By Sibley                                              S.B. No. 314
         Substitute the following for S.B. No. 314:
         By Averitt                                         C.S.S.B. No. 314
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the continuation and functions of the Texas Department
 1-3     of Banking and the regulation of certain financial institutions and
 1-4     businesses; providing an administrative penalty.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Section 12.107, Finance Code, is amended to read
 1-7     as follows:
 1-8           Sec. 12.107.  CONFLICT OF INTEREST. (a)  In this section,
 1-9     "Texas trade association" means a cooperative and voluntarily
1-10     joined association of business or professional competitors in this
1-11     state that:
1-12                 (1)  is primarily designed to assist its members and
1-13     its industry or profession in dealing with mutual business or
1-14     professional problems and in promoting their common interests; and
1-15                 (2)  includes business and professional competitors
1-16     located in this state among its members.
1-17           (b)  A person may not be a department employee if:
1-18                 (1)  the person is an officer, employee, or paid
1-19     consultant of a Texas trade association in an industry regulated by
1-20     the department; or
1-21                 (2)  the person's spouse is an officer, manager, or
1-22     paid consultant of a Texas trade association in an industry
1-23     regulated by the department.
1-24           (c)  A person may not act as the general counsel to the
 2-1     department if the person is required to register as a lobbyist
 2-2     under Chapter 305, Government Code, because of the person's
 2-3     activities for compensation on behalf of a profession related to
 2-4     the operation of the department [An officer or employee of the
 2-5     department may not be:]
 2-6                 [(1)  an officer, employee, or paid consultant of a
 2-7     trade association in an industry regulated by the department; or]
 2-8                 [(2)  related within the second degree by affinity or
 2-9     consanguinity, as determined under Chapter 573, Government Code, to
2-10     a person who is an officer, employee, or paid consultant of a trade
2-11     association in an industry regulated by the department].
2-12           (d) [(b)]  Before the 11th day after the date on which an
2-13     employee begins employment with the department, the employee shall
2-14     read the conflict-of-interest statutes applicable to employees of
2-15     the department and sign a notarized affidavit stating that the
2-16     employee has read those statutes.
2-17           SECTION 2.  Section 12.108, Finance Code, is amended to read
2-18     as follows:
2-19           Sec. 12.108.  CONSUMER INFORMATION AND COMPLAINTS. (a)  The
2-20     banking commissioner shall:
2-21                 (1)  prepare information of consumer interest
2-22     describing:
2-23                       (A)  the regulatory functions of the department;
2-24     and
2-25                       (B)  the department's procedures by which
2-26     consumer complaints are filed with and resolved by the department;
2-27     and
 3-1                 (2)  make the information available to the public and
 3-2     appropriate state agencies.
 3-3           (b)  The department shall maintain a file on each written
 3-4     complaint filed with the department.  The file must include:
 3-5                 (1)  the name of the person who filed the complaint;
 3-6                 (2)  the date the complaint is received by the
 3-7     department;
 3-8                 (3)  the subject matter of the complaint;
 3-9                 (4)  the name of each person contacted in relation to
3-10     the complaint;
3-11                 (5)  a summary of the results of the review or
3-12     investigation of the complaint; and
3-13                 (6)  an explanation of the reason the file was closed.
3-14           (c)  The department shall provide to the person filing the
3-15     complaint and to each person who is a subject of the complaint a
3-16     written summary of the department's policies and procedures
3-17     relating to complaint investigation and resolution [banking
3-18     commissioner shall keep an information file about each complaint
3-19     filed with the commissioner relating to an entity regulated by the
3-20     department.]
3-21           [(c)  At least quarterly until final disposition of any
3-22     written complaint filed with the banking commissioner relating to
3-23     an entity regulated by the department, the commissioner shall
3-24     notify the parties to the complaint of the status of the complaint
3-25     unless the notice would jeopardize an undercover investigation].
3-26           SECTION 3.  Section 12.109, Finance Code, is amended to read
3-27     as follows:
 4-1           Sec. 12.109.  SUNSET PROVISION. The office of banking
 4-2     commissioner is subject to Chapter 325, Government Code (Texas
 4-3     Sunset Act).  Unless continued in existence as provided by that
 4-4     chapter, the office is abolished September 1, 2013 [2001].
 4-5           SECTION 4. Subchapter B, Chapter 12, Finance Code, is amended
 4-6     by adding Sections 12.111, 12.112, and 12.113 to read as follows:
 4-7           Sec. 12.111.  STANDARDS OF CONDUCT. The banking commissioner
 4-8     or the banking commissioner's designee shall provide to agency
 4-9     employees, as often as necessary, information regarding the
4-10     requirements for office or employment under this chapter, including
4-11     information regarding a person's responsibilities under applicable
4-12     laws relating to standards of conduct for state officers or
4-13     employees.
4-14           Sec. 12.112.  EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a)  The
4-15     banking commissioner or the banking commissioner's designee shall
4-16     prepare and maintain a written policy statement that implements a
4-17     program of equal employment opportunity to ensure that all
4-18     personnel decisions are made without regard to race, color,
4-19     disability, sex, religion, age, or national origin.
4-20           (b)  The policy statement must include:
4-21                 (1)  personnel policies, including policies relating to
4-22     recruitment, evaluation, selection, training, and promotion of
4-23     personnel, that show the intent of the department to avoid the
4-24     unlawful employment practices described by Chapter 21, Labor Code;
4-25     and
4-26                 (2)  an analysis of the extent to which the composition
4-27     of the department's personnel is in accordance with state and
 5-1     federal law and a description of reasonable methods to achieve
 5-2     compliance with state and federal law.
 5-3           (c)  The policy statement must:
 5-4                 (1)  be updated annually;
 5-5                 (2)  be reviewed by the state Commission on Human
 5-6     Rights for compliance with Subsection (b)(1); and
 5-7                 (3)  be filed with the governor's office.
 5-8           Sec. 12.113.  EMPLOYEE INCENTIVE PROGRAM. The banking
 5-9     commissioner or the banking commissioner's designee shall provide
5-10     to agency employees information and training on the benefits and
5-11     methods of participation in the state employee incentive program.
5-12           SECTION 5. Section 154.109, Finance Code, is amended by
5-13     adding Subsection (d) to read as follows:
5-14           (d)  The commissioner may place on probation a permit holder
5-15     whose permit is suspended.  If a permit suspension is probated, the
5-16     commissioner may require the permit holder:
5-17                 (1)  to report regularly to the department on matters
5-18     that are the basis of the probation; or
5-19                 (2)  to limit its activities as prescribed by the
5-20     commissioner.
5-21           SECTION 6. Section 154.151, Finance Code, is amended by
5-22     adding Subsections (d) and (e) to read as follows:
5-23           (d)  A sales contract for prepaid funeral benefits, whether
5-24     in English or Spanish, must be written in plain language designed
5-25     to be easily understood by the average consumer.  The contract must
5-26     be printed in an easily readable font and type size.  The
5-27     department shall provide model contracts complying with this
 6-1     subsection and shall enforce this subsection.
 6-2           (e)  The Finance Commission of Texas by rule shall establish
 6-3     a standard disclosure that must be included in each contract to
 6-4     inform purchasers of the goods and services that will be provided
 6-5     or excluded under the contract and the circumstances under which
 6-6     the contract may be modified after death of the beneficiary.
 6-7           SECTION 7. Subsection (d), Section 154.155, Finance Code, is
 6-8     amended to read as follows:
 6-9           (d)  The purchaser is entitled to receive [only] the actual
6-10     amount paid by the purchaser and half of all earnings attributable
6-11     to that money, less the amount permitted to be retained as provided
6-12     by Section 154.252, except as provided by Subsection (e) and by
6-13     Sections 154.205 and 154.254.
6-14           SECTION 8. Section 154.252, Finance Code, is amended to read
6-15     as follows:
6-16           Sec. 154.252.  RETENTION OF MONEY FOR EXPENSES. The [To cover
6-17     its selling expenses, service costs, and general overhead, the]
6-18     seller of a trust-funded prepaid funeral benefits contract may
6-19     retain for the seller's use and benefit an amount not to exceed
6-20     one-half of all money collected or paid until the seller has
6-21     received an amount equal to 10 percent of the total amount the
6-22     purchaser agreed to pay under the contract.
6-23           SECTION 9.  Section 154.406, Finance Code, is amended to read
6-24     as follows:
6-25           Sec. 154.406.  ADMINISTRATIVE PENALTY. (a)  After notice and
6-26     opportunity for hearing, the commissioner may impose an
6-27     administrative penalty on a person who:
 7-1                 (1)  violates this chapter or a final order of the
 7-2     commissioner or rule of the Finance Commission of Texas
 7-3     [commissioner or department;] and
 7-4                 [(2)]  does not correct the violation before the 31st
 7-5     day after the date the person receives written notice of the
 7-6     violation from the department; or
 7-7                 (2)  engages in a pattern of violations, as determined
 7-8     by the commissioner.
 7-9           (b)  The amount of the penalty for each violation may not
7-10     exceed $1,000 for each day the violation occurs.
7-11           (c)  In determining the amount of the penalty, the
7-12     commissioner shall consider the seriousness of the violation, the
7-13     person's history of violations, and the person's good faith in
7-14     attempting to comply with this chapter.
7-15           (d)  The imposition of a penalty under this section is
7-16     subject to judicial review as a contested case under Chapter 2001,
7-17     Government Code.
7-18           (e)  The commissioner may collect the penalty in the same
7-19     manner that a money judgment is enforced in district court.
7-20           SECTION 10. Subchapter I, Chapter 154, Finance Code, is
7-21     amended by adding Section 154.4061 to read as follows:
7-22           Sec. 154.4061.  PATTERN OF WILFUL DISREGARD. (a)  If, after a
7-23     hearing conducted as provided by Chapter 2001, Government Code, the
7-24     trier of fact finds that a violation of this chapter or a rule of
7-25     the Finance Commission of Texas establishes a pattern of wilful
7-26     disregard for the requirements of this chapter or rules of the
7-27     finance commission, the trier of fact shall recommend to the
 8-1     commissioner that the maximum administrative penalty permitted
 8-2     under Section 154.406 be imposed on the person committing the
 8-3     violation or that the commissioner cancel or not renew the person's
 8-4     permit under this chapter.
 8-5           (b)  For the purposes of this section, violations corrected
 8-6     as provided by Section 154.406 may be included in determining
 8-7     whether a pattern of wilful disregard for the requirements of this
 8-8     chapter or rules of the finance commission exists.
 8-9           SECTION 11. Subchapter A, Chapter 712, Health and Safety
8-10     Code, is amended by adding Section 712.008 to read as follows:
8-11           Sec. 712.008.  RULES. The Finance Commission of Texas may
8-12     adopt rules to enforce and administer this chapter, including rules
8-13     establishing fees to defray the costs of enforcing and
8-14     administering this chapter.
8-15           SECTION 12. Section 712.042, Health and Safety Code, is
8-16     amended to read as follows:
8-17           Sec. 712.042.  FEES. On filing a statement of funds under
8-18     Section 712.041, a corporation shall pay the commissioner a
8-19     reasonable and necessary fee set by rule adopted by the Finance
8-20     Commission of Texas under Section 712.008 [annually by the
8-21     commissioner] to defray the cost of administering this chapter.
8-22           SECTION 13. Section 712.044, Health and Safety Code, is
8-23     amended to read as follows:
8-24           Sec. 712.044.  EXAMINATION OF [FUND] RECORDS; EXAMINATION
8-25     FEES AND EXPENSES. (a)  The commissioner may examine the books and
8-26     records of a corporation relating to its fund, including deposits
8-27     to or withdrawals from the fund, income of the fund, and uses and
 9-1     expenditures of that income, [shall be examined] annually or more
 9-2     [as] often as necessary to protect the interest of plot owners.  In
 9-3     addition, the commissioner may examine consumer complaint files
 9-4     relating to the fund or to discharge of the corporation's perpetual
 9-5     care responsibilities, minutes of the corporation's board of
 9-6     directors, cemetery dedication statements and plat maps, and lawn
 9-7     crypt construction contracts and specifications [by the
 9-8     commissioner. The examination shall cover the period of time from
 9-9     the date of the last examination of the corporation's books and
9-10     records relating to its fund].
9-11           (b)  A corporation that is examined under this section shall
9-12     make the specified [its] books and records [relating to its fund]
9-13     available for examination by the banking department upon reasonable
9-14     notice to the corporation and shall pay to the commissioner for the
9-15     examination a reasonable and necessary fee set by rules adopted by
9-16     the Finance Commission of Texas under Section 712.008 [annually by
9-17     the commissioner] to defray the cost of administering this chapter.
9-18           SECTION 14. Subsections (a), (b), and (c), Section 712.0441,
9-19     Health and Safety Code, are amended to read as follows:
9-20           (a)  After notice and opportunity for hearing, the
9-21     commissioner may impose an administrative penalty on a person who:
9-22                 (1)  violates this chapter or a final order of the
9-23     commissioner or rule of the Finance Commission of Texas and does
9-24     not correct the violation before the 31st day after the date the
9-25     person receives written notice of the violation from the banking
9-26     department; or
9-27                 (2)  engages in a pattern of violations, as determined
 10-1    by the commissioner.
 10-2          (b)  The amount of the penalty for each violation may not
 10-3    exceed $1,000 for each day the violation occurs.
 10-4          (c)  In determining the amount of the penalty, the
 10-5    commissioner shall consider the seriousness of the violation, the
 10-6    person's history of violations, and the person's good faith in
 10-7    attempting to comply with this chapter.  The imposition of a
 10-8    penalty under this section is subject to judicial review as a
 10-9    contested case under Chapter 2001, Government Code.  The
10-10    commissioner may collect the penalty in the same manner that a
10-11    money judgment is enforced in district court.  [A corporation shall
10-12    be subject to a civil penalty upon the occurrence of any of the
10-13    following violations:]
10-14                [(1)  the corporation does not make a deposit in its
10-15    fund as required by Section 712.028;]
10-16                [(2)  the corporation does not file a statement of
10-17    funds as required by Section 712.041; or]
10-18                [(3)  the corporation does not pay the filing fee as
10-19    required by Section 712.042.]
10-20          [(b)  The trustee of a fund shall be subject to a civil
10-21    penalty upon the occurrence of either of the following violations:]
10-22                [(1)  the trustee does not file a report required by
10-23    the commissioner under Section 712.043 within 30 days after the
10-24    date of the commissioner's request; or]
10-25                [(2)  the fund does not comply with this chapter.]
10-26          [(c)  The civil penalty that may be imposed under Subsection
10-27    (a) or (b) shall not exceed $250 per violation for each day that
 11-1    the violation persists, provided, that the aggregate civil penalty
 11-2    for all violations shall not exceed $500 per day.  A corporation or
 11-3    trustee shall have no civil penalty liability if within 30 days
 11-4    after receiving written notice from the commissioner of the
 11-5    violation the corporation or trustee corrects such violation by
 11-6    performing the required duty or act.  Any such civil penalty may be
 11-7    imposed by the commissioner after notice and opportunity for
 11-8    hearing in accordance with the procedures for a contested case
 11-9    hearing under the Administrative Procedure and Texas Register Act.
11-10    In determining the amount of the penalty, the commissioner shall
11-11    consider the seriousness of the violation and the good faith of the
11-12    corporation or trustee in its attempts to achieve compliance.  The
11-13    amount of such penalty may be collected by the commissioner in the
11-14    same manner that money judgments are enforced in the district
11-15    courts of this state.]
11-16          SECTION 15. Subchapter C, Chapter 712, Health and Safety
11-17    Code, is amended by adding Section 712.0442 to read as follows:
11-18          Sec. 712.0442.  PATTERN OF WILFUL DISREGARD. (a)  If, after a
11-19    hearing conducted as provided by Chapter 2001, Government Code, the
11-20    trier of fact finds that a violation of this chapter or a rule of
11-21    the Finance Commission of Texas establishes a pattern of wilful
11-22    disregard for the requirements of this chapter or rules of the
11-23    finance commission, the trier of fact shall recommend to the
11-24    commissioner that the maximum administrative penalty permitted
11-25    under Section 712.0441 be imposed on the person committing the
11-26    violation or that the commissioner cancel or not renew the person's
11-27    permit under Chapter 154, Finance Code, if the person holds such a
 12-1    permit.
 12-2          (b)  For the purposes of this section, violations corrected
 12-3    as provided by Section 712.0441 may be included in determining
 12-4    whether a pattern of wilful disregard for the requirements of this
 12-5    chapter or rules of the finance commission exists.
 12-6          SECTION 16. Article 21.07-1, Insurance Code, is amended by
 12-7    adding Section 5B to read as follows:
 12-8          Sec. 5B.  INSURANCE FUNDED PREPAID FUNERAL CONTRACT SALES.
 12-9    Notwithstanding any other provision of this code, a funeral home
12-10    employee or other person who has a funeral prearrangement life
12-11    insurance agent license or a license to sell life insurance not
12-12    exceeding $15,000 and who writes only life insurance policies and
12-13    fixed annuity contracts to secure the delivery of funeral services
12-14    and merchandise under prepaid funeral contracts regulated by the
12-15    Texas Department of Banking under Chapter 154, Finance Code, is not
12-16    required to comply with any continuing education requirements in
12-17    order to maintain such a license, except that the appointing
12-18    insurance company must educate its appointed agents about any new
12-19    products sold by the licensed agent to fund prepaid funeral
12-20    contracts.  Such a licensee may be appointed by more than one
12-21    insurance company.
12-22          SECTION 17. (a)  The changes in law made by this Act to
12-23    Subsection (d), Section 154.155, Finance Code, do not apply to
12-24    cancellation of a contract that was executed and binding on all
12-25    parties before September 1, 2001.  Such a cancellation is governed
12-26    by the law in effect when the contract was executed, and the former
12-27    law is continued in effect for that purpose.
 13-1          (b)  The changes in law made by this Act to Section 154.252,
 13-2    Finance Code, do not apply to a contract that was executed and
 13-3    binding on all parties before September 1, 2001.  Such a contract
 13-4    is governed by the law in effect when the contract was executed,
 13-5    and the former law is continued in effect for that purpose.
 13-6          SECTION 18. This Act takes effect September 1, 2001.