HBA-JLV C.S.S.B. 555 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.S.B. 555
By: Ellis, Rodney
Higher Education
4/27/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

In 1996, the federal Small Business Protection Act established criteria for
the creation of a qualified state tuition program (QSTP) and provided
states with latitude in determining how to structure and administer QSTPs.
As a result, programs in different states vary considerably from one
another in structure. The 75th Legislature created the Texas Tomorrow Fund
(TTF), and in November 1997 Texas voters authorized a constitutional
amendment to officially guarantee TTF as a constitutionally guaranteed
trust fund backed by the full faith and credit of the State of Texas.
However, some have criticized TTF as lacking some of the flexibility and
potential for higher returns offered by other state-sponsored prepaid trust
fund programs. C.S.S.B. 555 establishes a qualified higher education
savings plan to be administered by the Prepaid Higher Education Tuition
Board, with investments in the plan managed by a private firm.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Prepaid Higher Education Tuition
Board in SECTION 1 (Sections 54.702, 54.708, and 54.710, Education Code) of
this bill.  

ANALYSIS

C.S.S.B. 555 amends the Education Code to establish the qualified higher
education savings  plan (plan). The bill requires the Prepaid Higher
Education Tuition Board (board) to develop and implement the plan, to
select the financial institution or institutions to serve as plan manager,
and to adopt rules governing the withdrawal of money from a savings trust
account and develop policies and penalties for nonqualified withdrawals.
The bill authorizes the board to seek rulings and other guidance from
certain federal agencies relating to the plan for proper implementation and
development of the plan. The bill requires the board to collect
administrative fees and service charges in connection with the plan in
amounts not exceeding the cost of establishing and maintaining the plan.
The bill requires the board to develop and approve a savings and trust
agreement, and approve in advance any informational materials that the plan
manager provides to participants or potential participants in the plan. The
bill requires the board to adopt a policy to prevent excess contributions
to an account on behalf of a beneficiary (Sec. 54.702). 

The bill requires the board to administer a higher education savings plan
to enable individuals to save money for qualified higher education
expenses. The bill provides that money contributed to a savings trust
account and earnings on the account are held in trust by the board for the
sole benefit of the account owner and beneficiary (Sec. 54.703).  

The bill sets forth requirements and procedures for the selection of one or
more financial institutions from among bidding financial institutions as a
plan manager or managers for savings trust accounts.  The bill also sets
forth the duties of a plan manager and conditions for a contract between
the board and a plan manager (Secs. 54.704-54.706).   

The bill authorizes an individual to open a savings trust account to save
money for the payment of the qualified higher education expenses of a
beneficiary.  The bill provides that the individual who opens the  account
is the owner of the account and the owner of the account may also be the
beneficiary.  The bill provides that an individual may open an account by
entering into a savings trust agreement with the board as prescribed and
approved by the board, and by making the minimum contribution required by
the plan manager to open an account. The bill provides the terms of a
savings trust agreement (Sec. 54.707).  

The bill provides conditions for contributions to and withdrawals from a
savings trust account and provides penalties for nonqualified withdrawals
(Sec. 54.708).   

The bill also provides for the administration of a savings trust account.
The bill prohibits an account owner or beneficiary from directing the
investment of any contributions to or earnings on an account. The bill
requires the board to select the financial institution to which the
balances of the accounts are transferred if the board terminates the
contract of a financial institution acting as a plan manager and the
accounts must be transferred from that financial institution to another
financial institution. A savings trust agreement must provide that, if
after a specified period the savings trust agreement has not been
terminated and the beneficiary's rights in the account have not been
exercised, the board, after making reasonable contact efforts, is required
to report the unclaimed money in the account to the comptroller. The bill
provides that money in a savings trust account is exempt from attachment,
execution, and seizure for the satisfaction of debt or liability of an
account owner or beneficiary. The bill prohibits the savings trust account
from being subject to alienation, sale, transfer, assignment, pledge,
encumbrance, or charge (Sec. 54.709).  

The bill provides for the limitations of the plan (Sec. 54.710). The bill
also provides that the opening or maintenance of a savings trust account
does not promise or guarantee admission, enrollment, or graduation from any
eligible educational institution (Sec. 54.711). An account owner or
beneficiary of a savings trust account is not required to be a resident of
this state (Sec. 54.712).  The bill provides policies for the promotion and
disclosure of plan information to savings trust account owners and
beneficiaries, and provides for the confidentiality of information relating
to a beneficiary or owner of a savings trust account (Secs. 54.713 and
54.714).  

If the comptroller determines that the plan is not financially feasible,
the comptroller is required to notify the governor and the legislature and
recommend that the board not administer a higher education savings plan or
that the plan be modified or terminated (Sec. 54.715).  If the plan is
terminated, the balance of each savings trust account is required to be
paid to the account owner and any unclaimed assets are required to escheat
to the state in accordance with general law regarding unclaimed property
(Sec. 54.716).   

The bill provides that the Texas tomorrow constitutional trust fund is
created as a trust fund to be held with the comptroller. The bill also
provides that the Texas college savings plan account is created within the
Texas tomorrow constitutional trust fund and is financed through
administrative fees and service charges from the higher education savings
plan (Sec. 54.634). 

EFFECTIVE DATE

On passage, or if the Act does not receive the necessary vote, the Act
takes effect September 1, 2001.  

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.B. 555 modifies the original to require the board to develop, rather
than review, a savings and trust agreement and to approve in advance any
informational materials to be furnished to participants in the plan (Sec.
54.702). The substitute removes the provision that money contributed to a
savings trust account and earnings on the account are held in trust by the
plan manager (Sec. 54.703). The substitute requires a plan manager to hold
all savings trust accounts in trust as authorized by the board in the plan
manager contract (Sec. 54.705). The substitute provides that an individual
may open an account by entering into a savings trust agreement with the
board as prescribed and approved by the board, rather than prescribed by
the plan manager (Sec. 54.707).    The substitute removes provisions
authorizing an employee of the state or a political subdivision of the
state to make contributions to a savings trust account by payroll
deductions made by the appropriate officer of the state or political
subdivision.