SRC-JLB H.B. 2240 78(R)BILL ANALYSIS


Senate Research CenterH.B. 2240
By: Paxton (Harris)
Jurisprudence
5/22/2003
Committee Report (Amended)


DIGEST AND PURPOSE 

Currently, the default investment standard in the Texas Trust Code states
that a trustee is required to handle a trust in a prudent manner when all
the investments of the trust are taken into account. 
H.B. 2240 requires a trustee's investment and management decisions
respecting individual assets to be evaluated in the context of the trust
portfolio as a whole.  This bill provides that there are no categoric
restrictions on types of investments and that there is an affirmative duty
to review investments.  This bill also authorizes the expansion,
restriction, elimination, or other alteration of the prudent investor
rule, by the provisions of the trust.  

RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle B, Title 9, Property Code, by adding Chapter
117, as follows: 

CHAPTER 117.  UNIFORM PRUDENT INVESTOR ACT

Sec. 117.001.  SHORT TITLE.  Provides that this chapter may be cited as
the "Uniform Prudent Investor Act." 

Sec. 117.002.  UNIFORMITY OF APPLICATION AND CONSTRUCTION.  Requires this
chapter to be applied and construed to effectuate its general purpose to
make uniform the law with respect to the subject of this chapter among the
states enacting it. 

Sec. 117.003.  PRUDENT INVESTOR RULE.  (a)  Provides that a trustee who
invests and manages trust assets owes a duty to the beneficiaries of the
trust to comply with the prudent investor rule set forth in this chapter,
except as otherwise provided in Subsection (b). 

(b)  Authorizes the expansion, restriction, elimination, or other
alteration of the prudent investor rule by the provisions of a trust.
Provides that a trustee is not liable to a beneficiary to the extent that
the trustee acted in reasonable reliance on the provisions of the trust. 

Sec. 117.004.  STANDARD OF CARE; PORTFOLIO STRATEGY; RISK AND RETURN
OBJECTIVES.  (a)  Requires a trustee to invest and manage trust assets as
a prudent investor would, by considering the purposes, terms, distribution
requirements, and other circumstances of the trust.  Requires the trustee
to exercise reasonable care, skill, and caution in satisfying this
standard. 

(b)  Requires a trustee's investment and management decisions respecting
individual assets to be evaluated not in isolation but in the context of
the trust portfolio as a whole and as a part of an overall investment
strategy having risk and return objectives reasonably suited to the trust. 

 (c)  Requires a trustee to consider certain circumstances in investing
and managing trust assets. 

(d)  Requires a trustee to make a reasonable effort to verify facts
relevant to the investment and management of trust assets. 

(e)  Authorizes a trustee to invest in any kind of property or type of
investment consistent with the standards of this chapter, except as
otherwise provided by and subject to this subtitle. 

(f)  Provides that a trustee who has special skills or expertise, or is
named trustee in reliance upon the trustee's representation that the
trustee has special skills or expertise, has a duty to use those special
skills or expertise. 

Sec. 117.005.  DIVERSIFICATION.  Requires a trustee to diversify the
investments of the trust unless the trustee reasonably determines that,
because of special circumstances, the purposes of the trust are better
served without diversifying. 

Sec. 117.006.  DUTIES AT INCEPTION OF TRUSTEESHIP.  Requires a trustee,
within a reasonable time after accepting a trusteeship or receiving trust
assets, to review the trust assets and make and implement decisions
concerning the retention and disposition of assets, in order to bring the
trust portfolio into compliance with the purposes, terms, distribution
requirements, and other circumstances of the trust, and with the
requirements of this chapter. 

Sec. 117.007.  LOYALTY.  Requires a trustee to invest and manage the trust
assets solely in the interest of the beneficiaries. 

Sec. 117.008.  IMPARTIALITY.  Requires a trustee to act impartially in
investing and managing the trust assets when a trust has two or more
beneficiaries, taking into account any differing interests of the
beneficiaries. 

Sec. 117.009.  INVESTMENT COSTS.  Authorizes a trustee to only incur costs
that are appropriate and reasonable in relation to the assets, the
purposes of the trust, and the skills of the trustee, in investing and
managing trust assets. 

Sec. 117.010.  REVIEWING COMPLIANCE.  Provides that compliance with the
prudent investor rule is determined in light of the facts and
circumstances existing at the time of a trustee's decision or action and
not by hindsight. 

Sec. 117.011.  DELEGATION OF INVESTMENT AND MANAGEMENT FUNCTIONS.  (a)
Authorizes a trustee to delegate investment and management functions that
a prudent trustee of comparable skills could properly delegate under the
circumstances.  Requires the trustee to exercise reasonable care, skill,
and caution in performing certain acts.  

(b)  Provides that in performing a delegated function, an agent owes a
duty to the trust to exercise reasonable care to comply with the terms of
the delegation. 

(c)  Provides that a trustee who complies with the requirements of
Subsection (a) is not liable to the beneficiaries or to the trust for the
decisions or actions of the agent to whom the function was delegated,
unless certain exceptions apply. 

(d)  Provides that by accepting the delegation of a trust function from
the trustee of a trust that is subject to the law of this state, an agent
submits to the jurisdiction of the courts of this state. 

Sec.  117.012.  LANGUAGE INVOKING STANDARD OF CHAPTER.  Provides terms or
comparable language in the provisions of a trust that authorizes any
investment or  strategy permitted under this chapter, unless otherwise
limited or modified.  

SECTION 2.  Amends Section 111.004(1), Property Code, to redefine
"affiliate." 

SECTION 3.  Amends Section 113.006, Property Code, as follows:

Sec.  113.006.  GENERAL AUTHORITY TO MANAGE AND INVEST TRUST PROPERTY.
Authorizes a trustee, subject to the requirements of Chapter 117, to mange
the trust property and invest and reinvest in property of any character on
the conditions and for the lengths of time as the trustee considers
proper, notwithstanding that the time may extend beyond the term of the
trust.  

SECTION 4.  Amends Sections 113.053(e) and (g), Property Code, as follows:

(e)  Provides a change in the section under which duties will be imposed
on certain activities of a trustee to Chapter 117, rather than 113.056. 

 (g)  Makes a conforming change.

SECTION 5.  Amends Section 113.055(b), Property Code, to provide that a
change in the section under which duties will be imposed on certain
activities of a trustee to Chapter 117, rather than 113.056. 

SECTION 6.  Amends the heading to Section 113.056, Property Code, to read
as follows: 
 
 Sec. 113.056.  AUTHORIZATION TO MAKE CERTAIN INVESTMENTS.

SECTION 7.  Amends Sections 113.056(a) and (d), Property Code, as follows:

 (a)  Authorizes the trustee to invest all or part of the trust assets in
an investment vehicle  
 authorized for the collective investment of trust funds pursuant to Part
9, Title 12, of the Code of Federal Regulations, unless the terms of the
trust instrument provide otherwise, and subject to the investment
standards provided by this subtitle and any investment standards provided
by the trust instrument. 

(d)  Provides that this subsection is subject to any investment standards
provided by this chapter, Chapter 117, or the trust instrument. 

SECTION 8.  Amends Section 113.060(c), Property Code, to make a conforming
change 

SECTION 9.  Amends Section 114.001(b), Property Code, to make a conforming
change. 
 
SECTION 10.  Amends Section 45.107, Education Code, to authorize the board
of trustees of the district to invest, but not retain, gifts, devises, and
bequests.  Makes a conforming change. 

SECTION 11.  Amends Section 815.307, Government Code, to make a conforming
change. 

SECTION 12.  Amends Section 825.301(a), Government Code, to make a
conforming change 

SECTION 13.  Amends Section 840.303, Government Code, to make a conforming
change. 

SECTION 14.  Amends Section 845.301(a), Government Code, to make a
conforming change. 

SECTION 15.  Amends Section 333(b), Texas Probate Code, to make a
conforming change. 

SECTION 16.  Amends Section 812(b), Texas Probate Code, to make a
conforming change. 

SECTION 17.  Amends Section 856(a), Texas Probate Code, to make conforming
and nonsubstantive changes. 
 SECTION 18.  Repealer:  Sections 113.003 (Retention of Assets),
113.056(b) and (c) (Standard for Trust Management and Investment), and
113.060 (Authority to Delegate Investment Decisions), Property Code. 

SECTION 19.  (a)  Effective date:  January 1, 2004. 
   Makes application of this Act prospective.

(b)  Provides that with respect to a trust existing on January 1, 2004,
this Act applies only to an act or omission relating to the trust
occurring after December 31, 2004. 

LIST OF COMMITTEE AMENDMENTS

Committee Amendment No.  1:

On page 9, strike SECTION 8 and renumber the subsequent sections
accordingly. 

On page 11, line 21, strike "Sections 117.004(a) - (c)" and substitute
"Section 117.004(b)". 

On page 12, line 13, strike "Sections 117.004(a) - (c)" and substitute
"Section 117.004(b)". 

On page 12, line 21, strike "Sections 117.004(a) - (c)" and substitute
"Section 117.004(b)".