Texas 2017 - 85th Regular

Texas House Bill HB2829 Compare Versions

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1	1	85R11924 AJA-F
2	2	By: Oliveira H.B. No. 2829
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to enforcement of certain unclaimed property laws.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Subchapter H, Chapter 74, Property Code, is
10	10	amended by adding Sections 74.7021 through 74.7026 to read as
11	11	follows:
12	12	Sec. 74.7021. AUTHORITY TO TAKE TESTIMONY AND ISSUE
13	13	SUBPOENAS AND COMMISSIONS. (a) In addition to the authority to
14	14	examine and investigate granted under Section 74.702, the
15	15	comptroller, or the comptroller's designee, in furtherance of that
16	16	authority, at reasonable times and on reasonable prior notice, may:
17	17	(1) take testimony;
18	18	(2) administer oaths;
19	19	(3) subpoena witnesses; and
20	20	(4) issue subpoenas or commissions to require any
21	21	person to appear at the place and time stated in the subpoena or
22	22	commission and:
23	23	(A) give testimony under oath; or
24	24	(B) produce relevant books, records, documents,
25	25	papers, accounts, or other data, in whatever form, for audit,
26	26	inspection, and copying as may be relevant or material to the
27	27	inquiry being made.
28	28	(b) A subpoena or commission issued under Subsection (a) may
29	29	be directed to:
30	30	(1) a suspected holder;
31	31	(2) an affiliate, third-party agent, or third-party
32	32	recordkeeper of a suspected holder;
33	33	(3) another custodian of relevant information; or
34	34	(4) any other person the comptroller determines may
35	35	provide assistance to enforce this chapter.
36	36	(c) Authority granted under Subsection (a) may be exercised
37	37	for the purpose of:
38	38	(1) ascertaining the correctness of any report;
39	39	(2) obtaining a report in instances in which none has
40	40	been made;
41	41	(3) determining whether unclaimed property improperly
42	42	remains in the possession of any person;
43	43	(4) collecting all such unclaimed property; and
44	44	(5) inquiring into any offense connected with the
45	45	administration or enforcement of this chapter.
46	46	(d) On receipt of a subpoena or commission under this
47	47	section, the person to whom the subpoena or commission is directed
48	48	shall:
49	49	(1) assemble the witnesses and records requested; and
50	50	(2) be prepared to produce the testimony and records
51	51	pursuant to the subpoena or commission on the day on which the
52	52	witnesses and records are to be examined.
53	53	(e) Any person, or agent or employee of a person, who makes a
54	54	disclosure of records or gives testimony under this section in good
55	55	faith reliance on a subpoena or commission of the comptroller or a
56	56	court order requiring that the records be disclosed or the
57	57	testimony be given is not liable to any person for the disclosure or
58	58	testimony.
59	59	(f) A person authorized to serve process under the Texas
60	60	Rules of Civil Procedure may serve a subpoena or commission issued
61	61	under Subsection (a). The person shall serve the subpoena or
62	62	commission in accordance with the Texas Rules of Civil Procedure.
63	63	(g) A subpoena or commission issued under Subsection (a) to
64	64	a third-party recordkeeper may also be served by certified or
65	65	registered mail to the last known address of that recordkeeper.
66	66	Sec. 74.7022. NOTICE TO CERTAIN PERSONS INTERESTED IN
67	67	SUBPOENA OR COMMISSION. (a) Except as provided by Subsection (d)
68	68	or (e), if a subpoena or commission issued under Section 74.7021
69	69	requires a third-party recordkeeper to give testimony on or related
70	70	to the production of books, records, documents, papers, accounts,
71	71	or other data with respect to any person other than the third-party
72	72	recordkeeper, the comptroller shall give notice to that person on
73	73	or before the earlier of:
74	74	(1) the third day after the date on which the
75	75	third-party recordkeeper is served with the subpoena or commission;
76	76	or
77	77	(2) the 21st day before the date the data is to be
78	78	examined.
79	79	(b) Notice under Subsection (a) must be accompanied by a
80	80	copy of the subpoena or commission served and contain an
81	81	explanation of the right of the person to whom the notice is
82	82	directed to bring a proceeding to quash the subpoena or commission
83	83	under Section 74.7026.
84	84	(c) Notice required by this section is sufficient if served
85	85	in the time and manner provided by this section on the person
86	86	entitled to notice by certified or registered mail to the last known
87	87	address of that person or to the last known address of a fiduciary
88	88	of that person or, in the absence of a last known address, by
89	89	leaving the notice with the person.
90	90	(d) Notice is not required under this section if there is
91	91	reasonable cause to believe that giving the notice may lead a person
92	92	to attempt to:
93	93	(1) conceal, destroy, or alter records or assets
94	94	relevant to the examination;
95	95	(2) prevent the communication of information by other
96	96	persons through intimidation, bribery, or collusion; or
97	97	(3) flee to avoid prosecution, testifying, or
98	98	production of records.
99	99	(e) Notice is not required under this section or under other
100	100	law if:
101	101	(1) the holder or another party identified in the
102	102	subpoena or commission is under criminal investigation; and
103	103	(2) the subpoena or commission has been issued as part
104	104	of the criminal investigation.
105	105	(f) A third-party recordkeeper who is advised that a
106	106	subpoena or commission has been issued as part of a criminal
107	107	investigation is prohibited from informing by any means the holder
108	108	or any other party identified in the subpoena or commission of the
109	109	receipt of the subpoena or commission, the contents of the subpoena
110	110	or commission, or the fact that the holder or other party identified
111	111	may be or is under criminal investigation.
112	112	Sec. 74.7023. REIMBURSEMENT OF THIRD-PARTY COSTS. (a) The
113	113	comptroller shall by rule establish rates and conditions for
114	114	payments to reimburse a person, other than a holder or suspected
115	115	holder, who is subpoenaed or commissioned to give a deposition or to
116	116	produce books, records, documents, papers, accounts, or other data
117	117	under Section 74.7021, for specified costs directly incurred in
118	118	reproducing or transporting the items.
119	119	(b) Rules adopted under this section may:
120	120	(1) require presentation of a voucher that is sworn by
121	121	the person requesting reimbursement and approved by the
122	122	comptroller; and
123	123	(2) establish rates for payment of:
124	124	(A) mileage for going to and returning from the
125	125	place where the deposition is taken if the place is more than 25
126	126	miles from the deposed person's place of residence;
127	127	(B) a fee for each day or part of a day a person is
128	128	necessarily present as a deponent; or
129	129	(C) reasonable costs to copy, reproduce, or
130	130	transport books, records, documents, papers, accounts, or other
131	131	data required to be produced to the comptroller.
132	132	(c) The comptroller may assess costs reimbursed to a
133	133	third-party recordkeeper under this section against a holder if
134	134	information obtained during the course of the audit, inspection, or
135	135	investigation contributes to a determination that the holder is not
136	136	in compliance with the holder's duties under this chapter.
137	137	Sec. 74.7024. PRE-COMPLIANCE REVIEW. Before the return
138	138	date specified on a subpoena or commission issued under Section
139	139	74.7021, the person receiving the subpoena or commission may
140	140	petition a district court in Travis County for an order to modify or
141	141	quash the subpoena or commission or to prohibit disclosure of
142	142	applicable information.
143	143	Sec. 74.7025. ENFORCEMENT OF SUBPOENAS OR COMMISSIONS. (a)
144	144	A district court of Travis County has jurisdiction to hear a
145	145	proceeding brought under this section.
146	146	(b) If a person to whom a subpoena or commission is directed
147	147	under Section 74.7021 fails to comply with the subpoena or
148	148	commission or fails to file a motion under Section 74.7024 before
149	149	the return date specified on the subpoena or commission:
150	150	(1) the subpoena or commission has the force and
151	151	effect of a court order; and
152	152	(2) the comptroller acting through the attorney
153	153	general may bring suit to enforce the subpoena or commission.
154	154	(c) A suit under Subsection (b) may be brought:
155	155	(1) in a state or a federal district court in which
156	156	service may be obtained on the person refusing to testify or
157	157	produce, if the person is within this state; or
158	158	(2) in the appropriate court of the state having
159	159	jurisdiction over the person refusing to testify or produce, if the
160	160	person is outside the state.
161	161	(d) The burden to prove any challenge to a subpoena or
162	162	commission issued under Section 74.7021 rests on the person making
163	163	the challenge.
164	164	(e) A court that determines that a subpoena or commission
165	165	was issued in good faith under Section 74.7021 shall order
166	166	compliance with the subpoena or commission. The court may modify
167	167	the requirements of a subpoena or commission issued under that
168	168	section that the court determines are unreasonable. The court may
169	169	apply penalties for civil and criminal contempt otherwise available
170	170	at law if a person refuses to comply with the court's order.
171	171	(f) In addition to bringing suit under this section, the
172	172	comptroller may elect to initiate an action under Section 74.709 or
173	173	bring charges under Section 74.710.
174	174	Sec. 74.7026. RIGHT TO INTERVENE; NOTICE TO SUBPOENA OR
175	175	COMMISSION RECIPIENT AND TO COMPTROLLER. (a) Any person who is
176	176	entitled to notice of a subpoena or commission issued under Section
177	177	74.7021 has the right to intervene in any proceeding with respect to
178	178	the enforcement of the subpoena or commission and begin a
179	179	proceeding to quash the subpoena or commission not later than the
180	180	20th day after the date notice is given.
181	181	(b) In a proceeding to quash under Subsection (a), the
182	182	comptroller may seek to compel compliance with the subpoena or
183	183	commission.
184	184	(c) If a person begins a proceeding to quash under
185	185	Subsection (a) with respect to any subpoena or commission issued
186	186	under Section 74.7021, before the expiration of the period for
187	187	beginning the proceeding prescribed by Subsection (a), the person
188	188	shall mail by registered or certified mail a copy of the petition to
189	189	the recipient of the subpoena or commission and to the comptroller.
190	190	SECTION 2. This Act does not relieve a holder of any duty or
191	191	obligation that arose before the effective date of this Act to
192	192	report or deliver property or to comply with an examination of
193	193	records authorized under Section 74.702, Property Code. A holder
194	194	who did not comply with the law in effect before the effective date
195	195	of this Act remains subject to the applicable provisions for
196	196	collection, enforcement, and penalties that existed on that date,
197	197	and those provisions continue in effect for that purpose. On the
198	198	effective date of this Act the comptroller may exercise the
199	199	authority granted under this Act to issue and seek enforcement of
200	200	administrative subpoenas and commissions related to unclaimed
201	201	property examinations in progress as well as those initiated on or
202	202	after the effective date of this Act.
203	203	SECTION 3. This Act takes effect immediately if it receives
204	204	a vote of two-thirds of all the members elected to each house, as
205	205	provided by Section 39, Article III, Texas Constitution. If this
206	206	Act does not receive the vote necessary for immediate effect, this
207	207	Act takes effect September 1, 2017.