78R3602 ESH-D

By:  Gallego                                                      H.B. No. 1135


A BILL TO BE ENTITLED
AN ACT
relating to the investment and management of the permanent school fund. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. PERMANENT SCHOOL FUND ADVISORY COMMITTEE
SECTION 1.01. Subchapter D, Chapter 7, Education Code, is amended by adding Section 7.113 to read as follows: Sec. 7.113. CONTRACT WITH STATE AUDITOR FOR INVESTIGATIONS. (a) In this section, "investigation" has the meaning assigned by Section 321.0136, Government Code. (b) The board shall enter into a written contract with the state auditor under Chapter 771, Government Code, for the state auditor to investigate any allegation made in writing to the board raising the issue of misfeasance or malfeasance relating to the management or investment of the permanent school fund, including an allegation relating to: (1) the board's compliance with the investment standards prescribed under Section 5(d), Article VII, Texas Constitution; (2) any violation of the ethics policy adopted by the board under Section 43.0031; (3) any violation of Section 43.0032; (4) any conflict of interest that affects the board's decisions relating to: (A) consultant and money manager selection; (B) asset allocation; and (C) broker-dealer eligibility requirements; and (5) the effect of an informal advisor on the board's decisions relating to management or investment of the permanent school fund. SECTION 1.02. Chapter 43, Education Code, is amended by adding Sections 43.0011 and 43.0012 to read as follows: Sec. 43.0011. DEFINITION. In this chapter, "interested person" means a person who applies for or receives anything of value as a direct or indirect result of permanent school fund investments. Sec. 43.0012. PERMANENT SCHOOL FUND INVESTMENT ADVISORY COMMITTEE. (a) The permanent school fund investment advisory committee shall advise the State Board of Education regarding management and investment of the permanent school fund. (b) The committee is composed of: (1) three members appointed by the governor, who are not subject to confirmation by the senate; (2) three members appointed by the lieutenant governor; and (3) three members appointed by the speaker of the house of representatives. (c) A member of the committee serves at the will of the member's appointing authority. (d) A person appointed to the committee must possess substantial experience and expertise in investments, as determined by the appointing authority. (e) The committee shall select a presiding officer from among its members and shall meet at the call of the presiding officer. (f) A member of the committee may not receive compensation but is entitled to reimbursement for travel expenses incurred by the member while conducting the business of the committee as provided by the General Appropriations Act. (g) The committee is not subject to Chapter 2110, Government Code. SECTION 1.03. Section 43.0031(b), Education Code, is amended to read as follows: (b) The ethics policy must include provisions applicable to: (1) members of the State Board of Education; (2) members of the permanent school fund investment advisory committee; (3) the commissioner; (4) [(3)] employees of the agency; [and] (5) [(4)] any person who provides services to the board relating to the management or investment of the permanent school fund; and (6) an interested person. SECTION 1.04. Section 43.0032, Education Code, is amended by amending Subsections (a) and (c) and adding Subsection (a-1) to read as follows: (a) This section applies to: (1) a [A] member of the State Board of Education; (2) a member of the permanent school fund investment advisory committee; (3) [,] the commissioner; (4) [,] an employee of the agency; (5) [, or] a person who provides services to the board that relate to the management or investment of the permanent school fund; and (6) an interested person. (a-1) A person to whom this section applies who has a business, commercial, or other relationship that a reasonable person would find likely [could reasonably be expected] to diminish the person's independence of judgment in the performance of the person's responsibilities relating to the management or investment of the fund shall disclose the relationship in writing to the board. (c) A person who files a statement under Subsection (a-1) [(a)] disclosing a possible conflict of interest may not give advice or make decisions about a matter affected by the possible conflict of interest unless the board, after consultation with the general counsel of the agency, expressly waives this prohibition. The board may delegate the authority to waive the prohibition established by this subsection. SECTION 1.05. Section 43.0033, Education Code, is amended to read as follows: Sec. 43.0033. REPORTS OF EXPENDITURES. A consultant, advisor, broker, money manager, investment manager, dealer, or other person providing services to the State Board of Education relating to the management and investment of the permanent school fund shall file with the board regularly, as determined by the board, a report that describes in detail any expenditure of more than $50 made by the person on behalf of: (1) a member of the board; (2) a member of the permanent school fund investment advisory committee; (3) the commissioner; [or] (4) [(3)] an employee of the agency or of a nonprofit corporation created under Section 43.006; or (5) an interested person. SECTION 1.06. Chapter 43, Education Code, is amended by adding Sections 43.0035, 43.0036, 43.0051, and 43.0052 to read as follows: Sec. 43.0035. FAILURE TO DISCLOSE POTENTIAL CONFLICT OF INTEREST RELATING TO MANAGEMENT OR INVESTMENT OF PERMANENT SCHOOL FUND. If an interested person enters into an arrangement involving the management or investment of the permanent school fund under which the interested person serves as a consultant, advisor, broker, money manager, investment manager, dealer, or vendor of a consultant, advisor, broker, money manager, investment manager, or dealer and the interested person fails to disclose a relationship described by Section 43.0032(a-1) with another interested person: (1) the arrangement is voidable by the State Board of Education or the comptroller; and (2) the State Board of Education or the comptroller may enter an order declaring the person ineligible to contract for business relating to management or investment of the permanent school fund. Sec. 43.0036. INFORMATION REGARDING PERSONS INTERESTED IN INVESTMENTS OF PERMANENT SCHOOL FUND. (a) The State Board of Education shall maintain on an Internet website a listing of each interested person. The list must include the person's full name and business address and must be updated at least once each calendar quarter. (b) The State Board of Education may use an Internet website established and maintained by the agency to comply with this section. Sec. 43.0051. REQUIRED CONTRACT PROVISION. The State Board of Education shall include as a part of each contract under which a consultant, advisor, broker, money manager, investment manager, dealer, or other person agrees to provide services to the board relating to the management or investment of the permanent school fund a standard provision adopted by the board: (1) requiring the person to comply with all applicable statutes and rules relating to the services provided by the person to the board; and (2) acknowledging that the board may terminate the contract or any other arrangement between the board and the person if the person fails to comply with those statutes and rules. Sec. 43.0052. COOPERATION RELATING TO INVESTIGATION OR DISCIPLINARY ACTIONS OF CERTAIN PERSONS INTERESTED IN MANAGEMENT OR INVESTMENT OF PERMANENT SCHOOL FUND. (a) As appropriate, the comptroller shall provide information relating to disciplinary actions taken by the State Board of Education or the comptroller against a consultant, advisor, broker, money manager, investment manager, or dealer doing business with or seeking to do business with the permanent school fund to: (1) the United States Securities and Exchange Commission; (2) the securities commissioner; (3) self-regulatory organizations, including the National Association of Securities Dealers, Inc. (NASD); and (4) professional organizations of persons involved in management or investment of institutional funds, including the Association for Investment Management and Research. (b) The comptroller shall closely cooperate with persons described by Subsections (a)(1)-(4) in those persons' investigations involving consultants, brokers, or dealers doing business with or seeking to do business with the permanent school fund. SECTION 1.07. Section 43.006(f), Education Code, is amended to read as follows: (f) The corporation shall file [quarterly] reports with the State Board of Education concerning matters required by the board. The board may determine the frequency of reports under this subsection. SECTION 1.08. Chapter 43, Education Code, is amended by adding Sections 43.0061, 43.0062, and 43.0063 to read as follows: Sec. 43.0061. BARRING CERTAIN PERSONS FROM CONTRACTING TO PROVIDE SERVICES RELATING TO MANAGEMENT OR INVESTMENT OF PERMANENT SCHOOL FUND. (a) An interested person may be barred from contracting with the State Board of Education or another interested person to provide services relating to the management or investment of the permanent school fund if it is determined at a contested case hearing held under Section 43.0062 that the interested person who is the subject of the hearing has violated: (1) the ethics policy adopted by the board under Section 43.0031; or (2) the conflict of interest restrictions under Section 43.0032. (b) This section does not affect the validity of a contract entered into before a determination is made that the interested person should be barred from contracting with the State Board of Education or another interested person unless the contract may be voided under this chapter. Sec. 43.0062. HEARINGS BY STATE OFFICE OF ADMINISTRATIVE HEARINGS. (a) The commissioner, on behalf of the State Board of Education, and the chief administrative law judge of the State Office of Administrative Hearings shall adopt a memorandum of understanding under which the State Office of Administrative Hearings conducts the contested case hearings required for purposes of Section 43.0061. (b) The memorandum of understanding must require the chief administrative law judge and the State Board of Education to cooperate in connection with a contested case hearing required for purposes of Section 43.0061. (c) The memorandum of understanding must provide that the administrative law judge who conducts a contested case hearing for the State Office of Administrative Hearings on behalf of the State Board of Education, after completing the hearing, shall: (1) determine whether a ground exists under Section 43.0061(a) so that an interested person should be barred from contracting with the State Board of Education or another interested person to provide services relating to the management or investment of the permanent school fund; and (2) if a determination is made that the interested person should be barred from contracting with the board or another interested person, notwithstanding Section 2003.042, Government Code, enter the final decision in the case concerning the period for which the person is barred based on: (A) whether the person has previously violated the ethics policy or conflict of interest restrictions; (B) the seriousness of the person's violation; and (C) the damage to the interests of the permanent school fund. (d) A person may obtain judicial review of a decision of an administrative law judge under this section in the manner provided by Subchapter G, Chapter 2001, Government Code. Sec. 43.0063. MANAGEMENT AND PERFORMANCE AUDIT. (a) As frequently as the legislative audit committee determines necessary or advisable, the committee shall select an independent firm with substantial experience in evaluating institutional investment practices and performance to evaluate investment management practices and performance relating to the permanent school fund. (b) The legislative audit committee shall determine specific areas to be evaluated. (c) A firm selected under this section shall file a report of the firm's evaluation under this section with the legislative audit committee not later than the date specified by the committee. (d) The agency shall pay the costs of each evaluation under this section out of the available school fund. SECTION 1.09. Section 43.007, Education Code, is amended to read as follows: Sec. 43.007. PURCHASE AND SALE OR EXCHANGE OF INVESTMENTS [SECURITIES]. (a) The State Board of Education may authorize the purchase of all investments [of the types of securities] in which it is authorized by law to invest the permanent school fund [in either registered or negotiable form]. The board may authorize the reissue of those investments [securities] held at any time for the account of the permanent school fund [in either registered or negotiable form]. The State Board of Education may authorize the sale of any investments [of the securities] held for the account of the permanent school fund and reinvest the proceeds of sale for the fund and may authorize the exchange of any investments [of the securities] held for the account of the permanent school fund. (b) In making purchases, sales, exchanges, and reissues, the State Board of Education shall exercise the standard of care prescribed by Section 5(d), Article VII, Texas Constitution [judgment and care under the circumstances then prevailing that persons of ordinary prudence, discretion, and intelligence exercise in the management of their own affairs not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital]. (c) When any investments [securities] are sold, reissued, or exchanged as provided by Subsection (a), the custodian of the investments [securities] shall deliver the investments [securities] sold, reissued, or exchanged in accordance with the directions of the State Board of Education. SECTION 1.10. The heading to Section 43.010, Education Code, is amended to read as follows: Sec. 43.010. DEFAULT OF SCHOOL DISTRICT BONDS [SECURITIES] HELD BY [THE] PERMANENT SCHOOL FUND. SECTION 1.11. Sections 43.010(b) and (d), Education Code, are amended to read as follows: (b) Revenue collected by either method specified by Subsection (a) shall be distributed proportionately to all owners of the defaulted bonds [securities] in compliance with the following: (1) the proportionate share for each owner is based on the interest and principal requirements of the original bond [security] before authorized refunding; and (2) prior acceptance of refunding bonds [securities] does not reduce an owner's proportionate share. (d) The comptroller may not issue any warrant from the foundation school fund to or for the benefit of any district that has been for as long as two years in default in the payment of principal or interest on any bond [security] owned by the permanent school fund until the State Board of Education certifies that the district has satisfactorily complied with the appropriate provisions of this section, in which event the comptroller shall resume making payments to or for the benefit of the district, including the making of pretermitted payments. SECTION 1.12. Section 43.015(f), Education Code, is amended to read as follows: (f) The comptroller shall be the custodian of investments [all securities enumerated in Section 43.003(6) and of other securities as] designated by the State Board of Education in which the school funds of the state are invested. The comptroller shall keep those investments [securities] in the comptroller's custody until paid off, discharged, delivered as required by the State Board of Education, or otherwise disposed of by the proper authorities of the state, and on the proper installment of any interest or dividend, shall see that the proper credit is given, and the coupons on bonds, when paid, shall be separated from the bonds and cancelled by the comptroller. SECTION 1.13. Section 43.017, Education Code, is amended to read as follows: Sec. 43.017. USE OF COMMERCIAL BANKS AS AGENTS FOR COLLECTION OF INCOME FROM PERMANENT SCHOOL FUND INVESTMENTS. (a) The State Board of Education may contract with one or more commercial banks to receive payments of dividends and interest on investments [securities] in which the state permanent school funds are invested and transmit that money with identification of its source to the comptroller for the account of the available school fund by the fastest available means. (b) In choosing each commercial bank with which to contract as authorized by Subsection (a), the State Board of Education shall assure itself of: (1) the financial stability of the bank; (2) the location of the bank with respect to its proximity to the banks on which checks are drawn in payment of dividends and interest on investments [securities] of the permanent school fund; (3) the experience and reliability of the bank in acting as agent for others in the similar collection and expeditious remittance of money; and (4) the reasonableness of the bank's charges for the services, both in amount of the charges and in relation to the increased investment earnings of the available school fund that will result from speedier receipt by the comptroller of the money. SECTION 1.14. Section 43.018(b), Education Code, is amended to read as follows: (b) The State Board of Education may contract with a commercial bank pursuant to this section only if: (1) the bank is located in a city having a major stock exchange; (2) the bank is experienced in the operation of a fully secured securities loan program; (3) the bank has adequate capital in the prudent judgment of the State Board of Education to assure the safety of the securities entrusted to it as a custodian; (4) the bank will require of any securities broker or dealer to which it lends securities owned by the state permanent school fund that the broker or dealer deliver to it cash collateral for the loan of securities, and that the cash collateral will at all times be not less than 100 percent of the market value of the securities lent; (5) the bank executes an indemnification agreement, satisfactory in form and content to the State Board of Education, fully indemnifying the permanent and available school funds against loss resulting from borrower default or the failure of the bank to properly execute the responsibilities of the bank under the applicable securities lending agreement [the bank's service as custodian of securities of the permanent school fund and its operation of a securities loan program using securities of the permanent school fund]; (6) the bank will speedily collect and remit on the day of collection by the fastest available means to the comptroller any dividends and interest collectible by it on securities held by it as custodian, together with identification as to the source of the dividends or interest; and (7) the bank is the bank agreeing to pay to the available school fund the largest sum or highest percentage of the income derived by the bank from use of the securities of the permanent school fund in the operation of a securities loan program. SECTION 1.15. Section 321.013, Government Code, is amended by adding Subsection (j) to read as follows: (j) The State Auditor shall enter into a written contract with the State Board of Education for the State Auditor to investigate an allegation relating to the management and investment of the permanent school fund as prescribed by Section 7.113, Education Code. After an investigation of an allegation is completed, the State Auditor shall prepare a written report of the results of that investigation. The State Auditor shall submit the report to the committee before publication. The State Auditor shall file a copy of the report with the governor, the lieutenant governor, the speaker of the house of representatives, each member of the State Board of Education, and each member of the standing committees of the senate and of the house of representatives with primary jurisdiction over the State Board of Education. SECTION 1.16. Not later than December 1, 2003, the governor, lieutenant governor, and speaker of the house of representatives shall appoint members of the permanent school fund investment advisory committee, as required by Section 43.0012, Education Code, as added by this article. SECTION 1.17. Sections 43.0035 and 43.0051, Education Code, as added by this article, apply only to an arrangement or contract entered into on or after September 1, 2003. SECTION 1.18. Not later than December 1, 2003, the State Board of Education shall post on an Internet website the information required by Section 43.0036, Education Code, as added by this article. SECTION 1.19. Not later than December 1, 2003, the commissioner of education, on behalf of the State Board of Education, and the chief administrative law judge of the State Office of Administrative Hearings shall adopt a memorandum of understanding as prescribed by Section 43.0062, Education Code, as added by this article. SECTION 1.20. Not later than December 1, 2003, the legislative audit committee shall select an independent firm to evaluate investment management practices and performance relating to the permanent school fund as required by Section 43.0063, Education Code, as added by this article. The evaluation must include a comprehensive analysis of the State Board of Education's investment program relating to the permanent school fund.
ARTICLE 2. COMPOSITION OF AND AUTHORIZED INVESTMENTS FOR PERMANENT SCHOOL FUND
SECTION 2.01. Section 43.003, Education Code, is repealed. SECTION 2.02. Sections 43.001(a) and (b), Education Code, are amended to read as follows: (a) The permanent school fund, which is a perpetual endowment for the public schools of this state, consists of: (1) all land appropriated for the public schools by the constitution and laws of this state; (2) all of the unappropriated public domain remaining in this state, including all land recovered by the state by suit or otherwise except pine forest land as defined by Section 88.111; (3) all proceeds from the authorized sale of permanent school fund land; (4) all proceeds from the lawful sale of any other properties belonging to the permanent school fund; (5) all investments [authorized by Section 43.003] of properties belonging to the permanent school fund; and (6) all income from the mineral development of permanent school fund land, including income from mineral development of riverbeds and other submerged land. (b) The available school fund, which shall be apportioned annually to each county according to its scholastic population, consists of: (1) the interest and dividends arising from any investments [securities] or funds belonging to the permanent school fund; (2) all interest derivable from the proceeds of the sale of land set apart for the permanent school fund; (3) all money derived from the lease of land belonging to the permanent school fund; (4) one-fourth of all revenue derived from all state occupation taxes, exclusive of delinquencies and cost of collection; (5) one-fourth of revenue derived from state gasoline and special fuels excise taxes as provided by law; and (6) all other appropriations to the available school fund made by the legislature for public school purposes.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. This Act takes effect September 1, 2003.