C.S.H.B. 56 78(R)    BILL ANALYSIS


C.S.H.B. 56
By: Wise
Financial Institutions
Committee Report (Substituted)



BACKGROUND AND PURPOSE 
 
Under current law and practice, financial institutions may share (or sell)
their customers' private information with third parties unless the
customer opts out of this practice.  Many customers have relationships
with a number of different financial institutions, and customers must opt
out with each financial institution separately.  Though financial
institutions are required to provide customers with notices of their
privacy rights, these are often included among a number of other
documents, including billing statements and promotional materials.   

C.S.H.B. 56 requires a financial institution to clearly and conspicuously
notify a customer, in a separate mailing, of the customer's ability to
prevent the financial institution from disclosing information about the
customer.  

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly
granted to the Texas Department of Banking, Savings and Loan Department,
and Credit Union Department in SECTION 1 (Sec. 278.003, Finance Code) of
this bill.  
 
ANALYSIS

C.S.H.B. 56 amends Subtitle Z, Title 3 of the Finance Code by adding new
Chapter 278 to establish a financial institution's obligations to notify
its customers of their abilities to prevent the financial institution from
disclosing customer information except under certain circumstances.
Specifically, a financial institution may disclose customer information to
a nonaffiliated third party if: 
_the financial institution has provided the customer the opportunity to
prevent the disclosure as provided by the bill; 
_the disclosure is incidental to the third party's performance of a
service or function for or on behalf of the financial institution; or 
_the disclosure is authorized by applicable federal law.
A financial institution may not otherwise disclose customer information to
a nonaffiliated third party. 

A financial institution intending to disclose customer information must
clearly and conspicuously notify the customer (or the customer's legal
representative) that information may be disclosed and that disclosure may
be prevented.  This notice must be in writing and mailed to the customer
independently of any other communications. 

C.S.H.B. 56 establishes that a financial institution is liable to a
customer whose information is disclosed in violation of the bill's
provisions.  At the option of the customer, liability is equal to $200 for
each violation up to $20,000 or actual damages, plus attorney's fees.  The
bill makes a financial institution liable for punitive damages if the
violation was intentional. 

The bill requires a financial institution regulatory agency of this state
shall adopt rules to carry out the purposes of the bill by December 1,
2003.  Such rules would become effective January 1, 2004, and the bill's
provisions would apply to disclosures of information on or after that
date. 

EFFECTIVE DATE

September 1, 2003
 


COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute deletes provisions relating to exemptions, prohibited
disclosures, disclosure of unlawful activities, consent requirements, and
reimbursement of costs.  The substitute deletes the requirement that a
customer provide written consent before a financial institution may
disclose the customer's information and instead requires a financial
institution to provide the customer with an opportunity to prevent
disclosure of that customer's information. The substitute adds provisions
allowing a financial institution to share information with nonaffiliated
third parties during the performance of certain functions for the
financial institution and as provided by federal law. The substitute adds
the requirement that a financial institution mail the required written
notice to a customer independently of any other communication it sends the
customer. 

The substitute deletes the requirement that a customer prove a violation
of the laws governing disclosure was intentional, and the substitute
places liability upon the financial institution, not a person as in the
original.  The substitute changes the amount of liability to $200 per
violation, up to a maximum of $20,000, from $1,000 in the original.  The
substitute expressly makes a financial institution liable for attorney's
fees.  The substitute makes a financial institution liable for punitive
damages for an intentional violation of the bill's provisions. 

The substitute adds language requiring a financial institutions regulatory
agency to adopt rules to carry out the bill's provisions no later than
December 1, 2003.  The substitute adds language providing that the bill
governs disclosures of information made on or after January 1, 2004.