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AN ACT
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relating to prohibiting the investment of state funds in certain |
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private business entities doing business in Sudan. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. LEGISLATIVE FINDINGS. (a) On July 23, 2004, |
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the United States Congress declared that "the atrocities unfolding |
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in Darfur, Sudan, are genocide." |
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(b) On September 9, 2004, Secretary of State Colin L. Powell |
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told the United States Senate Committee on Foreign Relations that |
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"genocide has occurred and may still be occurring in Darfur" and |
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"the Government of Sudan and the Janjaweed bear responsibility." |
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(c) On September 21, 2004, addressing the United Nations |
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General Assembly, President George W. Bush affirmed the secretary |
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of state's finding and stated, "At this hour, the world is |
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witnessing terrible suffering and horrible crimes in the Darfur |
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region of Sudan, crimes my government has concluded are genocide." |
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(d) On December 7, 2004, the United States Congress noted |
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that the genocidal policy in Darfur has led to reports of |
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"systematic rape of thousands of women and girls, the abduction of |
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women and children, and the destruction of hundreds of ethnically |
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African villages, including the poisoning of their wells and the |
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plunder of their crops and cattle upon which the people of such |
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villages sustain themselves." |
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(e) Also on December 7, 2004, the United States Congress |
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found that "the Government of Sudan has restricted access by |
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humanitarian and human rights workers to the Darfur area through |
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intimidation by military and security forces, and through |
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bureaucratic and administrative obstruction, in an attempt to |
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inflict the most devastating harm on those individuals displaced |
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from their villages and homes without any means of sustenance or |
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shelter." |
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(f) On September 25, 2006, the United States Congress |
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reaffirmed that "the genocide unfolding in the Darfur region of |
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Sudan is characterized by acts of terrorism and atrocities directed |
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against civilians, including mass murder, rape, and sexual violence |
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committed by the Janjaweed and associated militias with the |
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complicity and support of the National Congress Party-led faction |
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of the Government of Sudan." |
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(g) On September 26, 2006, the United States House of |
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Representatives stated that "an estimated 300,000 to 400,000 people |
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have been killed by the Government of Sudan and its Janjaweed allies |
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since the Darfur crisis began in 2003, more than 2,000,000 people |
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have been displaced from their homes, and more than 250,000 people |
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from Darfur remain in refugee camps in Chad." |
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(h) The Darfur crisis represents the first time the United |
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States government has labeled ongoing atrocities a genocide. |
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(i) The United States government has imposed sanctions |
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against the Government of Sudan since 1997. These sanctions are |
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monitored through the United States Treasury Department's Office of |
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Foreign Assets Control (OFAC). |
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(j) According to a former chair of the United States |
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Securities and Exchange Commission, "the fact that a foreign |
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company is doing material business with a country, government, or |
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entity on OFAC's sanctions list is, in the SEC staff's view, |
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substantially likely to be significant to a reasonable investor's |
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decision about whether to invest in that company." |
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(k) Since 1993, the United States secretary of state has |
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determined that Sudan is a country the government of which has |
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repeatedly provided support for acts of international terrorism, |
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thereby incurring restrictions of United States assistance, |
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defense exports and sales, and financial and other transactions |
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with the Government of Sudan. |
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(l) A 2006 United States House of Representatives report |
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states that "a company's association with sponsors of terrorism and |
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human rights abuses, no matter how large or small, can have a |
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materially adverse result on a public company's operations, |
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financial condition, earnings, and stock prices, all of which can |
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negatively affect the value of an investment." |
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(m) In response to the financial risk posed by investments |
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in companies doing business with a terrorist-sponsoring state, the |
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Securities and Exchange Commission established its Office of Global |
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Security Risk to provide for enhanced disclosure of material |
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information regarding such companies. |
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(n) The current Sudan divestment movement encompasses |
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nearly 100 universities, cities, states, and private pension plans. |
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(o) Companies facing such widespread divestment present |
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further material risk to remaining investors. |
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(p) It is a fundamental responsibility of the state to |
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decide where, how, and by whom financial resources in its control |
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should be invested, taking into account numerous pertinent factors. |
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(q) It is the prerogative and desire of the state, in |
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respect to investment resources in its control and to the extent |
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reasonable, with due consideration for, among other things, |
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fiduciary standards imposed by law, on behalf of itself and its |
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investment beneficiaries, not to participate in an ownership or |
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capital-providing capacity with entities that provide significant |
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practical support for genocide, including certain non-United |
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States companies presently doing business in Sudan. |
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(r) It is the judgment of the legislature that this Act |
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should remain in effect only insofar as it continues to be |
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consistent with, and does not unduly interfere with, the foreign |
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policy of the United States as determined by the United States |
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government. |
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(s) This Act is not intended to interfere with the |
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performance of the fiduciary duties of a manager of funds subject to |
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this Act. |
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(t) It is the judgment of the legislature that mandatory |
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divestment of public funds from certain companies is a measure that |
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should be employed sparingly and judiciously. A congressional and |
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presidential declaration of genocide satisfies this high |
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threshold. |
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SECTION 2. Subtitle A, Title 8, Government Code, is amended |
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by adding Chapter 806 to read as follows: |
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CHAPTER 806. PROHIBITION ON INVESTMENT IN SUDAN |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 806.001. DEFINITIONS. In this chapter: |
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(1) "Active business operations" means all business |
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operations that are not inactive business operations. |
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(2) "Business operations" means engaging in commerce |
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in any form in Sudan, including by acquiring, developing, |
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maintaining, owning, selling, possessing, leasing, or operating |
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equipment, facilities, personnel, products, services, personal |
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property, real property, or any other apparatus of business or |
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commerce. |
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(3) "Company" means a sole proprietorship, |
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organization, association, corporation, partnership, joint |
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venture, limited partnership, limited liability partnership, |
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limited liability company, or other entity or business association |
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whose securities are publicly traded, including a wholly owned |
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subsidiary, majority-owned subsidiary, parent company, or |
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affiliate of those entities or business associations, that exists |
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to make a profit. |
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(4) "Complicit" means taking actions that have |
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directly supported or promoted the genocidal campaign in Darfur, |
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including: |
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(A) preventing members of Darfur's victimized |
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population from communicating with each other; |
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(B) encouraging Sudanese citizens to speak out |
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against an internationally approved security force for Darfur; or |
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(C) actively working to deny, cover up, or alter |
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the record on human rights abuses in Darfur. |
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(5) "Direct holdings in a company" means all |
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securities of that company held directly by a state governmental |
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entity in an account or fund in which a state governmental entity |
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owns all shares or interests. |
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(6) "Government of Sudan" means the government in |
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Khartoum, Sudan, which is led by the National Congress Party, |
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formerly known as the National Islamic Front, or any successor |
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government formed on or after October 13, 2006, including the |
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coalition National Unity Government agreed upon in the |
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Comprehensive Peace Agreement for Sudan. The term does not include |
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the regional government of southern Sudan. |
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(7) "Inactive business operations" means the mere |
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continued holding or renewal of rights to property previously |
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operated to generate revenue but not presently deployed to generate |
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revenue. |
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(8) "Indirect holdings in a company" means all |
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securities of that company held in an account or fund, such as a |
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mutual fund, managed by one or more persons not employed by a state |
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governmental entity, in which the state governmental entity owns |
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shares or interests together with other investors not subject to |
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this chapter. The term does not include money invested under a plan |
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described by Section 401(k) or 457 of the Internal Revenue Code of |
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1986. |
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(9) "Listed company" means a company listed by the |
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comptroller under Section 806.051. |
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(10) "Marginalized populations of Sudan" includes: |
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(A) the portion of the population in the Darfur |
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region that has been genocidally victimized; |
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(B) the portion of the population of southern |
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Sudan victimized by Sudan's North-South civil war; |
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(C) the Beja, Rashidiya, and other similarly |
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underserved groups of eastern Sudan; |
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(D) the Nubian and other similarly underserved |
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groups in Sudan's Abyei, Southern Blue Nile, and Nuba Mountain |
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regions; and |
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(E) the Amri, Hamadab, Manasir, and other |
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similarly underserved groups of northern Sudan. |
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(11) "Military equipment" means weapons, arms, |
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military supplies, and equipment that readily may be used for |
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military purposes, including radar systems or military-grade |
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transport vehicles or supplies or services sold or provided |
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directly or indirectly to any force actively participating in armed |
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conflict in Sudan. |
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(12) "Mineral extraction activities" includes |
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exploring, extracting, processing, transporting, or wholesale |
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selling or trading of elemental minerals or associated metal alloys |
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or oxides (ore), including gold, copper, chromium, chromite, |
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diamonds, iron, iron ore, silver, tungsten, uranium, and zinc, as |
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well as facilitating those activities, including by providing |
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supplies or services in support of those activities. |
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(13) "Oil-related activities" includes: |
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(A) owning rights to oil blocks; |
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(B) exporting, extracting, producing, refining, |
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processing, exploring for, transporting, selling, or trading of |
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oil; |
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(C) constructing, maintaining, or operating a |
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pipeline, refinery, or other oil-field infrastructure; or |
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(D) facilitating oil-related activities, |
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including by providing supplies or services in support of the |
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activities, except that the mere retail sale of gasoline and |
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related consumer products is not an oil-related activity. |
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(14) "Power production activities" means any business |
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operation that involves a project commissioned by the National |
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Electricity Corporation of Sudan or another similar Government of |
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Sudan entity whose purpose is to facilitate power generation and |
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delivery, including establishing power-generating plants or |
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hydroelectric dams, selling or installing components for the |
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project, and providing service contracts related to the |
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installation or maintenance of the project, as well as facilitating |
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those activities, including by providing supplies or services in |
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support of those activities. |
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(15) "Scrutinized company" means a company that: |
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(A) engages in scrutinized business operations |
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described by Section 806.002; or |
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(B) has been complicit in the Darfur genocide |
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during any preceding 20-month period. |
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(16) "Social development company" means a company |
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whose primary purpose in Sudan is to provide humanitarian goods or |
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services, including medicine or medical equipment, agricultural |
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supplies or infrastructure, educational opportunities, |
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journalism-related activities, information or information |
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materials, spiritual-related activities, services of a purely |
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clerical or reporting nature, food, clothing, or general consumer |
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goods that are unrelated to oil-related activities, mineral |
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extraction activities, or power production activities. |
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(17) "State governmental entity" means the Employees |
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Retirement System of Texas or the Teacher Retirement System of |
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Texas. |
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(18) "Substantial action" means adopting, |
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publicizing, and implementing a formal plan to cease scrutinized |
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business operations within one year and to refrain from any such new |
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business operations, undertaking significant humanitarian efforts |
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on behalf of one or more marginalized populations of Sudan, or, |
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through engagement with the Government of Sudan, materially |
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improving conditions for the genocidally victimized population in |
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Darfur. |
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Sec. 806.002. SCRUTINIZED BUSINESS OPERATIONS. A company |
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engages in scrutinized business operations if: |
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(1) the company has business operations that involve |
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contracts with or providing supplies or services to the Government |
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of Sudan, a company in which the Government of Sudan has any direct |
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or indirect equity share, a Government of Sudan-commissioned |
|
consortium or project, or a company involved in a Government of |
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Sudan-commissioned consortium or project, and: |
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(A) more than 10 percent of the company's |
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revenues or assets linked to Sudan involve oil-related activities |
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or mineral extraction activities, less than 75 percent of the |
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company's revenue or assets linked to Sudan involve contracts with |
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or provision of oil-related or mineral extracting products or |
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services to the regional government of southern Sudan or a project |
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or consortium created exclusively by that regional government, and |
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the company has failed to take substantial action; or |
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(B) more than 10 percent of the company's revenue |
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or assets linked to Sudan involve power production activities, less |
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than 75 percent of the company's power production activities |
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include projects whose intent is to provide power or electricity to |
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the marginalized populations of Sudan, and the company has failed |
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to take substantial action; or |
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(2) the company supplies military equipment in Sudan, |
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unless: |
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(A) the company clearly shows that the military |
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equipment cannot be used to facilitate offensive military actions |
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in Sudan; or |
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(B) the company implements rigorous and |
|
verifiable safeguards to prevent use of that equipment by forces |
|
actively participating in armed conflict, including: |
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(i) using post-sale tracking of the |
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equipment by the company; |
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(ii) obtaining certification from a |
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reputable and objective third party that the equipment is not being |
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used by a party participating in armed conflict in Sudan; or |
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(iii) selling the equipment solely to the |
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regional government of southern Sudan or any internationally |
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recognized peacekeeping force or humanitarian organization. |
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Sec. 806.003. SOCIAL DEVELOPMENT COMPANY. Notwithstanding |
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any other law, a social development company that is not complicit in |
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the Darfur genocide is not a scrutinized company. |
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Sec. 806.004. EXCEPTION. Notwithstanding any other law, a |
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company that the United States government affirmatively declares to |
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be excluded from its federal sanctions regime relating to Sudan is |
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not subject to divestment or investment prohibition under this |
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chapter. |
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Sec. 806.005. OTHER LEGAL OBLIGATIONS. With respect to |
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actions taken in compliance with this chapter, including all good |
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faith determinations regarding companies as required by this |
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chapter, a state governmental entity is exempt from any conflicting |
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statutory or common law obligations, including any obligations with |
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respect to making investments, divesting from any investment, |
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preparing or maintaining any list of companies, or choosing asset |
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managers, investment funds, or investments for the state |
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governmental entity's securities portfolios. |
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Sec. 806.006. INDEMNIFICATION OF STATE GOVERNMENTAL |
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ENTITIES, EMPLOYEES, AND OTHERS. In a cause of action based on an |
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action, inaction, decision, divestment, investment, company |
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communication, report, or other determination made or taken in |
|
connection with this chapter, the state shall, without regard to |
|
whether the person performed services for compensation, indemnify |
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and hold harmless for actual damages, court costs, and attorney's |
|
fees adjudged against, and defend: |
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(1) an employee, a member of the governing body, or any |
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other officer of a state governmental entity; |
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(2) a contractor of a state governmental entity; |
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(3) a former employee, former member of the governing |
|
body, or any other former officer of a state governmental entity who |
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was an employee or officer when the act or omission on which the |
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damages are based occurred; and |
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(4) a former contractor of a state governmental entity |
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who was a contractor when the act or omission on which the damages |
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are based occurred. |
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Sec. 806.007. NO PRIVATE CAUSE OF ACTION. (a) A person, |
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including a member, retiree, and beneficiary of a retirement system |
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to which this chapter applies, an association, a research firm, a |
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company, or any other person may not sue or pursue a private cause |
|
of action against the state, a state governmental entity, an |
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employee, a member of the governing body, or any other officer of a |
|
state governmental entity, or a contractor of a state governmental |
|
entity, for any claim or cause of action, including breach of |
|
fiduciary duty, or for violation of any constitutional, statutory, |
|
or regulatory requirement in connection with any action, inaction, |
|
decision, divestment, investment, company communication, report, |
|
or other determination made or taken in connection with this |
|
chapter. |
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(b) A person who files suit against the state, a state |
|
governmental entity, an employee, a member of the governing body, |
|
or any other officer of a state governmental entity, or a contractor |
|
of a state governmental entity, is liable for paying the costs and |
|
attorney's fees of a person sued in violation of this section. |
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[Sections 806.008-806.050 reserved for expansion] |
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SUBCHAPTER B. DUTIES REGARDING INVESTMENTS |
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Sec. 806.051. LISTED COMPANIES. (a) The comptroller shall |
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prepare and maintain, and provide to each state governmental |
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entity, a list of all scrutinized companies. In maintaining the |
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list of scrutinized companies, the comptroller may review and rely, |
|
as appropriate in the comptroller's judgment, on publicly available |
|
information regarding companies with business operations in Sudan, |
|
including information provided by the state, nonprofit |
|
organizations, research firms, international organizations, and |
|
governmental entities. |
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(b) The comptroller shall update the list of scrutinized |
|
companies annually or more often as the comptroller considers |
|
necessary, but not more often than quarterly, based on information |
|
from, among other sources, those listed in Subsection (a). |
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(c) Not later than the 30th day after the date the list of |
|
scrutinized companies is first provided or updated, the comptroller |
|
shall file the list of scrutinized companies with the presiding |
|
officer of each house of the legislature and the attorney general. |
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Sec. 806.052. IDENTIFICATION OF INVESTMENT IN LISTED |
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COMPANIES. Not later than the 14th day after the date a state |
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governmental entity receives the list provided under Section |
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806.051(c), the state governmental entity shall notify the |
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comptroller of the listed companies in which the state governmental |
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entity owns direct or indirect holdings. |
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Sec. 806.053. NOTICE TO LISTED COMPANY ENGAGED IN INACTIVE |
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BUSINESS OPERATIONS. For each listed company identified under |
|
Section 806.052 that is engaged in only inactive scrutinized |
|
business operations, the state governmental entity shall send a |
|
written notice informing the company of this chapter and |
|
encouraging the company to continue to refrain from initiating |
|
active business operations in Sudan until it is able to avoid being |
|
considered a listed company. The state governmental entity shall |
|
continue the correspondence as the entity considers necessary, but |
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is not required to initiate correspondence more often than |
|
semiannually. |
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Sec. 806.054. ACTIONS RELATING TO LISTED COMPANY ENGAGED IN |
|
ACTIVE BUSINESS OPERATIONS. (a) For each listed company |
|
identified under Section 806.052 that is engaged in scrutinized |
|
active business operations, the state governmental entity shall |
|
send a written notice informing the company of its listed company |
|
status and warning the company that it may become subject to |
|
divestment by state governmental entities. |
|
(b) The notice shall offer the company the opportunity to |
|
clarify its Sudan-related activities and shall encourage the |
|
company, not later than the 90th day after the date the company |
|
receives notice under this section, to either cease its scrutinized |
|
business operations or convert such operations to inactive business |
|
operations in order to avoid qualifying for divestment by state |
|
governmental entities. |
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(c) If, during the time provided by Subsection (b), the |
|
company ceases scrutinized business operations, the comptroller |
|
shall remove the company from the list of scrutinized companies and |
|
this chapter will no longer apply to the company unless it resumes |
|
scrutinized business operations. |
|
(d) If, during the time provided by Subsection (b), the |
|
company converts its scrutinized active business operations to |
|
inactive business operations, the company is subject to all |
|
provisions of this chapter relating to inactive business |
|
operations. |
|
(e) If, after the time provided by Subsection (b) expires, |
|
the listed company continues to have scrutinized active business |
|
operations, the state governmental entity shall sell, redeem, |
|
divest, or withdraw all publicly traded securities of the company, |
|
except securities described by Section 806.057, according to the |
|
schedule provided by Section 806.056. |
|
Sec. 806.055. ACTIONS RELATING TO LISTED COMPANY COMPLICIT |
|
IN GENOCIDE. (a) For each company identified under Section |
|
806.052 that has been complicit, the state governmental entity |
|
shall send a written notice informing the company of its listed |
|
company status and warning the company that it may become subject to |
|
divestment by the state governmental entity. |
|
(b) The notice must require the listed company to refrain |
|
from taking any further action that would make it complicit. |
|
(c) If, after receiving the notice under Subsection (a), the |
|
listed company takes additional action that makes the company |
|
complicit, the state governmental entity shall sell, redeem, |
|
divest, or withdraw all publicly traded securities of the company, |
|
except securities described by Section 806.057, according to the |
|
schedule provided by Section 806.056. |
|
Sec. 806.056. DIVESTMENT OF ASSETS. (a) A state |
|
governmental entity required to sell, redeem, divest, or withdraw |
|
all publicly traded securities of a listed company shall comply |
|
with the following schedule: |
|
(1) at least 50 percent of those assets shall be |
|
removed from the state governmental entity's assets under |
|
management not later than the 270th day after the date the company |
|
receives notice under Section 806.054 or 806.055 or Subsection (b); |
|
and |
|
(2) 100 percent of those assets shall be removed from |
|
the state governmental entity's assets under management not later |
|
than the 450th day after the date the company receives notice under |
|
Section 806.054 or 806.055 or Subsection (b). |
|
(b) If a company that ceased scrutinized active business |
|
operations after receiving notice under Section 806.054 resumes |
|
scrutinized active business operations, the state governmental |
|
entity shall send a written notice to the company informing it that |
|
the state governmental entity will sell, redeem, divest, or |
|
withdraw all publicly traded securities of the scrutinized company |
|
according to the schedule in Subsection (a). |
|
(c) A state governmental entity may delay the schedule for |
|
divestment under Subsection (a) only to the extent that the state |
|
governmental entity determines, in the state governmental entity's |
|
good faith judgment, that divestment from listed companies will |
|
likely result in a loss in value described by Section 806.058(a). |
|
If a state governmental entity delays the schedule for divestment, |
|
the state governmental entity shall submit a report to the |
|
presiding officer of each house of the legislature and the attorney |
|
general stating the reasons and justification for the state |
|
governmental entity's delay in divestment from listed companies. |
|
The report must include documentation supporting its determination |
|
that the divestment would result in a loss in value described by |
|
Section 806.058(a), including objective numerical estimates. The |
|
state governmental entity shall update the report every six months. |
|
Sec. 806.057. INVESTMENTS EXEMPTED FROM DIVESTMENT. A |
|
state governmental entity is not required to divest from any |
|
indirect holdings in actively managed investment funds or private |
|
equity funds. The state governmental entity shall submit letters |
|
to the managers of investment funds containing listed companies |
|
requesting that they consider removing those companies from the |
|
fund or create a similar actively managed fund with indirect |
|
holdings devoid of listed companies. If the manager creates a |
|
similar fund with substantially the same management fees and same |
|
level of investment risk, the state governmental entity shall |
|
replace all applicable investments with investments in the similar |
|
fund in an expedited time frame consistent with prudent fiduciary |
|
standards. |
|
Sec. 806.058. AUTHORIZED INVESTMENT IN LISTED COMPANIES. |
|
(a) A state governmental entity may cease divesting from or may |
|
reinvest in one or more listed companies if clear and convincing |
|
evidence shows that the value for all assets under management by the |
|
state governmental entity becomes equal to or less than 99.7 |
|
percent of the hypothetical value of all assets under management by |
|
the state governmental entity had the state governmental entity not |
|
divested from listed companies under this chapter. |
|
(b) A state governmental entity may invest in a listed |
|
company as provided by this section only to the extent necessary to |
|
ensure that the value of the assets managed by the state |
|
governmental entity does not fall below the value described by |
|
Subsection (a). |
|
(c) Before a state governmental entity may invest in a |
|
listed company under this section, the state governmental entity |
|
must provide a written report to the presiding officer of each house |
|
of the legislature and the attorney general setting forth the |
|
reason and justification, supported by clear and convincing |
|
evidence, for its decisions to cease divestment, to reinvest, or to |
|
remain invested in a listed company. |
|
(d) The state governmental entity shall update the report |
|
required by Subsection (c) semiannually, as applicable. |
|
(e) This section does not apply to reinvestment in a company |
|
that has ceased to be a listed company. |
|
Sec. 806.059. PROHIBITED INVESTMENTS. Except as provided |
|
by Sections 806.004 and 806.058, a state governmental entity may |
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not acquire securities of a listed company. |
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[Sections 806.060-806.100 reserved for expansion] |
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SUBCHAPTER C. EXPIRATION; REPORT; ENFORCEMENT |
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Sec. 806.101. EXPIRATION OF CHAPTER. This chapter expires |
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on the earliest of: |
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(1) the date on which the United States Congress or the |
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president of the United States declares that the Darfur genocide |
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has been halted for at least 12 months; |
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(2) the date on which the United States revokes its |
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sanctions against the Government of Sudan; or |
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(3) the date on which the United States Congress or the |
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president of the United States, through legislation or executive |
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order, declares that mandatory divestment of the type provided for |
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in this chapter interferes with the conduct of United States |
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foreign policy. |
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Sec. 806.102. REPORT. Not later than December 31 of each |
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year, each state governmental entity shall file a publicly |
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available report with the presiding officer of each house of the |
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legislature, the attorney general, and the United States |
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presidential special envoy to Sudan that: |
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(1) identifies all investments sold, redeemed, |
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divested, or withdrawn in compliance with Section 806.056; |
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(2) identifies all prohibited investments under |
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Section 806.059; and |
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(3) summarizes any changes made under Section 806.057. |
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Sec. 806.103. ENFORCEMENT. The attorney general may bring |
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any action necessary to enforce this chapter. |
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SECTION 3. Not later than January 1, 2008, the comptroller |
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of public accounts shall prepare and provide to each state |
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governmental entity, as defined by Section 806.001, Government |
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Code, as added by this Act, the list of scrutinized companies |
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required by Section 806.051, Government Code, as added by this Act. |
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SECTION 4. This Act takes effect January 1, 2008. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 247 passed the Senate on |
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March 20, 2007, by the following vote: Yeas 29, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 247 passed the House on |
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May 16, 2007, by the following vote: Yeas 146, Nays 0, one present |
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not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |