Bill Text: TX HB3505 | 2013-2014 | 83rd Legislature | Introduced
Bill Title: Relating to the establishment and administration of a state bullion depository and the investment of certain public money in precious metals and depository accounts.
Spectrum: Partisan Bill (Republican 12-0)
Status: (Introduced - Dead) 2013-04-23 - Left pending in subcommittee [HB3505 Detail]
Download: Texas-2013-HB3505-Introduced.html
83R1852 JJT-F | ||
By: Capriglione | H.B. No. 3505 |
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relating to the establishment and administration of a state bullion | ||
depository and the investment of certain public money in precious | ||
metals and depository accounts. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subtitle C, Title 10, Government Code, is | ||
amended by adding Chapter 2116 to read as follows: | ||
CHAPTER 2116. TEXAS BULLION DEPOSITORY | ||
SUBCHAPTER A. ESTABLISHMENT AND ADMINISTRATION OF TEXAS | ||
BULLION DEPOSITORY | ||
Sec. 2116.001. DEFINITIONS. In this chapter: | ||
(1) "Administrator" means the bullion depository | ||
administrator appointed under Section 2116.003. | ||
(2) "Bullion" means precious metals that are formed | ||
into uniform shapes and quantities such as ingots, bars, or plates, | ||
with uniform content and purity, as are suitable for or customarily | ||
used in the purchase, sale, storage, transfer, and delivery of bulk | ||
or wholesale transactions in precious metals. | ||
(3) "Business day" means a day other than a Saturday, | ||
Sunday, or banking holiday for a bank chartered under the laws of | ||
this state. | ||
(4) "Deposit" means the establishment of an executory | ||
obligation of the depository's to deliver to the order of the person | ||
establishing with the depository the obligation, on demand, a | ||
quantity of a specified precious metal, in bullion, specie, or a | ||
combination of both, equal to the quantity of the same precious | ||
metal delivered by or on behalf of the depositor into the custody | ||
of: | ||
(A) the depository; or | ||
(B) a depository agent. | ||
(5) "Depositor" means a person who makes a deposit. | ||
(6) "Depository" means the Texas Bullion Depository | ||
created by this chapter. | ||
(7) "Depository account" means the rights, interests, | ||
and entitlements established in favor of a depositor with respect | ||
to a deposit in accordance with this chapter and rules adopted under | ||
this chapter. | ||
(8) "Depository account holder," regarding a | ||
depository account, means the original depositor or a successor or | ||
assignee of the depositor respecting the depository account. | ||
(9) "Depository agent" means a person licensed in | ||
accordance with this chapter to serve as an intermediary between | ||
the depository and a retail customer in making a transaction in | ||
precious metals bullion or specie. | ||
(10) "Precious metal" means a metal, including gold, | ||
silver, platinum, palladium, and rhodium, that: | ||
(A) bears a high value-to-weight ratio relative | ||
to common industrial metals; and | ||
(B) customarily is formed into bullion or specie. | ||
(11) "Specie" means a precious metal stamped into | ||
coins of uniform shape, size, design, content, and purity, suitable | ||
for or customarily used as currency, as a medium of exchange, or as | ||
the medium for purchase, sale, storage, transfer, or delivery of | ||
precious metals in retail or wholesale transactions. | ||
Sec. 2116.002. TEXAS BULLION DEPOSITORY. (a) The Texas | ||
Bullion Depository is established as an agency of this state in the | ||
office of the comptroller. | ||
(b) The depository is established to: | ||
(1) serve as the custodian, guardian, and | ||
administrator of all bullion and specie transferred to or otherwise | ||
acquired by this state or an agency, a political subdivision, or | ||
another instrumentality of this state; | ||
(2) provide the basis for a system for precious | ||
metals-denominated intergovernmental payments and settlements | ||
between and among: | ||
(A) the agencies, political subdivisions, and | ||
instrumentalities of this state; and | ||
(B) persons making payments to, receiving | ||
payments from, or otherwise doing business with an agency, a | ||
political subdivision, or another instrumentality of this state in | ||
the exercise and discharge of a governmental function or | ||
responsibility of the political subdivision, agency, or | ||
instrumentality; | ||
(3) establish a process and mechanism by which the | ||
system described by Subdivision (2) is able to function in the event | ||
of a systemic dislocation in a national and international financial | ||
system, including systemic problems in liquidity, credit markets, | ||
or currency markets; and | ||
(4) provide a regulatory and administrative framework | ||
for the system described by Subdivision (2) to be made available to | ||
private persons. | ||
Sec. 2116.003. DEPOSITORY ADMINISTRATION; ADMINISTRATOR. | ||
(a) The depository is administered as a division of the office of | ||
the comptroller and under the direction and supervision of a | ||
bullion depository administrator appointed by the comptroller with | ||
the advice and consent of the governor, lieutenant governor, and | ||
senate. | ||
(b) The administrator shall: | ||
(1) administer, supervise, and direct the operations | ||
and affairs of the depository and depository agents; and | ||
(2) liaise with the comptroller and other divisions of | ||
the office of the comptroller to ensure that each transaction with | ||
the depository that involves state money, that involves an agency, | ||
a political subdivision, or another instrumentality of this state, | ||
or that involves a private person is planned, administered, and | ||
executed in a manner to achieve the purposes of this chapter. | ||
(c) The administrator may appoint, subject to the approval | ||
of the comptroller, a deputy administrator or other subordinate | ||
officer as necessary and appropriate to the efficient | ||
administration of the depository. | ||
Sec. 2116.004. DEPOSITS AND RELATED ASSETS NOT SUBJECT TO | ||
LEGISLATIVE APPROPRIATION; STATUS OF DEPOSITS AND ALLOCATION OF | ||
REVENUES. (a) The following are not available for legislative | ||
appropriation: | ||
(1) a deposit to the depository; | ||
(2) bullion or specie held by or on behalf of the | ||
depository or a depository agent; | ||
(3) bullion or specie in transit to or from the | ||
depository or a depository agent; and | ||
(4) a receivable or other amount owed to the | ||
depository in settlement of a transaction in bullion or specie. | ||
(b) Bullion, specie, and other assets described by | ||
Subsection (a) are subject to redemption, liquidation, or transfer | ||
exclusively to discharge an obligation of the depository to | ||
depository account holders, depository agents, bullion banks, | ||
financial institutions, or other intermediaries in accordance with | ||
this chapter and rules adopted under this chapter. | ||
(c) Revenue the depository realizes from fees, charges, or | ||
other payments received in the course of depository operations | ||
shall be deposited to the credit of the general revenue fund. | ||
Sec. 2116.005. DEPOSITS AND DEPOSITORY ACCOUNTS; | ||
STANDARDS. (a) The depository may receive a deposit of bullion or | ||
specie from or on behalf of a person acting in the person's own | ||
right, as trustee, or in another fiduciary capacity, in accordance | ||
with rules adopted by the comptroller as appropriate to: | ||
(1) ensure compliance with law; and | ||
(2) protect the interests of: | ||
(A) the depository; | ||
(B) depository account holders; | ||
(C) this state and the agencies, political | ||
subdivisions, and instrumentalities of this state; and | ||
(D) the public at large. | ||
(b) The depository shall record the amount of precious | ||
metals a person deposits, regardless of form, in units of troy | ||
ounces pure, and the records must also specify the type and quantity | ||
of each precious metal deposited. | ||
(c) The comptroller by rule shall adopt standards by which | ||
the quantities of precious metals deposited are credited to a | ||
depositor's depository account by reference to the particular form | ||
in which the metals were deposited, classified by mint, | ||
denomination, weight, assay mark, or other indicator, as | ||
applicable. The standards must conform to applicable national and | ||
international standards of weights and measures. | ||
(d) The comptroller by rule may, if the comptroller | ||
determines that to do so is in the public interest, restrict the | ||
forms in which deposits of precious metals may be made to those | ||
forms that conveniently lend themselves to measurement and | ||
accounting in units of troy ounces and standardized fractions of | ||
troy ounces. | ||
(e) The depository shall adjust each depository account | ||
balance to reflect additions to or withdrawals or deliveries from | ||
the account. | ||
(f) Precious metal deposited with the depository by any | ||
person is the property of this state and is held by the depository | ||
outside the state treasury. On withdrawal and settlement, the | ||
precious metals become the property of the depository account | ||
holder. | ||
Sec. 2116.006. DEMAND, PRESENTMENT, WITHDRAWAL, DELIVERY, | ||
AND SETTLEMENT. (a) Except as otherwise provided by Subsection | ||
(e), the depository shall deliver any precious metal held by or on | ||
behalf of the depository in bullion, specie, or a combination of | ||
bullion and specie, on the order of a depository account holder in a | ||
quantity of that precious metal as is available in the depository | ||
account holder's depository account. | ||
(b) The depository shall make a delivery described by | ||
Subsection (a) on demand by the presentment of a suitable check, | ||
draft, or digital electronic instruction to the depository or a | ||
depository agent. The comptroller by rule shall adopt the forms, | ||
standards, and processes through which an order for delivery on | ||
demand may be made, presented, and honored. | ||
(c) The depository, to the extent reasonably practicable, | ||
shall make or cause to be made deliveries on demand in the form | ||
requested by the depository account holder, except that the form of | ||
delivery may be made in any form at the discretion of the depository | ||
after considering cost, convenience, and availability. | ||
(d) The depository shall make a delivery at the depository's | ||
settlement facility designated by the comptroller or, at the | ||
depository's discretion, at a facility of a depository agent at | ||
which presentment is made, not later than five business days after | ||
the date of presentment. | ||
(e) A depository account holder may order delivery in any | ||
integral multiple of one one-thousandth of a troy ounce. To the | ||
extent a portion of an order is not available for delivery in | ||
bullion or specie, that portion shall be settled in the equivalent | ||
value of that portion in United States legal tender or other | ||
available cash or currency reasonably acceptable to the depository | ||
account holder at exchange rates applicable at the time of | ||
settlement. | ||
Sec. 2116.007. TRANSFER OF DEPOSITORY ACCOUNT BALANCE. (a) | ||
In accordance with rules adopted under this chapter, a depository | ||
account holder may transfer any portion of the balance of the | ||
holder's depository account by check, draft, or digital electronic | ||
instruction to another depository account holder or to a person who | ||
at the time the transfer is initiated is not a depository account | ||
holder. | ||
(b) The depository shall adjust the depository account | ||
balances of the depository accounts to reflect a transfer | ||
transaction between depository account holders on presentment of | ||
the check, draft, or other instruction by reducing the payor's | ||
depository account balance and increasing the depository account | ||
balance of the payee accordingly. | ||
(c) If a depository account holder transfers to a payee who | ||
is not a depository account holder any portion of the balance of the | ||
holder's depository account, the depository shall allow the payee | ||
to establish a depository account by presentment of the payor's | ||
check, draft, or instruction to the depository or to a depository | ||
agent. The depository shall credit a newly established account on | ||
behalf of the payee and shall debit the payor's account | ||
accordingly. | ||
Sec. 2116.008. FULL FAITH AND CREDIT. The depository's | ||
obligation to deliver precious metals and transfer account balances | ||
to the order of a depository account holder under this chapter is | ||
backed by the full faith and credit of this state. | ||
Sec. 2116.009. DEPOSITORY ACCOUNT CONTRACTS. (a) To | ||
establish a depository account, a depositor must contract with the | ||
depository for a depository account. The contract must specify: | ||
(1) the terms applicable to the account, including any | ||
special terms; and | ||
(2) the conditions on which withdrawals or deliveries | ||
with respect to the account may be made. | ||
(b) The execution of a contract for a depository account | ||
described by this section may be made, as prescribed by rules | ||
adopted under this chapter, by electronic or digital transmission. | ||
(c) The depository or a depository agent shall hold the | ||
contract for a depository account in the records pertaining to the | ||
account. | ||
(d) A contract for a depository account executed by a | ||
depositor and the depository is considered a contract in writing | ||
for all purposes, and may be evidenced by one or more agreements, | ||
deposit receipts, signature cards, amendment notices, or other | ||
documentation as provided by law. | ||
(e) The depository and the depository account holder may | ||
amend a contract for a depository account by agreement, or the | ||
depository may amend the deposit contract by mailing a written | ||
notice of the amendment to the account holder, separately or as an | ||
enclosure with or part of the account holder's statement of account | ||
or passbook. In the case of amendment by notice from the | ||
depository, the notice must include the text and effective date of | ||
the amendment. The effective date may not be earlier than the 30th | ||
day after the date the notice is mailed, unless otherwise provided | ||
by rules adopted under this chapter. | ||
Sec. 2116.010. CAUSE OF ACTION FOR DENIAL OF DEPOSIT | ||
LIABILITY. (a) A cause of action for denial of deposit liability | ||
on a depository account contract without a maturity date does not | ||
accrue until the depository has denied liability and given notice | ||
of the denial to the depository account holder. | ||
(b) The depository's act of furnishing an account statement | ||
or passbook, whether in physical, digital, or electronic form, | ||
constitutes a denial of liability and the giving of such notice as | ||
to any amount not shown on the statement or passbook. | ||
Sec. 2116.011. FEES; SERVICE CHARGES; PENALTIES. The | ||
comptroller by rule may establish fees, service charges, and | ||
penalties to be charged a depository account holder for a service or | ||
activity regarding a depository account, including a fee for an | ||
overdraft, an insufficient fund check or draft, or a stop payment | ||
order. | ||
Sec. 2116.012. DEPOSITORY ACCOUNT OWNERSHIP BY OWNER OF | ||
RECORD. Unless the depository acknowledges in writing a pledge of a | ||
depository account, the depository may treat the holder of record | ||
of the account as the owner of the account for all purposes and | ||
without regard to a notice to the contrary. | ||
Sec. 2116.013. TRANSFER OF DEPOSITORY ACCOUNT. (a) A | ||
depository account may be transferred on the books of the | ||
depository only on presentation to the depository of: | ||
(1) evidence of transfer satisfactory to the | ||
depository; and | ||
(2) an application for the transfer submitted by the | ||
person to whom the depository account is to be transferred. | ||
(b) A person to whom a depository account is to be | ||
transferred must accept the transferred account subject to the | ||
terms of the deposit contract, this chapter, and rules adopted | ||
under this chapter. | ||
Sec. 2116.014. DEPOSITORY ACCOUNTS NOT INTEREST-BEARING. | ||
The depository may not pay on a depository account: | ||
(1) interest; | ||
(2) an amount in the nature of interest; or | ||
(3) a fee or other payment for the use or forbearance | ||
of use of money, bullion, specie, or precious metals deposited to a | ||
depository account. | ||
Sec. 2116.015. DEPOSITORY ACCOUNT NOT REDEEMABLE. Except | ||
in circumstances of urgent need of this state as determined under | ||
rules adopted under this chapter or by other law, the depository may | ||
not redeem all or any part of a depository account. | ||
Sec. 2116.016. LIEN ON DEPOSITORY ACCOUNT. (a) Without the | ||
need of any further agreement or pledge, the depository has a lien | ||
on each depository account owned by a depository account holder to | ||
secure any fees, charges, or other obligations owed or that may | ||
become owed to the depository in connection with any of the | ||
depository account holder's depository accounts as provided by the | ||
terms of the depository account holder's applicable depository | ||
account contract. | ||
(b) On default in the payment or in the satisfaction of a | ||
depository account holder's obligation, the depository, without | ||
notice to or consent of the depository account holder, may transfer | ||
on the depository's books all or part of the balance of a depository | ||
account holder's depository account to the extent necessary to pay | ||
or satisfy the obligation, as determined by reference to the | ||
exchange rates applicable at the time of the transfer. | ||
(c) The depository by written instrument may waive wholly or | ||
partly the depository's lien on a depository account. | ||
(d) Subject to a lien created as provided by this section, | ||
the depository shall recognize the lawful pledge to a third party by | ||
a depository account holder of the depository account holder's | ||
rights, interests, and entitlements in and to a depository account | ||
as an intangible asset. On the satisfaction of other requirements | ||
of law in respect of the perfection and enforcement of a pledge of | ||
that type, the depository shall take all steps reasonably necessary | ||
and appropriate to effectuate on the depository's books any | ||
transfer of a depository account or of all or part of a depository | ||
account balance to the account of the secured party on the | ||
successful enforcement of the pledge. | ||
Sec. 2116.017. DEPOSITORY ACCOUNT AS LEGAL INVESTMENT. (a) | ||
The following persons may invest the person's money in a depository | ||
account by purchasing precious metals and depositing the precious | ||
metals with the depository or a depository agent: | ||
(1) a fiduciary, including an administrator, | ||
executor, guardian, or trustee; | ||
(2) a political subdivision of this state or an | ||
instrumentality of this state; | ||
(3) a business or nonprofit corporation; | ||
(4) a charitable or educational corporation or | ||
association; or | ||
(5) a financial institution, including a bank, savings | ||
and loan association, or credit union. | ||
(b) An investment by an insurance company in a depository | ||
account is eligible to be applied as a credit against taxes payable | ||
under Chapters 221 and 222, Insurance Code, in accordance with | ||
rules adopted by the comptroller after consultation with the | ||
commissioner of insurance. | ||
(c) An investment by a school district in a depository | ||
account may be made instead of an investment as provided by Section | ||
45.102, Education Code, and the depository may be used by a district | ||
instead of a depository bank for the purposes of Subchapter G, | ||
Chapter 45, Education Code. | ||
Sec. 2116.018. APPLICABILITY OF PROBATE CODE. The | ||
applicable provisions of Chapter XI, Texas Probate Code, govern a | ||
depository account. | ||
Sec. 2116.019. DEPOSITORY ACCOUNT HELD BY MINOR. (a) The | ||
depository may accept a minor as the sole and absolute owner of a | ||
depository account and the depository may pay withdrawals, transfer | ||
rights to account balances, accept a pledge of the account, and act | ||
in any other manner with respect to the depository account owned by | ||
a minor. | ||
(b) Subject to Subsection (d), a payment or delivery to a | ||
minor, or an acquittance signed by a minor who holds a depository | ||
account, is a discharge of the depository for that payment or | ||
delivery. | ||
(c) If the depository requires a minor to furnish an | ||
acquittance or pledge or take other action with respect to the | ||
minor's depository account, that action is binding on the minor as | ||
if the minor had the capacity of an adult. | ||
(d) If a minor's parent or guardian informs the depository | ||
in writing that the parent or guardian, as applicable, denies the | ||
minor's authority to control the minor's depository account, the | ||
minor may not control the depository account during the minority | ||
without the joinder of the parent or guardian. | ||
(e) If a minor who owns a depository account dies, the | ||
acquittance of a parent or guardian of the minor discharges the | ||
depository for amounts that in the aggregate do not exceed $1,000. | ||
Sec. 2116.020. PLEDGE OF JOINTLY HELD DEPOSITORY ACCOUNT. | ||
(a) Unless a term of the depository account provides otherwise, a | ||
person on whose signature precious metals may be withdrawn from a | ||
depository account that is jointly held in the names of two or more | ||
persons may, by a signed pledge, pledge and transfer to the | ||
depository or to a third party all or part of the account. | ||
(b) A pledge made as described by Subsection (a) does not | ||
sever or terminate the joint and survivorship ownership of the | ||
account, to the extent applicable to the account before the pledge. | ||
Sec. 2116.021. DEPOSITORY ACCOUNT HELD BY FIDUCIARY. (a) | ||
The depository or a depository agent may accept a depository | ||
account in the name of a fiduciary, including an administrator, | ||
executor, custodian, guardian, or trustee, for a named beneficiary. | ||
(b) A fiduciary may open, add to, or withdraw precious | ||
metals from an account described by Subsection (a). | ||
(c) Except as otherwise provided by law, a payment or | ||
delivery to a fiduciary or an acquittance signed by the fiduciary to | ||
whom a payment or delivery is made is a discharge of the depository | ||
for the payment or delivery. | ||
(d) After a person who holds a depository account in a | ||
fiduciary capacity dies, the depository may pay or deliver to the | ||
beneficiary of the account the quantity of precious metals | ||
represented by the balance in the depository account, plus other | ||
rights relating to the depository account, wholly or partly, if the | ||
depository has no written notice or order of the probate court of: | ||
(1) a revocation or termination of the fiduciary | ||
relationship; or | ||
(2) any other disposition of the beneficial estate. | ||
(e) The depository has no further liability for a payment | ||
made or right delivered under Subsection (d). | ||
Sec. 2116.022. DEPOSITORY ACCOUNT HELD IN TRUST; | ||
UNDISCLOSED TRUST INSTRUMENT. (a) If the depository opens a | ||
depository account for a person claiming to be the trustee for | ||
another person and the depository has no other notice of the | ||
existence or terms of the trust other than a written claim against | ||
the account: | ||
(1) the person claiming to be the trustee, on the | ||
person's signature, may withdraw precious metals from the account; | ||
and | ||
(2) if the person claiming to be the trustee dies, the | ||
depository may pay or deliver the quantity of precious metals | ||
represented by the balance in the account to the person for whom the | ||
account was opened. | ||
(b) The depository has no further liability for a payment or | ||
delivery made as provided by Subsection (a). | ||
Sec. 2116.023. POWER OF ATTORNEY; REVOCATION ON DEATH OR | ||
INCOMPETENCY. (a) The depository shall recognize the authority of | ||
an attorney-in-fact authorized in writing by a depository account | ||
holder to manage or withdraw precious metals from the depository | ||
account holder's depository account until the depository receives | ||
written or actual notice of the revocation of that authority. | ||
(b) For purposes of this section, written notice of the | ||
death or adjudication of incompetency of a depository account | ||
holder is considered to be written notice of revocation of the | ||
authority of the account holder's attorney-in-fact. | ||
Sec. 2116.024. TRANSACTIONS AND RELATIONSHIPS. The | ||
depository shall enter into transactions and relationships with | ||
bullion banks, depositories, dealers, central banks, sovereign | ||
wealth funds, financial institutions, international | ||
nongovernmental organizations, and other persons, located inside | ||
or outside of this state or inside or outside of the United States, | ||
as the comptroller determines to be prudent and suitable to | ||
facilitate the operations of the depository and to further the | ||
purposes of this chapter. | ||
Sec. 2116.025. CERTAIN ACTIONS PROHIBITED. The depository | ||
may not take any of the following actions, and any attempt by the | ||
depository to take any of the following actions is void ab initio | ||
and of no force or effect: | ||
(1) enter into a precious metals leasing, | ||
sale-leaseback, forward transaction, swap transaction, future | ||
transaction, index transaction, or option on or other derivative of | ||
any of those, whether in the nature of a cap transaction, floor | ||
transaction, collar transaction, repurchase transaction, reverse | ||
repurchase transaction, buy-and-sell-back transaction, securities | ||
lending transaction, or other financial instrument or interest | ||
intended to or having the effect of hedging or leveraging the | ||
depository's holdings of precious metals, including any option | ||
with respect to any of these transactions, or any combination of | ||
these transactions, except that the limitation provided by this | ||
subdivision does not apply to a transaction entered into to limit | ||
the depository's exposure to post-signature price risks associated | ||
with executory agreements to purchase or sell precious metals in | ||
the ordinary course of depository operations and does not apply to | ||
policies of insurance purchased to insure against ordinary casualty | ||
risks such as theft, damage or destruction, loss during shipment, | ||
or similar risks; | ||
(2) credit the depository account balances of a | ||
depository account holder, or dispose of any precious metals, if to | ||
do so would cause the aggregate depository account balances with | ||
respect to any precious metal represented by all depository | ||
accounts to exceed the aggregate quantities of such precious metal | ||
held by or for the benefit of the depository and the depository's | ||
depository agents; | ||
(3) enter into or maintain a deposit, trust, or | ||
similar relationship for the custody of precious metals by a third | ||
party outside this state, directly or indirectly, for the account | ||
or benefit of the depository if the comptroller by rule establishes | ||
that: | ||
(A) the custody or intermediary arrangements in | ||
question do not meet the comptroller's standards of safety, | ||
security, and liquidity; or | ||
(B) except in those cases where such relationship | ||
may be incidental to the performance of or preparation for purchase | ||
and sale transactions with counterparties located outside of this | ||
state, suitable alternate arrangements for physical custody of the | ||
precious metals inside this state have been established and are | ||
available; | ||
(4) extend credit to a person, including credit | ||
secured by a depository account or other assets, except an | ||
extension of credit incidental to the performance of the functions | ||
and responsibilities otherwise provided by this chapter; or | ||
(5) engage in a business or activity that, if | ||
conducted by a private person, would be subject to regulation in | ||
this state as a banking or savings and loan function. | ||
Sec. 2116.026. CONFISCATIONS, REQUISITIONS, SEIZURES, AND | ||
OTHER ACTIONS VOID. (a) A purported confiscation, requisition, | ||
seizure, or other attempt to control the ownership, disposition, or | ||
proceeds of a withdrawal, transfer, liquidation, or settlement of a | ||
depository account, including the precious metals represented by | ||
the balance of a depository account, if effected by a governmental | ||
or quasi-governmental authority other than an authority of this | ||
state or by a financial institution or other person acting on behalf | ||
of or pursuant to a directive or authorization issued by a | ||
governmental or quasi-governmental authority other than an | ||
authority of this state, in the course of a generalized declaration | ||
of illegality or emergency relating to the ownership, possession, | ||
or disposition of one or more precious metals, contracts, or other | ||
rights to the precious metals or contracts or derivatives of the | ||
ownership, possession, disposition, contracts, or other rights, is | ||
void ab initio and of no force or effect. | ||
(b) The depository in the case of receiving notice of a | ||
purported confiscation, requisition, seizure, or other attempt to | ||
control the ownership, disposition, or proceeds of a withdrawal, | ||
transfer, liquidation, or settlement of a depository account, | ||
including the precious metals represented by the balance of a | ||
depository account, effected by a governmental or | ||
quasi-governmental authority other than an authority of this state | ||
or by a financial institution or other person acting on behalf of or | ||
pursuant to a directive or authorization issued by a governmental | ||
or quasi-governmental authority other than an authority of this | ||
state, in the course of a generalized declaration of illegality or | ||
emergency relating to the ownership, possession, or disposition of | ||
one or more precious metals, contracts, or other rights to the | ||
precious metals or contracts or derivatives of the ownership, | ||
possession, disposition, contracts, or other rights, may not | ||
recognize the governmental or quasi-governmental authority, | ||
financial institution, or other person acting as the lawful | ||
successor of the registered holder of a depository account in | ||
question. | ||
(c) On receipt of notice of any such event with respect to | ||
all or any portion of the balance of a depository account, the | ||
depository shall suspend withdrawal privileges associated with the | ||
balances of the depository account until suitable substitute | ||
arrangements may be effected in accordance with rules of the | ||
comptroller to enable the registered account holder to take | ||
delivery of the precious metals represented by the account balances | ||
in question. A voluntary transfer of a depository account balance | ||
or of a depository account among depository account holders may | ||
continue to take place unaffected by the suspension, and the | ||
depository shall recognize to the full extent authorized by this | ||
chapter rules adopted under this chapter. | ||
Sec. 2116.027. OFFICIAL EXCHANGE RATES. The comptroller by | ||
rule shall establish the references by which the official exchange | ||
rate for pricing precious metals transactions in terms of United | ||
States dollars or other currency must be established at the time of | ||
a depository transaction. The comptroller shall establish | ||
procedures and facilities through which the rates are made | ||
discoverable at all reasonable times by system participants, both | ||
on a real-time basis and retrospectively. | ||
Sec. 2116.028. DEVELOPMENT OF DEPOSITORY SYSTEM AND | ||
PARTICIPATION. (a) The comptroller shall monitor the development | ||
of the depository-based system of payments and settlements and | ||
shall direct and encourage all funds and agencies of this state to | ||
use the system for intergovernmental payments and settlements to | ||
the extent prudent and practicable. | ||
(b) As conditions of acceptance and liquidity of the | ||
depository system improve, the comptroller shall: | ||
(1) establish appropriate firm requirements for the | ||
use of the system for intergovernmental payments and settlements to | ||
the extent prudent and practicable; and | ||
(2) encourage the use of the system by private persons | ||
to make or receive payments to or from a state agency or fund. | ||
Sec. 2116.029. FACILITATION OF ACCOUNTING AND REPORTING OF | ||
TAXABLE GAINS. The comptroller by rule shall establish procedures | ||
and requirements for the depository and depository agents designed | ||
to minimize the burden to system participants of accounting for and | ||
reporting taxable gains and losses arising out of depository | ||
transactions as denominated in United States dollars or another | ||
currency. | ||
Sec. 2116.030. ANNUAL REPORT. The comptroller shall submit | ||
to the governor and the legislature a report on the status, | ||
condition, operations, and prospects for the depository and | ||
depository participation each year not later than September 30. | ||
[Sections 2116.031-2116.050 reserved for expansion] | ||
SUBCHAPTER B. DEPOSITORY AGENTS | ||
Sec. 2116.051. USE OF DEPOSITORY AGENTS. To the extent that | ||
the services of depository agents are reasonably cost-effective and | ||
available, the depository shall use private, independently managed | ||
firms and institutions licensed as depository agents as | ||
intermediaries to conduct retail transactions in bullion and specie | ||
on behalf of the depository with current and prospective depository | ||
account holders. In addition to licensing requirements for | ||
depository agents provided by Chapter 151, Finance Code, and rules | ||
adopted under that chapter, the comptroller by rule may impose | ||
additional requirements as to capitalization, net worth, | ||
liquidity, or other financial prerequisites to qualify a depository | ||
agent to conduct transactions or take other action on behalf of the | ||
depository. | ||
Sec. 2116.052. ELECTRONIC INFORMATION SHARING SYSTEMS AND | ||
PROCESSES. The comptroller by rule shall require a depository | ||
agent to maintain suitable systems and processes for electronic | ||
information sharing and communication with the comptroller and the | ||
depository to ensure that all transactions effected on behalf of | ||
the depository are reported to and integrated into the depository's | ||
records not later than 11:59:59 p.m. on the date of each | ||
transaction. | ||
Sec. 2116.053. PERIODIC REPORTS. A depository agent shall | ||
submit monthly, quarterly, and annual reports of all depository | ||
transactions not later than the 15th day of the month following the | ||
expiration of the period with respect to which such report is | ||
submitted. The report must contain information and be in a form and | ||
format as rules of the comptroller require. | ||
SECTION 2. Section 151.002(a), Finance Code, is amended to | ||
read as follows: | ||
(a) This section defines general terms that apply to an | ||
applicant for or holder of a money services license issued under | ||
this chapter, regardless of whether the license is a money | ||
transmission license, [ |
||
depository agent license. Additional terms that apply specifically | ||
to money transmission are defined in Section 151.301. Additional | ||
terms that apply specifically to currency exchange are defined in | ||
Section 151.501. Additional terms that apply specifically to | ||
depository agents are defined in Section 151.851. | ||
SECTION 3. Section 151.002(b), Finance Code, is amended by | ||
adding Subdivisions (9-a), (9-b), and (9-c) and amending | ||
Subdivisions (11) and (14) to read as follows: | ||
(9-a) "Depository agent" has the meaning assigned by | ||
Section 151.851. | ||
(9-b) "Depository agent license" means a license | ||
issued under Subchapter J. | ||
(9-c) "Depository agent services" means services | ||
rendered to the general public for or on behalf of the Texas Bullion | ||
Depository in the nature of purchasing, selling, transferring, | ||
accepting, transporting, delivering, or otherwise dealing in | ||
precious metals bullion or specie in connection with the creation, | ||
transfer, clearing, settlement, or liquidation of the rights and | ||
interests of a depository account holder and a direct or indirect | ||
transferee of a depository account holder, as those terms are | ||
defined by Subchapter J. The term "depository agent services" does | ||
not include: | ||
(A) participation as a party or counterparty to a | ||
transaction, including an agreement with respect to a transaction, | ||
in or in connection with a contract for the purchase or sale of a | ||
person's rights and interests as a depository account holder, as a | ||
cash contract for present delivery, a cash contract for deferred | ||
shipment or delivery, or a contract for future delivery, where the | ||
underlying deliverable consists of the depository account holder's | ||
interest in the depository account, rather than the underlying | ||
precious metal represented by the depository account balance; | ||
(B) the opening, transfer, settlement, or | ||
liquidation of any derivative of a contract described by Paragraph | ||
(A), including a forward transaction, swap transaction, currency | ||
transaction, future transaction, index transaction, or option on or | ||
other derivative of a transaction of any of those types, in the | ||
nature of a cap transaction, floor transaction, collar transaction, | ||
repurchase transaction, reverse repurchase transaction, | ||
buy-and-sell-back transaction, securities lending transaction, or | ||
other financial instrument or interest, including an option with | ||
respect to a transaction, or any combination of these transactions; | ||
or | ||
(C) the rendition of services exclusively in | ||
support of the opening, transfer, settlement, or liquidation of | ||
transaction derivatives described by Paragraph (B) through a | ||
central counterparty, such as those customarily rendered by a | ||
clearinghouse, clearing association, or clearing corporation, or | ||
through an interbank payment system, physical or electronic trading | ||
facility, broker or brokerage firm, or similar entity, facility, | ||
system, or organization. | ||
(11) "License holder" means a person that holds a | ||
money transmission license, [ |
||
depository agent license. | ||
(14) "Money services" means money transmission, [ |
||
currency exchange, or depository agent services. | ||
SECTION 4. Section 151.003, Finance Code, is amended to | ||
read as follows: | ||
Sec. 151.003. EXCLUSIONS. Subject to Subchapter J, the | ||
[ |
||
chapter: | ||
(1) the United States or an instrumentality of the | ||
United States, including the United States Post Office or a | ||
contractor acting on behalf of the United States Post Office; | ||
(2) a state or an agency, political subdivision, or | ||
other instrumentality of a state; | ||
(3) a federally insured financial institution, as that | ||
term is defined by Section 201.101, that is organized under the laws | ||
of this state, another state, or the United States; | ||
(4) a foreign bank branch or agency in the United | ||
States established under the federal International Banking Act of | ||
1978 (12 U.S.C. Section 3101 et seq.); | ||
(5) a person acting as an agent for an entity excluded | ||
under Subdivision (3) or (4), to the extent of the person's actions | ||
in that capacity, provided that: | ||
(A) the entity is liable for satisfying the money | ||
services obligation owed to the purchaser on the person's receipt | ||
of the purchaser's money; and | ||
(B) the entity and person enter into a written | ||
contract that appoints the person as the entity's agent and the | ||
person acts only within the scope of authority conferred by the | ||
contract; | ||
(6) a person that, on behalf of the United States or a | ||
department, agency, or instrumentality of the United States, or a | ||
state or county, city, or any other governmental agency or | ||
political subdivision of a state, provides electronic funds | ||
transfer services of governmental benefits for a federal, state, | ||
county, or local governmental agency; | ||
(7) a person that acts as an intermediary on behalf of | ||
and at the direction of a license holder in the process by which the | ||
license holder, after receiving money or monetary value from a | ||
purchaser, either directly or through an authorized delegate, | ||
transmits the money or monetary value to the purchaser's designated | ||
recipient, provided that the license holder is liable for | ||
satisfying the obligation owed to the purchaser; | ||
(8) an attorney or title company that in connection | ||
with a real property transaction receives and disburses domestic | ||
currency or issues an escrow or trust fund check only on behalf of a | ||
party to the transaction; | ||
(9) a person engaged in the business of currency | ||
transportation who is both a registered motor carrier under Chapter | ||
643, Transportation Code, and a licensed armored car company or | ||
courier company under Chapter 1702, Occupations Code, provided that | ||
the person does not engage in the money transmission or currency | ||
exchange business or depository agent services business without a | ||
license issued under this chapter; and | ||
(10) any other person, transaction, or class of | ||
persons or transactions exempted by commission rule or any other | ||
person or transaction exempted by the commissioner's order on a | ||
finding that the licensing of the person is not necessary to achieve | ||
the purposes of this chapter. | ||
SECTION 5. Section 151.201, Finance Code, is amended to | ||
read as follows: | ||
Sec. 151.201. SCOPE. This subchapter sets out the general | ||
qualifications and provisions that apply to a money services | ||
license, regardless of whether the license is a money transmission | ||
license, [ |
||
license. Subchapters D and E set forth the additional | ||
qualifications and provisions that apply specifically to a money | ||
transmission license. Subchapter F sets forth the additional | ||
qualifications and provisions that apply specifically to a currency | ||
exchange license. Subchapter J sets forth the additional | ||
qualifications and provisions that apply specifically to a | ||
depository agent license. | ||
SECTION 6. Sections 151.207(b) and (d), Finance Code, are | ||
amended to read as follows: | ||
(b) As a condition of renewal, a license holder must | ||
continue to possess the qualifications and satisfy the requirements | ||
that apply to an applicant for a new money transmission license, | ||
[ |
||
applicable. Additionally, not later than July 1 of each year, a | ||
license holder must: | ||
(1) pay an annual renewal fee in an amount established | ||
by commission rule; and | ||
(2) submit a renewal report that is under oath, is in | ||
the form and medium required by the commissioner, and contains: | ||
(A) if the license is a money transmission | ||
license or depository agent license, an audited unconsolidated | ||
financial statement dated as of the last day of the license holder's | ||
fiscal year that ended in the immediately preceding calendar year; | ||
(B) if the license is a currency exchange | ||
license, a financial statement, audited or unaudited, dated as of | ||
the last day of the license holder's fiscal year that ended in the | ||
immediately preceding calendar year; and | ||
(C) documentation and certification, or any | ||
other information the commissioner reasonably requires to | ||
determine the security, net worth, permissible investments, and | ||
other requirements the license holder must satisfy and whether the | ||
license holder continues to meet the qualifications and | ||
requirements for licensure. | ||
(d) If the license holder fails to submit the completed | ||
renewal report and pay the renewal fee and any late fee due, the | ||
license expires effective 5 p.m. central daylight time on August | ||
15, and the license holder must cease and desist from engaging in | ||
the business of money transmission, [ |
||
depository agent services, as applicable, as of that time. The | ||
expiration of a license is not subject to appeal. | ||
SECTION 7. Section 151.602(a), Finance Code, is amended to | ||
read as follows: | ||
(a) A license holder must prepare, maintain, and preserve | ||
the following books, accounts, and other records for at least five | ||
years or another period as may be prescribed by rule of the | ||
commission: | ||
(1) a record of each money transmission transaction, | ||
[ |
||
transaction, as applicable; | ||
(2) a general ledger posted in accordance with | ||
generally accepted accounting principles containing all asset, | ||
liability, capital, income, and expense accounts, unless directed | ||
otherwise by the commissioner; | ||
(3) bank statements and bank reconciliation records; | ||
(4) all records and reports required by applicable | ||
state and federal law, including the reporting and recordkeeping | ||
requirements imposed by the Bank Secrecy Act, the USA PATRIOT ACT, | ||
and Chapter 271, and other federal and state laws pertaining to | ||
money laundering, drug trafficking, or terrorist funding; and | ||
(5) any other records required by commission rule or | ||
reasonably requested by the commissioner to determine compliance | ||
with this chapter. | ||
SECTION 8. Section 151.603, Finance Code, is amended by | ||
adding Subsection (c-1) to read as follows: | ||
(c-1) A depository agent license holder shall prepare | ||
written reports and statements as follows: | ||
(1) the renewal report required by Section | ||
151.207(b)(2), including an audited unconsolidated financial | ||
statement that is dated as of the last day of the license holder's | ||
fiscal year that ended in the immediately preceding calendar year; | ||
(2) a quarterly interim financial statement and report | ||
regarding the permissible investments required to be maintained | ||
under applicable rules that reflect the license holder's financial | ||
condition and permissible investments as of the last day of the | ||
calendar quarter to which the statement and report relate and that | ||
are prepared not later than the 45th day after the last day of the | ||
calendar quarter; and | ||
(3) any other report required by commission rule or | ||
reasonably requested by the commissioner to determine compliance | ||
with this chapter. | ||
SECTION 9. Section 151.604(b), Finance Code, is amended to | ||
read as follows: | ||
(b) A license holder must file a written report with the | ||
commissioner not later than 24 hours after the license holder knows | ||
or has reason to know of: | ||
(1) the filing of a petition by or against the license | ||
holder for bankruptcy or reorganization; | ||
(2) the filing of a petition by or against the license | ||
holder for receivership, the commencement of any other judicial or | ||
administrative proceeding for its dissolution or reorganization, | ||
or the making of a general assignment for the benefit of the license | ||
holder's creditors; | ||
(3) the institution of a proceeding to revoke or | ||
suspend the license holder's license, or to enjoin or otherwise | ||
require the license holder to cease and desist from engaging in an | ||
activity related to a business activity that, if conducted in this | ||
state, would be subject to this chapter [ |
||
state or country in which the license holder engages in business or | ||
is licensed; | ||
(4) the felony indictment or conviction of the license | ||
holder or a principal of, person in control of, responsible | ||
individual of, or authorized delegate of the license holder for an | ||
offense identified in Section 151.202(e); | ||
(5) the cancellation or other impairment of the | ||
license holder's security; or | ||
(6) the inability to meet the license holder's | ||
transmission obligations under this chapter for a period of 24 | ||
hours or longer. | ||
SECTION 10. Chapter 151, Finance Code, is amended by adding | ||
Subchapter J to read as follows: | ||
SUBCHAPTER J. DEPOSITORY AGENT LICENSE | ||
Sec. 151.851. DEFINITIONS. In this subchapter, "bullion," | ||
"deposit," "depository," "depository account," "depository account | ||
holder," "depository agent," "precious metal," and "specie" have | ||
the meanings assigned by Section 2116.001, Government Code. | ||
Sec. 151.852. APPLICABILITY TO DEPOSITORY AGENT SERVICES. | ||
(a) Notwithstanding any other provision of this chapter, a money | ||
service that constitutes both a depository agent service and a | ||
money transmission service, or both a depository agent service and | ||
a currency exchange service, for purposes of this chapter | ||
constitutes a depository agent service only. | ||
(b) A depository agent service described by Subsection (a) | ||
is not subject to a provision of this chapter applicable uniquely to | ||
money transmission services or currency exchange services. | ||
(c) A person who renders a service that constitutes a | ||
depository agent service, including a depository agent service | ||
described by Subsection (a), and renders another service that | ||
constitutes money transmission or currency exchange service only, | ||
is subject to the requirements of this chapter applicable to each | ||
type of service rendered. | ||
Sec. 151.853. LICENSE REQUIRED. (a) A person may not | ||
engage in the business of rendering depository agent services or | ||
advertise, solicit, or hold itself out as a person that engages in | ||
the business of depository agent services unless the person: | ||
(1) is licensed under this subchapter and has received | ||
the requisite certifications from the comptroller of its | ||
facilities, systems, processes, and procedures as required by | ||
Chapter 2116, Government Code, or rules adopted under that chapter; | ||
or | ||
(2) is exempted from licensing requirements under | ||
Section 151.003(2). | ||
(b) Notwithstanding any other provision of this chapter, a | ||
person described by Section 151.003(1), (6), (7), (8), or (9) is not | ||
eligible for a license under this subchapter. | ||
(c) For purposes of this chapter: | ||
(1) a person engages in the business of depository | ||
agent services if the person renders a depository agent service, | ||
regardless of whether: | ||
(A) compensation is sought or received for the | ||
service, directly or indirectly; and | ||
(B) the service is incidental to any other | ||
business in which the person is primarily engaged; and | ||
(2) a person solicits, advertises, or holds the person | ||
out as a person that engages in the business of depository agent | ||
services if the person represents that the person will conduct | ||
depository agent services. | ||
(d) Notwithstanding Subsection (c), a person does not | ||
engage in the business of depository agent services by engaging in a | ||
transaction for the person's own depository account or for the | ||
account of another person acting as a fiduciary that would | ||
constitute depository agent services if conducted for another | ||
person. | ||
(e) A depository agent license holder may engage in | ||
depository agent services business at one or more locations in this | ||
state owned directly or indirectly by the license holder under a | ||
single license. | ||
Sec. 151.854. ADDITIONAL QUALIFICATIONS. In addition to | ||
the general qualifications for licensure set forth in Section | ||
151.202, an applicant for a depository agent license must | ||
demonstrate to the satisfaction of the commissioner that: | ||
(1) the applicant has and will maintain the | ||
capitalization, minimum net worth, and other applicable financial | ||
requirements established from time to time by rules of the | ||
comptroller; | ||
(2) the applicant's financial condition will enable | ||
the applicant to safely and soundly engage in the business of | ||
depository agent services; and | ||
(3) the applicant does not engage in any activity or | ||
practice that adversely affects the applicant's safety and | ||
soundness. | ||
Sec. 151.855. APPLICATION AND ACCOMPANYING FEE, | ||
STATEMENTS, AND SECURITY. (a) An applicant for a depository agent | ||
license must submit an application in accordance with Section | ||
151.203. | ||
(b) At the time an application for a depository agent | ||
license is submitted, an applicant must file with the department: | ||
(1) an application fee in the amount established by | ||
commission rule; | ||
(2) audited financial statements that are | ||
satisfactory to the commissioner for purposes of determining | ||
whether the applicant has the minimum net worth required under | ||
applicable rules and regulations and is likely to maintain the | ||
required minimum net worth if a license is issued; and | ||
(3) security in the amount of $500,000 that meets the | ||
requirements of applicable rules and an undertaking or agreement | ||
that the applicant will increase or supplement the security to | ||
equal the aggregate security required by the commissioner before | ||
the issuance of the license and the start of operations. | ||
Sec. 151.856. INVESTIGATION AND ACTION ON APPLICATION. The | ||
commissioner shall investigate the applicant and act on the | ||
application in accordance with Sections 151.204 and 151.205. | ||
Sec. 151.857. TEMPORARY LICENSE. (a) The commissioner may | ||
issue a temporary depository agent license to a person that is | ||
engaging in depository agent services, but has not obtained a | ||
license under this subchapter, if the person: | ||
(1) certifies in writing that the person qualifies for | ||
the license and will submit a completed license application not | ||
later than the 60th day after the date the temporary license is | ||
issued; | ||
(2) submits a recent financial statement acceptable to | ||
the commissioner that reflects the minimum net worth required under | ||
applicable regulations; | ||
(3) provides security that meets the requirements | ||
specified by the commissioner, but not less than $500,000; | ||
(4) agrees in writing that, until a permanent license | ||
is issued, the person will engage only in activities being | ||
conducted at existing locations; and | ||
(5) pays the application fee and a nonrefundable | ||
temporary license fee in the amount established by commission rule. | ||
(b) The effective period for a temporary depository agent | ||
license may not exceed 90 days from the date the license is issued. | ||
The commissioner may extend the effective period for not more than | ||
30 days if necessary to complete the processing of a timely filed | ||
application for which approval is likely. | ||
Sec. 151.858. LIABILITY OF LICENSE HOLDER. A depository | ||
agent license holder is liable for the delivery to or for the | ||
account of the depository or each depositor, as applicable, of all | ||
bullion, specie, and money payable or deliverable in connection | ||
with the transactions in which the license holder engages on behalf | ||
of the depository. | ||
Sec. 151.859. TRUST IMPOSED. (a) A depository agent | ||
license holder shall hold in trust all cash, bullion, specie, and | ||
other assets received in the ordinary course of its business until | ||
the time the delivery obligation is discharged. A trust resulting | ||
from the depository agent license holder's actions is in favor of | ||
the persons to whom such delivery obligations are owed. | ||
(b) If a depository agent license holder commingles any | ||
money or other property received for delivery with money or other | ||
property owned or controlled by the depository agent license | ||
holder, all commingled money and other property are impressed with | ||
a trust as provided by this section in an amount equal to the amount | ||
of money or property received for delivery, less the amount of fees | ||
paid for the delivery. | ||
(c) If the commissioner revokes a depository agent license, | ||
all money and other property held in trust by the depository agent | ||
license holder is assigned to the commissioner for the benefit of | ||
the persons to whom the related delivery obligations are owed. | ||
(d) Money or other property of a depository agent license | ||
holder impressed with a trust under this section may not be | ||
considered an asset or property of the license holder in the event | ||
of bankruptcy, receivership, or a claim against the license holder | ||
unrelated to the license holder's obligations under this chapter. | ||
Sec. 151.860. DISCLOSURE REQUIREMENTS. (a) A depository | ||
agent license holder's name and mailing address or telephone number | ||
must be provided to the purchaser in connection with each | ||
depository agent services transaction conducted by the depository | ||
agent license holder. | ||
(b) A depository agent license holder receiving currency or | ||
an instrument payable in currency for transmission must comply with | ||
Chapter 278. | ||
SECTION 11. As soon as practicable after the effective date | ||
of this Act, the comptroller of public accounts shall: | ||
(1) undertake or cause to be undertaken a survey of | ||
existing third-party facilities and firms in this state that may be | ||
suitable for rendering custodial services to the Texas Bullion | ||
Depository with respect to precious metals deposited in accordance | ||
with Chapter 2116, Government Code, as added by this Act, and | ||
identify where possible the direct and indirect ownership of | ||
suitable facilities and firms. The survey must be designed to | ||
ascertain the terms and conditions under which the facilities and | ||
firms would likely be made available for that purpose; | ||
(2) in coordination with the governor and lieutenant | ||
governor, undertake a survey of those sites currently in the | ||
control of this state or that might through purchase be brought | ||
within the control of this state that are or could be made suitable | ||
for a fortified, secure depository facility operated by this state | ||
and controlled by the Texas Bullion Depository, ascertaining the | ||
estimated costs and time required to establish and operate the | ||
facility on an ongoing basis; and | ||
(3) report the findings of these surveys to the | ||
legislature for further consideration no later than September 1, | ||
2014. | ||
SECTION 12. (a) In this section: | ||
(1) "Collateralized debt obligations" means direct or | ||
securitized obligations based upon, derived from or in any way | ||
representing anticipated stream of income or principal from | ||
third-party debt obligations secured by the assets of such third | ||
parties, such as, by way of illustration and not limitation, home | ||
mortgages, auto finance loans, and other consumer credit | ||
facilities, whether or not such instruments bear an explicit or | ||
implicit guarantee of any governmental or quasi-governmental | ||
organization, or that otherwise would be classified as "Corporate | ||
Asset and Mortgage Backed" investments in the comptroller's | ||
Comprehensive Annual Financial Report for the State of Texas. | ||
(2) "Federal debt securities" means any debt | ||
obligation, coupon, scrip, or other component thereof issued by the | ||
United States government or any agency or instrumentality thereof | ||
that would be classified in the comptroller's Comprehensive Annual | ||
Financial Report for the State of Texas as "U.S. Treasury | ||
Securities," "U.S. Treasury Strips," "U.S. Treasury Scrip," "U.S. | ||
Treasury TIPS," and "U.S. Governmental Agency Securities" | ||
investments, together with any and all investments that would be | ||
classified in such report as "repurchase agreements," "securities | ||
lending collateral," and "cash or cash equivalents" that are based | ||
upon, derived from, or in any way representing any of the foregoing. | ||
(3) "Municipal debt securities" means any direct or | ||
securitized obligations based upon, derived from, or in any way | ||
representing anticipated stream of income or principal from debt | ||
obligations issued by or on behalf of local governmental districts | ||
and municipalities. | ||
(4) "Maximum percentage" means the highest percentage | ||
of their overall investment holdings in which state funds and state | ||
agencies may lawfully continue to hold collateralized debt | ||
obligations, federal debt securities, and municipal debt | ||
securities from and after the 180th day following the effective | ||
date of this Act, as established from time to time by the provisions | ||
of this Act and the rules issued by the comptroller of public | ||
accounts under this Act. | ||
(b) Subject to the terms and provisions of this section, but | ||
in accordance with rules and procedures to be established by the | ||
comptroller of public accounts under this section, the comptroller | ||
and each state fund and state agency not otherwise barred from doing | ||
so by the Texas Constitution shall undertake to divest itself of | ||
one-half the amount by value of its holdings of federal debt | ||
securities, collateralized debt obligations, and municipal debt | ||
obligations as reflected in the comptroller's 2012 Comprehensive | ||
Annual Financial Report for the State of Texas. | ||
(c) For those funds and investments in the custody or under | ||
the management of the comptroller of public accounts, the | ||
comptroller shall commence divestment promptly on the 180th day | ||
following the effective date of this Act and shall continue such | ||
divestment in a deliberate and orderly manner until achieving | ||
compliance with the requirement of Subsection (b) of this section. | ||
(d) Compliance shall be determined individually with | ||
respect to the investment holdings of each state fund and state | ||
agency, except that investment holdings maintained by the | ||
comptroller of public accounts in a pooled or consolidated fund or | ||
account shall be treated for this purpose on an aggregate, | ||
consolidated basis as measured with respect to the pooled or | ||
consolidated fund or account in its entirety, and those funds shall | ||
be excluded from the other assets of state funds and state agencies | ||
for purposes of their individual determinations. | ||
(e) The comptroller of public accounts shall exercise | ||
reasonable prudence and discretion in the timing and amounts of | ||
divestment and reinvestment transactions so as to conduct those | ||
transactions in the most favorable market conditions, and on the | ||
most favorable terms, reasonably feasible or available. The | ||
program of divestment required to achieve initial compliance shall | ||
in any case be completed not later than December 31, 2015. | ||
(f) Following the initial compliance with this section, the | ||
comptroller of public accounts shall manage or cause to be managed | ||
such funds in such a way as to remain in compliance with the | ||
applicable standards except in those limited circumstances in which | ||
fluctuations in market value, unplanned inflows or outflows, or | ||
other factors beyond the comptroller's immediate control cause such | ||
holdings to exceed the maximum percentage. In such circumstances, | ||
the comptroller shall promptly effect or cause to be effected such | ||
transactions as shall be necessary and sufficient to restore the | ||
fund or account in question to full compliance. | ||
(g) As and to the extent practicable in view of the | ||
divestments described by this section, market conditions, and the | ||
development of the depository system established by Chapter 2116, | ||
Government Code, as added by this Act, the comptroller of public | ||
accounts shall cause a portion between 3 and 10 percent of | ||
investment assets under the comptroller's management to be | ||
reinvested in physical precious metals or in trust or depository | ||
accounts with respect to physical precious metals determined by the | ||
comptroller to meet requisite standards of safety, security, and | ||
liquidity. To the extent available, such investments shall by | ||
preference be made in depository accounts provided for by this Act. | ||
Otherwise they may be made through other institutions and parties. | ||
(h) For those state funds not in the custody or under the | ||
management of the comptroller of public accounts, the boards, | ||
trustees, or other investment decision authorities of such funds | ||
and agencies shall undertake to establish a plan of divestment that | ||
would be necessary to achieve compliance with the foregoing | ||
provisions in the absence of any contrary provision of the Texas | ||
Constitution. | ||
(i) Not later than the 240th day after the effective date of | ||
this Act, each such state fund and state agency shall submit its | ||
divestment plan to the comptroller of public accounts, together | ||
with an itemization of the provisions of the Texas Constitution, if | ||
any, that would require modification in order for such fund or | ||
agency lawfully to implement the plan submitted. | ||
(j) The comptroller of public accounts shall review the | ||
plans so received and, in consultation with the attorney general, | ||
present a report to the governor and the legislature on or before | ||
the first anniversary of the effective date of this Act proposing | ||
any amendments to the Texas Constitution as are minimally necessary | ||
to authorize and enable all state funds and state agencies to meet | ||
the standards established by this Act. The comptroller by rule may | ||
prescribe forms and procedures as suitable to facilitate and | ||
coordinate the reporting process described by this section. | ||
(k) For those state funds and state agencies for which no | ||
amendments to the Texas Constitution would be necessary, the | ||
comptroller of public accounts, in communication and coordination | ||
with those funds and agencies, shall issue findings and regulations | ||
as are reasonably suited to establishing a coordinated divestment | ||
plan for all such funds and agencies. This coordinated divestment | ||
plan must: | ||
(1) minimize disruption to, or the creation of adverse | ||
conditions in, the financial markets in which such debt and | ||
securities are traded as a result of the transactions to be effected | ||
by such funds and agencies; | ||
(2) take into consideration the results or likely | ||
effects of the transactions to be effected by the comptroller under | ||
Subsection (c) of this section, the aggregate values and types of | ||
securities to be liquidated, the size, liquidity, and absorptive | ||
capacity of the markets for such securities at the time in question, | ||
and the availability of alternative investments such as those | ||
authorized by this Act; and | ||
(3) afford the boards, trustees, or other investment | ||
decision authorities of such funds and agencies sufficient latitude | ||
as to have a reasonable opportunity to conduct the transactions to | ||
be effected by the comptroller under Subsection (c) of this section | ||
in the most favorable market conditions and on the most favorable | ||
terms reasonably feasible or available. | ||
(l) However, the program of divestment required for such | ||
funds and agencies to achieve initial compliance shall in any case | ||
be completed not later than the later of December 31, 2016, or the | ||
first anniversary of the issuance by the comptroller of public | ||
accounts of the coordinated divestment plan and applicable rules. | ||
(m) Following the initial compliance with this section, the | ||
boards, trustees, or other authorities shall manage or cause to be | ||
managed such funds in such a way as to remain in compliance with the | ||
applicable standards except in those limited circumstances in which | ||
fluctuations in market value, unplanned inflows or outflows, or | ||
other factors beyond the boards', trustees', or other authorities' | ||
immediate control cause such holdings to be in noncompliance with | ||
this section. In such circumstances, the authority shall promptly | ||
effect or cause to be effected such transactions as shall be | ||
necessary and sufficient to restore the fund or account in question | ||
to full compliance. | ||
(n) As and to the extent practicable in view of the | ||
divestments described by this section, market conditions, and the | ||
development of the depository system established by this Act, the | ||
boards, trustees, or other investment authorities of such funds and | ||
agencies shall cause a portion between 3 and 10 percent of | ||
investment assets under their management to be reinvested in | ||
physical precious metals or in trust or depository accounts with | ||
respect to physical precious metals determined by the comptroller | ||
of public accounts to meet requisite standards of safety, security, | ||
and liquidity. To the extent available, such investments shall by | ||
preference be made in depository accounts provided for by this Act. | ||
Otherwise they may be made through other institutions and parties. | ||
(o) Not later than the 120th day after the effective date of | ||
this Act, the comptroller of public accounts shall adopt rules | ||
establishing the procedures by which the transactions required by | ||
this section shall be coordinated and the frequency and amounts | ||
with which such transactions shall be implemented, in order to | ||
minimize any resulting disturbance to the regular functioning of | ||
the markets for the securities affected and to ensure the best | ||
possible pricing for such sales on the dates and times thereof. Such | ||
rules shall afford each participating fund or agency access on a | ||
non-preferential basis to the opportunities to participate in such | ||
transactions, in proportion to the aggregate values in which they | ||
then hold the types of securities to be covered by such | ||
transactions. | ||
(p) Within the limits and guidelines established by this | ||
Act, the comptroller of public accounts shall establish from time | ||
to time by rule guidelines for the maximum holdings of federal debt | ||
securities, collateralized debt obligations, and municipal debt | ||
securities in which state funds and agencies may be invested at any | ||
given time. The initial figures so established shall be determined | ||
as one-half the amount by value of such securities as reported for | ||
the fund or agency in question in the comptroller's 2012 | ||
Comprehensive Annual Financial Report for the State of Texas, | ||
subject to subsequent adjustment as necessary to reflect changes in | ||
the composition and value of such investments and evolving market | ||
conditions, but always with the aim of keeping the percentage of | ||
aggregate fund or agency investments represented by such securities | ||
at no more than one-half the percentage reflected in that report. | ||
SECTION 13. This Act takes effect immediately if it | ||
receives a vote of two-thirds of all the members elected to each | ||
house, as provided by Section 39, Article III, Texas Constitution. | ||
If this Act does not receive the vote necessary for immediate | ||
effect, this Act takes effect September 1, 2013. |