Texas 2011 - 82nd Regular

Texas Senate Bill SB1165 Compare Versions

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1	1	By: Carona S.B. No. 1165
2	2	(Truitt)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain enforcement powers of the banking commissioner;
8	8	providing administrative penalties.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 35.003, Finance Code, is amended by
11	11	amending Subsections (a) and (b) and adding Subsection (b-1) to
12	12	read as follows:
13	13	(a) The banking commissioner has grounds to remove or
14	14	prohibit a present or former officer, director, or employee of a
15	15	state bank from office or employment in, or prohibit a controlling
16	16	shareholder or other person participating in the affairs of a state
17	17	bank from further participation in the affairs of, a state bank or
18	18	any other entity chartered, registered, permitted, or licensed by
19	19	the banking commissioner if the banking commissioner determines
20	20	from examination or other credible evidence that:
21	21	(1) the person:
22	22	(A) intentionally committed or participated in
23	23	the commission of an act described by Section 35.002(a) with regard
24	24	to the affairs of a financial institution, as defined by Section
25	25	201.101 [the bank]; [or]
26	26	(B) violated a final cease and desist order
27	27	issued by a state or federal regulatory agency against the person or
28	28	an entity in which the person is or was an officer, director, or
29	29	employee [in response to the same or a similar act]; or
30	30	(C) made, or caused to be made, false entries in
31	31	the records of a financial institution;
32	32	(2) because of this action by the person:
33	33	(A) the financial institution [bank] has
34	34	suffered or will probably suffer financial loss or expense, or
35	35	other damage;
36	36	(B) the interests of the [bank's] depositors,
37	37	creditors, or shareholders of the financial institution have been
38	38	or could be prejudiced; or
39	39	(C) the person has received financial gain or
40	40	other benefit by reason of the action, or likely would have if the
41	41	action had not been discovered; and
42	42	(3) the action:
43	43	(A) involves personal dishonesty on the part of
44	44	the person; or
45	45	(B) demonstrates wilful or continuing disregard
46	46	for the safety or soundness of the financial institution [bank].
47	47	(b) If the banking commissioner has grounds for action under
48	48	Subsection (a) and finds that a removal or prohibition order
49	49	appears to be necessary and in the best interest of the bank
50	50	involved and its depositors, creditors, or [and] shareholders, the
51	51	banking commissioner may serve a proposed removal or prohibition
52	52	order, as appropriate, on a person alleged to have committed or
53	53	participated in the action. The proposed order must:
54	54	(1) be delivered by personal delivery or by registered
55	55	or certified mail, return receipt requested;
56	56	(2) state with reasonable certainty the grounds for
57	57	removal or prohibition; [and]
58	58	(3) state the effective date of the order, which may
59	59	not be before the 21st day after the date the proposed order is
60	60	delivered or mailed; and
61	61	(4) state the duration of the order, including whether
62	62	the duration of the order is perpetual.
63	63	(b-1) The banking commissioner may make a removal or
64	64	prohibition order perpetual or effective for a specific period of
65	65	time, may probate the order, or may impose other conditions on the
66	66	order.
67	67	SECTION 2. Subsection (b), Section 35.005, Finance Code, is
68	68	amended to read as follows:
69	69	(b) In each emergency order the banking commissioner shall
70	70	notify the bank and any person against whom the emergency order is
71	71	directed of:
72	72	(1) the specific conduct requiring the order;
73	73	(2) the citation of each law alleged to have been
74	74	violated;
75	75	(3) the immediate and irreparable harm alleged to be
76	76	threatened; [and]
77	77	(4) the duration of the order, including whether the
78	78	duration of the order is perpetual; and
79	79	(5) the right to a hearing.
80	80	SECTION 3. Subsection (a), Section 35.007, Finance Code, is
81	81	amended to read as follows:
82	82	(a) Except as otherwise provided by law, without the prior
83	83	written approval of the banking commissioner, a person subject to a
84	84	final and enforceable removal or prohibition order issued by the
85	85	banking commissioner, or by another state, federal, or foreign
86	86	financial institution regulatory agency, may not:
87	87	(1) serve as a director, officer, or employee of a
88	88	state bank or [,] trust company, or as a director, officer, or
89	89	employee with financial responsibility of any other entity
90	90	chartered, registered, permitted, or licensed by the banking
91	91	commissioner under the laws of this state[, including an interstate
92	92	branch, trust office, or representative office in this state of an
93	93	out-of-state state bank, trust company, or foreign bank];
94	94	(2) directly or indirectly participate in any manner
95	95	in the management of such an entity;
96	96	(3) directly or indirectly vote for a director of such
97	97	an entity; or
98	98	(4) solicit, procure, transfer, attempt to transfer,
99	99	vote, or attempt to vote a proxy, consent, or authorization with
100	100	respect to voting rights in such an entity.
101	101	SECTION 4. Subchapter A, Chapter 35, Finance Code, is
102	102	amended by adding Section 35.0071 to read as follows:
103	103	Sec. 35.0071. APPLICATION FOR RELEASE FROM FINAL REMOVAL OR
104	104	PROHIBITION ORDER. (a) After the expiration of 10 years from date
105	105	of issuance, a person who is subject to a prohibition or removal
106	106	order issued under this subchapter, regardless of the order's
107	107	stated duration or date of issuance, may apply to the banking
108	108	commissioner to be released from the order.
109	109	(b) The application must be made under oath and in the form
110	110	required by the banking commissioner. The application must be
111	111	accompanied by any required fees.
112	112	(c) The banking commissioner, in the exercise of
113	113	discretion, may approve or deny an application filed under this
114	114	section.
115	115	(d) The banking commissioner's decision under Subsection
116	116	(c) is final and not appealable.
117	117	SECTION 5. Section 35.009, Finance Code, is amended to read
118	118	as follows:
119	119	Sec. 35.009. ENFORCEMENT BY COMMISSIONER [OF FINAL ORDER].
120	120	(a) If the banking commissioner reasonably believes that a bank or
121	121	other person has violated any of the following, the banking
122	122	commissioner may take any action authorized under Subsection (a-1):
123	123	(1) this subtitle or rules enacted under this subtitle
124	124	and, as a result of that violation, exposed or could have exposed
125	125	the bank or the bank's depositors, creditors, or shareholders to
126	126	harm;
127	127	(2) other applicable law of this state and, as a result
128	128	of that violation, exposed or could have exposed the bank or the
129	129	bank's depositors, creditors, or shareholders to harm; or
130	130	(3) a final order issued by the banking commissioner.
131	131	(a-1) The [a final and enforceable cease and desist,
132	132	removal, or prohibition order issued under this subchapter, the]
133	133	banking commissioner may:
134	134	(1) initiate an administrative penalty proceeding
135	135	against the bank or other person, in accordance with Sections
136	136	[under Section] 35.010 and 35.011;
137	137	(2) refer the matter to the attorney general for
138	138	enforcement by injunction or other available remedy; or
139	139	(3) pursue any other action the banking commissioner
140	140	considers appropriate under applicable law.
141	141	(b) If the attorney general prevails in an action brought
142	142	under Subsection (a-1)(2) [(a)(2)], the attorney general is
143	143	entitled to recover reasonable attorney's fees from the bank or
144	144	person committing the violation [violating the order].
145	145	SECTION 6. Section 35.010, Finance Code, is amended to read
146	146	as follows:
147	147	Sec. 35.010. ADMINISTRATIVE PENALTY. (a) The banking
148	148	commissioner may initiate a proceeding for an administrative
149	149	penalty against a bank or other person by serving on the bank or
150	150	other person, as applicable, notice of the time and place of a
151	151	hearing on the penalty. The hearing may not be held earlier than
152	152	the 20th day after the date the notice is served. The notice must:
153	153	(1) be served by personal delivery or by registered or
154	154	certified mail, return receipt requested; [and]
155	155	(2) contain a statement of the conduct alleged to
156	156	constitute a violation; and
157	157	(3) if the alleged violation is described by Section
158	158	35.009(a)(1) or (2), identify corrective action that the bank or
159	159	other person must take to avoid or reduce the amount of a penalty
160	160	that would otherwise be imposed under this section [violate the
161	161	order].
162	162	(b) In determining the amount of any penalty to be imposed
163	163	[whether an order has been violated], the banking commissioner
164	164	shall consider the following factors:
165	165	(1) the financial resources of the bank or other
166	166	person;
167	167	(2) the good faith of the bank or other person,
168	168	including any corrective action taken;
169	169	(3) the gravity of the violation;
170	170	(4) the history of previous violations;
171	171	(5) an offset of the amount of the penalty by the
172	172	amount of any penalty imposed by another state or federal agency for
173	173	the same conduct; and
174	174	(6) any other matter that justice may require
175	175	[maintenance of procedures reasonably adopted to ensure compliance
176	176	with the order].
177	177	(c) If the banking commissioner determines after the
178	178	hearing that the alleged conduct occurred and that the conduct
179	179	constitutes a violation [order has been violated], the banking
180	180	commissioner may impose an administrative penalty against a [the]
181	181	bank or other person, as applicable, in an amount:
182	182	(1) if imposed against a bank, not less than $500 and
183	183	not more than $10,000 for each violation for each day the violation
184	184	continues, except that the maximum administrative penalty that may
185	185	be imposed is the lesser of $500,000 or one percent of the bank's
186	186	assets; or
187	187	(2) if imposed against a person other than a bank, not
188	188	less than $500 and not more than $5,000 for each violation for each
189	189	day the violation continues, except that the maximum administrative
190	190	penalty that may be imposed is $250,000 [not to exceed $500 for each
191	191	day the bank violates the final order].
192	192	SECTION 7. Section 35.011, Finance Code, is amended to read
193	193	as follows:
194	194	Sec. 35.011. PAYMENT OR APPEAL OF ADMINISTRATIVE PENALTY.
195	195	(a) When a penalty order under Section 35.010 becomes final, the
196	196	bank or other person, as applicable, shall pay the penalty or appeal
197	197	by filing a petition for judicial review.
198	198	(b) The petition for judicial review stays the penalty order
199	199	during the period preceding the decision of the court. If the court
200	200	sustains the order, the court shall order the bank or other person,
201	201	as applicable, to pay the full amount of the penalty or a lower
202	202	amount determined by the court. If the court does not sustain the
203	203	order, a penalty is not owed. If the final judgment of the court
204	204	requires payment of a penalty, interest accrues on the penalty, at
205	205	the rate charged on loans to depository institutions by the Federal
206	206	Reserve Bank of New York, beginning on the date the judgment is
207	207	final and ending on the date the penalty and interest are paid.
208	208	(c) If the bank or other person, as applicable, does not pay
209	209	the penalty imposed under a final and nonappealable penalty order,
210	210	the banking commissioner shall refer the matter to the attorney
211	211	general for enforcement. The attorney general is entitled to
212	212	recover reasonable attorney's fees from the bank or other person,
213	213	as applicable, if the attorney general prevails in judicial action
214	214	necessary for collection of the penalty.
215	215	SECTION 8. Section 35.012, Finance Code, is amended to read
216	216	as follows:
217	217	Sec. 35.012. CONFIDENTIALITY OF RECORDS. A copy of a
218	218	notice, correspondence, transcript, pleading, or other document in
219	219	the records of the department relating to an order issued under this
220	220	subchapter is confidential and may be released only as provided by
221	221	Subchapter D, Chapter 31, except that the banking commissioner
222	222	periodically shall publish all final removal and prohibition
223	223	orders. The banking commissioner may release a final cease and
224	224	desist order, a final order imposing an administrative penalty, or
225	225	information regarding the existence of any of those orders [the
226	226	order] to the public if the banking commissioner concludes that the
227	227	release would enhance effective enforcement of the order.
228	228	SECTION 9. Section 185.003, Finance Code, is amended by
229	229	amending Subsections (a) and (b) and adding Subsection (b-1) to
230	230	read as follows:
231	231	(a) The banking commissioner has grounds to remove or
232	232	prohibit a present or former officer, director, manager, managing
233	233	participant, or employee of a state trust company from office or
234	234	employment in, or [to] prohibit a controlling shareholder or
235	235	participant or other person from participation in the affairs of,
236	236	the state trust company or any other entity chartered, registered,
237	237	permitted, or licensed by the banking commissioner if the banking
238	238	commissioner determines from examination or other credible
239	239	evidence that:
240	240	(1) the person:
241	241	(A) intentionally committed or participated in
242	242	the commission of an act described by Section 185.002(a) with
243	243	regard to the affairs of a financial institution, as defined by
244	244	Section 201.101 [the state trust company]; [or]
245	245	(B) violated a final cease and desist order
246	246	issued by a state or federal regulatory agency against the person or
247	247	an entity in which the person is or was an officer, director, or
248	248	employee [in response to the same or a similar act]; or
249	249	(C) made, or caused to be made, false entries in
250	250	the records of a financial institution;
251	251	(2) because of this [that] action by the person:
252	252	(A) the financial institution [state trust
253	253	company] has suffered or will probably suffer financial loss or
254	254	expense, or other damage;
255	255	(B) the interests of the [trust company's]
256	256	clients, depositors, creditors, or shareholders of the financial
257	257	institution have been or could be prejudiced; or
258	258	(C) the person has received financial gain or
259	259	other benefit by reason of the action, or likely would have if the
260	260	action had not been discovered [violation]; and
261	261	(3) that action by the person:
262	262	(A) involves personal dishonesty on the part of
263	263	the person; or
264	264	(B) demonstrates wilful or continuing disregard
265	265	for the safety or soundness of the financial institution [state
266	266	trust company].
267	267	(b) If the banking commissioner has grounds for action under
268	268	Subsection (a) and finds that a removal or prohibition order
269	269	appears to be necessary and in the best interest of the state trust
270	270	company involved and its clients, creditors, [and] shareholders, or
271	271	participants, the banking commissioner may serve a proposed removal
272	272	or prohibition order, as appropriate, on an officer, employee,
273	273	director, manager or managing participant, controlling shareholder
274	274	or participant, or other person alleged to have committed or
275	275	participated in the violation or other conduct described by Section
276	276	185.002(a). The order must:
277	277	(1) be delivered by personal delivery or by registered
278	278	or certified mail, return receipt requested;
279	279	(2) state with reasonable certainty the grounds for
280	280	removal or prohibition; [and]
281	281	(3) state the effective date of the order, which may
282	282	not be before [earlier than] the 21st day after the date the
283	283	proposed order is delivered or mailed; and
284	284	(4) state the duration of the order, including whether
285	285	the duration of the order is perpetual [or delivered].
286	286	(b-1) The banking commissioner may make a removal or
287	287	prohibition order perpetual or effective for a specific period of
288	288	time, may probate the order, or may impose other conditions on the
289	289	order.
290	290	SECTION 10. Subsection (b), Section 185.005, Finance Code,
291	291	is amended to read as follows:
292	292	(b) In each emergency order the banking commissioner shall
293	293	notify the state trust company and any person against whom the
294	294	emergency order is directed of:
295	295	(1) the specific conduct requiring the order;
296	296	(2) the citation of each statute or rule alleged to
297	297	have been violated;
298	298	(3) the immediate and irreparable harm alleged to be
299	299	threatened; [and]
300	300	(4) the duration of the order, including whether the
301	301	duration of the order is perpetual; and
302	302	(5) the right to a hearing.
303	303	SECTION 11. Subsection (a), Section 185.007, Finance Code,
304	304	is amended to read as follows:
305	305	(a) Except as provided by other law, without the prior
306	306	written approval of the banking commissioner, a person subject to a
307	307	final and enforceable removal or prohibition order issued by the
308	308	banking commissioner, or by another state, federal, or foreign
309	309	financial institution regulatory agency, may not:
310	310	(1) serve as a director, officer, or employee of a
311	311	state trust company or [,] state bank, or as a director, officer, or
312	312	employee with financial responsibility of any other entity
313	313	chartered, registered, permitted, or licensed by the banking
314	314	commissioner under the laws of this state while the order is in
315	315	effect[, including an interstate branch, trust office, or
316	316	representative office in this state of an out-of-state bank, trust
317	317	company, or foreign bank];
318	318	(2) directly or indirectly participate in any manner
319	319	in the management of such an entity;
320	320	(3) directly or indirectly vote for a director of such
321	321	an entity; or
322	322	(4) solicit, procure, transfer, attempt to transfer,
323	323	vote, or attempt to vote a proxy, consent, or authorization with
324	324	respect to voting rights in such an entity.
325	325	SECTION 12. Subchapter A, Chapter 185, Finance Code, is
326	326	amended by adding Section 185.0071 to read as follows:
327	327	Sec. 185.0071. APPLICATION FOR RELEASE FROM FINAL REMOVAL
328	328	OR PROHIBITION ORDER. (a) After the expiration of 10 years from
329	329	the date of issuance, a person who is subject to a prohibition or
330	330	removal order issued under this subchapter, regardless of the
331	331	order's stated duration or date of issuance, may apply to the
332	332	banking commissioner to be released from the order.
333	333	(b) The application must be made under oath and in the form
334	334	required by the banking commissioner. The application must be
335	335	accompanied by any required fees.
336	336	(c) The banking commissioner, in the exercise of
337	337	discretion, may approve or deny an application filed under this
338	338	section.
339	339	(d) The banking commissioner's decision under Subsection
340	340	(c) is final and not appealable.
341	341	SECTION 13. Section 185.009, Finance Code, is amended to
342	342	read as follows:
343	343	Sec. 185.009. ENFORCEMENT BY COMMISSIONER [OF FINAL ORDER].
344	344	(a) If the banking commissioner reasonably believes that a state
345	345	trust company or other person has violated any of the following, the
346	346	banking commissioner may take any action authorized under
347	347	Subsection (a-1):
348	348	(1) this subtitle or rules enacted under this subtitle
349	349	and, as a result of that violation, exposed or could have exposed
350	350	the state trust company or its clients, creditors, shareholders, or
351	351	participants to harm;
352	352	(2) other applicable law of this state and, as a result
353	353	of that violation, exposed or could have exposed the state trust
354	354	company or its clients, creditors, shareholders, or participants to
355	355	harm; or
356	356	(3) a final order issued by the banking commissioner.
357	357	(a-1) The [a final and enforceable cease and desist,
358	358	removal, or prohibition order issued under this subchapter, the]
359	359	banking commissioner may:
360	360	(1) initiate administrative penalty proceedings
361	361	against the state trust company or other person, as applicable, in
362	362	accordance with Sections [under Section] 185.010 and 185.011;
363	363	(2) refer the matter to the attorney general for
364	364	enforcement by injunction or other available remedy; or
365	365	(3) pursue any other action the banking commissioner
366	366	considers appropriate under applicable law.
367	367	(b) If the attorney general prevails in an action brought
368	368	under Subsection (a-1)(2) [(a)(2)], the attorney general is
369	369	entitled to recover reasonable attorney's fees from a state trust
370	370	company or person committing the violation [violating the order].
371	371	SECTION 14. Section 185.010, Finance Code, is amended to
372	372	read as follows:
373	373	Sec. 185.010. ADMINISTRATIVE PENALTY. (a) The banking
374	374	commissioner may initiate a proceeding for an administrative
375	375	penalty against a state trust company or other person by serving on
376	376	the state trust company or other person, as applicable, notice of
377	377	the time and place of a hearing on the penalty. The hearing may not
378	378	be held earlier than the 20th day after the date the notice is
379	379	served. The notice must:
380	380	(1) be served by personal delivery or by registered or
381	381	certified mail, return receipt requested; [and]
382	382	(2) contain a statement of the conduct alleged to
383	383	constitute a [be in] violation; and
384	384	(3) if the alleged violation is described by Section
385	385	185.009(a)(1) or (2), identify corrective action that the state
386	386	trust company or other person must take to avoid or reduce the
387	387	amount of a penalty that would otherwise be imposed under this
388	388	section [of the order].
389	389	(b) In determining the amount of any penalty to be imposed
390	390	[whether an order has been violated], the banking commissioner
391	391	shall consider the following factors:
392	392	(1) the financial resources of the state trust company
393	393	or other person;
394	394	(2) the good faith of the state trust company or other
395	395	person, including any corrective action taken;
396	396	(3) the gravity of the violation;
397	397	(4) the history of previous violations;
398	398	(5) an offset of the amount of the penalty by the
399	399	amount of any penalty imposed by another state or federal agency for
400	400	the same conduct; and
401	401	(6) any other matter that justice may require
402	402	[maintenance of procedures reasonably adopted to ensure compliance
403	403	with the order].
404	404	(c) If the banking commissioner determines after the
405	405	hearing that the alleged conduct occurred and that the conduct
406	406	constitutes a violation [an order has been violated], the banking
407	407	commissioner may impose an administrative penalty against a state
408	408	trust company or other person, as applicable, in an amount:
409	409	(1) if imposed against a state trust company, not less
410	410	than $500 and not more than $10,000 for each violation for each day
411	411	the violation continues, except that the maximum administrative
412	412	penalty that may be imposed is the lesser of $500,000 or one percent
413	413	of the state trust company's assets; or
414	414	(2) if imposed against a person other than a state
415	415	trust company, not less than $500 and not more than $5,000 for each
416	416	violation for each day the violation continues, except that the
417	417	maximum administrative penalty that may be imposed is $250,000 [not
418	418	to exceed $500 for each day the state trust company violates the
419	419	final order].
420	420	SECTION 15. Section 185.011, Finance Code, is amended to
421	421	read as follows:
422	422	Sec. 185.011. PAYMENT OR APPEAL OF ADMINISTRATIVE PENALTY.
423	423	(a) When a penalty order under Section 185.010 becomes final, a
424	424	state trust company or other person, as applicable, shall pay the
425	425	penalty or appeal by filing a petition for judicial review.
426	426	(b) The petition for judicial review stays the penalty order
427	427	during the period preceding the decision of the court. If the court
428	428	sustains the order, the court shall order the state trust company or
429	429	other person, as applicable, to pay the full amount of the penalty
430	430	or a lower amount determined by the court. If the court does not
431	431	sustain the order, a penalty is not owed. If the final judgment of
432	432	the court requires payment of a penalty, interest accrues on the
433	433	penalty, at the rate charged on loans to depository institutions by
434	434	the [New York] Federal Reserve Bank of New York, beginning on the
435	435	date the judgment is final and ending on the date the penalty and
436	436	interest are paid.
437	437	(c) If the state trust company or other person, as
438	438	applicable, does not pay the penalty imposed under a final and
439	439	nonappealable penalty order, the banking commissioner shall refer
440	440	the matter to the attorney general for enforcement. The attorney
441	441	general is entitled to recover reasonable attorney's fees from the
442	442	state trust company or other person, as applicable, if the attorney
443	443	general prevails in judicial action necessary for collection of the
444	444	penalty.
445	445	SECTION 16. Section 185.012, Finance Code, is amended to
446	446	read as follows:
447	447	Sec. 185.012. CONFIDENTIALITY OF RECORDS. A copy of a
448	448	notice, correspondence, transcript, pleading, or other document in
449	449	the records of the department relating to an order issued under this
450	450	subchapter is confidential and may be released only as provided by
451	451	Subchapter D, Chapter 181, except that the banking commissioner
452	452	periodically shall publish all final removal and prohibition
453	453	orders. The banking commissioner may release a final cease and
454	454	desist order, a final order imposing an administrative penalty, or
455	455	information regarding [relating to] the existence of any of those
456	456	orders [the order] to the public if the banking commissioner
457	457	concludes that the release would enhance effective enforcement of
458	458	the order.
459	459	SECTION 17. Subsection (a), Section 202.005, Finance Code,
460	460	is amended to read as follows:
461	461	(a) The commissioner may:
462	462	(1) examine a bank holding company that controls a
463	463	Texas bank to the same extent as if the bank holding company were a
464	464	Texas state bank; and
465	465	(2) bring an enforcement proceeding under Chapter 35
466	466	against a bank holding company or other person that violates or
467	467	participates in a violation of Subtitle A, an agreement filed with
468	468	the commissioner under this chapter, or a rule adopted by the
469	469	finance commission or order issued by the commissioner under
470	470	Subtitle A, as if the bank holding company were a Texas state bank.
471	471	SECTION 18. The changes in law made by this Act apply only
472	472	to conduct occurring on or after the effective date of this Act.
473	473	Conduct occurring before the effective date of this Act is governed
474	474	by the law in effect on the date the conduct occurred, and the
475	475	former law is continued in effect for that purpose.
476	476	SECTION 19. This Act takes effect immediately if it
477	477	receives a vote of two-thirds of all the members elected to each
478	478	house, as provided by Section 39, Article III, Texas Constitution.
479	479	If this Act does not receive the vote necessary for immediate
480	480	effect, this Act takes effect September 1, 2011.