Texas 2011 - 82nd Regular

Texas House Bill HB2282 Compare Versions

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1	1	82R14635 KFF-F
2	2	By: Truitt H.B. No. 2282
3	3	Substitute the following for H.B. No. 2282:
4	4	By: Truitt C.S.H.B. No. 2282
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to certain enforcement powers of the banking commissioner;
10	10	providing administrative penalties.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 35.003, Finance Code, is amended by
13	13	amending Subsections (a) and (b) and adding Subsection (b-1) to
14	14	read as follows:
15	15	(a) The banking commissioner has grounds to remove or
16	16	prohibit a present or former officer, director, or employee of a
17	17	state bank from office or employment in, or prohibit a controlling
18	18	shareholder or other person participating in the affairs of a state
19	19	bank from further participation in the affairs of, a state bank or
20	20	any other entity chartered, registered, permitted, or licensed by
21	21	the banking commissioner if the banking commissioner determines
22	22	from examination or other credible evidence that:
23	23	(1) the person:
24	24	(A) intentionally committed or participated in
25	25	the commission of an act described by Section 35.002(a) with regard
26	26	to the affairs of a financial institution, as defined by Section
27	27	201.101 [the bank]; [or]
28	28	(B) violated a final cease and desist order
29	29	issued by a state or federal regulatory agency against the person or
30	30	an entity in which the person is or was an officer, director, or
31	31	employee [in response to the same or a similar act]; or
32	32	(C) made, or caused to be made, false entries in
33	33	the records of a financial institution;
34	34	(2) because of this action by the person:
35	35	(A) the financial institution [bank] has
36	36	suffered or will probably suffer financial loss or expense, or
37	37	other damage;
38	38	(B) the interests of the [bank's] depositors,
39	39	creditors, or shareholders of the financial institution have been
40	40	or could be prejudiced; or
41	41	(C) the person has received financial gain or
42	42	other benefit by reason of the action, or likely would have if the
43	43	action had not been discovered; and
44	44	(3) the action:
45	45	(A) involves personal dishonesty on the part of
46	46	the person; or
47	47	(B) demonstrates wilful or continuing disregard
48	48	for the safety or soundness of the financial institution [bank].
49	49	(b) If the banking commissioner has grounds for action under
50	50	Subsection (a) and finds that a removal or prohibition order
51	51	appears to be necessary and in the best interest of the bank
52	52	involved and its depositors, creditors, or [and] shareholders, the
53	53	banking commissioner may serve a proposed removal or prohibition
54	54	order, as appropriate, on a person alleged to have committed or
55	55	participated in the action. The proposed order must:
56	56	(1) be delivered by personal delivery or by registered
57	57	or certified mail, return receipt requested;
58	58	(2) state with reasonable certainty the grounds for
59	59	removal or prohibition; [and]
60	60	(3) state the effective date of the order, which may
61	61	not be before the 21st day after the date the proposed order is
62	62	delivered or mailed; and
63	63	(4) state the duration of the order, including whether
64	64	the duration of the order is perpetual.
65	65	(b-1) The banking commissioner may make a removal or
66	66	prohibition order perpetual or effective for a specific period of
67	67	time, may probate the order, or may impose other conditions on the
68	68	order.
69	69	SECTION 2. Section 35.005(b), Finance Code, is amended to
70	70	read as follows:
71	71	(b) In each emergency order the banking commissioner shall
72	72	notify the bank and any person against whom the emergency order is
73	73	directed of:
74	74	(1) the specific conduct requiring the order;
75	75	(2) the citation of each law alleged to have been
76	76	violated;
77	77	(3) the immediate and irreparable harm alleged to be
78	78	threatened; [and]
79	79	(4) the duration of the order, including whether the
80	80	duration of the order is perpetual; and
81	81	(5) the right to a hearing.
82	82	SECTION 3. Section 35.007(a), Finance Code, is amended to
83	83	read as follows:
84	84	(a) Except as otherwise provided by law, without the prior
85	85	written approval of the banking commissioner, a person subject to a
86	86	final and enforceable removal or prohibition order issued by the
87	87	banking commissioner, or by another state, federal, or foreign
88	88	financial institution regulatory agency, may not:
89	89	(1) serve as a director, officer, or employee of a
90	90	state bank or [,] trust company, or as a director, officer, or
91	91	employee with financial responsibility of any other entity
92	92	chartered, registered, permitted, or licensed by the banking
93	93	commissioner under the laws of this state[, including an interstate
94	94	branch, trust office, or representative office in this state of an
95	95	out-of-state state bank, trust company, or foreign bank];
96	96	(2) directly or indirectly participate in any manner
97	97	in the management of such an entity;
98	98	(3) directly or indirectly vote for a director of such
99	99	an entity; or
100	100	(4) solicit, procure, transfer, attempt to transfer,
101	101	vote, or attempt to vote a proxy, consent, or authorization with
102	102	respect to voting rights in such an entity.
103	103	SECTION 4. Subchapter A, Chapter 35, Finance Code, is
104	104	amended by adding Section 35.0071 to read as follows:
105	105	Sec. 35.0071. APPLICATION FOR RELEASE FROM FINAL REMOVAL OR
106	106	PROHIBITION ORDER. (a) After the expiration of 10 years from date
107	107	of issuance, a person who is subject to a prohibition or removal
108	108	order issued under this subchapter, regardless of the order's
109	109	stated duration or date of issuance, may apply to the banking
110	110	commissioner to be released from the order.
111	111	(b) The application must be made under oath and in the form
112	112	required by the banking commissioner. The application must be
113	113	accompanied by any required fees.
114	114	(c) The banking commissioner, in the exercise of
115	115	discretion, may approve or deny an application filed under this
116	116	section.
117	117	(d) The banking commissioner's decision under Subsection
118	118	(c) is final and not appealable.
119	119	SECTION 5. Section 35.009, Finance Code, is amended to read
120	120	as follows:
121	121	Sec. 35.009. ENFORCEMENT BY COMMISSIONER [OF FINAL ORDER].
122	122	(a) If the banking commissioner reasonably believes that a bank or
123	123	other person has violated any of the following, the commissioner
124	124	may take any action authorized under Subsection (a-1):
125	125	(1) this subtitle or rules enacted under this subtitle
126	126	and, as a result of that violation, exposed or could have exposed
127	127	the bank or the bank's depositors, creditors, or shareholders to
128	128	harm;
129	129	(2) other applicable law of this state and, as a result
130	130	of that violation, exposed or could have exposed the bank or the
131	131	bank's depositors, creditors, or shareholders to harm; or
132	132	(3) a final order issued by the commissioner.
133	133	(a-1) The [a final and enforceable cease and desist,
134	134	removal, or prohibition order issued under this subchapter, the]
135	135	banking commissioner may:
136	136	(1) initiate an administrative penalty proceeding
137	137	against the bank or other person, in accordance with Sections
138	138	[under Section] 35.010 and 35.011;
139	139	(2) refer the matter to the attorney general for
140	140	enforcement by injunction or other available remedy; or
141	141	(3) pursue any other action the banking commissioner
142	142	considers appropriate under applicable law.
143	143	(b) If the attorney general prevails in an action brought
144	144	under Subsection (a-1)(2) [(a)(2)], the attorney general is
145	145	entitled to recover reasonable attorney's fees from the bank or
146	146	person committing the violation [violating the order].
147	147	SECTION 6. Section 35.010, Finance Code, is amended to read
148	148	as follows:
149	149	Sec. 35.010. ADMINISTRATIVE PENALTY. (a) The banking
150	150	commissioner may initiate a proceeding for an administrative
151	151	penalty against a bank or other person by serving on the bank or
152	152	other person, as applicable, notice of the time and place of a
153	153	hearing on the penalty. The hearing may not be held earlier than
154	154	the 20th day after the date the notice is served. The notice must:
155	155	(1) be served by personal delivery or by registered or
156	156	certified mail, return receipt requested; [and]
157	157	(2) contain a statement of the conduct alleged to
158	158	constitute a violation; and
159	159	(3) if the alleged violation is described by Section
160	160	35.009(a)(1) or (2), identify corrective action that the bank or
161	161	other person must take to avoid or reduce the amount of a penalty
162	162	that would otherwise be imposed under this section [violate the
163	163	order].
164	164	(b) In determining the amount of any penalty to be imposed
165	165	[whether an order has been violated], the banking commissioner
166	166	shall consider the following factors:
167	167	(1) the financial resources of the bank or other
168	168	person;
169	169	(2) the good faith of the bank or other person,
170	170	including any corrective action taken;
171	171	(3) the gravity of the violation;
172	172	(4) the history of previous violations;
173	173	(5) an offset of the amount of the penalty by the
174	174	amount of any penalty imposed by another state or federal agency for
175	175	the same conduct; and
176	176	(6) any other matter that justice may require
177	177	[maintenance of procedures reasonably adopted to ensure compliance
178	178	with the order].
179	179	(c) If the banking commissioner determines after the
180	180	hearing that the alleged conduct occurred and that the conduct
181	181	constitutes a violation [order has been violated], the banking
182	182	commissioner may impose an administrative penalty against a [the]
183	183	bank or other person, as applicable, in an amount not to exceed:
184	184	(1) if imposed against a bank, not less than $500 and
185	185	not more than $10,000 for each violation for each day the violation
186	186	continues, except that the maximum administrative penalty that may
187	187	be imposed is the lesser of $500,000 or one percent of the bank's
188	188	assets; or
189	189	(2) if imposed against a person other than a bank, not
190	190	less than $500 and not more than $5,000 for each violation for each
191	191	day the violation continues, except that the maximum administrative
192	192	penalty that may be imposed is $250,000 [$500 for each day the bank
193	193	violates the final order].
194	194	SECTION 7. Section 35.011, Finance Code, is amended to read
195	195	as follows:
196	196	Sec. 35.011. PAYMENT OR APPEAL OF ADMINISTRATIVE PENALTY.
197	197	(a) When a penalty order under Section 35.010 becomes final, the
198	198	bank or other person, as applicable, shall pay the penalty or appeal
199	199	by filing a petition for judicial review.
200	200	(b) The petition for judicial review stays the penalty order
201	201	during the period preceding the decision of the court. If the court
202	202	sustains the order, the court shall order the bank or other person,
203	203	as applicable, to pay the full amount of the penalty or a lower
204	204	amount determined by the court. If the court does not sustain the
205	205	order, a penalty is not owed. If the final judgment of the court
206	206	requires payment of a penalty, interest accrues on the penalty, at
207	207	the rate charged on loans to depository institutions by the Federal
208	208	Reserve Bank of New York, beginning on the date the judgment is
209	209	final and ending on the date the penalty and interest are paid.
210	210	(c) If the bank or other person, as applicable, does not pay
211	211	the penalty imposed under a final and nonappealable penalty order,
212	212	the banking commissioner shall refer the matter to the attorney
213	213	general for enforcement. The attorney general is entitled to
214	214	recover reasonable attorney's fees from the bank or other person,
215	215	as applicable, if the attorney general prevails in judicial action
216	216	necessary for collection of the penalty.
217	217	SECTION 8. Section 35.012, Finance Code, is amended to read
218	218	as follows:
219	219	Sec. 35.012. CONFIDENTIALITY OF RECORDS. A copy of a
220	220	notice, correspondence, transcript, pleading, or other document in
221	221	the records of the department relating to an order issued under this
222	222	subchapter is confidential and may be released only as provided by
223	223	Subchapter D, Chapter 31, except that the banking commissioner
224	224	periodically shall publish all final removal and prohibition
225	225	orders. The banking commissioner may release a final cease and
226	226	desist order, a final order imposing an administrative penalty, or
227	227	information regarding the existence of any of those orders [the
228	228	order] to the public if the banking commissioner concludes that the
229	229	release would enhance effective enforcement of the order.
230	230	SECTION 9. Section 185.003, Finance Code, is amended by
231	231	amending Subsections (a) and (b) and adding Subsection (b-1) to
232	232	read as follows:
233	233	(a) The banking commissioner has grounds to remove or
234	234	prohibit a present or former officer, director, manager, managing
235	235	participant, or employee of a state trust company from office or
236	236	employment in, or [to] prohibit a controlling shareholder or
237	237	participant or other person from participation in the affairs of,
238	238	the state trust company or any other entity chartered, registered,
239	239	permitted, or licensed by the banking commissioner if the banking
240	240	commissioner determines from examination or other credible
241	241	evidence that:
242	242	(1) the person:
243	243	(A) intentionally committed or participated in
244	244	the commission of an act described by Section 185.002(a) with
245	245	regard to the affairs of a financial institution, as defined by
246	246	Section 201.101 [the state trust company]; [or]
247	247	(B) violated a final cease and desist order
248	248	issued by a state or federal regulatory agency against the person or
249	249	an entity in which the person is or was an officer, director, or
250	250	employee [in response to the same or a similar act]; or
251	251	(C) made, or caused to be made, false entries in
252	252	the records of a financial institution;
253	253	(2) because of this [that] action by the person:
254	254	(A) the financial institution [state trust
255	255	company] has suffered or will probably suffer financial loss or
256	256	expense, or other damage;
257	257	(B) the interests of the [trust company's]
258	258	clients, depositors, creditors, or shareholders of the financial
259	259	institution have been or could be prejudiced; or
260	260	(C) the person has received financial gain or
261	261	other benefit by reason of the action, or likely would have if the
262	262	action had not been discovered [violation]; and
263	263	(3) that action by the person:
264	264	(A) involves personal dishonesty on the part of
265	265	the person; or
266	266	(B) demonstrates wilful or continuing disregard
267	267	for the safety or soundness of the financial institution [state
268	268	trust company].
269	269	(b) If the banking commissioner has grounds for action under
270	270	Subsection (a) and finds that a removal or prohibition order
271	271	appears to be necessary and in the best interest of the state trust
272	272	company involved and its clients, creditors, [and] shareholders, or
273	273	participants, the banking commissioner may serve a proposed removal
274	274	or prohibition order, as appropriate, on an officer, employee,
275	275	director, manager or managing participant, controlling shareholder
276	276	or participant, or other person alleged to have committed or
277	277	participated in the violation or other conduct described by Section
278	278	185.002(a). The order must:
279	279	(1) be delivered by personal delivery or by registered
280	280	or certified mail, return receipt requested;
281	281	(2) state with reasonable certainty the grounds for
282	282	removal or prohibition; [and]
283	283	(3) state the effective date of the order, which may
284	284	not be before [earlier than] the 21st day after the date the
285	285	proposed order is delivered or mailed; and
286	286	(4) state the duration of the order, including whether
287	287	the duration of the order is perpetual [or delivered].
288	288	(b-1) The banking commissioner may make a removal or
289	289	prohibition order perpetual or effective for a specific period of
290	290	time, may probate the order, or may impose other conditions on the
291	291	order.
292	292	SECTION 10. Section 185.005(b), Finance Code, is amended to
293	293	read as follows:
294	294	(b) In each emergency order the banking commissioner shall
295	295	notify the state trust company and any person against whom the
296	296	emergency order is directed of:
297	297	(1) the specific conduct requiring the order;
298	298	(2) the citation of each statute or rule alleged to
299	299	have been violated;
300	300	(3) the immediate and irreparable harm alleged to be
301	301	threatened; [and]
302	302	(4) the duration of the order, including whether the
303	303	duration of the order is perpetual; and
304	304	(5) the right to a hearing.
305	305	SECTION 11. Section 185.007(a), Finance Code, is amended to
306	306	read as follows:
307	307	(a) Except as provided by other law, without the prior
308	308	written approval of the banking commissioner, a person subject to a
309	309	final and enforceable removal or prohibition order issued by the
310	310	banking commissioner, or by another state, federal, or foreign
311	311	financial institution regulatory agency, may not:
312	312	(1) serve as a director, officer, or employee of a
313	313	state trust company or [,] state bank, or as a director, officer, or
314	314	employee with financial responsibility of any other entity
315	315	chartered, registered, permitted, or licensed by the banking
316	316	commissioner under the laws of this state while the order is in
317	317	effect[, including an interstate branch, trust office, or
318	318	representative office in this state of an out-of-state bank, trust
319	319	company, or foreign bank];
320	320	(2) directly or indirectly participate in any manner
321	321	in the management of such an entity;
322	322	(3) directly or indirectly vote for a director of such
323	323	an entity; or
324	324	(4) solicit, procure, transfer, attempt to transfer,
325	325	vote, or attempt to vote a proxy, consent, or authorization with
326	326	respect to voting rights in such an entity.
327	327	SECTION 12. Subchapter A, Chapter 185, Finance Code, is
328	328	amended by adding Section 185.0071 to read as follows:
329	329	Sec. 185.0071. APPLICATION FOR RELEASE FROM FINAL REMOVAL
330	330	OR PROHIBITION ORDER. (a) After the expiration of 10 years from
331	331	date of issuance, a person who is subject to a prohibition or
332	332	removal order issued under this subchapter, regardless of the
333	333	order's stated duration or date of issuance, may apply to the
334	334	banking commissioner to be released from the order.
335	335	(b) The application must be made under oath and in the form
336	336	required by the banking commissioner. The application must be
337	337	accompanied by any required fees.
338	338	(c) The banking commissioner, in the exercise of
339	339	discretion, may approve or deny an application filed under this
340	340	section.
341	341	(d) The banking commissioner's decision under Subsection
342	342	(c) is final and not appealable.
343	343	SECTION 13. Section 185.009, Finance Code, is amended to
344	344	read as follows:
345	345	Sec. 185.009. ENFORCEMENT BY COMMISSIONER [OF FINAL ORDER].
346	346	(a) If the banking commissioner reasonably believes that a state
347	347	trust company or other person has violated any of the following, the
348	348	commissioner may take any action authorized under Subsection (a-1):
349	349	(1) this subtitle or rules enacted under this subtitle
350	350	and, as a result of that violation, exposed or could have exposed
351	351	the state trust company or its clients, creditors, shareholders, or
352	352	participants to harm;
353	353	(2) other applicable law of this state and, as a result
354	354	of that violation, exposed or could have exposed the state trust
355	355	company or its clients, creditors, shareholders, or participants to
356	356	harm; or
357	357	(3) a final order issued by the commissioner.
358	358	(a-1) The [a final and enforceable cease and desist,
359	359	removal, or prohibition order issued under this subchapter, the]
360	360	banking commissioner may:
361	361	(1) initiate administrative penalty proceedings
362	362	against the state trust company or other person, as applicable, in
363	363	accordance with Sections [under Section] 185.010 and 185.011;
364	364	(2) refer the matter to the attorney general for
365	365	enforcement by injunction or other available remedy; or
366	366	(3) pursue any other action the banking commissioner
367	367	considers appropriate under applicable law.
368	368	(b) If the attorney general prevails in an action brought
369	369	under Subsection (a-1)(2) [(a)(2)], the attorney general is
370	370	entitled to recover reasonable attorney's fees from a state trust
371	371	company or person committing the violation [violating the order].
372	372	SECTION 14. Section 185.010, Finance Code, is amended to
373	373	read as follows:
374	374	Sec. 185.010. ADMINISTRATIVE PENALTY. (a) The banking
375	375	commissioner may initiate a proceeding for an administrative
376	376	penalty against a state trust company or other person by serving on
377	377	the state trust company or other person, as applicable, notice of
378	378	the time and place of a hearing on the penalty. The hearing may not
379	379	be held earlier than the 20th day after the date the notice is
380	380	served. The notice must:
381	381	(1) be served by personal delivery or by registered or
382	382	certified mail, return receipt requested; [and]
383	383	(2) contain a statement of the conduct alleged to
384	384	constitute a [be in] violation; and
385	385	(3) if the alleged violation is described by Section
386	386	185.009(a)(1) or (2), identify corrective action that the state
387	387	trust company or other person must take to avoid or reduce the
388	388	amount of a penalty that would otherwise be imposed under this
389	389	section [of the order].
390	390	(b) In determining the amount of any penalty to be imposed
391	391	[whether an order has been violated], the banking commissioner
392	392	shall consider the following factors:
393	393	(1) the financial resources of the state trust company
394	394	or other person;
395	395	(2) the good faith of the state trust company or other
396	396	person, including any corrective action taken;
397	397	(3) the gravity of the violation;
398	398	(4) the history of previous violations;
399	399	(5) an offset of the amount of the penalty by the
400	400	amount of any penalty imposed by another state or federal agency for
401	401	the same conduct; and
402	402	(6) any other matter that justice may require
403	403	[maintenance of procedures reasonably adopted to ensure compliance
404	404	with the order].
405	405	(c) If the banking commissioner determines after the
406	406	hearing that the alleged conduct occurred and that the conduct
407	407	constitutes a violation [an order has been violated], the banking
408	408	commissioner may impose an administrative penalty against a state
409	409	trust company or other person, as applicable, in an amount not to
410	410	exceed:
411	411	(1) if imposed against a state trust company, not less
412	412	than $500 and not more than $10,000 for each violation for each day
413	413	the violation continues, except that the maximum administrative
414	414	penalty that may be imposed is the lesser of $500,000 or one percent
415	415	of the state trust company's assets; or
416	416	(2) if imposed against a person other than a state
417	417	trust company, not less than $500 and not more than $5,000 for each
418	418	violation for each day the violation continues, except that the
419	419	maximum administrative penalty that may be imposed is $250,000
420	420	[$500 for each day the state trust company violates the final
421	421	order].
422	422	SECTION 15. Section 185.011, Finance Code, is amended to
423	423	read as follows:
424	424	Sec. 185.011. PAYMENT OR APPEAL OF ADMINISTRATIVE PENALTY.
425	425	(a) When a penalty order under Section 185.010 becomes final, a
426	426	state trust company or other person, as applicable, shall pay the
427	427	penalty or appeal by filing a petition for judicial review.
428	428	(b) The petition for judicial review stays the penalty order
429	429	during the period preceding the decision of the court. If the court
430	430	sustains the order, the court shall order the state trust company or
431	431	other person, as applicable, to pay the full amount of the penalty
432	432	or a lower amount determined by the court. If the court does not
433	433	sustain the order, a penalty is not owed. If the final judgment of
434	434	the court requires payment of a penalty, interest accrues on the
435	435	penalty, at the rate charged on loans to depository institutions by
436	436	the [New York] Federal Reserve Bank of New York, beginning on the
437	437	date the judgment is final and ending on the date the penalty and
438	438	interest are paid.
439	439	(c) If the state trust company or other person, as
440	440	applicable, does not pay the penalty imposed under a final and
441	441	nonappealable penalty order, the banking commissioner shall refer
442	442	the matter to the attorney general for enforcement. The attorney
443	443	general is entitled to recover reasonable attorney's fees from the
444	444	state trust company or other person, as applicable, if the attorney
445	445	general prevails in judicial action necessary for collection of the
446	446	penalty.
447	447	SECTION 16. Section 185.012, Finance Code, is amended to
448	448	read as follows:
449	449	Sec. 185.012. CONFIDENTIALITY OF RECORDS. A copy of a
450	450	notice, correspondence, transcript, pleading, or other document in
451	451	the records of the department relating to an order issued under this
452	452	subchapter is confidential and may be released only as provided by
453	453	Subchapter D, Chapter 181, except that the banking commissioner
454	454	periodically shall publish all final removal and prohibition
455	455	orders. The banking commissioner may release a final cease and
456	456	desist order, a final order imposing an administrative penalty, or
457	457	information regarding [relating to] the existence of any of those
458	458	orders [the order] to the public if the banking commissioner
459	459	concludes that the release would enhance effective enforcement of
460	460	the order.
461	461	SECTION 17. Section 202.005(a), Finance Code, is amended to
462	462	read as follows:
463	463	(a) The commissioner may:
464	464	(1) examine a bank holding company that controls a
465	465	Texas bank to the same extent as if the bank holding company were a
466	466	Texas state bank; and
467	467	(2) bring an enforcement proceeding under Chapter 35
468	468	against a bank holding company or other person that violates or
469	469	participates in a violation of Subtitle A, an agreement filed with
470	470	the commissioner under this chapter, or a rule adopted by the
471	471	finance commission or order issued by the commissioner under
472	472	Subtitle A, as if the bank holding company were a Texas state bank.
473	473	SECTION 18. The changes in law made by this Act apply only
474	474	to conduct occurring on or after the effective date of this Act.
475	475	Conduct occurring before the effective date of this Act is governed
476	476	by the law in effect on the date the conduct occurred, and the
477	477	former law is continued in effect for that purpose.
478	478	SECTION 19. This Act takes effect immediately if it
479	479	receives a vote of two-thirds of all the members elected to each
480	480	house, as provided by Section 39, Article III, Texas Constitution.
481	481	If this Act does not receive the vote necessary for immediate
482	482	effect, this Act takes effect September 1, 2011.