Texas 2017 - 85th Regular

Texas Senate Bill SB2173 Compare Versions

Only one version of the bill is available at this time.

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1	1	By: Kolkhorst S.B. No. 2173
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to the operation and administration of the Texas Bullion
7	7	Depository; depository agents; and to the appropriation of money
8	8	from the fees, charges, penalties, and other amounts related to the
9	9	depository and deposited to the general revenue fund for that
10	10	purpose.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 2116.001(9), Government Code, is amended
13	13	to read as follows:
14	14	(9) "Depository agent" means a person licensed in
15	15	accordance with this chapter to serve as an agent on behalf of a
16	16	current or prospective [intermediary between the] depository
17	17	account holder [and a retail customer] in making a retail
18	18	transaction in precious metals bullion or specie.
19	19	SECTION 2. Section 2116.002, Government Code, is amended by
20	20	amending Subsection (a) and adding Subsections (c)-(h) to read as
21	21	follows:
22	22	(a) The Texas Bullion Depository is established as a program
23	23	[an agency of this state] in the office of the comptroller to
24	24	provide a bullion depository and services for the public benefit
25	25	relating to bullion, specie, and precious metals.
26	26	(c) The comptroller may establish a special purpose
27	27	corporation or other legal entity, with all general corporate
28	28	powers incident to its operation as a corporate body, to operate the
29	29	depository for the public benefit and provide related services, as
30	30	provided by this chapter. The entity has all necessary and implied
31	31	powers to accomplish the purposes of the entity. The entity is
32	32	subject to regulation only as provided by this chapter.
33	33	(d) The depository may adopt and amend articles of
34	34	incorporation, bylaws, resolutions, and other documents necessary
35	35	to carry out its purposes.
36	36	(e) This state and the comptroller may not be held liable
37	37	for the depository or related activities of the depository. This
38	38	chapter may not be construed as creating financial or other
39	39	responsibilities to the state or to the comptroller. This state
40	40	does not pledge the full faith and credit of this state for the
41	41	benefit of the depository.
42	42	(f) The depository may enter into one or more contracts with
43	43	a vendor to operate the depository or provide any of the
44	44	depository's services.
45	45	(g) Notwithstanding Chapter 2113, Government Code, the
46	46	depository may enter into contracts and engage in marketing, the
47	47	sale of promotional items, advertising, and other activities to
48	48	promote the depository. The comptroller may use appropriated funds
49	49	to pay for activities of the depository authorized under this
50	50	section.
51	51	SECTION 3. Section 2116.003, Government Code, is amended to
52	52	read as follows:
53	53	Sec. 2116.003. DEPOSITORY ADMINISTRATION; ADMINISTRATOR.
54	54	(a) The depository is administered as a program [division] of the
55	55	office of the comptroller and under the direction and supervision
56	56	of a bullion depository administrator appointed by the comptroller
57	57	[with the advice and consent of the governor, lieutenant governor,
58	58	and senate].
59	59	(b) The administrator shall:
60	60	(1) administer, supervise, and direct the operations
61	61	and affairs of the depository and liaise with depository agents;
62	62	and
63	63	(2) liaise with the comptroller and other divisions of
64	64	the office of the comptroller to ensure that each transaction with
65	65	the depository that involves state money, that involves an agency,
66	66	a political subdivision, or another instrumentality of this state,
67	67	or that involves a private person is planned, administered, and
68	68	executed in a manner to achieve the purposes of this chapter.
69	69	(c) The administrator may appoint, subject to the approval
70	70	of the comptroller, a deputy administrator or other subordinate
71	71	officer or staff member as necessary and appropriate to the
72	72	efficient administration of the depository. The depository may
73	73	contract with the comptroller's office to provide staff support.
74	74	(d) The administrator, the deputy administrator or another
75	75	subordinate officer, or a staff member of the depository is not
76	76	personally liable in the person's private capacity for any act
77	77	performed or for any contract or other obligation entered into or
78	78	undertaken in an official capacity in good faith and without intent
79	79	to defraud in connection with the administration, management, or
80	80	conduct of the depository, its business, or other related affairs.
81	81	SECTION 4. The heading to Section 2116.009, Government
82	82	Code, is amended to read as follows:
83	83	Sec. 2116.009. ACCOUNT BALANCES [CAUSE OF ACTION FOR DENIAL
84	84	OF DEPOSIT LIABILITY].
85	85	SECTION 5. Section 2116.009, Government Code, is amended by
86	86	amending Subsection (b) and adding Subsections (b-1), (b-2), (b-3),
87	87	and (b-4) to read as follows:
88	88	(b) The depository shall furnish depository account holders
89	89	with [depository's act of furnishing] an account statement or
90	90	passbook, whether in physical, digital, or electronic form [,
91	91	constitutes a denial of liability and the giving of such notice as
92	92	to any amount not shown on the statement or passbook].
93	93	(b-1) The depository account holder is responsible for:
94	94	(1) promptly examining each account statement
95	95	received from the depository; and
96	96	(2) reporting any discrepancy in the account statement
97	97	to the depository not later than the 60th day after the depository
98	98	sent the account statement.
99	99	(b-2) The depository may establish a process to resolve any
100	100	disputed depository account balance.
101	101	(b-3) If the depository account holder fails to report any
102	102	account balance discrepancy reflected on the account balance
103	103	statement or passbook to the depository within 60 days of the date
104	104	the depository sent the statement or passbook, then:
105	105	(1) the depository account holder will be deemed to
106	106	have accepted the account statement or passbook as accurate;
107	107	(2) the depository account holder may not dispute the
108	108	account balance; and
109	109	(3) the depository shall deem the depository account
110	110	statement or passbook as accurate and undisputed by the depository
111	111	account holder.
112	112	(b-4) The comptroller may adopt rules to implement this
113	113	section.
114	114	SECTION 6. Section 2116.010, Government Code, is amended to
115	115	read as follows:
116	116	Sec. 2116.010. FEES; SERVICE CHARGES; PAYMENTS; PENALTIES.
117	117	(a) The comptroller [by rule] may establish fees, service charges,
118	118	and penalties to be charged a depository account holder for a
119	119	service or activity regarding a depository account, including a fee
120	120	for an overdraft, an insufficient fund check or draft, or a stop
121	121	payment order.
122	122	(b) The comptroller may establish other charges and receive
123	123	payments in the course of depository operations and activities,
124	124	including from transactions and relationships authorized by
125	125	Section 2116.021.
126	126	(c) The comptroller shall deposit revenue realized by the
127	127	depository under this section to the credit of the general revenue
128	128	fund.
129	129	(d) Money credited to the general revenue fund under this
130	130	section may be appropriated to the comptroller to offset the costs
131	131	of implementation, administration, promotion, marketing,
132	132	advertising, and operation of the depository.
133	133	SECTION 7. Section 2116.021, Government Code, is amended to
134	134	read as follows:
135	135	Sec. 2116.021. TRANSACTIONS AND RELATIONSHIPS. The
136	136	depository may [shall] enter into transactions and relationships
137	137	with bullion banks, depositories, dealers, central banks, an IRS
138	138	approved bank or non-bank acting as custodian for Individual
139	139	Retirement Accounts, sovereign wealth funds, financial
140	140	institutions, international nongovernmental organizations,
141	141	intermediaries, and other persons, located inside or outside of
142	142	this state or inside or outside of the United States, as the
143	143	comptroller determines to be prudent and suitable to facilitate the
144	144	operations of the depository and to further the purposes of this
145	145	chapter.
146	146	SECTION 8. Section 2116.023, Government Code, is amended by
147	147	amending Subsection (c) and adding Subsection (d) to read as
148	148	follows:
149	149	(c) On receipt of notice of any transaction described by
150	150	Subsection (a), with respect to all or any portion of the balance of
151	151	a depository account, the depository shall suspend withdrawal
152	152	privileges associated with the balances of the depository account
153	153	until suitable substitute arrangements may be effected in
154	154	accordance with the representation of the depository by the
155	155	attorney general and rules of the comptroller to enable the
156	156	registered account holder to take delivery of the precious metals
157	157	represented by the account balances in question. A voluntary
158	158	transfer of a depository account balance or of a depository account
159	159	among depository account holders may continue to take place
160	160	unaffected by the suspension, and the depository shall recognize
161	161	the transfer to the full extent authorized by this chapter, the
162	162	representation of the depository by the attorney general, and rules
163	163	adopted under this chapter.
164	164	(d) On receipt of notice of any transaction described by
165	165	Subsection (a), the depository shall refer the notice to the
166	166	attorney general for representation, and the attorney general shall
167	167	represent the depository in any action related to the notice.
168	168	SECTION 9. Subchapter A, Chapter 2116, Government Code, is
169	169	amended by adding Sections 2116.027 and 2116.028 to read as
170	170	follows:
171	171	Sec. 2116.027. CONFIDENTIALITY OF RECORDS. (a) Except as
172	172	otherwise provided by Section 2116.028 and this section, the
173	173	depository's records are subject to public inspection to the extent
174	174	authorized by Chapter 552.
175	175	(b) The following information is confidential and is exempt
176	176	from disclosure under Chapter 552:
177	177	(1) records and information related to the
178	178	depository's physical security, information security, or designed
179	179	to ensure the integrity and security of the depository including
180	180	without limitation access codes, passwords, signatures,
181	181	specifications, technical details, operating procedures,
182	182	locations, and financial information on expenditures for
183	183	depository security;
184	184	(2) records relating to individual accounts or to
185	185	current or prospective depository account holders that are in the
186	186	custody of the depository or in the custody of a vendor performing
187	187	services related to the depository;
188	188	(3) records related to setting depository fees,
189	189	service charges, penalties, or other charges or payments;
190	190	(4) records related to establishing standards under
191	191	Sections 2116.005(c) and (d); and
192	192	(5) operational or other information that would give
193	193	advantage to competitors or bidders.
194	194	(c) Notwithstanding Subsection (b)(2), depository account
195	195	information may be disclosed:
196	196	(1) to a depository account holder regarding the
197	197	depository account holder's account;
198	198	(2) to a state or federal agency as necessary to
199	199	administer the program or as required by applicable law;
200	200	(3) to a vendor providing services to the depository
201	201	or to a current or prospective depository account holder;
202	202	(4) in response to a subpoena issued under applicable
203	203	law;
204	204	(5) if compiled as collective information that does
205	205	not include any identifying information about a person; or
206	206	(6) with the express written permission of a
207	207	depository account holder.
208	208	Sec. 2116.028. INTELLECTUAL PROPERTY. (a) The depository
209	209	may:
210	210	(1) apply for, register, secure, hold, and protect
211	211	under the laws of the United States or any state or nation:
212	212	(A) a patent for the invention, discovery, or
213	213	improvement of any process, machine, manufacture, or composition of
214	214	matter;
215	215	(B) a copyright for an original work of
216	216	authorship fixed in any tangible medium of expression, known or
217	217	later developed, from which it can be perceived, reproduced, or
218	218	otherwise communicated, either directly or with the aid of a
219	219	machine or device;
220	220	(C) a trademark, service mark, collective mark,
221	221	or certification mark for a word, name, symbol, device, or slogan
222	222	that the depository uses to identify and distinguish the
223	223	depository's goods and services from other goods and services; or
224	224	(D) other evidence of protection or exclusivity
225	225	issued for intellectual property;
226	226	(2) contract with a person for the reproduction,
227	227	public performance, display, distribution, advertising, sale,
228	228	lease, marketing, licensing, sale, use, or other distribution of
229	229	the depository's intellectual property;
230	230	(3) obtain under a contract described in Subdivision
231	231	(2) a royalty, license right, or other appropriate means of
232	232	securing reasonable compensation for the exercise of the
233	233	depository's intellectual property rights; and
234	234	(4) waive or reduce the amount of compensation secured
235	235	by contract under Subdivision (3) if the depository determines that
236	236	the waiver or reduction will:
237	237	(A) further a goal or mission of the depository;
238	238	and
239	239	(B) result in a net benefit to the depository.
240	240	(b) Intellectual property of the depository is excepted
241	241	from required disclosure under Chapter 552:
242	242	(1) beginning on the date the depository decides to
243	243	seek a patent, trademark, service mark, collective mark,
244	244	certification mark, or other evidence of protection of exclusivity
245	245	concerning the property; and
246	246	(2) ending on the date the depository receives a
247	247	decision on the depository's application for a patent, trademark,
248	248	service mark, collective mark, certification mark, or other
249	249	evidence of protection of exclusivity concerning the property.
250	250	(c) The comptroller shall deposit revenue realized by the
251	251	depository under this section to the credit of the general revenue
252	252	fund.
253	253	(d) Money credited to the general revenue fund under this
254	254	section may be appropriated to the comptroller to offset the costs
255	255	of implementation, administration, promotion, marketing,
256	256	advertising, and operation of the depository.
257	257	(e) The comptroller may establish intellectual property
258	258	policies.
259	259	SECTION 10. Section 2116.051, Government Code, is amended
260	260	to read as follows:
261	261	Sec. 2116.051. USE OF DEPOSITORY AGENTS. The depository
262	262	shall use private, independently managed firms and institutions
263	263	licensed as depository agents as intermediaries to conduct retail
264	264	transactions in bullion and specie on behalf of [the depository
265	265	with] current and prospective depository account holders.
266	266	SECTION 11. Section 2116.052, Government Code, is amended
267	267	to read as follows:
268	268	Sec. 2116.052. ELECTRONIC INFORMATION SHARING SYSTEMS AND
269	269	PROCESSES. A [The comptroller by rule shall require a] depository
270	270	agent shall [to] maintain suitable systems and processes for
271	271	electronic information sharing and communication with the
272	272	comptroller and the depository to ensure that all transactions
273	273	effected on behalf of current and prospective [the] depository
274	274	account holders are reported to and integrated into the
275	275	depository's records not later than 11:59:59 p.m. on the date of
276	276	each transaction.
277	277	SECTION 12. Section 151.002(b)(9-c), Finance Code, is
278	278	amended to read as follows:
279	279	(9-c) "Depository agent services" means services
280	280	rendered [to the general public] for or on behalf of current or
281	281	prospective depository account holders of the Texas Bullion
282	282	Depository in the nature of purchasing, selling, transferring,
283	283	accepting, transporting, delivering, or otherwise dealing in
284	284	precious metals bullion or specie in connection with the creation,
285	285	transfer, clearing, settlement, or liquidation of the rights and
286	286	interests of a depository account holder and a direct or indirect
287	287	transferee of a depository account holder, as those terms are
288	288	defined by Subchapter J. The term "depository agent services" does
289	289	not include:
290	290	(A) participation as a party or counterparty to a
291	291	transaction, including an agreement with respect to a transaction,
292	292	in or in connection with a contract for the purchase or sale of a
293	293	person's rights and interests as a depository account holder, as a
294	294	cash contract for present delivery, a cash contract for deferred
295	295	shipment or delivery, or a contract for future delivery, where the
296	296	underlying deliverable consists of the depository account holder's
297	297	interest in the depository account, rather than the underlying
298	298	precious metal represented by the depository account balance;
299	299	(B) the opening, transfer, settlement, or
300	300	liquidation of any derivative of a contract described by Paragraph
301	301	(A), including a forward transaction, swap transaction, currency
302	302	transaction, future transaction, index transaction, or option on or
303	303	other derivative of a transaction of any of those types, in the
304	304	nature of a cap transaction, floor transaction, collar transaction,
305	305	repurchase transaction, reverse repurchase transaction,
306	306	buy-and-sell-back transaction, securities lending transaction, or
307	307	other financial instrument or interest, including an option with
308	308	respect to a transaction, or any combination of these transactions;
309	309	or
310	310	(C) the rendition of services exclusively in
311	311	support of the opening, transfer, settlement, or liquidation of
312	312	transaction derivatives described by Paragraph (B) through a
313	313	central counterparty, such as those customarily rendered by a
314	314	clearinghouse, clearing association, or clearing corporation, or
315	315	through an interbank payment system, physical or electronic trading
316	316	facility, broker or brokerage firm, or similar entity, facility,
317	317	system, or organization.
318	318	SECTION 13. Section 151.858, Finance Code, is amended to
319	319	read as follows:
320	320	Sec. 151.858. LIABILITY OF LICENSE HOLDER. A depository
321	321	agent license holder is liable for the delivery to or for the
322	322	depository account of [the depository or] each current or
323	323	prospective depository account holder [depositor], as applicable,
324	324	of all bullion, specie, and money payable or deliverable in
325	325	connection with the transactions in which the license holder
326	326	engages on behalf of the current or prospective depositor who is
327	327	entitled to depository agent services.
328	328	SECTION 14. Sections 2116.009(a), (c), (d), (e), and (f),
329	329	Government Code, are repealed.
330	330	SECTION 15. If, on or before September 1, 2017,the
331	331	Comptroller has not appointed the bullion depository administrator
332	332	required by Section 2116.002, as amended by this Act, all rights,
333	333	duties, powers, obligations, and other requirements established by
334	334	this Act and Chapter 1000 (H.B. 483), General Laws, Acts of the 84th
335	335	Legislature, Regular Session, 2015, are transferred to the General
336	336	Land Office.
337	337	SECTION 16. This Act takes effect immediately if it
338	338	receives a vote of two-thirds of all the members elected to each
339	339	house, as provided by Section 39, Article III, Texas Constitution.
340	340	If this Act does not receive the vote necessary for immediate
341	341	effect, this Act takes effect September 1, 2017.