Texas 2015 - 84th Regular

Texas House Bill HB3190 Compare Versions

Version 1 (Old)

Version 2 (New)

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1		-	By: Villalba (Senate Sponsor - Huffines) H.B. No. 3190
2		-	(In the Senate - Received from the House May 14, 2015;
3		-	May 15, 2015, read first time and referred to Committee on Business
4		-	and Commerce; May 22, 2015, reported favorably by the following
5		-	vote: Yeas 7, Nays 0; May 22, 2015, sent to printer.)
6		-	Click here to see the committee vote
	1	+	H.B. No. 3190
7	2
8	3
9		-	A BILL TO BE ENTITLED
10	4		AN ACT
11	5		relating to the authority of certain persons to direct, consent to,
12	6		or disapprove a trustee's decisions.
13	7		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	8		SECTION 1. Section 114.003, Property Code, is amended to
15	9		read as follows:
16	10		Sec. 114.003. POWERS TO DIRECT: CHARITABLE TRUSTS. (a) In
17	11		this section, "charitable trust" has the meaning assigned by
18	12		Section 123.001.
19	13		(a-1) The terms of a charitable trust may give a trustee or
20	14		other person a power to direct the modification or termination of
21	15		the trust.
22	16		(b) If the terms of a charitable trust give a person the
23	17		power to direct certain actions of the trustee, the trustee shall
24	18		act in accordance with the person's direction unless:
25	19		(1) the direction is manifestly contrary to the terms
26	20		of the trust; or
27	21		(2) the trustee knows the direction would constitute a
28	22		serious breach of a fiduciary duty that the person holding the power
29	23		to direct owes to the beneficiaries of the trust.
30	24		(c) A person, other than a beneficiary, who holds a power to
31	25		direct with respect to a charitable trust is presumptively a
32	26		fiduciary required to act in good faith with regard to the purposes
33	27		of the trust and the interests of the beneficiaries. The holder of
34	28		a power to direct with respect to a charitable trust is liable for
35	29		any loss that results from a breach of the person's fiduciary duty.
36	30		SECTION 2. Subchapter A, Chapter 114, Property Code, is
37	31		amended by adding Section 114.0031 to read as follows:
38	32		Sec. 114.0031. DIRECTED TRUSTS; ADVISORS. (a) In this
39	33		section:
40	34		(1) "Advisor" includes protector.
41	35		(2) "Investment decision" means, with respect to any
42	36		investment, the retention, purchase, sale, exchange, tender, or
43	37		other transaction affecting the ownership of the investment or
44	38		rights in the investment and, with respect to a nonpublicly traded
45	39		investment, the valuation of the investment.
46	40		(b) This section does not apply to a charitable trust as
47	41		defined by Section 123.001.
48	42		(c) For purposes of this section, an advisor with authority
49	43		with respect to investment decisions is an investment advisor.
50	44		(d) A protector has all the power and authority granted to
51	45		the protector by the trust terms, which may include:
52	46		(1) the power to remove and appoint trustees,
53	47		advisors, trust committee members, and other protectors;
54	48		(2) the power to modify or amend the trust terms to
55	49		achieve favorable tax status or to facilitate the efficient
56	50		administration of the trust; and
57	51		(3) the power to modify, expand, or restrict the terms
58	52		of a power of appointment granted to a beneficiary by the trust
59	53		terms.
60	54		(e) If the terms of a trust give a person the authority to
61	55		direct, consent to, or disapprove a trustee's actual or proposed
62	56		investment decisions, distribution decisions, or other decisions,
63	57		the person is considered to be an advisor and a fiduciary when
64	58		exercising that authority except that the trust terms may provide
65	59		that an advisor acts in a nonfiduciary capacity.
66	60		(f) A trustee who acts in accordance with the direction of
67	61		an advisor, as prescribed by the trust terms, is not liable, except
68	62		in cases of wilful misconduct on the part of the trustee so
69	63		directed, for any loss resulting directly or indirectly from that
70	64		act.
71	65		(g) If the trust terms provide that a trustee must make
72	66		decisions with the consent of an advisor, the trustee is not liable,
73	67		except in cases of wilful misconduct or gross negligence on the part
74	68		of the trustee, for any loss resulting directly or indirectly from
75	69		any act taken or not taken as a result of the advisor's failure to
76	70		provide the required consent after having been requested to do so by
77	71		the trustee.
78	72		(h) If the trust terms provide that a trustee must act in
79	73		accordance with the direction of an advisor with respect to
80	74		investment decisions, distribution decisions, or other decisions
81	75		of the trustee, the trustee does not, except to the extent the trust
82	76		terms provide otherwise, have the duty to:
83	77		(1) monitor the conduct of the advisor;
84	78		(2) provide advice to the advisor or consult with the
85	79		advisor; or
86	80		(3) communicate with or warn or apprise any
87	81		beneficiary or third party concerning instances in which the
88	82		trustee would or might have exercised the trustee's own discretion
89	83		in a manner different from the manner directed by the advisor.
90	84		(i) Absent clear and convincing evidence to the contrary,
91	85		the actions of a trustee pertaining to matters within the scope of
92	86		the advisor's authority, such as confirming that the advisor's
93	87		directions have been carried out and recording and reporting
94	88		actions taken at the advisor's direction, are presumed to be
95	89		administrative actions taken by the trustee solely to allow the
96	90		trustee to perform those duties assigned to the trustee under the
97	91		trust terms, and such administrative actions are not considered to
98	92		constitute an undertaking by the trustee to monitor the advisor or
99	93		otherwise participate in actions within the scope of the advisor's
100	94		authority.
101	95		SECTION 3. (a) Except as specifically provided by a trust
102	96		term in effect before the effective date of this Act, the changes in
103	97		law made by this Act apply to a trust created before, on, or after
104	98		the effective date of this Act with respect to an action taken or
105	99		not taken on or after September 1, 2015, by a trustee or other
106	100		person with respect to the trust.
107	101		(b) An action taken or not taken with respect to a trust
108	102		before September 1, 2015, is governed by the law that applied to the
109	103		action taken or not taken immediately before the effective date of
110	104		this Act, and that law is continued in effect for that purpose.
111	105		SECTION 4. This Act takes effect immediately if it receives
112	106		a vote of two-thirds of all the members elected to each house, as
113	107		provided by Section 39, Article III, Texas Constitution. If this
114	108		Act does not receive the vote necessary for immediate effect, this
115	109		Act takes effect September 1, 2015.
116		-	* * * * *
	110	+	______________________________ ______________________________
	111	+	President of the Senate Speaker of the House
	112	+	I certify that H.B. No. 3190 was passed by the House on May
	113	+	13, 2015, by the following vote: Yeas 108, Nays 34, 5 present, not
	114	+	voting.
	115	+	______________________________
	116	+	Chief Clerk of the House
	117	+	I certify that H.B. No. 3190 was passed by the Senate on May
	118	+	27, 2015, by the following vote: Yeas 30, Nays 1.
	119	+	______________________________
	120	+	Secretary of the Senate
	121	+	APPROVED: _____________________
	122	+	Date
	123	+	_____________________
	124	+	Governor