [(4) a reasonable amount spent for repossessing,
419-23 storing, preparing for sale, or selling any security;]
419-24 [(5) a fee for recording a lien on or transferring a
419-25 certificate of title to a motor vehicle offered as security for a
419-26 loan made under this chapter; or]
76R5 DWS-D 419
420-1 [(6) a premium or an identifiable charge received in
420-2 connection with the sale of insurance authorized under this
420-3 chapter.]
420-4 [Sec. 342.653. SECURITY FOR LOAN. (a) An authorized lender
420-5 may not take as security for a loan made under this chapter:]
420-6 [(1) an assignment of wages; or]
420-7 [(2) a lien on real property other than a lien created
420-8 by law on the recording of an abstract of judgment.]
420-9 [(b) An authorized lender may take as security for a loan
420-10 made under this chapter an assignment of:]
420-11 [(1) a warrant drawn against a state fund; or]
420-12 [(2) a claim against a state fund or a state agency.]
420-13 [Sec. 342.654. CONFESSION OF JUDGMENT; POWER OF ATTORNEY.
420-14 An authorized lender may not take a confession of judgment or a
420-15 power of attorney under which the lender or a third person is
420-16 authorized to confess judgment or to appear for a borrower in a
420-17 judicial proceeding.]
420-18 [Sec. 342.655. DISCLOSURE OF AMOUNT FINANCED AND SCHEDULE OF
420-19 PAYMENTS. An authorized lender may not take a promise to pay or
420-20 loan obligation that does not disclose the amount financed and the
420-21 schedule of payments.]
420-22 [Sec. 342.656. INSTRUMENT WITH BLANK PROHIBITED. Except as
420-23 specifically provided by Section 342.610, an authorized lender may
420-24 not take an instrument that contains blank spaces.]
420-25 [Sec. 342.657. WAIVER OF BORROWER'S RIGHT PROHIBITED. An
420-26 authorized lender may not take an instrument in which a borrower
76R5 DWS-D 420
421-1 waives any right accruing to the borrower under this chapter.]
421-2 [Sec. 342.658. MAXIMUM LOAN TERM. An authorized lender may
421-3 not enter a loan contract under this chapter under which the
421-4 borrower agrees to make a scheduled payment of principal more than:]
421-5 [(1) 37 calendar months after the date on which the
421-6 contract is made, if the contract is for a cash advance of $1,500
421-7 or less;]
421-8 [(2) 49 calendar months after the date on which the
421-9 contract is made, if the contract is for a cash advance of more
421-10 than $1,500 but not more than $3,000; or]
421-11 [(3) 60 months after the date on which the contract is
421-12 made, if the contract is for a cash advance of more than $3,000.]
421-13 (b) Section 2, Chapter 1396, and Section 2, Chapter 164,
421-14 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
421-15 SECTION 7.20. (a) Chapters 343 and 344, Finance Code, are
421-16 repealed to conform to Section 48, Chapter 1396, Acts of the 75th
421-17 Legislature, Regular Session, 1997.
421-18 (b) Section 48, Chapter 1396, Acts of the 75th Legislature,
421-19 1997, is repealed.
421-20 SECTION 7.21. (a) Section 347.301(b), Finance Code, is
421-21 amended to conform to Section 17, Chapter 791, Acts of the 75th
421-22 Legislature, Regular Session, 1997, to read as follows:
421-23 (b) Only a fee or tax that is paid by the creditor as
421-24 required by law, including a rule, or a fee or tax paid on behalf
421-25 of the consumer to a governmental entity in relation to the credit
421-26 transaction may be charged to the consumer.
76R5 DWS-D 421
422-1 (b) Section 17, Chapter 791, Acts of the 75th Legislature,
422-2 Regular Session, 1997, is repealed.
422-3 SECTION 7.22. (a) Section 348.123, Finance Code, is amended
422-4 to conform to Section 36, Chapter 639, Acts of the 75th
422-5 Legislature, Regular Session, 1997, by amending Subsection (b) and
422-6 adding Subsection (c) to read as follows:
422-7 (b) This section does not apply to:
422-8 (1) a lease;
422-9 (2) a retail installment transaction for a vehicle
422-10 that is to be used primarily for a purpose other than personal,
422-11 family, or household use;
422-12 (3) a transaction for which the payment schedule is
422-13 adjusted to the seasonal or irregular income or scheduled payments
422-14 or obligations of the buyer; [or]
422-15 (4) a transaction of a type that the commissioner
422-16 determines does not require the protection for the buyer provided
422-17 by this section; or
422-18 (5) a retail installment transaction in which:
422-19 (A) the seller is a franchised dealer licensed
422-20 under the Texas Motor Vehicle Commission Code (Article 4413(36),
422-21 Vernon's Texas Civil Statutes); and
422-22 (B) the buyer is entitled, at the end of the
422-23 term of the retail installment contract, to choose one of the
422-24 following:
422-25 (i) sell the vehicle back to the holder
422-26 according to a written agreement:
76R5 DWS-D 422
423-1 (a) entered into between
423-2 the buyer and holder concurrently with or as a part of the
423-3 transaction; and
423-4 (b) under which the buyer
423-5 will be released from liability or obligation for the final
423-6 scheduled payment under the contract on compliance with the
423-7 agreement;
423-8 (ii) pay the final scheduled payment under
423-9 the contract; or
423-10 (iii) if the buyer is not in default under
423-11 the contract, refinance the final scheduled payment with the holder
423-12 for repayment in not fewer than 24 equal monthly installments or on
423-13 other terms agreed to by the buyer and holder at the time of
423-14 refinancing and at a rate of time price differential not to exceed
423-15 the lesser of:
423-16 (a) a rate equal to the
423-17 maximum rate authorized under this subchapter; or
423-18 (b) an annual percentage
423-19 rate of five percent a year more than the annual percentage rate of
423-20 the original contract.
423-21 (c) A retail installment contract under Subsection (b)(5)
423-22 must disclose that any refinancing may be for any period and
423-23 payment schedule to which the buyer and holder agree.
423-24 (b) Section 36, Chapter 639, Acts of the 75th Legislature,
423-25 Regular Session, 1997, is repealed.
423-26 SECTION 7.23. Chapter 50, Title 79, Revised Statutes
76R5 DWS-D 423
424-1 (Article 5069-50.01 et seq., Vernon's Texas Civil Statutes), is
424-2 repealed to conform to Chapter 1008, Acts of the 75th Legislature,
424-3 Regular Session, 1997.
424-4 SECTION 7.24. (a) Section 349.001, Finance Code, is amended
424-5 to conform to Section 19, Chapter 1396, Acts of the 75th
424-6 Legislature, Regular Session, 1997, to read as follows:
424-7 Sec. 349.001. LIABILITY FOR CONTRACTING FOR, CHARGING, OR
424-8 RECEIVING EXCESSIVE AMOUNT. (a) A person who violates this
424-9 subtitle by contracting for, charging, or receiving interest or[,]
424-10 time price differential[, or other charges] greater than the amount
424-11 authorized by this subtitle is liable to the obligor for an amount
424-12 equal to:
424-13 (1) twice the amount of the interest or time price
424-14 differential [and default and deferment charges] contracted for,
424-15 charged, or received; and
424-16 (2) reasonable attorney's fees set by the court.
424-17 (b) A person who violates this subtitle by contracting for,
424-18 charging, or receiving a charge, other than interest or time price
424-19 differential, greater than the amount authorized by this subtitle
424-20 is liable to the obligor for an amount equal to:
424-21 (1) the greater of:
424-22 (A) three times the amount computed by
424-23 subtracting the amount of the charge authorized by this subtitle
424-24 from the amount of the charge contracted for, charged, or received;
424-25 or
424-26 (B) $2,000 or 20 percent of the amount of the
76R5 DWS-D 424
425-1 principal balance, whichever is less; and
425-2 (2) reasonable attorney's fees set by the court.
425-3 (b) Section 19, Chapter 1396, Acts of the 75th Legislature,
425-4 Regular Session, 1997, is repealed.
425-5 SECTION 7.25. (a) Section 349.002(a), Finance Code, is
425-6 amended to conform to Section 21, Chapter 1396, Acts of the 75th
425-7 Legislature, Regular Session, 1997, to read as follows:
425-8 (a) A person who violates this subtitle by contracting for,
425-9 charging, or receiving interest or[,] time price differential[, or
425-10 other charges] that in an aggregate amount exceeds [exceed] twice
425-11 the total amount of interest or[,] time price differential[, and
425-12 other charges] authorized by this subtitle is liable to the obligor
425-13 as an additional penalty for all principal or principal balance, as
425-14 well as all interest or time price differential [and all other
425-15 charges].
425-16 (b) Section 21, Chapter 1396, Acts of the 75th Legislature,
425-17 Regular Session, 1997, is repealed.
425-18 PART 4. CODIFICATION OF CERTAIN ARTICLES
425-19 SECTION 7.26. (a) Subtitle Z, Title 3, Finance Code, is
425-20 amended to codify Chapter 71, Acts of the 66th Legislature, Regular
425-21 Session, 1979 (Article 1528i, Vernon's Texas Civil Statutes), by
425-22 adding Chapter 275 to read as follows:
425-23 CHAPTER 275. TEXAS MUTUAL TRUST INVESTMENT COMPANY ACT
425-24 SUBCHAPTER A. GENERAL PROVISIONS
425-25 Sec. 275.001. SHORT TITLE. This chapter may be cited as the
425-26 Texas Mutual Trust Investment Company Act.
76R5 DWS-D 425
426-1 Sec. 275.002. DEFINITIONS. In this chapter:
426-2 (1) "Fiduciary institution" means a:
426-3 (A) state bank with trust powers;
426-4 (B) national bank with trust powers; or
426-5 (C) trust company.
426-6 (2) "Stock" means a unit of participation in the net
426-7 asset value of one or more of the investment funds of a mutual
426-8 trust investment company.
426-9 Sec. 275.003. APPLICATION OF GENERAL CORPORATION LAW.
426-10 Except as provided by this chapter, a mutual trust investment
426-11 company must be incorporated under and is subject to the general
426-12 corporation laws of this state.
426-13 Sec. 275.004. INVESTMENT OF CORPORATION ASSETS. A mutual
426-14 trust investment company may invest its assets only in investments
426-15 in which a trustee may invest under the laws of this state.
426-16 (Sections 275.005-275.050 reserved for expansion
426-17 SUBCHAPTER B. CREATION OF MUTUAL TRUST INVESTMENT COMPANY
426-18 Sec. 275.051. CREATION OF MUTUAL TRUST INVESTMENT COMPANY.
426-19 (a) One or more fiduciary institutions may incorporate a mutual
426-20 trust investment company as provided by this chapter to be a medium
426-21 for the common investment of trust funds held in a fiduciary
426-22 capacity for fiduciary purposes, by those entities alone or with
426-23 one or more cofiduciaries.
426-24 (b) A mutual trust investment company must be an open-end
426-25 investment company as defined by, and must be subject to, the
426-26 Investment Company Act of 1940 (15 U.S.C. Section 80a-1 et seq.).
76R5 DWS-D 426
427-1 Sec. 275.052. INCORPORATORS. (a) To incorporate, a mutual
427-2 trust investment company must have five or more persons subscribe
427-3 and acknowledge the company's articles of incorporation.
427-4 (b) A person subscribing and acknowledging the articles of
427-5 incorporation of a mutual trust investment company must be an
427-6 officer or director of a fiduciary institution causing the mutual
427-7 trust investment company to be incorporated.
427-8 Sec. 275.053. CONTENTS OF ARTICLES OF INCORPORATION. In
427-9 addition to the information required by the general corporation
427-10 laws, the articles of incorporation shall state:
427-11 (1) the name of each fiduciary institution causing the
427-12 corporation to be incorporated; and
427-13 (2) the amount of stock originally subscribed for by
427-14 each fiduciary institution.
427-15 (Sections 275.054-275.100 reserved for expansion
427-16 SUBCHAPTER C. ADMINISTRATIVE PROVISIONS
427-17 Sec. 275.101. DIRECTORS. (a) Except as provided by
427-18 Subsection (b), a mutual trust investment company must have at
427-19 least five directors, each of whom is not required to be a
427-20 stockholder but must be an officer or director of a bank or trust
427-21 company that is located in this state.
427-22 (b) An officer or director of a bank or trust company not
427-23 located in this state may serve as a director of a mutual trust
427-24 investment company only if that officer's or director's bank or
427-25 trust company owns stock in a fiduciary capacity in the mutual
427-26 trust investment company.
76R5 DWS-D 427
428-1 Sec. 275.102. AUDITS AND REPORTS. (a) At least once each
428-2 year, a mutual trust investment company shall cause an adequate
428-3 audit to be made of the company by auditors responsible only to the
428-4 board of directors of the company.
428-5 (b) A mutual trust investment company shall furnish annually
428-6 a copy of the company's audited financial statement to each
428-7 corporate fiduciary owning stock in the company.
428-8 (c) The mutual trust investment company shall pay the:
428-9 (1) reasonable expenses of an audit required by this
428-10 section made by an independent public accountant or certified
428-11 public accountant; and
428-12 (2) costs of preparing and distributing a report
428-13 required by this section.
428-14 (Sections 275.103-275.150 reserved for expansion
428-15 SUBCHAPTER D. MUTUAL TRUST INVESTMENT COMPANY STOCK
428-16 Sec. 275.151. OWNERSHIP. The stock of a mutual trust
428-17 investment company may be owned only by fiduciary institutions
428-18 acting as fiduciaries and any of their cofiduciaries.
428-19 Sec. 275.152. REGISTRATION. The stock of a mutual trust
428-20 investment company may be registered in the name of one or more
428-21 nominees of the owner of the stock.
428-22 Sec. 275.153. TRANSFER AND ASSIGNMENT. The stock of a
428-23 mutual trust investment company may not be transferred except to:
428-24 (1) the mutual trust investment company; or
428-25 (2) a fiduciary or cofiduciary that becomes successor
428-26 to a stockholder and that is a bank or trust company qualified to
76R5 DWS-D 428
429-1 hold the stock under this chapter.
429-2 Sec. 275.154. OWNERSHIP BY MUTUAL TRUST INVESTMENT COMPANY.
429-3 A mutual trust investment company may acquire its own stock and
429-4 shall bind itself, by contract or its bylaws, to acquire its own
429-5 stock, but may not vote on shares of its own stock.
429-6 (Sections 275.155-275.200 reserved for expansion
429-7 SUBCHAPTER E. INVESTMENT IN MUTUAL TRUST INVESTMENT COMPANY
429-8 Sec. 275.201. PURCHASE BY FIDUCIARY; AUTHORITY AND
429-9 RESTRICTIONS. A fiduciary institution, alone or with one or more
429-10 cofiduciaries, acting as a fiduciary for fiduciary purposes with
429-11 the consent of any cofiduciaries, may invest and reinvest funds
429-12 held in a fiduciary capacity, exercising the care of a prudent
429-13 investor, in the shares of stock of a mutual trust investment
429-14 company unless a will, trust indenture, or other instrument under
429-15 which the fiduciary is acting prohibits that investment.
429-16 Sec. 275.202. RESPONSIBILITY OF MUTUAL TRUST INVESTMENT
429-17 COMPANY. (a) A mutual trust investment company is not:
429-18 (1) required to determine the investment powers of a
429-19 fiduciary that purchases its stock; or
429-20 (2) liable for accepting funds from a fiduciary in
429-21 violation of the restrictions of a will, trust indenture, or other
429-22 instrument under which the fiduciary is acting in the absence of
429-23 actual knowledge of the violation.
429-24 (b) A mutual trust investment company is:
429-25 (1) accountable only to a fiduciary who is an owner of
429-26 its stock; and
76R5 DWS-D 429
430-1 (2) permitted to rely on the written statement of any
430-2 bank or trust company purchasing its stock that the purchase
430-3 complies with Section 275.201.
430-4 (b) Chapter 71, Acts of the 66th Legislature, Regular
430-5 Session, 1979 (Article 1528i, Vernon's Texas Civil Statutes), is
430-6 repealed.
430-7 SECTION 7.27. (a) Subtitle Z, Title 3, Finance Code, is
430-8 amended to codify Article 360, Revised Statutes, by adding Chapter
430-9 276 to read as follows:
430-10 CHAPTER 276. FINANCIAL INSTITUTION ACCOUNTS
430-11 Sec. 276.001. ACCOUNTS FOR CANDIDATES FOR PUBLIC OFFICE.
430-12 (a) A financial institution may not open an account in the name of
430-13 a candidate without obtaining that candidate's consent and
430-14 signature. This subsection does not require that the candidate be a
430-15 signatory to the account.
430-16 (b) In this section:
430-17 (1) "Candidate" has the meaning assigned by Section
430-18 251.001, Election Code.
430-19 (2) "Financial institution" means a bank, savings and
430-20 loan association, savings bank, or credit union.
430-21 (b) Article 360, Revised Statutes, is repealed.
430-22 SECTION 7.28. (a) Title 5, Finance Code, is amended to
430-23 codify Article 352, Revised Statutes, by adding Chapter 395 to read
430-24 as follows:
430-25 CHAPTER 395. COMMUNITY REINVESTMENT WORK GROUP
430-26 SUBCHAPTER A. COMPOSITION AND OPERATION
76R5 DWS-D 430
431-1 Sec. 395.001. COMPOSITION. The community reinvestment work
431-2 group is composed of:
431-3 (1) a representative of the comptroller's office,
431-4 appointed by the comptroller;
431-5 (2) a representative of the Texas Department of
431-6 Housing and Community Affairs, appointed by the executive director
431-7 of that department;
431-8 (3) a representative of the Texas Department of
431-9 Economic Development, appointed by the executive director of that
431-10 department;
431-11 (4) a representative of the Texas Department of
431-12 Banking, appointed by the banking commissioner of Texas; and
431-13 (5) a representative of the Texas Department of
431-14 Insurance, appointed by the commissioner of insurance.
431-15 Sec. 395.002. OFFICERS. The representative of the
431-16 comptroller's office serves as presiding officer of the work group.
431-17 The members of the work group may elect other necessary officers.
431-18 Sec. 395.003. MEETINGS. The work group shall meet quarterly
431-19 and may meet more often at the call of the presiding officer.
431-20 Sec. 395.004. TERM OF OFFICE; REMOVAL. A member of the work
431-21 group serves a two-year term and may be removed for any reason by
431-22 the appointing authority.
431-23 Sec. 395.005. EXPENSES; COMPENSATION. The appointing
431-24 authority is responsible for the expenses of a member's service on
431-25 the work group. A member of the work group receives no additional
431-26 compensation for serving on the work group.
76R5 DWS-D 431
432-1 (Sections 395.006-395.100 reserved for expansion
432-2 SUBCHAPTER B. DUTIES
432-3 Sec. 395.101. GENERAL DUTIES. The work group shall work in
432-4 conjunction with the banking community in this state to:
432-5 (1) develop statewide community reinvestment
432-6 strategies using existing investment pools and other investment
432-7 vehicles to leverage private capital from banks, insurance
432-8 companies, and other entities for community development in the
432-9 state;
432-10 (2) consult and coordinate with representatives from
432-11 appropriate federal regulatory agencies, including the Office of
432-12 the Comptroller of the Currency, the Federal Reserve Board of
432-13 Governors, the Federal Deposit Insurance Corporation, and the
432-14 Office of Thrift Supervision; and
432-15 (3) monitor and evaluate the strategies developed
432-16 under this section.
432-17 Sec. 395.102. DEVELOPING STRATEGIES. In developing the
432-18 strategies required by Section 395.101, the work group shall:
432-19 (1) explore innovative qualified investment
432-20 strategies;
432-21 (2) ensure to the extent possible that the strategies
432-22 encourage financial institutions in this state to lend money to
432-23 low-income and moderate-income families and individuals in the
432-24 state;
432-25 (3) coordinate its efforts to attract private capital
432-26 through investments that meet the requirements of the Community
76R5 DWS-D 432
433-1 Reinvestment Act of 1977 (12 U.S.C. Section 2901 et seq.); and
433-2 (4) ensure to the extent possible that the strategies
433-3 augment existing Community Reinvestment Act of 1977 programs in the
433-4 state, including the operation of local community development
433-5 corporations.
433-6 Sec. 395.103. REPORT TO LEGISLATURE. Each biennium the work
433-7 group shall submit to the legislature a written report on the
433-8 effectiveness of the strategies the work group is required to
433-9 develop under this chapter.
433-10 (b) Article 352, Revised Statutes, is repealed.
433-11 PART 5. OTHER CHANGES RELATING TO FINANCE CODE
433-12 SECTION 7.29. Section 14.251, Finance Code, is amended to
433-13 more accurately reflect the source law from which it was derived to
433-14 read as follows:
433-15 Sec. 14.251. ASSESSMENT OF PENALTY; RESTITUTION ORDER. (a)
433-16 The commissioner may assess an administrative penalty against a
433-17 person who knowingly and wilfully violates or causes a violation of
433-18 this chapter, [subtitle or] Chapter 394, or Subtitle B, Title 4, or
433-19 a rule adopted under this chapter, [subtitle or] Chapter 394, or
433-20 Subtitle B, Title 4.
433-21 (b) The commissioner may order a person who violates or
433-22 causes a violation of this chapter, [subtitle or] Chapter 394, or
433-23 Subtitle B, Title 4, or a rule adopted under this chapter,
433-24 [subtitle or] Chapter 394, or Subtitle B, Title 4, to make
433-25 restitution to an identifiable person injured by the violation.
433-26 SECTION 7.30. Section 59.107(a), Finance Code, is amended to
76R5 DWS-D 433
434-1 more accurately reflect the source law from which it was derived to
434-2 read as follows:
434-3 (a) A safe deposit company may not relocate a safe deposit
434-4 box rented for a term of at least six months if the box rental is
434-5 not delinquent or [. A safe deposit company may not] open a safe
434-6 deposit box to relocate its contents to another safe deposit box or
434-7 other location except:
434-8 (1) in the presence of the lessee;
434-9 (2) with the lessee's written authorization; or
434-10 (3) as otherwise provided by this section or Section
434-11 59.108.
434-12 SECTION 7.31. (a) Subchapter A, Chapter 89, Finance Code,
434-13 is amended to conform to Section 4, Chapter 994, Acts of the 75th
434-14 Legislature, Regular Session, 1997, by adding Section 89.008 to
434-15 read as follows:
434-16 Sec. 89.008. OFFICES OF FEDERAL ASSOCIATIONS. A federal
434-17 association that has been merged, consolidated, or converted into a
434-18 domestic or foreign savings bank or association is entitled to
434-19 retain any authorized office under the terms provided for a foreign
434-20 savings bank under Subchapter I, Chapter 92.
434-21 (b) Section 4, Chapter 994, Acts of the 75th Legislature,
434-22 Regular Session, 1997, is repealed.
434-23 SECTION 7.32. (a) Section 91.002(12), Finance Code, is
434-24 amended to conform to Section 1, Chapter 994, Acts of the 75th
434-25 Legislature, Regular Session, 1997, to read as follows:
434-26 (12) "Federal savings bank" means a savings bank
76R5 DWS-D 434
435-1 incorporated under the laws of the United States[, the principal
435-2 business office of which is located in this state].
435-3 (b) Section 1, Chapter 994, Acts of the 75th Legislature,
435-4 Regular Session, 1997, is repealed.
435-5 SECTION 7.33. (a) Section 92.152(b), Finance Code, is
435-6 amended to conform to Section 1, Chapter 993, Acts of the 75th
435-7 Legislature, Regular Session, 1997, to read as follows:
435-8 (b) The members or shareholders shall elect the board by a
435-9 majority vote at the [each] annual meeting. The directors may be
435-10 elected for staggered terms of longer than one year as provided by
435-11 the savings bank's bylaws or articles of incorporation.
435-12 (b) Section 1, Chapter 993, Acts of the 75th Legislature,
435-13 Regular Session, 1997, is repealed.
435-14 SECTION 7.34. (a) Section 92.204, Finance Code, is amended
435-15 to conform to Section 1, Chapter 995, Acts of the 75th Legislature,
435-16 Regular Session, 1997, to read as follows:
435-17 Sec. 92.204. QUALIFICATION UNDER [INTERNAL REVENUE CODE]
435-18 ASSET TEST OR QUALIFIED THRIFT LENDER TEST. (a) A savings bank
435-19 must qualify under and continue to meet:
435-20 (1) the asset test of Section 7701(a)(19), Internal
435-21 Revenue Code of 1986 (26 U.S.C. Section 7701(a)(19)); or
435-22 (2) the qualified thrift lender test of Section 10(m),
435-23 Home Owners' Loan Act (12 U.S.C. Section 1467a(m)).
435-24 (b) The commissioner may grant temporary or limited
435-25 exceptions to the requirements of this section as the commissioner
435-26 considers necessary.
76R5 DWS-D 435
436-1 (b) Section 1, Chapter 995, Acts of the 75th Legislature,
436-2 Regular Session, 1997, is repealed.
436-3 SECTION 7.35. (a) Subchapter A, Chapter 98, Finance Code,
436-4 is amended to conform to Section 2, Chapter 994, Acts of the 75th
436-5 Legislature, Regular Session, 1997, by adding Section 98.005 to
436-6 read as follows:
436-7 Sec. 98.005. AUTHORIZATION TO RETAIN OFFICES. A federal
436-8 savings bank that has been merged, consolidated, or converted into
436-9 a domestic or foreign savings bank or association is entitled to
436-10 retain any authorized office under the terms provided for a foreign
436-11 savings bank under Subchapter I, Chapter 92.
436-12 (b) Section 2, Chapter 994, Acts of the 75th Legislature,
436-13 Regular Session, 1997, is repealed.
436-14 SECTION 7.36. Section 126.254, Finance Code, is amended to
436-15 correct a typographical error to read as follows:
436-16 Sec. 126.254. POSSESSION, CONSOLIDATION, AND DISPOSITION OF
436-17 ASSETS. The liquidating agent shall:
436-18 (1) receive and take possession of the books, records,
436-19 assets, and property of the credit union;
436-20 (2) [. . .] sell, enforce collection of, and liquidate
436-21 assets and property; and
436-22 (3) sell or assign assets to the liquidating agent
436-23 subject to Section 126.353.
436-24 SECTION 7.37. (a) Section 152.201, Finance Code, is amended
436-25 to conform to Section 1, Chapter 395, Acts of the 75th Legislature,
436-26 Regular Session, 1997, to read as follows:
76R5 DWS-D 436
437-1 Sec. 152.201. LICENSE REQUIRED. Except as provided by
437-2 Section 152.202, a person [engaged in the business of selling
437-3 checks, as a service or for consideration,] must hold a license
437-4 issued under this chapter to:
437-5 (1) engage in the business of selling checks, as a
437-6 service or for consideration; or
437-7 (2) maintain, use, or otherwise control an account in
437-8 this state for the purpose of engaging in the business of selling
437-9 checks.
437-10 (b) Section 1, Chapter 395, Acts of the 75th Legislature,
437-11 Regular Session, 1997, is repealed.
437-12 SECTION 7.38. Section 152.301(a), Finance Code, is amended
437-13 to more accurately reflect the source law from which it was derived
437-14 to read as follows:
437-15 (a) A license holder shall maintain at all times while the
437-16 license is in effect:
437-17 (1) a surety bond or deposit in the amount prescribed
437-18 by Section 152.206 or 152.207;
437-19 (2) a net worth of not less than the amount prescribed
437-20 by Section 152.203; and
437-21 (3) a surety bond or letter of credit, or have on hand
437-22 permissible investments, in an amount equal to:
437-23 (A) the aggregate face amount of all outstanding
437-24 checks sold in the United States for which the license holder is
437-25 liable for payment, less the amount of the surety bond or deposit
437-26 maintained under Section 152.206 or 152.207, if the license holder
76R5 DWS-D 437
438-1 has a net worth of less than $5 million; or
438-2 (B) at least 50 percent of the amount required
438-3 by Paragraph (A) [Subdivision (1)] if the license holder has a net
438-4 worth of at least $5 million.
438-5 SECTION 7.39. Section 153.117(a), Finance Code, is amended
438-6 to more accurately reflect the source law from which it was derived
438-7 to read as follows:
438-8 (a) The following persons are not required to be licensed
438-9 under this chapter:
438-10 (1) a bank, foreign bank agency, credit union, savings
438-11 bank, or savings and loan association, whether organized under the
438-12 laws of this state or of the United States;
438-13 (2) a license holder under Chapter 152, except that
438-14 the license holder is required to comply with the other provisions
438-15 of this chapter to the extent [unless] the license holder engages
438-16 in currency exchange, transportation, or transmission transactions;
438-17 or
438-18 (3) a person registered as a securities dealer under
438-19 The Securities Act (Article 581-1 et seq., Vernon's Texas Civil
438-20 Statutes).
438-21 SECTION 7.40. (a) Section 154.002, Finance Code, is amended
438-22 to conform to Section 1, Chapter 1389, Acts of the 75th
438-23 Legislature, Regular Session, 1997, by amending Subdivision (8) and
438-24 adding Subdivisions (10), (11), and (12) to read as follows:
438-25 (8) "Prepaid funeral benefits" means prearranged or
438-26 prepaid funeral or cemetery services or funeral merchandise,
76R5 DWS-D 438
439-1 including an alternative container, casket, or outer burial
439-2 container [a casket, grave vault, or other article of merchandise
439-3 incidental to a funeral service]. The term does not include a
439-4 grave, [lot, grave space, grave] marker, monument, tombstone,
439-5 crypt, niche, plot, or lawn crypt [mausoleum] unless it is sold in
439-6 contemplation of trade for a funeral service or funeral merchandise
439-7 to which this chapter applies.
439-8 (10) "Crypt," "grave," "lawn crypt," "niche," and
439-9 "plot" have the meanings assigned by Section 711.001, Health and
439-10 Safety Code.
439-11 (11) "Funeral merchandise" or "merchandise" means
439-12 goods sold or offered for sale on a preneed basis directly to the
439-13 public for use in connection with funeral services.
439-14 (12) "Funeral service" or "service" means a service
439-15 sold or offered for sale on a preneed basis that may be used to:
439-16 (A) care for and prepare a deceased human body
439-17 for burial, cremation, or other final disposition; and
439-18 (B) arrange, supervise, or conduct a funeral
439-19 ceremony or the final disposition of a deceased human body.
439-20 (b) Section 1, Chapter 1389, Acts of the 75th Legislature,
439-21 Regular Session, 1997, is repealed.
439-22 SECTION 7.41. (a) Section 154.258, Finance Code, is amended
439-23 to conform to Section 2, Chapter 1389, Acts of the 75th
439-24 Legislature, Regular Session, 1997, by adding Subsection (e) to
439-25 read as follows:
439-26 (e) The commissioner may waive a limitation provided by
76R5 DWS-D 439
440-1 Subsection (b), (c), or (d), on written request of a permit holder,
440-2 if the commissioner concludes that the waiver does not threaten an
440-3 unreasonable risk of loss to the prepaid funeral benefits trust
440-4 funds. The commissioner by order shall approve or disapprove the
440-5 request not later than the 60th day after the date the commissioner
440-6 receives the request. If the commissioner does not disapprove the
440-7 request before the expiration of that period, the request is
440-8 approved. If the permit holder does not request a hearing before
440-9 the 11th day after the date of an order of disapproval, the order
440-10 takes effect on that 11th day. If a hearing is timely requested,
440-11 the hearing shall be conducted as a contested case under Chapter
440-12 2001, Government Code.
440-13 (b) Section 2, Chapter 1389, Acts of the 75th Legislature,
440-14 Regular Session, 1997, is repealed.
440-15 SECTION 7.42. Section 392.001(7), Finance Code, is amended
440-16 to more accurately reflect the source law from which it was derived
440-17 to read as follows:
440-18 (7) "Third-party debt collector" means a debt
440-19 collector, as defined by 15 U.S.C. Section 1692a(6), but does not
440-20 include [includes] an attorney collecting a debt as an attorney on
440-21 behalf of and in the name of a client unless [if] the attorney has
440-22 nonattorney employees who:
440-23 (A) are regularly engaged to solicit debts for
440-24 collection; or
440-25 (B) regularly make contact with debtors for the
440-26 purpose of collection or adjustment of debts.
76R5 DWS-D 440
441-1 SECTION 7.43. (a) Section 393.302, Finance Code, is amended
441-2 to conform to Section 1, Chapter 576, Acts of the 75th Legislature,
441-3 Regular Session, 1997, to read as follows:
441-4 Sec. 393.302. CHARGE OR RECEIPT OF CONSIDERATION BEFORE
441-5 COMPLETION OF SERVICES. A credit services organization or a
441-6 representative of the organization may charge or receive from a
441-7 consumer valuable consideration before completely performing all
441-8 the services the organization has agreed to perform for the
441-9 consumer only if the organization has obtained a surety bond for
441-10 each of its locations or established and maintained a surety
441-11 account for each of its locations in accordance with Subchapter E.
441-12 (b) Section 1, Chapter 576, Acts of the 75th Legislature,
441-13 Regular Session, 1997, is repealed.
441-14 SECTION 7.44. (a) Section 393.101, Finance Code, is amended
441-15 to conform to Section 2, Chapter 576, Acts of the 75th Legislature,
441-16 Regular Session, 1997, by adding Subsection (d) to read as follows:
441-17 (d) A registration certificate expires on the first
441-18 anniversary of its date of issuance. A registered credit services
441-19 organization may renew a registration certificate by filing a
441-20 renewal application, in the form prescribed by the secretary of
441-21 state, and paying the renewal fee.
441-22 (b) Section 393.104, Finance Code, is amended to conform to
441-23 Section 2, Chapter 576, Acts of the 75th Legislature, Regular
441-24 Session, 1997, to read as follows:
441-25 Sec. 393.104. FILING FEE. The secretary of state may charge
441-26 a credit services organization a reasonable fee to cover the cost
76R5 DWS-D 441
442-1 of filing a [the] registration statement or renewal application in
442-2 an amount not to exceed $100.
442-3 (c) Section 2, Chapter 576, Acts of the 75th Legislature,
442-4 Regular Session, 1997, is repealed.
442-5 PART 6. CROSS-REFERENCE CHANGES
442-6 SECTION 7.45. Section 3.112(b), Business & Commerce Code, is
442-7 amended to conform to Chapter 1008, Acts of the 75th Legislature,
442-8 Regular Session, 1997, to read as follows:
442-9 (b) Interest may be stated in an instrument as a fixed or
442-10 variable amount of money or it may be expressed as a fixed or
442-11 variable rate or rates. The amount or rate of interest may be
442-12 stated or described in the instrument in any manner and may require
442-13 reference to information not contained in the instrument. If an
442-14 instrument provides for interest, but the amount of interest
442-15 payable cannot be ascertained from the description, interest is
442-16 payable at the judgment rate in effect at the place of payment of
442-17 the instrument and at the time interest first accrues, and the
442-18 instrument shall not by virtue of this sentence be considered to
442-19 violate the provisions of Title 4, Finance Code [79, Revised
442-20 Statutes (Article 5069-1.01 et seq., Vernon's Texas Civil
442-21 Statutes)].
442-22 SECTION 7.46. Section 9.203(e), Business & Commerce Code, is
442-23 amended to conform to Chapter 1008, Acts of the 75th Legislature,
442-24 Regular Session, 1997, to read as follows:
442-25 (e) A transaction, although subject to this chapter, is also
442-26 subject to Title 4, Finance Code [79, Revised Statutes], and in the
76R5 DWS-D 442
443-1 case of conflict between the provisions of this Chapter and any
443-2 such statute, the provisions of such statute control. Failure to
443-3 comply with any applicable statute has only the effect which is
443-4 specified therein.
443-5 SECTION 7.47. Section 26.02(a)(2), Business & Commerce Code,
443-6 is amended to conform to Chapter 1008, Acts of the 75th
443-7 Legislature, Regular Session, 1997, to read as follows:
443-8 (2) "Loan agreement" means one or more promises,
443-9 promissory notes, agreements, undertakings, security agreements,
443-10 deeds of trust or other documents, or commitments, or any
443-11 combination of those actions or documents, pursuant to which a
443-12 financial institution loans or delays repayment of or agrees to
443-13 loan or delay repayment of money, goods, or another thing of value
443-14 or to otherwise extend credit or make a financial accommodation.
443-15 The term does not include a promise, promissory note, agreement,
443-16 undertaking, document, or commitment relating to:
443-17 (A) a credit card or charge card; or
443-18 (B) an open-end account, as that term is defined
443-19 by Section 301.002, Finance Code [Article 1B.002, Title 79, Revised
443-20 Statutes], intended or used primarily for personal, family, or
443-21 household use.
443-22 SECTION 7.48. Article 59.01(2), Code of Criminal Procedure,
443-23 is amended to conform to Chapter 1008, Acts of the 75th
443-24 Legislature, Regular Session, 1997, to read as follows:
443-25 (2) "Contraband" means property of any nature,
443-26 including real, personal, tangible, or intangible, that is:
76R5 DWS-D 443
444-1 (A) used in the commission of:
444-2 (i) any first or second degree felony
444-3 under the Penal Code;
444-4 (ii) any felony under Section 38.04 or
444-5 Chapters 29, 30, 31, 32, 33, 33A, or 35, Penal Code; or
444-6 (iii) any felony under The Securities Act
444-7 (Article 581-1 et seq., Vernon's Texas Civil Statutes);
444-8 (B) used or intended to be used in the
444-9 commission of:
444-10 (i) any felony under Chapter 481, Health
444-11 and Safety Code (Texas Controlled Substances Act);
444-12 (ii) any felony under Chapter 483, Health
444-13 and Safety Code;
444-14 (iii) a felony under Chapter 153, Finance
444-15 Code [Article 350, Revised Statutes];
444-16 (iv) any felony under Chapter 34, Penal
444-17 Code;
444-18 (v) a Class A misdemeanor under Subchapter
444-19 B, Chapter 365, Health and Safety Code, if the defendant has been
444-20 previously convicted twice of an offense under that subchapter; or
444-21 (vi) any felony under Chapter 152, Finance
444-22 Code [The Sale of Checks Act (Article 489d, Vernon's Texas Civil
444-23 Statutes)];
444-24 (C) the proceeds gained from the commission of a
444-25 felony listed in Paragraph (A) or (B) of this subdivision or a
444-26 crime of violence; or
76R5 DWS-D 444
445-1 (D) acquired with proceeds gained from the
445-2 commission of a felony listed in Paragraph (A) or (B) of this
445-3 subdivision or a crime of violence.
445-4 SECTION 7.49. Section 45.201(2), Education Code, is amended
445-5 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
445-6 Session, 1997, to read as follows:
445-7 (2) "Bank" means a state bank authorized and regulated
445-8 under the laws of this state pertaining to banking, in particular
445-9 Subtitle A, Title 3, Finance Code [The Texas Banking Code (Article
445-10 342-101 et seq., Vernon's Texas Civil Statutes)], a national bank,
445-11 a savings and loan association or savings bank authorized and
445-12 regulated by federal law, or a savings and loan association or
445-13 savings bank organized under the laws of this state. The term does
445-14 not include any bank the deposits of which are not insured by the
445-15 Federal Deposit Insurance Corporation.
445-16 SECTION 7.50. Section 31.101, Finance Code, is amended to
445-17 conform to Chapter 769, Acts of the 75th Legislature, Regular
445-18 Session, 1997, to read as follows:
445-19 Sec. 31.101. GENERAL DUTIES OF BANKING COMMISSIONER. The
445-20 banking commissioner shall:
445-21 (1) supervise and regulate, as provided by this
445-22 subtitle, Subtitle F, and Chapter [and Chapters] 12 [and 151],
445-23 state banks, trust companies, and state-licensed foreign bank
445-24 agencies;
445-25 (2) administer and enforce this subtitle and Chapter
445-26 12 in person or through the deputy banking commissioner or an
76R5 DWS-D 445
446-1 examiner, supervisor, conservator, or other agent; and
446-2 (3) administer and enforce laws other than this
446-3 subtitle and Chapter 12 as directed by those other laws.
446-4 SECTION 7.51. Section 274.001(4), Finance Code, is amended
446-5 to conform to Chapter 769, Acts of the 75th Legislature, Regular
446-6 Session, 1997, to read as follows:
446-7 (4) "Fiduciary account" means an account involving the
446-8 exercise of a corporate purpose specified by Section 182.001(b)
446-9 [151.052 or 151.103].
446-10 SECTION 7.52. Section 274.003, Finance Code, is amended to
446-11 conform to Chapter 769, Acts of the 75th Legislature, Regular
446-12 Session, 1997, to read as follows:
446-13 Sec. 274.003. SUBSIDIARY TRUST COMPANY. An entity is a
446-14 subsidiary trust company of a bank holding company if:
446-15 (1) the entity is a:
446-16 (A) corporation incorporated under Subchapter A
446-17 [B], Chapter 182 [151];
446-18 (B) national bank that:
446-19 (i) is organized to conduct a trust
446-20 business and any incidental business or to exercise trust powers;
446-21 and
446-22 (ii) has its main office in this state; or
446-23 (C) state bank that is organized to exercise
446-24 trust powers and has its main office in this state; and
446-25 (2) more than 50 percent of the voting stock of the
446-26 entity is directly or indirectly owned by the bank holding company.
76R5 DWS-D 446
447-1 SECTION 7.53. Section 345.152(b), Finance Code, is amended
447-2 to conform to Section 11, Chapter 1396, Acts of the 75th
447-3 Legislature, Regular Session, 1997, to read as follows:
447-4 (b) The market competitive rate ceiling is:
447-5 (1) the lowest rate determined under Subsection (a)
447-6 except as provided by Subdivision (2) or (3);
447-7 (2) the ceiling provided by Section 303.009(d)
447-8 [303.305(c)] if the rate described by Subdivision (1) is more than
447-9 the ceiling provided by Section 303.009(d) [303.305(c)]; or
447-10 (3) the ceiling provided by Section 303.009(a)
447-11 [303.304(a)] if the rate described by Subdivision (1) is less than
447-12 the ceiling provided by Section 303.009(a) [303.304(a)].
447-13 SECTION 7.54. Section 345.154(a), 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 (a) The holder of a retail charge agreement that provides
447-17 for a time price differential under this chapter or under Chapter
447-18 303 may change the terms of the agreement under Section 303.103
447-19 [303.403] to implement the market competitive rate ceiling.
447-20 SECTION 7.55. Section 346.201, Finance Code, is amended to
447-21 conform to Section 25, Chapter 1396, Acts of the 75th Legislature,
447-22 Regular Session, 1997, to read as follows:
447-23 Sec. 346.201. INSURANCE; COLLATERAL. In connection with a
447-24 revolving credit account, a creditor may require or take insurance
447-25 or collateral subject to the provisions of Chapter 342 [343],
447-26 relating to insurance and security, as if the revolving credit
76R5 DWS-D 447
448-1 account were a loan contract under that chapter.
448-2 SECTION 7.56. Section 349.004, Finance Code, is amended to
448-3 conform to Section 22, Chapter 1396, Acts of the 75th Legislature,
448-4 Regular Session, 1997, to read as follows:
448-5 Sec. 349.004. LIABILITY RELATED TO CRIMINAL OFFENSE. In
448-6 addition to other applicable penalties, a person who commits an
448-7 offense under Section 349.502 is liable to the obligor for an
448-8 amount equal to:
448-9 (1) the principal of and all charges contracted for or
448-10 collected on each loan made without the authority required by
448-11 Chapter 342[, 343, 344,] or 346; and
448-12 (2) reasonable attorney's fees incurred by the
448-13 obligor.
448-14 SECTION 7.57. Sections 349.502(a) and (c), Finance Code, are
448-15 amended to conform to Section 22, Chapter 1396, Acts of the 75th
448-16 Legislature, Regular Session, 1997, to read as follows:
448-17 (a) A person commits an offense if the person engages in a
448-18 business that is subject to Chapter 342[, 343, 344,] or 346 without
448-19 holding the license or other authorization required under that
448-20 chapter.
448-21 (c) Each loan made without the authority required by Chapter
448-22 342[, 343, 344,] or 346 is a separate offense.
448-23 SECTION 7.58. Section 404.031(g), Government Code, is
448-24 amended to conform to Chapter 1008, Acts of the 75th Legislature,
448-25 Regular Session, 1997, to read as follows:
448-26 (g) In this section, "permitted institution" means a Federal
76R5 DWS-D 448
449-1 Reserve Bank, a Federal Home Loan Bank, a "clearing corporation" as
449-2 defined by Section 8.102[(c)], Business & Commerce Code, the Texas
449-3 Treasury Safekeeping Trust Company, a state depository, and any
449-4 state or nationally chartered bank or trust company that is
449-5 controlled by a bank holding company that controls a state
449-6 depository. Neither the state depository that pledges the
449-7 securities nor any bank that is controlled by a bank holding
449-8 company that controls that state depository may be the permitted
449-9 institution with respect to the particular securities pledged by
449-10 that state depository. A custodian holding in trust securities of
449-11 a state depository under Subsections (e) and (f) may deposit the
449-12 pledged securities with a permitted institution if the permitted
449-13 institution is the third party to the transaction. The securities
449-14 shall be held by the permitted institution to secure funds
449-15 deposited by the comptroller in the state depository pledging the
449-16 securities. On receipt of the securities, the permitted
449-17 institution shall immediately issue to the custodian an advice of
449-18 transaction or other document evidencing the deposit of the
449-19 securities. When the pledged securities held by a custodian are
449-20 deposited, the permitted institution may apply book entry
449-21 procedures to the securities. The records of the permitted
449-22 institution shall at all times reflect the name of the custodian
449-23 depositing the pledged securities. The custodian shall immediately
449-24 issue and deliver to the comptroller controlled trust receipts for
449-25 the pledged securities. The trust receipts shall indicate that the
449-26 custodian has deposited with the permitted institution the pledged
76R5 DWS-D 449
450-1 securities held in trust for the state depository pledging the
450-2 securities. A legal action or proceeding brought by or against the
450-3 state, arising out of or in connection with the duties of the state
450-4 depository, the custodian, or other permitted institution under
450-5 this subchapter must be brought and maintained in state district
450-6 court in Travis County. In this section, "control" and "bank
450-7 holding company" have the meanings assigned by Section 31.002(a),
450-8 Finance Code [Article 2, Chapter I, The Texas Banking Code (Article
450-9 342-102, Vernon's Texas Civil Statutes)].
450-10 SECTION 7.59. Section 411.092(a), Government Code, is
450-11 amended to conform to Chapter 1008, Acts of the 75th Legislature,
450-12 Regular Session, 1997, to read as follows:
450-13 (a) The banking commissioner is entitled to obtain from the
450-14 department criminal history record information maintained by the
450-15 department that relates to a person who is:
450-16 (1) an applicant for a license, charter, or other
450-17 authority granted or issued by the banking commissioner under:
450-18 (A) Subtitle A, Title 3, Finance Code [The Texas
450-19 Banking Code (Article 342-101 et seq., Vernon's Texas Civil
450-20 Statutes)], or any successor to that law; or
450-21 (B) Chapter 152, 153, or 154, Finance Code
450-22 [Article 350, Revised Statutes;]
450-23 [(C) The Sale of Checks Act (Article 489d,
450-24 Vernon's Texas Civil Statutes); or]
450-25 [(D) Chapter 512, Acts of the 54th Legislature,
450-26 Regular Session, 1955 (Article 548b, Vernon's Texas Civil
76R5 DWS-D 450
451-1 Statutes)]; or
451-2 (2) a principal of an applicant under Subdivision (1).
451-3 SECTION 7.60. Section 411.095(a), Government Code, is
451-4 amended to conform to Chapter 1008, Acts of the 75th Legislature,
451-5 Regular Session, 1997, to read as follows:
451-6 (a) The consumer credit commissioner is entitled to obtain
451-7 from the department criminal history record information that
451-8 relates to a person who is:
451-9 (1) an applicant for a license under Chapter 371,
451-10 Finance Code [the Texas Pawnshop Act (Article 5069-51.01 et seq.,
451-11 Vernon's Texas Civil Statutes)]; or
451-12 (2) the holder of a license under that Act.
451-13 SECTION 7.61. Section 603.009(b), Government Code, is
451-14 repealed to conform to Chapter 1008, Acts of the 75th Legislature,
451-15 Regular Session, 1997.
451-16 SECTION 7.62. Section 2001.223, Government Code, is amended
451-17 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
451-18 Session, 1997, to read as follows:
451-19 Sec. 2001.223. EXCEPTIONS FROM DECLARATORY JUDGMENT, COURT
451-20 ENFORCEMENT, AND CONTESTED CASE PROVISIONS. Section 2001.038 and
451-21 Subchapters C through H do not apply to:
451-22 (1) the granting, payment, denial, or withdrawal of
451-23 financial or medical assistance or benefits under service programs
451-24 of the Texas Department of Human Services;
451-25 (2) action by the Banking Commissioner or the Finance
451-26 Commission of Texas regarding the issuance of a state bank or state
76R5 DWS-D 451
452-1 trust company charter for a bank or trust company to assume the
452-2 assets and liabilities of a financial institution that the
452-3 commissioner considers to be in hazardous condition as defined by
452-4 Section 31.002(a) or 181.002(a), Finance Code [1.002(a), Texas
452-5 Banking Act (Article 342-1.002, Vernon's Texas Civil Statutes), or
452-6 Section 1.002(a), Texas Trust Company Act], as applicable;
452-7 (3) a hearing or interview conducted by the Board of
452-8 Pardons and Paroles or the pardons and paroles division of the
452-9 Texas Department of Criminal Justice relating to the grant,
452-10 rescission, or revocation of parole or other form of administrative
452-11 release; or
452-12 (4) the suspension, revocation, or termination of the
452-13 certification of a breath analysis operator or technical supervisor
452-14 under the rules of the Department of Public Safety.
452-15 SECTION 7.63. Section 2257.002, Government Code, is amended
452-16 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
452-17 Session, 1997, to read as follows:
452-18 Sec. 2257.002. DEFINITIONS. In this chapter:
452-19 (1) "Bank holding company" has the meaning assigned by
452-20 Section 31.002(a), Finance Code [1.002(a), Texas Banking Act].
452-21 (2) [(3)] "Control" has the meaning assigned by
452-22 Section 31.002(a), Finance Code [1.002(a), Texas Banking Act].
452-23 (3) [(4)] "Deposit of public funds" means public funds
452-24 of a public entity that:
452-25 (A) the comptroller does not manage under
452-26 Chapter 404; and
76R5 DWS-D 452
453-1 (B) are held as a demand or time deposit by a
453-2 depository institution expressly authorized by law to accept a
453-3 public entity's demand or time deposit.
453-4 (4) [(5)] "Eligible security" means:
453-5 (A) a surety bond;
453-6 (B) an investment security;
453-7 (C) an ownership or beneficial interest in an
453-8 investment security, other than an option contract to purchase or
453-9 sell an investment security;
453-10 (D) a fixed-rate collateralized mortgage
453-11 obligation that has an expected weighted average life of 10 years
453-12 or less and does not constitute a high-risk mortgage security; or
453-13 (E) a floating-rate collateralized mortgage
453-14 obligation that does not constitute a high-risk mortgage security.
453-15 (5) [(6)] "Investment security" means:
453-16 (A) an obligation that in the opinion of the
453-17 attorney general of the United States is a general obligation of
453-18 the United States and backed by its full faith and credit;
453-19 (B) a general or special obligation issued by a
453-20 public agency that is payable from taxes, revenues, or a
453-21 combination of taxes and revenues; or
453-22 (C) a security in which a public entity may
453-23 invest under Subchapter A, Chapter 2256.
453-24 (6) [(7)] "Permitted institution" means:
453-25 (A) a Federal Reserve Bank;
453-26 (B) a clearing corporation, as defined by
76R5 DWS-D 453
454-1 Section 8.102[(c)], Business & Commerce Code;
454-2 (C) a bank eligible to be a custodian under
454-3 Section 2257.041; or
454-4 (D) a state or nationally chartered bank that is
454-5 controlled by a bank holding company that controls a bank eligible
454-6 to be a custodian under Section 2257.041.
454-7 (7) [(8)] "Public agency" means a state or a political
454-8 or governmental entity, agency, instrumentality, or subdivision of
454-9 a state, including a municipality, an institution of higher
454-10 education, as defined by Section 61.003, Education Code, a junior
454-11 college, a district created under Article XVI, Section 59, of the
454-12 Texas Constitution, and a public hospital.
454-13 (8) [(9)] "Public entity" means a public agency in
454-14 this state, but does not include an institution of higher
454-15 education, as defined by Section 61.003, Education Code.
454-16 (9) [(10)] "State agency" means a public entity that:
454-17 (A) has authority that is not limited to a
454-18 geographic portion of the state; and
454-19 (B) was created by the constitution or a
454-20 statute.
454-21 (10) [(11)] "Trust receipt" means evidence of receipt,
454-22 identification, and recording, including:
454-23 (A) a physical controlled trust receipt; or
454-24 (B) a written or electronically transmitted
454-25 advice of transaction.
454-26 SECTION 7.64. Section 242.098(b), Health and Safety Code, is
76R5 DWS-D 454
455-1 amended to conform to Chapter 1008, Acts of the 75th Legislature,
455-2 Regular Session, 1997, to read as follows:
455-3 (b) Interest on unreimbursed amounts begins to accrue on the
455-4 date on which the funds were disbursed to the home. The rate of
455-5 interest is the rate determined under Section 304.003, Finance Code
455-6 [Article 1E.003, Title 79, Revised Statutes], to be applicable to
455-7 judgments rendered during the month in which the money was
455-8 disbursed to the home.
455-9 SECTION 7.65. Section 712.042, Health and Safety Code, is
455-10 amended to conform to Chapter 1008, Acts of the 75th Legislature,
455-11 Regular Session, 1997, to read as follows:
455-12 Sec. 712.042. FEES. [(a)] On filing a statement of funds
455-13 under Section 712.041, a corporation shall pay the commissioner a
455-14 reasonable and necessary fee set annually by the commissioner to
455-15 defray the cost of administering this chapter.
455-16 [(b) The banking department shall receive and disburse
455-17 revenues collected under this chapter in accordance with Section
455-18 2.006, Texas Banking Act.]
455-19 SECTION 7.66. Section 712.0441(h), Health and Safety Code,
455-20 is amended to conform to Chapter 1008, Acts of the 75th
455-21 Legislature, Regular Session, 1997, to read as follows:
455-22 (h) If a fund is misappropriated by its trustee or is not
455-23 otherwise handled as required by this chapter, the commissioner may
455-24 take action against the trustee as provided in Chapter 185, Finance
455-25 Code [6, Texas Trust Company Act].
455-26 SECTION 7.67. Section 1, Article 9.05, Insurance Code, is
76R5 DWS-D 455
456-1 amended to conform to Chapter 1008, Acts of the 75th Legislature,
456-2 Regular Session, 1997, to read as follows:
456-3 Sec. 1. Any corporation heretofore chartered under the
456-4 provisions of Article 9.03 of this Act, or its antecedents, Article
456-5 9.01, Texas Insurance Code, or Chapter 40, Acts, 41st Legislature,
456-6 1929 (codified as Article 1302a, Vernon's Texas Civil Statutes),
456-7 having as one of its powers "to act as trustee under any lawful
456-8 trust committed to it by contract or will, appointment by any court
456-9 having jurisdiction of the subject matter, as trustee, receiver or
456-10 guardian and as executor or guardian under the terms of any will
456-11 and as any administrator of the estates of decedents under the
456-12 appointment of the court" may transfer and assign to a state bank
456-13 created under the provisions of Subtitle A, Title 3, Finance Code,
456-14 [the Texas Banking Act (Article 342-1.001 et seq., Vernon's Texas
456-15 Civil Statutes)] or a predecessor of that law [Act], as amended, or
456-16 to a state trust company created under the provisions of Chapter
456-17 181, Finance Code, [the Texas Trust Company Act] or a predecessor
456-18 of that law [Act], as amended, all of its fiduciary business in
456-19 which such corporation is named or acting as guardian, trustee,
456-20 executor, administrator or in any other fiduciary capacity,
456-21 whereupon said state bank or trust company shall, without the
456-22 necessity of any judicial action in the courts of the State of
456-23 Texas or any action by the creator or beneficiary of such trust or
456-24 estate, continue the guardianship, trusteeship, executorship,
456-25 administration or other fiduciary relationship, and perform all of
456-26 the duties and obligations of such corporation, and exercise all of
76R5 DWS-D 456
457-1 the powers and authority relative thereto now being exercised by
457-2 such corporation, and provided further that the transfer or
457-3 assignment by such corporation of such fiduciary business being
457-4 conducted by it under the powers granted in its original charter,
457-5 as amended, shall not constitute or be deemed a resignation or
457-6 refusal to act upon the part of such corporation as to any such
457-7 guardianship, trust, executorship, administration, or any other
457-8 fiduciary capacity; and provided further that the naming or
457-9 designation by a testator or the creator of a living trust of such
457-10 corporation to act as trustee, guardian, executor, or in any other
457-11 fiduciary capacity, shall be considered the naming or designation
457-12 of the state bank or trust company and authorizing such state bank
457-13 or trust company to act in said fiduciary capacity. All transfers
457-14 and assignments of fiduciary business by such corporations to a
457-15 state bank or trust company consistent with the provisions of this
457-16 Act are hereby validated.
457-17 SECTION 7.68. Article 9.50, Insurance Code, is amended to
457-18 conform to Chapter 1008, Acts of the 75th Legislature, Regular
457-19 Session, 1997, to read as follows:
457-20 Art. 9.50. HOME SOLICITATION TRANSACTIONS ACT AS CONSUMER
457-21 PROTECTION LAW. Chapter 39, Business & Commerce Code [Chapter 246,
457-22 Acts of the 63rd Legislature, Regular Session, 1973 (Article
457-23 5069-13.01 through Article 5069-13.06, Vernon's Texas Civil
457-24 Statutes)], shall be deemed and considered a consumer protection
457-25 law when construed in connection with any policy of title insurance
457-26 issued in this state.
76R5 DWS-D 457
458-1 SECTION 7.69. Section 1C(a), Article 21.07, Insurance Code,
458-2 is amended to conform to Chapter 1008, Acts of the 75th
458-3 Legislature, Regular Session, 1997, to read as follows:
458-4 (a) In this article, "bank" means a national banking
458-5 association organized and existing under the National Bank Acts (12
458-6 U.S.C. Section 21 et seq.), a state bank organized and existing
458-7 under Subtitle A, Title 3, Finance Code [the Texas Banking Act
458-8 (Article 342-1.001 et seq., Vernon's Texas Civil Statutes)], a
458-9 state savings bank organized and existing under Subtitle C, Title
458-10 3, Finance Code [the Texas Savings Bank Act (Article 489e, Vernon's
458-11 Texas Civil Statutes)], a bank branch, or a bank operating
458-12 subsidiary, as defined by state or federal law, that is located and
458-13 doing business in this state in a place with a population of 5,000
458-14 or less.
458-15 SECTION 7.70. Section 1C, Chapter 213, Acts of the 54th
458-16 Legislature, Regular Session, 1955 (Article 21.07-1, Vernon's Texas
458-17 Insurance Code), is amended to conform to Chapter 1008, Acts of the
458-18 75th Legislature, Regular Session, 1997, to read as follows:
458-19 Sec. 1C. DEFINITION. In this Act, "bank" means a national
458-20 banking association organized and existing under the National Bank
458-21 Acts (12 U.S.C. Section 21 et seq.), a state bank organized and
458-22 existing under Subtitle A, Title 3, Finance Code [the Texas Banking
458-23 Act (Article 342-1.001 et seq., Vernon's Texas Civil Statutes)], a
458-24 state savings bank organized and existing under Subtitle C, Title
458-25 3, Finance Code [the Texas Savings Bank Act (Article 489e, Vernon's
458-26 Texas Civil Statutes)], a bank branch, or a bank operating
76R5 DWS-D 458
459-1 subsidiary, as defined by state or federal law, that is located and
459-2 doing business in this state in a place with a population of 5,000
459-3 or less. A bank operating subsidiary located and doing business in
459-4 a place with a population of 5,000 or less may own a licensed
459-5 corporate agent that is also located and doing business in a place
459-6 with a population of 5,000 or less, and is subject to Section 3(b)
459-7 of this Act.
459-8 SECTION 7.71. Section 5(h), Managing General Agents'
459-9 Licensing Act (Article 21.07-3, Vernon's Texas Insurance Code), is
459-10 amended to conform to Chapter 1008, Acts of the 75th Legislature,
459-11 Regular Session, 1997, to read as follows:
459-12 (h) Except as provided herein, a licensee that qualifies
459-13 under this section may not be owned in whole or in part, either
459-14 directly or indirectly, by a state bank, national bank, or bank
459-15 holding company, as those terms are defined in Section 31.002,
459-16 Finance Code [Article 2, Chapter I, The Texas Banking Code of 1943,
459-17 as amended (Article 342-102, Vernon's Texas Civil Statutes)], or by
459-18 a subsidiary of one of those financial institutions. This
459-19 subsection shall not apply to any licensee that on June 1, 1981, is
459-20 owned by a state bank, national bank, or bank holding company or by
459-21 a subsidiary of one of those financial institutions so long as
459-22 ownership continues; nor shall this subsection apply to a licensee
459-23 for which on July 15, 1981, a state bank, national bank, or bank
459-24 holding company, or a subsidiary of one of those financial
459-25 institutions has, pursuant to the applicable law, filed an
459-26 application for prior approval of ownership or other notice of
76R5 DWS-D 459
460-1 ownership with the governmental agency having regulatory authority
460-2 over the financial institution or subsidiary. Before renewing a
460-3 license issued under this section, the commissioner shall require
460-4 the licensee to certify compliance with or exemption from this
460-5 subsection.
460-6 SECTION 7.72. Sections 3(d) and (g), Article 21.14,
460-7 Insurance Code, are amended to conform to Chapter 1008, Acts of the
460-8 75th Legislature, Regular Session, 1997, to read as follows:
460-9 (d) The department shall issue a license to a bank if the
460-10 department finds that:
460-11 (1) the bank is a national banking association
460-12 organized and existing under the National Bank Acts (12 U.S.C.
460-13 Section 21 et seq.), a state bank organized and existing under
460-14 Subtitle A, Title 3, Finance Code [the Texas Banking Act (Article
460-15 342-1.001 et seq., Vernon's Texas Civil Statutes)], a state savings
460-16 bank organized and existing under Subtitle C, Title 3, Finance Code
460-17 [the Texas Savings Bank Act (Article 489e, Vernon's Texas Civil
460-18 Statutes)], or a bank operating subsidiary, as defined by state or
460-19 federal law, that is located and doing business in this state in a
460-20 place with a population of 5,000 or less;
460-21 (2) at least one officer of the bank and each
460-22 individual who will be performing any acts of an agent for the bank
460-23 are individually licensed under this Article; and
460-24 (3) the bank will have the ability to pay any sums up
460-25 to $25,000 that it might become legally obligated to pay on account
460-26 of any claim made against it by a customer and caused by a
76R5 DWS-D 460
461-1 negligent act, error, or omission of the bank or any person for
461-2 whose acts the bank is legally liable in the conduct of its
461-3 business as a local recording agent. The term "customer" means any
461-4 person, firm, or corporation to whom the bank sells or attempts to
461-5 sell a policy of insurance or from whom the bank accepts an
461-6 application for insurance. That ability shall be proven through:
461-7 (A) an errors and omissions policy insuring the
461-8 bank against errors and omissions, in at least the sum of $100,000
461-9 with not more than a $10,000 deductible feature, or the sum of at
461-10 least $300,000 with not more than a $25,000 deductible feature,
461-11 issued by an insurance company licensed to do business in this
461-12 state or, if a policy cannot be obtained from a company licensed to
461-13 do business in this state, a policy issued by a company not
461-14 licensed to do business in this state, on filing an affidavit with
461-15 the department stating the inability to obtain coverage and
461-16 receiving the department's approval;
461-17 (B) a bond executed by the bank as principal and
461-18 a surety company authorized to do business in this state, as
461-19 surety, in the principal sum of $25,000, payable to the department
461-20 for the use and benefit of customers of the bank, conditioned that
461-21 the bank shall pay any final judgment recovered against it by a
461-22 customer; or
461-23 (C) a deposit with the comptroller of cash or
461-24 securities of the class authorized by Articles 2.08 and 2.10 of
461-25 this code, with a fair market value of $25,000. The comptroller
461-26 shall accept and receive the deposit and hold it exclusively for
76R5 DWS-D 461
462-1 the protection of a customer of the bank who recovers a final
462-2 judgment against the bank. The deposit may be withdrawn only on
462-3 filing with the department satisfactory evidence that the bank has
462-4 withdrawn from the business of insurance and has no unsecured
462-5 liabilities outstanding or that the bank has provided for the
462-6 protection of its customers by furnishing an errors and omissions
462-7 policy or a bond as provided by this subsection. Securities so
462-8 deposited may be exchanged from time to time for other qualified
462-9 securities.
462-10 A binding commitment to issue such a policy or bond, or the
462-11 tender of applicable securities, is sufficient in connection with
462-12 an application for license.
462-13 Nothing in this subsection shall be construed to permit an
462-14 unlicensed employee or agent of a bank to perform any act of a
462-15 local recording agent without obtaining a local recording agent's
462-16 license. The department may not require a bank to take the
462-17 examination provided by Section 6 of this Article.
462-18 A bank licensed as an agent under this Article may have
462-19 additional offices from which the business of insurance is
462-20 conducted only in a place with a population of 5,000 or less and
462-21 must comply with the department's regulations regarding additional
462-22 offices.
462-23 A bank licensed as an agent under this article must maintain
462-24 its insurance records, including all files relating to and
462-25 reflecting customer complaints, separate from records relating to
462-26 banking transactions of the bank.
76R5 DWS-D 462
463-1 If a bank that holds a local recording agent's license does
463-2 not maintain the qualifications necessary to obtain a license, the
463-3 license of that bank to act as a local recording agent shall be
463-4 canceled or denied in accordance with Sections 16 and 18 of this
463-5 article.
463-6 Each bank licensed as a local recording agent shall file
463-7 under oath with its application for license renewal a list of the
463-8 name and address of each individual who will be acting as an agent
463-9 on behalf of the bank and of each officer and director of the bank,
463-10 as defined by Article 21.02 of this code, and other biographical
463-11 information as required by the department.
463-12 Each bank licensed as a local recording agent shall notify
463-13 the department of any change in its officers and directors and any
463-14 change in other persons who will be performing any acts of an
463-15 agent, as defined by Article 21.02 of this code, and submit
463-16 biographical information on those officers, directors, and persons
463-17 as required by the department not later than the 30th day after the
463-18 date on which the change takes effect.
463-19 The term "firm," as that term applies to local recording
463-20 agents in Sections 2, 12, and 16 of this article, includes
463-21 corporations and banks.
463-22 (g) In this article, the term "bank" means a national
463-23 banking association organized and existing under the National Bank
463-24 Acts (12 U.S.C. Section 21 et seq.), a state bank organized and
463-25 existing under Subtitle A, Title 3, Finance Code [the Texas Banking
463-26 Act (Article 342-1.001 et seq., Vernon's Texas Civil Statutes)], a
76R5 DWS-D 463
464-1 state savings bank organized and existing under Subtitle C, Title
464-2 3, Finance Code [the Texas Savings Bank Act (Article 489e, Vernon's
464-3 Texas Civil Statutes)], a bank branch, or a bank operating
464-4 subsidiary, as defined by state or federal law, that is located and
464-5 doing business in this state in a place with a population of 5,000
464-6 or less. A bank operating subsidiary, as defined by state or
464-7 federal law, located and doing business in a place in this state
464-8 with a population of 5,000 or less may own a licensed corporate
464-9 agent that is also located and doing business in a place with a
464-10 population of 5,000 or less, and is subject to Section 3a(5) of
464-11 this Article.
464-12 SECTION 7.73. Article 24.03(g), Insurance Code, is amended
464-13 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
464-14 Session, 1997, to read as follows:
464-15 (g) Any person holding a license under Chapter 342, Finance
464-16 Code [3A, Title 79, Revised Statutes], on the effective date of
464-17 this chapter is required only to pay the license fee required under
464-18 this article and is not required to pay the investigation fee
464-19 required by Section (a) of this article.
464-20 SECTION 7.74. Article 24.11(h), Insurance Code, is amended
464-21 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
464-22 Session, 1997, to read as follows:
464-23 (h) Those additions may be accomplished by a memorandum of
464-24 agreement between the agent and the insured, if before the first
464-25 scheduled payment date of the amended transaction the premium
464-26 finance company gives to the insured the following information in
76R5 DWS-D 464
465-1 writing:
465-2 (1) the amount of the premium increase;
465-3 (2) the down payment on increase;
465-4 (3) the principal amount of increase;
465-5 (4) the total amount of finance charge on increase;
465-6 (5) the total of additional balance due;
465-7 (6) the outstanding balance of original agreement;
465-8 (7) the consolidated agreement balance;
465-9 (8) the annual percentage rate of finance charge on
465-10 additional balance due;
465-11 (9) the revised schedule of payments;
465-12 (10) the amount or method of computing the amount of
465-13 any default, deferment, or similar charges authorized in Chapter
465-14 342, Finance Code [3A, Title 79, Revised Statutes], payable in the
465-15 event of late payments; and
465-16 (11) identification of the method of computing any
465-17 unearned portion of the finance charge in the event of prepayment
465-18 of the obligation.
465-19 SECTION 7.75. Article 24.15, Insurance Code, is amended to
465-20 conform to Chapter 1008, Acts of the 75th Legislature, Regular
465-21 Session, 1997, to read as follows:
465-22 Art. 24.15. SERVICES CHARGES; LIMITATION OF CHARGES;
465-23 COMPUTATION. A premium finance company may not take or receive
465-24 from an insured a greater rate or charge than is provided by
465-25 Chapter 342, Finance Code [3A, Title 79, Revised Statutes]. Those
465-26 charges begin on the date from which the insurance company requires
76R5 DWS-D 465
466-1 payment of the premium and payment was made to the insurance
466-2 company for the financed policy or on the effective date of the
466-3 policy, whichever is earlier. The finance charge shall be computed
466-4 on the balance of the premiums due after subtracting the down
466-5 payment made by the insured in accordance with the premium finance
466-6 agreement. On insurance premium finance agreements made under this
466-7 chapter, no insurance charges or any other charge or fee, except
466-8 those authorized by this chapter, are permitted.
466-9 SECTION 7.76. Article 24.16, Insurance Code, is amended to
466-10 conform to Chapter 1008, Acts of the 75th Legislature, Regular
466-11 Session, 1997, to read as follows:
466-12 Art. 24.16. PREPAYMENT; REFUND. Notwithstanding the
466-13 provisions of any premium finance agreement to the contrary, any
466-14 insured may pay it in full at any time before the maturity of the
466-15 final installment of the balance of the agreement, and if the
466-16 insured does so and the agreement included an amount for a charge,
466-17 the insured shall receive for the prepayment either by cash or by
466-18 renewal a refund credit in accordance with the provisions for
466-19 refunds contained in Subchapter H, Chapter 342, Finance Code [3A,
466-20 Title 79, Revised Statutes], and the regulations issued under that
466-21 article. Where the amount of the credit for anticipation of
466-22 payments is less than $1, no refund need be made.
466-23 SECTION 7.77. Article 24.17(a), Insurance Code, is amended
466-24 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
466-25 Session, 1997, to read as follows:
466-26 (a) A premium finance agreement may provide for the payment
76R5 DWS-D 466
467-1 of a default charge by the insured as provided in Section 342.203,
467-2 Finance Code [Article 3A.303, Title 79, Revised Statutes], the
467-3 Insurance Code, and the regulations issued under those statutes.
467-4 SECTION 7.78. Article 24.20, Insurance Code, is amended to
467-5 conform to Chapter 1008, Acts of the 75th Legislature, Regular
467-6 Session, 1997, to read as follows:
467-7 Art. 24.20. AUTHORITY OF LICENSED LOCAL RECORDING AGENTS TO
467-8 CHARGE INTEREST TO CERTAIN PURCHASERS OF INSURANCE.
467-9 Notwithstanding any other provision of law, any person,
467-10 partnership, or corporation duly licensed as a local recording
467-11 agent under Article 21.14, Insurance Code, as amended, may enter
467-12 into or establish a written agreement with any purchaser of
467-13 insurance from the agent providing for the payment of interest to
467-14 the agent in an amount not to exceed the greater of a rate allowed
467-15 by Chapter 303, Finance Code [1D, Title 79, Revised Statutes], or
467-16 the rate of one percent a month, on any amount due and owing to the
467-17 agent for insurance purchased by the purchaser. In those instances
467-18 the claim or defense of usury is prohibited.
467-19 SECTION 7.79. Sections 105.001(13) and (14), Local
467-20 Government Code, are amended to conform to Chapter 1008, Acts of
467-21 the 75th Legislature, Regular Session, 1997, to read as follows:
467-22 (13) "State bank" has the meaning assigned by Section
467-23 31.002(a), Finance Code [1.002(a), Texas Banking Act].
467-24 (14) "State credit union" means a credit union
467-25 organized under Subtitle D, Title 3, Finance Code [the Texas Credit
467-26 Union Act (Article 2461-1.01 et seq., Vernon's Texas Civil
76R5 DWS-D 467
468-1 Statutes)].
468-2 SECTION 7.80. Section 143.1215(c), Local Government Code, is
468-3 amended to conform to Chapter 1008, Acts of the 75th Legislature,
468-4 Regular Session, 1997, to read as follows:
468-5 (c) Interest under Subsection (b) accrues beginning on the
468-6 date of the fire fighter's or police officer's reinstatement at a
468-7 rate equal to three percent plus the rate for court judgments under
468-8 Chapter 304, Finance Code [1E, Title 79, Revised Statutes], that is
468-9 in effect on the date of the person's reinstatement.
468-10 SECTION 7.81. Section 211.0035, Local Government Code, is
468-11 amended to conform to Chapter 1008, Acts of the 75th Legislature,
468-12 Regular Session, 1997, to read as follows:
468-13 Sec. 211.0035. ZONING REGULATIONS AND DISTRICT BOUNDARIES
468-14 APPLICABLE TO PAWNSHOPS. (a) In this section, "pawnshop" has the
468-15 meaning assigned by Section 371.003, Finance Code [2, Texas
468-16 Pawnshop Act (Article 5069-51.02, Vernon's Texas Civil Statutes)].
468-17 (b) For the purposes of zoning regulation and determination
468-18 of zoning district boundaries, the governing body of a municipality
468-19 shall designate pawnshops that have been licensed to transact
468-20 business by the Consumer Credit Commissioner under Chapter 371,
468-21 Finance Code, [the Texas Pawnshop Act (Article 5069-51.01 et seq.,
468-22 Vernon's Texas Civil Statutes)] as a permitted use in one or more
468-23 zoning classifications.
468-24 (c) The governing body of a municipality may not impose a
468-25 specific use permit requirement or any requirement similar in
468-26 effect to a specific use permit requirement on a pawnshop that has
76R5 DWS-D 468
469-1 been licensed to transact business by the Consumer Credit
469-2 Commissioner under Chapter 371, Finance Code [the Texas Pawnshop
469-3 Act (Article 5069-51.01 et seq., Vernon's Texas Civil Statutes)].
469-4 SECTION 7.82. Section 395.025(d), Local Government Code, is
469-5 amended to conform to Chapter 1008, Acts of the 75th Legislature,
469-6 Regular Session, 1997, to read as follows:
469-7 (d) Any refund shall bear interest calculated from the date
469-8 of collection to the date of refund at the statutory rate as set
469-9 forth in Section 302.002, Finance Code [Article 1C.002, Title 79,
469-10 Revised Statutes], or its successor statute.
469-11 SECTION 7.83. Section 32.35(a)(5), Penal Code, is amended to
469-12 conform to Chapter 1008, Acts of the 75th Legislature, Regular
469-13 Session, 1997, to read as follows:
469-14 (5) "Creditor" means a person licensed under Chapter
469-15 342, Finance Code [3A, Subtitle 2, Title 79, Revised Statutes], a
469-16 bank, savings and loan association, credit union, or other
469-17 regulated financial institution that lends money or otherwise
469-18 extends credit to a cardholder through a credit card and that
469-19 authorizes other persons to honor the credit card.
469-20 SECTION 7.84. Section 41.006(a), Property Code, is amended
469-21 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
469-22 Session, 1997, to read as follows:
469-23 (a) Except as provided by Subsection (c), any sale or
469-24 purported sale in whole or in part of a homestead at a fixed
469-25 purchase price that is less than the appraised fair market value of
469-26 the property at the time of the sale or purported sale, and in
76R5 DWS-D 469
470-1 connection with which the buyer of the property executes a lease of
470-2 the property to the seller at lease payments that exceed the fair
470-3 rental value of the property, is considered to be a loan with all
470-4 payments made from the seller to the buyer in excess of the sales
470-5 price considered to be interest subject to Title 4, Finance Code
470-6 [79, Revised Statutes (Article 5069-1.01 et seq., Vernon's Texas
470-7 Civil Statutes)].
470-8 SECTION 7.85. Section 73.003(c), Property Code, is amended
470-9 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
470-10 Session, 1997, to read as follows:
470-11 (c) This section does not affect the provisions of
470-12 Subchapter B, Chapter 59, Finance Code [8, Texas Banking Act
470-13 (Article 342-8.101 et seq., Vernon's Texas Civil Statutes)].
470-14 SECTION 7.86. Section 74.101(a), Property Code, is amended
470-15 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
470-16 Session, 1997, to read as follows:
470-17 (a) Each holder who on June 30 holds property that is
470-18 presumed abandoned under Chapter 72, 73, or 75 of this code [,] or
470-19 under Chapter 154, Finance Code [512, Acts of the 54th Legislature,
470-20 1955 (Article 548b, Vernon's Texas Civil Statutes)], shall file a
470-21 report of that property on or before the following November 1. The
470-22 comptroller may require the report to be in a particular format,
470-23 including a format that can be read by a computer.
470-24 SECTION 7.87. Section 221.024(a), Property Code, is amended
470-25 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
470-26 Session, 1997, to read as follows:
76R5 DWS-D 470
471-1 (a) The commission may prescribe and publish forms and adopt
471-2 rules necessary to carry out the provisions of this chapter and may
471-3 suspend or revoke the registration of any seller if, after notice
471-4 and hearing, the commission determines that a seller has materially
471-5 violated this chapter, the Deceptive Trade Practices-Consumer
471-6 Protection Act (Subchapter E, Chapter 17, Business & Commerce
471-7 Code), or the Contest and Gift Giveaway Act (Chapter 40, Business
471-8 & Commerce Code [S.B. No. 1695, Acts of the 71st Legislature,
471-9 1989]). The commission may bring suit in a district court of
471-10 Travis County, Texas, to enjoin a violation of this Act or for any
471-11 other relief as the court may deem appropriate.
471-12 SECTION 7.88. Section 11.02(b), Tax Code, is amended to
471-13 conform to Chapter 1008, Acts of the 75th Legislature, Regular
471-14 Session, 1997, to read as follows:
471-15 (b) Intangible [property of a transportation business listed
471-16 in Subchapter A, Chapter 24 of this code, and intangible] property
471-17 governed by Article 4.01, Insurance Code, or by Section 89.003,
471-18 Finance Code, is [11.09, Texas Savings and Loan Act, are] taxable
471-19 as provided by law, unless exempt by law, if this state has
471-20 jurisdiction to tax those intangibles.
471-21 SECTION 7.89. Section 21.08(b), Tax Code, is amended to
471-22 conform to Chapter 1008, Acts of the 75th Legislature, Regular
471-23 Session, 1997, to read as follows:
471-24 (b) The taxable situs of intangible property owned by a
471-25 savings and loan association is determined as provided by Section
471-26 89.003, Finance Code [11.09, Texas Savings and Loan Act].
76R5 DWS-D 471
472-1 SECTION 7.90. Section 23.16, Tax Code, is amended to conform
472-2 to Chapter 1008, Acts of the 75th Legislature, Regular Session,
472-3 1997, to read as follows:
472-4 Sec. 23.16. INTANGIBLES OF A SAVINGS AND LOAN ASSOCIATION.
472-5 Intangible property owned by a savings and loan association is
472-6 appraised as provided by Section 89.003, Finance Code [11.09, Texas
472-7 Savings and Loan Act].
472-8 SECTION 7.91. Sections 32.065(d) and (e), Tax Code, are
472-9 amended to conform to Chapter 1008, Acts of the 75th Legislature,
472-10 Regular Session, 1997, to read as follows:
472-11 (d) Chapters 342 [3A] and 346, Finance Code, [15] and
472-12 Section 302.102, Finance Code [Article 1C.102, Title 79, Revised
472-13 Statutes], do not apply to a transaction covered by this section.
472-14 The transferee of a tax lien under this section is not required to
472-15 obtain a license under Title 4, Finance Code [79, Revised Statutes
472-16 (Article 5069-1.01 et seq., Vernon's Texas Civil Statutes)].
472-17 (e) If in a contract under this section a person contracts
472-18 for, charges, or receives a rate or amount of interest that exceeds
472-19 the rate or amount allowed by this section, the amount of the
472-20 penalty for which the person is obligated is determined in the
472-21 manner provided by Chapter 349, Finance Code [8, Title 79, Revised
472-22 Statutes (Article 5069-8.01 et seq., Vernon's Texas Civil
472-23 Statutes)].
472-24 SECTION 7.92. Section 171.001(b)(1), Tax Code, is amended to
472-25 conform to Chapter 1008, Acts of the 75th Legislature, Regular
472-26 Session, 1997, to read as follows:
76R5 DWS-D 472
473-1 (1) "Banking corporation" means each state, national,
473-2 domestic, or foreign bank, including a limited banking association,
473-3 as defined by Section 31.002(a), Finance Code [1.002(a), Texas
473-4 Banking Act], and each bank organized under Section 25(a), Federal
473-5 Reserve Act (12 U.S.C. Secs. 611-631) (edge corporations), but does
473-6 not include a bank holding company as that term is defined by
473-7 Section 2, Bank Holding Company Act of 1956 (12 U.S.C. Sec. 1841).
473-8 SECTION 7.93. Section 171.077, Tax Code, is amended to
473-9 conform to Chapter 1008, Acts of the 75th Legislature, Regular
473-10 Session, 1997, to read as follows:
473-11 Sec. 171.077. EXEMPTION--CREDIT UNION. A credit union
473-12 incorporated under Subtitle D, Title 3, Finance Code, [the Texas
473-13 Credit Union Act (Article 2461-1.01 et seq., Vernon's Texas Civil
473-14 Statutes)] is exempted from the franchise tax.
473-15 SECTION 7.94. Section 171.1031(c), Tax Code, is amended to
473-16 conform to Chapter 1008, Acts of the 75th Legislature, Regular
473-17 Session, 1997, to read as follows:
473-18 (c) To the extent that this subsection is not preempted by
473-19 federal law, the Texas Department of Banking is required to appoint
473-20 a conservator under Subchapter B, Chapter 35, Finance Code [6,
473-21 Texas Banking Act], to pay the franchise tax of any banking
473-22 corporation certified by the Comptroller as being delinquent in the
473-23 payment of its franchise tax.
473-24 SECTION 7.95. Section 171.317(a), Tax Code, is amended to
473-25 conform to Chapter 1008, Acts of the 75th Legislature, Regular
473-26 Session, 1997, to read as follows:
76R5 DWS-D 473
474-1 (a) Except as prohibited by Subtitle B, Title 3, Finance
474-2 Code [the Texas Savings and Loan Act (Article 852a, Vernon's Texas
474-3 Civil Statutes)], the Savings and Loan Commissioner shall revoke
474-4 the charter of a savings and loan association that the comptroller
474-5 certifies is delinquent in the payment of the tax imposed under
474-6 this chapter.
474-7 SECTION 7.96. Section 26.342(7), Water Code, is amended to
474-8 conform to Chapter 1008, Acts of the 75th Legislature, Regular
474-9 Session, 1997, to read as follows:
474-10 (7) "Lender" means:
474-11 (A) a state or national bank;
474-12 (B) a state or federal savings and loan
474-13 association or savings bank;
474-14 (C) a credit union;
474-15 (D) a state or federal agency that customarily
474-16 provides financing; or
474-17 (E) an entity that is registered with the Office
474-18 of Consumer Credit Commissioner pursuant to Chapter 348, Finance
474-19 Code [7, Title 79, Revised Statutes (Article 5069-7.01 et seq.,
474-20 Vernon's Texas Civil Statutes)], if the entity is regularly engaged
474-21 in the business of extending credit and if extending credit
474-22 represents the majority of the entity's total business activity.
474-23 SECTION 7.97. Section 35-1, The Securities Act (Article
474-24 581-35-1, Vernon's Texas Civil Statutes), is amended to conform to
474-25 Chapter 1008, Acts of the 75th Legislature, Regular Session, 1997,
474-26 to read as follows:
76R5 DWS-D 474
475-1 Sec. 35-1. FEES FOR SALES OF EXCESS SECURITIES. A. An
475-2 offeror who sells securities in this State in excess of the
475-3 aggregate amount of securities registered for the offering may
475-4 apply to register the excess securities by paying three times the
475-5 difference between the initial fee paid and the fee required under
475-6 Subsection E of Section 35, plus, if the registration is no longer
475-7 in effect, interest on that amount computed at the rate provided by
475-8 Section 302.002, Finance Code [Article 1C.002, Title 79, Revised
475-9 Statutes], from the date the registration was no longer in effect
475-10 until the date the subsequent application is filed, for the
475-11 securities sold to persons within this State, plus the amendment
475-12 fee prescribed by Subsection D of Section 35. Registration of
475-13 the excess securities, if granted, shall be effective retroactively
475-14 to the effective date of the initial registration for the offering.
475-15 B. An offeror who has filed a notice to claim a limited
475-16 offering exemption, who paid less than the maximum fee prescribed
475-17 in Subsection J of Section 35, and who offered a greater amount of
475-18 securities in the offering than authorized pursuant to the formula
475-19 prescribed in Subsection J of Section 35, may file an amended
475-20 notice disclosing the amount of securities offered and paying three
475-21 times the difference between the fee initially paid and the fee
475-22 which should have been paid, plus interest on that amount computed
475-23 at the rate provided by Section 302.002, Finance Code [Article
475-24 1C.002, Title 79, Revised Statutes], from the date the original
475-25 notice was received by the Commissioner until the date the amended
475-26 notice is received by the Commissioner. The amended notice shall
76R5 DWS-D 475
476-1 be retroactive to the date of the initial filing.
476-2 SECTION 7.98. Section 35-2, The Securities Act (Article
476-3 581-35-2, Vernon's Texas Civil Statutes), is amended to conform to
476-4 Chapter 1008, Acts of the 75th Legislature, Regular Session, 1997,
476-5 to read as follows:
476-6 Sec. 35-2. FEES FOR SALES OF UNREGISTERED SECURITIES. If,
476-7 after notice and hearing, the commissioner or any court of
476-8 competent jurisdiction finds that an offeror has sold securities in
476-9 this State pursuant to an offering no part of which has been
476-10 registered under Section 7 or 10 of this Act and for which the
476-11 transactions or securities are not exempt under Section 5 or 6 of
476-12 this Act, the commissioner or said court may impose a fee equal to
476-13 six times the amount that would have been paid if the issuer had
476-14 filed an application to register the securities and paid the fee
476-15 prescribed by Subsection E of Section 35 based on the aggregate
476-16 amount of sales made in this State within the prior three years,
476-17 plus interest on that amount at the rate provided by Section
476-18 302.002, Finance Code, [Article 1C.002, Title 79, Revised
476-19 Statutes,] from the date of the first such sale made in this State
476-20 until the date the fee is paid. The payment of the fee prescribed
476-21 by this Section does not effect registration of the securities or
476-22 affect the application of any other Section of this Act. The
476-23 payment of the fee prescribed by this Section is not an admission
476-24 that the transactions or securities were not exempt and is not
476-25 admissible as evidence in a suit or proceeding for failure to
476-26 register the securities.
76R5 DWS-D 476
477-1 SECTION 7.99. Article 2.09A, Texas Miscellaneous Corporation
477-2 Laws Act (Article 1302-2.09A, Vernon's Texas Civil Statutes), is
477-3 amended to conform to Chapter 1008, Acts of the 75th Legislature,
477-4 Regular Session, 1997, to read as follows:
477-5 Art. 2.09A. ALTERNATIVE RATE. Notwithstanding the
477-6 provisions of Article 2.09 of this Act, any corporation, domestic
477-7 or foreign, including but not limited to any charitable or
477-8 religious corporation, may agree to and stipulate for any rate of
477-9 interest that does not exceed a rate authorized by Chapter 303,
477-10 Finance Code [1D, Title 79, Revised Statutes].
477-11 SECTION 7.100. Article 7.06(2), Texas Miscellaneous
477-12 Corporation Laws Act (Article 1302-7.06, Vernon's Texas Civil
477-13 Statutes), is amended to conform to Chapter 1008, Acts of the 75th
477-14 Legislature, Regular Session, 1997, to read as follows:
477-15 (2) "Corporation" means:
477-16 (a) Any corporation, association, or other
477-17 organization incorporated or organized under the Texas Business
477-18 Corporation Act, the Texas Non-Profit Corporation Act (Article
477-19 1396-1.01 et seq., Vernon's Texas Civil Statutes), Subtitle A, B,
477-20 C, or D, Title 3, Finance Code, [the Texas Banking Act (Article
477-21 342-1.001 et seq., Vernon's Texas Civil Statutes)] or a predecessor
477-22 of that law [Act], Chapter 181, Finance Code, [the Texas Trust
477-23 Company Act] or a predecessor of that law [Act], the Insurance
477-24 Code, [the Texas Savings and Loan Act (Article 852a, Vernon's Texas
477-25 Civil Statutes),] Chapter 76, Acts of the 43rd Legislature, 1st
477-26 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
76R5 DWS-D 477
478-1 Statutes), [the Texas Credit Union Act (Article 2461-1.01 et seq.,
478-2 Vernon's Texas Civil Statutes),] the Cooperative Association Act
478-3 (Article 1396-50.01, Vernon's Texas Civil Statutes), Articles 1399
478-4 through 1407, Revised Statutes, Article 1448, Revised Statutes,
478-5 Section 2, Chapter 42, Acts of the 42nd Legislature, 3rd Called
478-6 Session, 1932 (Article 1524c, Vernon's Texas Civil Statutes), the
478-7 State Housing Law (Article 1528a, Vernon's Texas Civil Statutes),
478-8 the Electric Cooperative Corporation Act (Article 1528b, Vernon's
478-9 Texas Civil Statutes), the Telephone Cooperative Act (Article
478-10 1528c, Vernon's Texas Civil Statutes), the Automobile Club Services
478-11 Act (Article 1528d, Vernon's Texas Civil Statutes), the Texas
478-12 Professional Corporation Act (Article 1528e, Vernon's Texas Civil
478-13 Statutes), the Texas Professional Association Act (Article 1528f,
478-14 Vernon's Texas Civil Statutes), the Texas Mutual Trust Investment
478-15 Company Act (Article 1528i, Vernon's Texas Civil Statutes), Chapter
478-16 221, Health and Safety Code, the Texas Transportation Corporation
478-17 Act (Article 1528l, Vernon's Texas Civil Statutes), the Cultural
478-18 Education Facilities Corporation Act (Article 1528m, Vernon's Texas
478-19 Civil Statutes), Chapter 262, Health and Safety Code, Chapter 264,
478-20 Health and Safety Code, Title 4, Agriculture Code, Subchapter A,
478-21 Chapter 301, Health and Safety Code, Subchapter B, Chapter 301,
478-22 Health and Safety Code, or the Higher Education Authority Act,
478-23 Chapter 53, Education Code;
478-24 (b) Any corporation, association, or other
478-25 organization incorporated or organized under the laws of this state
478-26 that is governed in whole or in part by the Texas Business
76R5 DWS-D 478
479-1 Corporation Act, the Texas Non-Profit Corporation Act (Article
479-2 1396-1.01 et seq., Vernon's Texas Civil Statutes), or the Texas
479-3 Miscellaneous Corporation Laws Act (Article 1302-1.01 et seq.,
479-4 Vernon's Texas Civil Statutes); or
479-5 (c) To the extent permitted by federal law, any
479-6 federally chartered bank, savings and loan association, or credit
479-7 union.
479-8 SECTION 7.101. Section 1.04(c), Texas Revised Partnership
479-9 Act (Article 6132b-1.04, Vernon's Texas Civil Statutes), is amended
479-10 to conform to Chapter 1008, Acts of the 75th Legislature, Regular
479-11 Session, 1997, to read as follows:
479-12 (c) Interest Rate. If an obligation to pay interest arises
479-13 under this Act and the rate is not specified, the rate is the rate
479-14 specified by Section 302.002, Finance Code [Article 1C.002, Title
479-15 79, Revised Statutes], or a successor statute.
479-16 SECTION 7.102. Section 1(a), Chapter 617, Acts of the 68th
479-17 Legislature, Regular Session, 1983 (Article 9022, Vernon's Texas
479-18 Civil Statutes), is amended to conform to Chapter 1008, Acts of the
479-19 75th Legislature, Regular Session, 1997, to read as follows:
479-20 (a) The holder of a check or its assignee, agent,
479-21 representative, or any other person retained by the holder to seek
479-22 collection of the face value of the dishonored check on return of
479-23 the check to the holder following its dishonor by a payor may
479-24 charge the drawer or endorser a reasonable processing fee, which
479-25 shall not exceed $25. A person may not charge a processing fee to
479-26 a drawer or endorser under this subsection if the fee has been
76R5 DWS-D 479
480-1 collected under Article 102.007(e) or Article 102.0071, Code of
480-2 Criminal Procedure. If a processing fee has been collected under
480-3 this subsection and the holder subsequently receives a fee
480-4 collected under Article 102.007(e) or Article 102.0071, Code of
480-5 Criminal Procedure, the holder shall immediately refund the fee
480-6 previously collected from the drawer or endorser. Notwithstanding
480-7 any other provisions of law, a loan agreement made under Chapter
480-8 342, Finance Code [3A, Title 79, Revised Statutes], may provide
480-9 that on return of a dishonored check given in payment under the
480-10 agreement, the holder may charge the obligor under the agreement
480-11 the processing fee authorized by this Act, and the fee may be added
480-12 to the unpaid balance owed under the agreement, except that
480-13 interest may not be charged on the fee during the term of the
480-14 agreement.
480-15 ARTICLE 8. CHANGES RELATING TO GOVERNMENT CODE
480-16 SECTION 8.01. Section 305.005(d), Government Code, which
480-17 requires the deposit in the state ethics fund of fees collected for
480-18 lobbyist registration, is repealed to conform to the abolishment of
480-19 that fund by Chapter 1037, Acts of the 75th Legislature, Regular
480-20 Session, 1997.
480-21 SECTION 8.02. Section 317.005(e), Government Code, is
480-22 amended to correct a citation to the General Appropriations Act to
480-23 read as follows:
480-24 (e) Neither the governor nor the board may adopt an order
480-25 under this section:
480-26 (1) expressly postponing the time, whether set by
76R5 DWS-D 480
481-1 appropriations act or general law, that an appropriation is
481-2 distributed or otherwise made available to a state agency, for a
481-3 period that exceeds 180 days;
481-4 (2) reducing or eliminating an appropriation for the
481-5 salary of an elected state official or a member of a board or
481-6 commission appointed by the governor; or
481-7 (3) reducing or eliminating an appropriation to a
481-8 state agency that receives appropriations under the article
481-9 [Article VI] of the General Appropriations Act that makes
481-10 appropriations to the legislative branch.
481-11 SECTION 8.03. (a) Section 403.026, Government Code, as
481-12 added by Section 76, Chapter 1035, Acts of the 75th Legislature,
481-13 Regular Session, 1997, is repealed because it is substantively
481-14 identical to Section 403.026, Government Code, as added by Section
481-15 61, Chapter 1040, Acts of the 75th Legislature, Regular Session,
481-16 1997.
481-17 (b) Section 76, Chapter 1035, Acts of the 75th Legislature,
481-18 Regular Session, 1997, is repealed.
481-19 SECTION 8.04. Section 403.302(d), Government Code, as
481-20 amended by Section 44, Chapter 1039, Section 63, Chapter 1040, and
481-21 Section 27, Chapter 1071, Acts of the 75th Legislature, Regular
481-22 Session, 1997, is reenacted to read as follows:
481-23 (d) For the purposes of this section, "taxable value" means
481-24 the market value of all taxable property less:
481-25 (1) the total dollar amount of any residence homestead
481-26 exemptions lawfully granted under Section 11.13(b) or (c), Tax
76R5 DWS-D 481
482-1 Code, in the year that is the subject of the study for each school
482-2 district;
482-3 (2) the total dollar amount of any exemptions granted
482-4 before May 31, 1993, within a reinvestment zone under agreements
482-5 authorized by Chapter 312, Tax Code;
482-6 (3) the total dollar amount of any captured appraised
482-7 value of property that is located in a reinvestment zone on August
482-8 31, 1999, generates a tax increment paid into a tax increment fund,
482-9 and is eligible for tax increment financing under Chapter 311, Tax
482-10 Code, under a reinvestment zone financing plan approved under
482-11 Section 311.011(d), Tax Code, before September 1, 1999;
482-12 (4) the total dollar amount of any exemptions granted
482-13 under Section 11.251, Tax Code;
482-14 (5) the difference between the comptroller's estimate
482-15 of the market value and the productivity value of land that
482-16 qualifies for appraisal on the basis of its productive capacity,
482-17 except that the productivity value estimated by the comptroller may
482-18 not exceed the fair market value of the land;
482-19 (6) the portion of the appraised value of residence
482-20 homesteads of the elderly on which school district taxes are not
482-21 imposed in the year that is the subject of the study, calculated as
482-22 if the residence homesteads were appraised at the full value
482-23 required by law;
482-24 (7) a portion of the market value of property not
482-25 otherwise fully taxable by the district at market value because of
482-26 action required by statute or the constitution of this state that,
76R5 DWS-D 482
483-1 if the tax rate adopted by the district is applied to it, produces
483-2 an amount equal to the difference between the tax that the district
483-3 would have imposed on the property if the property were fully
483-4 taxable at market value and the tax that the district is actually
483-5 authorized to impose on the property, if this subsection does not
483-6 otherwise require that portion to be deducted;
483-7 (8) the market value of all tangible personal
483-8 property, other than manufactured homes, owned by a family or
483-9 individual and not held or used for the production of income;
483-10 (9) the appraised value of property the collection of
483-11 delinquent taxes on which is deferred under Section 33.06, Tax
483-12 Code;
483-13 (10) the portion of the appraised value of property
483-14 the collection of delinquent taxes on which is deferred under
483-15 Section 33.065, Tax Code; and
483-16 (11) the amount by which the market value of a
483-17 residence homestead to which Section 23.23, Tax Code, applies
483-18 exceeds the appraised value of that property as calculated under
483-19 that section.
483-20 SECTION 8.05. Section 404.024(a), Government Code, as
483-21 amended by Chapters 891, 1311, and 1423, Acts of the 75th
483-22 Legislature, Regular Session, 1997, is reenacted and amended to
483-23 read as follows:
483-24 (a) The comptroller [board] may determine and designate the
483-25 amount of state funds to be deposited in time deposits in state
483-26 depositories. [The comptroller shall recommend to the board a
76R5 DWS-D 483
484-1 maximum limit for state funds deposited by the comptroller at
484-2 approved state depositories.] The percentage of state funds to be
484-3 deposited in state depositories shall be based on the interest
484-4 rates available in competing investments, the demand for funds from
484-5 Texas banks, and the state's liquidity requirements. [The
484-6 comptroller shall provide periodic investment reports to the
484-7 board.]
484-8 SECTION 8.06. Section 411.114(a)(2), Government Code, as
484-9 amended by Chapters 648 and 664, Acts of the 75th Legislature,
484-10 Regular Session, 1997, is amended to properly letter subdivisions
484-11 to read as follows:
484-12 (2) The Department of Protective and Regulatory
484-13 Services shall obtain from the department criminal history record
484-14 information maintained by the department that relates to a person
484-15 who is:
484-16 (A) an applicant for a license, registration, or
484-17 certification under Chapter 42, Human Resources Code, or a person
484-18 who registers with or has been issued a certificate to operate
484-19 under accreditation by the Department of Protective and Regulatory
484-20 Services under Subchapter E, Chapter 42, Human Resources Code;
484-21 (B) an owner or employee of or an applicant for
484-22 employment by a child-care facility or family home licensed,
484-23 registered, or certified under Chapter 42, Human Resources Code, or
484-24 by a child-care facility or child-placing agency that is seeking to
484-25 register with or has been issued a certificate to operate under
484-26 accreditation by the Department of Protective and Regulatory
76R5 DWS-D 484
485-1 Services under Subchapter E, Chapter 42, Human Resources Code;
485-2 (C) a resident of a registered family home, but
485-3 not a child in the home's care or a parent of the child;
485-4 (D) an applicant for a position with the
485-5 Department of Protective and Regulatory Services, the duties of
485-6 which include direct delivery of protective services to children,
485-7 elderly persons, or persons with a disability;
485-8 (E) an employee of, an applicant for employment
485-9 with, or a volunteer or an applicant volunteer with a business
485-10 entity or person that contracts with the Department of Protective
485-11 and Regulatory Services to provide direct delivery of protective
485-12 services to children, elderly persons, or persons with a
485-13 disability, if the person's duties or responsibilities include
485-14 direct contact with children, elderly persons, or persons with a
485-15 disability;
485-16 (F) a volunteer or applicant volunteer with the
485-17 Department of Protective and Regulatory Services;
485-18 (G) a person providing or applying to provide
485-19 adoptive or foster care for children in the care of the Department
485-20 of Protective and Regulatory Services and other adults living with
485-21 that person in the residence in which the child will reside;
485-22 (H) a Department of Protective and Regulatory
485-23 Services employee who is engaged in the direct delivery of
485-24 protective services to children, elderly persons, or persons with a
485-25 disability;
485-26 (I) a person who is the subject of a report the
76R5 DWS-D 485
486-1 department receives alleging that the person has abused or
486-2 neglected a child, an elderly person, or a person with a
486-3 disability, provided that report has proven to have merit;
486-4 (J) a relative providing or applying to provide
486-5 in-home care for a child in the care of the Department of
486-6 Protective and Regulatory Services and other adults living with
486-7 that relative in the residence in which the child will reside; [or]
486-8 (K) a person providing child care for a child
486-9 who is in the care of the Department of Protective and Regulatory
486-10 Services and who is or will be receiving adoptive, foster, or
486-11 in-home care;[.]
486-12 (L) [(Q)] through a contract with a nonprofit
486-13 management center, an employee of, an applicant for employment
486-14 with, or a volunteer or an applicant volunteer with a nonprofit,
486-15 tax-exempt organization that provides any service that involves the
486-16 care of or access to children, elderly persons, or persons with a
486-17 disability;[.]
486-18 (M) [(Q)] an operator of a child-care facility
486-19 or child-placing agency that is seeking to register with or has
486-20 been issued a certificate to operate under accreditation by the
486-21 Department of Protective and Regulatory Services under Subchapter
486-22 E, Chapter 42, Human Resources Code, subject to Section 42.105,
486-23 Human Resources Code; or
486-24 (N) [(R)] a child-care administrator seeking
486-25 accreditation as provided by Section 43.003, Human Resources Code.
486-26 SECTION 8.07. Section 413.009(a), Government Code, as
76R5 DWS-D 486
487-1 amended by Chapters 298 and 445, Acts of the 75th Legislature,
487-2 Regular Session, 1997, is amended to properly number subdivisions
487-3 to read as follows:
487-4 (a) To accomplish its duties the policy council shall:
487-5 (1) conduct an in-depth analysis of the criminal
487-6 justice system;
487-7 (2) determine the long-range needs of the criminal
487-8 justice system and recommend policy priorities for the system;
487-9 (3) identify critical problems in the criminal justice
487-10 system and recommend strategies to solve those problems;
487-11 (4) assess the cost-effectiveness of the use of state
487-12 and local funds in the criminal justice system;
487-13 (5) recommend means to improve the deterrent and
487-14 rehabilitative capabilities of the criminal justice system;
487-15 (6) advise and assist the legislature in developing
487-16 plans, programs, and proposed legislation for improving the
487-17 effectiveness of the criminal justice system;
487-18 (7) evaluate the rehabilitative capabilities of a
487-19 state-administered sex offender treatment program and, based on
487-20 that evaluation, determine if the program is necessary;
487-21 (8) make computations of daily costs and compare
487-22 interagency costs on services provided by agencies that are a part
487-23 of the criminal justice system;
487-24 (9) make population computations for use in planning
487-25 for the long-range needs of the criminal justice system;
487-26 (10) determine long-range information needs of the
76R5 DWS-D 487
488-1 criminal justice system and acquire that information;
488-2 (11) engage in other activities consistent with the
488-3 responsibilities of the policy council; and
488-4 (12) [(11)] cooperate with the Crime Victims'
488-5 Institute by providing information and assistance to the institute
488-6 relating to the improvement of crime victims' services.
488-7 SECTION 8.08. Section 420.003, Government Code, as amended
488-8 by Chapters 775 and 784, Acts of the 75th Legislature, Regular
488-9 Session, 1997, is amended to properly number subdivisions to read
488-10 as follows:
488-11 Sec. 420.003. DEFINITIONS. In this chapter:
488-12 (1) "Advocate" means a person who provides advocacy
488-13 services as an employee or volunteer of a sexual assault program.
488-14 (2) [(1)] "Program" means a sexual assault program.
488-15 (3) [(2)] "Service" means the Sexual Assault
488-16 Prevention and Crisis Service.
488-17 (4) [(3)] "Sexual assault" means any act or attempted
488-18 act as described by Section 21.11, 22.011, 22.021, or 25.02,
488-19 Penal Code.
488-20 (5) [(4)] "Sexual assault examiner" means a person who
488-21 uses a service-approved evidence collection kit and protocol to
488-22 collect and preserve evidence of a sexual assault or other sex
488-23 offense.
488-24 (6) [(5)] "Sexual assault nurse examiner" means a
488-25 registered nurse who has completed a service-approved examiner
488-26 training course.
76R5 DWS-D 488
489-1 (7) [(6)] "Sexual assault program" means any local
489-2 public or private nonprofit corporation, independent of a law
489-3 enforcement agency or prosecutor's office, that is operated as an
489-4 independent program or as part of a municipal, county, or state
489-5 agency and that provides the minimum services established by this
489-6 chapter.
489-7 (8) [(7)] "Survivor" means an individual who is a
489-8 victim of a sexual assault, regardless of whether a report or
489-9 conviction is made in the incident.
489-10 SECTION 8.09. Subchapter A, Chapter 496, Government Code, is
489-11 amended to conform more closely to the law from which it was
489-12 derived by adding Section 496.0032 to read as follows:
489-13 Sec. 496.0032. AGRICULTURAL LEASE. The board under terms
489-14 advantageous to the department may lease real property for use by
489-15 the department for agricultural purposes and lease fixtures and
489-16 appurtenances to the property.
489-17 SECTION 8.10. Section 501.014(e), Government Code, as
489-18 amended by Chapters 807 and 1409, Acts of the 75th Legislature,
489-19 Regular Session, 1997, is reenacted and amended to read as follows:
489-20 (e) On notification by a court, the department shall
489-21 withdraw from an inmate's trust fund account any amount the inmate
489-22 is ordered to pay by order of the court under this subsection. The
489-23 department shall make a payment under this subsection as ordered by
489-24 the court to either the court or the party specified in the court
489-25 order. The department is not liable for withdrawing or failing to
489-26 withdraw money or making payments or failing to make payments under
76R5 DWS-D 489
490-1 this subsection. The department shall make withdrawals and
490-2 payments from an inmate's trust fund account under this subsection
490-3 according to the following schedule of priorities:
490-4 (1) as payment in full for all orders for child
490-5 support;
490-6 (2) as payment in full for all orders for restitution;
490-7 (3) as payment in full for all orders for
490-8 reimbursement of the Texas Department of Human Services for
490-9 financial assistance provided for the child's health needs under
490-10 Chapter 31, Human Resources Code, to a child of the inmate;
490-11 (4) [(3)] as payment in full for all orders for court
490-12 fees and costs;
490-13 (5) [(4)] as payment in full for all orders for fines;
490-14 and
490-15 (6) [(5)] as payment in full for any other court
490-16 order, judgment, or writ.
490-17 SECTION 8.11. Section 531.024, Government Code, as amended
490-18 by Chapters 165 and 342, Acts of the 75th Legislature, Regular
490-19 Session, 1997, is amended to properly number subdivisions to read
490-20 as follows:
490-21 Sec. 531.024. PLANNING AND DELIVERY OF HEALTH AND HUMAN
490-22 SERVICES. The commissioner shall:
490-23 (1) facilitate and enforce coordinated planning and
490-24 delivery of health and human services, including:
490-25 (A) compliance with the coordinated strategic
490-26 plan;
76R5 DWS-D 490
491-1 (B) co-location of services;
491-2 (C) integrated intake; and
491-3 (D) coordinated referral and case management;
491-4 (2) develop with the Department of Information
491-5 Resources automation standards for computer systems to enable
491-6 health and human services agencies, including agencies operating at
491-7 a local level, to share pertinent data;
491-8 (3) establish and enforce uniform regional boundaries
491-9 for all health and human services agencies;
491-10 (4) carry out statewide health and human services
491-11 needs surveys and forecasting;
491-12 (5) perform independent special-outcome evaluations of
491-13 health and human services programs and activities; [and]
491-14 (6) at the request of a governmental entity identified
491-15 under Section 531.022(e), assist that entity in implementing a
491-16 coordinated plan that may include co-location of services,
491-17 integrated intake, and coordinated referral and case management and
491-18 is tailored to the needs and priorities of that entity; and[.]
491-19 (7) [(6)] promulgate uniform fair hearing rules for
491-20 all Medicaid-funded services.
491-21 SECTION 8.12. Section 571.030(b), Government Code, as
491-22 amended by Chapters 506, 507, and 1154, Acts of the 75th
491-23 Legislature, Regular Session, 1997, which limited uses of money in
491-24 the state ethics fund, is repealed to conform to the abolishment of
491-25 that fund by Chapter 1037, Acts of the 75th Legislature, Regular
491-26 Session, 1997.
76R5 DWS-D 491
492-1 SECTION 8.13. Section 571.091(a), Government Code, as
492-2 amended by Chapters 506, 507, and 1154, Acts of the 75th
492-3 Legislature, Regular Session, 1997, is amended to properly number
492-4 subdivisions to read as follows:
492-5 (a) The commission shall prepare a written opinion answering
492-6 the request of a person subject to any of the following laws for an
492-7 opinion about the application of any of these laws to the person in
492-8 regard to a specified existing or hypothetical factual situation:
492-9 (1) Chapter 302;
492-10 (2) Chapter 303;
492-11 (3) Chapter 305;
492-12 (4) Chapter 2004;
492-13 (5) [(4)] Chapter 572;
492-14 (6) [(4)] Subchapter C, Chapter 159, Local Government
492-15 Code, as provided by Section 571.061(a)(2);
492-16 (7) [(5)] Title 15, Election Code;
492-17 (8) [(6)] Chapter 36, Penal Code; or
492-18 (9) [(7)] Chapter 39, Penal Code.
492-19 SECTION 8.14. Section 601.002, Government Code, is amended
492-20 to more closely conform to the law from which it was derived to
492-21 read as follows:
492-22 Sec. 601.002. PERFORMANCE OF DUTIES BY FIRST ASSISTANT OR
492-23 CHIEF DEPUTY. (a) The first assistant or chief deputy of a public
492-24 office in which a physical vacancy occurs shall conduct the affairs
492-25 of the office until a successor qualifies for the office.
492-26 (b) The authority of a first assistant or chief deputy to
76R5 DWS-D 492
493-1 discharge the duties of an office under Subsection (a) ceases when
493-2 [on the earliest of:]
493-3 [(1) the time] the successor to the office qualifies
493-4 for the office.[;]
493-5 (c) If the vacancy occurs during a legislative session and
493-6 the successor to the office is subject to senate confirmation, the
493-7 authority of the first assistant or chief deputy to discharge the
493-8 duties of an office under Subsection (a) ceases on the earlier of:
493-9 (1) [(2)] the end of the last day of the [any] session
493-10 [of the legislature occurring during the vacancy if the successor
493-11 to the office is subject to senate confirmation]; or
493-12 (2) [(3)] the end of the 21st day after the day the
493-13 person began discharging the duties of the office [if the
493-14 legislature is in session on that day and the successor to the
493-15 office is subject to senate confirmation].
493-16 (d) [(c)] This section does not apply to a vacancy on a
493-17 board or commission.
493-18 SECTION 8.15. Section 821.001(7), Government Code, as
493-19 amended by Section 34, Chapter 260, Acts of the 74th Legislature,
493-20 Regular Session, 1995, and Section 1, Chapter 555, Acts of the 74th
493-21 Legislature, Regular Session, 1995, is reenacted to read as
493-22 follows:
493-23 (7) "Employer" means any agents or agencies in the
493-24 state responsible for public education, including the governing
493-25 board of any school district created under the laws of this state,
493-26 any county school board, the board of trustees, the board of
76R5 DWS-D 493
494-1 regents of any college or university, or any other legally
494-2 constituted board or agency of any public school, but excluding the
494-3 State Board of Education, the Texas Education Agency, and the State
494-4 Board for Educator Certification.
494-5 SECTION 8.16. Section 822.201(b), Government Code, as
494-6 amended by Chapters 330 and 1035, Acts of the 75th Legislature,
494-7 Regular Session, 1997, is amended to properly number subdivisions
494-8 to read as follows:
494-9 (b) "Salary and wages" as used in Subsection (a) means:
494-10 (1) normal periodic payments of money for service the
494-11 right to which accrues on a regular basis in proportion to the
494-12 service performed;
494-13 (2) amounts by which the member's salary is reduced
494-14 under a salary reduction agreement authorized by Chapter 610;
494-15 (3) amounts that would otherwise qualify as salary and
494-16 wages under Subdivision (1) but are not received directly by the
494-17 member pursuant to a good faith, voluntary written salary reduction
494-18 agreement in order to finance payments to a deferred compensation
494-19 or tax sheltered annuity program specifically authorized by state
494-20 law or to finance benefit options under a cafeteria plan qualifying
494-21 under Section 125 of the Internal Revenue Code of 1986 (26 U.S.C.
494-22 Section 125), if:
494-23 (A) the program or benefit options are made
494-24 available to all employees of the employer; and
494-25 (B) the benefit options in the cafeteria plan
494-26 are limited to one or more options that provide deferred
76R5 DWS-D 494
495-1 compensation, group health and disability insurance, group term
495-2 life insurance, dependent care assistance programs, or group legal
495-3 services plans; [and]
495-4 (4) performance pay awarded to an employee by a school
495-5 district as part of a total compensation plan approved by the board
495-6 of trustees of the district; and[.]
495-7 (5) [(4)] the benefit replacement pay a person earns
495-8 under Subchapter H, Chapter 659, as added by Chapter 417, Acts of
495-9 the 74th Legislature, 1995, except as provided by Subsection (c).
495-10 SECTION 8.17. Chapter 2057, Government Code, is repealed to
495-11 conform to the repeal of the law from which that chapter was
495-12 derived by Section 6(4), Chapter 963, Acts of the 73rd Legislature,
495-13 Regular Session, 1993.
495-14 SECTION 8.18. Section 2107.007(c), Government Code, is
495-15 amended to correct a reference to read as follows:
495-16 (c) A collection fee may not be retained from amounts
495-17 collected for the unemployment compensation fund established under
495-18 Subchapter B, Chapter 203, Labor Code [by Section 9, Texas
495-19 Unemployment Compensation Act (Article 5221b-7, Vernon's Texas
495-20 Civil Statutes)].
495-21 SECTION 8.19. Section 2166.003(a), Government Code, as
495-22 amended by Chapters 793 and 980, Acts of the 75th Legislature,
495-23 Regular Session, 1997, is amended to properly number subdivisions
495-24 to read as follows:
495-25 (a) Unless otherwise provided, this chapter does not apply
495-26 to:
76R5 DWS-D 495
496-1 (1) a project constructed by and for the Texas
496-2 Department of Transportation;
496-3 (2) a project constructed by and for a state
496-4 institution of higher education;
496-5 (3) a pen, shed, or ancillary building constructed by
496-6 and for the Department of Agriculture for the processing of
496-7 livestock before export;
496-8 (4) a project constructed by the Parks and Wildlife
496-9 Department;
496-10 (5) a repair or rehabilitation project, except a major
496-11 renovation, of buildings and grounds on the commission inventory;
496-12 (6) a repair and rehabilitation project of another
496-13 using agency, if all labor for the project is provided by the
496-14 regular maintenance force of the using agency under specific
496-15 legislative authorization and the project does not require the
496-16 advance preparation of working plans or drawings;
496-17 (7) a repair and rehabilitation project involving the
496-18 use of contract labor, if the project has been excluded from this
496-19 chapter by commission rule and does not require the advance
496-20 preparation of working plans or drawings; [or]
496-21 (8) an action taken by the Texas Natural Resource
496-22 Conservation Commission under Subchapter F or I, Chapter 361,
496-23 Health and Safety Code; or[.]
496-24 (9) [(8)] a repair, rehabilitation, or construction
496-25 project on property owned by the Texas Department of Housing and
496-26 Community Affairs or the Texas State Affordable Housing
76R5 DWS-D 496
497-1 Corporation.
497-2 SECTION 8.20. Section 2253.001(9), Government Code, is
497-3 amended to more accurately reflect the source law from which it was
497-4 derived to read as follows:
497-5 (9) "Subcontractor" means a person, firm, or
497-6 corporation that provides public work labor or material to fulfill
497-7 an obligation to a prime contractor or to a subcontractor
497-8 [contractor of the prime contractor] for the performance and
497-9 installation of any of the work required by a public work contract.
497-10 SECTION 8.21. Section 2256.004, Government Code, as amended
497-11 by Chapters 505 and 1421, Acts of the 75th Legislature, Regular
497-12 Session, 1997, is amended to properly number subdivisions to read
497-13 as follows:
497-14 Sec. 2256.004. APPLICABILITY. This subchapter does not
497-15 apply to:
497-16 (1) a public retirement system as defined by Section
497-17 802.001;
497-18 (2) state funds invested as authorized by Section
497-19 404.024;
497-20 (3) an institution of higher education having total
497-21 endowments of at least $95 million in book value on May 1, 1995;
497-22 (4) funds invested by the Veterans' Land Board as
497-23 authorized by Chapter 161, 162, or 164, Natural Resources Code;
497-24 [or]
497-25 (5) registry funds deposited with the county or
497-26 district clerk under Chapter 117, Local Government Code; or[.]
76R5 DWS-D 497
498-1 (6) [(5)] a deferred compensation plan that qualifies
498-2 under either Section 401(k) or 457 of the Internal Revenue Code of
498-3 1986 (26 U.S.C. Section 1 et seq.), as amended.
498-4 SECTION 8.22. Section 2306.028, Government Code, as added by
498-5 Section 1, Chapter 268, Acts of the 73rd Legislature, Regular
498-6 Session, 1993, is repealed because of the repeal of the source law
498-7 from which it was derived by Section 21, Chapter 725, Acts of the
498-8 73rd Legislature, Regular Session, 1993.
498-9 SECTION 8.23. (a) Section 2308.312, Government Code, is
498-10 amended to conform to Section 1, Chapter 611, Acts of the 74th
498-11 Legislature, Regular Session, 1995, to read as follows:
498-12 Sec. 2308.312. CAREER DEVELOPMENT CENTERS. (a) A board
498-13 shall establish career development centers accessible to students,
498-14 [and] workers, and persons formerly sentenced to the institutional
498-15 division or state jail division of the Texas Department of Criminal
498-16 Justice throughout the workforce development area. The board shall
498-17 establish the centers not later than the 180th day after the date
498-18 the board is certified.
498-19 (b) Each center shall provide access to information and
498-20 services available in the workforce development area, including
498-21 employment services, and shall address the individual needs of
498-22 students, [and] workers, and persons formerly sentenced to the
498-23 institutional division or state jail division.
498-24 (c) The services must include:
498-25 (1) labor market information, including:
498-26 (A) available job openings; and
76R5 DWS-D 498
499-1 (B) education and training opportunities in the
499-2 local area, in the state, and, as feasible, in the nation;
499-3 (2) uniform eligibility requirements and application
499-4 procedures for all workforce training and services;
499-5 (3) independent assessment of individual needs and the
499-6 development of an individual service strategy;
499-7 (4) centralized and continuous case management and
499-8 counseling;
499-9 (5) individual referral for services, including basic
499-10 education, classroom skills training, on-the-job training, and
499-11 customized training; [and]
499-12 (6) support services, including child care assistance,
499-13 student loans, and other forms of financial assistance required to
499-14 participate in and complete training; and
499-15 (7) job training and employment assistance for persons
499-16 formerly sentenced to the institutional division or state jail
499-17 division, provided in cooperation with Project RIO.
499-18 (b) Section 1, Chapter 611, Acts of the 74th Legislature,
499-19 Regular Session, 1995, is repealed.
499-20 ARTICLE 9. CHANGES RELATING TO CONCEALED HANDGUNS
499-21 SECTION 9.01. (a) Section 411.171(4), Government Code, is
499-22 amended to conform to Section 1, Chapter 1261, Acts of the 75th
499-23 Legislature, Regular Session, 1997, to read as follows:
499-24 (4) "Convicted" means an adjudication of guilt or an
499-25 order of deferred adjudication entered against a person by a court
499-26 of competent jurisdiction whether or not[:]
76R5 JMC-D 499
500-1 [(A)] the imposition of the sentence is
500-2 subsequently probated and the person is discharged from community
500-3 supervision. The term does not include an adjudication of guilt or
500-4 an order of deferred adjudication that has been subsequently:
500-5 (A) expunged; or
500-6 (B) pardoned under the authority of a state or
500-7 federal official[; or]
500-8 [(B) the person is pardoned for the offense,
500-9 unless the pardon is expressly granted for subsequent proof of
500-10 innocence].
500-11 (b) Section 1, Chapter 1261, Acts of the 75th Legislature,
500-12 Regular Session, 1997, is repealed.
500-13 SECTION 9.02. (a) Section 411.171(8), Government Code, is
500-14 repealed to conform to Section 31, Chapter 1261, Acts of the 75th
500-15 Legislature, Regular Session, 1997.
500-16 (b) Section 31, Chapter 1261, Acts of the 75th Legislature,
500-17 Regular Session, 1997, is repealed.
500-18 SECTION 9.03. (a) Section 411.172(a), Government Code, is
500-19 amended to conform to Section 2, Chapter 1261, and Section 21.44,
500-20 Chapter 1423, Acts of the 75th Legislature, Regular Session, 1997,
500-21 to read as follows:
500-22 (a) A person is eligible for a license to carry a concealed
500-23 handgun if the person:
500-24 (1) is a legal resident of this state for the
500-25 six-month period preceding the date of application under this
500-26 subchapter or is otherwise eligible for a license under Section
76R5 JMC-D 500
501-1 411.173(a);
501-2 (2) is at least 21 years of age;
501-3 (3) has not been convicted of a felony;
501-4 (4) is not charged with the commission of a Class A or
501-5 Class B misdemeanor or an offense under Section 42.01, Penal Code,
501-6 or of a felony under an information or indictment;
501-7 (5) is not a fugitive from justice for a felony or a
501-8 Class A or Class B misdemeanor;
501-9 (6) is not a chemically dependent person;
501-10 (7) is not incapable of exercising sound judgment with
501-11 respect to the proper use and storage of a handgun [a person of
501-12 unsound mind];
501-13 (8) has not, in the five years preceding the date of
501-14 application, been convicted of a Class A or Class B misdemeanor or
501-15 an offense under Section 42.01, Penal Code;
501-16 (9) is fully qualified under applicable federal and
501-17 state law to purchase a handgun;
501-18 (10) has not been finally determined to be delinquent
501-19 in making a child support payment administered or collected by the
501-20 attorney general;
501-21 (11) has not been finally determined to be delinquent
501-22 in the payment of a tax or other money collected by the
501-23 comptroller, the tax collector of a political subdivision of the
501-24 state, or any agency or subdivision of the state;
501-25 (12) has not been finally determined to be in default
501-26 on a loan made under Chapter 57, Education Code;
76R5 JMC-D 501
502-1 (13) is not currently restricted under a court
502-2 protective order or subject to a restraining order affecting the
502-3 spousal relationship, other than a restraining order solely
502-4 affecting property interests;
502-5 (14) has not, in the 10 years preceding the date of
502-6 application, been adjudicated as having engaged in delinquent
502-7 conduct violating a penal law of the grade of felony; and
502-8 (15) has not made any material misrepresentation, or
502-9 failed to disclose any material fact, in an application submitted
502-10 pursuant to Section 411.174 or in a request for application
502-11 submitted pursuant to Section 411.175.
502-12 (b) Section 2, Chapter 1261, and Section 21.44, Chapter
502-13 1423, Acts of the 75th Legislature, Regular Session, 1997, are
502-14 repealed.
502-15 SECTION 9.04. (a) Section 411.172, Government Code, is
502-16 amended to conform to Section 3, Chapter 1261, Acts of the 75th
502-17 Legislature, Regular Session, 1997, by adding Subsections (d), (e),
502-18 and (f) to read as follows:
502-19 (d) For purposes of Subsection (a)(7), a person is incapable
502-20 of exercising sound judgment with respect to the proper use and
502-21 storage of a handgun if the person:
502-22 (1) has been diagnosed by a licensed physician as
502-23 suffering from a psychiatric disorder or condition that causes or
502-24 is likely to cause substantial impairment in judgment, mood,
502-25 perception, impulse control, or intellectual ability;
502-26 (2) suffers from a psychiatric disorder or condition
76R5 JMC-D 502
503-1 described by Subdivision (1) that:
503-2 (A) is in remission but is reasonably likely to
503-3 redevelop at a future time; or
503-4 (B) requires continuous medical treatment to
503-5 avoid redevelopment;
503-6 (3) has been diagnosed by a licensed physician or
503-7 declared by a court to be incompetent to manage the person's own
503-8 affairs; or
503-9 (4) has entered in a criminal proceeding a plea of not
503-10 guilty by reason of insanity.
503-11 (e) The following constitutes evidence that a person has a
503-12 psychiatric disorder or condition described by Subsection (d)(1):
503-13 (1) involuntary psychiatric hospitalization in the
503-14 preceding five-year period;
503-15 (2) psychiatric hospitalization in the preceding
503-16 two-year period;
503-17 (3) inpatient or residential substance abuse treatment
503-18 in the preceding five-year period;
503-19 (4) diagnosis in the preceding five-year period by a
503-20 licensed physician that the person is dependent on alcohol, a
503-21 controlled substance, or a similar substance; or
503-22 (5) diagnosis at any time by a licensed physician that
503-23 the person suffers or has suffered from a psychiatric disorder or
503-24 condition consisting of or relating to:
503-25 (A) schizophrenia or delusional disorder;
503-26 (B) bipolar disorder;
76R5 JMC-D 503
504-1 (C) chronic dementia, whether caused by illness,
504-2 brain defect, or brain injury;
504-3 (D) dissociative identity disorder;
504-4 (E) intermittent explosive disorder; or
504-5 (F) antisocial personality disorder.
504-6 (f) Notwithstanding Subsection (d), a person who has
504-7 previously been diagnosed as suffering from a psychiatric disorder
504-8 or condition described by Subsection (d) or listed in Subsection
504-9 (e) is not because of that disorder or condition incapable of
504-10 exercising sound judgment with respect to the proper use and
504-11 storage of a handgun if the person provides the department with a
504-12 certificate from a licensed physician whose primary practice is in
504-13 the field of psychiatry stating that the psychiatric disorder or
504-14 condition is in remission and is not reasonably likely to develop
504-15 at a future time.
504-16 (b) Section 3, Chapter 1261, Acts of the 75th Legislature,
504-17 Regular Session, 1997, is repealed.
504-18 SECTION 9.05. (a) Section 411.173, Government Code, is
504-19 amended to conform to Section 15, Chapter 1261, Acts of the 75th
504-20 Legislature, Regular Session, 1997, to read as follows:
504-21 Sec. 411.173. NONRESIDENT [RECIPROCAL] LICENSE. (a) The
504-22 department by rule shall establish a procedure for a person who is
504-23 a legal resident of a state that does not provide for the issuance
504-24 of a license to carry a concealed handgun and who meets the
504-25 eligibility requirements of this subchapter other than the
504-26 residency requirement established by Section 411.172(a)(1) to
76R5 JMC-D 504
505-1 obtain a license under this subchapter. The procedure must include
505-2 payment of a fee in an amount sufficient to recover the average
505-3 cost to the department of obtaining a criminal history record check
505-4 and investigation on a nonresident applicant.
505-5 (b) The department shall negotiate an agreement with any
505-6 other state that provides for the issuance of a license to carry a
505-7 concealed handgun under which a license issued by the other state
505-8 is recognized in this state [On application by a person who has a
505-9 valid license to carry a concealed handgun issued by another state,
505-10 the department may issue to the person a license under this
505-11 subchapter without requiring that the person meet eligibility
505-12 requirements or pay fees otherwise imposed under this subchapter,
505-13 but only] if the department determines that:
505-14 (1) the eligibility requirements imposed by the other
505-15 state include background check requirements that meet or exceed
505-16 background check [are at least as rigorous as the] requirements
505-17 imposed by federal law as a condition of receiving a handgun [this
505-18 subchapter]; and
505-19 (2) the other state recognizes [provides reciprocal
505-20 licensing privileges to a person who holds] a license issued in
505-21 [under] this [subchapter and applies for a license in the other]
505-22 state.
505-23 (b) Section 15, Chapter 1261, Acts of the 75th Legislature,
505-24 Regular Session, 1997, is repealed.
505-25 SECTION 9.06. (a) Section 411.174(a), Government Code, is
505-26 amended to conform to Section 4, Chapter 1261, Acts of the 75th
76R5 JMC-D 505
506-1 Legislature, Regular Session, 1997, to read as follows:
506-2 (a) An applicant for a license to carry a concealed handgun
506-3 must submit to the director's designee described by Section
506-4 411.176:
506-5 (1) a completed application on a form provided by the
506-6 department that requires only the information listed in Subsection
506-7 (b);
506-8 (2) two recent color passport photographs of the
506-9 applicant;
506-10 (3) a certified copy of the applicant's birth
506-11 certificate or certified proof of age;
506-12 (4) proof of residency in this state;
506-13 (5) two complete sets of legible and classifiable
506-14 fingerprints of the applicant taken by a person [employed by a law
506-15 enforcement agency who is] appropriately trained in recording
506-16 fingerprints who is employed by a law enforcement agency or by a
506-17 private entity designated by a law enforcement agency as an entity
506-18 qualified to take fingerprints of an applicant for a license under
506-19 this subchapter;
506-20 (6) a nonrefundable application and license fee of
506-21 $140 paid to the department;
506-22 (7) a handgun proficiency certificate described by
506-23 Section 411.189;
506-24 (8) an affidavit signed by the applicant stating that
506-25 the applicant:
506-26 (A) has read and understands each provision of
76R5 JMC-D 506
507-1 this subchapter that creates an offense under the laws of this
507-2 state and each provision of the laws of this state related to use
507-3 of deadly force; and
507-4 (B) fulfills all the eligibility requirements
507-5 listed under Section 411.172; and
507-6 (9) a form executed by the applicant that authorizes
507-7 the director to make an inquiry into any noncriminal history
507-8 records that are necessary to determine the applicant's eligibility
507-9 for a license under Section 411.172(a).
507-10 (b) Section 4, Chapter 1261, Acts of the 75th Legislature,
507-11 Regular Session, 1997, is repealed.
507-12 SECTION 9.07. (a) Section 411.176(b), Government Code, is
507-13 amended to conform to Section 5, Chapter 1261, Acts of the 75th
507-14 Legislature, Regular Session, 1997, to read as follows:
507-15 (b) The director's designee as needed shall conduct an
507-16 additional criminal history record check of the applicant and an
507-17 investigation of the applicant's local official records to verify
507-18 the accuracy of the application materials. The scope of the record
507-19 check and the investigation are at the sole discretion of the
507-20 department, except that the director's designee shall complete the
507-21 record check and investigation not later than the 60th day after
507-22 the date the department receives the application materials. The
507-23 department shall send a fingerprint card to the Federal Bureau of
507-24 Investigation for a national criminal history check of the
507-25 applicant. On completion of the investigation, the director's
507-26 designee shall return all materials and the result of the
76R5 JMC-D 507
508-1 investigation to the appropriate division of the department at its
508-2 Austin headquarters. The director's designee may submit to the
508-3 appropriate division of the department, at the department's Austin
508-4 headquarters, along with the application materials a written
508-5 recommendation for disapproval of the application, accompanied by
508-6 an affidavit stating personal knowledge or naming persons with
508-7 personal knowledge of a ground for denial under Section 411.172.
508-8 The director's designee in the appropriate geographical area may
508-9 also submit the application and the recommendation that the license
508-10 be issued. On receipt at the department's Austin headquarters of
508-11 the application materials and the result of the investigation by
508-12 the director's designee, the department shall conduct any further
508-13 record check or investigation the department determines is
508-14 necessary if a question exists with respect to the accuracy of the
508-15 application materials or the eligibility of the applicant, except
508-16 that the department shall complete the record check and
508-17 investigation not later than the 180th day after the date the
508-18 department receives the application materials from the applicant.
508-19 (b) Section 5, Chapter 1261, Acts of the 75th Legislature,
508-20 Regular Session, 1997, is repealed.
508-21 SECTION 9.08. (a) Section 411.177(b), Government Code, is
508-22 amended to conform to Section 6, Chapter 1261, Acts of the 75th
508-23 Legislature, Regular Session, 1997, to read as follows:
508-24 (b) The department shall, not later than the 60th day after
508-25 the date of the receipt by the director's designee of the completed
508-26 application materials[, shall]:
76R5 JMC-D 508
509-1 (1) issue the license; [or]
509-2 (2) notify the applicant in writing that the
509-3 application was denied:
509-4 (A) on the grounds that the applicant failed to
509-5 qualify under the criteria listed in Section 411.172;
509-6 (B) based on the affidavit of the director's
509-7 designee submitted to the department under Section 411.176(b); or
509-8 (C) based on the affidavit of the qualified
509-9 handgun instructor submitted to the department under Section
509-10 411.189(c); or
509-11 (3) notify the applicant in writing that the
509-12 department is unable to make a determination regarding the issuance
509-13 or denial of a license to the applicant within the 60-day period
509-14 prescribed by this subsection and include in that notification an
509-15 explanation of the reason for the inability and an estimation of
509-16 the amount of time the department will need to make the
509-17 determination.
509-18 (b) Section 6, Chapter 1261, Acts of the 75th Legislature,
509-19 Regular Session, 1997, is repealed.
509-20 SECTION 9.09. (a) Section 411.186(a), Government Code, is
509-21 amended to conform to Section 8, Chapter 1261, Acts of the 75th
509-22 Legislature, Regular Session, 1997, to read as follows:
509-23 (a) A license may be revoked under this section if the
509-24 license holder:
509-25 (1) was not entitled to the license at the time it was
509-26 issued;
76R5 JMC-D 509
510-1 (2) gave false information on the application;
510-2 (3) subsequently becomes ineligible for a license
510-3 under Section 411.172, unless the sole basis for the ineligibility
510-4 is that the license holder is charged with the commission of a
510-5 Class A or Class B misdemeanor or an offense under Section 42.01,
510-6 Penal Code, or of a felony under an information or indictment; [or]
510-7 (4) is convicted of an offense under Section 46.035,
510-8 Penal Code; or
510-9 (5) is determined by the department to have engaged in
510-10 conduct constituting a reason to suspend a license listed in
510-11 Section 411.187(a) after the person's license has been previously
510-12 suspended twice for the same reason.
510-13 (b) Section 8, Chapter 1261, Acts of the 75th Legislature,
510-14 Regular Session, 1997, is repealed.
510-15 SECTION 9.10. (a) Sections 411.187(a) and (c), Government
510-16 Code, are amended to conform to Section 9, Chapter 1261, Acts of
510-17 the 75th Legislature, Regular Session, 1997, to read as follows:
510-18 (a) A license may be suspended under this section if the
510-19 license holder:
510-20 (1) is charged with the commission of a Class A or
510-21 Class B misdemeanor or an offense [convicted of disorderly conduct
510-22 punishable as a Class C misdemeanor] under Section 42.01, Penal
510-23 Code, or of a felony under an information or indictment;
510-24 (2) fails to display a license as required by Section
510-25 411.205;
510-26 (3) fails to notify the department of a change of
76R5 JMC-D 510
511-1 address or name as required by Section 411.181;
511-2 (4) carries a concealed handgun under the authority of
511-3 this subchapter of a different category than the license holder is
511-4 licensed to carry; or
511-5 (5) [has been charged by indictment with the
511-6 commission of an offense that would make the license holder
511-7 ineligible for a license on conviction; or]
511-8 [(6)] fails to return a previously issued license
511-9 after a license is modified as required by Section 411.184(d).
511-10 (c) A license may be suspended under this section:
511-11 (1) for 30 days, if the person's license is subject to
511-12 suspension for a reason listed in Subsection (a)(3), (4), or (5),
511-13 except as provided by Subdivision (3);
511-14 (2) for 90 days, if the person's license is subject to
511-15 suspension for a reason listed in Subsection (a)(2), except as
511-16 provided by Subdivision (3);
511-17 (3) for not less than one year and not more than three
511-18 years if the person's license is subject to suspension for a reason
511-19 listed in Subsection (a), other than the reason listed in
511-20 Subsection (a)(1), and the person's license has been previously
511-21 suspended for the same reason; or
511-22 (4) until dismissal of the charges if the person's
511-23 license is subject to suspension for the reason listed in
511-24 Subsection (a)(1).
511-25 (b) Section 9, Chapter 1261, Acts of the 75th Legislature,
511-26 Regular Session, 1997, is repealed.
76R5 JMC-D 511
512-1 SECTION 9.11. (a) Section 411.188(a), Government Code, is
512-2 amended to conform to Section 10, Chapter 1261, Acts of the 75th
512-3 Legislature, Regular Session, 1997, to read as follows:
512-4 (a) The director by rule shall establish minimum standards
512-5 for handgun proficiency and shall develop a course to teach handgun
512-6 proficiency and examinations to measure handgun proficiency. The
512-7 course to teach handgun proficiency must contain training sessions
512-8 divided into two parts. One part of the course must be classroom
512-9 instruction and the other part must be range instruction and an
512-10 actual demonstration by the applicant of the applicant's ability to
512-11 safely and proficiently use the category of handgun for which the
512-12 applicant seeks certification. An applicant may not be certified
512-13 unless the applicant demonstrates, at a minimum, the degree of
512-14 proficiency that is required to effectively operate a [9-millimeter
512-15 or .38-caliber] handgun of .32 caliber or above. The department
512-16 shall distribute the standards, course requirements, and
512-17 examinations on request to any qualified handgun instructor.
512-18 (b) Section 10, Chapter 1261, Acts of the 75th Legislature,
512-19 Regular Session, 1997, is repealed.
512-20 SECTION 9.12. (a) Section 411.189(c), Government Code, is
512-21 amended to conform to Section 11, Chapter 1261, Acts of the 75th
512-22 Legislature, Regular Session, 1997, to read as follows:
512-23 (c) A qualified handgun instructor may submit to the
512-24 department a written recommendation for disapproval of the
512-25 application for a license, renewal, or modification of a license,
512-26 accompanied by an affidavit stating personal knowledge or naming
76R5 JMC-D 512
513-1 persons with personal knowledge of facts that lead the instructor
513-2 to believe that an applicant is not qualified for handgun
513-3 proficiency certification. The department may use a written
513-4 recommendation submitted under this subsection as the basis for
513-5 denial of a license only if the department determines that the
513-6 recommendation is made in good faith and is supported by a
513-7 preponderance of the evidence. The department shall make a
513-8 determination under this subsection not later than the 45th day
513-9 after the date the department receives the written recommendation.
513-10 The 60-day period in which the department must take action under
513-11 Section 411.177(b) is extended one day for each day a determination
513-12 is pending under this subsection.
513-13 (b) Section 11, Chapter 1261, Acts of the 75th Legislature,
513-14 Regular Session, 1997, is repealed.
513-15 SECTION 9.13. (a) Sections 411.190(c) and (f), Government
513-16 Code, are amended to conform to Section 12, Chapter 1261, Acts of
513-17 the 75th Legislature, Regular Session, 1997, to read as follows:
513-18 (c) The department shall provide training to an individual
513-19 who applies for certification as a qualified handgun instructor.
513-20 An applicant shall pay a fee of $100 to the department for the
513-21 training. An applicant must take and successfully complete the
513-22 training offered by the department and pay the training fee before
513-23 the department may certify the applicant as a qualified handgun
513-24 instructor. The department shall issue [waive the requirements
513-25 regarding a handgun proficiency certification under Section 411.189
513-26 for an applicant for] a license to carry a concealed handgun under
76R5 JMC-D 513
514-1 the authority of this subchapter to any person who is certified as
514-2 a qualified handgun instructor and who pays to the department a fee
514-3 of $100 in addition to [takes and successfully completes training
514-4 under this subsection and pays] the training fee. The department
514-5 by rule may prorate or waive the training fee for an employee of
514-6 another governmental entity.
514-7 (f) If the department determines that a reason exists to
514-8 revoke, suspend, or deny a license to carry a concealed handgun
514-9 with respect to a person who is a qualified handgun instructor or
514-10 an applicant for certification as a qualified handgun instructor,
514-11 the department shall take that action against the person's:
514-12 (1) license to carry a concealed handgun if the person
514-13 is an applicant for or the holder of a license issued under this
514-14 subchapter; and
514-15 (2) certification as a qualified handgun instructor
514-16 [regardless of whether the person has a license issued under this
514-17 subchapter to carry a concealed handgun].
514-18 (b) Section 12, Chapter 1261, Acts of the 75th Legislature,
514-19 Regular Session, 1997, is repealed.
514-20 SECTION 9.14. Sections 411.199(b) and (g), Government Code,
514-21 are amended to conform to Section 13, Chapter 1261, Acts of the
514-22 75th Legislature, Regular Session, 1997, to read as follows:
514-23 (b) The person shall submit two complete sets of legible and
514-24 classifiable fingerprints and a sworn statement from the head of
514-25 the law enforcement agency employing the applicant. A head of a
514-26 law enforcement agency may not refuse to issue a statement under
76R5 JMC-D 514
515-1 this subsection. If the applicant alleges that the statement is
515-2 untrue, the department shall investigate the validity of the
515-3 statement. The statement must include:
515-4 (1) the name and rank of the applicant;
515-5 (2) the status of the applicant before retirement;
515-6 (3) whether or not the applicant was accused of
515-7 misconduct at the time of the retirement;
515-8 (4) the physical and mental condition of the
515-9 applicant;
515-10 (5) the type of weapons the applicant had demonstrated
515-11 proficiency with during the last year of employment;
515-12 (6) whether the applicant would be eligible for
515-13 reemployment with the agency, and if not, the reasons the applicant
515-14 is not eligible; and
515-15 (7) a recommendation from the agency head regarding
515-16 the issuance of a license under this subchapter.
515-17 (g) A retired officer [criminal investigator] of the United
515-18 States who was eligible to carry a firearm in the discharge of the
515-19 officer's official duties [is designated as a "special agent"] is
515-20 eligible for a license under this section. An applicant described
515-21 by this subsection may submit the application at any time after
515-22 retirement. The applicant shall submit with the application proper
515-23 proof of retired status by presenting the following documents
515-24 prepared by the agency from which the applicant retired:
515-25 (1) retirement credentials; and
515-26 (2) a letter from the agency head stating the
76R5 JMC-D 515
516-1 applicant retired in good standing.
516-2 SECTION 9.15. (a) Subchapter H, Chapter 411, Government
516-3 Code, is amended to conform to Section 13, Chapter 1261, Acts of
516-4 the 75th Legislature, Regular Session, 1997, by adding Section
516-5 411.1991 to read as follows:
516-6 Sec. 411.1991. ACTIVE PEACE OFFICERS. (a) A person who is
516-7 licensed as a peace officer under Chapter 415 and is employed
516-8 full-time as a peace officer by a law enforcement agency may apply
516-9 for a license under this subchapter. The person shall submit to the
516-10 department two complete sets of legible and classifiable
516-11 fingerprints and a sworn statement of the head of the law
516-12 enforcement agency employing the applicant. A head of a law
516-13 enforcement agency may not refuse to issue a statement under this
516-14 subsection. If the applicant alleges that the statement is
516-15 untrue, the department shall investigate the validity of the
516-16 statement. The statement must include:
516-17 (1) the name and rank of the applicant;
516-18 (2) whether the applicant has been accused of
516-19 misconduct at any time during the applicant's period of employment
516-20 with the agency and the disposition of that accusation;
516-21 (3) a description of the physical and mental condition
516-22 of the applicant;
516-23 (4) a list of the types of weapons the applicant has
516-24 demonstrated proficiency with during the preceding year; and
516-25 (5) a recommendation from the agency head that a
516-26 license be issued to the person under this subchapter.
76R5 JMC-D 516
517-1 (b) The department may issue a license under this subchapter
517-2 to an applicant under this section if the statement from the head
517-3 of the law enforcement agency employing the applicant complies with
517-4 Subsection (a) and indicates that the applicant is qualified and
517-5 physically and mentally fit to carry a handgun.
517-6 (c) An applicant under this section shall pay a fee of $25
517-7 for a license issued under this subchapter.
517-8 (d) A license issued under this section expires as provided
517-9 by Section 411.183.
517-10 (b) Section 13, Chapter 1261, Acts of the 75th Legislature,
517-11 Regular Session, 1997, is repealed.
517-12 SECTION 9.16. (a) Section 411.204, Government Code, is
517-13 amended to conform to Section 14, Chapter 1261, Acts of the 75th
517-14 Legislature, Regular Session, 1997, by amending Subsections (a) and
517-15 (c) and adding Subsections (d) and (e) to read as follows:
517-16 (a) A business that has a permit or license issued under
517-17 Chapter 25, 28, 32, [or] 69, or 74, Alcoholic Beverage Code, and
517-18 that derives 51 percent or more of its income from the sale of
517-19 alcoholic beverages for on-premises consumption as determined by
517-20 the Texas Alcoholic Beverage Commission under Section 104.06,
517-21 Alcoholic Beverage Code, shall prominently display at each entrance
517-22 to the business premises a sign that complies with the requirements
517-23 of Subsection (c).
517-24 (c) The sign required under Subsections (a) and (b) must
517-25 give notice in both English and Spanish that it is unlawful for a
517-26 person licensed under this subchapter to carry a handgun on the
76R5 JMC-D 517
518-1 premises. The sign must appear in contrasting colors with block
518-2 letters at least one inch in height and must include on its face
518-3 the number "51" printed in solid red at least five inches in
518-4 height. The sign shall be displayed in a conspicuous manner
518-5 clearly visible to the public.
518-6 (d) A business that has a permit or license issued under the
518-7 Alcoholic Beverage Code and that is not required to display a sign
518-8 under this section may be required to display a sign under Section
518-9 11.041 or 61.11, Alcoholic Beverage Code.
518-10 (e) This section does not apply to a business that has a
518-11 food and beverage certificate issued under the Alcoholic Beverage
518-12 Code.
518-13 (b) Section 14, Chapter 1261, Acts of the 75th Legislature,
518-14 Regular Session, 1997, is repealed.
518-15 SECTION 9.17. (a) Section 411.205, Government Code, is
518-16 amended to conform to Section 7, Chapter 1261, Acts of the 75th
518-17 Legislature, Regular Session, 1997, to read as follows:
518-18 Sec. 411.205. DISPLAYING LICENSE; PENALTY. (a) [On a
518-19 demand by a magistrate or a peace officer that a license holder
518-20 display the license holder's handgun license, the license holder
518-21 shall display both the license and the license holder's driver's
518-22 license or identification certificate issued by the department.]
518-23 [(b)] If a license holder is carrying a handgun on or about
518-24 the license holder's person when a magistrate or a peace officer
518-25 demands that the license holder display identification, the license
518-26 holder shall display both the license holder's driver's license or
76R5 JMC-D 518
519-1 identification certificate issued by the department and the license
519-2 holder's handgun license. A person who fails or refuses to display
519-3 the license and identification as required by this subsection is
519-4 subject to suspension of the person's license as provided by
519-5 Section 411.187.
519-6 (b) [(c)] A person commits an offense if the person fails or
519-7 refuses to display the license and identification as required by
519-8 Subsection (a) after previously having had the person's license
519-9 suspended for a violation of that subsection [or (b)]. An offense
519-10 under this subsection is a Class B misdemeanor.
519-11 (b) Section 7, Chapter 1261, Acts of the 75th Legislature,
519-12 Regular Session, 1997, is repealed.
519-13 SECTION 9.18. Section 11.041(a), Alcoholic Beverage Code, is
519-14 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
519-15 Legislature, Regular Session, 1997, to read as follows:
519-16 (a) Each holder of a permit who is not otherwise required to
519-17 display a sign under Section 411.204, Government Code [31, Article
519-18 4413(29ee), Revised Statutes], shall display in a prominent place
519-19 on the permit holder's premises a sign giving notice that it is
519-20 unlawful for a person to carry a weapon on the premises unless the
519-21 weapon is a concealed handgun of the same category the person is
519-22 licensed to carry under Subchapter H, Chapter 411, Government Code
519-23 [Article 4413(29ee), Revised Statutes].
519-24 SECTION 9.19. Section 11.61(e), Alcoholic Beverage Code, is
519-25 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
519-26 Legislature, Regular Session, 1997, to read as follows:
76R5 JMC-D 519
520-1 (e) Except as provided by Subsection (f), the commission or
520-2 administrator shall cancel an original or renewal permit if it is
520-3 found, after notice and hearing, that the permittee knowingly
520-4 allowed a person to possess a firearm in a building on the licensed
520-5 premises. This subsection does not apply to a person:
520-6 (1) who holds a security officer commission issued by
520-7 the Texas Board of Private Investigators and Private Security
520-8 Agencies, if:
520-9 (A) the person is engaged in the performance of
520-10 the person's duties as a security officer;
520-11 (B) the person is wearing a distinctive uniform;
520-12 and
520-13 (C) the weapon is in plain view;
520-14 (2) who is a peace officer;
520-15 (3) who is a permittee or an employee of a permittee
520-16 if the person is supervising the operation of the premises; or
520-17 (4) who possesses a concealed handgun of the same
520-18 category the person is licensed to carry under Subchapter H,
520-19 Chapter 411, Government Code [Article 4413(29ee), Revised
520-20 Statutes], unless the person is on the premises of a business
520-21 described by Section 46.035(b)(1), Penal Code.
520-22 SECTION 9.20. Section 61.11(a), Alcoholic Beverage Code, is
520-23 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
520-24 Legislature, Regular Session, 1997, to read as follows:
520-25 (a) Each holder of a license who is not otherwise required
520-26 to display a sign under Section 411.204, Government Code [31,
76R5 JMC-D 520
521-1 Article 4413(29ee), Revised Statutes], shall display in a prominent
521-2 place on the license holder's premises a sign giving notice that it
521-3 is unlawful for a person to carry a weapon on the premises unless
521-4 the weapon is a concealed handgun of the same category the person
521-5 is licensed to carry under Subchapter H, Chapter 411, Government
521-6 Code [Article 4413(29ee), Revised Statutes].
521-7 SECTION 9.21. Section 61.71(f), Alcoholic Beverage Code, is
521-8 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
521-9 Legislature, Regular Session, 1997, to read as follows:
521-10 (f) Except as provided by Subsection (g), the commission or
521-11 administrator shall cancel an original or renewal dealer's
521-12 on-premises or off-premises license if it is found, after notice
521-13 and hearing, that the licensee knowingly allowed a person to
521-14 possess a firearm in a building on the licensed premises. This
521-15 subsection does not apply to a person:
521-16 (1) who holds a security officer commission issued by
521-17 the Texas Board of Private Investigators and Private Security
521-18 Agencies, if:
521-19 (A) the person is engaged in the performance of
521-20 the person's duties as a security officer;
521-21 (B) the person is wearing a distinctive uniform;
521-22 and
521-23 (C) the weapon is in plain view;
521-24 (2) who is a peace officer;
521-25 (3) who is a licensee or an employee of a licensee if
521-26 the person is supervising the operation of the premises; or
76R5 JMC-D 521
522-1 (4) who possesses a concealed handgun of the same
522-2 category the person is licensed to carry under Subchapter H,
522-3 Chapter 411, Government Code [Article 4413(29ee), Revised
522-4 Statutes], unless the person is on the premises of a business
522-5 described by Section 46.035(b)(1), Penal Code.
522-6 SECTION 9.22. Section 104.06(c), Alcoholic Beverage Code, is
522-7 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
522-8 Legislature, Regular Session, 1997, to read as follows:
522-9 (c) If the commission makes a determination under Subsection
522-10 (a) that a holder of a license or permit receives 51 percent or
522-11 more of the gross receipts of the premises from the sale or service
522-12 of alcoholic beverages, the holder shall comply with the
522-13 requirements of Section 411.204, Government Code [31, Article
522-14 4413(29ee), Revised Statutes], and shall continue to comply with
522-15 those requirements until the commission determines that the holder
522-16 receives less than 51 percent of the gross receipts of the premises
522-17 from the sale or service of alcoholic beverages for on-premises
522-18 consumption.
522-19 SECTION 9.23. Section 12.092(b), Health and Safety Code, is
522-20 amended to conform to Section 10.01, Chapter 165, Acts of the 75th
522-21 Legislature, Regular Session, 1997, to read as follows:
522-22 (b) The medical advisory board shall assist the Department
522-23 of Public Safety of the State of Texas in determining whether:
522-24 (1) an applicant for a driver's license or a license
522-25 holder is capable of safely operating a motor vehicle; or
522-26 (2) an applicant for or holder of a license to carry a
76R5 JMC-D 522
523-1 concealed handgun under the authority of Subchapter H, Chapter 411,
523-2 Government Code [Article 4413(29ee), Revised Statutes], is capable
523-3 of exercising sound judgment with respect to the proper use and
523-4 storage of a handgun.
523-5 SECTION 9.24. Sections 30.06(a) and (c), Penal Code, are
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 (a) A license holder commits an offense if the license
523-9 holder:
523-10 (1) carries a handgun under the authority of
523-11 Subchapter H, Chapter 411, Government Code [Article 4413(29ee),
523-12 Revised Statutes], on property of another without effective
523-13 consent; and
523-14 (2) received notice that:
523-15 (A) entry on the property by a license holder
523-16 with a concealed handgun was forbidden; or
523-17 (B) remaining on the property with a concealed
523-18 handgun was forbidden and failed to depart.
523-19 (c) In this section:
523-20 (1) "Entry" has the meaning assigned by Section
523-21 30.05(b).
523-22 (2) "License holder" has the meaning assigned by
523-23 Section 46.035(f).
523-24 (3) "Written communication" means:
523-25 (A) a card or other document on which is written
523-26 language identical to the following: "Pursuant to Section 30.06,
76R5 JMC-D 523
524-1 Penal Code (trespass by holder of license to carry a concealed
524-2 handgun), a person licensed under Subchapter H, Chapter 411,
524-3 Government Code [Article 4413(29ee), Revised Statutes] (concealed
524-4 handgun law), may not enter this property with a concealed
524-5 handgun"; or
524-6 (B) a sign posted on the property that:
524-7 (i) includes the language described by
524-8 Paragraph (A) in both English and Spanish;
524-9 (ii) appears in contrasting colors with
524-10 block letters at least one inch in height; and
524-11 (iii) is displayed in a conspicuous manner
524-12 clearly visible to the public.
524-13 SECTION 9.25. Section 46.15(a), Penal Code, is amended to
524-14 conform to Section 10.01, Chapter 165, Acts of the 75th
524-15 Legislature, Regular Session, 1997, to read as follows:
524-16 (a) Sections 46.02 and 46.03 do not apply to:
524-17 (1) peace officers and neither section prohibits a
524-18 peace officer from carrying a weapon in this state, regardless of
524-19 whether the officer is engaged in the actual discharge of the
524-20 officer's duties while carrying the weapon;
524-21 (2) parole officers and neither section prohibits an
524-22 officer from carrying a weapon in this state if the officer is:
524-23 (A) engaged in the actual discharge of the
524-24 officer's duties while carrying the weapon; and
524-25 (B) in compliance with policies and procedures
524-26 adopted by the Texas Department of Criminal Justice regarding the
76R5 JMC-D 524
525-1 possession of a weapon by an officer while on duty;
525-2 (3) community supervision and corrections department
525-3 officers appointed or employed under Section 76.004, Government
525-4 Code, and neither section prohibits an officer from carrying a
525-5 weapon in this state if the officer is:
525-6 (A) engaged in the actual discharge of the
525-7 officer's duties while carrying the weapon; and
525-8 (B) authorized to carry a weapon under Section
525-9 76.0051, Government Code; or
525-10 (4) a judge or justice of the supreme court, the court
525-11 of criminal appeals, a court of appeals, a district court, a
525-12 criminal district court, a constitutional county court, a statutory
525-13 county court, a justice court, or a municipal court who is licensed
525-14 to carry a concealed handgun under Subchapter H, Chapter 411,
525-15 Government Code [Article 4413(29ee), Revised Statutes].
525-16 ARTICLE 10. CHANGES RELATING TO BOARD OF
525-17 PARDONS AND PAROLES
525-18 SECTION 10.01. Section 508.001, Government Code, is amended
525-19 to conform to Section 1, Chapter 161, Acts of the 75th Legislature,
525-20 Regular Session, 1997, by renumbering existing Subdivision (8) as
525-21 Subdivision (9) and adding a new Subdivision (8) to read as
525-22 follows:
525-23 (8) "Policy board" means the Board of Pardons and
525-24 Paroles Policy Board.
525-25 SECTION 10.02. Section 508.033(c), Government Code, is
525-26 amended to conform to Section 2, Chapter 161, Acts of the 75th
76R5 GWK-D 525
526-1 Legislature, Regular Session, 1997, to read as follows:
526-2 (c) An employee or paid officer of or consultant to a trade
526-3 association in the field of criminal justice may not be:
526-4 (1) a member of the board; or
526-5 (2) an employee of the division or the board who is
526-6 exempt from the state's position classification plan or who is
526-7 compensated at or above the amount prescribed by the General
526-8 Appropriations Act for step 1, salary group A17, of the position
526-9 classification salary schedule.
526-10 SECTION 10.03. Section 508.033(d), Government Code, is
526-11 amended to conform to Section 2, Chapter 161, Acts of the 75th
526-12 Legislature, Regular Session, 1997, to read as follows:
526-13 (d) A person who is the spouse of an officer or [a] manager
526-14 of or paid consultant to a trade association in the field of
526-15 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[,
526-18 including an employee] who is:
526-19 (A) exempt from the state's classification plan;
526-20 or [and]
526-21 (B) compensated at or above the amount
526-22 prescribed by the General Appropriations Act for step 1, salary
526-23 group A17 [17], of the position classification salary schedule.
526-24 SECTION 10.04. Section 508.033(e), Government Code, is
526-25 amended to conform to Section 2, Chapter 161, Acts of the 75th
526-26 Legislature, Regular Session, 1997, to read as follows:
76R5 GWK-D 526
527-1 (e) A person who is required to register as a lobbyist under
527-2 Chapter 305 because of the person's activities for compensation in
527-3 or on behalf of a profession related to the operation of the board
527-4 may not:
527-5 (1) serve as a member of the board; or
527-6 (2) act as the general counsel to the board or
527-7 division.
527-8 SECTION 10.05. Section 508.034, Government Code, is amended
527-9 to conform to Section 2, Chapter 161, Acts of the 75th Legislature,
527-10 Regular Session, 1997, to read as follows:
527-11 Sec. 508.034. GROUNDS FOR REMOVAL. (a) It is a ground for
527-12 removal from the board if a member:
527-13 (1) at the time of appointment is not qualified under
527-14 Section 508.032 or 508.033(a) for appointment to the board;
527-15 (2) during the member's service on the board becomes
527-16 ineligible under Section 508.033(a) for appointment to the board;
527-17 (3) violates Section 508.033(c), (d), or (e);
527-18 (4) is unable to discharge the member's duties for a
527-19 substantial part of the term for which the member is [was]
527-20 appointed because of illness or disability; or
527-21 (5) is absent from more than half of the regularly
527-22 scheduled board or panel meetings that the member is eligible to
527-23 attend during each calendar year, except when the absence is
527-24 excused by majority vote of the board.
527-25 (b) It is a ground for removal from the board and the policy
527-26 board if a member of the policy board is absent from more than half
76R5 GWK-D 527
528-1 of the regularly scheduled policy board meetings that the member is
528-2 eligible to attend during each calendar year.
528-3 (c) The board administrator or the board administrator's
528-4 designee shall provide to members of the board, to members of the
528-5 policy board, and to employees, as often as necessary, information
528-6 regarding their qualification for office or employment under this
528-7 chapter and their responsibilities under applicable laws relating
528-8 to standards of conduct for state officers or employees.
528-9 (d) The validity of an action of:
528-10 (1) the board or panel is not affected by the fact
528-11 that the action is [was] taken when a ground for removal of a board
528-12 member exists; and
528-13 (2) the policy board is not affected by the fact that
528-14 the action is taken when a ground for removal of a member of the
528-15 policy board exists [existed].
528-16 (e) [(c)] If the general counsel to the board [director] has
528-17 knowledge that a potential ground for removal exists, the general
528-18 counsel [director] shall notify the presiding officer of the board
528-19 of the potential ground. The presiding officer shall notify the
528-20 governor and the attorney general that a potential ground for
528-21 removal exists. If the potential ground for removal involves the
528-22 presiding officer, the general counsel to the board shall notify
528-23 the governor and the attorney general that a potential ground for
528-24 removal exists.
528-25 SECTION 10.06. Section 508.036, Government Code, is amended
528-26 to conform to Sections 4 and 5, Chapter 161, Acts of the 75th
76R5 GWK-D 528
529-1 Legislature, Regular Session, 1997, to read as follows:
529-2 Sec. 508.036. POLICY BOARD: COMPOSITION; GENERAL DUTIES.
529-3 (a) The governor shall designate six members of the board to serve
529-4 as the Board of Pardons and Paroles Policy Board. The governor
529-5 shall designate the presiding officer of the board as one of the
529-6 six members of the policy board, and the presiding officer of the
529-7 board shall serve as presiding officer of the policy board.
529-8 Service on the policy board is an additional duty of office for
529-9 members appointed to the policy board.
529-10 (b) Members of the board designated as members of the policy
529-11 board serve on the policy board for six-year terms that are
529-12 concurrent with their six-year terms on the board, with the service
529-13 of two members expiring February 1 of each odd-numbered year.
529-14 (c) The policy board shall:
529-15 (1) adopt rules relating to the decision-making
529-16 processes used by the board and parole panels;
529-17 (2) establish caseloads for members of the board and
529-18 assign duties to members of the policy board that are in addition
529-19 to the duties those members have in handling a caseload;
529-20 (3) update parole guidelines, assign precedential
529-21 value to previous decisions of the board relating to the granting
529-22 of parole and the revocation of parole or mandatory supervision,
529-23 and develop policies to ensure that members of the board use
529-24 guidelines and previous decisions of the board in making decisions
529-25 under this chapter;
529-26 (4) require members of the board to file activity
76R5 GWK-D 529
530-1 reports, on forms provided by the policy board, that provide
530-2 information on release decisions made by members of the board, the
530-3 workload of the members of the board, and the use of parole
530-4 guidelines by members of the board; and
530-5 (5) report at least annually to the governor and the
530-6 legislature on board activities, parole release decisions, and the
530-7 use of parole guidelines by the board. [EXECUTIVE COMMITTEE.
530-8 (a) To facilitate the work of the board, the governor shall
530-9 appoint the presiding officer of the board to serve as presiding
530-10 officer of the executive committee.]
530-11 [(b) The presiding officer shall appoint six board members
530-12 to serve on the executive committee. An executive committee member
530-13 serves in that capacity at the pleasure of the presiding officer.]
530-14 [(c) The executive committee shall:]
530-15 [(1) coordinate activities of the board;]
530-16 [(2) assure maximum efficiency and fair distribution
530-17 of the caseload; and]
530-18 [(3) administer other matters as required by the
530-19 presiding officer.]
530-20 SECTION 10.07. Subchapter B, Chapter 508, Government Code,
530-21 is amended to conform to Section 6, Chapter 161, Acts of the 75th
530-22 Legislature, Regular Session, 1997, by adding Section 508.0361 to
530-23 read as follows:
530-24 Sec. 508.0361. POLICY BOARD: GENERAL ADMINISTRATIVE
530-25 PROVISIONS. (a) The policy board shall:
530-26 (1) develop and implement policies that clearly
76R5 GWK-D 530
531-1 separate the policy-making responsibilities of the policy board and
531-2 the management responsibilities of the board administrator and the
531-3 staff of the board;
531-4 (2) prepare information of public interest describing
531-5 the functions of the board and make the information available to
531-6 the public and appropriate state agencies;
531-7 (3) comply with federal and state laws related to
531-8 program and facility accessibility; and
531-9 (4) prepare annually a complete and detailed written
531-10 report that meets the reporting requirements applicable to
531-11 financial reporting provided in the General Appropriations Act and
531-12 accounts for all funds received and disbursed by the board during
531-13 the preceding fiscal year.
531-14 (b) The board administrator shall prepare and maintain a
531-15 written plan that describes how a person who does not speak English
531-16 can be provided reasonable access to the board's programs and
531-17 services.
531-18 (c) The policy board is subject to the open meetings law,
531-19 Chapter 551, and the administrative procedure law, Chapter 2001, as
531-20 if it were, respectively, a governmental body or a state agency
531-21 under those laws. This subsection does not affect the provisions
531-22 of Section 2001.223 exempting hearings and interviews conducted by
531-23 the board or the division from Section 2001.038 and Subchapters
531-24 C-H, Chapter 2001.
531-25 (d) Members of the board who are not members of the policy
531-26 board may participate in policy board meetings but may not vote.
76R5 GWK-D 531
532-1 SECTION 10.08. Subchapter B, Chapter 508, Government Code,
532-2 is amended to conform to Section 7, Chapter 161, Acts of the 75th
532-3 Legislature, Regular Session, 1997, by adding Section 508.0362 to
532-4 read as follows:
532-5 Sec. 508.0362. TRAINING REQUIRED. (a) To be eligible to
532-6 take office as a member of the board or the policy board, a person
532-7 appointed to the board or policy board must complete at least one
532-8 course of a training program that complies with this section.
532-9 (b) A training program must provide information to the
532-10 person regarding:
532-11 (1) the enabling legislation that created the board
532-12 and the policy board;
532-13 (2) the programs operated by the board;
532-14 (3) the role and functions of the board;
532-15 (4) the rules of the board;
532-16 (5) the current budget for the board;
532-17 (6) the results of the most recent formal audit of the
532-18 board;
532-19 (7) the requirements of the:
532-20 (A) open meetings law, Chapter 551;
532-21 (B) open records law, Chapter 552; and
532-22 (C) administrative procedure law, Chapter 2001;
532-23 (8) the requirements of the conflict of interest laws
532-24 and other laws relating to public officials; and
532-25 (9) any applicable ethics policies adopted by the
532-26 policy board or the Texas Ethics Commission.
76R5 GWK-D 532
533-1 (c) A person appointed to the board or policy board is
533-2 entitled to reimbursement for travel expenses incurred in attending
533-3 the training program, as provided by the General Appropriations Act
533-4 and as if the person were a member of the board or policy board.
533-5 SECTION 10.09. Section 508.040, Government Code, is amended
533-6 to conform to Sections 5 and 6, Chapter 161, Acts of the 75th
533-7 Legislature, Regular Session, 1997, to read as follows:
533-8 Sec. 508.040. PERSONNEL. (a) The policy board shall employ
533-9 and supervise:
533-10 (1) a general counsel to the board;
533-11 (2) a board administrator to manage the day-to-day
533-12 activities of the board [an administrative assistant];
533-13 (3) hearing officers;
533-14 (4) personnel to assist in clemency matters; and
533-15 (5) secretarial or clerical personnel.
533-16 (b) The board administrator or the board administrator's
533-17 designee shall prepare and maintain a written policy statement to
533-18 ensure implementation of a program of equal employment opportunity
533-19 under which all personnel transactions of the board are made
533-20 without regard to race, color, disability, sex, religion, age, or
533-21 national origin. The policy statement must include:
533-22 (1) personnel policies, including policies relating to
533-23 recruitment, evaluation, selection, appointment, training, and
533-24 promotion of personnel that are in compliance with requirements of
533-25 Chapter 21, Labor Code;
533-26 (2) a comprehensive analysis of the board workforce
76R5 GWK-D 533
534-1 that meets federal and state laws, rules, and regulations, and
534-2 instructions promulgated directly from those laws, rules, and
534-3 regulations;
534-4 (3) procedures by which a determination can be made
534-5 about the extent of underuse in the board workforce of all persons
534-6 for whom federal or state laws, rules, and regulations, and
534-7 instructions promulgated directly from those laws, rules, and
534-8 regulations, encourage a more equitable balance; and
534-9 (4) reasonable methods to appropriately address those
534-10 areas of underuse.
534-11 (c) A policy statement prepared under Subsection (b) must
534-12 cover an annual period, be updated annually and reviewed by the
534-13 Commission on Human Rights for compliance with Subsection (b)(1),
534-14 and be filed with the governor's office.
534-15 (d) The governor's office shall deliver a biennial report to
534-16 the legislature based on the information received under Subsection
534-17 (c). The report may be made separately or as a part of other
534-18 biennial reports made to the legislature.
534-19 (e) The board administrator or the board administrator's
534-20 designee shall develop an intra-agency career ladder program that
534-21 addresses opportunities for mobility and advancement for employees
534-22 within the board. The program shall require intra-agency posting
534-23 of all positions concurrently with any public posting.
534-24 (f) The board administrator or the board administrator's
534-25 designee shall develop a system of annual performance evaluations
534-26 that are based on documented employee performance. All merit pay
76R5 GWK-D 534
535-1 for board employees must be based on the system established under
535-2 this subsection. [The board may adopt rules as necessary for the
535-3 employment and supervision of board personnel.]
535-4 [(c) The board shall develop and implement personnel
535-5 policies.]
535-6 SECTION 10.10. Section 508.041, Government Code, is amended
535-7 to conform to Sections 10 and 11, Chapter 161, Acts of the 75th
535-8 Legislature, Regular Session, 1997, to read as follows:
535-9 Sec. 508.041. DESIGNEE TRAINING; HANDBOOK. (a) The policy
535-10 board shall develop and implement:
535-11 (1) a training program that each newly hired employee
535-12 of the board designated to conduct hearings under Section 508.281
535-13 must complete before conducting a hearing without the assistance of
535-14 a board member or experienced designee; and
535-15 (2) a training program to provide an annual update to
535-16 designees of the board on issues and procedures relating to the
535-17 revocation process.
535-18 (b) The policy board shall prepare and biennially update a
535-19 procedural manual to be used by designees of the board. The policy
535-20 board shall include in the manual:
535-21 (1) descriptions of decisions in previous hearings
535-22 determined by the policy board to have value as precedents for
535-23 decisions in subsequent hearings;
535-24 (2) laws and court decisions relevant to decision
535-25 making in hearings; and
535-26 (3) case studies useful in decision making in
76R5 GWK-D 535
536-1 hearings.
536-2 (c) The policy board shall prepare and update as necessary a
536-3 handbook to be made available to participants in hearings under
536-4 Section 508.281, such as defense attorneys, persons released on
536-5 parole or mandatory supervision, and witnesses. The handbook must
536-6 describe in plain language the procedures used in a hearing under
536-7 Section 508.281. [TRAINING PROGRAM FOR DESIGNATED AGENTS. (a)
536-8 The board shall develop and implement a training program for
536-9 designated agents of the board who conduct hearings under Section
536-10 508.281.]
536-11 [(b) The training program must assist the designated agents
536-12 in understanding issues relating to the revocation process.]
536-13 SECTION 10.11. Section 508.042(a), Government Code, is
536-14 amended to conform to Section 7, Chapter 161, Acts of the 75th
536-15 Legislature, Regular Session, 1997, to read as follows:
536-16 (a) The policy board shall develop for board members a
536-17 comprehensive training and education program on the criminal
536-18 justice system, with special emphasis on the parole process.
536-19 SECTION 10.12. Section 508.044(c), Government Code, is
536-20 amended to conform to Section 7, Chapter 161, Acts of the 75th
536-21 Legislature, Regular Session, 1997, to read as follows:
536-22 (c) The policy board shall develop and implement a policy
536-23 that clearly defines circumstances under which a board member
536-24 should disqualify himself or herself from voting on:
536-25 (1) a parole decision; or
536-26 (2) a decision to revoke parole or mandatory
76R5 GWK-D 536
537-1 supervision.
537-2 SECTION 10.13. Section 508.044(d), Government Code, is
537-3 amended to conform to Section 8, Chapter 161, Acts of the 75th
537-4 Legislature, Regular Session, 1997, to read as follows:
537-5 (d) The policy board may adopt reasonable rules as the
537-6 policy board considers proper or necessary relating to:
537-7 (1) the eligibility of an inmate for release on parole
537-8 or release to mandatory supervision;
537-9 (2) the conduct of a parole or mandatory supervision
537-10 hearing; or
537-11 (3) conditions to be imposed on a releasee.
537-12 SECTION 10.14. Section 508.044(e), Government Code, is
537-13 amended to conform to Section 7, Chapter 161, Acts of the 75th
537-14 Legislature, Regular Session, 1997, to read as follows:
537-15 (e) The policy board may provide a written plan for the
537-16 administrative review of actions taken by a parole panel by the
537-17 entire membership or by a subset of the entire membership of the
537-18 board.
537-19 SECTION 10.15. Section 508.047(a), Government Code, is
537-20 amended to conform to Section 7, Chapter 161, Acts of the 75th
537-21 Legislature, Regular Session, 1997, to read as follows:
537-22 (a) The members of the policy board shall meet at least once
537-23 in each quarter of the calendar year at a site determined by the
537-24 presiding officer.
537-25 SECTION 10.16. Section 508.049, Government Code, is amended
537-26 to conform to Section 4, Chapter 161, Acts of the 75th Legislature,
76R5 GWK-D 537
538-1 Regular Session, 1997, to read as follows:
538-2 Sec. 508.049. MISSION STATEMENT. (a) The policy board,
538-3 after consultation with the governor and the Texas Board of
538-4 Criminal Justice, shall adopt a mission statement that reflects the
538-5 responsibilities for the operation of the parole process that are
538-6 assigned to the policy board, the board, [and the responsibilities
538-7 that are assigned to] the division, the department, or the Texas
538-8 Board of Criminal Justice.
538-9 (b) The policy board shall include in the mission statement
538-10 a description of specific locations at which the board intends to
538-11 conduct business related to the operation of the parole process.
538-12 SECTION 10.17. Section 508.051, Government Code, is amended
538-13 to conform to Section 3, Chapter 161, Acts of the 75th Legislature,
538-14 Regular Session, 1997, to read as follows:
538-15 Sec. 508.051. SUNSET PROVISION. The Board of Pardons and
538-16 Paroles is subject to review under Chapter 325 (Texas Sunset Act),
538-17 but is not abolished under that chapter. The board shall be
538-18 reviewed during the period in which the Texas Department of
538-19 Criminal Justice is reviewed.
538-20 SECTION 10.18. Section 508.082, Government Code, is amended
538-21 to conform to Section 9, Chapter 161, Acts of the 75th Legislature,
538-22 Regular Session, 1997, to read as follows:
538-23 Sec. 508.082. RULES. The policy board shall adopt rules
538-24 relating to:
538-25 (1) the submission and presentation of information and
538-26 arguments to the board, a parole panel, and the department for and
76R5 GWK-D 538
539-1 in behalf of an inmate; and
539-2 (2) the time, place, and manner of contact between a
539-3 person representing an inmate and:
539-4 (A) a member of the board;
539-5 (B) an employee of the board; or
539-6 (C) an employee of the department.
539-7 SECTION 10.19. Sections 508.115(a) and (c), Government Code,
539-8 are amended to conform to Section 1, Chapter 480, Acts of the 75th
539-9 Legislature, Regular Session, 1997, to read as follows:
539-10 (a) Not later than the 11th day before the date the board
539-11 orders the release on parole of an inmate or not later than the
539-12 11th day after the date the board recommends that the governor
539-13 grant executive clemency, the division shall notify the sheriffs,
539-14 each chief of police, the prosecuting attorneys, and the district
539-15 judges in the county in which the inmate was convicted and the
539-16 county to which the inmate is released that the board is
539-17 considering release on parole or the governor is considering
539-18 clemency.
539-19 (c) Not later than the 10th day after the date a parole
539-20 panel orders the transfer of an inmate to a halfway house under
539-21 this chapter, the division shall give notice in accordance with
539-22 Subsection (d) to:
539-23 (1) the sheriff of the county in which the inmate was
539-24 convicted;
539-25 (2) the sheriff of the county in which the halfway
539-26 house is located and each chief of police in the county; and
76R5 GWK-D 539
540-1 (3) the attorney who represents the state in the
540-2 prosecution of felonies in the county in which the halfway house is
540-3 located.
540-4 SECTION 10.20. Section 508.119, Government Code, is amended
540-5 to conform to Section 2, Chapter 478, Acts of the 75th Legislature,
540-6 Regular Session, 1997, by adding Subsection (i) to read as follows:
540-7 (i) The notice required by Subsection (d) must clearly state
540-8 that the proposed action concerns a facility in which persons who
540-9 have been released from prison on parole or to mandatory
540-10 supervision are to be housed.
540-11 SECTION 10.21. Section 508.145(c), Government Code, is
540-12 amended to conform to Section 3, Chapter 665, Acts of the 75th
540-13 Legislature, Regular Session, 1997, to read as follows:
540-14 (c) An inmate serving a life sentence under Section
540-15 12.42(c)(2) [12.42(d)(2)], Penal Code, is not eligible for release
540-16 on parole until the actual calendar time the inmate has served,
540-17 without consideration of good conduct time, equals 35 calendar
540-18 years.
540-19 SECTION 10.22. Section 508.149(a), Government Code, is
540-20 amended to conform to Section 1, Chapter 238, Acts of the 75th
540-21 Legislature, Regular Session, 1997, to read as follows:
540-22 (a) An inmate may not be released to mandatory supervision
540-23 if the inmate is serving a sentence for or has been previously
540-24 convicted of:
540-25 (1) an offense for which the judgment contains an
540-26 affirmative finding under Section 3g(a)(2), Article 42.12, Code of
76R5 GWK-D 540
541-1 Criminal Procedure;
541-2 (2) a first degree felony or a second degree felony
541-3 under Section 19.02, Penal Code;
541-4 (3) a capital felony under Section 19.03, Penal Code;
541-5 (4) a first degree felony or a second degree felony
541-6 under Section 20.04, Penal Code;
541-7 (5) a second degree felony or a third degree felony
541-8 under Section 21.11, Penal Code;
541-9 (6) a second degree felony under Section 22.011, Penal
541-10 Code;
541-11 (7) [(6)] a first degree felony or a second degree
541-12 felony under Section 22.02, Penal Code;
541-13 (8) [(7)] a first degree felony under Section 22.021,
541-14 Penal Code;
541-15 (9) [(8)] a first degree felony under Section 22.04,
541-16 Penal Code;
541-17 (10) [(9)] a first degree felony under Section 28.02,
541-18 Penal Code;
541-19 (11) [(10)] a second degree felony under Section
541-20 29.02, Penal Code;
541-21 (12) [(11)] a first degree felony under Section 29.03,
541-22 Penal Code;
541-23 (13) [(12)] a first degree felony under Section 30.02,
541-24 Penal Code; or
541-25 (14) [(13)] a felony for which the punishment is
541-26 increased under Section 481.134, Health and Safety Code.
76R5 GWK-D 541
542-1 SECTION 10.23. Section 508.181, Government Code, is amended
542-2 to conform to Section 1, Chapter 836, Acts of the 75th Legislature,
542-3 Regular Session, 1997, by adding Subsection (g) to read as follows:
542-4 (g) The division shall, on the first working day of each
542-5 month, notify the sheriff of any county in which the total number
542-6 of sex offenders under the supervision and control of the division
542-7 residing in the county exceeds 10 percent of the total number of
542-8 sex offenders in the state under the supervision and control of the
542-9 division. If the total number of sex offenders under the
542-10 supervision and control of the division residing in a county
542-11 exceeds 22 percent of the total number of sex offenders in the
542-12 state under the supervision and control of the division, a parole
542-13 panel may require a sex offender to reside in that county only as
542-14 required by Subsection (a) or for the reason stated in Subsection
542-15 (b)(2)(B). In this subsection, "sex offender" means a person who
542-16 is released on parole or to mandatory supervision after serving a
542-17 sentence for an offense described by Section 508.187(a).
542-18 SECTION 10.24. Section 508.181, Government Code, is amended
542-19 to conform to Section 2, Chapter 480, Acts of the 75th Legislature,
542-20 Regular Session, 1997, by adding Subsection (h) to read as follows:
542-21 (h) If a parole panel requires a releasee to reside in a
542-22 county other than the county required under Subsection (a), the
542-23 division shall include the reason for residency exemption in the
542-24 required notification to the sheriff of the county in which the
542-25 defendant is to reside, the chief of police of the municipality in
542-26 which the halfway house is located, and the attorney who represents
76R5 GWK-D 542
543-1 the state in the prosecution of felonies in that county.
543-2 SECTION 10.25. Section 508.186(a), Government Code, is
543-3 amended to conform to Section 6, Chapter 668, Acts of the 75th
543-4 Legislature, Regular Session, 1997, to read as follows:
543-5 (a) A parole panel shall require as a condition of parole or
543-6 mandatory supervision that a releasee required to register as a sex
543-7 offender under Chapter 62, Code of Criminal Procedure [Article
543-8 6252-13c.1, Revised Statutes]:
543-9 (1) register under that chapter [article]; and
543-10 (2) pay to the releasee's supervising officer an
543-11 amount equal to the cost, as evidenced by written receipt, incurred
543-12 by the applicable local law enforcement authority for providing
543-13 notice for publication to a newspaper as required by that chapter
543-14 [article].
543-15 SECTION 10.26. Subchapter F, Chapter 508, Government Code,
543-16 is amended to conform to Section 1, Chapter 670, Acts of the 75th
543-17 Legislature, Regular Session, 1997, by adding Section 508.190 to
543-18 read as follows:
543-19 Sec. 508.190. AVOIDING VICTIM OF STALKING OFFENSE. (a) A
543-20 parole panel shall require as a condition of parole or mandatory
543-21 supervision that a releasee serving a sentence for an offense under
543-22 Section 42.072, Penal Code, not:
543-23 (1) communicate directly or indirectly with the
543-24 victim;
543-25 (2) go to or near the residence, place of employment,
543-26 or business of the victim; or
76R5 GWK-D 543
544-1 (3) go to or near a school, day-care facility, or
544-2 similar facility where a dependent child of the victim is in
544-3 attendance.
544-4 (b) If a parole panel requires the prohibition contained in
544-5 Subsection (a)(2) or (3) as a condition of parole or mandatory
544-6 supervision, the parole panel shall specifically describe the
544-7 prohibited locations and the minimum distances, if any, that the
544-8 releasee must maintain from the locations.
544-9 SECTION 10.27. Subchapter F, Chapter 508, Government Code,
544-10 is amended to conform to Section 2, Chapter 670, Acts of the 75th
544-11 Legislature, Regular Session, 1997, by adding Section 508.191 to
544-12 read as follows:
544-13 Sec. 508.191. NO CONTACT WITH VICTIM. (a) If a parole
544-14 panel releases a defendant on parole or to mandatory supervision,
544-15 the panel shall require as a condition of parole or mandatory
544-16 supervision that the defendant not intentionally or knowingly
544-17 communicate directly or indirectly with a victim of the offense or
544-18 intentionally or knowingly go near a residence, school, place of
544-19 employment, or business of a victim. At any time after the
544-20 defendant is released on parole or to mandatory supervision, a
544-21 victim of the offense may petition the panel for a modification of
544-22 the conditions of the defendant's parole or mandatory supervision
544-23 allowing the defendant contact with the victim subject to
544-24 reasonable restrictions.
544-25 (b) Notwithstanding Subsection (a), a defendant may
544-26 participate in victim-offender mediation authorized by Section
76R5 GWK-D 544
545-1 508.324 on the request of the victim or a guardian of the victim or
545-2 a close relative of a deceased victim.
545-3 (c) In this section, "victim" has the meaning assigned by
545-4 Article 56.01(3), Code of Criminal Procedure.
545-5 SECTION 10.28. Section 508.223, Government Code, is amended
545-6 to conform to Section 1, Chapter 188, and Section 7, Chapter 1,
545-7 Acts of the 75th Legislature, Regular Session, 1997, to read as
545-8 follows:
545-9 Sec. 508.223. PSYCHOLOGICAL COUNSELING. [AVOIDING VICTIM.
545-10 (a)] A parole panel may require as a condition of parole or
545-11 mandatory supervision that a releasee serving a sentence for an
545-12 offense under Section 42.072, Penal Code, attend psychological
545-13 counseling sessions of a type and for a duration as specified by
545-14 the parole panel, if the parole panel determines in consultation
545-15 with a local mental health services provider that appropriate
545-16 mental health services are available through the Texas Department
545-17 of Mental Health and Mental Retardation in accordance with Section
545-18 534.053, Health and Safety Code, or through another mental health
545-19 services provider [not:]
545-20 [(1) communicate directly or indirectly with the
545-21 victim;]
545-22 [(2) go to or near the residence, place of employment,
545-23 or business of the victim; or]
545-24 [(3) go to or near a school, day-care facility, or
545-25 similar facility where a dependent child of the victim is in
545-26 attendance.]
76R5 GWK-D 545
546-1 [(b) If a parole panel requires the prohibition contained in
546-2 Subsection (a)(2) or (3) as a condition of parole or mandatory
546-3 supervision, the parole panel shall specifically describe the
546-4 prohibited locations and the minimum distances, if any, that the
546-5 releasee must maintain from the locations].
546-6 SECTION 10.29. Subchapter G, Chapter 508, Government Code,
546-7 is amended to conform to Section 4, Chapter 144, Acts of the 75th
546-8 Legislature, Regular Session, 1997, by adding Section 508.225 to
546-9 read as follows:
546-10 Sec. 508.225. ORCHIECTOMY AS CONDITION PROHIBITED. A parole
546-11 panel may not require an inmate to undergo an orchiectomy as a
546-12 condition of release on parole or to mandatory supervision.
546-13 SECTION 10.30. Section 508.252, Government Code, is amended
546-14 to conform to Section 3, Chapter 429, Acts of the 75th Legislature,
546-15 Regular Session, 1997, to read as follows:
546-16 Sec. 508.252. GROUNDS FOR ISSUANCE OF WARRANT. A warrant
546-17 may be issued under Section 508.251 if:
546-18 (1) there is reason to believe that the person has
546-19 been released although not eligible for release;
546-20 (2) the person has been arrested for an offense;
546-21 (3) there is a document that is self-authenticating as
546-22 provided by Rule 902, Texas Rules of Evidence, [verified complaint]
546-23 stating that the person violated a rule or condition of release; or
546-24 (4) there is reliable evidence that the person has
546-25 exhibited behavior during the person's release that indicates to a
546-26 reasonable person that the person poses a danger to society that
76R5 GWK-D 546
547-1 warrants the person's immediate return to custody.
547-2 SECTION 10.31. Section 508.281(a), Government Code, is
547-3 amended to conform to Section 2, Chapter 429, and Section 10,
547-4 Chapter 161, Acts of the 75th Legislature, Regular Session, 1997,
547-5 to read as follows:
547-6 (a) A releasee, a person released although ineligible for
547-7 release, or a person granted a conditional pardon is entitled to a
547-8 hearing before a parole panel or a designated agent of the board
547-9 under the rules adopted by the policy board and within a period
547-10 that permits a parole panel, a designee of the board, or the
547-11 department to dispose of the charges within the periods
547-12 established by Sections 508.282(a) and (b) if the releasee or
547-13 person:
547-14 (1) is accused of a violation of the releasee's parole
547-15 or mandatory supervision or the person's conditional pardon, on
547-16 information and complaint by a peace officer or parole officer; or
547-17 (2) is arrested after an ineligible release.
547-18 SECTION 10.32. Subchapter I, Chapter 508, Government Code,
547-19 is amended to conform to Section 2, Chapter 429, Acts of the 75th
547-20 Legislature, Regular Session, 1997, by adding Section 508.2811 to
547-21 read as follows:
547-22 Sec. 508.2811. PRELIMINARY HEARING. A parole panel or a
547-23 designee of the board shall provide within a reasonable time to
547-24 an inmate or person described by Section 508.281(a) a preliminary
547-25 hearing to determine whether probable cause or reasonable grounds
547-26 exist to believe that the inmate or person has committed an act
76R5 GWK-D 547
548-1 that would constitute a violation of a condition of release, unless
548-2 the inmate or person:
548-3 (1) waives the preliminary hearing; or
548-4 (2) after release:
548-5 (A) has been charged only with an administrative
548-6 violation of a condition of release; or
548-7 (B) has been adjudicated guilty of or has
548-8 pleaded guilty or nolo contendere to an offense committed after
548-9 release, other than an offense punishable by fine only involving
548-10 the operation of a motor vehicle, regardless of whether the court
548-11 has deferred disposition of the case, imposed a sentence in the
548-12 case, or placed the inmate or person on community supervision.
548-13 SECTION 10.33. Section 508.282, Government Code, is amended
548-14 to conform to Section 2, Chapter 429, Acts of the 75th Legislature,
548-15 Regular Session, 1997, to read as follows:
548-16 Sec. 508.282. DEADLINES. (a) Except as provided by
548-17 Subsection (b), a parole panel, a designee of the board, or the
548-18 department shall dispose of the charges against an inmate or person
548-19 described by Section 508.281(a):
548-20 (1) before the 61st day after the date on which:
548-21 (A) a warrant issued as provided by Section
548-22 508.251 is executed, if the inmate or person is arrested only on a
548-23 charge that the inmate or person has committed an administrative
548-24 violation of a condition of release, and the inmate or person is
548-25 not charged before the 61st day with the commission of an offense
548-26 described by Section 508.2811(2)(B); or
76R5 GWK-D 548
549-1 (B) the sheriff having custody of an inmate or
549-2 person alleged to have committed an offense after release notifies
549-3 the department that:
549-4 (i) the inmate or person has discharged
549-5 the sentence for the offense; or
549-6 (ii) the prosecution of the alleged
549-7 offense has been dismissed by the attorney representing the state
549-8 in the manner provided by Article 32.02, Code of Criminal
549-9 Procedure; or
549-10 (2) within a reasonable time after the date on which
549-11 the inmate or person is returned to the custody of the department,
549-12 if:
549-13 (A) immediately before the return the inmate or
549-14 person was in custody in another state or in a federal correctional
549-15 system; or
549-16 (B) the inmate or person is transferred to the
549-17 custody of the department under Section 508.284.
549-18 (b) A parole panel, a designee of the board, or the
549-19 department is not required to dispose of the charges against an
549-20 inmate or person within the period required by Subsection (a) if:
549-21 (1) the inmate or person is in custody in another
549-22 state or a federal correctional institution;
549-23 (2) the parole panel or a designee of the board is not
549-24 provided a place by the sheriff to hold the hearing, in which event
549-25 the department, parole panel, or designee is not required to
549-26 dispose of the charges against the inmate or person until the 60th
76R5 GWK-D 549
550-1 day after the date on which the sheriff provides a place to hold
550-2 the hearing; or
550-3 (3) the inmate or person is granted a continuance by a
550-4 parole panel or a designee of the board in the inmate's or person's
550-5 hearing under Section 508.281(a), but in no event may a parole
550-6 panel, a designee of the board, or the department dispose of the
550-7 charges against the person later than the 30th day after the date
550-8 on which the parole panel, designee, or department would otherwise
550-9 be required to dispose of the charges under this section, unless
550-10 the inmate or person is released from custody and a summons is
550-11 issued under Section 508.251 requiring the inmate or person to
550-12 appear for a hearing under Section 508.281.
550-13 (c) In Subsections (a) and (b), charges against an inmate
550-14 or person are disposed of when:
550-15 (1) the inmate's or person's conditional pardon,
550-16 parole, or release to mandatory supervision is:
550-17 (A) revoked; or
550-18 (B) continued or modified and the inmate or
550-19 person is released from the county jail;
550-20 (2) the warrant for the inmate or person issued under
550-21 Section 508.251 is withdrawn; or
550-22 (3) the inmate or person is transferred to a facility
550-23 described by Section 508.284 for further proceedings.
550-24 (d) A sheriff, not later than the 10th day before the date
550-25 on which the sheriff intends to release from custody an inmate or
550-26 person described by Section 508.281(a) or transfer the inmate or
76R5 GWK-D 550
551-1 person to the custody of an entity other than the department, shall
551-2 notify the department of the intended release or transfer.
551-3 (e) If a warrant for an inmate or person issued under
551-4 Section 508.251 is withdrawn, a summons may be issued requiring the
551-5 inmate or person to appear for a hearing under Section 508.281.
551-6 [DATE OF HEARING; WITHDRAWAL OF WARRANT. (a) A hearing under
551-7 Section 508.281 must be held:]
551-8 [(1) not later than the 70th day after the date of
551-9 arrest under a warrant issued by the director or a designated agent
551-10 of the director or by the board on order of the governor; and]
551-11 [(2) at a time and place set by a parole panel or
551-12 designated agent of the board.]
551-13 [(b) Except as provided by Subsection (c), the panel or
551-14 designated agent may hold the hearing at a date later than the date
551-15 required under Subsection (a) if the panel or designated agent
551-16 determines a delay is necessary to assure due process for the
551-17 person.]
551-18 [(c) The authority issuing the warrant shall immediately
551-19 withdraw the warrant if the hearing is not held before the 121st
551-20 day after the date of arrest unless:]
551-21 [(1) the person has been removed from the custody of a
551-22 county sheriff by the department and placed in a community
551-23 residential facility;]
551-24 [(2) the person is in custody in another state or in a
551-25 federal correctional facility;]
551-26 [(3) the person, the attorney representing the person,
76R5 GWK-D 551
552-1 or the attorney representing the state is granted a continuance to
552-2 a date that is not later than the 181st day after the date of
552-3 arrest; or]
552-4 [(4) the person is subject to pending criminal charges
552-5 that have not been adjudicated.]
552-6 SECTION 10.34. Section 508.283, Government Code, is amended
552-7 to conform to Section 2, Chapter 429, Acts of the 75th Legislature,
552-8 Regular Session, 1997, to read as follows:
552-9 Sec. 508.283. SANCTIONS. (a) After a parole panel or
552-10 designated agent of the board has held a hearing under Section
552-11 508.281, the board may, in any manner warranted by the evidence:
552-12 (1) recommend to the governor to continue, revoke, or
552-13 modify the conditional pardon; or
552-14 (2) continue, revoke, or modify the parole or
552-15 mandatory supervision.
552-16 (b) [The parole panel or designated agent shall make a
552-17 recommendation or decision not later than the 30th day after the
552-18 date the hearing is concluded.]
552-19 [(c)] If a person's parole, mandatory supervision, or
552-20 conditional pardon is revoked, the person may be required to serve
552-21 the remaining portion of the sentence on which the person was
552-22 released. The remaining portion is computed without credit for the
552-23 time from the date of the person's release to the date of
552-24 revocation.
552-25 (c) [(d)] If a warrant is issued charging a violation of a
552-26 release condition or a summons is issued for a hearing under
76R5 GWK-D 552
553-1 Section 508.281, the sentence time credit may be suspended until a
553-2 determination is made in the case. The suspended time credit may
553-3 be reinstated if the parole, mandatory supervision, or conditional
553-4 pardon is continued.
553-5 SECTION 10.35. Subchapter I, Chapter 508, Government Code,
553-6 is amended to conform to Section 1, Chapter 429, Acts of the 75th
553-7 Legislature, Regular Session, 1997, by adding Section 508.284 to
553-8 read as follows:
553-9 Sec. 508.284. TRANSFER PENDING REVOCATION HEARING. The
553-10 department, as provided by Section 508.282(c), may authorize a
553-11 facility that is otherwise required to detain and house an inmate
553-12 or person to transfer the inmate or person to a correctional
553-13 facility operated by the department or under contract with the
553-14 department if:
553-15 (1) the department determines that adequate space is
553-16 available in the facility to which the inmate or person is to be
553-17 transferred; and
553-18 (2) the facility to which the inmate or person is to
553-19 be transferred is located not more than 150 miles from the facility
553-20 from which the inmate or person is to be transferred.
553-21 SECTION 10.36. Section 508.313(e), Government Code, is
553-22 amended to conform to Section 7, Chapter 668, Acts of the 75th
553-23 Legislature, Regular Session, 1997, to read as follows:
553-24 (e) This section does not apply to information relating to a
553-25 sex offender that is authorized for release under Chapter 62, Code
553-26 of Criminal Procedure [Article 6252-13c.1, Revised Statutes].
76R5 GWK-D 553
554-1 SECTION 10.37. Section 508.317, Government Code, is amended
554-2 to conform to Section 6, Chapter 1430, Acts of the 75th
554-3 Legislature, Regular Session, 1997, to read as follows:
554-4 Sec. 508.317. INTENSIVE SUPERVISION PROGRAM; SUPER-INTENSIVE
554-5 SUPERVISION PROGRAM. (a) The department shall establish a program
554-6 to provide intensive supervision to inmates released under
554-7 Subchapter B, Chapter 499, and other inmates determined by a parole
554-8 panel or the department to require intensive supervision.
554-9 (b) The Texas Board of Criminal Justice shall adopt rules
554-10 that establish standards for determining which inmates require
554-11 intensive supervision.
554-12 (c) The program must provide the [highest] level of
554-13 supervision the department provides that is higher than any level
554-14 of supervision other than the level of supervision described by
554-15 Subsection (d).
554-16 (d) The department shall establish a program to provide
554-17 super-intensive supervision to inmates released on parole or
554-18 mandatory supervision and determined by parole panels to require
554-19 super-intensive supervision. The program must provide the highest
554-20 level of supervision provided by the department.
554-21 SECTION 10.38. Subchapter J, Chapter 508, Government Code,
554-22 is amended to conform to Section 3, Chapter 670, Acts of the 75th
554-23 Legislature, Regular Session, 1997, by adding Section 508.324 to
554-24 read as follows:
554-25 Sec. 508.324. VICTIM-OFFENDER MEDIATION. If the pardons and
554-26 paroles division receives notice from the victim services office of
76R5 GWK-D 554
555-1 the department that a victim of the defendant, or the victim's
555-2 guardian or close relative, wishes to participate in
555-3 victim-offender mediation with a person released on parole or to
555-4 mandatory supervision, the division shall cooperate and assist the
555-5 person if the person chooses to participate in the mediation
555-6 program provided by the office. The pardons and paroles division
555-7 may not require the defendant to participate and may not reward the
555-8 person for participation by modifying conditions of release or the
555-9 person's level of supervision or by granting any other benefit to
555-10 the person.
555-11 SECTION 10.39. The following provisions from the Acts of the
555-12 75th Legislature, Regular Session, 1997, are repealed:
555-13 (1) Section 7, Chapter 1;
555-14 (2) Section 4, Chapter 144;
555-15 (3) Sections 1-11, Chapter 161;
555-16 (4) Section 1, Chapter 188;
555-17 (5) Section 1, Chapter 238;
555-18 (6) Sections 1-3, Chapter 429;
555-19 (7) Section 2, Chapter 478;
555-20 (8) Sections 1 and 2, Chapter 480;
555-21 (9) Section 3, Chapter 665;
555-22 (10) Sections 6 and 7, Chapter 668;
555-23 (11) Sections 1-3, Chapter 670;
555-24 (12) Section 1, Chapter 836; and
555-25 (13) Section 6, Chapter 1430.
555-26 ARTICLE 11. CHANGES RELATING TO HEALTH AND
76R5 DWS-D 555
556-1 SAFETY CODE
556-2 SECTION 11.01. Section 88.010, Health and Safety Code, as
556-3 added by Section 6, Chapter 893, Acts of the 75th Legislature,
556-4 Regular Session, 1997, is designated as Section 92.010, Health and
556-5 Safety Code, to conform to the renumbering of former Chapter 88,
556-6 Health and Safety Code (Injury Prevention and Control), as Chapter
556-7 92, Health and Safety Code, by Section 31.01(53), Chapter 165, Acts
556-8 of the 75th Legislature, Regular Session, 1997, and amended to read
556-9 as follows:
556-10 Sec. 92.010 [88.010]. COORDINATION WITH TEXAS REHABILITATION
556-11 COMMISSION. The department and the Texas Rehabilitation Commission
556-12 shall enter into a memorandum of understanding to:
556-13 (1) exchange relevant injury data on an ongoing basis
556-14 notwithstanding Section 92.006 [88.006];
556-15 (2) maintain the confidentiality of injury data
556-16 provided to the department by the commission in accordance with
556-17 Section 92.006 [88.006] and Section 111.057, Human Resources Code;
556-18 and
556-19 (3) cooperate in conducting investigations of spinal
556-20 cord and traumatic brain injuries.
556-21 SECTION 11.02. Section 88.011, Health and Safety Code, as
556-22 added by Section 6, Chapter 893, Acts of the 75th Legislature,
556-23 Regular Session, 1997, is designated as Section 92.011, Health and
556-24 Safety Code, to conform to the renumbering of former Chapter 88,
556-25 Health and Safety Code (Injury Prevention and Control), as Chapter
556-26 92, Health and Safety Code, by Section 31.01(53), Chapter 165, Acts
76R5 DWS-D 556
557-1 of the 75th Legislature, Regular Session, 1997, and amended to read
557-2 as follows:
557-3 Sec. 92.011 [88.011]. COORDINATION WITH TEXAS TRAUMATIC
557-4 BRAIN INJURY ADVISORY COUNCIL. The department and the Texas
557-5 Traumatic Brain Injury Advisory Council shall enter into a
557-6 memorandum of understanding to:
557-7 (1) exchange relevant injury data on an ongoing basis
557-8 to the extent allowed by Section 92.006 [88.006];
557-9 (2) maintain the confidentiality of injury data
557-10 provided to the council by the department in accordance with
557-11 Section 92.006 [88.006];
557-12 (3) permit the council to review and comment on the
557-13 board's rules under Section 92.002(b) [88.002(b)] before the rules
557-14 are proposed; and
557-15 (4) cooperate in conducting investigations of
557-16 traumatic brain injuries.
557-17 SECTION 11.03. Section 247.045, Health and Safety Code, as
557-18 amended by Chapters 416 and 1088, Acts of the 75th Legislature,
557-19 Regular Session, 1997, is amended and reenacted to read as follows:
557-20 Sec. 247.045. CIVIL PENALTIES. (a) Except as provided by
557-21 Subsections [Subsection] (b) and (c), a person who violates this
557-22 chapter or who fails to comply with a rule adopted under this
557-23 chapter and whose violation is determined by the department to
557-24 threaten the health and safety of a resident of a personal care
557-25 facility is subject to a civil penalty of not less than $100 nor
557-26 more than $10,000 for each act of violation. Each day of a
76R5 DWS-D 557
558-1 continuing violation constitutes a separate ground of recovery.
558-2 (b) A person is subject to a civil penalty if the person:
558-3 (1) is in violation of Section 247.021; or
558-4 (2) has been determined to be in violation of Section
558-5 247.021 and violates any other provision of this chapter or fails
558-6 to comply with a rule adopted under this chapter.
558-7 [(b) A person who does not possess a license for a personal
558-8 care facility as required by Section 247.021 is subject to a civil
558-9 penalty of not less than $1,000 nor more than $10,000 for each act
558-10 of violation. Each day of a continuing violation constitutes a
558-11 separate ground for recovery.]
558-12 (c) The amount of a civil penalty under Subsection (b) may
558-13 not be less than $1,000 or more than $10,000 for each act of
558-14 violation. Each day of a continuing violation constitutes a
558-15 separate ground of recovery.
558-16 (d) [(c)] If the attorney general fails to take action
558-17 within 30 days of referral from the department, the department
558-18 shall refer the case to the local district attorney, county
558-19 attorney, or city attorney. The district attorney, county
558-20 attorney, or city attorney shall file suit in a district court to
558-21 collect and retain the penalty.
558-22 (e) [(d)] Investigation and attorney's fees may not be
558-23 assessed or collected by or on behalf of the department or other
558-24 state agency unless the department or other state agency assesses
558-25 and collects a penalty described under this chapter.
558-26 (f) [(e)] The department and attorney general, or other
76R5 DWS-D 558
559-1 legal representative as described in Subsection (d) [(c)], shall
559-2 work in close cooperation throughout any legal proceedings
559-3 requested by the department.
559-4 (g) [(f)] The commissioner of human services must approve
559-5 any settlement agreement to a suit brought under this chapter.
559-6 SECTION 11.04. (a) Section 382.003(9), Health and Safety
559-7 Code, is amended to conform to Chapter 3, Acts of the 72nd
559-8 Legislature, 1st Called Session, 1991, and Chapter 76, Acts of the
559-9 74th Legislature, Regular Session, 1995, to read as follows:
559-10 (9) "Modification of existing facility" means any
559-11 physical change in, or change in the method of operation of, a
559-12 facility in a manner that increases the amount of any air
559-13 contaminant emitted by the facility into the atmosphere or that
559-14 results in the emission of any air contaminant not previously
559-15 emitted. The term does not include:
559-16 (A) insignificant increases in the amount of any
559-17 air contaminant emitted that is authorized by one or more
559-18 commission exemptions;
559-19 (B) insignificant increases at a permitted
559-20 facility;
559-21 (C) maintenance or replacement of equipment
559-22 components that do not increase or tend to increase the amount or
559-23 change the characteristics of the air contaminants emitted into the
559-24 atmosphere;
559-25 (D) an increase in the annual hours of operation
559-26 unless the existing facility has received a preconstruction permit
76R5 DWS-D 559
560-1 or has been exempted, pursuant to Section 382.057, from
560-2 preconstruction permit requirements;
560-3 (E) a physical change in, or change in the
560-4 method of operation of, a facility that does not result in a net
560-5 increase in allowable emissions of any air contaminant and that
560-6 does not result in the emission of any air contaminant not
560-7 previously emitted, provided that the facility:
560-8 (i) has received a preconstruction permit
560-9 or permit amendment or has been exempted pursuant to Section
560-10 382.057 from preconstruction permit requirements no earlier than
560-11 120 months before the change will occur; or
560-12 (ii) uses, regardless of whether the
560-13 facility has received a permit, an air pollution control method
560-14 that is at least as effective as the best available control
560-15 technology, considering technical practicability and economic
560-16 reasonableness, that the commission [board] required or would have
560-17 required for a facility of the same class or type as a condition of
560-18 issuing a permit or permit amendment 120 months before the change
560-19 will occur;
560-20 (F) a physical change in, or change in the
560-21 method of operation of, a facility where the change is within the
560-22 scope of a flexible permit; or
560-23 (G) a change in the method of operation of a
560-24 natural gas processing, treating, or compression facility connected
560-25 to or part of a natural gas gathering or transmission pipeline
560-26 which does not result in an annual emission rate of a pollutant in
76R5 DWS-D 560
561-1 excess of the volume emitted at the maximum designed capacity,
561-2 provided that the facility is one for which:
561-3 (i) construction or operation started on
561-4 or before September 1, 1971, and at which either no modification
561-5 has occurred after September 1, 1971, or at which modifications
561-6 have occurred only pursuant to standard exemptions; or
561-7 (ii) construction started after September
561-8 1, 1971, and before March 1, 1972, and which registered in
561-9 accordance with Section 382.060 as that section existed prior to
561-10 September 1, 1991.
561-11 (b) Sections 382.0512(b) and (c), Health and Safety Code,
561-12 are amended to conform to Chapter 3, Acts of the 72nd Legislature,
561-13 1st Called Session, 1991, and Chapter 76, Acts of the 74th
561-14 Legislature, Regular Session, 1995, to read as follows:
561-15 (b) In determining whether a proposed change at an existing
561-16 facility that meets the criteria of Section 382.003(9)(E) results
561-17 in a net increase in allowable emissions, the commission [board]
561-18 shall consider the effect on emissions of:
561-19 (1) any air pollution control method applied to the
561-20 facility;
561-21 (2) any decreases in allowable emissions from other
561-22 facilities that have received a preconstruction permit or permit
561-23 amendment no earlier than 120 months before the change will occur;
561-24 and
561-25 (3) any decreases in actual emissions from other
561-26 facilities that meet the criteria of Section 382.003(9)(E)(i) or
76R5 DWS-D 561
562-1 (ii).
562-2 (c) Nothing in this section shall be construed to limit the
562-3 application of otherwise applicable state or federal requirements,
562-4 nor shall this section be construed to limit the commission's
562-5 [board's] powers of enforcement under this chapter.
562-6 (c) Section 382.056(e), Health and Safety Code, is amended
562-7 to conform to Chapter 3, Acts of the 72nd Legislature, 1st Called
562-8 Session, 1991, and Chapter 76, Acts of the 74th Legislature,
562-9 Regular Session, 1995, to read as follows:
562-10 (e) Notwithstanding other provisions of this chapter, the
562-11 commission may hold a hearing on a permit amendment, modification,
562-12 or renewal if the commission [board] determines that the
562-13 application involves a facility for which the applicant's
562-14 compliance history contains violations which are unresolved and
562-15 which constitute a recurring pattern of egregious conduct which
562-16 demonstrates a consistent disregard for the regulatory process,
562-17 including the failure to make a timely and substantial attempt to
562-18 correct the violations.
562-19 (d) Sections 382.134(b)-(d), Health and Safety Code, are
562-20 amended to conform to Chapter 3, Acts of the 72nd Legislature, 1st
562-21 Called Session, 1991, and Chapter 76, Acts of the 74th Legislature,
562-22 Regular Session, 1995, to read as follows:
562-23 (b) The commission [board] by rule shall require a local
562-24 government or a private person to ensure that its fleet vehicles
562-25 can operate on an alternative fuel.
562-26 (c) Rules adopted by the commission [board] must require a
76R5 DWS-D 562
563-1 local government or private person to have a proportion of the
563-2 person's newly purchased fleet vehicles and a proportion of the
563-3 fleet vehicles in the person's total fleet able to operate on an
563-4 alternative fuel according to the following schedule:
563-5 (1) 30 percent of fleet vehicles purchased after
563-6 September 1, 1998, or at least 10 percent of the fleet vehicles in
563-7 the total fleet as of September 1, 1998;
563-8 (2) 50 percent of fleet vehicles purchased after
563-9 September 1, 2000; and
563-10 (3) 70 percent of light-duty fleet vehicles purchased
563-11 after September 1, 2002, and 50 percent of the heavy-duty fleet
563-12 vehicles purchased after September 1, 2002.
563-13 (d) Rules adopted by the commission [board] may not require
563-14 a local government or private person to purchase a fleet vehicle
563-15 able to operate on an alternative fuel if the person maintains a
563-16 proportion of 70 percent or more alternative fuel vehicles in the
563-17 person's fleet.
563-18 (e) Sections 382.143(a)-(c) and (e)-(g), Health and Safety
563-19 Code, are amended to conform to Chapter 3, Acts of the 72nd
563-20 Legislature, 1st Called Session, 1991, and Chapter 76, Acts of the
563-21 74th Legislature, Regular Session, 1995, to read as follows:
563-22 (a) The commission [board] by rule shall establish a Texas
563-23 Mobile Emissions Reduction Credit (MERC) Program.
563-24 (b) Rules adopted under this section shall provide for the
563-25 following program elements:
563-26 (1) program participation shall be as follows:
76R5 DWS-D 563
564-1 (A) entry into the program is voluntary; and
564-2 (B) both fleet owners or operators subject to
564-3 the percentage requirements of Sections 382.133 and 382.134 and
564-4 vehicle owners or operators who are not subject to those percentage
564-5 requirements may generate mobile emissions reduction credits under
564-6 this program, although the commission [board] may require a certain
564-7 minimum number of vehicles to participate;
564-8 (2) mobile emissions reduction credits shall be
564-9 calculated on a per-pollutant basis and shall be granted to a
564-10 participating vehicle owner or operator for any of the following:
564-11 (A) purchase, lease, or acquisition of more or
564-12 cleaner vehicles than otherwise required by law; or
564-13 (B) entering into a binding contract with the
564-14 commission [board] to purchase, lease, or acquire at some future
564-15 date more or cleaner vehicles than otherwise required by law;
564-16 (3) mobile emissions reduction credit values shall be
564-17 determined in accordance with United States Environmental
564-18 Protection Agency rules and guidance;
564-19 (4) mobile emissions reduction credits may be used as
564-20 follows:
564-21 (A) to demonstrate compliance with any
564-22 applicable mobile source emissions reductions requirements; and
564-23 (B) to satisfy Reasonably Available Control
564-24 Technology and Clean Air Act offset requirements, subject to the
564-25 appropriate trading ratios; and
564-26 (5) all mobile emissions reduction credits generated
76R5 DWS-D 564
565-1 in accordance with this section may, within the same nonattainment
565-2 area, be sold, traded, or banked for later use among fleet vehicle
565-3 owners or other mobile or stationary sources of emissions without
565-4 discount or depreciation of such credits.
565-5 (c)(1) Texas Mobile Emissions Reduction Credit Fund is
565-6 created and is to be administered by the commission [board].
565-7 (2) Mobile emissions reduction credits shall be
565-8 assigned from the Texas Mobile Emissions Reduction Credit Fund to
565-9 vehicle owners or operators qualified under this section to
565-10 generate and receive mobile emissions reduction credits if the
565-11 following conditions are met:
565-12 (A) the vehicle owner or operator enters into a
565-13 binding contract with the commission [board], agreeing to purchase
565-14 and place in service in designated program areas clean-fuel
565-15 vehicles in accordance with the number of credits issued and the
565-16 time frame specified by the commission [board]; and
565-17 (B) the vehicle owner or operator agrees to name
565-18 the United States Environmental Protection Agency as a third-party
565-19 beneficiary of its contract with the commission [board].
565-20 (3) Contracts entered into under this section may be
565-21 enforced in the courts of the State of Texas by an order of
565-22 specific performance.
565-23 (e) The following shall be considered violations of the
565-24 Texas Mobile Emissions Reduction Credit Program:
565-25 (1) claiming a mobile emissions reduction credit
565-26 without meeting the appropriate acquisition requirements and
76R5 DWS-D 565
566-1 submitting any other data required by commission [board] rules; or
566-2 (2) counterfeiting or dealing commercially in
566-3 counterfeit mobile emissions reduction credit certificates.
566-4 (f) Any person found by the commission [board] to be in
566-5 violation under Subsection (e) shall be subject to a civil penalty
566-6 of not more than $25,000 per violation.
566-7 (g) The credit trading program established by this section
566-8 shall be administered as follows:
566-9 (1) Mobile emissions reduction credits must be banked
566-10 in accordance with the then existing commission [board] rules.
566-11 (2) MERCs may be generated on a per-pollutant basis in
566-12 the following ways:
566-13 (A) after September 1, 1994, the use,
566-14 conversion, purchase, or acquisition of more clean-fuel vehicles
566-15 than required by the fleet percentage requirements of Sections
566-16 382.133 and 382.134, according to the following formula:
566-17 (additional emissions benefit x VMT x CF)
566-18 MERC grams per year = -----------------------------------------
566-19 n
566-20 where:
566-21 (i) additional emissions benefit is the
566-22 in-use emissions difference between the emission certification
566-23 standard of the conventionally fueled baseline vehicle and the LEV
566-24 emission standards. For evaporative emissions, benefit will be
566-25 derived from the most recently EPA approved mobile emissions
566-26 estimation model;
76R5 DWS-D 566
567-1 (ii) VMT is the total remaining vehicle
567-2 miles to be traveled;
567-3 (iii) CF is the conversion factor for
567-4 heavy-duty vehicles which is: brake specific fuel consumption x
567-5 fuel economy x fuel density;
567-6 (iv) n is the estimated fleet life of the
567-7 vehicle measured in years;
567-8 (B) the purchase or acquisition of vehicles
567-9 which meet emission standards more stringent than the LEV emission
567-10 standards, according to the following formula:
567-11 (cleaner vehicle benefit x VMT x CF)
567-12 MERC grams per year = ------------------------------------
567-13 n
567-14 where cleaner vehicle benefit is the in-use emissions rate
567-15 difference between the LEV emission standards and the standard to
567-16 which the vehicle is actually certified;
567-17 (C) the purchase or acquisition of a vehicle
567-18 with certified levels of evaporative emissions less than five grams
567-19 per test, according to the following formula:
567-20 (vapor improvement x VMT)
567-21 MERC grams per year = -------------------------
567-22 n
567-23 where vapor improvement is the in-use emissions rate difference
567-24 between conventional and low vapor emission vehicles calculated
567-25 using the most recently approved EPA mobile emissions model.
567-26 (3) The vehicle owners or operators applying for a
76R5 DWS-D 567
568-1 MERC shall submit a registration application to the commission
568-2 [board] using an approved MERC registration form. The application
568-3 must clearly state the following information for each vehicle
568-4 generating credit:
568-5 (A) the emissions standard of the vehicle as
568-6 certified pursuant to this Act;
568-7 (B) the number of remaining vehicle miles to be
568-8 traveled;
568-9 (C) the number of years the vehicle will be used
568-10 as a fleet vehicle; and
568-11 (D) the results from the MERC calculation used
568-12 to estimate the credit value in grams per year.
568-13 (4) The MERC registration must include information
568-14 sufficient to calculate the MERC's value under Subdivision (g)(2)
568-15 [of this section].
568-16 (5) The commission [board] will evaluate the claimed
568-17 credits and may adjust the value of the MERCs based on the
568-18 evaluation.
568-19 (6) MERC registration applications must be received at
568-20 least 90 days prior to using the MERC.
568-21 (7) The commission [board] will have 30 days from the
568-22 date of receipt to determine if the MERC registration application
568-23 is complete.
568-24 (8) The commission [board] will have 90 days from date
568-25 of receipt of the completed application to approve or deny the MERC
568-26 registration.
76R5 DWS-D 568
569-1 (9) The commission [board] may revoke approval of a
569-2 MERC registration under this section at any time on determining
569-3 that the requirements of this section are not being met.
569-4 ARTICLE 12. CHANGES RELATING TO LABOR CODE
569-5 SECTION 12.01. Section 63.002, Labor Code, is amended to
569-6 correct a reference to read as follows:
569-7 Sec. 63.002. EXEMPTION. This chapter does not affect
569-8 Section 22.002 [2.07], Education Code.
569-9 ARTICLE 13. CHANGES RELATING TO LOCAL GOVERNMENT CODE
569-10 PART 1. GENERAL CHANGES
569-11 SECTION 13.01. Section 6.002, Local Government Code, is
569-12 amended to omit provisions made unnecessary because the substance
569-13 of the provisions is contained in Section 7.002(a), Local
569-14 Government Code, to read as follows:
569-15 Sec. 6.002. INCORPORATION PROCEDURE. The procedure for
569-16 incorporating as a Type A general-law municipality is the same as
569-17 that prescribed for incorporating as a Type B general-law
569-18 municipality [except the application to become incorporated must be
569-19 signed by at least 50 qualified voters who are residents of the
569-20 community].
569-21 SECTION 13.02. Section 81.002(c), Local Government Code, is
569-22 amended for grammatical purposes to read as follows:
569-23 (c) Subject to the provisions of Chapter 171, the county
569-24 judge or a county commissioner may serve as a member of the
569-25 governing body of or as an officer or director of an [another]
569-26 entity that does business with the county, excluding [except:]
76R5 MRB-D 569
570-1 [(1)] a publicly traded corporation[;] or
570-2 [(2)] a subsidiary, affiliate, or subdivision of a
570-3 publicly traded corporation[; that does business with the county].
570-4 SECTION 13.03. (a) Subtitle B, Title 3, Local Government
570-5 Code, is amended by adding a chapter heading for Chapter 89, Local
570-6 Government Code, to read as follows:
570-7 CHAPTER 89. GENERAL PROVISIONS RELATING TO COUNTY ADMINISTRATION
570-8 (b) Sections 81.023, 81.026, 81.030, 81.041, 81.042, and
570-9 81.043, Local Government Code, are transferred to Chapter 89, Local
570-10 Government Code, and designated as Sections 89.001, 89.002, 89.003,
570-11 89.004, 89.005, and 89.006, Local Government Code, respectively.
570-12 (c) Section 81.027, Local Government Code, is designated as
570-13 Section 81.026, Local Government Code, and is amended to read as
570-14 follows:
570-15 Sec. 81.026 [81.027]. COMMISSIONERS COURT MEMBERSHIP ON
570-16 ASSOCIATIONS AND NONPROFIT ORGANIZATIONS. A county judge or county
570-17 commissioner may serve on the governing body of or any committee
570-18 serving an association of counties created or operating pursuant to
570-19 the provisions of Section 89.002 [81.026]. A county judge or
570-20 county commissioner may serve as a member of any board of trustees
570-21 or board of directors or other governing body of any trust or other
570-22 entity created pursuant to interlocal contract for the purpose of
570-23 forming or administering any governmental pool, self-insurance
570-24 pool, insurance pool, or any other fund or joint endeavor created
570-25 for the benefit of member counties and political subdivisions. In
570-26 addition, a county judge or county commissioner may serve as a
76R5 MRB-D 570
571-1 member of the board of directors of any nonprofit corporation that
571-2 is created and exists solely for the purpose of providing
571-3 administrative or other services to such trust or other entity. A
571-4 county judge or county commissioner, acting as a member of any such
571-5 board or committee, may perform any act necessary or appropriate
571-6 for the rendition of such service, including the casting of votes
571-7 and deliberations concerning and execution of contracts or claims
571-8 with or against any county. A county judge or commissioner may
571-9 participate in deliberations concerning and cast any vote on any
571-10 matter before the commissioners court affecting the execution of
571-11 any contract with or the payment of claims, premiums, dues, or
571-12 contributions to any such trust, association, nonprofit
571-13 corporation, or entity or any related matter.
571-14 (d) Sections 81.024 and 81.025, Local Government Code, are
571-15 designated as Sections 81.023 and 81.024, Local Government Code,
571-16 respectively, Sections 81.028 and 81.029, Local Government Code,
571-17 are designated as Sections 81.027 and 81.028, Local Government
571-18 Code, respectively, and Section 81.031, Local Government Code, is
571-19 designated as Section 81.030, Local Government Code.
571-20 SECTION 13.04. Section 155.001, Local Government Code, as
571-21 amended by Section 1, Chapter 433, and Section 1, Chapter 817, Acts
571-22 of the 74th Legislature, Regular Session, 1995, is amended and
571-23 reenacted to read as follows:
571-24 Sec. 155.001. DEDUCTIONS AUTHORIZED IN COUNTIES; PURPOSES.
571-25 (a) The commissioners court, on the request of a county employee,
571-26 may authorize a payroll deduction to be made from the employee's
76R5 MRB-D 571
572-1 wages or salary for payment to a credit union.
572-2 (b) In a county with a population of 20,000 or more, the
572-3 commissioners court, on the request of a county employee, may
572-4 authorize a payroll deduction to be made from the employee's wages
572-5 or salary for:
572-6 (1) payment of membership dues in a labor union or a
572-7 bona fide employees association; [or]
572-8 (2) payment of fees for parking in a county-owned
572-9 facility; or
572-10 (3) [(4)] payment to a charitable organization.
572-11 (c) [(b)] In this section, "charitable organization" has the
572-12 meaning assigned by Section 659.131, Government Code [1, Article
572-13 6813h, Revised Statutes].
572-14 SECTION 13.05. Section 159.032(1), Local Government Code, is
572-15 amended to conform to Section 18, Chapter 1134, Acts of the 75th
572-16 Legislature, Regular Session, 1997, to read as follows:
572-17 (1) "County officer" means a sheriff, county tax
572-18 assessor-collector, county clerk, district clerk, county treasurer,
572-19 county auditor, or county purchasing agent. The term does not
572-20 include a county [or district] officer as defined by Section
572-21 159.002.
572-22 SECTION 13.06. (a) Section 194.0065, Local Government Code,
572-23 is transferred to Chapter 193, Local Government Code, for
572-24 organization purposes, is designated as Section 193.013, Local
572-25 Government Code, and is amended to read as follows:
572-26 Sec. 193.013 [194.0065]. COMPUTERIZED INDEX FOR CERTAIN
76R5 MRB-D 572
573-1 [OFFICIAL PUBLIC] RECORDS. An index for a [an official public]
573-2 record listed in Section 193.008(b) may be stored or maintained by
573-3 computer if[, provided that] a security or backup copy of the
573-4 [such] index is [be] created on a daily basis and stored in a
573-5 climate-controlled location that is[,] equipped with fire alarms
573-6 and sprinklers. The storage location[, which] must be separate
573-7 [and apart] from the building in which the computer is located.
573-8 (b) Sections 194.0025, 194.010, and 194.017, Local
573-9 Government Code, are repealed because those sections are superseded
573-10 by Subtitle C, Title 6, Local Government Code.
573-11 SECTION 13.07. Section 219.003(a), Local Government Code, is
573-12 amended for clarification purposes to read as follows:
573-13 (a) A comprehensive plan may be adopted or amended by
573-14 ordinance following:
573-15 (1) a hearing at which the public is given the
573-16 opportunity to give testimony and present written evidence; and
573-17 (2) [, if one exists,] review by the municipality's
573-18 planning commission or department, if one exists.
573-19 SECTION 13.08. (a) Section 363.051(a), Local Government
573-20 Code, is amended to conform to Section 1, Chapter 1248, Acts of the
573-21 75th Legislature, Regular Session, 1997, to read as follows:
573-22 (a) The creation of a crime control and prevention district
573-23 may be proposed under this chapter by a majority vote of the
573-24 governing body of a:
573-25 (1) county with a population of more than 130,000; or
573-26 (2) municipality that is partially or wholly located
76R5 MRB-D 573
574-1 in a county with a population of more than 5,000 [one million].
574-2 (b) Section 363.055(a), Local Government Code, is amended to
574-3 conform to Section 2, Chapter 1248, Acts of the 75th Legislature,
574-4 Regular Session, 1997, to read as follows:
574-5 (a) The proposed rate for the district sales and use tax
574-6 imposed under Subchapter B, Chapter 323, Tax Code, may be only:
574-7 (1) one-eighth of one percent;
574-8 (2) one-fourth of one percent;
574-9 (3) three-eighths of one percent; or
574-10 (4) [(2)] one-half of one percent.
574-11 (c) Subchapter C, Chapter 363, Local Government Code, is
574-12 amended to conform to Section 3, Chapter 1248, Acts of the 75th
574-13 Legislature, Regular Session, 1997, by adding Section 363.1015 to
574-14 read as follows:
574-15 Sec. 363.1015. ALTERNATE FORMS OF APPOINTMENT: BOARD OF
574-16 DIRECTORS. (a) The governing body of a municipality or county by
574-17 resolution may appoint the governing body's membership as the board
574-18 of directors of the district, if the appointment is approved by the
574-19 voters in a creation election or continuation referendum under this
574-20 chapter.
574-21 (b) A member of a governing body appointed under Subsection
574-22 (a) serves a term as a director concurrent with the member's term
574-23 on the governing body.
574-24 (c) In a district for which the board is not appointed under
574-25 Subsection (a), the governing body of the municipality or county
574-26 may create a board by having each member of the governing body
76R5 MRB-D 574
575-1 appoint one director to the board.
575-2 (d) A director appointed under Subsection (c) serves:
575-3 (1) at the pleasure of the appointing member of the
575-4 governing body; and
575-5 (2) for a term concurrent with the term of the
575-6 appointing member.
575-7 (d) Subchapter F, Chapter 363, Local Government Code, is
575-8 amended to conform to Section 4, Chapter 1248, Acts of the 75th
575-9 Legislature, Regular Session, 1997, by adding Section 363.2515 to
575-10 read as follows:
575-11 Sec. 363.2515. CONTINUATION OF DISTRICT: CERTAIN POLITICAL
575-12 SUBDIVISIONS. (a) The following entities may specify the number
575-13 of years for which a district should be continued:
575-14 (1) in a county with a population of one million or
575-15 more that created the district, the board or the commissioners
575-16 court; and
575-17 (2) in a municipality with a population of 75,000 or
575-18 less that created the district, the governing body of the
575-19 municipality.
575-20 (b) A district may be continued under Subsection (a) only
575-21 for 5, 10, 15, or 20 years.
575-22 (c) For a continuation referendum under this section, the
575-23 ballot shall be printed to permit voting for or against the
575-24 proposition: "Whether the ____ Crime Control and Prevention
575-25 District should be continued for ____ years and the crime control
575-26 and prevention district sales tax should be continued for ____
76R5 MRB-D 575
576-1 years."
576-2 (e) Section 363.301, Local Government Code, is amended to
576-3 conform to Section 5, Chapter 1248, Acts of the 75th Legislature,
576-4 Regular Session, 1997, by amending Subsection (a) and adding
576-5 Subsection (c) to read as follows:
576-6 (a) The district is dissolved on the fifth anniversary of
576-7 the date the district began to levy taxes for district purposes
576-8 [was created] if the district has not held a continuation or
576-9 dissolution referendum.
576-10 (c) Subsection (b) does not apply to a district that is
576-11 continued under Section 363.2515, and that district is dissolved at
576-12 the end of the period for which it was continued.
576-13 (f) Sections 1-5, Chapter 1248, Acts of the 75th
576-14 Legislature, Regular Session, 1997, are repealed.
576-15 SECTION 13.09. (a) Section 376.052(a), Local Government
576-16 Code, is amended to conform to Section 1, Chapter 591, Acts of the
576-17 75th Legislature, Regular Session, 1997, to read as follows:
576-18 (a) The district has:
576-19 (1) all powers necessary or required to accomplish the
576-20 purposes for which the district was created;
576-21 (2) the rights, powers, privileges, authority, and
576-22 functions of a district created under Chapter 375;
576-23 (3) the powers given to a corporation under Section
576-24 4B, the Development Corporation Act of 1979 (Article 5190.6,
576-25 Vernon's Texas Civil Statutes), and the power to own, operate,
576-26 acquire, construct, lease, improve, and maintain projects described
76R5 MRB-D 576
577-1 by that section;
577-2 (4) the power to impose ad valorem taxes, assessments,
577-3 or impact fees in accordance with Chapter 375 to provide
577-4 improvements and services for a project or activity the district is
577-5 authorized to acquire, construct, improve, or provide under this
577-6 subchapter; [and]
577-7 (5) the power to correct, add to, or delete
577-8 assessments from its assessment rolls after notice and hearing as
577-9 provided by Subchapter F, Chapter 375; and
577-10 (6) the power to grant, without additional procedures,
577-11 abatements for taxes or assessments owed to the district under
577-12 Chapter 312, Tax Code.
577-13 (b) Section 1, Chapter 591, Acts of the 75th Legislature,
577-14 Regular Session, 1997, is repealed.
577-15 SECTION 13.10. (a) Subtitle C, Title 12, Local Government
577-16 Code, is amended to codify Chapter 831, Acts of the 75th
577-17 Legislature, Regular Session, 1997 (Article 1269j-18, Vernon's
577-18 Texas Civil Statutes), and Chapter 1207, Acts of the 75th
577-19 Legislature, Regular Session, 1997 (Article 1269j-19, Vernon's
577-20 Texas Civil Statutes), and to revise and more appropriately locate
577-21 Chapter 2311, Government Code, by adding Chapter 396 to read as
577-22 follows:
577-23 CHAPTER 396. REDEVELOPMENT AUTHORITIES CREATED BY
577-24 MORE THAN ONE POLITICAL SUBDIVISION
577-25 SUBCHAPTER A. LUBBOCK REESE DEVELOPMENT AUTHORITY
577-26 Sec. 396.001. DEFINITIONS. In this subchapter:
76R5 MRB-D 577
578-1 (1) "Authority" means the Lubbock Reese Redevelopment
578-2 Authority.
578-3 (2) "Base property" means land described by Section
578-4 396.009.
578-5 (3) "Board" means the board of directors of the
578-6 authority.
578-7 (4) "County" means Lubbock County.
578-8 (5) "Municipality" means the City of Lubbock.
578-9 Sec. 396.002. ESTABLISHMENT. The authority is established
578-10 as a political subdivision, with boundaries the same as the
578-11 boundaries of the real property described by Section 396.009, on
578-12 adoption of resolutions by both the municipality and the county
578-13 authorizing the authority's establishment.
578-14 Sec. 396.003. BOARD. (a) The board consists of nine
578-15 members and is responsible for the management, operation, and
578-16 control of the authority.
578-17 (b) The board is composed of:
578-18 (1) two members appointed by the governing body of the
578-19 municipality;
578-20 (2) two members appointed by the governing body of the
578-21 county;
578-22 (3) one member appointed by the South Plains
578-23 Association of Governments; and
578-24 (4) four at-large members appointed by the majority
578-25 vote of the members appointed under Subdivisions (1), (2), and (3).
578-26 (c) A vacancy on the board is filled in the same manner as
76R5 MRB-D 578
579-1 the original appointment. Each board member serves for a term of
579-2 two years.
579-3 (d) The members of the board shall elect from its membership
579-4 a president and a vice president. The vice president shall preside
579-5 in the absence of the president.
579-6 (e) The board shall adopt rules for its proceedings and may
579-7 employ and compensate persons to carry out the powers and duties of
579-8 the authority.
579-9 Sec. 396.004. PURPOSE AND NATURE OF AUTHORITY. (a) The
579-10 authority may accept title, on approval by and in coordination with
579-11 the governor, from the United States to all or any portion of the
579-12 base property.
579-13 (b) The authority is a public political entity and corporate
579-14 body that exercises public and essential governmental functions.
579-15 (c) The exercise of a power granted by this subchapter is
579-16 for a public purpose and is a matter of public necessity.
579-17 (d) The authority is a governmental unit under Chapter 101,
579-18 Civil Practice and Remedies Code. The operations of the authority
579-19 are not proprietary functions for any purpose, including the
579-20 application of Chapter 101, Civil Practice and Remedies Code.
579-21 Sec. 396.005. POWERS OF AUTHORITY. (a) The authority may
579-22 exercise, on approval by and in coordination with the governor, all
579-23 the powers necessary or convenient to carry out a purpose of this
579-24 subchapter, including the power to:
579-25 (1) sue and be sued to the extent permitted by law,
579-26 and plead and be impleaded, in its own name;
76R5 MRB-D 579
580-1 (2) adopt an official seal and alter it as considered
580-2 advisable;
580-3 (3) adopt and enforce bylaws and rules for the conduct
580-4 of its affairs that are not inconsistent with this subchapter;
580-5 (4) acquire, hold, own, and dispose of its revenues,
580-6 income, receipts, funds, and money from every source;
580-7 (5) select its depository;
580-8 (6) set the fiscal year for the authority;
580-9 (7) establish a complete system of accounts for the
580-10 authority;
580-11 (8) invest funds in accordance with Chapter 2256,
580-12 Government Code;
580-13 (9) acquire, use, own, rent, lease, accept, hold, or
580-14 dispose of any property, or licenses, patents, rights, and other
580-15 interest in that property, by purchase, exchange, gift, assignment,
580-16 condemnation, sale, lease, or any other means, including
580-17 rights-of-way or easements, and hold, manage, operate, or improve
580-18 that property, to perform a duty or exercise a power under this
580-19 subchapter;
580-20 (10) sell, assign, lease, encumber, mortgage, or
580-21 otherwise dispose of any property comprising the base property, or
580-22 any interest in that property, release or relinquish any right,
580-23 title, claim, lien, interest, easement, or demand, however
580-24 acquired, and, notwithstanding any other law, conduct any
580-25 transaction authorized by this subdivision by public or private
580-26 sale;
76R5 MRB-D 580
581-1 (11) lease or rent any land or buildings, structures,
581-2 or facilities located on the base property to any person to carry
581-3 out the purposes of this subchapter;
581-4 (12) request and accept any appropriations, grants,
581-5 allocations, subsidies, guaranties, aid, contributions, services,
581-6 labor, materials, gifts, donations, or money from the federal
581-7 government, the state, any public agency or political subdivision,
581-8 or any other source;
581-9 (13) operate and maintain an office;
581-10 (14) appoint and determine the duties, tenure,
581-11 qualifications, compensation, and removal of officers, employees,
581-12 agents, professional advisors, and counselors, including financial
581-13 consultants, accountants, attorneys, architects, engineers,
581-14 appraisers, and financing experts, as considered necessary or
581-15 advisable by the board;
581-16 (15) borrow money as necessary to acquire, improve, or
581-17 operate facilities on the base property, not to exceed an amount
581-18 determined by the governing body of the municipality;
581-19 (16) fix, revise, charge, and collect rents, rates,
581-20 fees, and charges for its facilities and services;
581-21 (17) exercise the powers granted to municipalities
581-22 under Chapter 380 for expansion of economic development and
581-23 commercial activity; and
581-24 (18) adopt an annual operating budget for all major
581-25 expenditures before the beginning of the fiscal year.
581-26 (b) In a suit described by Subsection (a)(1), the authority
76R5 MRB-D 581
582-1 may not be required to give security for costs or a supersedeas or
582-2 cost bond in an appeal of a judgment.
582-3 Sec. 396.006. EXEMPTION FROM TAXATION. The property,
582-4 revenues, and income of the authority are exempt from a tax levied
582-5 by the state or a political subdivision of the state.
582-6 Sec. 396.007. DISSOLUTION. (a) The authority shall be
582-7 dissolved:
582-8 (1) when all the functions of the authority are
582-9 performed and completed; and
582-10 (2) on approval of the municipality and county after
582-11 all debts or obligations have been satisfied or retired with the
582-12 assets of the authority.
582-13 (b) It is the intention of the legislature that the
582-14 authority be dissolved after conveyance and sale of all of the base
582-15 property.
582-16 (c) Any remaining assets of the authority shall be conveyed
582-17 or transferred to the municipality and the county in accordance
582-18 with the initial proportion of funds contributed by each.
582-19 Sec. 396.008. SUCCESSOR. The authority is the successor in
582-20 interest to the Lubbock Reese Redevelopment Authority Corporation,
582-21 a nonprofit corporation organized under the Texas Non-Profit
582-22 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
582-23 Statutes), and succeeds to all rights and liabilities of the
582-24 corporation.
582-25 Sec. 396.009. DESCRIPTION OF TRACTS. (1) FIRST TRACT. All
582-26 of Section Four (4) and the East Half (E 1/2) of Section Twenty-six
76R5 MRB-D 582
583-1 (26) except that part of said Sections lying south of the north
583-2 right-of-way line of State Highway No. 290 as same now exists; and
583-3 the South Half (S 1/2) of Section Twenty-five (25), all in Block
583-4 D-6; and the Southeast Quarter (SE 1/4) of Section Forty-eight (48)
583-5 Block P, and containing 1387.66 acres more or less, and all
583-6 easements appurtenant thereto, together with any improvements and
583-7 personal property related therein;
583-8 (2) SECOND TRACT. A strip of land adjacent to and
583-9 extending fifty (50) feet in width on each side of the following
583-10 described line: Commencing at the northeast corner of Section Five
583-11 (5), Block D-6; thence west along the north line of said Section
583-12 Five (5), a distance of two-hundred (200) feet; thence south at
583-13 right angles to said north line a distance of fifty (50) feet to
583-14 the point of beginning; thence continuing south at right angles to
583-15 said north line a distance of one-hundred sixty (160) feet, more or
583-16 less, to a point of curve; thence southwesterly on a curve to the
583-17 right with a radius of nine-hundred forty-two and twenty-nine
583-18 hundredths (942.29) feet, a distance of one-thousand three-hundred
583-19 ninety-six (1396) feet, more or less, to a point of intersection
583-20 with a line parallel with and seventy-five (75) feet northeasterly
583-21 from, measured at right angles to, the centerline of the main track
583-22 of the South Plains and Santa Fe Railway Company, containing 3.57
583-23 acres, more or less, and all easements appurtenant thereto,
583-24 together with any improvements and personal property related
583-25 therein;
583-26 (3) THIRD TRACT (Radio Transmitter Site). A parcel of
76R5 MRB-D 583
584-1 land described as beginning at the northwest corner of the
584-2 southwest quarter (SW 1/4) of Section Two (2), Block D-6; thence
584-3 east six-hundred sixty (660) feet, thence south six-hundred sixty
584-4 (660) feet, thence west six-hundred sixty (660) feet, thence north
584-5 six-hundred sixty (660) feet to the place of beginning, containing
584-6 ten (10) acres, more or less, and all easements appurtenant
584-7 thereto, together with any improvements and personal property
584-8 related therein;
584-9 (4) FOURTH TRACT (Radio Range Site). A certain parcel
584-10 of land described as beginning at the southwest corner of the east
584-11 half (E 1/2) of Section Thirty-eight (38), Block JS, thence north
584-12 five-hundred twenty-two (522) feet, thence east five-hundred (500)
584-13 feet, thence south five-hundred twenty-two (522) feet, thence west
584-14 five-hundred (500) feet to the point of beginning containing six
584-15 (6) acres, more or less, all easements appurtenant thereto,
584-16 together with any improvements and personal property related
584-17 therein;
584-18 (5) FIFTH TRACT (Terry County Auxiliary Air Field). A
584-19 parcel of land situated in Section 27, Block E, E.L. & R.R. Co.
584-20 Survey, County of Terry, State of Texas, being more particularly
584-21 described as follows: beginning at a 1/2" iron rod in the south
584-22 line of Section 27 that bears west, a distance of 1820 feet from
584-23 the section corner common to Sections 27 and 30, Block E for the
584-24 southeast corner of this tract; Thence north 88 35' west, along the
584-25 south line of said Section 27, a distance of 1870 feet to a 1/2"
584-26 iron rod for the southwest corner of this tract; Thence north 02
76R5 MRB-D 584
585-1 23' east, a distance of 5195.4 feet to a 1/2" iron rod set under a
585-2 fence for the northwest corner of this tract; Thence south 88 33'
585-3 east, along an east-west fence line, a distance of 100 feet to a
585-4 point; Thence south 2 23' west, a distance of 200 feet to a 1/2"
585-5 iron pipe for an inside corner of this tract; Thence south 88 33'
585-6 east, a distance of 1770 feet to a 1/2" iron pipe for the northeast
585-7 corner of this tract which bears south, a distance of 200 feet from
585-8 an east-west fence; Thence south 02 23' west, a distance of 4993.2
585-9 feet to the point of beginning, containing an area of 214.86 acres,
585-10 more or less, and all easements appurtenant thereto, together with
585-11 any improvements and personal property related therein.
585-12 (6) SIXTH TRACT (Terry County Auxiliary Air Field). A
585-13 parcel of land situated in Section 30, Block E, E.L. & R.R. R.R.
585-14 Co. Survey, County of Terry, State of Texas, being more
585-15 particularly described as: Beginning at a 1/2" iron rod in a line
585-16 common to the north line of Section 30 and the south line of
585-17 Section 27 which bears west, a distance of 1820 feet from the
585-18 section corner common to Sections 27 and 30, Block E for the
585-19 northeast corner of this tract; Thence south 02 23' west, a
585-20 distance of 5208.1 feet to a point for the southeast corner of this
585-21 tract which bears west, a distance of 1835.5 feet form the
585-22 southeast corner of Section 30; Thence north 88 55' west, along an
585-23 east-west fence on the south line of Section 30, a distance of 1855
585-24 feet to a point for the southwest corner of this tract; Thence
585-25 north 43 16' west, a distance of 21.5 feet to a 1/2" iron rod, set
585-26 for a corner of this tract, which bears north, a distance of 15
76R5 MRB-D 585
586-1 feet from an east-west fence; Thence north 02 23' east, a distance
586-2 of 5203.4 feet to a 1/2" iron rod for the northwest corner of this
586-3 tract which bears east, a distance of 1590 feet from the northwest
586-4 corner of Section 30; Thence south 88 35' east, along the north
586-5 line of Section 30, a distance of 1870 feet to the point of
586-6 beginning, containing an area of 223.80 acres, more or less, and
586-7 all easements appurtenant thereto, together with any improvements
586-8 and personal property related therein.
586-9 (7) SEVENTH TRACT (Terry County Auxiliary Air Field).
586-10 A parcel of land situated in Section 33, Block E, E. L. & R. R.
586-11 R.R. Co. Survey, County of Terry, State of Texas, being more
586-12 particularly described as follows: Beginning at a point under a
586-13 fence along the north line of Section 33 that bears west, a
586-14 distance of 1835.5 feet form a 2" iron pipe marking the northeast
586-15 corner of Section 33; Thence south 02 23' west, a distance of 400
586-16 feet to a 1/2" reinforcing rod for the southeast corner of this
586-17 tract; Thence north 88 55' west, along a line parallel to and 400
586-18 feet south of an east-west fence along the north line of Section
586-19 33, a distance of 1455 feet to a 1/2" iron rod for the southwest
586-20 corner of this tract; Thence north 43 16' west. a distance of 558.7
586-21 feet to a point for the northwest corner of this tract; Thence
586-22 south 88 55' east, with an east-west fence along the north line of
586-23 Section 33, a distance of 1855 feet to the northeast corner of this
586-24 tract and the point of beginning, containing an area of 15.20
586-25 acres, more or less, and all easements appurtenant thereto,
586-26 together with any improvements and personal property related
76R5 MRB-D 586
587-1 therein.
587-2 (8) EIGHTH TRACT (Terry County Auxiliary Air Field).
587-3 A parcel of land situated in Section 33, Block E, E.L. & R.R.
587-4 Railroad Co., Survey, County of Terry, State of Texas, being more
587-5 particularly described as follows: Beginning at a point that bears
587-6 west, a distance of 1835.5 feet and south 02 23' west, a distance
587-7 of 400 feet from the northeast corner of Section 33, Block E, E.L.
587-8 & R.R. Railroad Co., Survey; thence south 02 23' west, a distance
587-9 of 1500 feet; thence north 88 55' west, parallel to the north line
587-10 of Section 33, a distance of 1870 feet; thence north 02 23' east, a
587-11 distance of 1890.55 feet; thence south 88 55' east, a distance of
587-12 15.34 feet; thence south 43 16' east, a distance of 558.70 feet;
587-13 thence south 88 55' east, a distance of 1455.14 feet to the point
587-14 of beginning, containing 66.34 acres, more or less, and all
587-15 easements appurtenant thereto, together with any improvements and
587-16 personal property related therein.
587-17 (Sections 396.010-396.030 reserved for expansion
587-18 SUBCHAPTER B. WESTWORTH VILLAGE-WHITE SETTLEMENT
587-19 REDEVELOPMENT AUTHORITY
587-20 Sec. 396.031. DEFINITIONS. In this subchapter:
587-21 (1) "Authority" means the Westworth Village-White
587-22 Settlement Redevelopment Authority.
587-23 (2) "Board" means the board of directors of the
587-24 authority.
587-25 Sec. 396.032. ESTABLISHMENT. The authority is established
587-26 as a political subdivision with boundaries the same as the
76R5 MRB-D 587
588-1 boundaries of Westworth Village and White Settlement if each
588-2 municipality:
588-3 (1) adopts a resolution authorizing the authority's
588-4 establishment; and
588-5 (2) appoints three members to the board of the
588-6 authority.
588-7 Sec. 396.033. BOARD. (a) The board consists of six members
588-8 and is responsible for the management, operation, and control of
588-9 the authority.
588-10 (b) The governing body of each municipality in the authority
588-11 shall appoint three members to the board.
588-12 (c) Members of the board serve for terms of two years.
588-13 (d) The board shall select from its membership a person to
588-14 serve as presiding officer and a person to serve as assistant
588-15 presiding officer. The assistant presiding officer shall preside
588-16 in the absence of the presiding officer. The board shall also
588-17 select a secretary-treasurer, who is not required to be a member of
588-18 the board.
588-19 (e) A vacancy on the board is filled in the manner provided
588-20 for the original appointment, and a person filling a vacancy serves
588-21 for the unexpired term.
588-22 (f) The board may employ all persons necessary to carry out
588-23 the functions of the authority.
588-24 Sec. 396.034. PURPOSE. (a) The authority is created:
588-25 (1) to accept title, on approval by and in
588-26 coordination with the governor, from the United States to all or
76R5 MRB-D 588
589-1 any portion of the real property situated:
589-2 (A) within the boundaries of the authority,
589-3 together with any improvements located on the property and personal
589-4 property related to the property, commonly referred to as Parcel
589-5 A - 18 Hole Golf Course; Parcel B - Wherry Housing Area; Parcel
589-6 C - Kings Branch Housing Area; Parcel D - Stables Area and Vacant
589-7 Land; Parcel E - 5 acres; Parcel F - 18 acres; Parcel H - Firing
589-8 Range; and
589-9 (B) outside the boundaries of the authority
589-10 within an unincorporated area in Tarrant County, together with any
589-11 improvements located on the property and personal property related
589-12 to the property, commonly referred to as Parcel G - Weapons Storage
589-13 Area; and
589-14 (2) to use the property and all assistance available
589-15 for the property from the United States and all other sources to
589-16 replace and enhance the economic benefits generated for the
589-17 property by Carswell Air Force Base with diversified activity,
589-18 including planned land uses to foster creation of new jobs,
589-19 economic development, industry, commerce, manufacturing, housing,
589-20 and recreation and the construction, operation, and maintenance of
589-21 facilities, improvements, and infrastructures on the property.
589-22 (b) Any use or development of land within Parcel G may not
589-23 be undertaken without the prior written consent of the City of Fort
589-24 Worth.
589-25 Sec. 396.035. POWERS OF AUTHORITY. The authority may
589-26 exercise, on approval by and in coordination with the governor, all
76R5 MRB-D 589
590-1 powers necessary or appropriate to carry out the purposes of this
590-2 subchapter, including the power to:
590-3 (1) sue and be sued, and plead and be impleaded, in
590-4 its own name;
590-5 (2) adopt an official seal, and alter the seal when
590-6 advisable;
590-7 (3) adopt and enforce bylaws and rules for the conduct
590-8 of its affairs that are not inconsistent with this subchapter;
590-9 (4) acquire, hold, use, and dispose of its revenues,
590-10 income, receipts, funds, and money from every source and to select
590-11 its depository;
590-12 (5) acquire, own, rent, lease, accept, hold, or
590-13 dispose of any property or interest in property, including rights
590-14 or easements, in performing its duties and exercising its powers
590-15 under this subchapter by purchase, exchange, gift, assignment,
590-16 condemnation, sale, lease, or otherwise and to hold, manage,
590-17 operate, or improve the property;
590-18 (6) sell, assign, lease, encumber, mortgage, or
590-19 otherwise dispose of any property or interest in property, and
590-20 release or relinquish any right, title, claim, lien, interest,
590-21 easement, or demand however acquired;
590-22 (7) perform an activity authorized by Subdivision (6)
590-23 by public or private sale, with or without public bidding,
590-24 notwithstanding any other law;
590-25 (8) lease or rent any lands within the property and
590-26 buildings, structures, or facilities located on the property from
76R5 MRB-D 590
591-1 or to any person or municipality or other public agency or
591-2 political subdivision to carry out the purposes of this subchapter;
591-3 (9) request and accept any appropriations, grants,
591-4 allocations, subsidies, guaranties, aid, contributions, services,
591-5 labor, materials, gifts, or donations from the federal government,
591-6 the state, any public agency or political subdivision, or any other
591-7 source;
591-8 (10) operate and maintain an office and appoint and
591-9 determine the duties, tenure, qualifications, and compensation of
591-10 officers, employees, agents, and professional advisors and
591-11 counselors, including financial consultants, accountants,
591-12 attorneys, architects, engineers, appraisers, and financing
591-13 experts, as considered necessary or advisable by the board;
591-14 (11) borrow money;
591-15 (12) fix, revise, charge, and collect rents, rates,
591-16 fees, and charges for its facilities and services;
591-17 (13) acquire land or any interest in land within the
591-18 boundaries of the authority by condemnation in the manner provided
591-19 by Chapter 21, Property Code, subject to the approval of each
591-20 municipality in the authority; and
591-21 (14) exercise the powers granted to municipalities
591-22 under Chapters 373 and 380 for the development of housing and
591-23 expansion of economic development and commercial activity.
591-24 Sec. 396.036. EXEMPTION FROM TAXATION. The properties,
591-25 revenues, and income of the authority are exempt from all taxes
591-26 levied by the state or a political subdivision of the state.
76R5 MRB-D 591
592-1 Sec. 396.037. COMPETITIVE BIDS. (a) A contract in the
592-2 amount of more than $15,000 for the construction of improvements or
592-3 the purchase of material, machinery, equipment, supplies, or any
592-4 other property except real property may only be let on competitive
592-5 bids after notice is published in a newspaper of general
592-6 circulation in the authority before the 15th day before the date
592-7 set for receiving bids.
592-8 (b) The board may adopt rules governing the receiving of
592-9 bids and the awarding of contracts.
592-10 (c) This section does not apply to personal or professional
592-11 services or the acquisition or sale of the property.
592-12 Sec. 396.038. DISSOLUTION. (a) The authority may be
592-13 dissolved by the board on approval of each municipality in the
592-14 authority after all debts or obligations have been satisfied or
592-15 retired. It is the intent of the legislature that the authority be
592-16 dissolved after conveyance and sale of all of the property.
592-17 (b) Assets of the authority remaining after all debts or
592-18 obligations have been satisfied are to be conveyed or transferred
592-19 to the municipalities in the authority as approved by the board.
592-20 (Sections 396.039-396.060 reserved for expansion
592-21 SUBCHAPTER C. RED RIVER REDEVELOPMENT AUTHORITY
592-22 Sec. 396.061. DEFINITIONS. In this subchapter:
592-23 (1) "Authority" means the Red River Redevelopment
592-24 Authority.
592-25 (2) "Board" means the board of directors of the
592-26 authority.
76R5 MRB-D 592
593-1 (3) "County" means Bowie County.
593-2 (4) "Eligible municipality" includes only the cities
593-3 of Texarkana, New Boston, Hooks, Nash, Wake Village, Leary,
593-4 Redwater, Maud, and DeKalb.
593-5 Sec. 396.062. ESTABLISHMENT. The authority is established
593-6 as a political subdivision with boundaries the same as the
593-7 boundaries of the real property described in Section 396.064(1), if
593-8 each eligible municipality and the county:
593-9 (1) adopts resolutions authorizing the authority's
593-10 establishment; and
593-11 (2) appoints members to the board as provided by
593-12 Section 396.063.
593-13 Sec. 396.063. BOARD. (a) The board consists of 15 members
593-14 and is responsible for the management, operation, and control of
593-15 the authority.
593-16 (b) The board is composed of the following members:
593-17 (1) two members appointed by the county judge of the
593-18 county;
593-19 (2) one member appointed by the commissioners court of
593-20 the county;
593-21 (3) three members appointed by the mayor of Texarkana;
593-22 (4) one member appointed by the mayor of New Boston;
593-23 (5) one member appointed by the mayor of Hooks;
593-24 (6) one member appointed by the mayor of Nash;
593-25 (7) one member appointed by the mayor of Wake Village;
593-26 (8) one member appointed by the mayor of Leary;
76R5 MRB-D 593
594-1 (9) one member appointed by the mayor of Redwater;
594-2 (10) one member appointed by the mayor of Maud;
594-3 (11) one member appointed by the mayor of DeKalb; and
594-4 (12) one at-large member elected by the appointed
594-5 members.
594-6 (c) A vacancy on the board is filled in the same manner as
594-7 the original appointment. Each board member serves for a term of
594-8 two years.
594-9 (d) A board member who is also an elected official serves
594-10 for a term coinciding with the term of the elected office.
594-11 (e) The board shall elect from its membership a president
594-12 and a vice president. The vice president shall preside in the
594-13 absence of the president.
594-14 (f) The board shall adopt rules to govern its proceedings.
594-15 (g) The board may employ persons to carry out the powers and
594-16 duties of the authority.
594-17 (h) A board member may be recalled at any time by the
594-18 appointing official.
594-19 Sec. 396.064. PURPOSE. The authority is created to:
594-20 (1) accept title on approval by and in coordination
594-21 with the governor from the United States to all or any portion of
594-22 the property situated within Red River Army Depot, as legally
594-23 described by the United States Army Corps of Engineers, Fort Worth
594-24 District, now or in the future life of the authority;
594-25 (2) promote the location and development of new
594-26 businesses and industries on the property described in Subdivision
76R5 MRB-D 594
595-1 (1); and
595-2 (3) undertake a project necessary or incidental to the
595-3 industrial, commercial, or business development, redevelopment,
595-4 maintenance, and expansion of new or existing businesses on the
595-5 property described in Subdivision (1), including the acquisition,
595-6 construction, operation, maintenance, or enhancement of:
595-7 (A) roads, bridges, and rights-of-way;
595-8 (B) housing;
595-9 (C) property;
595-10 (D) police, fire, medical, cultural,
595-11 educational, and research services, equipment, institutions, and
595-12 resources;
595-13 (E) other community support services;
595-14 (F) flood control, water, wastewater treatment,
595-15 and other utility facilities; and
595-16 (G) other infrastructure improvements.
595-17 Sec. 396.065. POWERS OF AUTHORITY. (a) Except as provided
595-18 by Subsection (b), the authority may exercise, on approval by and
595-19 in coordination with the governor, all powers necessary or
595-20 appropriate to carry out the purposes of this subchapter, including
595-21 the power to:
595-22 (1) sue and be sued, and plead and be impleaded, in
595-23 its own name;
595-24 (2) adopt an official seal, and alter the seal when
595-25 advisable;
595-26 (3) adopt and enforce bylaws and rules for the conduct
76R5 MRB-D 595
596-1 of its affairs that are not inconsistent with this subchapter;
596-2 (4) acquire, hold, own, and dispose of its revenues,
596-3 income, receipts, funds, and money from every source and to select
596-4 its depository;
596-5 (5) acquire, own, rent, lease, accept, hold, or
596-6 dispose of any property, or any interest in property, including
596-7 rights or easements, in performing its duties and exercising its
596-8 powers under this subchapter, by purchase, exchange, gift,
596-9 assignment, condemnation, sale, lease, or otherwise, and to hold,
596-10 manage, operate, or improve the property;
596-11 (6) sell, assign, lease, encumber, mortgage, or
596-12 otherwise dispose of any property, or any interest in property, and
596-13 release or relinquish any right, title, claim, lien, interest,
596-14 easement, or demand however acquired;
596-15 (7) perform an activity authorized by Subdivision (6)
596-16 by public or private sale, with or without public bidding,
596-17 notwithstanding any other law;
596-18 (8) lease or rent any lands within the property and
596-19 buildings, structures, or facilities located on the property from
596-20 or to any person or municipality or other public agency or
596-21 political subdivision to carry out the purposes of this subchapter;
596-22 (9) request and accept any appropriations, grants,
596-23 allocations, subsidies, guaranties, aid, contributions, services,
596-24 labor, materials, gifts, or donations from the federal government,
596-25 the state, any public agency or political subdivision, or any other
596-26 source;
76R5 MRB-D 596
597-1 (10) operate and maintain an office and appoint and
597-2 determine the duties, tenure, qualifications, and compensation of
597-3 officers, employees, agents, professional advisors and counselors,
597-4 including financial consultants, accountants, attorneys,
597-5 architects, engineers, appraisers, and financing experts, as
597-6 considered necessary or advisable by the board;
597-7 (11) borrow money;
597-8 (12) fix, revise, charge, and collect rents, rates,
597-9 fees, and charges for its facilities and services;
597-10 (13) exercise the powers granted to municipalities
597-11 under Chapters 373 and 380 for the development of housing and
597-12 expansion of economic development and commercial activity;
597-13 (14) exercise the powers granted to general-law
597-14 districts under Chapter 49, Water Code, and to municipal utility
597-15 districts under Chapter 54, Water Code;
597-16 (15) exercise the powers granted to road utility
597-17 districts under Chapter 441, Transportation Code; and
597-18 (16) exercise the powers granted to municipalities and
597-19 counties under Subchapter C, Chapter 271.
597-20 (b) The authority may not use the power of eminent domain.
597-21 Sec. 396.066. EXEMPTION FROM TAXATION. The properties,
597-22 revenues, and income of the authority are exempt from all taxes
597-23 levied by the state or a political subdivision of the state.
597-24 Sec. 396.067. DISSOLUTION. (a) The authority may be
597-25 dissolved by the board on approval of each eligible municipality
597-26 and the county after all debts or obligations have been satisfied
76R5 MRB-D 597
598-1 or retired. It is the intent of the legislature that the authority
598-2 be dissolved after conveyance and sale of all of the property with
598-3 the approval of the governing bodies of the county and eligible
598-4 municipalities.
598-5 (b) Assets of the authority remaining after all debts or
598-6 obligations have been satisfied are to be conveyed or transferred
598-7 to the county.
598-8 Sec. 396.068. SUCCESSOR. (a) The authority is the
598-9 successor in interest to the Red River Local Redevelopment
598-10 Authority, a planning authority organized under the county and
598-11 recognized by the United States Department of the Army, and
598-12 succeeds to all rights and liabilities of the Red River Local
598-13 Redevelopment Authority.
598-14 (b) Chapter 2311, Government Code, is repealed.
598-15 (c) Chapter 831, Acts of the 75th Legislature, Regular
598-16 Session, 1997 (Article 1269j-18, Vernon's Texas Civil Statutes),
598-17 and Chapter 1207, Acts of the 75th Legislature, Regular Session,
598-18 1997 (Article 1269j-19, Vernon's Texas Civil Statutes), are
598-19 repealed.
598-20 PART 2. DISPOSAL OF SECTION 81.028,
598-21 LOCAL GOVERNMENT CODE
598-22 SECTION 13.11. (a) Section 81.028, Local Government Code,
598-23 as renumbered as Section 81.027, Local Government Code, by Section
598-24 13.03(d) of this Act, is amended to read as follows:
598-25 Sec. 81.027 [81.028]. SUPPORT OF PAUPERS [CERTAIN POWERS
598-26 SPECIFIED]. Each commissioners court may[:]
76R5 MRB-D 598
599-1 [(1) establish public ferries whenever the public
599-2 interest may require;]
599-3 [(2) lay out and establish, change, discontinue,
599-4 close, abandon, or vacate public roads and highways;]
599-5 [(3) build bridges and keep them in repair;]
599-6 [(4) appoint road overseers and apportion hands;]
599-7 [(5) exercise general control over all roads,
599-8 highways, ferries, and bridges in their counties;]
599-9 [(6)] provide for the support of paupers, residents of
599-10 their county, who are unable to support themselves. [A county is
599-11 obligated to provide health care assistance to eligible residents
599-12 only to the extent prescribed by Chapter 61, Health and Safety
599-13 Code, but that chapter does not affect the authority of a
599-14 commissioners court to provide eligibility standards or other
599-15 requirements relating to other assistance programs or services that
599-16 are not covered by Chapter 61; and]
599-17 [(7) establish a least cost review program for public
599-18 improvements to be constructed by use of personnel, equipment, or
599-19 facilities of the county that may exceed a cost of $100,000 or a
599-20 lesser amount in the discretion of the commissioners court.]
599-21 (b) Subchapter A, Chapter 251, Transportation Code, is
599-22 amended by adding Section 251.016 to read as follows:
599-23 Sec. 251.016. GENERAL COUNTY AUTHORITY OVER ROADS, HIGHWAYS,
599-24 AND BRIDGES. The commissioners court of a county may exercise
599-25 general control over all roads, highways, and bridges in the
599-26 county.
76R5 MRB-D 599
600-1 (c) The subchapter heading to Subchapter A, Chapter 342,
600-2 Transportation Code, is amended to read as follows:
600-3 SUBCHAPTER A. GOVERNMENT-OWNED FERRIES [STATE-OWNED FERRY]
600-4 (d) Subchapter A, Chapter 342, Transportation Code, is
600-5 amended by adding Section 342.002, to read as follows:
600-6 Sec. 342.002. COUNTY FERRIES. The commissioners court of a
600-7 county may establish public ferries as required by the public
600-8 interest.
600-9 (e) Subchapter C, Chapter 342, Transportation Code, is
600-10 amended by adding Section 342.108 to read as follows:
600-11 Sec. 342.108. GENERAL COUNTY AUTHORITY OVER FERRIES. The
600-12 commissioners court of a county may exercise general control over
600-13 all ferries in the county.
600-14 (f) Subchapter A, Chapter 262, Local Government Code, is
600-15 amended by adding Section 262.006 to read as follows:
600-16 Sec. 262.006. LEAST COST REVIEW PROGRAM. The commissioners
600-17 court of a county may establish a least cost review program for
600-18 public improvements to be constructed by the use of personnel,
600-19 equipment, or facilities of the county that may exceed a cost of:
600-20 (1) $100,000; or
600-21 (2) an amount less than $100,000 as determined by the
600-22 commissioners court.
600-23 (g) Subchapter B, Chapter 61, Health and Safety Code, is
600-24 amended by adding Section 61.0221 to read as follows:
600-25 Sec. 61.0221. AUTHORITY RELATING TO OTHER ASSISTANCE
600-26 PROGRAMS. This subchapter does not affect the authority of the
76R5 MRB-D 600
601-1 commissioners court of a county to provide eligibility standards or
601-2 other requirements relating to assistance programs or services that
601-3 are not covered by this subchapter.
601-4 PART 3. CONFORMING TERMINOLOGY
601-5 SECTION 13.12. Section 43.0751(f), Local Government Code, is
601-6 amended to conform to the terminology of the Local Government Code
601-7 to read as follows:
601-8 (f) A strategic partnership agreement may provide for the
601-9 following:
601-10 (1) limited-purpose annexation of the district under
601-11 the provisions of Subchapter F provided that the district shall
601-12 continue in existence during the period of limited-purpose
601-13 annexation;
601-14 (2) such amendments to the timing requirements of
601-15 Sections 43.123(d)(2) and 43.127(b) as may be necessary or
601-16 convenient to effectuate the purposes of the agreement;
601-17 (3) payments by the municipality to the district for
601-18 services provided by the district;
601-19 (4) annexation of any commercial property in a
601-20 district for full purposes by the municipality, notwithstanding any
601-21 other provision of this code or the Water Code, except for the
601-22 obligation of the municipality to provide, directly or through
601-23 agreement with other units of government, full provision of
601-24 municipal services to annexed territory, in lieu of any annexation
601-25 of residential property or payment of any fee on residential
601-26 property in lieu of annexation of residential property in the
76R5 MRB-D 601
602-1 district authorized by this subsection;
602-2 (5) a full-purpose annexation provision that specifies
602-3 one of the following:
602-4 (A) the date on which the land included within
602-5 the district's boundaries shall be converted from the
602-6 municipality's limited-purpose jurisdiction to its full-purpose
602-7 jurisdiction, provided that such date shall not be later than 10
602-8 years after the effective date of the strategic partnership
602-9 agreement; or
602-10 (B)(i) terms for payment of an annual fee to the
602-11 municipality by the district in lieu of full-purpose annexation,
602-12 the form in which each such payment must be tendered, a method of
602-13 calculating the fee, and the date by which each such payment must
602-14 be made; failure by a district to timely make an annual payment in
602-15 lieu of full-purpose annexation in the amount and form required by
602-16 a strategic partnership agreement shall be the only ground for
602-17 termination of the agreement with respect to annexation at the
602-18 option of the municipality;
602-19 (ii) to determine a reasonable fee to be
602-20 derived from residential property in a district, the municipality
602-21 or the district may request a cost-of-service study by an
602-22 independent third party agreeable to both parties if
602-23 cost-of-service data prepared by the municipality is not
602-24 acceptable. Both parties shall be equally responsible for the cost
602-25 of the study, which shall include an evaluation of the estimated
602-26 annual cost of providing municipal services to the residential
76R5 MRB-D 602
603-1 portion of the district over the next 10 years and the estimated
603-2 annual amount of ad valorem taxes from residential property the
603-3 municipality [city] would receive on full-purpose annexation of the
603-4 district over the next 10 years. The fee shall not exceed the
603-5 estimated annual amount of residential ad valorem taxes that would
603-6 be derived by full-purpose annexation of the district, less the
603-7 estimated annual amount required to provide municipal services to
603-8 the residential property in the district if annexed for full
603-9 purposes. A fee determined through this methodology is subject to
603-10 renegotiation every 10 years at the request of either party to the
603-11 agreement following the same procedure used to set the fee in the
603-12 original agreement. This methodology does not apply to fees from
603-13 commercial property;
603-14 (6) conversion of the district to a limited district
603-15 including some or all of the land included within the boundaries of
603-16 the district, which conversion shall be effective on the
603-17 full-purpose annexation conversion date established under
603-18 Subdivision (5)(A);
603-19 (7) agreements existing between districts and
603-20 governmental bodies and private providers of municipal services in
603-21 existence on the date a municipality evidences its intention by
603-22 adopting a resolution to negotiate for a strategic partnership
603-23 agreement with the district shall be continued and provision made
603-24 for modifications to such existing agreements; and
603-25 (8) such other lawful terms that the parties consider
603-26 appropriate.
76R5 MRB-D 603
604-1 SECTION 13.13. Section 81.005(c), Local Government Code, is
604-2 amended to conform to the terminology of the Local Government Code
604-3 to read as follows:
604-4 (c) Except as provided by Subsection (f) of this section,
604-5 the term shall be held at:
604-6 (1) the county seat at the courthouse;
604-7 (2) an auxiliary courthouse, courthouse annex, or
604-8 another building in the county acquired by the county under Chapter
604-9 292, 293, or 305 or another law, that houses county administration
604-10 offices or county or district courts, located inside the
604-11 municipal [city] limits of the county seat;
604-12 (3) the regular meeting place of another political
604-13 subdivision if:
604-14 (A) the commissioners court meets with the
604-15 governing body of that political subdivision located wholly or
604-16 partly within the county; and
604-17 (B) the regular meeting place of that political
604-18 subdivision is in the county;
604-19 (4) a meeting place in the county in a building owned
604-20 by another political subdivision located wholly or partly in the
604-21 county if:
604-22 (A) the commissioners court meets with the
604-23 governing body of that political subdivision;
604-24 (B) the places where the commissioners court and
604-25 the governing body of the political subdivision regularly hold
604-26 their meetings are not large enough to accommodate the number of
76R5 MRB-D 604
605-1 persons expected to attend the meeting; and
605-2 (C) the meeting place in the building owned by
605-3 the political subdivision is large enough to accommodate the
605-4 expected number of persons; or
605-5 (5) a meeting place in the county in a building owned
605-6 by the county if:
605-7 (A) the place where the commissioners court
605-8 regularly holds its meetings is not large enough to accommodate the
605-9 number of persons expected to attend the meeting; and
605-10 (B) the meeting place in the building owned by
605-11 the county is large enough to accommodate the expected number of
605-12 persons.
605-13 SECTION 13.14. Section 101.0221, Local Government Code, is
605-14 amended to conform to the terminology of the Local Government Code
605-15 to read as follows:
605-16 Sec. 101.0221. FISCAL YEAR FOR CERTAIN MUNICIPALITIES.
605-17 Notwithstanding any fiscal year provision in the municipal [city]
605-18 charter, a municipality with a population in excess of 500,000
605-19 which is situated in a county bordering the Republic of Mexico may
605-20 prescribe its fiscal year by ordinance.
605-21 SECTION 13.15. Section 143.208, Local Government Code, is
605-22 amended to conform to the terminology of the Local Government Code
605-23 to read as follows:
605-24 Sec. 143.208. REPEAL OF AGREEMENT BY ELECTORATE. Within 45
605-25 days after an agreement is ratified and signed by both the
605-26 municipality and the fire fighters association recognized as the
76R5 MRB-D 605
606-1 sole and exclusive bargaining agent, a petition signed by a number
606-2 of registered voters equal to 10 percent of the votes cast at the
606-3 most recent mayoral general election may be presented to the
606-4 municipal [city] secretary calling an election for the repeal of
606-5 the agreement. Thereupon, the governing body shall reconsider the
606-6 agreement and, if it does not repeal the agreement, shall call an
606-7 election of the qualified voters to determine if they desire to
606-8 repeal the agreement. The election shall be called for the next
606-9 municipal election or a special election called by the governing
606-10 body for that purpose. If at the election a majority of the votes
606-11 are cast in favor of the repeal of the adoption of the agreement,
606-12 then the agreement shall become null and void. The ballot shall be
606-13 printed to provide for voting FOR or AGAINST the proposition:
606-14 "Repeal of the adoption of the agreement ratified by the
606-15 municipality and the fire fighters association concerning wages,
606-16 salaries, rates of pay, hours of work, and other terms and
606-17 conditions of employment."
606-18 SECTION 13.16. Section 174.003(5), Local Government Code, is
606-19 amended to conform to the terminology of the Local Government Code
606-20 to read as follows:
606-21 (5) "Public employer" means the official or group of
606-22 officials of a political subdivision whose duty is to establish the
606-23 compensation, hours, and other conditions of employment of fire
606-24 fighters, police officers, or both, and may include the mayor, city
606-25 manager, town manager, town administrator, municipal governing body
606-26 [city council], director of personnel, personnel board,
76R5 MRB-D 606
607-1 commissioners, or another official or combination of those persons.
607-2 SECTION 13.17. Section 232.033(c), Local Government Code, is
607-3 amended to conform to the terminology of the Local Government Code
607-4 to read as follows:
607-5 (c) Before an executory contract is signed by the purchaser,
607-6 the subdivider shall provide the purchaser with a written notice,
607-7 which must be attached to the executory contract, informing the
607-8 purchaser of the condition of the property that must, at a minimum,
607-9 be executed by the subdivider and purchaser, be acknowledged, and
607-10 read substantially similar to the following:
607-11 WARNING
607-12 IF ANY OF THE ITEMS BELOW HAVE NOT BEEN CHECKED, YOU
607-13 MAY NOT BE ABLE TO LIVE ON THE PROPERTY.
607-14 CONCERNING THE PROPERTY AT (street address or legal
607-15 description and municipality [city])
607-16 THIS DOCUMENT STATES THE TRUE FACTS ABOUT THE LAND YOU
607-17 ARE CONSIDERING PURCHASING.
607-18 CHECK OFF THE ITEMS THAT ARE TRUE:
607-19 ___ The property is in a recorded subdivision.
607-20 ___ The property has water service that provides
607-21 potable water.
607-22 ___ The property has sewer service or a septic
607-23 system.
607-24 ___ The property has electric service.
607-25 ___ The property is not in a flood-prone area.
607-26 ___ The roads are paved.
76R5 MRB-D 607
608-1 ___ No person other than the subdivider:
608-2 (1) owns the property;
608-3 (2) has a claim of ownership to the
608-4 property; or
608-5 (3) has an interest in the property.
608-6 ___ No person has a lien filed against the
608-7 property.
608-8 ___ There are no back taxes owed on the
608-9 property.
608-10 NOTICE
608-11 SELLER ADVISES PURCHASER TO:
608-12 (1) OBTAIN A TITLE ABSTRACT OR TITLE COMMITMENT
608-13 REVIEWED BY AN ATTORNEY BEFORE SIGNING A CONTRACT OF
608-14 THIS TYPE; AND
608-15 (2) PURCHASE AN OWNER'S POLICY OF TITLE
608-16 INSURANCE COVERING THE PROPERTY.
608-17 _______________ _________________________
608-18 (Date) (Signature of Subdivider)
608-19 _______________ _________________________
608-20 (Date) (Signature of Purchaser)
608-21 SECTION 13.18. Section 253.001(f), Local Government Code, is
608-22 amended to conform to the terminology of the Local Government Code
608-23 to read as follows:
608-24 (f) The election requirements of Subsection (b) do not apply
608-25 to a conveyance of a park if:
608-26 (1) the park is owned by a home-rule municipality with
76R5 MRB-D 608
609-1 a population of more than one million;
609-2 (2) it is a park of two acres or less;
609-3 (3) the park is no longer usable and functional as a
609-4 park;
609-5 (4) the proceeds of the sale will be used to acquire
609-6 land for park purposes;
609-7 (5) a public hearing on the proposed conveyance is
609-8 held by the governing body of the home-rule municipality and that
609-9 body finds that the property is no longer usable and functional as
609-10 a park; and
609-11 (6) the park is conveyed pursuant to an ordinance
609-12 adopted by the governing body of the home-rule municipality, unless
609-13 within 60 days from the date of the public hearing the governing
609-14 body of the home-rule municipality is presented with a petition
609-15 opposing the conveyance which contains the name, address, and date
609-16 of signature of no less than 1,500 registered voters residing
609-17 within the municipal [city] limits of the municipality; then, the
609-18 governing body of the home-rule municipality shall either deny the
609-19 conveyance or shall approve the conveyance subject to the election
609-20 required in Subsection (b); or
609-21 (7) the conveyance involves an exchange of two
609-22 existing parks, situated within a home-rule municipality with a
609-23 population of more than one million, that together total 1.5 acres
609-24 or less in size, that are located within 1,000 feet of each other,
609-25 that are located in an industrial area, that have been found in a
609-26 public hearing to no longer be usable and functional as parks, and
76R5 MRB-D 609
610-1 that are conveyed pursuant to an ordinance, adopted by the
610-2 governing body of that municipality, that has an effective date
610-3 before December 1, 1993.
610-4 SECTION 13.19. Section 361.051(3), Local Government Code, is
610-5 amended to conform to the terminology of the Local Government Code
610-6 to read as follows:
610-7 (3) "Entity" means a home-rule municipality [city] or
610-8 county or a nonprofit corporation acting on behalf of a home-rule
610-9 municipality [city] or county.
610-10 SECTION 13.20. Section 375.263(b), Local Government Code, is
610-11 amended to conform to the terminology of the Local Government Code
610-12 to read as follows:
610-13 (b) On the adoption of the ordinance, the district is
610-14 dissolved, and, in accordance with Section 43.075, the municipality
610-15 [city] succeeds to the property and assets of the district and
610-16 assumes all bonds, debts, obligations, and liabilities of the
610-17 district.
610-18 SECTION 13.21. Section 375.264, Local Government Code, is
610-19 amended to conform to the terminology of the Local Government Code
610-20 to read as follows:
610-21 Sec. 375.264. LIMITATION. A district may not be dissolved
610-22 by its board or by a municipality [city] if the district has any
610-23 outstanding bonded indebtedness until that bonded indebtedness has
610-24 been repaid or defeased in accordance with the order or resolution
610-25 authorizing the issuance of the bonds.
610-26 SECTION 13.22. Section 402.044(8), Local Government Code, is
76R5 MRB-D 610
611-1 amended to conform to the terminology of the Local Government Code
611-2 to read as follows:
611-3 (8) "Service area" means the municipal boundaries and
611-4 any other land areas outside the municipal boundaries which, as a
611-5 result of topography or hydraulics, contribute overland flow into
611-6 the watersheds served by the drainage system of a municipality;
611-7 provided, however, that in no event may a service area extend
611-8 farther than the boundaries of a municipality's current
611-9 extraterritorial jurisdiction, nor, except as provided by Section
611-10 402.0451, may a service area of one municipality extend into the
611-11 boundaries of another [incorporated town, city, or] municipality.
611-12 The service area is to be established in the ordinance establishing
611-13 the drainage utility. Provided, that no municipality shall extend
611-14 a service area outside of its municipal boundaries except:
611-15 (A) a municipality of more than 400,000
611-16 population located in one or more counties of less than 600,000
611-17 population according to the most recent federal census;
611-18 (B) a municipality all or part of which is
611-19 located over or within the Edwards Aquifer recharge zone or the
611-20 Edwards Aquifer transition zone, as designated by the Texas Natural
611-21 Resource Conservation Commission; or
611-22 (C) as provided by Section 402.0451.
611-23 ARTICLE 14. CHANGES RELATING TO NATURAL RESOURCES CODE
611-24 SECTION 14.01. (a) Section 31.1571, Natural Resources Code,
611-25 is amended to correct a reference to read as follows:
611-26 Sec. 31.1571. DISPOSAL OF UNUSED OR UNDERUSED PROPERTY. (a)
76R5 SMH-D 611
612-1 Notwithstanding any other law, after the division has reported a
612-2 property unused or underused and the commissioner has made a
612-3 recommendation to the governor for a real estate transaction
612-4 involving the property, the state agency that owns or controls the
612-5 property may not develop, sell, or otherwise dispose of the
612-6 property before the earlier of:
612-7 (1) the date the governor rejects a recommended real
612-8 estate transaction involving the property pursuant to Subchapter I
612-9 [Chapter 672, Acts of the 71st Legislature, Regular Session, 1989
612-10 (Article 5421t, Vernon's Texas Civil Statutes)]; or
612-11 (2) two years from the date the recommendation is
612-12 approved by operation of law under Subchapter I [Chapter 672, Acts
612-13 of the 71st Legislature, Regular Session, 1989 (Article 5421t,
612-14 Vernon's Texas Civil Statutes)].
612-15 (b) If a state agency that owns or controls property that
612-16 the division has reported as unused or underused intends to dispose
612-17 of or change the use of the property prior to the time provided by
612-18 Subsection (a), the state agency shall submit to the governor a
612-19 general development plan for future use of the property. The plan
612-20 shall be submitted no later than 30 days prior to the time that the
612-21 real estate transaction would be approved by operation of law if
612-22 not disapproved by the governor pursuant to Subchapter I [Chapter
612-23 672, Acts of the 71st Legislature, Regular Session, 1989 (Article
612-24 5421t, Vernon's Texas Civil Statutes)]. The governor may take such
612-25 plan into consideration in determining whether to reject the
612-26 commissioner's recommendation.
76R5 SMH-D 612
613-1 (b) Section 31.502, Natural Resources Code, is amended to
613-2 conform to Section 3, Chapter 484, Acts of the 74th Legislature,
613-3 Regular Session, 1995, to read as follows:
613-4 Sec. 31.502. INAPPLICABILITY OF SUBCHAPTER. This subchapter
613-5 does not apply to a real estate transaction involving real property
613-6 owned by this state that the division does not have a duty to
613-7 review under Section 31.155(d) [that:]
613-8 [(1) is administered by a state agency that under
613-9 Chapter 2201, Government Code, is ineligible to benefit from the
613-10 Texas capital trust fund; or]
613-11 [(2) involves permanent school fund land].
613-12 (c) Sections 31.504 and 31.505, Natural Resources Code, are
613-13 amended to conform to Section 4, Chapter 484, Acts of the 74th
613-14 Legislature, Regular Session, 1995, to read as follows:
613-15 Sec. 31.504. AUTHORITY TO CONDUCT TRANSACTION [DISAPPROVAL
613-16 BY GOVERNOR OF RECOMMENDATION]. If the division reports a
613-17 property as unused or underused and the commissioner recommends a
613-18 real estate transaction involving the property, the commissioner
613-19 may conduct the transaction unless the governor gives the
613-20 commissioner written notice of disapproval of the recommendation
613-21 not later than the 90th day after the date the governor receives
613-22 the commissioner's written recommendation. [(a) If, not later than
613-23 the 90th day after the date the governor receives the written
613-24 recommendation, the governor disapproves the recommended
613-25 alternative use, the division may not enter into a real estate
613-26 transaction involving the property until authorized by the
76R5 SMH-D 613
614-1 legislature.]
614-2 [(b) After the governor disapproves a recommendation, the
614-3 governor may request, and the division may make, additional
614-4 recommendations relating to the property.]
614-5 Sec. 31.505. CHARGE AND CONTROL OF PROPERTY [PROPOSAL BY
614-6 GOVERNOR]. If a real estate transaction is authorized under
614-7 Section 31.504, the division shall take appropriate charge and
614-8 control of the real property to undertake the transaction. [(a) If
614-9 the governor finds that a recommended real estate transaction would
614-10 be appropriate, the governor may propose that the division complete
614-11 the transaction.]
614-12 [(b) The governor may make the proposal at any time except
614-13 during a regular or special session of the legislature.]
614-14 [(c) The governor shall specify the details of the proposal,
614-15 give a legal description of the property, and direct the secretary
614-16 of state to publish the proposal in the Texas Register.]
614-17 (d) Section 31.515(a), Natural Resources Code, is amended to
614-18 conform to Section 3, Chapter 484, Acts of the 74th Legislature,
614-19 Regular Session, 1995, to read as follows:
614-20 (a) The expenses incurred by the division in conducting a
614-21 real estate transaction under this subchapter, including the
614-22 payment of reasonable brokerage fees, may be deducted from the
614-23 proceeds of the transaction before the proceeds are deposited [in
614-24 the Texas capital trust fund or other appropriate depository
614-25 account].
614-26 (e) Subchapter I, Chapter 31, Natural Resources Code, is
76R5 SMH-D 614
615-1 amended to conform to Section 3, Chapter 484, Acts of the 74th
615-2 Legislature, Regular Session, 1995, by adding Section 31.516 to
615-3 read as follows:
615-4 Sec. 31.516. DEPOSIT OF PROCEEDS OF TRANSACTION. Unless the
615-5 proceeds of the transaction are dedicated by the Texas
615-6 Constitution, the proceeds of the transaction shall be deposited:
615-7 (1) to the credit of the Texas capital trust fund if
615-8 the agency is eligible under Chapter 2201, Government Code, to
615-9 participate in that fund;
615-10 (2) in the state treasury to the credit of the
615-11 affected agency if the agency is not eligible under Chapter 2201,
615-12 Government Code, to participate in the Texas capital trust fund; or
615-13 (3) notwithstanding Subdivisions (1) and (2), as
615-14 otherwise directed under the procedures of Chapter 317, Government
615-15 Code.
615-16 (f) Sections 31.506, 31.507, 31.508, 31.509, and 31.510,
615-17 Natural Resources Code, are repealed to conform to Sections 4 and
615-18 5, Chapter 484, Acts of the 74th Legislature, Regular Session,
615-19 1995.
615-20 (g) Sections 3 and 4, Chapter 484, Acts of the 74th
615-21 Legislature, Regular Session, 1995, are repealed.
615-22 ARTICLE 15. CHANGES RELATING TO PENAL CODE
615-23 SECTION 15.01. Section 12.42(g), Penal Code, is amended to
615-24 correct a reference to read as follows:
615-25 (g) For the purposes of Subsection (c)(2) [(d)(2)]:
615-26 (1) a defendant has been previously convicted of an
76R5 GWK-D 615
616-1 offense listed under Subsection (c)(2)(B) [(d)(2)(B)] if the
616-2 defendant was adjudged guilty of the offense or entered a plea of
616-3 guilty or nolo contendere in return for a grant of deferred
616-4 adjudication, regardless of whether the sentence for the offense
616-5 was ever imposed or whether the sentence was probated and the
616-6 defendant was subsequently discharged from community supervision;
616-7 and
616-8 (2) a conviction under the laws of another state for
616-9 an offense containing elements that are substantially similar to
616-10 the elements of an offense listed under Subsection (c)(2)(B)
616-11 [(d)(2)(B)] is a conviction of an offense listed under Subsection
616-12 (c)(2)(B) [(d)(2)(B)].
616-13 SECTION 15.02. (a) Section 22.01(e), Penal Code, is amended
616-14 to conform to Section 1, Chapter 34, Acts of the 75th Legislature,
616-15 Regular Session, 1997, to read as follows:
616-16 (e) In this section, "family" has the meaning assigned by
616-17 Section 71.003 [71.01], Family Code.
616-18 (b) Section 22.04(k)(2), Penal Code, is amended to conform
616-19 to Section 1, Chapter 34, Acts of the 75th Legislature, Regular
616-20 Session, 1997, to read as follows:
616-21 (2) It is an affirmative defense to prosecution under
616-22 this section that the act or omission was based on treatment in
616-23 accordance with the tenets and practices of a recognized religious
616-24 method of healing with a generally accepted record of efficacy. It
616-25 is an affirmative defense to prosecution for a person charged with
616-26 an act of omission under this section causing to a child, elderly
76R5 GWK-D 616
617-1 individual, or disabled individual a condition described by
617-2 Subsection (a)(1), (2), or (3) that:
617-3 (A) there is no evidence that, on the date prior
617-4 to the offense charged, the defendant was aware of an incident of
617-5 injury to the child, elderly individual, or disabled individual and
617-6 failed to report the incident; and
617-7 (B) the person:
617-8 (i) was a victim of family violence, as
617-9 that term is defined by Section 71.004 [71.01], Family Code,
617-10 committed by a person who is also charged with an offense against
617-11 the child, elderly individual, or disabled individual under this
617-12 section or any other section of this title;
617-13 (ii) did not cause a condition described
617-14 by Subsection (a)(1), (2), or (3); and
617-15 (iii) did not reasonably believe at the
617-16 time of the omission that an effort to prevent the person also
617-17 charged with an offense against the child, elderly individual, or
617-18 disabled individual from committing the offense would have an
617-19 effect.
617-20 (c) Sections 25.07(b) and (f), Penal Code, are amended to
617-21 conform to Section 1, Chapter 34, Acts of the 75th Legislature,
617-22 Regular Session, 1997, to read as follows:
617-23 (b) For the purposes of this section, "family violence,"
617-24 "family," "household," and "member of a household" have the
617-25 meanings assigned by Chapter 71 [Section 71.01], Family Code.
617-26 (f) It is not a defense to prosecution under this section
76R5 GWK-D 617
618-1 that certain information has been excluded, as provided by Section
618-2 85.007 [71.111], Family Code, or Article 17.292, Code of Criminal
618-3 Procedure, from an order to which this section applies.
618-4 (d) Section 42.07(b), Penal Code, is amended to conform to
618-5 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
618-6 Session, 1997, to read as follows:
618-7 (b) For purposes of Subsection (a)(1), "obscene" means
618-8 containing a patently offensive description of or a solicitation to
618-9 commit an ultimate sex act, including sexual intercourse,
618-10 masturbation, cunnilingus, fellatio, or anilingus, or a description
618-11 of an excretory function. In this section, "family" has the
618-12 meaning assigned by Section 71.003 [71.01], Family Code.
618-13 (e) Section 42.072(c), Penal Code, is amended to conform to
618-14 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
618-15 Session, 1997, to read as follows:
618-16 (c) In this section, "family," "household," and "member of a
618-17 household" have the meanings assigned by Chapter 71 [Section
618-18 71.01], Family Code.
618-19 (f) Section 46.06(b), Penal Code, is amended to conform to
618-20 Section 1, Chapter 34, Acts of the 75th Legislature, Regular
618-21 Session, 1997, to read as follows:
618-22 (b) In this section:
618-23 (1) "Intoxicated" means substantial impairment of
618-24 mental or physical capacity resulting from introduction of any
618-25 substance into the body.
618-26 (2) "Active protective order" means a protective order
76R5 GWK-D 618
619-1 issued under Title 4 [Chapter 71], Family Code, that is in effect.
619-2 The term does not include a temporary protective order issued
619-3 before the court holds a hearing on the matter.
619-4 (g) Section 46.13(f), 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 (f) A peace officer or other person may not arrest the actor
619-8 before the seventh day after the date on which the offense is
619-9 committed if:
619-10 (1) the actor is a member of the family, as defined by
619-11 Section 71.003 [71.01], Family Code, of the child who discharged
619-12 the firearm; and
619-13 (2) the child in discharging the firearm caused the
619-14 death of or serious injury to the child.
619-15 ARTICLE 16. CHANGES RELATING TO TAX CODE
619-16 SECTION 16.01. Sections 11.26(g), (h), and (i), Tax Code, as
619-17 added by Chapter 1059, Acts of the 75th Legislature, Regular
619-18 Session, 1997, are repealed because they are substantively
619-19 duplicative of Subsections (i), (j), and (k), Section 11.26, Tax
619-20 Code, as added by Chapter 1039, Acts of the 75th Legislature,
619-21 Regular Session, 1997.
619-22 SECTION 16.02. Section 11.43(d), Tax Code, as amended by
619-23 Chapters 1039, 1059, and 1155, Acts of the 75th Legislature,
619-24 Regular Session, 1997, is reenacted to read as follows:
619-25 (d) To receive an exemption the eligibility for which is
619-26 determined by the claimant's qualifications on January 1 of the tax
76R5 SMH-D 619
620-1 year, a person required to claim an exemption must file a completed
620-2 exemption application form before May 1 and must furnish the
620-3 information required by the form. A person who after January 1 of
620-4 a tax year acquires property that qualifies for an exemption
620-5 covered by Section 11.42(c) must apply for the exemption for the
620-6 applicable portion of that tax year before the first anniversary of
620-7 the date the person acquires the property. For good cause shown
620-8 the chief appraiser may extend the deadline for filing an exemption
620-9 application by written order for a single period not to exceed 60
620-10 days.
620-11 SECTION 16.03. Section 11.43(j), Tax Code, as added by
620-12 Chapter 1059, Acts of the 75th Legislature, Regular Session, 1997,
620-13 is repealed because it is substantively duplicative of Subsection
620-14 (k), Section 11.43, Tax Code.
620-15 SECTION 16.04. Section 23.21, Tax Code, as added by Chapter
620-16 980, Acts of the 75th Legislature, Regular Session, 1997, and
620-17 Section 23.22, Tax Code, are revised as Section 23.21, Tax Code,
620-18 and amended to read as follows:
620-19 Sec. 23.21. Property Used to Provide Affordable Housing.
620-20 (a) In appraising real property that is rented or leased to a
620-21 low-income individual or family meeting income-eligibility
620-22 standards established by the owner of the property under
620-23 regulations or restrictions limiting to a percentage of the
620-24 individual's or the family's income the amount that the individual
620-25 or family may be required to pay for the rental or lease of the
620-26 property, the chief appraiser shall take into account the extent to
76R5 SMH-D 620
621-1 which that use and limitation reduce the market value of the
621-2 property.
621-3 (b) [Sec. 23.22. PROPERTY USED TO PROVIDE AFFORDABLE
621-4 HOUSING.] In appraising real property that is rented or leased to
621-5 a low-income individual or family meeting income-eligibility
621-6 standards established by a governmental entity or under a
621-7 governmental contract for affordable housing limiting the amount
621-8 that the individual or family may be required to pay for the rental
621-9 or lease of the property, the chief appraiser shall take into
621-10 account the extent to which that use and limitation reduce the
621-11 market value of the property.
621-12 SECTION 16.05. Section 23.21, Tax Code, as added by Chapter
621-13 1039, Acts of the 75th Legislature, Regular Session, 1997, is
621-14 renumbered as Section 23.22, Tax Code.
621-15 SECTION 16.06. Section 26.10(b), Tax Code, as added by
621-16 Section 30, Chapter 1039, and Section 5, Chapter 1059, Acts of the
621-17 75th Legislature, Regular Session, 1997, is reenacted and amended
621-18 to read as follows:
621-19 (b) If the appraisal roll shows that a property is eligible
621-20 for taxation at its full appraised value for only part of a year
621-21 because a residence homestead exemption for an individual 65 years
621-22 of age or older applicable on January 1 of that year terminated
621-23 during the year, the tax due against the property is calculated by:
621-24 (1) subtracting:
621-25 (A) the amount of the taxes that otherwise would
621-26 be imposed on the residence homestead for the entire year had the
76R5 SMH-D 621
622-1 individual qualified for the residence homestead exemption for the
622-2 entire year; from
622-3 (B) the amount of the taxes that otherwise would
622-4 be imposed on the residence homestead for the entire year had the
622-5 individual not qualified for the residence homestead exemption
622-6 during the year;
622-7 (2) multiplying the remainder determined under
622-8 Subdivision (1) by a fraction, the denominator of which is 365 and
622-9 the numerator of which is the number of days that elapsed after the
622-10 date the exemption terminated; and
622-11 (3) adding the product determined under Subdivision
622-12 (2) and the amount described by Subdivision (1)(A) [(1)(B)].
622-13 SECTION 16.07. Section 34.05(a), Tax Code, as amended by
622-14 Section 9, Chapter 906, and Section 5, Chapter 1111, Acts of the
622-15 75th Legislature, Regular Session, 1997, is reenacted to read as
622-16 follows:
622-17 (a) If property is sold to a taxing unit that is a party to
622-18 the judgment, the taxing unit may sell the property at any time and
622-19 in any manner, by public or private sale, except as otherwise
622-20 required by this section. In selling the property, the taxing unit
622-21 may, but is not required to, use the procedures provided by Section
622-22 263.001, Local Government Code, or Section 272.001, Local
622-23 Government Code. The sale is subject to any right of redemption of
622-24 the former owner. The redemption period begins on the date the
622-25 deed to the taxing unit is filed for record.
622-26 ARTICLE 17. CHANGES RELATING TO TRANSPORTATION CODE
76R5 DWS-D 622
623-1 SECTION 17.01. Section 361.003, Transportation Code, is
623-2 repealed to conform to the repeal of that section by Section 7.29,
623-3 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997.
623-4 SECTION 17.02. Section 364.042, Transportation Code, is
623-5 amended to more closely conform to the law from which that section
623-6 was derived to read as follows:
623-7 Sec. 364.042. AUTHORITY TO BORROW MONEY OR ACCEPT FEDERAL
623-8 ASSISTANCE. (a) To accomplish the purposes of this chapter, a
623-9 county may:
623-10 (1) borrow money from any person or corporation; or
623-11 (2) borrow money or accept grants from the United
623-12 States or a corporation or agency created by or authorized to act
623-13 as an agency of the United States.
623-14 (b) In connection with a loan or grant under Subsection
623-15 (a)(2) [from the United States], a county may enter into any
623-16 related agreement that the United States, corporation, or agency
623-17 requires.
623-18 SECTION 17.03. Section 391.063, Transportation Code, is
623-19 amended to more closely conform to the law from which that section
623-20 was derived to read as follows:
623-21 Sec. 391.063. LICENSE FEE. The commission may [shall] set
623-22 the amount of a license fee according to a scale graduated by the
623-23 number of units of outdoor advertising owned by a license
623-24 applicant.
623-25 SECTION 17.04. Section 431.023(d), Transportation Code, is
623-26 amended to more closely conform to the law from which it was
76R5 DWS-D 623
624-1 derived to read as follows:
624-2 (d) The commission may authorize the creation of more than
624-3 one corporation to act within the same designated area. The [if
624-4 the] resolution authorizing each corporation must specify
624-5 [specifies] the public purpose of that [the] corporation.
624-6 SECTION 17.05. Section 501.031(a), Transportation Code, is
624-7 amended to more accurately reflect the source law from which it was
624-8 derived to read as follows:
624-9 (a) The department shall include on each certificate of
624-10 title a rights of survivorship agreement form. The form must:
624-11 (1) provide that if the agreement is signed by a
624-12 husband and wife the motor vehicle is held jointly with the
624-13 interest of either spouse who dies to survive to the surviving
624-14 spouse; and
624-15 (2) provide blanks for the signatures of the husband
624-16 and wife.
624-17 SECTION 17.06. Section 502.202(a), Transportation Code, is
624-18 amended to correct a reference to read as follows:
624-19 (a) The owner of a motor vehicle, trailer, or semitrailer
624-20 may annually apply for registration under Section 502.201 and is
624-21 exempt from the payment of a registration fee under this chapter if
624-22 the vehicle is:
624-23 (1) owned by and used exclusively in the service of:
624-24 (A) the United States;
624-25 (B) this state; or
624-26 (C) a county, municipality, or school district
76R5 DWS-D 624
625-1 in this state;
625-2 (2) owned by a commercial transportation company and
625-3 used exclusively to provide public school transportation services
625-4 to a school district under Section 34.008 [21.181], Education Code;
625-5 (3) designed and used exclusively for fire fighting;
625-6 (4) owned by a volunteer fire department and used
625-7 exclusively in the conduct of department business; or
625-8 (5) privately owned and used by a volunteer
625-9 exclusively in county marine law enforcement activities, including
625-10 rescue operations, under the direction of the sheriff's department.
625-11 SECTION 17.07. Section 543.004, Transportation Code, is
625-12 amended to more accurately reflect the source law from which it was
625-13 derived by adding Subsection (c) to read as follows:
625-14 (c) The offenses specified by Subsection (a) are the only
625-15 offenses for which issuance of a written notice to appear is
625-16 mandatory.
625-17 SECTION 17.08. Section 544.011, Transportation Code, is
625-18 amended to correct a reference to the agency that administers that
625-19 section to read as follows:
625-20 Sec. 544.011. LANE USE SIGNS. If, on a highway having more
625-21 than one lane with vehicles traveling in the same direction, the
625-22 Texas Department of Transportation [department] or a local
625-23 authority places a sign that directs slower traffic to travel in a
625-24 lane other than the farthest left lane, the sign must read "left
625-25 lane for passing only."
625-26 SECTION 17.09. Section 621.401, Transportation Code, is
76R5 DWS-D 625
626-1 amended to correct a reference to read as follows:
626-2 Sec. 621.401. Definition. In this subchapter, "weight
626-3 enforcement officer" means:
626-4 (1) a license and weight inspector of the Department
626-5 of Public Safety;
626-6 (2) a highway patrol officer;
626-7 (3) a sheriff or sheriff's deputy;
626-8 (4) a municipal police officer in a municipality with
626-9 a population of 100,000 or more; or
626-10 (5) a police officer certified under Section 644.101
626-11 [Section 6, Article 6675d, Revised Statutes].
626-12 SECTION 17.10. (a) Section 643.002, Transportation Code, is
626-13 amended to conform to Section 1, Chapter 1061, Acts of the 75th
626-14 Legislature, Regular Session, 1997, to read as follows:
626-15 Sec. 643.002. EXEMPTIONS. This chapter does not apply to:
626-16 (1) a motor vehicle registered under the single state
626-17 registration system established under 49 U.S.C. Section 14504(c)
626-18 when operating exclusively in interstate or international commerce;
626-19 (2) a motor vehicle registered as a cotton vehicle
626-20 under Section 502.277; [or]
626-21 (3) a motor vehicle the department by rule exempts
626-22 because the vehicle is subject to comparable registration and a
626-23 comparable safety program administered by another governmental
626-24 entity;
626-25 (4) a motor vehicle used to transport passengers
626-26 operated by an entity whose primary function is not the
76R5 DWS-D 626
627-1 transportation of passengers, such as a vehicle operated by a
627-2 hotel, day-care center, public or private school, nursing home,
627-3 governmental entity, or similar organization; or
627-4 (5) a vehicle operating under a private carrier permit
627-5 issued under Chapter 42, Alcoholic Beverage Code [agency].
627-6 (b) Section 1, Chapter 1061, Acts of the 75th Legislature,
627-7 Regular Session, 1997, is repealed.
627-8 SECTION 17.11. (a) Section 643.004, Transportation Code, is
627-9 amended to conform to Section 8, Chapter 1061, Acts of the 75th
627-10 Legislature, Regular Session, 1997, to read as follows:
627-11 Sec. 643.004. PAYMENT OF FEES. (a) The department may
627-12 adopt rules on the method of payment of a fee under this chapter,
627-13 including:
627-14 (1) authorizing the use of:
627-15 (A) escrow accounts described by Subsection (b);
627-16 and
627-17 (B) electronic funds transfer or a credit card
627-18 issued by a financial institution chartered by a state or the
627-19 United States or by a nationally recognized credit organization
627-20 approved by the department; and
627-21 (2) requiring the payment of a discount or service
627-22 charge for a credit card payment in addition to the fee.
627-23 (b) The department may establish one or more escrow accounts
627-24 in the state highway fund for the prepayment of a fee under this
627-25 chapter. Prepaid fees and any fees established by the department
627-26 for the administration of this section shall be:
76R5 DWS-D 627
628-1 (1) administered under an agreement approved by the
628-2 department; and
628-3 (2) deposited to the credit of the state highway fund
628-4 to be appropriated only to the department for the purposes of
628-5 administering this chapter.
628-6 (b) Section 8, Chapter 1061, Acts of the 75th Legislature,
628-7 Regular Session, 1997, is repealed.
628-8 SECTION 17.12. (a) Section 643.054, Transportation Code, is
628-9 amended to conform to Section 1, Chapter 858, and Section 4.04,
628-10 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
628-11 by adding Subsection (c) to read as follows:
628-12 (c) To avoid multiple registrations of a single motor
628-13 carrier, the department shall adopt simplified procedures for the
628-14 registration of motor carriers transporting household goods as
628-15 agents for carriers required to register under this chapter.
628-16 (b) Section 1, Chapter 858, and Section 4.04, Chapter 1171,
628-17 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
628-18 SECTION 17.13. (a) Section 643.058, Transportation Code, is
628-19 amended to conform to Section 4.01, Chapter 1171, Acts of the 75th
628-20 Legislature, Regular Session, 1997, by redesignating Subsection (b)
628-21 as Subsection (c) and adding a new Subsection (b) to read as
628-22 follows:
628-23 (b) At least 30 days before the date on which a motor
628-24 carrier's registration expires, the department shall notify the
628-25 carrier of the impending expiration. The notice must be in writing
628-26 and sent to the motor carrier's last known address according to the
76R5 DWS-D 628
629-1 records of the department.
629-2 (c) A motor carrier may renew a registration under this
629-3 subchapter by:
629-4 (1) supplementing the application with any new
629-5 information required under Section 643.056;
629-6 (2) paying a $10 fee for each vehicle requiring
629-7 registration the carrier operates; and
629-8 (3) providing the department evidence of continuing
629-9 insurance or financial responsibility in an amount at least equal
629-10 to the amount set by the department under Section 643.101.
629-11 (b) Section 4.01, Chapter 1171, Acts of the 75th
629-12 Legislature, Regular Session, 1997, is repealed.
629-13 SECTION 17.14. (a) Subchapter B, Chapter 643,
629-14 Transportation Code, is amended to conform to Section 2, Chapter
629-15 1061, Acts of the 75th Legislature, Regular Session, 1997, by
629-16 adding Sections 643.061 and 643.062 to read as follows:
629-17 Sec. 643.061. LENGTH OF REGISTRATION PERIOD. The department
629-18 may vary the registration period under this subchapter by adopting
629-19 rules that provide for:
629-20 (1) an optional two-year registration; and
629-21 (2) the issuance of a temporary registration permit
629-22 that is valid for less than one year.
629-23 Sec. 643.062. LIMITATION ON INTERNATIONAL MOTOR CARRIER.
629-24 (a) A foreign-based international motor carrier required to
629-25 register under this chapter or registered under Chapter 645 may not
629-26 transport persons or cargo in intrastate commerce in this state.
76R5 DWS-D 629
630-1 (b) A person may not assist a foreign-based international
630-2 motor carrier in violating Subsection (a).
630-3 (b) Section 2, Chapter 1061, Acts of the 75th Legislature,
630-4 Regular Session, 1997, is repealed.
630-5 SECTION 17.15. (a) Subchapter B, Chapter 643,
630-6 Transportation Code, is amended to conform to Section 3, Chapter
630-7 1061, Acts of the 75th Legislature, Regular Session, 1997, by
630-8 adding Section 643.063 to read as follows:
630-9 Sec. 643.063. VEHICLES OPERATED UNDER SHORT-TERM LEASE AND
630-10 SUBSTITUTE VEHICLES. (a) In this section:
630-11 (1) "Leasing business" means a person that leases
630-12 vehicles requiring registration.
630-13 (2) "Short-term lease" means a lease of 30 days or
630-14 less.
630-15 (b) A vehicle requiring registration operated under a
630-16 short-term lease is exempt from the registration requirements of
630-17 Sections 643.052-643.059. The department shall adopt rules
630-18 providing for the operation of these vehicles under flexible
630-19 procedures. A vehicle requiring registration operated under a
630-20 short-term lease is not required to carry a cab card or other proof
630-21 of registration if a copy of the lease agreement is carried in the
630-22 cab of the vehicle.
630-23 (c) A motor carrier may operate a substitute vehicle without
630-24 notifying the department in advance if the substitute is a
630-25 temporary replacement because of maintenance, repair, or other
630-26 unavailability of the vehicle originally leased. A substitute
76R5 DWS-D 630
631-1 vehicle is not required to carry a cab card or other proof of
631-2 registration if a copy of the lease agreement for the vehicle
631-3 originally leased is carried in the cab of the substitute.
631-4 (d) Instead of the registration procedures described by
631-5 Sections 643.052-643.059, the department shall adopt rules that
631-6 allow a leasing business to report annually to the department on
631-7 the number of vehicles requiring registration that the leasing
631-8 business actually operated in the previous 12 months. The rules
631-9 may not require the vehicles operated to be described with
631-10 particularity. The registration fee for each vehicle operated may
631-11 be paid at the time the report is filed.
631-12 (e) A leasing business that registers its vehicles under
631-13 Subsection (d) may comply with the liability insurance requirements
631-14 of Subchapter C by filing evidence of a contingency liability
631-15 policy satisfactory to the department.
631-16 (f) Rules adopted by the department under this section:
631-17 (1) must be designed to avoid requiring a vehicle to
631-18 be registered more than once in a calendar year; and
631-19 (2) may allow a leasing business to register a
631-20 vehicle on behalf of a lessee.
631-21 (b) Section 3, Chapter 1061, Acts of the 75th Legislature,
631-22 Regular Session, 1997, is repealed.
631-23 SECTION 17.16. Section 2, Chapter 858, and Section 4.05,
631-24 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
631-25 are repealed.
631-26 SECTION 17.17. (a) Section 643.106(a), Transportation Code,
76R5 DWS-D 631
632-1 is amended to conform to Section 4, Chapter 1061, Acts of the 75th
632-2 Legislature, Regular Session, 1997, to read as follows:
632-3 (a) Notwithstanding any [contrary] provision of any law or
632-4 regulation, a motor carrier that is required to register under
632-5 Subchapter B and whose primary business is transportation for
632-6 compensation or hire between two or more municipalities shall
632-7 protect its employees by obtaining:
632-8 (1) workers' compensation insurance coverage as
632-9 defined under Subtitle A, Title 5, Labor Code; or
632-10 (2) accidental insurance coverage approved by the
632-11 department from a reliable insurance company authorized to write
632-12 accidental insurance policies in this state.
632-13 (b) Section 4, Chapter 1061, Acts of the 75th Legislature,
632-14 Regular Session, 1997, is repealed.
632-15 SECTION 17.18. Section 5, Chapter 1061, Acts of the 75th
632-16 Legislature, Regular Session, 1997, is repealed.
632-17 SECTION 17.19. (a) Sections 643.153(a), (b), (c), and (f),
632-18 Transportation Code, are amended to conform to Section 4, Chapter
632-19 858, and Section 4.06, Chapter 1171, Acts of the 75th Legislature,
632-20 Regular Session, 1997, to read as follows:
632-21 (a) The department shall adopt rules to protect a consumer
632-22 using the service of a motor carrier who is transporting [required
632-23 to register under Subchapter B and transports] household goods for
632-24 compensation. [The rules must be at least as stringent as the
632-25 corresponding provisions of 49 C.F.R. Part 375. The department may
632-26 adopt rules under this subsection that are more stringent than the
76R5 DWS-D 632
633-1 corresponding federal provisions.]
633-2 (b) [A motor carrier that transports household goods shall
633-3 list a place of business with a street address in this state and
633-4 the carrier's registration number issued under Subchapter B in any
633-5 printed advertising published in this state.]
633-6 [(c)] The department may adopt rules necessary to ensure
633-7 that a customer of a motor carrier transporting household goods is
633-8 protected from deceptive or unfair practices and unreasonably
633-9 hazardous activities. The rules must [may]:
633-10 (1) establish a formal process for resolving a dispute
633-11 over a fee or damage [apart from the method of mediation in Section
633-12 643.155];
633-13 (2) require a motor carrier to indicate clearly to a
633-14 customer whether an estimate is binding or nonbinding and disclose
633-15 the maximum price a customer could be required to pay; [and]
633-16 (3) create a centralized process for making complaints
633-17 about a motor carrier that also allows a customer to inquire about
633-18 a carrier's complaint record;
633-19 (4) require a motor carrier transporting household
633-20 goods to list a place of business with a street address in this
633-21 state and the carrier's registration number issued under this
633-22 article in any print advertising published in this state;
633-23 (5) require motor carriers that are required to
633-24 register under Subsection (c) to file proof of cargo insurance in
633-25 amounts to be determined by the department that do not exceed the
633-26 amount required for a motor carrier transporting household goods
76R5 DWS-D 633
634-1 under federal law and allow alternative evidence of financial
634-2 responsibility, through surety bonds, letters of credit, or other
634-3 means satisfactory to the department, for contractual obligations
634-4 to customers that do not exceed $5,000 aggregate loss or damage to
634-5 total cargo shipped at any one time;
634-6 (6) require motor carriers that are required to
634-7 register under Subsection (c) to conspicuously advise consumers
634-8 concerning limitation of any carrier liability for loss or damage
634-9 as determined under Subdivision (7); and
634-10 (7) determine reasonable provisions governing
634-11 limitation of liability for loss or damage of motor carriers
634-12 required to register under Subsection (c), not to exceed 60 cents
634-13 per pound per article.
634-14 (c) The department shall require motor carriers that are not
634-15 required to register under Subchapter B to register their
634-16 operations before transporting household goods for compensation.
634-17 The department shall determine the forms and procedures for
634-18 registration required under this subsection. The department shall
634-19 charge a motor carrier who registers under this subsection a fee
634-20 that does not exceed the total of the fees imposed in Subchapter B.
634-21 (f) The unauthorized practice of the insurance business
634-22 under Article 1.14-1, Insurance Code, does not include the offer of
634-23 insurance by a motor carrier transporting household goods for the
634-24 full value of a customer's property if the offer is authorized by a
634-25 rule adopted under Subsection (b) [(c)].
634-26 (b) Section 643.155, Transportation Code, is amended to
76R5 DWS-D 634
635-1 conform to Section 4, Chapter 858, and Section 4.06, Chapter 1171,
635-2 Acts of the 75th Legislature, Regular Session, 1997, to read as
635-3 follows:
635-4 Sec. 643.155. RULES ADVISORY COMMITTEE [MEDIATION REQUIRED].
635-5 (a) The department shall appoint a rules advisory committee
635-6 consisting of representatives of motor carriers transporting
635-7 household goods using small, medium, and large equipment, the
635-8 public, and the department.
635-9 (b) Members of the committee serve at the pleasure of the
635-10 department and are not entitled to compensation or reimbursement of
635-11 expenses for serving on the committee. The department may adopt
635-12 rules to govern the operations of the advisory committee.
635-13 (c) The committee shall:
635-14 (1) examine the rules adopted by the department under
635-15 Sections 643.153(a) and (b) and make recommendations to the
635-16 department on modernizing and streamlining the rules;
635-17 (2) conduct a study of the feasibility and necessity
635-18 of requiring any vehicle liability insurance for household goods
635-19 carriers required to register under Section 643.153(c); and
635-20 (3) recommend a maximum level of liability limitation
635-21 under Section 643.153(b)(7) that does not exceed 60 cents per pound
635-22 [A collective association of motor carriers transporting household
635-23 goods or agents of the carriers that are parties to a collective
635-24 agreement approved under Section 643.154(e) shall provide for a
635-25 method of mediation to resolve customer disputes over fees,
635-26 damages, and services. The association, the carriers, or their
76R5 DWS-D 635
636-1 agents shall pay for the cost of the mediation.]
636-2 [(b) A party to a collective agreement approved under
636-3 Section 643.154(e) shall participate in customer complaint
636-4 resolution, including participation in the mediation process and
636-5 advertisement of the availability of mediation in each contract or
636-6 estimate proposal.]
636-7 [(c) A complaint mediation that is not resolved to the
636-8 mutual agreement of all parties shall be reported to the
636-9 department.]
636-10 [(d) The department shall adopt rules that require parties
636-11 to a collective agreement to provide notice to customers of their
636-12 right to seek resolution of a complaint directly from the
636-13 department under Section 643.153(c)].
636-14 (c) Section 4, Chapter 858, and Section 4.06, Chapter 1171,
636-15 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
636-16 SECTION 17.20. (a) Subchapter D, Chapter 643,
636-17 Transportation Code, is amended to conform to Section 4.03, Chapter
636-18 1171, Acts of the 75th Legislature, Regular Session, 1997, by
636-19 adding Section 643.156 to read as follows:
636-20 Sec. 643.156. REGULATION OF ADVERTISING. (a) The
636-21 department may not by rule restrict competitive bidding or
636-22 advertising by a motor carrier except to prohibit false,
636-23 misleading, or deceptive practices.
636-24 (b) A rule to prohibit false, misleading, or deceptive
636-25 practices may not:
636-26 (1) restrict the use of:
76R5 DWS-D 636
637-1 (A) any medium for an advertisement;
637-2 (B) a motor carrier's advertisement under a
637-3 trade name; or
637-4 (C) a motor carrier's personal appearance or
637-5 voice in an advertisement, if the motor carrier is an individual;
637-6 or
637-7 (2) relate to the size or duration of an advertisement
637-8 by a motor carrier.
637-9 (b) Section 4.03, Chapter 1171, Acts of the 75th
637-10 Legislature, Regular Session, 1997, is repealed.
637-11 SECTION 17.21. (a) Section 643.252, Transportation Code, is
637-12 amended to conform to Section 4.02, Chapter 1171, Section 3,
637-13 Chapter 858, and Section 6, Chapter 1061, Acts of the 75th
637-14 Legislature, Regular Session, 1997, to read as follows:
637-15 Sec. 643.252. SUSPENSION AND REVOCATION OF REGISTRATION.
637-16 (a) The department may suspend or revoke a registration issued
637-17 under this chapter or place on probation a motor carrier whose
637-18 registration is suspended if a motor carrier:
637-19 (1) fails to maintain insurance or evidence of
637-20 financial responsibility as required by Section 643.101(a), (b), or
637-21 (c) or 643.153(b);
637-22 (2) fails to keep evidence of insurance in the cab of
637-23 each vehicle as required by Section 643.103(b);
637-24 (3) fails to register a vehicle requiring
637-25 registration; [or]
637-26 (4) knowingly provides false information on any form
76R5 DWS-D 637
638-1 filed with the department under this chapter; or
638-2 (5) violates a rule adopted under Section 643.063.
638-3 (b) The Department of Public Safety may request that the
638-4 department suspend or revoke a registration issued under this
638-5 chapter or place on probation a motor carrier whose registration is
638-6 suspended if a motor carrier has:
638-7 (1) an unsatisfactory safety rating under 49 C.F.R.
638-8 Part 385; or
638-9 (2) multiple violations of Chapter 644, a rule adopted
638-10 under that chapter, or Subtitle C.
638-11 (c) Except as provided by Subsection (d), a suspension or
638-12 revocation or the imposition of probation made under Subsection (a)
638-13 or (b) is a contested case under Chapter 2001, Government Code.
638-14 (d) The department may suspend or revoke a registration
638-15 issued under this chapter or place on probation a motor carrier
638-16 whose registration is suspended without a hearing under Chapter
638-17 2001, Government Code, if:
638-18 (1) the department provides notice to the motor
638-19 carrier of:
638-20 (A) the proposed suspension or revocation; and
638-21 (B) the right of the carrier to request a
638-22 hearing under Chapter 2001, Government Code; and
638-23 (2) the motor carrier fails to provide the department
638-24 with a written request for a hearing before the 11th day after the
638-25 date the carrier receives the notice described in Subdivision (1).
638-26 (e) If the suspension of a motor carrier's registration is
76R5 DWS-D 638
639-1 probated, the department may require the carrier to report
639-2 regularly to the department on any matter that is the basis of the
639-3 probation.
639-4 (b) Section 4.02, Chapter 1171, Section 3, Chapter 858, and
639-5 Section 6, Chapter 1061, Acts of the 75th Legislature, Regular
639-6 Session, 1997, are repealed.
639-7 SECTION 17.22. (a) Section 643.253, Transportation Code, is
639-8 amended to conform to Section 5, Chapter 858, and Section 4.07,
639-9 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
639-10 to read as follows:
639-11 Sec. 643.253. CRIMINAL PENALTY. (a) A person commits an
639-12 offense if the person fails to:
639-13 (1) register as required by Subchapter B or Section
639-14 643.153(c);
639-15 (2) maintain insurance or evidence of financial
639-16 responsibility as required by Subchapter C or Section 643.153; or
639-17 (3) keep a cab card in the cab of a vehicle as
639-18 required by Section 643.059.
639-19 (b) A person commits an offense if the person solicits the
639-20 transportation of household goods for compensation and is not
639-21 registered as required by Subchapter B or Section 643.153.
639-22 (c) An offense under this section is a Class C misdemeanor.
639-23 (b) Section 5, Chapter 858, and Section 4.07, Chapter 1171,
639-24 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
639-25 SECTION 17.23. Section 7, Chapter 1061, Acts of the 75th
639-26 Legislature, Regular Session, 1997, is repealed.
76R5 DWS-D 639
640-1 SECTION 17.24. (a) Section 644.001(1), Transportation Code,
640-2 is amended to conform to Section 6, Chapter 858, and Section 4.08,
640-3 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
640-4 to read as follows:
640-5 (1) "Commercial motor vehicle" means a motor vehicle
640-6 described [has the meaning assigned] by Section 548.001.
640-7 (b) Section 6, Chapter 858, and Section 4.08, Chapter 1171,
640-8 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
640-9 SECTION 17.25. (a) Section 644.001(5), Transportation Code,
640-10 is amended to conform to Section 12, Chapter 1061, Acts of the 75th
640-11 Legislature, Regular Session, 1997, to read as follows:
640-12 (5) "Federal motor carrier safety regulation" means a
640-13 federal regulation in Subchapter B, Chapter III, Subtitle B, Title
640-14 49, Code of Federal Regulations [49 C.F.R. Part 382, 385, or 386 or
640-15 Parts 388-399].
640-16 (b) Section 12, Chapter 1061, Acts of the 75th Legislature,
640-17 Regular Session, 1997, is repealed.
640-18 SECTION 17.26. (a) Subchapter A, Chapter 644,
640-19 Transportation Code, is amended to conform to Section 4.11(b),
640-20 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
640-21 by adding Section 644.004 to read as follows:
640-22 Sec. 644.004. APPLICABILITY TO FOREIGN COMMERCIAL MOTOR
640-23 VEHICLES. Except as otherwise provided by law, this chapter also
640-24 applies to a foreign commercial motor vehicle, as defined by
640-25 Section 647.001.
640-26 (b) Section 4.11(b), Chapter 1171, Acts of the 75th
76R5 DWS-D 640
641-1 Legislature, Regular Session, 1997, is repealed.
641-2 SECTION 17.27. (a) Section 644.053, Transportation Code, is
641-3 amended to conform to Section 10, Chapter 1061, Acts of the 75th
641-4 Legislature, Regular Session, 1997, by amending Subsection (a) and
641-5 adding Subsection (c) to read as follows:
641-6 (a) A rule adopted under this chapter may not:
641-7 (1) prevent an intrastate operator from operating a
641-8 vehicle up to 12 hours following eight consecutive hours off;
641-9 (2) require a person to meet the medical standards
641-10 provided in the federal motor carrier safety regulations if the
641-11 person:
641-12 (A) was regularly employed in this state as a
641-13 commercial motor vehicle operator in intrastate commerce before
641-14 August 28, 1989; and
641-15 (B) is not transporting property that requires a
641-16 hazardous material placard; [or]
641-17 (3) require a person to maintain a government form,
641-18 separate company form, operator's record of duty status, or
641-19 operator's daily log for operations within a 150-mile radius of the
641-20 normal work-reporting location if a general record of an operator's
641-21 hours of service can be compiled from:
641-22 (A) business records maintained by the owner
641-23 that provide the date, time, and location of the delivery of a
641-24 product or service; or
641-25 (B) documents required to be maintained by law,
641-26 including delivery tickets or sales invoices, that provide the date
76R5 DWS-D 641
642-1 of delivery and the quantity of merchandise delivered; or
642-2 (4) impose during a planting or harvesting season
642-3 maximum driving and on-duty times on an operator of a vehicle
642-4 transporting an agricultural commodity in intrastate commerce for
642-5 agricultural purposes from the source of the commodity to the first
642-6 place of processing or storage or the distribution point for the
642-7 commodity, if the place is located within 150 air miles of the
642-8 source.
642-9 (c) In this section, "agricultural commodity" means an
642-10 agricultural, horticultural, viticultural, silvicultural, or
642-11 vegetable product, bees or honey, planting seed, cottonseed, rice,
642-12 livestock or a livestock product, or poultry or a poultry product
642-13 that is produced in this state, either in its natural form or as
642-14 processed by the producer, including woodchips.
642-15 (b) Section 644.053, Transportation Code, is amended to
642-16 conform to Section 7, Chapter 858, and Section 4.09, Chapter 1171,
642-17 Acts of the 75th Legislature, Regular Session, 1997, by adding
642-18 Subsection (d) to read as follows:
642-19 (d) A rule adopted by the director under this chapter that
642-20 relates to hours of service, an operator's record of duty status,
642-21 or an operator's daily log, for operations outside a 150-mile
642-22 radius of the normal work-reporting location, also applies to and
642-23 must be complied with by a motor carrier of household goods not
642-24 using a commercial motor vehicle. In this subsection:
642-25 (1) "commercial motor vehicle" has the meaning
642-26 assigned by Section 548.001; and
76R5 DWS-D 642
643-1 (2) "motor carrier" has the meaning assigned by
643-2 Section 643.001.
643-3 (c) Section 10, Chapter 1061, Section 7, Chapter 858, and
643-4 Section 4.09, Chapter 1171, Acts of the 75th Legislature, Regular
643-5 Session, 1997, are repealed.
643-6 SECTION 17.28. (a) Subchapter B, Chapter 644,
643-7 Transportation Code, is amended to conform to Section 1, Chapter
643-8 476, Acts of the 75th Legislature, Regular Session, 1997, by adding
643-9 Section 644.054 to read as follows:
643-10 Sec. 644.054. REGULATION OF CONTRACT CARRIERS OF CERTAIN
643-11 PASSENGERS. (a) This section applies only to a contract carrier
643-12 that transports an operating employee of a railroad on a road or
643-13 highway of this state in a vehicle designed to carry 15 or fewer
643-14 passengers.
643-15 (b) The department shall adopt rules regulating the
643-16 operation of a contract carrier to which this section applies. The
643-17 rules must:
643-18 (1) prohibit a person from operating a vehicle for
643-19 more than 12 hours in a day;
643-20 (2) require a person who operates a vehicle for the
643-21 number of consecutive hours or days the department determines is
643-22 excessive to rest for a period determined by the department;
643-23 (3) require a contract carrier to keep a record of all
643-24 hours a vehicle subject to regulation under this section is
643-25 operated; and
643-26 (4) be determined by the department to be necessary
76R5 DWS-D 643
644-1 to protect the safety of a passenger being transported or the
644-2 general public.
644-3 (b) Section 1, Chapter 476, Acts of the 75th Legislature,
644-4 Regular Session, 1997, is repealed.
644-5 SECTION 17.29. (a) Section 644.101, Transportation Code, is
644-6 amended to conform to Section 1, Chapter 364, and Section 11,
644-7 Chapter 1061, Acts of the 75th Legislature, Regular Session, 1997,
644-8 to read as follows:
644-9 Sec. 644.101. CERTIFICATION OF MUNICIPAL POLICE [PEACE]
644-10 OFFICERS. (a) The department shall establish procedures,
644-11 including training, for the certification of municipal police
644-12 [peace] officers to enforce this chapter.
644-13 (b) A police [peace] officer of any of the following
644-14 municipalities is eligible to apply for certification under this
644-15 section:
644-16 (1) a municipality with a population of 100,000 or
644-17 more;
644-18 (2) a municipality with a population of 25,000 or more
644-19 any part of which is located in a county with a population of 2.4
644-20 million or more; or
644-21 (3) a municipality any part of which is located in a
644-22 county bordering the United Mexican States.
644-23 (c) The department by rule shall establish reasonable fees
644-24 sufficient to recover from a municipality the cost of certifying
644-25 its police [peace] officers under this section.
644-26 (b) Section 1, Chapter 364, and Section 11, Chapter 1061,
76R5 DWS-D 644
645-1 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
645-2 SECTION 17.30. Section 21.66, Chapter 1423, Acts of the 75th
645-3 Legislature, Regular Session, 1997, is repealed.
645-4 SECTION 17.31. (a) Section 644.103, Transportation Code, is
645-5 amended to conform to Section 2, Chapter 364, Acts of the 75th
645-6 Legislature, Regular Session, 1997, to read as follows:
645-7 Sec. 644.103. DETENTION OF VEHICLES. (a) An officer of the
645-8 department may enter or detain on a highway or at a port of entry a
645-9 motor vehicle that is subject to this chapter.
645-10 (b) A police [peace] officer who is certified under Section
645-11 644.101 may detain on a highway or at a port of entry within the
645-12 territory of the municipality a motor vehicle that is subject to
645-13 this chapter.
645-14 (c) An officer who detains a vehicle under this section may
645-15 prohibit the further operation of the vehicle on a highway if the
645-16 vehicle or operator of the vehicle is in violation of a federal
645-17 safety regulation or a rule adopted under this chapter.
645-18 (b) Section 2, Chapter 364, Acts of the 75th Legislature,
645-19 Regular Session, 1997, is repealed.
645-20 SECTION 17.32. (a) Chapter 644, Transportation Code, is
645-21 amended to conform to Section 1, Chapter 157, and Section 1,
645-22 Chapter 1364, Acts of the 75th Legislature, Regular Session, 1997,
645-23 by adding Subchapter E to read as follows:
645-24 SUBCHAPTER E. ROUTING OF HAZARDOUS MATERIALS
645-25 Sec. 644.201. ADOPTION OF RULES. (a) The Texas
645-26 Transportation Commission shall adopt rules under this subchapter
76R5 DWS-D 645
646-1 consistent with 49 C.F.R. Part 397 for the routing of
646-2 nonradioactive hazardous materials.
646-3 (b) Rules concerning signage, public participation, and
646-4 procedural requirements may impose more stringent requirements than
646-5 provided by 49 C.F.R. Part 397.
646-6 (c) The rules must provide for consultation with a political
646-7 subdivision when a route is being proposed within the jurisdiction
646-8 of the political subdivision.
646-9 Sec. 644.202. DESIGNATION OF ROUTE. (a) A political
646-10 subdivision of this state or a state agency may designate a route
646-11 for the transportation of nonradioactive hazardous materials over a
646-12 public road or highway in this state only if the Texas Department
646-13 of Transportation approves the route.
646-14 (b) A municipality with a population of more than 750,000
646-15 shall develop a route for commercial motor vehicles carrying
646-16 hazardous materials on a road or highway in the municipality and
646-17 submit the route to the Texas Department of Transportation for
646-18 approval. If the Texas Department of Transportation determines
646-19 that the route complies with all applicable federal and state
646-20 regulations regarding the transportation of hazardous materials,
646-21 the Texas Department of Transportation shall approve the route and
646-22 notify the municipality of the approved route.
646-23 (c) The Texas Transportation Commission may designate a
646-24 route for the transportation of nonradioactive hazardous materials
646-25 over any public road or highway in this state. The designation may
646-26 include a road or highway that is not a part of the state highway
76R5 DWS-D 646
647-1 system only on the approval of the governing body of the political
647-2 subdivision that maintains the road or highway.
647-3 Sec. 644.203. SIGNS. (a) The Texas Department of
647-4 Transportation shall provide signs for a designated route under
647-5 Section 644.202(c) over a road or highway that is not part of the
647-6 state highway system. Notwithstanding Section 222.001, the Texas
647-7 Department of Transportation may use money in the state highway
647-8 fund to pay for the signs.
647-9 (b) The political subdivision that maintains the road or
647-10 highway shall bear the costs for installation and maintenance of
647-11 the signs.
647-12 (b) Section 1, Chapter 157, and Section 1, Chapter 1364,
647-13 Acts of the 75th Legislature, Regular Session, 1997, are repealed.
647-14 SECTION 17.33. (a) Section 645.002, Transportation Code, is
647-15 amended to conform to Section 9, Chapter 1061, Acts of the 75th
647-16 Legislature, Regular Session, 1997, by amending Subsection (b) and
647-17 adding Subsection (c) to read as follows:
647-18 (b) The department may adopt rules regarding the method of
647-19 payment of a fee under this chapter. The rules may:
647-20 (1) authorize the use of an escrow account described
647-21 by Subsection (c), an electronic funds transfer, or a valid credit
647-22 card issued by a financial institution chartered by a state or the
647-23 United States or by a nationally recognized credit organization
647-24 approved by the department; and
647-25 (2) require the payment of a discount or service
647-26 charge for a credit card payment in addition to the fee.
76R5 DWS-D 647
648-1 (c) The department may establish one or more escrow accounts
648-2 in the state highway fund for the prepayment of a fee under this
648-3 chapter. A prepaid fee or any fee established by the department
648-4 for the administration of this section shall be:
648-5 (1) administered under an agreement approved by the
648-6 department; and
648-7 (2) deposited to the credit of the state highway fund
648-8 to be appropriated only to the department for the purposes of
648-9 administering this chapter.
648-10 (b) Section 9, Chapter 1061, Acts of the 75th Legislature,
648-11 Regular Session, 1997, is repealed.
648-12 SECTION 17.34. (a) Subtitle F, Title 7, Transportation
648-13 Code, is amended to codify Chapter 421, Acts of the 61st
648-14 Legislature, Regular Session, 1969 (Article 911g, Vernon's Texas
648-15 Civil Statutes), by adding Chapter 647 to read as follows:
648-16 CHAPTER 647. MOTOR TRANSPORTATION OF MIGRANT
648-17 AGRICULTURAL WORKERS
648-18 Sec. 647.001. DEFINITIONS. In this chapter:
648-19 (1) "Bus" means a motor vehicle that is designed,
648-20 constructed, and used to transport passengers. The term does not
648-21 include a passenger automobile or a station wagon other than a
648-22 taxicab.
648-23 (2) "Highway" has the meaning assigned by Section
648-24 541.302.
648-25 (3) "Migrant agricultural worker" means a person who:
648-26 (A) performs or seeks to perform farm labor of a
76R5 DWS-D 648
649-1 seasonal nature, including labor necessary to process an
649-2 agricultural food product; and
649-3 (B) occupies living quarters other than the
649-4 individual's permanent home during the period of employment.
649-5 (4) "Motor vehicle" means any vehicle, machine,
649-6 tractor, trailer, or semitrailer propelled or drawn by mechanical
649-7 power and used on a highway to transport passengers or property or
649-8 both. The term does not include:
649-9 (A) a vehicle, locomotive, or car that operates
649-10 exclusively on one or more rails; or
649-11 (B) a trolley bus that operates on electricity
649-12 generated from a fixed overhead wire and that provides local
649-13 passenger transportation in street-railway service.
649-14 (5) "Operator" means a person who operates a motor
649-15 vehicle.
649-16 (6) "Semitrailer" has the meaning assigned by Section
649-17 541.201.
649-18 (7) "Truck" has the meaning assigned by Section
649-19 541.201.
649-20 (8) "Truck tractor" has the meaning assigned by
649-21 Section 541.201.
649-22 Sec. 647.002. APPLICATION OF CHAPTER. (a) This chapter
649-23 applies to any carrier, including a carrier under contract, who at
649-24 any time uses a motor vehicle to transport to or from a place of
649-25 employment in this state at least five migrant agricultural workers
649-26 for a total distance of more than 50 miles.
76R5 DWS-D 649
650-1 (b) This chapter does not apply if:
650-2 (1) the carrier is a common carrier;
650-3 (2) the motor vehicle used is a station wagon or
650-4 passenger automobile; or
650-5 (3) the carrier is a migrant agricultural worker
650-6 transporting the worker or a member of the worker's immediate
650-7 family.
650-8 Sec. 647.003. TYPE OF VEHICLE ALLOWED. (a) A carrier may
650-9 transport migrant agricultural workers only in a:
650-10 (1) bus;
650-11 (2) truck to which a trailer is not attached; or
650-12 (3) semitrailer attached to a truck tractor.
650-13 (b) A carrier may not:
650-14 (1) attach a trailer to a semitrailer described by
650-15 Subsection (a)(3); or
650-16 (2) use a closed van that does not have windows or a
650-17 method to ensure ventilation.
650-18 Sec. 647.004. COMPLIANCE WITH REQUIREMENTS OF CHAPTER. (a)
650-19 A carrier shall comply with the requirements and specifications of
650-20 this chapter.
650-21 (b) An officer, agent, representative, or employee of a
650-22 carrier who operates a motor vehicle used to transport migrant
650-23 agricultural workers or who hires, supervises, trains, assigns, or
650-24 dispatches operators of those motor vehicles shall comply with the
650-25 requirements of Sections 647.006, 647.007, and 647.008.
650-26 (c) An officer, agent, representative, operator, or employee
76R5 DWS-D 650
651-1 of a carrier who is directly involved in the management,
651-2 maintenance, or operation of a motor vehicle used to transport
651-3 migrant agricultural workers shall comply with the requirements of
651-4 Sections 647.003, 647.005, 647.009, 647.010, 647.011, 647.012,
651-5 647.014, 647.016, and 647.017. The carrier shall instruct its
651-6 officers, agents, representatives, and operators with the
651-7 requirements of those sections and shall take necessary measures to
651-8 ensure compliance with those requirements.
651-9 (d) An officer, agent, representative, operator, or employee
651-10 of a carrier who is directly involved with the installation or
651-11 maintenance of equipment and accessories of a motor vehicle used to
651-12 transport migrant agricultural workers shall comply with the
651-13 requirements and specifications of Sections 647.012, 647.013,
651-14 647.014, 647.015, and 647.016. A carrier may not operate a motor
651-15 vehicle transporting migrant agricultural workers or cause or
651-16 permit the vehicle to be operated unless the vehicle is equipped as
651-17 required by those sections.
651-18 (e) A carrier shall systematically inspect and maintain each
651-19 motor vehicle used to transport migrant agricultural workers and
651-20 their accessories subject to its control to ensure that the vehicle
651-21 and its accessories are in safe and proper operating condition.
651-22 Sec. 647.005. OPERATION IN ACCORDANCE WITH LAW. If this
651-23 chapter imposes a greater affirmative obligation or restraint on
651-24 the operation of a motor vehicle transporting migrant agricultural
651-25 workers than the laws, ordinances, and regulations of the
651-26 jurisdiction in which the vehicle is operated, the operator shall
76R5 DWS-D 651
652-1 comply with this chapter.
652-2 Sec. 647.006. OPERATOR AGE AND EXPERIENCE REQUIREMENTS. A
652-3 person may not operate a motor vehicle transporting migrant
652-4 agricultural workers and a carrier may not permit or require a
652-5 person to operate the motor vehicle unless the person:
652-6 (1) is at least 18 years of age;
652-7 (2) has at least one year of experience in operating
652-8 any type of motor vehicle, including a private automobile, during
652-9 the different seasons;
652-10 (3) is familiar with the law relating to operating a
652-11 motor vehicle; and
652-12 (4) is authorized by law to operate that type of motor
652-13 vehicle.
652-14 Sec. 647.007. OPERATOR PHYSICAL REQUIREMENTS. (a) A person
652-15 may not operate a motor vehicle transporting migrant agricultural
652-16 workers and a carrier may not permit or require a person to operate
652-17 the motor vehicle if the person:
652-18 (1) is missing a foot, leg, hand, or arm;
652-19 (2) has a mental, nervous, organic, or functional
652-20 disorder that is likely to interfere with the person's ability to
652-21 safely operate the motor vehicle;
652-22 (3) is missing fingers, has impaired use of a foot,
652-23 leg, finger, hand, or arm, or has another structural defect or
652-24 limitation likely to interfere with the person's ability to safely
652-25 operate the motor vehicle;
652-26 (4) has a visual acuity of less than 20/40 (Snellen)
76R5 DWS-D 652
653-1 in each eye either without glasses or with corrective lenses;
653-2 (5) has a form field of vision in the horizontal
653-3 median of less than a total of 140 degrees;
653-4 (6) cannot distinguish the colors red, green, and
653-5 yellow;
653-6 (7) has hearing ability of less than 10/20 in the
653-7 better ear for conversational tones without the use of a hearing
653-8 aid; or
653-9 (8) is addicted to alcohol, narcotics, or
653-10 habit-forming drugs.
653-11 (b) An operator who requires corrective lenses for vision
653-12 shall use properly prescribed corrective lenses when operating the
653-13 motor vehicle.
653-14 Sec. 647.008. PHYSICAL EXAMINATION REQUIREMENT. (a) A
653-15 person may not operate a motor vehicle transporting migrant
653-16 agricultural workers and a carrier may not permit or require a
653-17 person to operate the motor vehicle unless:
653-18 (1) the person has been physically examined by a
653-19 licensed doctor of medicine or osteopathy during the preceding 36
653-20 months; and
653-21 (2) the doctor certifies that the person is physically
653-22 qualified in accordance with Section 647.007.
653-23 (b) The doctor's certificate must state:
653-24 "Doctor's Certificate
653-25 (Operator of Migrant Agricultural Workers)
653-26 This is to certify that I have this day examined __________ in
76R5 DWS-D 653
654-1 accordance with the Texas law governing physical qualifications of
654-2 operators of migrant agricultural workers and that I find _________
654-3 Qualified under that law
654-4 Qualified only when wearing glasses or corrective lenses
654-5 I have kept on file in my office a completed examination.
654-6 _____________ _____________ (Signature of Examining Doctor)
654-7 (Date) (Place) _______________________________
654-8 _________________ (Address of Doctor)
654-9 Signature of Operator _____________________________________________
654-10 Address of Operator _____________________________________________"
654-11 (c) A carrier shall keep in its files at the carrier's
654-12 principal place of business a legible doctor's certificate or a
654-13 legible photographically reproduced copy of the doctor's
654-14 certificate for each operator it employs or uses.
654-15 (d) An operator shall carry the operator's legible doctor's
654-16 certificate or a legible photographically reproduced copy of the
654-17 doctor's certificate when operating the motor vehicle.
654-18 Sec. 647.009. LIMITATION ON OPERATION OF MOTOR VEHICLE. (a)
654-19 Except in an emergency, a person assigned to operate a motor
654-20 vehicle transporting migrant workers may not allow another person
654-21 to operate the motor vehicle without the carrier's authorization.
654-22 (b) A person may not operate a motor vehicle if the person's
654-23 alertness or ability to operate the vehicle is impaired for any
654-24 reason, including fatigue or illness, to the extent that it is not
654-25 safe for the person to begin or to continue. This subsection does
654-26 not apply if there is a grave emergency in which failure to operate
76R5 DWS-D 654
655-1 a motor vehicle would result in a greater hazard to passengers.
655-2 However, the person may operate the motor vehicle only to the
655-3 nearest location at which the passengers' safety is ensured.
655-4 (c) A carrier may not permit or require a person to operate
655-5 a motor vehicle from one location to another in a period that would
655-6 necessitate the operation of the vehicle at a speed in excess of
655-7 the applicable speed limit.
655-8 (d) An operator shall make a meal stop of not less than 30
655-9 minutes at least every six hours. The carrier shall provide for
655-10 reasonable rest stops at least once between each meal stop.
655-11 (e) The operator of a truck transporting migrant
655-12 agricultural workers for more than 500 miles shall stop for at
655-13 least eight hours to provide rest for the operator and passengers
655-14 either before or at the completion of each 500 miles.
655-15 (f) A person may not operate and a carrier may not permit or
655-16 require the person to operate a motor vehicle for more than 10
655-17 hours in the aggregate, excluding meal and rest stops, during any
655-18 24-hour period unless the person rests for at least eight
655-19 consecutive hours at the end of the 10-hour period. For purposes
655-20 of this subsection, the 24-hour period begins at the time the
655-21 operator reports for duty.
655-22 Sec. 647.010. REQUIRED STOP AT RAILROAD CROSSING. (a) An
655-23 operator transporting migrant agricultural workers who approaches a
655-24 railroad grade crossing:
655-25 (1) shall stop the motor vehicle not less than 15 feet
655-26 or more than 50 feet from the nearest rail of the crossing; and
76R5 DWS-D 655
656-1 (2) may proceed only after the operator determines
656-2 that the course is clear.
656-3 (b) An operator is not required to stop at:
656-4 (1) a streetcar crossing that is in a municipal
656-5 business or residential district;
656-6 (2) a railroad grade crossing at which a police
656-7 officer or traffic-control signal other than a railroad flashing
656-8 signal directs traffic to proceed; or
656-9 (3) a grade crossing that the proper state authority
656-10 has clearly marked as being abandoned or exempted if the marking
656-11 can be read from the operator's position.
656-12 (c) The motor vehicle must display a sign on the rear of the
656-13 vehicle that states: "This Vehicle Stops at Railroad Crossings."
656-14 Sec. 647.011. FUEL RESTRICTIONS. (a) An operator or
656-15 carrier employee fueling a motor vehicle used to transport migrant
656-16 agricultural workers may not:
656-17 (1) fuel the motor vehicle while the engine is running
656-18 unless running the engine is required to fuel the vehicle;
656-19 (2) smoke or expose any open flame in the vicinity of
656-20 the motor vehicle;
656-21 (3) fuel the motor vehicle when the nozzle of the fuel
656-22 hose is not in continuous contact with the intake pipe of the fuel
656-23 tank; or
656-24 (4) permit any other person to engage in an activity
656-25 that would likely result in a fire or explosion.
656-26 (b) A person may carry fuel on the motor vehicle for use in
76R5 DWS-D 656
657-1 the motor vehicle or an accessory only in a properly mounted fuel
657-2 tank.
657-3 Sec. 647.012. REQUIRED VEHICLE EQUIPMENT; USE OF REQUIRED
657-4 EQUIPMENT. (a) A motor vehicle used to transport migrant
657-5 agricultural workers must be equipped with:
657-6 (1) at least one properly mounted fire extinguisher;
657-7 (2) road warning devices, including at least one
657-8 red-burning fusee and at least three red flares, red electric
657-9 lanterns, or red emergency reflectors;
657-10 (3) coupling devices as prescribed by Subsection (c),
657-11 if the vehicle is a truck tractor or dolly; and
657-12 (4) tires as prescribed by Subsection (d).
657-13 (b) A person may not operate a motor vehicle unless the
657-14 person is satisfied that the equipment required under Subsection
657-15 (a) and the following equipment is in good working order:
657-16 (1) the brakes, including service brakes, trailer
657-17 brake connections, and hand parking brakes;
657-18 (2) lighting devices and reflectors;
657-19 (3) the steering mechanism;
657-20 (4) the horn;
657-21 (5) each windshield wiper; and
657-22 (6) each rearview mirror.
657-23 (c) Adequate means must be provided positively to prevent
657-24 the shifting of the lower half of each fifth wheel attached to the
657-25 frame of a truck tractor or dolly. The lower half of each fifth
657-26 wheel must be securely fastened to the frame by U-bolts that are of
76R5 DWS-D 657
658-1 adequate size and are securely tightened. Another method may be
658-2 used if the method provides equivalent security. A U-bolt may not
658-3 be of welded construction and must be installed so as not to crack,
658-4 warp, or deform the frame. The upper half of each fifth wheel must
658-5 be fastened with at least the security required for the lower half.
658-6 A locking means must be provided in each fifth wheel mechanism,
658-7 including adapters when used, so that the upper and lower half will
658-8 not separate without the use of a positive manual release, such as
658-9 a release mechanism that the operator uses from the cab. If the
658-10 fifth wheel is designed and constructed to be readily separable,
658-11 the requirement for a fifth wheel coupling device applies to a
658-12 vehicle manufactured after December 31, 1952.
658-13 (d) Vehicle tires must be of adequate capacity to support
658-14 the vehicle's gross weight. Each tire must have a tread
658-15 configuration on the part of the tire that is in contact with the
658-16 road and may not be so smooth as to expose any tread fabric. A
658-17 tire may not have a defect likely to cause failure. A front tire
658-18 may not be regrooved, recapped, or retreaded.
658-19 (e) An operator shall use required equipment as necessary.
658-20 Sec. 647.013. PASSENGER SAFETY PROVISIONS ON MOTOR VEHICLE
658-21 OTHER THAN BUS. (a) A motor vehicle other than a bus transporting
658-22 migrant agricultural workers must have a passenger compartment in
658-23 accordance with this section.
658-24 (b) The floor of the passenger compartment must be
658-25 substantially smooth and without cracks or holes. Except as
658-26 necessary to secure the seats or other devices attached to the
76R5 DWS-D 658
659-1 floor, the floor may not have any object that protrudes more than
659-2 two inches in height.
659-3 (c) The side walls and ends of the passenger compartment
659-4 must extend at least 60 inches from the floor. If necessary,
659-5 sideboards may be attached to the body of the motor vehicle. Stake
659-6 body construction meets the requirements of this subsection only if
659-7 the space six inches or larger between any two stakes is suitably
659-8 closed to prevent the passengers from falling off the vehicle.
659-9 (d) The floor and interior of the sides and ends of the
659-10 passenger compartment must be free of protruding nails, screws,
659-11 splinters, or any other protruding object that is likely to injure
659-12 a passenger or the passenger's clothes.
659-13 (e) The motor vehicle must have an adequate means of exiting
659-14 and entering the passenger compartment from the rear or from the
659-15 right side of the vehicle. Each exit and entrance must have a gate
659-16 or door that has at least one latch or fastening device that will
659-17 keep the gate or door securely closed during transportation. The
659-18 latch or fastening device must be readily operative without the use
659-19 of tools. An exit or entrance must:
659-20 (1) be at least 18 inches wide;
659-21 (2) have a top and clear opening of at least 60 inches
659-22 or as high as the passenger compartment side wall if the side wall
659-23 is less than 60 inches high; and
659-24 (3) have a bottom that is at the floor of the
659-25 passenger compartment.
659-26 (f) If the motor vehicle has a permanently attached roof,
76R5 DWS-D 659
660-1 the vehicle must have at least one emergency exit on a side or rear
660-2 of the vehicle that does not have a regular exit or entrance. The
660-3 exit must have a gate or door and a latch and hold as prescribed by
660-4 Subsection (e).
660-5 (g) If necessary, a ladder or steps shall be used to enter
660-6 and exit the passenger compartment. The maximum vertical spacing
660-7 of footholds may not exceed 12 inches and the lowest step may not
660-8 be more than 18 inches above the ground when the vehicle is empty.
660-9 (h) The motor vehicle must include handholds or other
660-10 devices that will enable passengers to enter and exit the vehicle
660-11 without hazard.
660-12 (i) The motor vehicle must have a way for passengers to
660-13 communicate with the operator, including a telephone, speaker tube,
660-14 buzzer, pull cord, or other mechanical or electrical device.
660-15 Sec. 647.014. PASSENGER SEATING. One seat must be provided
660-16 for each passenger. Passengers shall remain seated while the
660-17 vehicle is in motion.
660-18 Sec. 647.015. PASSENGER SEATING REQUIREMENTS FOR CERTAIN
660-19 TRIPS. (a) A motor vehicle transporting migrant agricultural
660-20 workers for a total distance of 100 miles or more must have a
660-21 passenger compartment in accordance with this section.
660-22 (b) Each passenger seat must:
660-23 (1) be securely attached to the vehicle during use;
660-24 (2) be not less than 16 or more than 19 inches above
660-25 the floor;
660-26 (3) be at least 13 inches deep;
76R5 DWS-D 660
661-1 (4) be equipped with backrests that extend at least 36
661-2 inches above the floor;
661-3 (5) have at least 24 inches of space between the
661-4 backrests or the edges of the opposite seats when positioned face
661-5 to face;
661-6 (6) provide at least 18 inches of seat area for each
661-7 passenger;
661-8 (7) not have any cracks that are more than one-fourth
661-9 inch wide;
661-10 (8) not have any cracks in the backrests, if slatted,
661-11 that are more than two inches wide; and
661-12 (9) have any exposed wood surfaces planed or sanded
661-13 smooth and free of splinters.
661-14 Sec. 647.016. PASSENGER PROTECTION FROM WEATHER. (a) If
661-15 necessary to protect passengers from inclement weather, including
661-16 rain, snow, or sleet, the passenger compartment must be equipped
661-17 with a top that is at least 80 inches above the floor and with a
661-18 means of closing the sides and ends. A tarpaulin or other
661-19 removable protective device may be used if secured in place.
661-20 (b) The motor vehicle must have a safe method of protecting
661-21 the passengers from cold or undue exposure. A motor vehicle may
661-22 not have a heater that:
661-23 (1) conducts engine exhaust gases or engine
661-24 compartment air into or through a space occupied by an individual;
661-25 (2) uses a flame that is not completely enclosed;
661-26 (3) might spill or leak fuel if the vehicle is tilted
76R5 DWS-D 661
662-1 or overturned;
662-2 (4) uses heated or unheated air that comes from or
662-3 through the engine compartment or from direct contact with any part
662-4 of the exhaust system unless the heater ducts prevent contamination
662-5 of the air from the exhaust or engine compartment gases; or
662-6 (5) is not securely fastened to the motor vehicle.
662-7 Sec. 647.017. OPERATIONAL REQUIREMENTS. (a) A person may
662-8 not operate a motor vehicle transporting migrant agricultural
662-9 workers that is loaded or that has a load that is distributed or
662-10 secured in a manner that prevents the vehicle's safe operation.
662-11 (b) A person may not operate a motor vehicle if:
662-12 (1) a tailgate, tailboard, tarpaulin, door, fastening
662-13 device, or equipment or rigging is not securely in place;
662-14 (2) an object:
662-15 (A) obscures the operator's view in any
662-16 direction;
662-17 (B) interferes with the free movement of the
662-18 operator's arms or legs;
662-19 (C) obstructs the operator's access to emergency
662-20 accessories; or
662-21 (D) obstructs a person's entrance or exit from
662-22 the cab or operator's compartment; or
662-23 (3) property on the vehicle is stowed so that it:
662-24 (A) restricts the operator's freedom of motion
662-25 in properly operating the vehicle;
662-26 (B) obstructs a person's exit from the vehicle;
76R5 DWS-D 662
663-1 or
663-2 (C) does not provide adequate protection to
663-3 passengers and others from injury resulting from a falling or
663-4 displaced article.
663-5 (c) An operator who leaves a motor vehicle unattended shall
663-6 securely set the parking brake, chock the wheels, and take all
663-7 reasonable precautions to prevent the vehicle from moving.
663-8 Sec. 647.018. CERTIFICATE OF COMPLIANCE. A carrier is
663-9 considered to be in compliance with this chapter if the carrier
663-10 holds a certificate of compliance with the United States Department
663-11 of Transportation regulations governing transportation of migrant
663-12 agricultural workers in interstate commerce.
663-13 Sec. 647.019. PENALTY. (a) A carrier who violates this
663-14 chapter commits an offense.
663-15 (b) An offense under this section is a misdemeanor
663-16 punishable by a fine of not less than $5 or more than $50.
663-17 (b) Chapter 421, Acts of the 61st Legislature, Regular
663-18 Session, 1969 (Article 911g, Vernon's Texas Civil Statutes), is
663-19 repealed.
663-20 SECTION 17.35. (a) Subtitle F, Title 7, Transportation
663-21 Code, is amended to codify Article 6675c-2, Revised Statutes, as
663-22 added by Section 4.11(a), Chapter 1171, Acts of the 75th
663-23 Legislature, Regular Session, 1997, by adding Chapter 648 to read
663-24 as follows:
663-25 CHAPTER 648. FOREIGN COMMERCIAL MOTOR TRANSPORTATION
663-26 SUBCHAPTER A. GENERAL PROVISIONS
76R5 DWS-D 663
664-1 Sec. 648.001. DEFINITIONS. In this chapter:
664-2 (1) "Border" means the border between this state and
664-3 the United Mexican States.
664-4 (2) "Border commercial zone" means a commercial zone
664-5 established under 49 C.F.R. Part 372, Subpart B, any portion of
664-6 which is contiguous to the border in this state.
664-7 (3) "Commercial motor vehicle" includes a foreign
664-8 commercial motor vehicle.
664-9 (4) "Foreign commercial motor vehicle" means a
664-10 commercial motor vehicle, as defined by 49 C.F.R. Section 390.5,
664-11 that is owned or controlled by a person or entity that is domiciled
664-12 in or a citizen of a country other than the United States.
664-13 (5) "Motor carrier" includes a foreign motor carrier
664-14 and a foreign motor private carrier, as defined in 49 U.S.C.
664-15 Sections 13102(6) and (7).
664-16 Sec. 648.002. RULES. In addition to rules required by this
664-17 chapter, the Texas Department of Transportation, the Department of
664-18 Public Safety, and the Texas Department of Insurance may adopt
664-19 other rules to carry out this chapter.
664-20 Sec. 648.003. REFERENCE TO FEDERAL STATUTE OR REGULATION. A
664-21 reference in this chapter to a federal statute or regulation
664-22 includes any subsequent amendment or redesignation of the statute
664-23 or regulation.
664-24 (Sections 648.004-648.050 reserved for expansion
664-25 SUBCHAPTER B. BORDER COMMERCIAL ZONE
664-26 Sec. 648.051. BORDER COMMERCIAL ZONE EXCLUSIVE; BOUNDARIES.
76R5 DWS-D 664
665-1 (a) A law or agreement of less than statewide application that is
665-2 adopted by an agency or political subdivision of this state and
665-3 that regulates motor carriers or commercial motor vehicles or the
665-4 operation of those carriers or vehicles in the transportation of
665-5 cargo across the border or within an area adjacent to the border by
665-6 foreign commercial motor vehicles has no effect unless the law or
665-7 agreement applies uniformly to an entire border commercial zone and
665-8 only in a border commercial zone.
665-9 (b) This subchapter supersedes that portion of any paired
665-10 city, paired state, or similar understanding governing foreign
665-11 commercial motor vehicles or motor carriers entered into under
665-12 Section 502.054 or any other law.
665-13 Sec. 648.052. MODIFICATION OF ZONE BOUNDARIES. The
665-14 boundaries of a border commercial zone may be modified or
665-15 established only as provided by federal law.
665-16 (Sections 648.053-648.100 reserved for expansion
665-17 SUBCHAPTER C. REGULATION OF OPERATION OF FOREIGN
665-18 COMMERCIAL MOTOR VEHICLES
665-19 Sec. 648.101. REGISTRATION EXEMPTION IN BORDER COMMERCIAL
665-20 ZONE. (a) A foreign commercial motor vehicle is exempt from
665-21 Chapter 502 and any other law of this state requiring the vehicle
665-22 to be registered in this state, including a law providing for a
665-23 temporary registration permit, if:
665-24 (1) the vehicle is engaged solely in transportation of
665-25 cargo across the border into or from a border commercial zone;
665-26 (2) for each load of cargo transported the vehicle
76R5 DWS-D 665
666-1 remains in this state:
666-2 (A) not more than 24 hours; or
666-3 (B) not more than 48 hours, if:
666-4 (i) the vehicle is unable to leave this
666-5 state within 24 hours because of circumstances beyond the control
666-6 of the motor carrier operating the vehicle; and
666-7 (ii) all financial responsibility
666-8 requirements applying to the vehicle are satisfied;
666-9 (3) the vehicle is registered and licensed as required
666-10 by the law of another state or country as evidenced by a valid
666-11 metal license plate attached to the front or rear of the exterior
666-12 of the vehicle; and
666-13 (4) the country in which the person that owns or
666-14 controls the vehicle is domiciled or is a citizen provides a
666-15 reciprocal exemption for commercial motor vehicles owned or
666-16 controlled by residents of this state.
666-17 (b) A foreign commercial motor vehicle operating under the
666-18 exemption provided by this section and the vehicle's driver may be
666-19 considered unregistered if the vehicle is operated in this state
666-20 outside a border commercial zone or in violation of United States
666-21 law.
666-22 Sec. 648.102. FINANCIAL RESPONSIBILITY. (a) The Texas
666-23 Department of Transportation shall adopt rules that conform with 49
666-24 C.F.R. Part 387 requiring motor carriers operating foreign
666-25 commercial motor vehicles in this state to maintain financial
666-26 responsibility.
76R5 DWS-D 666
667-1 (b) This chapter prevails over any other requirement of
667-2 state law relating to financial responsibility for operation of
667-3 foreign commercial motor vehicles in this state.
667-4 Sec. 648.103. DOMESTIC TRANSPORTATION. A foreign motor
667-5 carrier or foreign motor private carrier may not transport persons
667-6 or cargo in intrastate commerce in this state unless the carrier is
667-7 authorized to conduct operations in interstate and foreign commerce
667-8 domestically between points in the United States under federal law
667-9 or international agreement.
667-10 (b) Article 6675c-2, Revised Statutes, as added by Section
667-11 4.11(a), Chapter 1171, Acts of the 75th Legislature, Regular
667-12 Session, 1997, is repealed.
667-13 SECTION 17.36. Sections 661.003(d)-(g), Transportation Code,
667-14 are amended to conform those sections to the definition of
667-15 "department" provided by Section 661.001, Transportation Code, to
667-16 read as follows:
667-17 (d) The department [Department of Public Safety] shall issue
667-18 a sticker to a person who:
667-19 (1) applies to the department on a form provided by
667-20 the department;
667-21 (2) provides the department with evidence satisfactory
667-22 to the department showing that the person:
667-23 (A) is the owner of a motorcycle that is
667-24 currently registered in this state; and
667-25 (B) has successfully completed the training and
667-26 safety course described by Subsection (c) or has the insurance
76R5 DWS-D 667
668-1 coverage described by that subsection; and
668-2 (3) pays a fee of $5 for the sticker.
668-3 (e) A person may apply to the department [Department of
668-4 Public Safety] for a sticker for each motorcycle owned by the
668-5 applicant.
668-6 (f) A sticker issued by the department [Department of Public
668-7 Safety] under Subsection (d) expires on the third anniversary of
668-8 the date of issuance.
668-9 (g) A person operating or riding as a passenger on a
668-10 motorcycle that displays on the license plate of the motorcycle or
668-11 the license plate mounting bracket a sticker issued by the
668-12 department [Department of Public Safety] under Subsection (d) is
668-13 presumed to have successfully completed the training and safety
668-14 course described by Subsection (c) or to have the insurance
668-15 coverage described by that subsection.
668-16 SECTION 17.37. (a) Section 706.001, Transportation Code, is
668-17 amended to conform to Section 1, Chapter 457, Acts of the 75th
668-18 Legislature, Regular Session, 1997, to read as follows:
668-19 Sec. 706.001. DEFINITIONS. In this chapter:
668-20 (1) "Complaint" means a notice of an offense as
668-21 described by Article 27.14(d) or 45.01, Code of Criminal Procedure.
668-22 (2) "Department" means the Department of Public
668-23 Safety.
668-24 (3) "Driver's license" has the meaning assigned by
668-25 Section 521.001.
668-26 (4) "Highway or street" has the meaning assigned by
76R5 DWS-D 668
669-1 Section 541.302.
669-2 (5) "Motor vehicle" has the meaning assigned by
669-3 Section 541.201.
669-4 (6) "Operator" has the meaning assigned by Section
669-5 541.001.
669-6 (7) "Political subdivision" means a municipality or
669-7 county.
669-8 (8) "Public place" has the meaning assigned by Section
669-9 1.07, Penal Code.
669-10 (9) [(5)] "Traffic law" means a statute or ordinance,
669-11 a violation of which is a misdemeanor punishable by a fine in an
669-12 amount not to exceed $1,000, that [regulates]:
669-13 (A) regulates an operator's conduct or condition
669-14 while operating a motor vehicle on a highway or street or in a
669-15 public place [highway]; [or]
669-16 (B) regulates the condition of a motor vehicle
669-17 while it is being operated on a highway or street;
669-18 (C) relates to the driver's license status of an
669-19 operator while operating a motor vehicle on a highway or street; or
669-20 (D) relates to the registration status of a
669-21 motor vehicle while it is being operated on a highway or street [or
669-22 highway].
669-23 (b) Section 706.002(a), Transportation Code, is amended to
669-24 conform to Section 2, Chapter 457, Acts of the 75th Legislature,
669-25 Regular Session, 1997, to read as follows:
669-26 (a) A political subdivision may contract with the department
76R5 DWS-D 669
670-1 to provide information necessary for the department to deny renewal
670-2 of the driver's license of a person who fails to appear for a
670-3 complaint, citation, or court order to pay a fine involving:
670-4 (1) a violation of a traffic law;
670-5 (2) an offense under Section 543.009(b) or 543.107(b);
670-6 or
670-7 (3) an offense under Section 38.10, Penal Code, if the
670-8 underlying offense is a traffic offense.
670-9 (c) Sections 706.004 and 706.005, Transportation Code, are
670-10 amended to conform to Section 3, Chapter 457, Acts of the 75th
670-11 Legislature, Regular Session, 1997, to read as follows:
670-12 Sec. 706.004. DENIAL OF RENEWAL OF DRIVER'S LICENSE.
670-13 (a) If a political subdivision has contracted with the department,
670-14 on receiving the necessary information from the political
670-15 subdivision the department may deny renewal of the person's
670-16 driver's license for failure to appear based on a complaint,
670-17 citation, or court order to pay a fine involving a violation of a
670-18 traffic law or an offense described by Section 706.002(a)(2) or
670-19 (3).
670-20 (b) The information must include:
670-21 (1) the name, date of birth, and driver's license
670-22 number of the person;
670-23 (2) the nature and date of the alleged violation;
670-24 (3) a statement that the person failed to appear as
670-25 required by law for a traffic violation or an offense described by
670-26 Section 706.002(a)(2) or (3); and
76R5 DWS-D 670
671-1 (4) any other information required by the department.
671-2 Sec. 706.005. NOTICE TO DEPARTMENT. A political subdivision
671-3 shall notify the department that there is no cause to continue to
671-4 deny renewal of a person's driver's license based on the person's
671-5 previous failure to appear for a traffic violation or an offense
671-6 described by Section 706.002(a)(2) or (3), on payment of a fee as
671-7 provided by Section 706.006 and:
671-8 (1) the entry of a judgment against the person;
671-9 (2) the perfection of an appeal of the case for which
671-10 the warrant of arrest was issued;
671-11 (3) the dismissal of the charge for which the warrant
671-12 of arrest was issued;
671-13 (4) the acquittal of the charge on which the person
671-14 failed to appear;
671-15 (5) the posting of bond or the giving of other
671-16 security to reinstate the charge for which the warrant was issued;
671-17 or
671-18 (6) the payment of the fine owed on an outstanding
671-19 court order to pay a fine.
671-20 (d) Section 706.006(a), Transportation Code, is amended to
671-21 conform to Section 3, Chapter 457, Acts of the 75th Legislature,
671-22 Regular Session, 1997, to read as follows:
671-23 (a) Unless a person has been acquitted of the [traffic]
671-24 offense for which the person failed to appear for a complaint,
671-25 citation, or court order to pay a fine involving a violation of a
671-26 traffic law or an offense described by Section 706.002(a)(2) or
76R5 DWS-D 671
672-1 (3), the political subdivision shall require the person to pay an
672-2 administrative fee of $30 for each violation for which the person
672-3 failed to appear.
672-4 (e) Sections 1-3, Chapter 457, Acts of the 75th Legislature,
672-5 Regular Session, 1997, are repealed.
672-6 SECTION 17.38. Section 721.005(b), Transportation Code, as
672-7 amended by Chapters 46 and 355, Acts of the 75th Legislature,
672-8 Regular Session, 1997, is amended to properly letter paragraphs to
672-9 read as follows:
672-10 (b) The commissioners court of a county may exempt from the
672-11 requirements of Section 721.004:
672-12 (1) an automobile when used to perform an official
672-13 duty by a:
672-14 (A) police department;
672-15 (B) sheriff's office;
672-16 (C) constable's office;
672-17 (D) criminal district attorney's office;
672-18 (E) district attorney's office;
672-19 (F) county attorney's office;
672-20 (G) magistrate as defined by Article 2.09, Code
672-21 of Criminal Procedure; [or]
672-22 (H) county fire marshal's office; or
672-23 (I) [(H)] medical examiner; or
672-24 (2) a juvenile probation department vehicle used to
672-25 transport children, when used to perform an official duty.
672-26 ARTICLE 18. CHANGES RELATING TO UTILITIES CODE
76R5 CBH-D 672
673-1 SECTION 18.01. (a) Subchapter B, Chapter 14, Utilities
673-2 Code, is amended to conform to Section 26, Chapter 1206, Acts of
673-3 the 75th Legislature, Regular Session, 1997, by adding Section
673-4 14.058 to read as follows:
673-5 Sec. 14.058. FEES FOR ELECTRONIC ACCESS TO INFORMATION. The
673-6 fees charged by the commission for electronic access to information
673-7 that is stored in the system established by the commission using
673-8 funds from the Texas Public Finance Authority and approved by the
673-9 Department of Information Resources shall be established:
673-10 (1) by the commission in consultation with the General
673-11 Services Commission; and
673-12 (2) in an amount reasonable and necessary to retire
673-13 the debt to the Texas Public Finance Authority associated with
673-14 establishing the electronic access system.
673-15 (b) Section 26, Chapter 1206, Acts of the 75th Legislature,
673-16 Regular Session, 1997, is repealed.
673-17 SECTION 18.02. (a) Section 36.302, Utilities Code, is
673-18 amended to conform to Section 1, Chapter 1433, Acts of the 75th
673-19 Legislature, Regular Session, 1997, by adding Subsection (c) to
673-20 read as follows:
673-21 (c) Notwithstanding Subsection (a), the electric cooperative
673-22 may not be required to prepare or make available a cost-of-service
673-23 study if the rate change is uncontested and the commission
673-24 determines that a cost-of-service study is unnecessary. The
673-25 commission shall make any determination of necessity without a
673-26 hearing.
76R5 CBH-D 673
674-1 (b) Section 1, Chapter 1433, Acts of the 75th Legislature,
674-2 Regular Session, 1997, is repealed.
674-3 SECTION 18.03. Section 36.306(b), Utilities Code, is amended
674-4 to more closely conform to the law from which that subsection was
674-5 derived, to read as follows:
674-6 (b) The standards described in Sections 36.007(a)-(c)
674-7 [Section 36.007] apply to the review of rates adopted under
674-8 Subsection (a). In a review of the rates, the electric
674-9 cooperative's marginal cost shall be the lowest marginal cost of
674-10 any of the cooperative's wholesale power suppliers.
674-11 SECTION 18.04. (a) Section 52.102, Utilities Code, is
674-12 amended to conform to Section 2, Chapter 919, Acts of the 75th
674-13 Legislature, Regular Session, 1997, to read as follows:
674-14 Sec. 52.102. LIMITED REGULATORY AUTHORITY. Except as
674-15 otherwise provided by this subchapter, Subchapters D and K [and
674-16 Subchapter D], Chapter 55, and Section 55.011, the commission has
674-17 only the following jurisdiction over a telecommunications utility
674-18 subject to this subchapter:
674-19 (1) to require registration under Section 52.103;
674-20 (2) to conduct an investigation under Section 52.104;
674-21 (3) to require the filing of reports as the commission
674-22 periodically directs;
674-23 (4) to require the maintenance of statewide average
674-24 rates or prices of telecommunications service;
674-25 (5) to require access to telecommunications service
674-26 under Section 52.105; and
76R5 CBH-D 674
675-1 (6) to require the quality of telecommunications
675-2 service provided to be adequate under Section 52.106.
675-3 (b) Subchapter A, Chapter 55, Utilities Code, is amended to
675-4 conform to Section 1, Chapter 919, Acts of the 75th Legislature,
675-5 Regular Session, 1997, by adding Section 55.011 to read as follows:
675-6 Sec. 55.011. NOTICE OF IDENTITY OF INTEREXCHANGE CARRIER.
675-7 (a) A local exchange company shall print on the first page of each
675-8 bill sent to a customer of the local exchange company the name of
675-9 the customer's primary interexchange carrier if the company
675-10 provides billing services for that carrier.
675-11 (b) The bill must contain instructions on how the customer
675-12 can contact the commission if the customer believes that the named
675-13 carrier is not the customer's primary interexchange carrier.
675-14 (c) The commission may, for good cause, waive the billing
675-15 requirement prescribed by this section in exchanges served by local
675-16 exchange companies serving not more than 31,000 access lines.
675-17 (c) Chapter 55, Utilities Code, is amended to conform to
675-18 Section 1, Chapter 919, Acts of the 75th Legislature, Regular
675-19 Session, 1997, by adding Subchapter K to read as follows:
675-20 SUBCHAPTER K. SELECTION OF TELECOMMUNICATIONS UTILITIES
675-21 Sec. 55.301. STATE POLICY. It is the policy of this state
675-22 to ensure that all customers are protected from the unauthorized
675-23 switching of a telecommunications utility selected by the customer
675-24 to provide telecommunications service.
675-25 Sec. 55.302. COMMISSION RULES. (a) The commission shall
675-26 adopt nondiscriminatory and competitively neutral rules to
76R5 CBH-D 675
676-1 implement this subchapter, including rules that:
676-2 (1) ensure that customers are protected from deceptive
676-3 practices in the obtaining of authorizations and verifications
676-4 required by this subchapter;
676-5 (2) are applicable to all local exchange telephone
676-6 services, interexchange telecommunications service, and other
676-7 telecommunications service provided by telecommunications utilities
676-8 in this state;
676-9 (3) are consistent with the rules and regulations
676-10 prescribed by the Federal Communications Commission for the
676-11 selection of telecommunications utilities;
676-12 (4) permit telecommunications utilities to select any
676-13 method of verification of a carrier-initiated change order
676-14 authorized by Section 55.303;
676-15 (5) require telecommunications utilities to maintain
676-16 records relating to a customer-initiated change in accordance with
676-17 Section 55.304;
676-18 (6) require the reversal of certain changes in the
676-19 selection of a customer's telecommunications utility in accordance
676-20 with Section 55.305(a);
676-21 (7) prescribe, in accordance with Section 55.305(b),
676-22 the duties of a telecommunications utility that initiates an
676-23 unauthorized customer change; and
676-24 (8) provide for corrective action and the imposition
676-25 of penalties in accordance with Sections 55.306 and 55.307.
676-26 (b) The commission is granted all necessary jurisdiction to
76R5 CBH-D 676
677-1 adopt rules required by this subchapter and to enforce those rules
677-2 and this subchapter.
677-3 (c) The commission may notify customers of their rights
677-4 under the rules.
677-5 Sec. 55.303. VERIFICATION OF CARRIER-INITIATED CHANGE. (a)
677-6 A telecommunications utility may verify a carrier-initiated change
677-7 order by:
677-8 (1) obtaining written authorization from the customer;
677-9 (2) obtaining a toll-free electronic authorization
677-10 placed from the telephone number that is the subject of the change
677-11 order; or
677-12 (3) an oral authorization obtained by an independent
677-13 third party.
677-14 (b) In addition to the methods provided by Subsection (a), a
677-15 telecommunications utility may verify a carrier-initiated change
677-16 order by mailing to the customer an information package that is
677-17 consistent with the requirements of 47 C.F.R. Section 64.1100(d)
677-18 and that contains a postage-prepaid postcard or mailer. The change
677-19 is considered verified if the telecommunications utility does not
677-20 receive a cancellation of the change order from the customer within
677-21 14 days after the date of the mailing.
677-22 Sec. 55.304. CUSTOMER-INITIATED CHANGE. (a) A
677-23 telecommunications utility to whom a customer has changed its
677-24 service on the initiative of the customer shall maintain a record
677-25 of nonpublic customer-specific information that could be used to
677-26 establish that the customer authorized the change.
76R5 CBH-D 677
678-1 (b) Notwithstanding Subsection (a), if the Federal
678-2 Communications Commission requires verification, the
678-3 telecommunications utility shall use the verification methods
678-4 required by the Federal Communications Commission.
678-5 Sec. 55.305. UNAUTHORIZED CHANGE. (a) If a change in the
678-6 selection of a customer's telecommunications utility is not made or
678-7 verified in accordance with this subchapter, the change, on request
678-8 by the customer, shall be reversed within a period established by
678-9 commission ruling.
678-10 (b) A telecommunications utility that initiates an
678-11 unauthorized customer change shall:
678-12 (1) pay all usual and customary charges associated
678-13 with returning the customer to its original telecommunications
678-14 utility;
678-15 (2) pay the telecommunications utility from which the
678-16 customer was changed any amount paid by the customer that would
678-17 have been paid to that telecommunications utility if the
678-18 unauthorized change had not been made;
678-19 (3) return to the customer any amount paid by the
678-20 customer that exceeds the charges that would have been imposed for
678-21 identical services by the telecommunications utility from which the
678-22 customer was changed if the unauthorized change had not been made;
678-23 and
678-24 (4) provide to the original telecommunications utility
678-25 from which the customer was changed all billing records to enable
678-26 that telecommunications utility to comply with this subchapter.
76R5 CBH-D 678
679-1 (c) The telecommunications utility from which the customer
679-2 was changed shall provide to the customer all benefits associated
679-3 with the service on receipt of payment for service provided during
679-4 the unauthorized change.
679-5 Sec. 55.306. CORRECTIVE ACTION AND PENALTIES. (a) If the
679-6 commission finds that a telecommunications utility has repeatedly
679-7 violated the commission's telecommunications utility selection
679-8 rules, the commission shall order the utility to take corrective
679-9 action as necessary. In addition, the utility may be subject to
679-10 administrative penalties under Sections 15.023-15.027.
679-11 (b) An administrative penalty collected under this section
679-12 shall be used to enforce this subchapter.
679-13 Sec. 55.307. REPEATED AND RECKLESS VIOLATION. If the
679-14 commission finds that a telecommunications utility has repeatedly
679-15 and recklessly violated the commission's telecommunications utility
679-16 selection rules, the commission may, if consistent with the public
679-17 interest, suspend, restrict, or revoke the registration or
679-18 certificate of the telecommunications utility and, by taking that
679-19 action, deny the telecommunications utility the right to provide
679-20 service in this state.
679-21 (d) Sections 1 and 2, Chapter 919, Acts of the 75th
679-22 Legislature, Regular Session, 1997, are repealed.
679-23 SECTION 18.05. (a) Section 55.103, Utilities Code, is
679-24 amended to conform to Section 1, Chapter 1402, Acts of the 75th
679-25 Legislature, Regular Session, 1997, and to more closely conform to
679-26 the law from which that section was derived, to read as follows:
76R5 CBH-D 679
680-1 Sec. 55.103. PROVISION OF SERVICE. (a) A
680-2 telecommunications utility [or commercial mobile service provider]
680-3 may offer caller identification services under this subchapter only
680-4 if the utility [or provider] obtains written authorization from the
680-5 commission.
680-6 (b) A commercial mobile service provider may offer caller
680-7 identification services in accordance with Sections 55.104, 55.105,
680-8 55.106, 55.1065, and 55.107.
680-9 (b) Section 55.105, Utilities Code, is amended to conform to
680-10 Section 1, Chapter 1402, Acts of the 75th Legislature, Regular
680-11 Session, 1997, to read as follows:
680-12 Sec. 55.105. PER-CALL BLOCKING. Except as provided by
680-13 Section 55.1065, the [The] commission shall require that a provider
680-14 of caller identification service offer free per-call blocking to
680-15 each telephone subscriber in the specific area in which the service
680-16 is offered.
680-17 (c) Section 55.106(a), Utilities Code, is amended to conform
680-18 to Section 1, Chapter 1402, Acts of the 75th Legislature, Regular
680-19 Session, 1997, to read as follows:
680-20 (a) Except as provided by Section 55.1065, the [The]
680-21 commission shall require that a provider of caller identification
680-22 service offer free per-line blocking to a particular customer if
680-23 the commission receives from the customer written certification
680-24 that the customer has a compelling need for per-line blocking.
680-25 (d) Subchapter E, Chapter 55, Utilities Code, is amended to
680-26 conform to Section 1, Chapter 1402, Acts of the 75th Legislature,
76R5 CBH-D 680
681-1 Regular Session, 1997, by adding Section 55.1065 to read as
681-2 follows:
681-3 Sec. 55.1065. USE OF BLOCKING BY TELEPHONE SOLICITOR. (a)
681-4 A telephone solicitor may not use any method, including per-call
681-5 blocking or per-line blocking, that prevents caller identification
681-6 information for the telephone solicitor's lines used to make
681-7 consumer telephone calls from being shown by a device capable of
681-8 displaying caller identification information.
681-9 (b) The caller identification information displayed must
681-10 contain a telephone number at which the telephone solicitor may
681-11 receive telephone calls if the telephone solicitor leaves a message
681-12 on a telephone answering device or uses an automated dial
681-13 announcing device that plays a recorded message when a connection
681-14 is completed to a telephone number.
681-15 (c) A telephone solicitor who violates this section is
681-16 subject to an administrative penalty in an amount not to exceed
681-17 $1,000 for each day or portion of a day on which the person uses a
681-18 method prohibited by this section. Section 55.137 applies to the
681-19 imposition of a penalty under this section.
681-20 (d) In this section, "telephone solicitor" and "consumer
681-21 telephone call" have the meanings assigned by Section 37.01,
681-22 Business & Commerce Code.
681-23 (e) Section 55.107, Utilities Code, is amended to conform to
681-24 Section 1, Chapter 1402, Acts of the 75th Legislature, Regular
681-25 Session, 1997, to read as follows:
681-26 Sec. 55.107. LIMITATION ON COMMISSION AUTHORITY. The
76R5 CBH-D 681
682-1 commission may prescribe in relation to blocking only a requirement
682-2 authorized by Sections 55.105, [and] 55.106, and 55.1065.
682-3 (f) Section 55.128, Utilities Code, is amended to conform to
682-4 Section 2, Chapter 1402, Acts of the 75th Legislature, Regular
682-5 Session, 1997, to read as follows:
682-6 Sec. 55.128. DURATION OF RECORDED MESSAGE. A person may not
682-7 use an automated dial announcing device to make for solicitation
682-8 purposes a telephone call in which the device plays a recorded
682-9 message when the connection is completed unless:
682-10 (1) the recorded message is shorter than 30 seconds
682-11 [one minute]; or
682-12 (2) the device has the technical capacity to:
682-13 (A) recognize a telephone answering device on
682-14 the called person's line; and
682-15 (B) terminate the call within 30 seconds [one
682-16 minute].
682-17 (g) Section 55.137, Utilities Code, is amended to conform to
682-18 Section 3, Chapter 1402, Acts of the 75th Legislature, Regular
682-19 Session, 1997, by adding Subsection (f) to read as follows:
682-20 (f) The proceeds of administrative penalties collected under
682-21 this section shall be deposited to the credit of the commission.
682-22 The commission shall use the proceeds to enforce this subchapter.
682-23 (h) Subchapter G, Chapter 55, Utilities Code, is amended to
682-24 conform to Section 4, Chapter 1402, Acts of the 75th Legislature,
682-25 Regular Session, 1997, by adding Section 55.153 to read as follows:
682-26 Sec. 55.153. EDUCATIONAL PROGRAM. (a) In addition to the
76R5 CBH-D 682
683-1 notice required by Section 55.152, the commission shall conduct an
683-2 educational program designed to inform the public of their rights
683-3 under Section 55.151 and Section 37.02, Business & Commerce Code.
683-4 (b) The educational program shall be directed to all
683-5 residential telephone subscribers and shall be conducted at least
683-6 annually if funds are available.
683-7 (i) Sections 1-4, Chapter 1402, Acts of the 75th
683-8 Legislature, Regular Session, 1997, are repealed.
683-9 SECTION 18.06. (a) Section 55.203, Utilities Code, is
683-10 amended to conform to Section 2, Chapter 1186, Acts of the 75th
683-11 Legislature, Regular Session, 1997, to read as follows:
683-12 Sec. 55.203. DIRECTORY PUBLISHED BY PRIVATE PUBLISHER. (a)
683-13 A private for-profit publisher of a residential telephone directory
683-14 that is distributed to the public at minimal or no cost shall
683-15 include in the directory a listing of any toll-free and local
683-16 telephone numbers of:
683-17 (1) state agencies;
683-18 (2) state public services; and
683-19 (3) each state elected official who represents all or
683-20 part of the geographical area for which the directory contains
683-21 listings.
683-22 (b) The listing required by this section[:]
683-23 [(1)] must be:
683-24 (1) [(A)] clearly identified; and
683-25 (2) [(B)] located or clearly referenced at the front
683-26 of the directory before the main listing of residential and
76R5 CBH-D 683
684-1 business telephone numbers[; and]
684-2 [(2) is not required to exceed a length equivalent to
684-3 two 8-1/2-inch by 11-inch pages, single-spaced in eight-point
684-4 type].
684-5 (c) The commission by rule may specify:
684-6 (1) the format of the listing; and
684-7 (2) criteria for inclusion of agencies, services, and
684-8 officials.
684-9 (d) The commission's rules must require a publisher to list:
684-10 (1) the telephone number for state government
684-11 information; and
684-12 (2) telephone numbers alphabetically by:
684-13 (A) the subject matter of agency programs; and
684-14 (B) agency name.
684-15 (e) The commission, with the cooperation of other state
684-16 agencies, shall:
684-17 (1) compile relevant information to ensure accuracy of
684-18 information in the listing; and
684-19 (2) provide the information to a telecommunications
684-20 utility or telephone directory publisher within a reasonable time
684-21 after a request by the utility or publisher.
684-22 (f) The General Services Commission shall cooperate with the
684-23 commission and with publishers to ensure that the subject matter
684-24 listing of programs and telephone numbers in the telephone
684-25 directories are consistent with the categorization developed by the
684-26 Records Management Interagency Coordinating Council under Section
76R5 CBH-D 684
685-1 441.053, Government Code.
685-2 (b) Section 2, Chapter 1186, Acts of the 75th Legislature,
685-3 Regular Session, 1997, is repealed.
685-4 SECTION 18.07. (a) Section 55.252(a), Utilities Code, is
685-5 amended to conform to Section 12.21, Chapter 165, Acts of the 75th
685-6 Legislature, Regular Session, 1997, to read as follows:
685-7 (a) This section applies only to a telecommunications
685-8 utility that transports or provides an intrastate 900 service that
685-9 is:
685-10 (1) covered by a contract authorized by Chapter 76 or
685-11 508, Government Code[, or Section 28, Article 42.18, Code of
685-12 Criminal Procedure]; and
685-13 (2) used by a defendant under the supervision of a
685-14 community supervision and corrections department or the pardons and
685-15 paroles division of the Texas Department of Criminal Justice to:
685-16 (A) pay a fee or cost; or
685-17 (B) comply with telephone reporting
685-18 requirements.
685-19 (b) Section 12.21, Chapter 165, Acts of the 75th
685-20 Legislature, Regular Session, 1997, is repealed.
685-21 SECTION 18.08. (a) Section 56.021, Utilities Code, is
685-22 amended to conform to Section 4, Chapter 149, Acts of the 75th
685-23 Legislature, Regular Session, 1997, to read as follows:
685-24 Sec. 56.021. UNIVERSAL SERVICE FUND ESTABLISHED. The
685-25 commission shall adopt and enforce rules requiring local exchange
685-26 companies to establish a universal service fund to:
76R5 CBH-D 685
686-1 (1) assist local exchange companies in providing basic
686-2 local telecommunications service at reasonable rates in high cost
686-3 rural areas;
686-4 (2) reimburse local exchange companies for revenue
686-5 lost by providing tel-assistance service under Subchapter C;
686-6 (3) reimburse the telecommunications carrier that
686-7 provides the statewide telecommunications relay access service
686-8 under Subchapter D; [and]
686-9 (4) finance the specialized telecommunications device
686-10 assistance program established under Subchapter E; and
686-11 (5) reimburse the department, the Texas Commission for
686-12 the Deaf and Hard of Hearing, and the commission for costs incurred
686-13 in implementing this chapter and Chapter 57.
686-14 (b) Section 56.110(a), Utilities Code, is amended to conform
686-15 to Section 3, Chapter 149, Acts of the 75th Legislature, Regular
686-16 Session, 1997, to read as follows:
686-17 (a) An advisory committee to assist the commission in
686-18 administering this subchapter is composed of the following persons
686-19 appointed by the commission:
686-20 (1) one [two] deaf person [persons] recommended by the
686-21 Texas Deaf Caucus;
686-22 (2) one deaf person recommended by the Texas
686-23 Association of the Deaf;
686-24 (3) [(2)] one person with a hearing impairment
686-25 recommended by Self-Help for the Hard of Hearing;
686-26 (4) [(3)] one person with a hearing impairment
76R5 CBH-D 686
687-1 recommended by the American Association of Retired Persons;
687-2 (5) [(4)] one deaf and blind person recommended by the
687-3 Texas Deaf/Blind Association;
687-4 (6) [(5)] one person with a speech impairment and one
687-5 person with a speech and hearing impairment recommended by the
687-6 Coalition of Texans with Disabilities;
687-7 (7) [(6)] two representatives of telecommunications
687-8 utilities, one representing a nonlocal exchange utility and one
687-9 representing a local exchange company, chosen from a list of
687-10 candidates provided by the Texas Telephone Association;
687-11 (8) [(7)] two persons, at least one of whom is deaf,
687-12 with experience in providing relay services recommended by the
687-13 Texas Commission for the Deaf and Hard of Hearing; and
687-14 (9) [(8)] two public members recommended by
687-15 organizations representing consumers of telecommunications
687-16 services.
687-17 (c) Section 56.111, Utilities Code, is amended to conform
687-18 to Section 3, Chapter 149, Acts of the 75th Legislature, Regular
687-19 Session, 1997, to read as follows:
687-20 Sec. 56.111. ADVISORY COMMITTEE DUTIES. The advisory
687-21 committee shall:
687-22 (1) monitor the establishment, administration, and
687-23 promotion of the statewide telecommunications relay access service;
687-24 [and]
687-25 (2) advise the commission in pursuing a service that
687-26 meets the needs of persons with an impairment of hearing or speech
76R5 CBH-D 687
688-1 in communicating with other telecommunications services users; and
688-2 (3) advise the commission and the Texas Commission for
688-3 the Deaf and Hard of Hearing, at the request of either commission,
688-4 regarding any issue related to the specialized telecommunications
688-5 device assistance program established under Subchapter E,
688-6 including:
688-7 (A) devices suitable to meet the needs of the
688-8 hearing-impaired and speech-impaired in communicating with other
688-9 users of telecommunications services; and
688-10 (B) oversight and administration of the program.
688-11 (d) Section 56.112(b), Utilities Code, is amended to
688-12 conform to Section 3, Chapter 149, Acts of the 75th Legislature,
688-13 Regular Session, 1997, to read as follows:
688-14 (b) The [commission's] costs associated with the advisory
688-15 committee shall be reimbursed from the universal service fund.
688-16 (e) Chapter 56, Utilities Code, is amended to conform to
688-17 Section 1, Chapter 149, Acts of the 75th Legislature, Regular
688-18 Session, 1997, by adding Subchapter E to read as follows:
688-19 SUBCHAPTER E. SPECIALIZED TELECOMMUNICATIONS DEVICE
688-20 ASSISTANCE PROGRAM
688-21 Sec. 56.151. SPECIALIZED TELECOMMUNICATIONS DEVICE
688-22 ASSISTANCE PROGRAM. The commission and the Texas Commission for
688-23 the Deaf and Hard of Hearing by rule shall establish a program to
688-24 provide financial assistance to certain individuals who are deaf or
688-25 have an impairment of hearing or speech to enable the individuals
688-26 to purchase specialized equipment to provide telephone network
76R5 CBH-D 688
689-1 access that is functionally equivalent to that enjoyed by
689-2 individuals without an impairment of hearing or speech.
689-3 Sec. 56.152. ELIGIBILITY. The Texas Commission for the Deaf
689-4 and Hard of Hearing by rule shall prescribe eligibility standards
689-5 for deaf individuals and individuals who have an impairment of
689-6 hearing or speech to receive an assistance voucher under the
689-7 program. To be eligible, an individual must be a resident of this
689-8 state who has access to a telephone line in the individual's home
689-9 or place of business.
689-10 Sec. 56.153. VOUCHERS. (a) The Texas Commission for the
689-11 Deaf and Hard of Hearing shall determine a reasonable price for a
689-12 basic telecommunications device for the deaf (TDD or TTY) and
689-13 distribute to each eligible applicant a voucher that guarantees
689-14 payment of that amount to a distributor of new specialized
689-15 telecommunications devices.
689-16 (b) A voucher must have the value printed on its face. The
689-17 individual exchanging a voucher for the purchase of a specialized
689-18 telecommunications device is responsible for payment of the
689-19 difference between the voucher's value and the price of the device.
689-20 (c) The commission and the Texas Commission for the Deaf and
689-21 Hard of Hearing by rule shall provide that a distributor will
689-22 receive not more than the full price of a specialized
689-23 telecommunications device if the recipient of a voucher exchanges
689-24 the voucher for a device that the distributor sells for less than
689-25 the voucher's value.
689-26 (d) An individual who has exchanged a voucher for a
76R5 CBH-D 689
690-1 specialized telecommunications device is not eligible to receive
690-2 another voucher before the seventh anniversary of the date the
690-3 individual exchanged the previously issued voucher. An individual
690-4 is not eligible for a voucher if the Texas Commission for the Deaf
690-5 and Hard of Hearing has issued a voucher to another individual in
690-6 the individual's household for a device to serve the same telephone
690-7 line.
690-8 (e) The Texas Commission for the Deaf and Hard of Hearing
690-9 shall:
690-10 (1) process each application for a voucher to
690-11 determine eligibility of the applicant; and
690-12 (2) give each eligible applicant a voucher on payment
690-13 of a $35 fee.
690-14 (f) The Texas Commission for the Deaf and Hard of Hearing
690-15 shall maintain a record regarding each individual who receives a
690-16 voucher under the program.
690-17 (g) The Texas Commission for the Deaf and Hard of Hearing
690-18 shall deposit money collected under the program to the credit of
690-19 the universal service fund.
690-20 Sec. 56.154. COMMISSION DUTIES. (a) Not later than the
690-21 45th day after the date the commission receives a voucher a
690-22 telecommunications device distributor presents for payment, the
690-23 commission shall pay to the distributor the lesser of the value of
690-24 a voucher properly exchanged for a specialized telecommunications
690-25 device or the full price of the device for which a voucher
690-26 recipient exchanges the voucher. The payments must be made from
76R5 CBH-D 690
691-1 the universal service fund.
691-2 (b) The commission may investigate whether the presentation
691-3 of a voucher for payment represents a valid transaction for a
691-4 telecommunications device under the program. The Texas Commission
691-5 for the Deaf and Hard of Hearing shall cooperate with and assist
691-6 the commission in an investigation under this subsection.
691-7 Sec. 56.155. RECOVERY OF SPECIALIZED TELECOMMUNICATIONS
691-8 DEVICE ASSISTANCE PROGRAM SURCHARGE. (a) The commission shall
691-9 allow a telecommunications utility to recover the universal service
691-10 fund assessment related to the specialized telecommunications
691-11 device assistance program through a surcharge added to the
691-12 utility's customers' bills.
691-13 (b) The commission shall specify how each utility must
691-14 determine the amount of the surcharge and by rule shall prohibit a
691-15 utility from recovering an aggregation of more than 12 months of
691-16 assessments in a single surcharge. The rules must require a
691-17 utility to apply for approval of a surcharge before the 91st day
691-18 after the date the period during which the aggregated surcharges
691-19 were assessed closes.
691-20 (c) If a utility chooses to impose the surcharge, the
691-21 utility shall include the surcharge in the "universal service fund
691-22 surcharge" listing as provided by Section 56.107.
691-23 (f) Sections 1-4, Chapter 149, Acts of the 75th Legislature,
691-24 Regular Session, 1997, are repealed.
691-25 SECTION 18.09. (a) Section 57.042, Utilities Code, is
691-26 amended to conform to Section 1, Chapter 145, Acts of the 75th
76R5 CBH-D 691
692-1 Legislature, Regular Session, 1997, by amending Subdivision (8) and
692-2 adding Subdivisions (9) and (10) to read as follows:
692-3 (8) "Public school" means a public elementary or
692-4 secondary school, including an open-enrollment charter school, a
692-5 home-rule school district school, and a school with a campus or
692-6 campus program charter.
692-7 (9) "Taxable telecommunications receipts" means
692-8 taxable telecommunications receipts reported under Chapter 151, Tax
692-9 Code.
692-10 (10) "Telemedicine":
692-11 (A) means medical services delivered by
692-12 telecommunications technologies to rural or underserved public
692-13 not-for-profit health care facilities or primary health care
692-14 facilities in collaboration with an academic health center and an
692-15 associated teaching hospital or tertiary center; and
692-16 (B) includes consultive services, diagnostic
692-17 services, interactive video consultation, teleradiology,
692-18 telepathology, and distance education for working health care
692-19 professionals.
692-20 (b) Section 57.043, Utilities Code, is amended to conform to
692-21 Section 2, Chapter 145, Acts of the 75th Legislature, Regular
692-22 Session, 1997, to read as follows:
692-23 Sec. 57.043. TELECOMMUNICATIONS INFRASTRUCTURE FUND AND
692-24 ACCOUNTS. (a) The telecommunications infrastructure fund is
692-25 composed of the public schools [telecommunications utilities]
692-26 account and the qualifying entities [commercial mobile service
76R5 CBH-D 692
693-1 providers] account.
693-2 (b) The public schools account and qualifying entities
693-3 account are [The telecommunications utilities account is] financed
693-4 by an annual assessment imposed as prescribed by Section 57.048 on
693-5 each telecommunications utility and commercial mobile service
693-6 provider doing business in this state. [A telecommunications
693-7 utility shall pay the annual assessment according to the ratio that
693-8 the annual taxable telecommunications receipts reported by that
693-9 telecommunications utility under Chapter 151, Tax Code, bears to
693-10 the total annual taxable telecommunications receipts reported by
693-11 all telecommunications utilities under that chapter.]
693-12 (c) [The commercial mobile service providers account is
693-13 financed by an annual assessment on each commercial mobile service
693-14 provider doing business in this state. Each commercial mobile
693-15 service provider shall pay the annual assessment according to the
693-16 ratio that the annual taxable telecommunications receipts reported
693-17 by that provider under Chapter 151, Tax Code, bears to the total
693-18 annual taxable telecommunications receipts reported by all
693-19 commercial mobile service providers under that chapter.]
693-20 [(d)] Money in the fund may be appropriated only for a use
693-21 consistent with the purposes of this subchapter.
693-22 (c) Section 57.045(d), Utilities Code, is amended to conform
693-23 to Section 2, Chapter 145, Acts of the 75th Legislature, Regular
693-24 Session, 1997, to read as follows:
693-25 (d) The board may:
693-26 (1) enter into contracts with state agencies or
76R5 CBH-D 693
694-1 private entities necessary to perform the board's duties;
694-2 (2) adopt rules as necessary to administer this
694-3 subchapter;
694-4 (3) employ personnel reasonably necessary to perform
694-5 duties delegated by the board;
694-6 (4) [(3)] appoint one or more committees to assist the
694-7 board in performing the board's duties; and
694-8 (5) [(4)] accept a gift or grant and use it for the
694-9 purposes of this subchapter.
694-10 (d) Subchapter C, Chapter 57, Utilities Code, is amended to
694-11 conform to Section 2, Chapter 145, Acts of the 75th Legislature,
694-12 Regular Session, 1997, by adding Section 57.0455 to read as
694-13 follows:
694-14 Sec. 57.0455. MASTER PLAN FOR INFRASTRUCTURE DEVELOPMENT.
694-15 (a) The board shall adopt a master plan for infrastructure
694-16 development. The plan must:
694-17 (1) cover a five-year period;
694-18 (2) be updated annually; and
694-19 (3) describe the project, timeline, and resource
694-20 allocation targets for each year included in the plan.
694-21 (b) The board shall publish each proposed amendment to the
694-22 plan and each proposed annual update in the Texas Register in
694-23 accordance with Subchapter B, Chapter 2002, Government Code.
694-24 (e) Section 57.046, Utilities Code, is amended to conform to
694-25 Section 2, Chapter 145, Acts of the 75th Legislature, Regular
694-26 Session, 1997, to read as follows:
76R5 CBH-D 694
695-1 Sec. 57.046. USE OF ACCOUNTS. (a) The board shall use
695-2 money in the public schools [telecommunications utilities] account
695-3 to award grants and loans in accordance with this subchapter to
695-4 fund:
695-5 (1) [purchases of] equipment for public schools,
695-6 including computers, printers, computer labs, and video equipment;
695-7 and
695-8 (2) intracampus and intercampus wiring to enable those
695-9 public schools to use the equipment.
695-10 (b) The board shall use money in the qualifying entities
695-11 [commercial mobile service providers] account for any purpose
695-12 authorized by this subchapter, including:
695-13 (1) equipment [purchases];
695-14 (2) wiring;
695-15 (3) material;
695-16 (4) program development;
695-17 (5) training;
695-18 (6) installation costs; and
695-19 (7) a statewide telecommunications network.
695-20 (f) Section 57.047, Utilities Code, is amended to conform to
695-21 Section 2, Chapter 145, Acts of the 75th Legislature, Regular
695-22 Session, 1997, by amending Subsection (e) and adding Subsection (f)
695-23 to read as follows:
695-24 (e) If a board member is an employee of an entity that
695-25 applies for a grant or loan under this subchapter, the board
695-26 member, before a vote on the grant or loan, shall disclose the fact
76R5 CBH-D 695
696-1 of the member's employment. The disclosure must be entered into
696-2 the minutes of the meeting. The board member may not vote on or
696-3 otherwise participate in the awarding of the grant or loan. If the
696-4 board member does not comply with this subsection, the entity is
696-5 not eligible for the grant or loan.
696-6 (f) A grant or loan awarded under this section is subject to
696-7 the limitations prescribed by Section 57.046.
696-8 (g) Subchapter C, Chapter 57, Utilities Code, is amended to
696-9 conform to Section 2, Chapter 145, Acts of the 75th Legislature,
696-10 Regular Session, 1997, by amending Section 57.048 and adding
696-11 Section 57.0485 to read as follows:
696-12 Sec. 57.048. ASSESSMENTS AND COLLECTIONS. (a) An annual
696-13 assessment is imposed on each telecommunications utility and each
696-14 commercial mobile service provider doing business in this state.
696-15 (b) The assessment is imposed at the rate of 1.25 percent of
696-16 the taxable telecommunications receipts of the telecommunications
696-17 utility or commercial mobile service provider, subject to this
696-18 section.
696-19 (c) The total amount deposited to the credit of the fund,
696-20 excluding interest and loan repayments, may not exceed $1.5
696-21 billion. Not later than August 31 of each year, the comptroller
696-22 shall determine the total amount, excluding interest and loan
696-23 repayments, that has been deposited to the credit of the fund
696-24 during that fiscal year and the preceding fiscal years. If the
696-25 comptroller determines that a total of $1.2 billion or more,
696-26 excluding interest and loan repayments, has been deposited to the
76R5 CBH-D 696
697-1 credit of the fund, the comptroller shall impose the assessment
697-2 during the next fiscal year at a rate that the comptroller
697-3 estimates is sufficient to produce the amount necessary to result
697-4 in the deposit in the fund of a total of not more than $1.5
697-5 billion, excluding interest and loan repayments.
697-6 (d) The comptroller may not collect the assessment during a
697-7 fiscal year if the comptroller determines after the yearly review
697-8 that the total amount deposited to the credit of the fund during
697-9 that fiscal year and the preceding fiscal years is $1.49 billion or
697-10 more, excluding interest and loan repayments, and it is not
697-11 possible to impose the assessment during the next fiscal year at a
697-12 practical rate without collecting more than a total of $1.5
697-13 billion, excluding interest and loan repayments.
697-14 (e) [For each fiscal year beginning before September 1,
697-15 2005, the comptroller shall assess and collect an annual total of
697-16 $75 million from telecommunications utilities and an annual total
697-17 of $75 million from commercial mobile service providers.]
697-18 [(b) The comptroller shall assess and collect the money
697-19 each year without respect to whether the money previously collected
697-20 and deposited in either account has been disbursed or spent.]
697-21 [(c)] The comptroller may require a telecommunications
697-22 utility or commercial mobile service provider to provide any report
697-23 or information necessary to fulfill the comptroller's duties under
697-24 this section. Information provided to the comptroller under this
697-25 section is confidential and exempt from disclosure under Chapter
697-26 552, Government Code.
76R5 CBH-D 697
698-1 Sec. 57.0485. ACCOUNTS. (a) The comptroller shall deposit
698-2 50 percent of the money [(d) Money] collected by the comptroller
698-3 [from a telecommunications utility] under Section 57.048 [this
698-4 section shall be deposited] to the credit of the public schools
698-5 [telecommunications utilities] account in the fund. The
698-6 comptroller shall deposit the remainder of the money collected by
698-7 the comptroller under Section 57.048 to the credit of the
698-8 qualifying entities account in the fund.
698-9 (b) Interest earned on money in an account shall be
698-10 deposited to the credit of that account.
698-11 [(e) Money collected by the comptroller from a commercial
698-12 mobile service provider under this section shall be deposited to
698-13 the credit of the commercial mobile service providers account in
698-14 the fund.]
698-15 (h) Sections 1 and 2, Chapter 145, Acts of the 75th
698-16 Legislature, Regular Session, 1997, are repealed.
698-17 SECTION 18.10. (a) Section 57.051, Utilities Code, is
698-18 amended to conform to Section 3.02, Chapter 1169, Acts of the 75th
698-19 Legislature, Regular Session, 1997, to read as follows:
698-20 Sec. 57.051. SUNSET PROVISION. The Telecommunications
698-21 Infrastructure Fund Board [board] is subject to Chapter 325,
698-22 Government Code (Texas Sunset Act). Unless continued in existence
698-23 as provided by that chapter, the board is abolished and this
698-24 subchapter expires September 1, 2005 [2006].
698-25 (b) Section 3.02, Chapter 1169, Acts of the 75th
698-26 Legislature, Regular Session, 1997, is repealed.
76R5 CBH-D 698
699-1 SECTION 18.11. Section 58.024(c), Utilities Code, is amended
699-2 to correct a cross-reference to read as follows:
699-3 (c) The commission may not reclassify a service until each
699-4 competitive safeguard prescribed by Subchapters B-H [B-G], Chapter
699-5 60, is fully implemented.
699-6 SECTION 18.12. (a) Sections 121.201(a) and (b), Utilities
699-7 Code, are amended to conform to Section 1, Chapter 950, Acts of the
699-8 75th Legislature, Regular Session, 1997, to read as follows:
699-9 (a) The railroad commission by rule may:
699-10 (1) adopt safety standards for the transportation of
699-11 gas and for gas pipeline facilities;
699-12 (2) require record maintenance and reports;
699-13 (3) inspect records and facilities to determine
699-14 compliance with adopted safety standards; [and]
699-15 (4) make certifications and reports;
699-16 (5) seek designation by the United States secretary of
699-17 transportation as an agent to conduct safety inspections of
699-18 interstate gas pipeline facilities located in this state; and
699-19 (6) take any other requisite action in accordance with
699-20 49 U.S.C. Section 60101 et seq. [Chapter 601, Title 49, United
699-21 States Code (49 U.S.C. Section 60101 et seq.)], or a succeeding
699-22 law.
699-23 (b) The power granted by Subsection (a) does not apply to
699-24 the transportation of gas or to gas facilities subject to the
699-25 exclusive control of the United States but applies to the
699-26 transportation of gas and gas pipeline facilities in this state to
76R5 CBH-D 699
700-1 the maximum degree permissible under 49 U.S.C. Section 60101 et
700-2 seq. [Chapter 601, Title 49, United States Code (49 U.S.C. Section
700-3 60101 et seq.)], or a succeeding law.
700-4 (b) Subchapter E, Chapter 121, Utilities Code, is amended to
700-5 conform to Section 2, Chapter 950, Acts of the 75th Legislature,
700-6 Regular Session, 1997, by adding Section 121.2015 to read as
700-7 follows:
700-8 Sec. 121.2015. REQUIRED SAFETY RULES. The railroad
700-9 commission shall adopt rules regarding:
700-10 (1) public education and awareness relating to gas
700-11 pipeline facilities; and
700-12 (2) community liaison for responding to an emergency
700-13 relating to a gas pipeline facility.
700-14 (c) Sections 1 and 2, Chapter 950, Acts of the 75th
700-15 Legislature, Regular Session, 1997, are repealed.
700-16 SECTION 18.13. (a) Chapter 121, Utilities Code, is amended
700-17 to codify Article 6053-4, Revised Statutes, by adding Subchapter I
700-18 to read as follows:
700-19 SUBCHAPTER I. SOUR GAS PIPELINE FACILITIES
700-20 Sec. 121.451. DEFINITIONS. In this subchapter:
700-21 (1) "Affected party" means the owner or occupant of
700-22 real property located in the radius of exposure, as computed in
700-23 accordance with a methodology approved by the railroad commission,
700-24 of the proposed route of a sour gas pipeline facility.
700-25 (2) "Construction" includes any activity conducted
700-26 during the initial construction of a pipeline, including the
76R5 CBH-D 700
701-1 removal of earth, vegetation, or obstructions along the proposed
701-2 pipeline right-of-way. The term does not include:
701-3 (A) surveying or acquiring the right-of-way; or
701-4 (B) clearing the right-of-way with the consent
701-5 of the owner.
701-6 (3) "Low-pressure gathering system" means a pipeline
701-7 that operates at a working pressure of less than 50 pounds per
701-8 square inch.
701-9 (4) "Sour gas pipeline facility" means a pipeline
701-10 facility that contains a concentration of 100 parts per million or
701-11 more of hydrogen sulfide.
701-12 Sec. 121.452. APPLICABILITY. This subchapter does not apply
701-13 to:
701-14 (1) an extension of an existing sour gas pipeline
701-15 facility that is in compliance with the railroad commission's rules
701-16 for oil, gas, or geothermal resource operation in a hydrogen
701-17 sulfide area if:
701-18 (A) the extension is not longer than five miles;
701-19 (B) the nominal pipe size is not larger than six
701-20 inches in diameter; and
701-21 (C) the railroad commission is given notice of
701-22 the construction of the extension not later than 24 hours before
701-23 the start of construction;
701-24 (2) a new or an extension of a low-pressure gathering
701-25 system; or
701-26 (3) an interstate gas pipeline facility, as defined by
76R5 CBH-D 701
702-1 49 U.S.C. Section 60101, that is used for the transportation of
702-2 sour gas.
702-3 Sec. 121.453. PERMIT APPLICATION. (a) A person may not
702-4 begin construction of a sour gas pipeline facility before the
702-5 person obtains from the railroad commission a permit to construct
702-6 the facility.
702-7 (b) An applicant for a permit to construct a sour gas
702-8 pipeline facility must:
702-9 (1) publish notice of the application in a form
702-10 determined by the railroad commission in a newspaper of general
702-11 circulation in each county that contains part of the proposed
702-12 route of the sour gas pipeline facility; and
702-13 (2) provide a copy of the application to the county
702-14 clerk of each county that contains part of the proposed route.
702-15 Sec. 121.454. RAILROAD COMMISSION APPROVAL OR DENIAL. (a)
702-16 The railroad commission by order may approve an application for a
702-17 permit to construct a sour gas pipeline facility if the railroad
702-18 commission finds that the materials to be used in and method of
702-19 construction and operation of the facility comply with the rules
702-20 and safety standards adopted by the railroad commission.
702-21 (b) The railroad commission may issue an order under this
702-22 section without holding a hearing unless an affected party files a
702-23 written protest with the railroad commission not later than the
702-24 30th day after the date notice is published under Section 121.453.
702-25 If an affected party files a written protest, the railroad
702-26 commission shall:
76R5 CBH-D 702
703-1 (1) hold a hearing not later than the 60th day after
703-2 the date the protest is filed; and
703-3 (2) issue an order:
703-4 (A) approving the permit application; or
703-5 (B) denying the application and stating the
703-6 reasons for the denial.
703-7 (b) Section 121.206(a), Utilities Code, is amended to
703-8 conform to Section 2, Chapter 675, Acts of the 75th Legislature,
703-9 Regular Session, 1997, to read as follows:
703-10 (a) The railroad commission may assess an administrative
703-11 penalty against a person who violates Section 121.201 or Subchapter
703-12 I or a safety standard or rule relating to the transportation of
703-13 gas and gas pipeline facilities adopted under those provisions
703-14 [that section].
703-15 (c) Article 6053-4, Revised Statutes, and Section 2, Chapter
703-16 675, Acts of the 75th Legislature, Regular Session, 1997, are
703-17 repealed.
703-18 SECTION 18.14. (a) Chapter 121, Utilities Code, is amended
703-19 to codify Article 6053-2a, Revised Statutes, by adding Subchapter J
703-20 to read as follows:
703-21 SUBCHAPTER J. TESTING OF NATURAL GAS PIPING SYSTEMS IN
703-22 SCHOOL DISTRICT FACILITIES
703-23 Sec. 121.501. DEFINITION. In this subchapter, "supplier"
703-24 means an individual or company that sells and delivers natural gas
703-25 to a school district facility. If more than one individual or
703-26 company sells and delivers natural gas to a facility of a school
76R5 CBH-D 703
704-1 district, each individual or company is a supplier for purposes of
704-2 this subchapter.
704-3 Sec. 121.502. DUTY TO PRESSURE TEST. (a) Each school
704-4 district shall perform biennial pressure tests on the natural gas
704-5 piping system in each school district facility. The school
704-6 district shall perform the tests before the beginning of the school
704-7 year.
704-8 (b) The school district may perform the tests on a two-year
704-9 cycle under which the district pressure tests the natural gas
704-10 piping system in approximately one-half of the facilities each
704-11 year.
704-12 (c) If a school district operates one or more school
704-13 district facilities on a year-round calendar, the pressure test in
704-14 each of those facilities must be conducted and reported not later
704-15 than July 1 of the year in which the pressure test is performed.
704-16 (d) A test performed under a municipal code satisfies the
704-17 pressure testing requirements prescribed by this section.
704-18 Sec. 121.503. REQUIREMENTS OF TEST. (a) The school
704-19 district shall perform the pressure test to determine whether the
704-20 natural gas piping downstream of the school district's meter holds
704-21 at least normal operating pressure over a specified period
704-22 determined by the railroad commission.
704-23 (b) During the pressure test, each system supply inlet and
704-24 outlet in the facility must be closed.
704-25 (c) At the request of a school district, the railroad
704-26 commission shall assist the district in developing a procedure for
76R5 CBH-D 704
705-1 conducting the test.
705-2 Sec. 121.504. NOTICE OF TEST. (a) A school district shall
705-3 provide written notice to the district's natural gas supplier
705-4 specifying the date and result of each pressure test or other
705-5 inspection.
705-6 (b) The supplier shall maintain a copy of the notice until
705-7 at least the first anniversary of the date on which the supplier
705-8 received the notice.
705-9 Sec. 121.505. TERMINATION OF SERVICE. A supplier shall
705-10 terminate service to a school district facility if:
705-11 (1) the supplier receives official notification from
705-12 the firm or individual conducting the test of a hazardous natural
705-13 gas leakage in the facility piping system; or
705-14 (2) the district fails to perform a test or other
705-15 inspection at the facility as required by this subchapter.
705-16 Sec. 121.506. REPORT TO BOARD OF TRUSTEES. An identified
705-17 natural gas leakage in a school district facility must be reported
705-18 to the board of trustees of the district in which the facility is
705-19 located.
705-20 Sec. 121.507. ENFORCEMENT. The railroad commission shall
705-21 enforce this subchapter.
705-22 (b) Article 6053-2a, Revised Statutes, is repealed.
705-23 SECTION 18.15. (a) Section 161.121, Utilities Code, is
705-24 amended to conform to Section 4, Chapter 904, Acts of the 75th
705-25 Legislature, Regular Session, 1997, to read as follows:
705-26 Sec. 161.121. GENERAL POWERS. An electric cooperative may:
76R5 CBH-D 705
706-1 (1) sue and be sued in its corporate name;
706-2 (2) adopt and alter a corporate seal and use the seal
706-3 or a facsimile of the seal as required by law;
706-4 (3) acquire, own, hold, maintain, exchange, or use
706-5 property or an interest in property, including plants, buildings,
706-6 works, machinery, supplies, equipment, apparatus, and transmission
706-7 and distribution lines or systems that are necessary, convenient,
706-8 or useful;
706-9 (4) dispose of, mortgage, or lease as lessor any of
706-10 its property or assets;
706-11 (5) borrow money and otherwise contract indebtedness,
706-12 issue obligations for its indebtedness, and secure the payment of
706-13 indebtedness by mortgage, pledge, or deed of trust on any or all of
706-14 its property or revenue;
706-15 (6) accept gifts or grants of money, services, or
706-16 property;
706-17 (7) make any contracts necessary or convenient for the
706-18 exercise of the powers granted by this chapter;
706-19 (8) conduct its business and have offices inside or
706-20 outside this state;
706-21 (9) adopt and amend bylaws not inconsistent with the
706-22 articles of incorporation for the administration and regulation of
706-23 the affairs of the cooperative; and
706-24 (10) perform any other acts for the cooperative or its
706-25 members or for another electric cooperative or its members, and
706-26 exercise any other power, that may be necessary, convenient, or
76R5 CBH-D 706
707-1 appropriate to accomplish the purpose for which the cooperative is
707-2 organized, including other or additional purposes that benefit
707-3 members and nonmembers, either directly or through affiliates,
707-4 described in Section A, Article 2.01, Texas Non-Profit Corporation
707-5 Act (Article 1396-2.01, Vernon's Texas Civil Statutes).
707-6 (b) Section 4, Chapter 904, Acts of the 75th Legislature,
707-7 Regular Session, 1997, is repealed.
707-8 SECTION 18.16. (a) Subchapter B, Chapter 184, Utilities
707-9 Code, is amended to conform to Sections 1 and 2, Chapter 943, Acts
707-10 of the 75th Legislature, Regular Session, 1997, by adding Section
707-11 184.0125 to read as follows:
707-12 Sec. 184.0125. HOUSING FOR OLDER PERSONS. (a) Section
707-13 184.012 does not prohibit a political subdivision from issuing a
707-14 permit for the construction of housing for older persons with 100
707-15 or more dwelling units.
707-16 (b) Before issuing a permit, certificate, or other
707-17 authorization for the construction of housing for older persons, a
707-18 political subdivision shall require that the construction plan
707-19 provide for the requirements prescribed by this section.
707-20 (c) To qualify for the exemption provided by this section,
707-21 the housing, at a minimum, must have:
707-22 (1) significant facilities and services specifically
707-23 designed to meet the physical or social needs of older persons or,
707-24 if the provision of those facilities and services is not
707-25 practicable, the housing must be necessary to provide important
707-26 housing opportunities for older persons;
76R5 CBH-D 707
708-1 (2) at least 80 percent of the dwelling units set
708-2 aside for occupancy by at least one person 55 years of age or older
708-3 in each dwelling unit; and
708-4 (3) policies and procedures that demonstrate an
708-5 intent by the owner or manager to provide housing for persons 55
708-6 years of age or older.
708-7 (d) The owner or manager must adhere to the policies and
708-8 procedures required by Subsection (c)(3).
708-9 (e) In this section, "housing for older persons" means
708-10 housing:
708-11 (1) intended for and solely occupied by persons 62
708-12 years of age or older; or
708-13 (2) intended and operated for occupancy by at least
708-14 one person 55 years of age or older in each dwelling unit.
708-15 (b) Sections 1 and 2, Chapter 943, Acts of the 75th
708-16 Legislature, Regular Session, 1997, are repealed.
708-17 SECTION 18.17. (a) The Utilities Code is amended to codify
708-18 Chapter 1407, Acts of the 75th Legislature, Regular Session, 1997
708-19 (Article 9033, Vernon's Texas Civil Statutes), by adding Title 5 to
708-20 read as follows:
708-21 TITLE 5. PROVISIONS AFFECTING THE OPERATION OF
708-22 UTILITY FACILITIES
708-23 CHAPTER 251. UNDERGROUND FACILITY DAMAGE
708-24 PREVENTION AND SAFETY
708-25 SUBCHAPTER A. GENERAL PROVISIONS
708-26 Sec. 251.001. SHORT TITLE. This chapter may be cited as the
76R5 CBH-D 708
709-1 Underground Facility Damage Prevention and Safety Act.
709-2 Sec. 251.002. DEFINITIONS. In this chapter:
709-3 (1) "Class A underground facility" means an
709-4 underground facility that is used to produce, store, convey,
709-5 transmit, or distribute:
709-6 (A) electrical energy;
709-7 (B) natural or synthetic gas;
709-8 (C) petroleum or petroleum products;
709-9 (D) steam;
709-10 (E) any form of telecommunications service,
709-11 including voice, data, video, or optical transmission, or cable
709-12 television service; or
709-13 (F) any other liquid, material, or product not
709-14 defined as a Class B underground facility.
709-15 (2) "Class B underground facility" means an
709-16 underground facility that is used to produce, store, convey,
709-17 transmit, or distribute:
709-18 (A) water;
709-19 (B) slurry; or
709-20 (C) sewage.
709-21 (3) "Corporation" means the Texas Underground Facility
709-22 Notification Corporation.
709-23 (4) "Damage" means:
709-24 (A) the defacing, scraping, displacement,
709-25 penetration, destruction, or partial or complete severance of an
709-26 underground facility or of any protective coating, housing, or
76R5 CBH-D 709
710-1 other protective device of an underground facility;
710-2 (B) the weakening of structural or lateral
710-3 support of an underground facility; or
710-4 (C) the failure to properly replace the backfill
710-5 covering an underground facility.
710-6 (5) "Excavate" means to use explosives or a motor,
710-7 engine, hydraulic or pneumatically powered tool, or other
710-8 mechanized equipment of any kind and includes auguring,
710-9 backfilling, boring, compressing, digging, ditching, drilling,
710-10 dragging, dredging, grading, mechanical probing, plowing-in,
710-11 pulling-in, ripping, scraping, trenching, and tunneling to remove
710-12 or otherwise disturb soil to a depth of 16 or more inches.
710-13 (6) "Excavator" means a person that excavates or
710-14 intends to excavate in this state.
710-15 (7) "Exploration and production underground facility"
710-16 means an underground facility used by a person producing gas or
710-17 oil, or both, for the production of that gas or oil, including
710-18 facilities used for field separation, treatment, gathering, or
710-19 storage of gas or oil.
710-20 (8) "High speed data transmission" means a method of
710-21 data transmission that does not include facsimile or voice
710-22 transmission.
710-23 (9) "Legal holiday" means a holiday specified as a
710-24 legal holiday by Subchapter B, Chapter 662, Government Code.
710-25 (10) "Mechanized equipment" means equipment operated
710-26 by mechanical power, including a trencher, bulldozer, power shovel,
76R5 CBH-D 710
711-1 auger, backhoe, scraper, drill, cable or pipe plow, and other
711-2 equipment used to plow in or pull in cable or pipe.
711-3 (11) "Operator" means a person that operates an
711-4 underground facility.
711-5 (12) "Secured facility" means a parcel of land used
711-6 for commercial or industrial purposes that is surrounded entirely
711-7 by a fence or other means of preventing access, including a fence
711-8 with one or more gates that are locked at all times or monitored by
711-9 an individual who can prevent unauthorized access.
711-10 (13) "Underground facility" means a line, cable,
711-11 pipeline system, conduit, or structure that is located partially or
711-12 totally underground and that is used to produce, store, convey,
711-13 transmit, or distribute telecommunications, electricity, gas,
711-14 water, sewage, steam, or liquids such as petroleum, petroleum
711-15 products, or hazardous liquids.
711-16 (14) "Saturday notification" means a notice of intent
711-17 to excavate provided by an excavator to a notification center on a
711-18 Saturday before 11:59 a.m.
711-19 (15) "Violation" means a violation of Section 251.151,
711-20 251.152, or 251.159.
711-21 Sec. 251.003. EXEMPTIONS. The following are not subject to
711-22 this chapter as underground facilities:
711-23 (1) an aboveground or underground storage tank, sump,
711-24 or impoundment or piping connected to an aboveground or underground
711-25 storage tank, sump, or impoundment located in the same tract of
711-26 land as the storage tank, sump, or impoundment;
76R5 CBH-D 711
712-1 (2) an underground facility operated by the owner of a
712-2 secured facility and located entirely within the secured facility;
712-3 (3) an underground facility that serves only the owner
712-4 of the underground facility or the owner's tenant and that is
712-5 located solely on the owner's property;
712-6 (4) piping within a well bore;
712-7 (5) the portion of an exploration and production
712-8 underground facility that is located within the boundaries of the
712-9 oil or gas field from which the oil and gas is produced and that is
712-10 not located in the boundaries of an established easement or
712-11 right-of-way granted for the benefit of a governmental entity or a
712-12 private entity if the easement or right-of-way is granted for a
712-13 public purpose; or
712-14 (6) an underground facility that serves a cemetery and
712-15 is located solely on the cemetery's property.
712-16 Sec. 251.004. APPLICATION TO CERTAIN CONTRACTORS AND STATE
712-17 EMPLOYEES. (a) This chapter does not apply to a contractor
712-18 working in the public right-of-way under a contract with the Texas
712-19 Department of Transportation.
712-20 (b) Excavation by an employee of the Texas Department of
712-21 Transportation on a segment of the state highway system is not
712-22 subject to this chapter if the excavation is:
712-23 (1) less than 24 inches in depth; and
712-24 (2) no more than 10 feet from the right-of-way line.
712-25 Sec. 251.005. CONVERSION OF FACILITY OR OPERATOR. (a) An
712-26 operator of an underground facility that is exempted under this
76R5 CBH-D 712
713-1 subchapter may voluntarily convert that facility to a Class A
713-2 underground facility by sending written communication from a
713-3 competent authority of the operator to the corporation advising of
713-4 the status change.
713-5 (b) An operator of a Class B underground facility may
713-6 voluntarily convert to a Class A underground facility operator by
713-7 sending written communication from a competent authority of the
713-8 operator to the corporation advising of the status change.
713-9 Sec. 251.006. COMPLIANCE BY PERMIT HOLDERS. (a) The fact
713-10 that a person has a legal permit, permission from the owner of the
713-11 property or the owner's licensee, or an easement to conduct
713-12 excavation operations does not affect the person's duty to comply
713-13 with this chapter.
713-14 (b) Compliance with this chapter does not affect a person's
713-15 responsibility to obtain a permit required by law.
713-16 Sec. 251.007. FACILITY ON COUNTY OR MUNICIPAL ROAD. This
713-17 chapter does not affect a contractual or statutory right of a
713-18 county or municipality to require an operator to relocate, replace,
713-19 or repair its underground facility.
713-20 Sec. 251.008. EFFECT ON CIVIL REMEDIES. Except as otherwise
713-21 specifically provided by this chapter, this chapter, including
713-22 Section 251.201, does not affect any civil remedy for personal
713-23 injury or for property damage, including any damage to an
713-24 underground facility.
713-25 Sec. 251.009. PROVISION OF GENERAL INFORMATION. At least
713-26 once each calendar year, at intervals not exceeding 15 months, each
76R5 CBH-D 713
714-1 Class A underground facility operator who conveys, transmits, or
714-2 distributes by means of its underground facilities service directly
714-3 to more than one million residential customers within this state
714-4 shall provide all of its residential customers in this state
714-5 general information about excavation activities covered by this
714-6 chapter and the statewide toll-free telephone number established by
714-7 the corporation.
714-8 (Sections 251.010-251.050 reserved for expansion
714-9 SUBCHAPTER B. TEXAS UNDERGROUND FACILITY NOTIFICATION
714-10 CORPORATION
714-11 Sec. 251.051. PURPOSE. The Texas Underground Facility
714-12 Notification Corporation provides statewide notification services
714-13 under this chapter.
714-14 Sec. 251.052. NONPROFIT CORPORATION. The corporation is a
714-15 public nonprofit corporation and has all the powers and duties
714-16 incident to a nonprofit corporation under the Texas Non-Profit
714-17 Corporation Act (Article 1396-1.01 et seq., Vernon's Texas Civil
714-18 Statutes), except that the corporation:
714-19 (1) may not make donations for the public welfare or
714-20 for charitable, scientific, or educational purposes or in aid of
714-21 war activities;
714-22 (2) may not merge or consolidate with another
714-23 corporation;
714-24 (3) is not subject to voluntary or involuntary
714-25 dissolution; and
714-26 (4) may not be placed in receivership.
76R5 CBH-D 714
715-1 Sec. 251.053. APPLICATION OF OPEN MEETINGS AND OPEN RECORDS
715-2 LAWS. The corporation is subject to Chapters 551 and 552,
715-3 Government Code, except that the corporation may not disseminate,
715-4 make available, or otherwise distribute service area map data or
715-5 information provided by an operator unless that action is necessary
715-6 to perform the corporation's specific obligations under this
715-7 chapter.
715-8 Sec. 251.054. EXPENSES AND LIABILITIES OF CORPORATION. (a)
715-9 All expenses of the corporation shall be paid from income of the
715-10 corporation.
715-11 (b) A liability created by the corporation is not a debt of
715-12 this state, and the corporation may not secure a liability with
715-13 funds or assets of this state.
715-14 Sec. 251.055. BOARD OF DIRECTORS. (a) The board of
715-15 directors of the corporation is composed of the following 12
715-16 members appointed by the governor:
715-17 (1) six representatives of the general public;
715-18 (2) one representative of the gas industry;
715-19 (3) one representative of the telecommunications
715-20 industry;
715-21 (4) one representative of the electric industry;
715-22 (5) one representative of cable television companies;
715-23 (6) one representative of municipalities; and
715-24 (7) one representative of persons who engage in
715-25 excavation operations who are not also facility operators.
715-26 (b) Board membership is voluntary and a director is not
76R5 CBH-D 715
716-1 entitled to receive compensation for serving on the board.
716-2 Sec. 251.056. TERMS. (a) Directors serve staggered
716-3 three-year terms, with the terms of four directors expiring each
716-4 August 31.
716-5 (b) A director serves until the director's successor is
716-6 appointed by the governor and assumes office.
716-7 Sec. 251.057. DECLARATION OF BOARD VACANCY. (a) The board
716-8 may declare a director's office vacant if the director ceases to be
716-9 associated with the industry or an operator the director
716-10 represents.
716-11 (b) Not later than the 60th day after the date a vacancy on
716-12 the board is declared, the governor shall appoint a person to fill
716-13 the vacancy for the remainder of the unexpired term.
716-14 Sec. 251.058. OFFICERS. (a) The board shall elect from
716-15 among its directors a chair and vice chair.
716-16 (b) The chair and vice chair serve for a term of one year
716-17 and may be reelected.
716-18 Sec. 251.059. ENTITLEMENT TO VOTE. The corporation's bylaws
716-19 must provide that each director is entitled to one vote.
716-20 Sec. 251.060. DUTIES OF CORPORATION. The corporation shall
716-21 develop and implement processes to:
716-22 (1) maintain a registration of:
716-23 (A) notification centers as provided by Section
716-24 251.101(a)(3);
716-25 (B) operators who elect to convert facilities to
716-26 Class A facilities under Section 251.005(a); or
76R5 CBH-D 716
717-1 (C) operators who elect to become Class A
717-2 underground facility operators under Section 251.005(b);
717-3 (2) establish minimum technical standards used by
717-4 notification centers;
717-5 (3) establish a statewide toll-free telephone number
717-6 to be used by excavators that incorporates the use of a call router
717-7 system that routes calls to the notification centers on a pro rata
717-8 basis;
717-9 (4) oversee the bid process and select the vendor for
717-10 the statewide toll-free telephone number;
717-11 (5) oversee the bid process and select the vendor for
717-12 the call router system;
717-13 (6) determine before May 1 of each year the
717-14 cost-sharing between the notification centers of:
717-15 (A) the toll-free telephone number; and
717-16 (B) the call router system prescribed by Section
717-17 251.102(4);
717-18 (7) develop public service announcements to educate
717-19 the public about statewide one-call notification and its
717-20 availability;
717-21 (8) establish a format for information transfer among
717-22 notification centers other than high speed data transmission, if
717-23 appropriate;
717-24 (9) on a complaint concerning charges, investigate and
717-25 determine appropriate charges;
717-26 (10) recommend a civil penalty against a notification
76R5 CBH-D 717
718-1 center that does not meet the requirements of this chapter of not
718-2 less than $1,000 or more than $5,000 for each violation;
718-3 (11) refer the recommended penalty to the attorney
718-4 general, who shall institute a suit in a court of competent
718-5 jurisdiction to recover the penalty;
718-6 (12) assist in dispute resolution among notification
718-7 centers or between a notification center and an operator;
718-8 (13) assist any operator who encounters difficulty in
718-9 joining a notification center; and
718-10 (14) review and study design standards for the
718-11 placement of underground facilities throughout this state.
718-12 Sec. 251.061. CONTRACT FOR STATEWIDE TOLL-FREE NUMBER AND
718-13 CALL ROUTER SYSTEM. (a) The corporation shall solicit proposals
718-14 for the contract to establish and operate the statewide toll-free
718-15 telephone number and the call router system by using a request for
718-16 proposals process that includes specifications that have been
718-17 approved by the board of directors in accordance with this chapter.
718-18 (b) The corporation is not required to award the contract to
718-19 the lowest offeror if the terms of another proposal would result in
718-20 a lower annual cost and are more advantageous to the corporation
718-21 and its members. The corporation may reject all proposals if the
718-22 corporation finds that none of the proposals is acceptable.
718-23 (c) After the proposals are opened, each document relating
718-24 to the consideration of a proposal or the award of a contract and
718-25 the text of the contract are considered books and records of the
718-26 corporation for the purposes of Article 2.23, Texas Non-Profit
76R5 CBH-D 718
719-1 Corporation Act (Article 1396-2.23, Vernon's Texas Civil Statutes).
719-2 Sec. 251.062. FEES AND RATES. (a) Except as provided by
719-3 this section, the corporation may not, for any reason, impose an
719-4 assessment, fee, or other charge, including a charge for inputting
719-5 data, against an operator.
719-6 (b) Before January 15 of each year, a Class A facility
719-7 operator shall pay to the corporation a fee of $50 for services to
719-8 be performed by the corporation during that calendar year. A fee
719-9 for a part of a year may not be prorated.
719-10 (Sections 251.063-251.100 reserved for expansion
719-11 SUBCHAPTER C. NOTIFICATION CENTERS
719-12 Sec. 251.101. NOTIFICATION CENTER. (a) A notification
719-13 center is a legal entity that:
719-14 (1) operates a notification system capable of serving
719-15 excavators and operators statewide;
719-16 (2) is created to:
719-17 (A) receive notification of an intent to
719-18 excavate and of damage to an underground facility and disseminate
719-19 that information to member operators that may be affected by the
719-20 excavation or damage and to other notification centers operating in
719-21 this state; and
719-22 (B) receive notification of an extraordinary
719-23 circumstance and disseminate that information to member operators
719-24 and to other notification centers operating in this state; and
719-25 (3) registers the following information with the
719-26 corporation:
76R5 CBH-D 719
720-1 (A) its name, address, and telephone number;
720-2 (B) the name of a contact person;
720-3 (C) a statement of compliance with Section
720-4 251.104; and
720-5 (D) a listing of the counties in which it
720-6 operates.
720-7 (b) A notification center operating on September 1, 1997,
720-8 may continue to operate if the notification center complies with
720-9 this chapter.
720-10 Sec. 251.102. GENERAL DUTIES OF NOTIFICATION CENTER. A
720-11 notification center shall:
720-12 (1) operate 24 hours a day every day of the year;
720-13 (2) have the capability to receive emergency
720-14 information 24 hours a day from excavators and disseminate the
720-15 information as soon as it is received to the appropriate operators
720-16 and to all registered and affected notification centers operating
720-17 in this state;
720-18 (3) have the capacity to receive extraordinary
720-19 circumstance information 24 hours a day from operators and
720-20 disseminate the information as soon as it is received to all
720-21 registered and affected notification centers;
720-22 (4) submit to the corporation, not later than May 15
720-23 of each year, a pro rata share of the expense, as established by
720-24 the corporation, of the statewide toll-free telephone number and
720-25 the call router;
720-26 (5) provide, on request of an excavator, a contact
76R5 CBH-D 720
721-1 name and telephone number of a representative of the operator for
721-2 special circumstances; and
721-3 (6) have personnel capable of assisting
721-4 Spanish-speaking customers.
721-5 Sec. 251.103. RECORDS. (a) A notification center shall
721-6 maintain for not less than four years a record to document:
721-7 (1) the receipt of a notice of:
721-8 (A) intent to excavate;
721-9 (B) damage to an underground facility;
721-10 (C) an emergency excavation; and
721-11 (D) an extraordinary circumstance;
721-12 (2) the information the excavator is required to
721-13 provide to the notification center under this chapter;
721-14 (3) contact with operators and other notification
721-15 centers; and
721-16 (4) the information the notification center provided
721-17 to the excavator.
721-18 (b) A notification center may not destroy records that
721-19 relate to any matter that is involved in litigation if the
721-20 notification center is placed on notice that the litigation has not
721-21 been finally resolved.
721-22 Sec. 251.104. INSURANCE. A notification center shall, at
721-23 all times, maintain a minimum of $5 million professional liability
721-24 and errors and omissions insurance to cover duties prescribed by
721-25 this chapter.
721-26 Sec. 251.105. FEES AND CHARGES. (a) A notification center
76R5 CBH-D 721
722-1 that notifies another notification center under Section 251.102(2)
722-2 or (3) or Section 251.153(b) shall recover an amount not exceeding
722-3 the actual cost of providing the notice from the notification
722-4 center receiving the notice.
722-5 (b) The notification center shall charge a Class A
722-6 underground facility operator not more than $1.25 for a call made
722-7 to the system that affects the operator. The board may increase or
722-8 decrease the maximum charge only on an affirmative vote of at least
722-9 two-thirds of the total number of votes entitled to be cast. A
722-10 notification center may petition the corporation for an increase in
722-11 the maximum charge and is entitled to the increase on proof that
722-12 costs exceed the maximum charge.
722-13 (c) The notification center may not charge an operator any
722-14 additional fee such as an initiation fee, a membership fee, or a
722-15 set-up fee.
722-16 Sec. 251.106. PAYMENTS TO CORPORATION. Each time a
722-17 notification center receives a call from an excavator under Section
722-18 251.151, the notification center shall pay the corporation one
722-19 cent. The corporation shall waive this charge for the remainder of
722-20 any year in which the corporation receives $500,000 under this
722-21 section.
722-22 Sec. 251.107. DUTY TO PARTICIPATE IN NOTIFICATION CENTER.
722-23 (a) Each operator of a Class A underground facility, including a
722-24 political subdivision of this state, shall participate in a
722-25 notification center as a condition of doing business in this state.
722-26 (b) Each operator of a Class A underground facility shall
76R5 CBH-D 722
723-1 provide to the notification center:
723-2 (1) maps or grid locations or other identifiers
723-3 determined by the operator indicating the location of the
723-4 operator's underground facilities;
723-5 (2) the name and telephone number of a contact person
723-6 or persons; and
723-7 (3) at least quarterly but, if possible, as those
723-8 changes occur, information relating to each change in the
723-9 operator's maps or grid locations or other identifiers or in the
723-10 person or persons designated as the operator's contact person or
723-11 persons.
723-12 (c) The notification center may not require an operator to
723-13 conduct a survey of the operator's underground facilities or alter
723-14 the operator's existing signage.
723-15 (d) A notification center may not disseminate, make
723-16 available, or otherwise distribute maps or information provided by
723-17 an operator unless that action is necessary to perform the
723-18 notification center's specific obligations under this chapter.
723-19 (Sections 251.108-251.150 reserved for expansion
723-20 SUBCHAPTER D. REQUIREMENTS RELATING TO EXCAVATION
723-21 Sec. 251.151. DUTY OF AN EXCAVATOR. (a) Except as provided
723-22 by Sections 251.155 and 251.156, a person who intends to excavate
723-23 shall notify a notification center not earlier than the 14th day
723-24 before the date the excavation is to begin or later than the 48th
723-25 hour before the time the excavation is to begin, excluding
723-26 Saturdays, Sundays, and legal holidays.
76R5 CBH-D 723
724-1 (b) Notwithstanding Subsection (a), if an excavator makes a
724-2 Saturday notification, the excavator may begin the excavation the
724-3 following Tuesday at 11:59 a.m. unless the intervening Monday is a
724-4 holiday. If the intervening Monday is a holiday, the excavator may
724-5 begin the excavation the following Wednesday at 11:59 a.m.
724-6 (c) To have a representative present during the excavation,
724-7 the operator shall contact the excavator and advise the excavator
724-8 of the operator's intent to be present during excavation and
724-9 confirm the start time of the excavation. If the excavator wants
724-10 to change the start time, the excavator shall notify the operator
724-11 to set a mutually agreed-to time to begin the excavation.
724-12 Sec. 251.152. INFORMATION INCLUDED IN NOTICE. The excavator
724-13 shall include in the notice required under Section 251.151:
724-14 (1) the name of the person serving the notice;
724-15 (2) the location of the proposed area of excavation,
724-16 including:
724-17 (A) the street address, if available, and the
724-18 location of the excavation at the street address; or
724-19 (B) if there is no street address, an accurate
724-20 description of the excavation area using any available designations
724-21 such as the closest street, road, or intersection;
724-22 (3) the name, address, and telephone number of the
724-23 excavator or the excavator's company;
724-24 (4) the excavator's field telephone number, if one is
724-25 available;
724-26 (5) the starting date and time and the anticipated
76R5 CBH-D 724
725-1 completion date of excavation; and
725-2 (6) a statement as to whether explosives will be used.
725-3 Sec. 251.153. DUTY OF NOTIFICATION CENTER. (a) At the time
725-4 an excavator provides a notification center with the excavator's
725-5 intent to excavate, the notification center shall advise the
725-6 excavator that water, slurry, and sewage underground facilities in
725-7 the area of the proposed excavation may not receive information
725-8 concerning the excavator's proposed excavation.
725-9 (b) Not later than two hours after the time the notification
725-10 center receives a notice of intent to excavate from an excavator,
725-11 the notification center shall provide to every other affected
725-12 notification center operating in this state the information
725-13 required by Section 251.152 and received from the excavator. The
725-14 notification center shall provide the information by the use of
725-15 high speed data transmission.
725-16 (c) Not later than two hours after the time the notification
725-17 center receives a notice of intent to excavate from an excavator or
725-18 from a different notification center, the notification center shall
725-19 notify each member operator that may have an underground facility
725-20 in the vicinity of the proposed excavation operation.
725-21 Sec. 251.154. NOTIFICATION BY AN EXCAVATOR. (a) A person
725-22 required to provide notice under this chapter is considered to
725-23 have provided the notice when the person delivers the required
725-24 information and a notification center receives that information
725-25 within the time limits prescribed by this chapter.
725-26 (b) A person may deliver information required under this
76R5 CBH-D 725
726-1 chapter by any appropriate method, including the use of any
726-2 electronic means of data transfer.
726-3 Sec. 251.155. EXCEPTION IN CASE OF EMERGENCY. (a) Section
726-4 251.151 does not apply to an emergency excavation that is necessary
726-5 to respond to a situation that endangers life, health, or property
726-6 or a situation in which the public need for uninterrupted service
726-7 and immediate reestablishment of service if service is interrupted
726-8 compels immediate action.
726-9 (b) The excavator may begin emergency excavation under
726-10 Subsection (a) immediately and shall take reasonable precautions to
726-11 protect underground facilities.
726-12 (c) When an emergency exists, the excavator shall notify a
726-13 notification center as promptly as reasonably possible.
726-14 Sec. 251.156. OTHER EXCEPTIONS TO DUTY OF EXCAVATORS. (a)
726-15 Section 251.151 does not apply to:
726-16 (1) interment operations of a cemetery;
726-17 (2) operations at a secured facility if:
726-18 (A) the excavator operates each underground
726-19 facility at the secured facility, other than those within a
726-20 third-party underground facility easement or right-of-way; and
726-21 (B) the excavation activity is not within a
726-22 third-party underground facility or right-of-way;
726-23 (3) routine railroad maintenance within 15 feet of
726-24 either side of the midline of the track if the maintenance will not
726-25 disturb the ground at a depth of more than 18 inches;
726-26 (4) activities performed on private property in
76R5 CBH-D 726
727-1 connection with agricultural operations;
727-2 (5) operations associated with the exploration or
727-3 production of oil or gas if the operations are not conducted within
727-4 an underground facility easement or right-of-way;
727-5 (6) excavations by or for a person that:
727-6 (A) owns, leases, or owns a mineral leasehold
727-7 interest in the real property on which the excavation occurs; and
727-8 (B) operates all underground facilities located
727-9 at the excavation site; or
727-10 (7) routine maintenance by a county employee on a
727-11 county road right-of-way to a depth of not more than 24 inches.
727-12 (b) If a person excepted under Subsection (a)(4) elects to
727-13 comply with this chapter and the operator fails to comply with this
727-14 chapter, the person is not liable to the underground facility owner
727-15 for damages to the underground facility.
727-16 (c) In this section:
727-17 (1) "Agricultural operations" means activities
727-18 performed on land and described by Section 23.51(2), Tax Code.
727-19 (2) "Routine maintenance" means operations, not to
727-20 exceed 24 inches in depth, within a road or drainage ditch
727-21 involving grading and removal or replacement of pavement and
727-22 structures.
727-23 Sec. 251.157. DUTY OF OPERATOR TO PERSON EXCAVATING. (a)
727-24 Each Class A underground facility operator contacted by the
727-25 notification system shall mark the approximate location of its
727-26 underground facilities at or near the site of the proposed
76R5 CBH-D 727
728-1 excavation if the operator believes that marking the location is
728-2 necessary. The operator shall mark the location not later than:
728-3 (1) the 48th hour after the time the excavator gives
728-4 to the notification system notice of intent to excavate, excluding
728-5 Saturdays, Sundays, and legal holidays;
728-6 (2) 11:59 a.m. on the Tuesday following a Saturday
728-7 notification unless the intervening Monday is a holiday;
728-8 (3) 11:59 a.m. on the Wednesday following a Saturday
728-9 notification if the intervening Monday is a holiday; or
728-10 (4) a time agreed to by the operator and the
728-11 excavator.
728-12 (b) An operator shall refer to the American Public Works
728-13 Association color coding standards when marking.
728-14 (c) An excavator who has fully complied with this chapter
728-15 may not be liable for damage to an underground facility that was
728-16 not marked in accordance with this chapter.
728-17 Sec. 251.158. DUTY OF OPERATOR IN EVENT OF AN EXTRAORDINARY
728-18 CIRCUMSTANCE. (a) The deadline prescribed by Section 251.157(a)
728-19 does not apply if the operator experiences an extraordinary
728-20 circumstance due to an act of God, including a tornado, a
728-21 hurricane, an ice storm, or a severe flood, or a war, riot, work
728-22 stoppage, or strike that limits personnel or resources needed to
728-23 fulfill the operator's obligations under this chapter.
728-24 (b) The operator shall notify a notification center of the
728-25 extraordinary circumstance and shall include in the notification:
728-26 (1) the nature and location of the extraordinary
76R5 CBH-D 728
729-1 circumstance;
729-2 (2) the expected duration of the situation and the
729-3 approximate time at which the operator will be able to resume
729-4 location request activities; and
729-5 (3) the name and telephone number of the individual
729-6 that the notification system can contact if there is an emergency
729-7 that requires the operator's immediate attention.
729-8 (c) In addition to the notification required by Subsection
729-9 (b), the operator shall also notify each excavator that has a
729-10 pending location request in the location where an extraordinary
729-11 circumstance is being experienced and shall include in the
729-12 notification:
729-13 (1) the fact that the operator is experiencing an
729-14 extraordinary circumstance; and
729-15 (2) the approximate time at which the operator will
729-16 mark the requested location.
729-17 (d) A notification center shall inform each excavator
729-18 notifying the system under Section 251.151 that the operator's
729-19 location request activities are suspended until the extraordinary
729-20 circumstance has discontinued or has been corrected within the
729-21 affected location.
729-22 (e) An excavator is relieved from all provisions of this
729-23 chapter until the operator notifies the notification center that
729-24 the operator has resumed location request activities within the
729-25 affected location.
729-26 Sec. 251.159. EXCAVATION DAMAGE. (a) If an excavation
76R5 CBH-D 729
730-1 operation results in damage to an underground facility, the
730-2 excavator shall immediately contact the underground facility
730-3 operator to report the damage.
730-4 (b) If the excavator is not certain of the operator's
730-5 identity, the excavator shall contact a notification center to
730-6 report the damage, and the notification center shall immediately
730-7 notify all other affected notification centers. Immediately on
730-8 receiving notification, each notification center shall contact each
730-9 member operator that has underground facilities in or near the area
730-10 in which the damage occurred.
730-11 (c) Only the operator or a person authorized by the operator
730-12 may perform repairs, and the repairs must be made in an expeditious
730-13 manner.
730-14 (d) An excavator shall delay backfilling in the immediate
730-15 area of the damage until the damage is reported to the operator and
730-16 a repair schedule is mutually agreed to by the excavator and the
730-17 operator.
730-18 (e) If damage endangers life, health, or property because of
730-19 the presence of flammable material, the excavator shall keep
730-20 sources of ignition away.
730-21 (Sections 251.160-251.200 reserved for expansion
730-22 SUBCHAPTER E. PENALTIES
730-23 Sec. 251.201. CIVIL PENALTY. (a) An excavator that
730-24 violates Section 251.151, 251.152, or 251.159 is liable for a
730-25 civil penalty of not less than $50 or more than $100.
730-26 (b) If it is found at the trial on a civil penalty that the
76R5 CBH-D 730
731-1 excavator has violated this chapter and has been assessed a penalty
731-2 under this section one other time before the first anniversary of
731-3 the date of the most recent violation, the excavator is liable for
731-4 a civil penalty of not less than $100 or more than $200.
731-5 (c) If it is found at the trial on a civil penalty that the
731-6 excavator has violated this chapter and has been assessed a penalty
731-7 under this section at least two other times before the first
731-8 anniversary of the date of the most recent violation, the excavator
731-9 is liable for a civil penalty of not less than $200 or more than
731-10 $500.
731-11 (d) In assessing the penalty the court shall consider the
731-12 actual damage to the facility, the effect of the excavator's
731-13 actions on the public health and safety, whether the violation was
731-14 a wilful act, and any good faith of the excavator in attempting to
731-15 achieve compliance.
731-16 (e) Venue for a proceeding under this section is in the
731-17 county in which:
731-18 (1) all or part of the alleged violation occurred;
731-19 (2) the defendant has its principal place of business
731-20 in this state; or
731-21 (3) the defendant resides, if in this state.
731-22 (f) The appropriate county attorney or criminal district
731-23 attorney shall bring the action to recover the civil penalty.
731-24 (g) This section does not apply to a residential property
731-25 owner excavating on the property owner's own residential lot.
731-26 Sec. 251.202. ALLOCATION OF CIVIL PENALTY. (a) Fifty
76R5 CBH-D 731
732-1 percent of the civil penalty collected under Section 251.201 shall
732-2 be transferred to the county treasurer of the county prosecuting
732-3 the action and 50 percent of the civil penalty collected under
732-4 Section 251.201 shall be transferred to the corporation.
732-5 (b) The county treasurer shall deposit all money received
732-6 under this section in the county road and bridge fund.
732-7 (c) The corporation shall use the money received under this
732-8 section to develop public service announcements to educate the
732-9 public about the statewide one-call notification system and its
732-10 availability as prescribed by Section 251.060(7).
732-11 Sec. 251.203. CRIMINAL PENALTY FOR REMOVAL, DAMAGE, OR
732-12 CONCEALMENT OF MARKER OR SIGN. (a) A person commits an offense
732-13 if:
732-14 (1) the person without authorization from the owner or
732-15 operator of the facility intentionally removes, damages, or
732-16 conceals a marker or sign giving information about the location of
732-17 a Class A underground facility; and
732-18 (2) the marker or sign gives notice of the penalty for
732-19 intentional removal, damage, or concealment of the marker or sign.
732-20 (b) An offense under this section is a Class B misdemeanor.
732-21 (b) Chapter 1407, Acts of the 75th Legislature, Regular
732-22 Session, 1997 (Article 9033, Vernon's Texas Civil Statutes), is
732-23 repealed.
732-24 SECTION 18.18. (a) Section 67.006(a), Water Code, is
732-25 amended to conform to Section 1, Chapter 688, Acts of the 75th
732-26 Legislature, Regular Session, 1997, to read as follows:
76R5 CBH-D 732
733-1 (a) The board shall elect a president, a vice president, and
733-2 a secretary-treasurer following the issuance of a charter and after
733-3 each annual meeting of the membership or shareholders. At the
733-4 meeting, each member or stockholder may be allowed only one vote
733-5 regardless of the number of memberships or stock certificates held
733-6 by the person.
733-7 (b) Section 1, Chapter 688, Acts of the 75th Legislature,
733-8 Regular Session, 1997, is repealed.
733-9 SECTION 18.19. (a) Chapter 67, Water Code, is amended to
733-10 conform to Section 1, Chapter 532, Acts of the 75th Legislature,
733-11 Regular Session, 1997, by adding Section 67.0105 to read as
733-12 follows:
733-13 Sec. 67.0105. CONTRACT FOR WATER FOR FIRE SUPPRESSION. (a)
733-14 A corporation may enter into a contract with a municipality or a
733-15 volunteer fire department to supply water either to municipally
733-16 owned fire hydrants or to corporation fire hydrants for use in fire
733-17 suppression by the municipality's fire department or a volunteer
733-18 fire department. The contract must be under terms that are
733-19 mutually beneficial to the contracting parties.
733-20 (b) The furnishing of a water supply and fire hydrant
733-21 equipment by a municipality or a volunteer fire department directly
733-22 or through another entity by a lease, contract, or any other
733-23 manner is an essential governmental function and not a proprietary
733-24 function for all purposes, including the application of Chapter
733-25 101, Civil Practice and Remedies Code.
733-26 (c) A corporation that contracts with a municipality or
76R5 CBH-D 733
734-1 volunteer fire department to provide a water supply or fire hydrant
734-2 equipment may be liable for damages only to the extent that the
734-3 municipality or volunteer fire department would be liable if the
734-4 municipality or volunteer fire department were performing the
734-5 governmental function directly.
734-6 (b) Section 1, Chapter 532, Acts of the 75th Legislature,
734-7 Regular Session, 1997, is repealed.
734-8 SECTION 18.20. Section 1(7), Article 18.21, Code of Criminal
734-9 Procedure, is amended to conform to Chapter 166, Acts of the 75th
734-10 Legislature, Regular Session, 1997, to read as follows:
734-11 (7) "Trap and trace device" means a device that
734-12 records an incoming electronic or other impulse that identifies the
734-13 originating number of an instrument or device from which a wire or
734-14 electronic communication was transmitted. The term does not
734-15 include a device or telecommunications network used in providing:
734-16 (A) a caller identification service authorized
734-17 by the Public Utility Commission of Texas under Subchapter E,
734-18 Chapter 55, Utilities Code [Section 3.302, Public Utility
734-19 Regulatory Act of 1995 (Article 1446c-0, Vernon's Texas Civil
734-20 Statutes)];
734-21 (B) the services referenced in Section
734-22 55.102(b), Utilities Code [3.302(g), Public Utility Regulatory Act
734-23 of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes)]; or
734-24 (C) a caller identification service provided by
734-25 a commercial mobile radio service provider licensed by the Federal
734-26 Communications Commission.
76R5 CBH-D 734
735-1 SECTION 18.21. Section 466.105(b), Government Code, is
735-2 amended to conform to Chapter 166, Acts of the 75th Legislature,
735-3 Regular Session, 1997, to read as follows:
735-4 (b) Notwithstanding the provisions of Title 2, Utilities
735-5 Code [the Public Utility Regulatory Act (Article 1446c, Vernon's
735-6 Texas Civil Statutes)], the commission may negotiate rates and
735-7 execute contracts with telecommunications service providers for the
735-8 interexchange services necessary for the operation of the lottery.
735-9 The commission may acquire transmission facilities by lease,
735-10 purchase, or lease-purchase. The acquisition of transmission
735-11 facilities must be done on a competitive bid basis if possible.
735-12 SECTION 18.22. Subsection (e), Section 531.0216, Government
735-13 Code, as added by Chapter 1244, Acts of the 75th Legislature,
735-14 Regular Session, 1997, and renumbered by Section 19.01 of this Act
735-15 from Section 531.0215, Government Code, as added by Chapter 1244,
735-16 Acts of the 75th Legislature, Regular Session, 1997, is amended to
735-17 conform to Chapter 166, Acts of the 75th Legislature, Regular
735-18 Session, 1997, to read as follows:
735-19 (e) In this section, "telemedicine" has the meaning assigned
735-20 by Section 57.042, Utilities Code [3.606, Public Utility Regulatory
735-21 Act of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes)].
735-22 SECTION 18.23. Section 551.001(3), Government Code, is
735-23 amended to conform to Chapter 166, Acts of the 75th Legislature,
735-24 Regular Session, 1997, to read as follows:
735-25 (3) "Governmental body" means:
735-26 (A) a board, commission, department, committee,
76R5 CBH-D 735
736-1 or agency within the executive or legislative branch of state
736-2 government that is directed by one or more elected or appointed
736-3 members;
736-4 (B) a county commissioners court in the state;
736-5 (C) a municipal governing body in the state;
736-6 (D) a deliberative body that has rulemaking or
736-7 quasi-judicial power and that is classified as a department,
736-8 agency, or political subdivision of a county or municipality;
736-9 (E) a school district board of trustees;
736-10 (F) a county board of school trustees;
736-11 (G) a county board of education;
736-12 (H) the governing board of a special district
736-13 created by law; and
736-14 (I) a nonprofit corporation organized under
736-15 Chapter 67, Water Code [76, Acts of the 43rd Legislature, 1st
736-16 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
736-17 Statutes)], that provides a water supply or wastewater service, or
736-18 both, and is exempt from ad valorem taxation under Section 11.30,
736-19 Tax Code.
736-20 SECTION 18.24. Section 552.003(1), Government Code, is
736-21 amended to conform to Chapter 166, Acts of the 75th Legislature,
736-22 Regular Session, 1997, to read as follows:
736-23 (1) "Governmental body":
736-24 (A) means:
736-25 (i) a board, commission, department,
736-26 committee, institution, agency, or office that is within or is
76R5 CBH-D 736
737-1 created by the executive or legislative branch of state government
737-2 and that is directed by one or more elected or appointed members;
737-3 (ii) a county commissioners court in the
737-4 state;
737-5 (iii) a municipal governing body in the
737-6 state;
737-7 (iv) a deliberative body that has
737-8 rulemaking or quasi-judicial power and that is classified as a
737-9 department, agency, or political subdivision of a county or
737-10 municipality;
737-11 (v) a school district board of trustees;
737-12 (vi) a county board of school trustees;
737-13 (vii) a county board of education;
737-14 (viii) the governing board of a special
737-15 district;
737-16 (ix) the governing body of a nonprofit
737-17 corporation organized under Chapter 67, Water Code [76, Acts of the
737-18 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
737-19 Texas Civil Statutes)], that provides a water supply or wastewater
737-20 service, or both, and is exempt from ad valorem taxation under
737-21 Section 11.30, Tax Code; and
737-22 (x) the part, section, or portion of an
737-23 organization, corporation, commission, committee, institution, or
737-24 agency that spends or that is supported in whole or in part by
737-25 public funds; and
737-26 (B) does not include the judiciary.
76R5 CBH-D 737
738-1 SECTION 18.25. Section 2157.001(1), Government Code, is
738-2 amended to conform to Chapter 166, Acts of the 75th Legislature,
738-3 Regular Session, 1997, to read as follows:
738-4 (1) "Automated information system" includes:
738-5 (A) the computers on which the information
738-6 system is automated;
738-7 (B) a service related to the automation of the
738-8 system, including computer software, or the computers;
738-9 (C) a telecommunications apparatus or device
738-10 that serves as a component of a voice, data, or video
738-11 communications network for transmitting, switching, routing,
738-12 multiplexing, modulating, amplifying, or receiving signals on the
738-13 network; and
738-14 (D) for the General Services Commission, as
738-15 telecommunications provider for the State, the term includes any
738-16 service provided by a telecommunications provider, as that term is
738-17 defined by Section 51.002, Utilities Code [in the Public Utility
738-18 Regulatory Act of 1995 (Article 1446c-0, Vernon's Texas Civil
738-19 Statutes)].
738-20 SECTION 18.26. Section 2166.301, Government Code, is amended
738-21 to conform to Chapter 166, Acts of the 75th Legislature, Regular
738-22 Session, 1997, to read as follows:
738-23 Sec. 2166.301. EXCEPTIONS. Sections 2166.303 and 2166.304
738-24 do not apply to a contract made with a person subject to[:]
738-25 [(1)] the safety standards and administrative penalty
738-26 provisions of Subchapter E, Chapter 121, Utilities Code [Article
76R5 CBH-D 738
739-1 6053-1, Revised Statutes; and]
739-2 [(2) the administrative penalty provisions of Article
739-3 6053-2, Revised Statutes].
739-4 SECTION 18.27. Section 2170.053(b), Government Code, is
739-5 amended to conform to Chapter 166, Acts of the 75th Legislature,
739-6 Regular Session, 1997, to read as follows:
739-7 (b) Sharing or integrated use does not constitute the resale
739-8 or carriage of services and does not subject the system to
739-9 regulation or reporting under Title 2, Utilities Code [the Public
739-10 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
739-11 Statutes)].
739-12 SECTION 18.28. Section 2303.511(b), Government Code, is
739-13 amended to conform to Chapter 166, Acts of the 75th Legislature,
739-14 Regular Session, 1997, to read as follows:
739-15 (b) A reduction in utility rates under Subsection (a)(9)(B)
739-16 is subject to the agreement of the affected utility and the
739-17 approval of the appropriate regulatory authority under Title 2,
739-18 Utilities Code [Sections 16 and 17, Public Utility Regulatory Act
739-19 (Article 1446c, Vernon's Texas Civil Statutes)]. The rates may
739-20 not be reduced more than five percent below the lowest rate offered
739-21 to any customer located in the enterprise zone, including economic
739-22 development rates and standby rates. A qualified enterprise
739-23 project or the governing body of the enterprise zone may petition
739-24 the appropriate regulatory authority to receive a reduced rate
739-25 under this section, and the regulatory authority may order that
739-26 rates be reduced. In making its determination under this section,
76R5 CBH-D 739
740-1 the regulatory authority shall consider revitalization goals for
740-2 the enterprise zone. In setting the rates of the utility the
740-3 appropriate regulatory authority shall allow the utility to recover
740-4 the amount of the reduction.
740-5 SECTION 18.29. Section 2310.409(b), Government Code, is
740-6 amended to conform to Chapter 166, Acts of the 75th Legislature,
740-7 Regular Session, 1997, to read as follows:
740-8 (b) A reduction in utility rates under Subsection (a)(9)(B)
740-9 is subject to the agreement of the affected utility and the
740-10 approval of the appropriate regulatory authority under Title 2,
740-11 Utilities Code [the Public Utility Regulatory Act of 1995 (Article
740-12 1446c-0, Vernon's Texas Civil Statutes)]. The rates may be reduced
740-13 up to but not more than five percent below the lowest rate
740-14 allowable for that customer class. In making its determination
740-15 under this section, the regulatory authority shall consider
740-16 revitalization goals for the readjustment zone. In setting the
740-17 rates of the utility the appropriate regulatory authority shall
740-18 allow the utility to recover the amount of the reduction.
740-19 SECTION 18.30. Section 361.701(4), Health and Safety Code,
740-20 is amended to conform to Chapter 166, Acts of the 75th Legislature,
740-21 Regular Session, 1997, to read as follows:
740-22 (4) "Lender" means:
740-23 (A) an insured depository institution, as that
740-24 term is defined by Section 3, Federal Deposit Insurance Act (12
740-25 U.S.C. Section 1813);
740-26 (B) an insured credit union, as that term is
76R5 CBH-D 740
741-1 defined by Section 101, Federal Credit Union Act (12 U.S.C. Section
741-2 1752);
741-3 (C) a bank or association chartered under the
741-4 Farm Credit Act of 1971 (12 U.S.C. Section 2001 et seq.);
741-5 (D) a leasing or trust company that is an
741-6 affiliate of an insured depository institution;
741-7 (E) any person, including a successor or
741-8 assignee of any such person, that makes a bona fide extension of
741-9 credit to or takes or acquires a security interest from a
741-10 nonaffiliated person;
741-11 (F) the Federal National Mortgage Association,
741-12 the Federal Home Loan Mortgage Corporation, the Federal
741-13 Agricultural Mortgage Corporation, or any other entity that in a
741-14 bona fide manner buys or sells loans or interests in loans;
741-15 (G) a person that insures or guarantees against
741-16 a default in the repayment of an extension of credit, or acts as a
741-17 surety with respect to an extension of credit, to a nonaffiliated
741-18 person;
741-19 (H) a person that provides title insurance and
741-20 that acquires a solid waste facility as a result of assignment or
741-21 conveyance in the course of underwriting claims and claims
741-22 settlement; and
741-23 (I) an agency of this state that makes an
741-24 extension of credit to or acquires a security interest from:
741-25 (i) a federal or state agency;
741-26 (ii) a county, municipality, or other body
76R5 CBH-D 741
742-1 politic or corporate of this state, including:
742-2 (a) a district or authority
742-3 created under Section 52, Article III, or Section 59, Article XVI,
742-4 Texas Constitution;
742-5 (b) an interstate compact
742-6 commission to which this state is a party; or
742-7 (c) a nonprofit water
742-8 supply corporation created and operating under Chapter 67, Water
742-9 Code [76, Acts of the 43rd Legislature, 1st Called Session, 1933
742-10 (Article 1434a, Vernon's Texas Civil Statutes)]; or
742-11 (iii) another person.
742-12 SECTION 18.31. Section 756.022(d), Health and Safety Code,
742-13 is amended to conform to Chapter 166, Acts of the 75th Legislature,
742-14 Regular Session, 1997, to read as follows:
742-15 (d) This section does not apply to a contract:
742-16 (1) governed by Section 756.023;
742-17 (2) governed by Subtitle D, Title 10, Government Code;
742-18 or
742-19 (3) entered into by a person subject to [:]
742-20 [(A)] the safety standards adopted under and the
742-21 administrative penalty provisions of Subchapter E, Chapter 121,
742-22 Utilities Code [Article 6053-1, Revised Statutes; and]
742-23 [(B) the administrative penalty provisions of
742-24 Article 6053-2, Revised Statutes].
742-25 SECTION 18.32. Section 756.023(d), Health and Safety Code,
742-26 is amended to conform to Chapter 166, Acts of the 75th Legislature,
76R5 CBH-D 742
743-1 Regular Session, 1997, to read as follows:
743-2 (d) This section does not apply to a person subject to [:]
743-3 [(1)] the safety standards adopted under and the
743-4 administrative penalty provisions of Subchapter E, Chapter 121,
743-5 Utilities Code [Article 6053-1, Revised Statutes; and]
743-6 [(2) the administrative penalty provisions of Article
743-7 6053-2, Revised Statutes].
743-8 SECTION 18.33. Section 771.0725(d), Health and Safety Code,
743-9 is amended to conform to Chapter 166, Acts of the 75th Legislature,
743-10 Regular Session, 1997, to read as follows:
743-11 (d) The Public Utility Commission of Texas may review and
743-12 make comments regarding a rate or allocation under this section in
743-13 an informal proceeding. A proceeding in which a rate or allocation
743-14 is reviewed is not a contested case for purposes of Chapter 2001,
743-15 Government Code. A review of a rate or allocation is not a rate
743-16 change for purposes of Chapter 36 or 53, Utilities Code [Subtitle
743-17 E, Title II, or Subtitle E, Title III, Public Utility Regulatory
743-18 Act of 1995 (Article 1446c-0, Vernon's Texas Civil Statutes)].
743-19 SECTION 18.34. Section 212.012(b), Local Government Code, is
743-20 amended to conform to Chapter 166, Acts of the 75th Legislature,
743-21 Regular Session, 1997, to read as follows:
743-22 (b) The prohibition established by Subsection (a) applies
743-23 only to:
743-24 (1) a municipality and officials of a municipality
743-25 that provides water, sewer, electricity, gas, or other utility
743-26 service;
76R5 CBH-D 743
744-1 (2) a municipally owned or municipally operated
744-2 utility that provides any of those services;
744-3 (3) a public utility that provides any of those
744-4 services;
744-5 (4) a water supply or sewer service corporation
744-6 organized and operating under Chapter 67, Water Code [76, Acts of
744-7 the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
744-8 Vernon's Texas Civil Statutes)], that provides any of those
744-9 services;
744-10 (5) a county that provides any of those services; and
744-11 (6) a special district or authority created by or
744-12 under state law that provides any of those services.
744-13 SECTION 18.35. Section 232.021(15), Local Government Code,
744-14 is amended to conform to Chapter 166, Acts of the 75th Legislature,
744-15 Regular Session, 1997, to read as follows:
744-16 (15) "Utility" means a person, including a legal
744-17 entity or political subdivision, that provides the services of:
744-18 (A) an electric utility, as defined by Section
744-19 31.002, Utilities Code [3(c)(1), Public Utility Regulatory Act
744-20 (Article 1446c, Vernon's Texas Civil Statutes)];
744-21 (B) a gas utility, as defined by Section
744-22 101.003, Utilities Code [1.03, Gas Utility Regulatory Act (Article
744-23 1446e, Vernon's Texas Civil Statutes)]; and
744-24 (C) a water and sewer utility, as defined by
744-25 Section 13.002, Water Code.
744-26 SECTION 18.36. Section 232.077(c), Local Government Code, is
76R5 CBH-D 744
745-1 amended to conform to Chapter 166, Acts of the 75th Legislature,
745-2 Regular Session, 1997, to read as follows:
745-3 (c) The prohibition established by Subsection (b) applies
745-4 only to:
745-5 (1) a municipality, and officials of the municipality,
745-6 that provides water, sewer, electricity, gas, or other utility
745-7 service;
745-8 (2) a municipally owned or municipally operated
745-9 utility that provides any of those services;
745-10 (3) a public utility that provides any of those
745-11 services;
745-12 (4) a water supply or sewer service corporation
745-13 organized and operating under Chapter 67, Water Code [76, Acts of
745-14 the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
745-15 Vernon's Texas Civil Statutes)], that provides any of those
745-16 services;
745-17 (5) a county that provides any of those services; and
745-18 (6) a special district or authority created by or
745-19 under state law that provides any of those services.
745-20 SECTION 18.37. Section 376.170, Local Government Code, as
745-21 renumbered by Section 19.01 of this Act from Section 376.140, Local
745-22 Government Code, as added by Chapter 275, Acts of the 75th
745-23 Legislature, Regular Session, 1997, is amended to conform to
745-24 Chapter 166, Acts of the 75th Legislature, Regular Session, 1997,
745-25 to read as follows:
745-26 Sec. 376.170. EXEMPTION OF PUBLIC UTILITY FROM FEE OR
76R5 CBH-D 745
746-1 ASSESSMENT. The district may not impose an impact fee or
746-2 assessment on the property, equipment, or facilities of an electric
746-3 [a public] utility as defined by Section 31.002, Utilities Code
746-4 [2.0011, Public Utility Regulatory Act of 1995 (Article 1446c-0,
746-5 Vernon's Texas Civil Statutes)].
746-6 SECTION 18.38. Section 376.230(b), Local Government Code, is
746-7 amended to conform to Chapter 166, Acts of the 75th Legislature,
746-8 Regular Session, 1997, to read as follows:
746-9 (b) The district may not impose an impact fee or assessment
746-10 on any property, equipment, or facilities of an electric [a public]
746-11 utility as defined by Section 31.002, Utilities Code [2.0011(1),
746-12 Public Utility Regulatory Act of 1995 (Article 1446c-0, Vernon's
746-13 Texas Civil Statutes)].
746-14 SECTION 18.39. Section 40.008, Natural Resources Code, is
746-15 amended to conform to Chapter 166, Acts of the 75th Legislature,
746-16 Regular Session, 1997, to read as follows:
746-17 Sec. 40.008. RAILROAD COMMISSION AUTHORITY. The Railroad
746-18 Commission of Texas shall continue to exercise its authority
746-19 pursuant to Section 91.101 of this code and Section 26.131, Water
746-20 Code, to issue and enforce rules, permits, and orders to prevent
746-21 pollution of surface and subsurface waters in the state by
746-22 activities associated with the exploration, development, or
746-23 production of oil, gas, or geothermal resources, including the
746-24 transportation of oil or gas by pipeline. Nothing in this chapter
746-25 preempts the jurisdiction of the Railroad Commission of Texas under
746-26 Subchapter E, Chapter 121, Utilities Code [Article 6053-1, Revised
76R5 CBH-D 746
747-1 Statutes], and Chapter 117, Natural Resources Code, over pipeline
747-2 transportation of gas and hazardous liquids and over gas and
747-3 hazardous liquid pipeline facilities.
747-4 SECTION 18.40. Section 51.121(e), Natural Resources Code, is
747-5 amended to conform to Chapter 166, Acts of the 75th Legislature,
747-6 Regular Session, 1997, to read as follows:
747-7 (e) Subject to the provisions of Title 2, Utilities Code
747-8 [the Public Utility Regulatory Act (Article 1446c, Vernon's Texas
747-9 Civil Statutes)], any district created by Article XVI, Section 59,
747-10 of the Texas Constitution that leases unsold public school or
747-11 asylum land for power generation through the use of renewable
747-12 energy sources, such as wind, solar, or geothermal energy and other
747-13 sustainable sources, or a district participating in a power
747-14 generation project using renewable energy sources which is located
747-15 on unsold public school or asylum lands may distribute and sell
747-16 electric energy generated on public school or asylum lands within
747-17 or without the boundaries of the district and may issue bonds to
747-18 accomplish such purposes pursuant to Chapter 656, Acts of the 68th
747-19 Legislature, Regular Session, 1983 (Article 717q, Vernon's Texas
747-20 Civil Statutes), or other applicable law. For any such power
747-21 generation project which is located on both public lands and
747-22 private lands, the district may sell outside its boundaries only
747-23 the pro rata portion of the total amount as is generated on the
747-24 public lands. All electric energy generated pursuant to this
747-25 section shall be sold for resale only to utilities authorized to
747-26 make retail sales under Title 2, Utilities Code, [the Public
76R5 CBH-D 747
748-1 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
748-2 Statutes)] and shall be subject to the solicitation process and
748-3 integrated resource planning process authorized by that title
748-4 [Act].
748-5 SECTION 18.41. Section 91.173(2), Natural Resources Code, is
748-6 amended to conform to Chapter 166, Acts of the 75th Legislature,
748-7 Regular Session, 1997, to read as follows:
748-8 (2) "Gas utility" means a gas utility as defined in
748-9 Section 101.003, Utilities Code, or Subchapter A, Chapter 121,
748-10 Utilities Code [Section 3, Public Utility Regulatory Act (Article
748-11 1446c, Vernon's Texas Civil Statutes), or Article 6050, Revised
748-12 Civil Statutes of Texas, 1925, as amended].
748-13 SECTION 18.42. Section 116.002, Natural Resources Code, is
748-14 amended to conform to Chapter 166, Acts of the 75th Legislature,
748-15 Regular Session, 1997, to read as follows:
748-16 Sec. 116.002. EXCEPTIONS. This chapter does not apply to:
748-17 (1) the production, transportation, storage, sale, or
748-18 distribution of natural gas that is not included in the definition
748-19 of compressed natural gas or liquefied natural gas;
748-20 (2) the production, transportation, storage, sale, or
748-21 distribution of natural gas that is subject to commission
748-22 jurisdiction under Subtitle A or B, Title 3, Utilities Code [the
748-23 Gas Utility Regulatory Act (Article 1446e, Revised Statutes) or the
748-24 Cox law (Title 102, Revised Statutes)];
748-25 (3) pipelines, fixtures, and other equipment used in
748-26 the natural gas industry that are not used or designed to be used
76R5 CBH-D 748
749-1 as part of a CNG or LNG system; or
749-2 (4) pipelines, fixtures, equipment, or facilities to
749-3 the extent that they are subject to the safety regulations
749-4 promulgated and enforced by the commission pursuant to Chapter 117,
749-5 Natural Resources Code, or Subchapter E, Chapter 121, Utilities
749-6 Code [Article 6053-1, Revised Statutes].
749-7 SECTION 18.43. Section 116.101, Natural Resources Code, is
749-8 amended to conform to Chapter 166, Acts of the 75th Legislature,
749-9 Regular Session, 1997, to read as follows:
749-10 Sec. 116.101. MALODORANTS. Compressed natural gas must be
749-11 odorized as provided by Subchapter F, Chapter 121, Utilities Code
749-12 [Section 2, Article 6053, Revised Statutes, as amended].
749-13 SECTION 18.44. Section 33.01(13), Penal Code, is amended to
749-14 conform to Chapter 166, Acts of the 75th Legislature, Regular
749-15 Session, 1997, to read as follows:
749-16 (13) "Electric utility" has the meaning assigned by
749-17 Section 31.002, Utilities Code [Subsection (c), Section 3, Public
749-18 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
749-19 Statutes)].
749-20 SECTION 18.45. Section 74.3013(h), Property Code, is amended
749-21 to conform to Chapter 166, Acts of the 75th Legislature, Regular
749-22 Session, 1997, to read as follows:
749-23 (h) In this section, a nonprofit cooperative corporation
749-24 means a cooperative corporation organized under Chapters 51 and 52,
749-25 Agriculture Code, the Texas Non-Profit Corporation Act (Article
749-26 1396-1.01 et seq., Vernon's Texas Civil Statutes), the Cooperative
76R5 CBH-D 749
750-1 Association Act (Article 1396-50.01, Vernon's Texas Civil
750-2 Statutes), and Chapter 161, Utilities Code [the Electric
750-3 Cooperative Corporation Act (Article 1528b, Vernon's Texas Civil
750-4 Statutes)].
750-5 SECTION 18.46. Section 11.30, Tax Code, is amended to
750-6 conform to Chapter 166, Acts of the 75th Legislature, Regular
750-7 Session, 1997, to read as follows:
750-8 Sec. 11.30. NONPROFIT WATER SUPPLY OR WASTEWATER SERVICE
750-9 CORPORATION. A corporation organized under Chapter 67, Water Code
750-10 [76, Acts of the 43rd Legislature, 1st Called Session, 1933
750-11 (Article 1434a, Vernon's Texas Civil Statutes)], that provides in
750-12 the bylaws of the corporation that on dissolution of the
750-13 corporation the assets of the corporation remaining after discharge
750-14 of the corporation's indebtedness shall be transferred to an entity
750-15 that provides a water supply or wastewater service, or both, that
750-16 is exempt from ad valorem taxation is entitled to an exemption from
750-17 taxation of property that the corporation owns and that is
750-18 reasonably necessary for and used in the operation of the
750-19 corporation:
750-20 (1) to acquire, treat, store, transport, sell, or
750-21 distribute water; or
750-22 (2) to provide wastewater service.
750-23 SECTION 18.47. Section 171.065, Tax Code, is amended to
750-24 conform to Chapter 166, Acts of the 75th Legislature, Regular
750-25 Session, 1997, to read as follows:
750-26 Sec. 171.065. EXEMPTION--NONPROFIT CORPORATION ORGANIZED TO
76R5 CBH-D 750
751-1 PROVIDE WATER SUPPLY OR SEWER SERVICES. A nonprofit water supply
751-2 or sewer service corporation organized in behalf of a city or town
751-3 under Chapter 67, Water Code [76, Acts of the 43rd Legislature, 1st
751-4 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
751-5 Statutes)], is exempted from the franchise tax.
751-6 SECTION 18.48. Section 171.079, Tax Code, is amended to
751-7 conform to Chapter 166, Acts of the 75th Legislature, Regular
751-8 Session, 1997, to read as follows:
751-9 Sec. 171.079. EXEMPTION--ELECTRIC COOPERATIVE CORPORATION.
751-10 An electric cooperative corporation incorporated under Chapter 161,
751-11 Utilities Code, [the Electric Cooperative Corporation Act (Article
751-12 1528b, Vernon's Texas Civil Statutes)] that is not a participant in
751-13 a joint powers agency is exempted from the franchise tax.
751-14 SECTION 18.49. Section 171.080, Tax Code, is amended to
751-15 conform to Chapter 166, Acts of the 75th Legislature, Regular
751-16 Session, 1997, to read as follows:
751-17 Sec. 171.080. EXEMPTION--TELEPHONE COOPERATIVE CORPORATIONS.
751-18 A telephone cooperative corporation incorporated under Chapter 162,
751-19 Utilities Code, [the Telephone Cooperative Act (Article 1528c,
751-20 Vernon's Texas Civil Statutes)] is exempted from the franchise tax.
751-21 SECTION 18.50. Section 361.234(d), Transportation Code, is
751-22 amended to conform to Chapter 166, Acts of the 75th Legislature,
751-23 Regular Session, 1997, to read as follows:
751-24 (d) Notwithstanding anything in this chapter to the
751-25 contrary, Subchapter C, Chapter 181, Utilities Code [Chapter 228,
751-26 Acts of the 51st Legislature, Regular Session, 1949 (Article 1436a,
76R5 CBH-D 751
752-1 Vernon's Texas Civil Statutes)], applies to the erection,
752-2 construction, maintenance, and operation of lines and poles owned
752-3 by an electric utility, as that term is defined [a corporation
752-4 described] by Section 181.041, Utilities Code, [1 of that Act]
752-5 over, under, across, on, and along a turnpike project constructed
752-6 by the authority. The authority has the powers and duties
752-7 delegated to the commission by Subchapter C, Chapter 181, Utilities
752-8 Code [Chapter 228, Acts of the 51st Legislature, Regular Session,
752-9 1949 (Article 1436a, Vernon's Texas Civil Statutes)].
752-10 SECTION 18.51. Sections 366.171(d) and (e), Transportation
752-11 Code, are amended to conform to Chapter 166, Acts of the 75th
752-12 Legislature, Regular Session, 1997, to read as follows:
752-13 (d) 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 or system
752-20 constructed by an authority. An authority has the powers and
752-21 duties delegated to the commissioners court by that subchapter
752-22 [Act], and an authority has exclusive jurisdiction and control of
752-23 utilities located in its rights-of-way.
752-24 (e) Subchapter B, Chapter 181, Utilities Code [Chapter 470,
752-25 Acts of the 52nd Legislature, 1951 (Article 1436b, Vernon's Texas
752-26 Civil Statutes)], applies to the laying and maintenance of
76R5 CBH-D 752
753-1 facilities used for conducting gas by a gas utility, as that term
753-2 is defined by Section 181.021, Utilities Code, [person, firm, or
753-3 corporation or municipality described in Section 1 of that Act]
753-4 through, under, along, across, and over a turnpike project or
753-5 system constructed by an authority except as otherwise provided by
753-6 this section. An authority has the power and duties delegated to
753-7 the commissioners court by that subchapter [Act] and an authority
753-8 has exclusive jurisdiction and control of utilities located in its
753-9 right-of-way.
753-10 SECTION 18.52. Section 13.002(24), Water Code, is amended to
753-11 conform to Chapter 166, Acts of the 75th Legislature, Regular
753-12 Session, 1997, to read as follows:
753-13 (24) "Water supply or sewer service corporation" means
753-14 a nonprofit corporation organized and operating under Chapter 67
753-15 [76, Acts of the 43rd Legislature, 1st Called Session, 1933
753-16 (Article 1434a, Vernon's Texas Civil Statutes)] that provides
753-17 potable water service or sewer service for compensation and that
753-18 has adopted and is operating in accordance with by-laws or articles
753-19 of incorporation which ensure that it is member-owned and
753-20 member-controlled. The term does not include a corporation that
753-21 provides retail water or sewer service to a person who is not a
753-22 member, except that the corporation may provide retail water or
753-23 sewer service to a person who is not a member if the person only
753-24 builds on or develops property to sell to another and the service
753-25 is provided on an interim basis before the property is sold.
753-26 SECTION 18.53. Section 13.043(b), Water Code, is amended to
76R5 CBH-D 753
754-1 conform to Chapter 166, Acts of the 75th Legislature, Regular
754-2 Session, 1997, to read as follows:
754-3 (b) Ratepayers of the following entities may appeal the
754-4 decision of the governing body of the entity affecting their water,
754-5 drainage, or sewer rates to the commission:
754-6 (1) a nonprofit water supply or sewer service
754-7 corporation created and operating under Chapter 67 [76, Acts of the
754-8 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
754-9 Texas Civil Statutes)];
754-10 (2) a utility under the jurisdiction of a municipality
754-11 inside the corporate limits of the municipality;
754-12 (3) a municipally owned utility, if the ratepayers
754-13 reside outside the corporate limits of the municipality;
754-14 (4) a district or authority created under Article III,
754-15 Section 52, or Article XVI, Section 59, of the Texas Constitution
754-16 that provides water or sewer service to household users; and
754-17 (5) a utility owned by an affected county, if the
754-18 ratepayer's rates are actually or may be adversely affected. For
754-19 the purposes of this section ratepayers who reside outside the
754-20 boundaries of the district or authority shall be considered a
754-21 separate class from ratepayers who reside inside those boundaries.
754-22 SECTION 18.54. Section 15.001(5), Water Code, is amended to
754-23 conform to Chapter 166, Acts of the 75th Legislature, Regular
754-24 Session, 1997, to read as follows:
754-25 (5) "Political subdivision" means a city, county,
754-26 district or authority created under Article III, Section 52, or
76R5 CBH-D 754
755-1 Article XVI, Section 59, of the Texas Constitution, any other
755-2 political subdivision of the state, any interstate compact
755-3 commission to which the state is a party, and any nonprofit water
755-4 supply corporation created and operating under Chapter 67 [76, Acts
755-5 of the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
755-6 Vernon's Texas Civil Statutes)].
755-7 SECTION 18.55. Section 15.201(5), Water Code, is amended to
755-8 conform to Chapter 166, Acts of the 75th Legislature, Regular
755-9 Session, 1997, to read as follows:
755-10 (5) "Water supply corporation" means a nonprofit water
755-11 supply corporation created and operating under Chapter 67 [76, Acts
755-12 of the 43rd Legislature, 1st Called Session, 1933 (Article 1434a,
755-13 Vernon's Texas Civil Statutes)].
755-14 SECTION 18.56. Section 15.602(8), Water Code, is amended to
755-15 conform to Chapter 166, Acts of the 75th Legislature, Regular
755-16 Session, 1997, to read as follows:
755-17 (8) "Political subdivision" means a municipality,
755-18 intermunicipal, interstate, or state agency, any other public
755-19 entity eligible for assistance under this subchapter, or a
755-20 nonprofit water supply corporation created and operating under
755-21 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
755-22 1933 (Article 1434a, Vernon's Texas Civil Statutes)], if such
755-23 entity is eligible for financial assistance under federal law
755-24 establishing the state revolving fund or an additional state
755-25 revolving fund.
755-26 SECTION 18.57. Section 15.731(4), Water Code, is amended to
76R5 CBH-D 755
756-1 conform to Chapter 166, Acts of the 75th Legislature, Regular
756-2 Session, 1997, to read as follows:
756-3 (4) "Political subdivision" means a county, a
756-4 municipality, a nonprofit member-owned, member-controlled water
756-5 supply corporation organized and operating under Chapter 67 [76,
756-6 Acts of the 43rd Legislature, 1st Called Session, 1933 (Article
756-7 1434a, Vernon's Texas Civil Statutes)], or a district or authority
756-8 created and operating under Article III, Section 52, or Article
756-9 XVI, Section 59, of the Texas Constitution.
756-10 SECTION 18.58. Section 16.001(7), Water Code, is amended to
756-11 conform to Chapter 166, Acts of the 75th Legislature, Regular
756-12 Session, 1997, to read as follows:
756-13 (7) "Political subdivision" means a county, city, or
756-14 other body politic or corporate of the state, including any
756-15 district or authority created under Article III, Section 52 or
756-16 Article XVI, Section 59 of the Texas Constitution and including any
756-17 interstate compact commission to which the state is a party and any
756-18 nonprofit water supply corporation created and operating under
756-19 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
756-20 1933 (Article 1434a, Vernon's Texas Civil Statutes)].
756-21 SECTION 18.59. Section 16.341(3), Water Code, is amended to
756-22 conform to Chapter 166, Acts of the 75th Legislature, Regular
756-23 Session, 1997, to read as follows:
756-24 (3) "Political subdivision" means an affected county,
756-25 a municipality located in an affected county, a district or
756-26 authority created under Article III, Section 52, or Article XVI,
76R5 CBH-D 756
757-1 Section 59, of the Texas Constitution, located in an affected
757-2 county, or a nonprofit water supply corporation created and
757-3 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
757-4 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
757-5 Statutes)], located in an affected county, that receives funds for
757-6 facility engineering under Section 15.407 [of this code] or
757-7 financial assistance under Subchapter K, Chapter 17, [of this code]
757-8 or an economically distressed area in an affected county for which
757-9 financial assistance is received under Subchapter C, Chapter 15[,
757-10 of this code].
757-11 SECTION 18.60. Section 17.852(4), Water Code, is amended to
757-12 conform to Chapter 166, Acts of the 75th Legislature, Regular
757-13 Session, 1997, to read as follows:
757-14 (4) "Participant" means a political subdivision or
757-15 agency of the state or a nonprofit corporation organized pursuant
757-16 to Chapter 67 [76, Acts of the 43rd Legislature, 1st Called
757-17 Session, 1933 (Article 1434a, Vernon's Texas Civil Statutes)], that
757-18 is authorized to finance projects.
757-19 SECTION 18.61. Section 17.853(c), Water Code, is amended to
757-20 conform to Chapter 166, Acts of the 75th Legislature, Regular
757-21 Session, 1997, to read as follows:
757-22 (c) The board may use the fund only:
757-23 (1) to provide state matching funds for federal funds
757-24 provided to the state water pollution control revolving fund or to
757-25 any additional state revolving fund created under Subchapter J,
757-26 [of] Chapter 15 [of this code];
76R5 CBH-D 757
758-1 (2) to provide financial assistance from the proceeds
758-2 of taxable bond issues to water supply corporations organized under
758-3 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
758-4 1933 (Article 1434a, Vernon's Texas Civil Statutes)], and other
758-5 participants;
758-6 (3) to provide financial assistance to participants
758-7 for the construction of water supply projects and treatment works;
758-8 (4) to provide financial assistance for an interim
758-9 construction period to participants for projects for which the
758-10 board will provide long-term financing through the water
758-11 development fund; and
758-12 (5) to provide financial assistance for water supply
758-13 and sewer service projects in economically distressed areas as
758-14 provided by Subchapter K, [of] Chapter 17, [of this code] to the
758-15 extent the board can make that assistance without adversely
758-16 affecting the current or future integrity of the fund or of any
758-17 other financial assistance program of the board.
758-18 SECTION 18.62. Section 17.921(3), Water Code, is amended to
758-19 conform to Chapter 166, Acts of the 75th Legislature, Regular
758-20 Session, 1997, to read as follows:
758-21 (3) "Political subdivision" means a county,
758-22 municipality, a nonprofit water supply corporation created and
758-23 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
758-24 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
758-25 Statutes)], or district or authority created under Article III,
758-26 Section 52, or Article XVI, Section 59, of the Texas Constitution.
76R5 CBH-D 758
759-1 SECTION 18.63. Section 20.002(7), Water Code, is amended to
759-2 conform to Chapter 166, Acts of the 75th Legislature, Regular
759-3 Session, 1997, to read as follows:
759-4 (7) "Political subdivision" means a city, county, or
759-5 other body politic or corporate of the state, including any
759-6 district or authority created under Article III, Section 52, or
759-7 Article XVI, Section 59, of the Texas Constitution, a state agency,
759-8 an entity created by an interstate compact to which the state is a
759-9 party, and any nonprofit water supply corporation created and
759-10 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
759-11 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
759-12 Statutes)].
759-13 SECTION 18.64. Section 26.344(d), Water Code, is amended to
759-14 conform to Chapter 166, Acts of the 75th Legislature, Regular
759-15 Session, 1997, to read as follows:
759-16 (d) An intrastate pipeline facility or an aboveground
759-17 storage tank connected to such a facility is exempt from regulation
759-18 under this subchapter if the pipeline facility is regulated under
759-19 one of the following state laws:
759-20 (1) Chapter 111, Natural Resources Code;
759-21 (2) Chapter 117, Natural Resources Code; or
759-22 (3) Subchapter E, Chapter 121, Utilities Code
759-23 [Articles 6053-1 and 6053-2, Revised Statutes].
759-24 SECTION 18.65. Section 36.001(15), Water Code, is amended to
759-25 conform to Chapter 166, Acts of the 75th Legislature, Regular
759-26 Session, 1997, to read as follows:
76R5 CBH-D 759
760-1 (15) "Political subdivision" means a county,
760-2 municipality, or other body politic or corporate of the state,
760-3 including a district or authority created under Section 52, Article
760-4 III, or Section 59, Article XVI, Texas Constitution, a state
760-5 agency, or a nonprofit water supply corporation created under
760-6 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
760-7 1933 (Article 1434a, Vernon's Texas Civil Statutes)].
760-8 SECTION 18.66. Section 49.001(5), Water Code, is amended to
760-9 conform to Chapter 166, Acts of the 75th Legislature, Regular
760-10 Session, 1997, to read as follows:
760-11 (5) "Water supply corporation" means a nonprofit water
760-12 supply or sewer service corporation created or operating under
760-13 Chapter 67 [76, Acts of the 43rd Legislature, 1st Called Session,
760-14 1933 (Article 1434a, Vernon's Texas Civil Statutes)].
760-15 SECTION 18.67. Section 65.001(10), Water Code, is amended to
760-16 conform to Chapter 166, Acts of the 75th Legislature, Regular
760-17 Session, 1997, to read as follows:
760-18 (10) "Water supply corporation" means any
760-19 member-owned, consumer-owned water supply corporation created and
760-20 operating under Chapter 67 [76, Acts of the 43rd Legislature, 1st
760-21 Called Session, 1933 (Article 1434a, Vernon's Texas Civil
760-22 Statutes)], that:
760-23 (A) provides water supply services to
760-24 noncontiguous subdivisions in two or more counties, at least one of
760-25 which counties has a population greater than two million; or
760-26 (B) on or before January 1, 1985, was providing
76R5 CBH-D 760
761-1 the services of a water supply corporation under a certificate of
761-2 convenience and necessity issued by the Public Utility Commission
761-3 of Texas.
761-4 SECTION 18.68. The following are repealed:
761-5 (1) Chapter 1212, Acts of the 75th Legislature,
761-6 Regular Session, 1997; and
761-7 (2) Sections 21.55, 21.56, and 21.57, Chapter 1423,
761-8 Acts of the 75th Legislature, Regular Session, 1997.
761-9 ARTICLE 19. RENUMBERING
761-10 SECTION 19.01. The following provisions of enacted codes are
761-11 renumbered or relettered and appropriate cross-references are
761-12 changed to eliminate duplicate citations or to relocate misplaced
761-13 provisions:
761-14 (1) Chapter 151, Agriculture Code, as added by Chapter
761-15 780, Acts of the 75th Legislature, Regular Session, 1997, is
761-16 renumbered as Chapter 152, Agriculture Code, and Sections 151.001
761-17 and 151.002, Agriculture Code, as added by that Act, are renumbered
761-18 as Sections 152.001 and 152.002, Agriculture Code, respectively.
761-19 (2) Section 161.053, Agriculture Code, as added by
761-20 Chapter 31, Acts of the 74th Legislature, Regular Session, 1995, is
761-21 renumbered as Section 161.057, Agriculture Code.
761-22 (3) Chapter 11, Civil Practice and Remedies Code, as
761-23 added by Chapter 189, Acts of the 75th Legislature, Regular
761-24 Session, 1997, is renumbered as Chapter 12, Civil Practice and
761-25 Remedies Code, and Sections 11.001, 11.002, 11.003, 11.004, 11.005,
761-26 11.006, and 11.007, Civil Practice and Remedies Code, as added by
76R5 DWS-D 761
762-1 that Act, are renumbered as Sections 12.001, 12.002, 12.003,
762-2 12.004, 12.005, 12.006, and 12.007, Civil Practice and Remedies
762-3 Code, respectively.
762-4 (4) Section 63.006, Civil Practice and Remedies Code,
762-5 as added by Chapter 1409, Acts of the 75th Legislature, Regular
762-6 Session, 1997, is renumbered as Section 63.007, Civil Practice and
762-7 Remedies Code.
762-8 (5) Chapter 88, Civil Practice and Remedies Code, as
762-9 added by Chapter 662, Acts of the 75th Legislature, Regular
762-10 Session, 1997, is renumbered as Chapter 89, Civil Practice and
762-11 Remedies Code, and Sections 88.001, 88.002, and 88.003, Civil
762-12 Practice and Remedies Code, as added by that Act, are renumbered as
762-13 Sections 89.001, 89.002, and 89.003, Civil Practice and Remedies
762-14 Code, respectively.
762-15 (6) Article 13.26, Code of Criminal Procedure, as
762-16 added by Chapter 189, Acts of the 75th Legislature, Regular
762-17 Session, 1997, is renumbered as Article 13.27, Code of Criminal
762-18 Procedure.
762-19 (7) Subsection (h), Section 3, Article 37.07, Code of
762-20 Criminal Procedure, as added by Chapter 1086, Acts of the 75th
762-21 Legislature, Regular Session, 1997, is relettered as Subsection
762-22 (i), Section 3, Article 37.07, Code of Criminal Procedure.
762-23 (8)(A) Chapter 62, Code of Criminal Procedure, as
762-24 transferred by Chapter 1427, Acts of the 75th Legislature, Regular
762-25 Session, 1997, is renumbered as Chapter 63, Code of Criminal
762-26 Procedure, and Articles 62.001, 62.002, 62.003, 62.004, 62.005,
76R5 DWS-D 762
763-1 62.006, 62.007, 62.008, 62.009, 62.010, 62.011, 62.012, 62.013,
763-2 62.014, 62.015, 62.016, 62.017, and 62.018, Code of Criminal
763-3 Procedure, as transferred by that Act, are renumbered as Articles
763-4 63.001, 63.002, 63.003, 63.004, 63.005, 63.006, 63.007, 63.008,
763-5 63.009, 63.010, 63.011, 63.012, 63.013, 63.014, 63.015, 63.016,
763-6 63.017, and 63.018, Code of Criminal Procedure, respectively.
763-7 (B) Sections 79.017, 79.018, 79.019, and 79.020,
763-8 Human Resources Code, as added by Chapter 1084, Acts of the 75th
763-9 Legislature, Regular Session, 1997, are renumbered as Articles
763-10 63.019, 63.020, 63.021, and 63.022, Code of Criminal Procedure,
763-11 respectively.
763-12 (C) Sections 79.017 and 79.018, Human Resources
763-13 Code, as added by Chapter 1376, Acts of the 75th Legislature,
763-14 Regular Session, 1997, are renumbered as Articles 63.023 and
763-15 63.024, Code of Criminal Procedure, respectively.
763-16 (9) Subchapter S, Chapter 51, Education Code, as added
763-17 by Chapter 1179, Acts of the 75th Legislature, Regular Session,
763-18 1997, is relettered as Subchapter T, Chapter 51, Education Code.
763-19 (10) Subchapter S, Chapter 51, Education Code, as
763-20 added by Chapter 155, Acts of the 75th Legislature, Regular
763-21 Session, 1997, is relettered as Subchapter U, Chapter 51, Education
763-22 Code.
763-23 (11) Section 54.212, Education Code, as added by
763-24 Chapter 327, Acts of the 74th Legislature, Regular Session, 1995,
763-25 is renumbered as Section 54.217, Education Code.
763-26 (12) Section 54.214, Education Code, as added by
76R5 DWS-D 763
764-1 Chapter 1073, Acts of the 75th Legislature, Regular Session, 1997,
764-2 is renumbered as Section 54.218, Education Code.
764-3 (13) Section 58.009, Education Code, as added by
764-4 Chapter 787, Acts of the 75th Legislature, Regular Session, 1997,
764-5 is renumbered as Section 58.010, Education Code.
764-6 (14) Subchapter G, Chapter 88, Education Code, as
764-7 added by Chapter 292, Acts of the 74th Legislature, Regular
764-8 Session, 1995, is relettered as Subchapter H, Chapter 88, Education
764-9 Code.
764-10 (15) Subsection (c), Section 41.001, Election Code, as
764-11 added by Chapter 1219, Acts of the 75th Legislature, Regular
764-12 Session, 1997, is relettered as Subsection (d), Section 41.001,
764-13 Election Code.
764-14 (16) Chapter 105, Election Code, as added by Chapter
764-15 842, Acts of the 75th Legislature, Regular Session, 1997, is
764-16 renumbered as Chapter 106, Election Code, and Sections 105.001 and
764-17 105.002, Election Code, as added by that Act, are renumbered as
764-18 Sections 106.001 and 106.002, Election Code, respectively.
764-19 (17) Subsection (g), Section 53.03, Family Code, as
764-20 added by Chapter 593, Acts of the 75th Legislature, Regular
764-21 Session, 1997, is relettered as Subsection (h), Section 53.03,
764-22 Family Code.
764-23 (18) Subsection (f), Section 54.042, Family Code, as
764-24 added by Chapter 1013, Acts of the 75th Legislature, Regular
764-25 Session, 1997, is relettered as Subsection (h), Section 54.042,
764-26 Family Code.
76R5 DWS-D 764
765-1 (19) Section 54.046, Family Code, as added by Chapter
765-2 1013, Acts of the 75th Legislature, Regular Session, 1997, is
765-3 renumbered as Section 54.047, Family Code.
765-4 (20) Subsection (m), Section 58.003, Family Code, as
765-5 added by Chapter 1086, Acts of the 75th Legislature, Regular
765-6 Session, 1997, is relettered as Subsection (n), Section 58.003,
765-7 Family Code.
765-8 (21) Subsection (f), Section 105.006, Family Code, as
765-9 added by Chapter 786, Acts of the 75th Legislature, Regular
765-10 Session, 1997, is relettered as Subsection (h), Section 105.006,
765-11 Family Code.
765-12 (22) Subsection (c), Section 231.101, Family Code, as
765-13 added by Chapter 702, Acts of the 75th Legislature, Regular
765-14 Session, 1997, is relettered as Subsection (e), Section 231.101,
765-15 Family Code.
765-16 (23) Section 231.115, Family Code, as added by Chapter
765-17 165, Acts of the 75th Legislature, Regular Session, 1997, is
765-18 renumbered as Section 231.117, Family Code.
765-19 (24) Chapter 233, Family Code, as added by Chapter
765-20 420, Acts of the 75th Legislature, Regular Session, 1997, is
765-21 renumbered as Chapter 235, Family Code, and Sections 233.001,
765-22 233.002, 233.003, and 233.004, Family Code, as added by that Act,
765-23 are renumbered as Sections 235.001, 235.002, 235.003, and 235.004,
765-24 Family Code, respectively.
765-25 (25) Chapter 234, Family Code, as added by Chapter
765-26 420, Acts of the 75th Legislature, Regular Session, 1997, is
76R5 DWS-D 765
766-1 renumbered as Chapter 236, Family Code, and Sections 234.001,
766-2 234.002, and 234.003, Family Code, as added by that Act, are
766-3 renumbered as Sections 236.001, 236.002, and 236.003, Family Code,
766-4 respectively.
766-5 (26) Subdivision (7), Section 261.001, Family Code, as
766-6 added by Chapter 575, Acts of the 75th Legislature, Regular
766-7 Session, 1997, is renumbered as Subdivision (8), Section 261.001,
766-8 Family Code.
766-9 (27) Section 261.315, Family Code, as added by Chapter
766-10 575, Acts of the 75th Legislature, Regular Session, 1997, is
766-11 renumbered as Section 261.316, Family Code.
766-12 (28) Subchapter J, Chapter 51, Government Code, as
766-13 added by Chapter 699, Acts of the 75th Legislature, Regular
766-14 Session, 1997, is relettered as Subchapter L, Chapter 51,
766-15 Government Code, and Sections 51.901, 51.902, and 51.903,
766-16 Government Code, as added by that Act, are renumbered as Sections
766-17 51.941, 51.942, and 51.943, Government Code, respectively.
766-18 (29) Subsection (f), Section 76.006, Government Code,
766-19 as added by Chapter 1240, Acts of the 75th Legislature, Regular
766-20 Session, 1997, is relettered as Subsection (g), Section 76.006,
766-21 Government Code.
766-22 (30) Section 403.026, Government Code, as added by
766-23 Chapter 1252, Acts of the 75th Legislature, Regular Session, 1997,
766-24 is renumbered as Section 403.0221, Government Code.
766-25 (31) Section 403.026, Government Code, as added by
766-26 Chapter 167, Acts of the 75th Legislature, Regular Session, 1997,
76R5 DWS-D 766
767-1 is renumbered as Section 403.0231, Government Code.
767-2 (32) Section 403.026, Government Code, as added by
767-3 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
767-4 is renumbered as Section 403.028, Government Code.
767-5 (33) Section 411.132, Government Code, as added by
767-6 Chapter 18, Acts of the 75th Legislature, Regular Session, 1997, is
767-7 renumbered as Section 411.1105, Government Code.
767-8 (34) Section 411.132, Government Code, as added by
767-9 Chapter 320, Acts of the 75th Legislature, Regular Session, 1997,
767-10 is renumbered as Section 411.1141, Government Code.
767-11 (35) Section 411.132, Government Code, as added by
767-12 Chapter 923, Acts of the 75th Legislature, Regular Session, 1997,
767-13 is renumbered as Section 411.1142, Government Code.
767-14 (36) Section 411.132, Government Code, as added by
767-15 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
767-16 is renumbered as Section 411.1143, Government Code.
767-17 (37) Section 411.132, Government Code, as added by
767-18 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
767-19 is renumbered as Section 411.133, Government Code.
767-20 (38) Section 411.132, Government Code, as added by
767-21 Chapter 1366, Acts of the 75th Legislature, Regular Session, 1997,
767-22 is renumbered as Section 411.134, Government Code.
767-23 (39) Section 411.135, Government Code, as added by
767-24 Chapter 440, Acts of the 75th Legislature, Regular Session, 1997,
767-25 is renumbered as Section 411.1005, Government Code.
767-26 (40) Subchapter L, Chapter 441, Government Code, as
76R5 DWS-D 767
768-1 added by Chapter 250, Acts of the 75th Legislature, Regular
768-2 Session, 1997, is relettered as Subchapter M, Chapter 441,
768-3 Government Code, and Sections 441.201, 441.202, 441.203, 441.204,
768-4 441.205, 441.206, 441.207, 441.208, 441.209, and 441.210,
768-5 Government Code, as added by that Act, are renumbered as Sections
768-6 441.221, 441.222, 441.223, 441.224, 441.225, 441.226, 441.227,
768-7 441.228, 441.229, and 441.230, Government Code, respectively.
768-8 (41) Subchapter L, Chapter 441, Government Code, as
768-9 added by Chapter 872, Acts of the 75th Legislature, Regular
768-10 Session, 1997, is relettered as Subchapter N, Chapter 441,
768-11 Government Code, and Sections 441.201, 441.202, 441.203, 441.204,
768-12 441.205, and 441.206, Government Code, as added by that Act, are
768-13 renumbered as Sections 441.241, 441.242, 441.243, 441.244, 441.245,
768-14 and 441.246, Government Code, respectively.
768-15 (42) Section 443.015, Government Code, as added by
768-16 Chapter 1141, Acts of the 75th Legislature, Regular Session, 1997,
768-17 is renumbered as Section 443.024, Government Code.
768-18 (43) Section 493.0052, Government Code, as added by
768-19 Chapter 1360, Acts of the 75th Legislature, Regular Session, 1997,
768-20 is renumbered as Section 493.0053, Government Code.
768-21 (44) Section 493.0082, Government Code, as added by
768-22 Chapter 1360, Acts of the 75th Legislature, Regular Session, 1997,
768-23 is renumbered as Section 493.0083, Government Code.
768-24 (45) Section 501.061, Government Code, as added by
768-25 Chapter 257, Acts of the 75th Legislature, Regular Session, 1997,
768-26 is renumbered as Section 501.063, Government Code.
76R5 DWS-D 768
769-1 (46) Section 531.0215, Government Code, as added by
769-2 Chapter 1244, Acts of the 75th Legislature, Regular Session, 1997,
769-3 is renumbered as Section 531.0216, Government Code.
769-4 (47) Section 531.047, Government Code, as added by
769-5 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
769-6 is renumbered as Section 531.050, Government Code.
769-7 (48) Section 531.047, Government Code, as added by
769-8 Chapter 1251, Acts of the 75th Legislature, Regular Session, 1997,
769-9 is renumbered as Section 531.0217, Government Code.
769-10 (49) Section 532.112, Government Code, as added by
769-11 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
769-12 is renumbered as Section 532.114, Government Code.
769-13 (50) Section 551.126, Government Code, as added by
769-14 Chapter 1038, Acts of the 75th Legislature, Regular Session, 1997,
769-15 is renumbered as Section 551.127, Government Code.
769-16 (51) Section 552.127, Government Code, as added by
769-17 Chapter 1227, Acts of the 75th Legislature, Regular Session, 1997,
769-18 is renumbered as Section 552.128, Government Code.
769-19 (52) Section 552.127, Government Code, as added by
769-20 Chapter 1069, Acts of the 75th Legislature, Regular Session, 1997,
769-21 is renumbered as Section 552.129, Government Code.
769-22 (53) Section 612.004, Government Code, as added by
769-23 Chapter 760, Acts of the 75th Legislature, Regular Session, 1997,
769-24 is renumbered as Section 612.005, Government Code.
769-25 (54) Section 824.1012, Government Code, as added by
769-26 Chapter 401, Acts of the 75th Legislature, Regular Session, 1997,
76R5 DWS-D 769
770-1 is renumbered as Section 824.1013, Government Code.
770-2 (55) Chapter 2008, Government Code, as added by
770-3 Chapter 934, Acts of the 75th Legislature, Regular Session, 1997,
770-4 is renumbered as Chapter 2009, Government Code, and Sections
770-5 2008.001, 2008.002, 2008.003, 2008.004, 2008.005, 2008.051,
770-6 2008.052, 2008.053, 2008.054, and 2008.055, Government Code, as
770-7 added by that Act, are renumbered as Sections 2009.001, 2009.002,
770-8 2009.003, 2009.004, 2009.005, 2009.051, 2009.052, 2009.053,
770-9 2009.054, and 2009.055, Government Code, respectively.
770-10 (56) Section 2054.060, Government Code, as added by
770-11 Chapter 538, Acts of the 75th Legislature, Regular Session, 1997,
770-12 is renumbered as Section 2054.057, Government Code.
770-13 (57) Section 2155.074, Government Code, as added by
770-14 Chapter 508, Acts of the 75th Legislature, Regular Session, 1997,
770-15 is renumbered as Section 2155.083, Government Code.
770-16 (58) Section 2155.144, Government Code, as added by
770-17 Chapter 165, Acts of the 75th Legislature, Regular Session, 1997,
770-18 is renumbered as Section 2155.1441, Government Code.
770-19 (59) Subchapter Y, Chapter 2306, Government Code, as
770-20 added by Chapter 978, Acts of the 74th Legislature, Regular
770-21 Session, 1995, is relettered as Subchapter AA, Chapter 2306,
770-22 Government Code.
770-23 (60) Subchapter AA, Chapter 2306, Government Code, as
770-24 added by Chapter 980, Acts of the 75th Legislature, Regular
770-25 Session, 1997, is relettered as Subchapter CC, Chapter 2306,
770-26 Government Code.
76R5 DWS-D 770
771-1 (61) Subchapter BB, Chapter 2306, Government Code, as
771-2 added by Chapter 980, Acts of the 75th Legislature, Regular
771-3 Session, 1997, is relettered as Subchapter DD, Chapter 2306,
771-4 Government Code.
771-5 (62) Section 12.020, Health and Safety Code, as added
771-6 by Chapter 647, Acts of the 75th Legislature, Regular Session,
771-7 1997, is renumbered as Section 12.0122, Health and Safety Code.
771-8 (63) Subchapter E, Chapter 106, Health and Safety
771-9 Code, as added by Chapter 644, Acts of the 75th Legislature,
771-10 Regular Session, 1997, is relettered as Subchapter F, Chapter 106,
771-11 Health and Safety Code, and Sections 106.101, 106.102, 106.103,
771-12 106.104, 106.105, and 106.106, Health and Safety Code, as added by
771-13 that Act, are renumbered as Sections 106.151, 106.152, 106.153,
771-14 106.154, 106.155, and 106.156, Health and Safety Code,
771-15 respectively.
771-16 (64) Subchapter N, Chapter 161, Health and Safety
771-17 Code, as added by Chapter 1216, Acts of the 75th Legislature,
771-18 Regular Session, 1997, is relettered as Subchapter P, Chapter 161,
771-19 Health and Safety Code, and Sections 161.251, 161.252, 161.253,
771-20 161.254, and 161.255, Health and Safety Code, as added by that Act,
771-21 are renumbered as Sections 161.351, 161.352, 161.353, 161.354, and
771-22 161.355, Health and Safety Code, respectively.
771-23 (65) Section 245.017, Health and Safety Code, as added
771-24 by Chapter 1120, Acts of the 75th Legislature, Regular Session,
771-25 1997, is renumbered as Section 245.023, Health and Safety Code.
771-26 (66) Section 247.029, Health and Safety Code, as added
76R5 DWS-D 771
772-1 by Chapter 1088, Acts of the 75th Legislature, Regular Session,
772-2 1997, is renumbered as Section 247.030, Health and Safety Code.
772-3 (67) Section 361.116, Health and Safety Code, as added
772-4 by Chapter 276, Acts of the 75th Legislature, Regular Session,
772-5 1997, is renumbered as Section 361.117, Health and Safety Code.
772-6 (68) Subsection (d), Section 461.012, Health and
772-7 Safety Code, as added by Chapter 825, Acts of the 75th Legislature,
772-8 Regular Session, 1997, is relettered as Subsection (f), Section
772-9 461.012, Health and Safety Code.
772-10 (69) Section 22.0291, Human Resources Code, as added
772-11 by Chapter 1153, Acts of the 75th Legislature, Regular Session,
772-12 1997, is renumbered as Section 22.0292, Human Resources Code.
772-13 (70) Section 22.032, Human Resources Code, as added by
772-14 Chapter 1094, Acts of the 75th Legislature, Regular Session, 1997,
772-15 is renumbered as Section 22.0325, Human Resources Code.
772-16 (71) Section 31.0321, Human Resources Code, as added
772-17 by Chapter 1442, Acts of the 75th Legislature, Regular Session,
772-18 1997, is renumbered as Section 31.0322, Human Resources Code.
772-19 (72) Section 31.043, Human Resources Code, as added by
772-20 Chapters 322 and 458, Acts of the 75th Legislature, Regular
772-21 Session, 1997, is renumbered as Section 31.044, Human Resources
772-22 Code.
772-23 (73) Section 32.0246, Human Resources Code, as added
772-24 by Chapter 555, Acts of the 75th Legislature, Regular Session,
772-25 1997, is renumbered as Section 32.0244, Human Resources Code.
772-26 (74) Section 32.043, Human Resources Code, as added by
76R5 DWS-D 772
773-1 Chapter 618, Acts of the 75th Legislature, Regular Session, 1997,
773-2 is renumbered as Section 32.048, Human Resources Code.
773-3 (75) Section 32.043, Human Resources Code, as added by
773-4 Chapter 692, Acts of the 75th Legislature, Regular Session, 1997,
773-5 is renumbered as Section 32.049, Human Resources Code.
773-6 (76) Section 32.043, Human Resources Code, as added by
773-7 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
773-8 is renumbered as Section 32.050, Human Resources Code.
773-9 (77) Section 32.044, Human Resources Code, as added by
773-10 Chapter 1153, Acts of the 75th Legislature, Regular Session, 1997,
773-11 is renumbered as Section 32.051, Human Resources Code.
773-12 (78) Section 33.012, Human Resources Code, as added by
773-13 Chapter 456, Acts of the 75th Legislature, Regular Session, 1997,
773-14 is renumbered as Section 33.0125, Human Resources Code.
773-15 (79) Section 40.0563, Human Resources Code, as added
773-16 by Chapter 1022, Acts of the 75th Legislature, Regular Session,
773-17 1997, is renumbered as Section 40.0566, Human Resources Code.
773-18 (80) Section 61.051, Human Resources Code, as added by
773-19 Chapter 1093, Acts of the 75th Legislature, Regular Session, 1997,
773-20 is renumbered as Section 61.054, Human Resources Code.
773-21 (81) Section 301.067, Labor Code, as added by Chapter
773-22 228, Acts of the 75th Legislature, Regular Session, 1997, is
773-23 renumbered as Section 301.0671, Labor Code.
773-24 (82) Section 301.067, Labor Code, as added by Chapter
773-25 456, Acts of the 75th Legislature, Regular Session, 1997, is
773-26 renumbered as Section 301.0672, Labor Code.
76R5 DWS-D 773
774-1 (83) Section 302.003, Labor Code, as added by Chapter
774-2 684, Acts of the 75th Legislature, Regular Session, 1997, is
774-3 renumbered as Section 302.005, Labor Code.
774-4 (84) Section 51.002, Local Government Code, is
774-5 renumbered as Section 215.005, Local Government Code.
774-6 (85) Subsection (d), Section 262.030, Local Government
774-7 Code, as added by Chapter 746, Acts of the 74th Legislature,
774-8 Regular Session, 1995, is relettered as Subsection (e), Section
774-9 262.030, Local Government Code.
774-10 (86) Subchapter D, Chapter 376, Local Government Code,
774-11 as added by Chapter 275, Acts of the 75th Legislature, Regular
774-12 Session, 1997, is relettered as Subchapter E, Chapter 376, Local
774-13 Government Code, and Sections 376.121, 376.122, 376.123, 376.124,
774-14 376.125, 376.126, 376.127, 376.128, 376.129, 376.130, 376.131,
774-15 376.132, 376.133, 376.134, 376.135, 376.136, 376.137, 376.138,
774-16 376.139, and 376.140, Local Government Code, as added by that Act,
774-17 are renumbered as Sections 376.151, 376.152, 376.153, 376.154,
774-18 376.155, 376.156, 376.157, 376.158, 376.159, 376.160, 376.161,
774-19 376.162, 376.163, 376.164, 376.165, 376.166, 376.167, 376.168,
774-20 376.169, and 376.170, Local Government Code, respectively.
774-21 (87) Section 402.906, Local Government Code, as added
774-22 by Chapter 171, Acts of the 75th Legislature, Regular Session,
774-23 1997, is renumbered as Section 402.907, Local Government Code.
774-24 (88) Section 32.49, Penal Code, as added by Chapter
774-25 730, Acts of the 75th Legislature, Regular Session, 1997, is
774-26 renumbered as Section 32.50, Penal Code.
76R5 DWS-D 774
775-1 (89) Section 5.010, Property Code, as added by Chapter
775-2 1239, Acts of the 75th Legislature, Regular Session, 1997, is
775-3 renumbered as Section 5.011, Property Code.
775-4 (90) Subsection (f), Section 74.705, Property Code, as
775-5 added by Chapter 888, Acts of the 75th Legislature, Regular
775-6 Session, 1997, is relettered as Subsection (g), Section 74.705,
775-7 Property Code.
775-8 (91) Section 25, Chapter 141, Property Code, as added
775-9 by Chapter 221, Acts of the 75th Legislature, Regular Session,
775-10 1997, is renumbered as Section 141.025, Property Code.
775-11 (92) Subsection (r), Section 151.318, Tax Code, as
775-12 added by Chapter 1040, Acts of the 75th Legislature, Regular
775-13 Session, 1997, is relettered as Subsection (t), Section 151.318,
775-14 Tax Code.
775-15 (93) Section 201.610, Transportation Code, as added by
775-16 Chapter 165, Acts of the 75th Legislature, Regular Session, 1997,
775-17 is renumbered as Section 201.612, Transportation Code.
775-18 (94) Section 201.905, Transportation Code, as added by
775-19 Chapter 1171, Acts of the 75th Legislature, Regular Session, 1997,
775-20 is renumbered as Section 201.906, Transportation Code.
775-21 (95) Section 225.034, Transportation Code, as added by
775-22 Chapter 44, Acts of the 75th Legislature, Regular Session, 1997, is
775-23 renumbered as Section 225.036, Transportation Code.
775-24 (96) Section 225.034, Transportation Code, as added by
775-25 Chapter 57, Acts of the 75th Legislature, Regular Session, 1997, is
775-26 renumbered as Section 225.037, Transportation Code.
76R5 DWS-D 775
776-1 (97) Section 225.034, Transportation Code, as added by
776-2 Chapter 190, Acts of the 75th Legislature, Regular Session, 1997,
776-3 is renumbered as Section 225.038, Transportation Code.
776-4 (98) Section 225.034, Transportation Code, as added by
776-5 Chapter 519, Acts of the 75th Legislature, Regular Session, 1997,
776-6 is renumbered as Section 225.039, Transportation Code.
776-7 (99) Section 225.034, Transportation Code, as added by
776-8 Chapter 595, Acts of the 75th Legislature, Regular Session, 1997,
776-9 is renumbered as Section 225.040, Transportation Code.
776-10 (100) Section 502.009, Transportation Code, as added
776-11 by Chapter 625, Acts of the 75th Legislature, Regular Session,
776-12 1997, is renumbered as Section 502.0021, Transportation Code.
776-13 (101) Section 502.291, Transportation Code, as added
776-14 by Chapter 165, Acts of the 75th Legislature, Regular Session,
776-15 1997, is renumbered as Section 502.2704, Transportation Code.
776-16 (102) Section 502.292, Transportation Code, as added
776-17 by Chapter 61, Acts of the 75th Legislature, Regular Session, 1997,
776-18 is renumbered as Section 502.2921, Transportation Code.
776-19 (103) Section 502.292, Transportation Code, as added
776-20 by Chapter 1312, Acts of the 75th Legislature, Regular Session,
776-21 1997, is renumbered as Section 502.2661, Transportation Code.
776-22 (104) Section 502.293, Transportation Code, as added
776-23 by Chapter 1222, Acts of the 75th Legislature, Regular Session,
776-24 1997, is renumbered as Section 502.2951, Transportation Code.
776-25 (105) Section 502.293, Transportation Code, as added
776-26 by Chapter 1247, Acts of the 75th Legislature, Regular Session,
76R5 DWS-D 776
777-1 1997, and Section 502.294, Transportation Code, as added by Chapter
777-2 1222, Acts of the 75th Legislature, Regular Session, 1997, are
777-3 renumbered as Section 502.2721, Transportation Code.
777-4 (106) Section 502.295, Transportation Code, as added
777-5 by Chapter 581, Acts of the 75th Legislature, Regular Session,
777-6 1997, is renumbered as Section 502.2732, Transportation Code.
777-7 (107) Subsection (d), Section 623.093, Transportation
777-8 Code, as added by Chapter 165, Acts of the 75th Legislature,
777-9 Regular Session, 1997, is relettered as Subsection (f), Section
777-10 623.093, Transportation Code.
777-11 (108) Section 5.123, Water Code, as added by Chapters
777-12 304 and 1082, Acts of the 75th Legislature, Regular Session, 1997,
777-13 is renumbered as Section 5.124, Water Code.
777-14 (109) Section 5.238, Water Code, as added by Chapter
777-15 302, Acts of the 75th Legislature, Regular Session, 1997, is
777-16 renumbered as Section 5.222, Water Code.
777-17 (110) Section 13.143, Water Code, as added by Chapter
777-18 1010, Acts of the 75th Legislature, Regular Session, 1997, is
777-19 renumbered as Section 13.144, Water Code.
777-20 SECTION 19.02. The following cross-reference changes are
777-21 made to conform the provisions amended to the renumbering changes
777-22 made by Section 19.01 of this Act.
777-23 (1) Article 62.012, Code of Criminal Procedure, as
777-24 transferred by Chapter 1427, Acts of the 75th Legislature, Regular
777-25 Session, 1997, is renumbered as Article 63.012, Code of Criminal
777-26 Procedure, and amended to read as follows:
76R5 DWS-D 777
778-1 Art. 63.012 [62.012]. REPORT OF INQUIRY. A law enforcement
778-2 agency to which a request has been made under Article 63.011
778-3 [62.011] of this code shall report to the parent on the results of
778-4 its inquiry within 14 days after the day that the written request
778-5 is filed with the law enforcement agency.
778-6 (2) Subsection (c), Article 63.023, Code of Criminal
778-7 Procedure, as renumbered from Section 79.017, Human Resources Code,
778-8 by Section 19.01 of this Act, is amended to read as follows:
778-9 (c) Notice of a proceeding shall be issued and served as
778-10 provided by Section 63.024 [79.018].
778-11 (3) Subsection (a), Article 63.024, Code of Criminal
778-12 Procedure, as renumbered from Section 79.018, Human Resources Code,
778-13 by Section 19.01 of this Act, is amended to read as follows:
778-14 (a) On the filing of an application under Section 63.023
778-15 [79.017], the court clerk shall issue a citation that states that
778-16 the application for receivership was filed and includes:
778-17 (1) the name of the missing person; and
778-18 (2) the name of the applicant.
778-19 (4) Subsection (a), Section 235.001, Family Code, as
778-20 renumbered from Section 233.001, Family Code, by Section 19.01 of
778-21 this Act, is amended to read as follows:
778-22 (a) The state case registry shall provide information under
778-23 this chapter on the written request of a custodial parent whose
778-24 case:
778-25 (1) is included in the state case registry established
778-26 under 42 U.S.C. Section 654a and for whom the Title IV-D agency is
76R5 DWS-D 778
779-1 not providing enforcement services; or
779-2 (2) would otherwise not be required to be included in
779-3 the state case registry under 42 U.S.C. Section 654a but who has
779-4 applied for inclusion under Section 235.002 [233.002].
779-5 (5) Section 233.003, Family Code, as added by Chapter
779-6 420, Acts of the 75th Legislature, Regular Session, 1997, is
779-7 renumbered as Section 235.003, Family Code, and amended to read as
779-8 follows:
779-9 Sec. 235.003 [233.003]. APPLICATION FOR SERVICES NOT
779-10 REQUIRED. The Title IV-D agency may not require an application for
779-11 services as a condition for:
779-12 (1) releasing information under Section 235.001
779-13 [233.001] to a custodial parent or to the person designated by the
779-14 parent; or
779-15 (2) including a case in the state case registry under
779-16 Section 235.002 [233.002].
779-17 (6) Subsection (a), Section 235.004, Family Code, as
779-18 renumbered from Section 233.004, Family Code, by Section 19.01 of
779-19 this Act, is amended to read as follows:
779-20 (a) The state case registry may charge a fee for:
779-21 (1) including in the registry a child support case
779-22 entered in the registry under Section 235.002 [233.002]; and
779-23 (2) providing information concerning a case as
779-24 authorized by Section 235.001 [233.001].
779-25 (7) Section 413.022(a), Government Code, is amended to
779-26 read as follows:
76R5 DWS-D 779
780-1 (a) The policy council shall develop methods for measuring
780-2 the success of each program or service determined by the Texas
780-3 Board of Criminal Justice under Section 493.0053 [493.0052] to be
780-4 designed for the primary purpose of rehabilitating inmates. On
780-5 request of the policy council, the provider of a program or service
780-6 or a representative of Sam Houston State University, the Texas
780-7 Workforce Commission, or the Texas Department of Criminal Justice
780-8 shall assist the policy council in developing the methods required
780-9 by this section. The Texas Department of Criminal Justice shall
780-10 assist the council by collecting data in accordance with those
780-11 methods.
780-12 (8) Section 501.014(g), Government Code, is amended to
780-13 read as follows:
780-14 (g) The department shall withdraw money from an inmate's
780-15 trust fund under Subsection (e) before the department applies a
780-16 deposit to that fund toward any unpaid balance owed to the
780-17 department by the inmate under Section 501.063 [501.061].
780-18 (9) Section 2003.001(2), Government Code, is amended
780-19 to read as follows:
780-20 (2) "Alternative dispute resolution procedure" has the
780-21 meaning assigned by Section 2009.003 [2008.003].
780-22 (10) Section 2003.042(a), Government Code, is amended
780-23 to read as follows:
780-24 (a) An administrative law judge employed by the office or a
780-25 temporary administrative law judge may:
780-26 (1) administer an oath;
76R5 DWS-D 780
781-1 (2) take testimony;
781-2 (3) rule on a question of evidence;
781-3 (4) issue an order relating to discovery or another
781-4 hearing or prehearing matter, including an order imposing a
781-5 sanction;
781-6 (5) issue an order that refers a case to an
781-7 alternative dispute resolution procedure, determines how the costs
781-8 of the procedure will be apportioned, and appoints an impartial
781-9 third party as described by Section 2009.053 [2008.053] to
781-10 facilitate that procedure;
781-11 (6) issue a proposal for decision that includes
781-12 findings of fact and conclusions of law; [and]
781-13 (7) [(6)] if expressly authorized by a state agency
781-14 rule adopted under Section 2001.058(f), make the final decision in
781-15 a contested case;[.]
781-16 (8) [(7)] serve as an impartial third party as
781-17 described by Section 2009.053 [2008.053] for a dispute referred by
781-18 an administrative law judge, unless one of the parties objects to
781-19 the appointment; and
781-20 (9) [(8)] serve as an impartial third party as
781-21 described by Section 2009.053 [2008.053] for a dispute referred by
781-22 a government agency under a contract.
781-23 (11) Section 12.035(a), Health and Safety Code, is
781-24 amended to read as follows:
781-25 (a) The department shall deposit all money collected for
781-26 fees and charges collected under Sections 12.0122(d) [12.020(d)]
76R5 DWS-D 781
782-1 and 12.032(a) in the state treasury to the credit of the Texas
782-2 Department of Health public health services fee fund.
782-3 (12) Subsection (a), Section 161.352, Health and
782-4 Safety Code, as renumbered from Section 161.252, Health and Safety
782-5 Code, by Section 19.01 of this Act, is amended to read as follows:
782-6 (a) Each manufacturer shall file with the department an
782-7 annual report for each cigarette or tobacco product distributed in
782-8 this state, stating:
782-9 (1) the identity of each ingredient in the cigarette
782-10 or tobacco product, listed in descending order according to weight,
782-11 measure, or numerical count, other than:
782-12 (A) tobacco;
782-13 (B) water; or
782-14 (C) a reconstituted tobacco sheet made wholly
782-15 from tobacco; and
782-16 (2) a nicotine yield rating for the cigarette or
782-17 tobacco product established under Section 161.353 [161.253].
782-18 (13) Subsection (a), Section 161.355, Health and
782-19 Safety Code, as renumbered from Section 161.255, Health and Safety
782-20 Code, by Section 19.01 of this Act, is amended to read as follows:
782-21 (a) A district court, on petition of the department and on a
782-22 finding by the court that a manufacturer has failed to file the
782-23 report required by Section 161.352 [161.252], may by injunction:
782-24 (1) prohibit the sale or distribution in this state of
782-25 a cigarette or tobacco product manufactured by the manufacturer; or
782-26 (2) grant any other injunctive relief warranted by the
76R5 DWS-D 782
783-1 facts.
783-2 (14) Section 245.011(d), Health and Safety Code, is
783-3 amended to read as follows:
783-4 (d) Except as provided by Section 245.023 [245.017], all
783-5 information and records held by the department under this chapter
783-6 are confidential and are not open records for the purposes of
783-7 Chapter 552, Government Code. That information may not be released
783-8 or made public on subpoena or otherwise, except that release may be
783-9 made:
783-10 (1) for statistical purposes, but only if a person,
783-11 patient, or abortion facility is not identified;
783-12 (2) with the consent of each person, patient, and
783-13 abortion facility identified in the information released;
783-14 (3) to medical personnel, appropriate state agencies,
783-15 or county and district courts to enforce this chapter; or
783-16 (4) to appropriate state licensing boards to enforce
783-17 state licensing laws.
783-18 (15) Subsection (a), Section 376.167, Local Government
783-19 Code, as renumbered from Section 376.137, Local Government Code, by
783-20 Section 19.01 of this Act, is amended to read as follows:
783-21 (a) If authorized at an election held in accordance with
783-22 Section 376.166 [376.136], the district may impose and collect an
783-23 annual ad valorem tax on taxable property in the district for the
783-24 maintenance, restoration, replacement, or operation of the district
783-25 and the improvements constructed or acquired by the district or the
783-26 facilities, works, or services of the district.
76R5 DWS-D 783
784-1 SECTION 19.03. If the number, letter, or designation
784-2 assigned by this article conflicts with a number, letter, or
784-3 designation assigned by another Act of the 76th Legislature, the
784-4 other Act controls, and the number, letter, or designation assigned
784-5 by this article has no effect.
784-6 ARTICLE 20. EFFECTIVE DATE; EMERGENCY
784-7 SECTION 20.01. This Act takes effect September 1, 1999.
784-8 SECTION 20.02. The importance of this legislation and the
784-9 crowded condition of the calendars in both houses create an
784-10 emergency and an imperative public necessity that the
784-11 constitutional rule requiring bills to be read on three several
784-12 days in each house be suspended, and this rule is hereby suspended.
76R5 DWS-D 784