By: Kolkhorst S.B. No. 2173
A BILL TO BE ENTITLED
AN ACT
relating to the operation and administration of the Texas Bullion
Depository; depository agents; and to the appropriation of money
from the fees, charges, penalties, and other amounts related to the
depository and deposited to the general revenue fund for that
purpose.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2116.001(9), Government Code, is amended
to read as follows:
(9) "Depository agent" means a person licensed in
accordance with this chapter to serve as an agent on behalf of a
current or prospective [intermediary between the] depository
account holder [and a retail customer] in making a retail
transaction in precious metals bullion or specie.
SECTION 2. Section 2116.002, Government Code, is amended by
amending Subsection (a) and adding Subsections (c)-(h) to read as
follows:
(a) The Texas Bullion Depository is established as a program
[an agency of this state] in the office of the comptroller to
provide a bullion depository and services for the public benefit
relating to bullion, specie, and precious metals.
(c) The comptroller may establish a special purpose
corporation or other legal entity, with all general corporate
powers incident to its operation as a corporate body, to operate the
depository for the public benefit and provide related services, as
provided by this chapter. The entity has all necessary and implied
powers to accomplish the purposes of the entity. The entity is
subject to regulation only as provided by this chapter.
(d) The depository may adopt and amend articles of
incorporation, bylaws, resolutions, and other documents necessary
to carry out its purposes.
(e) This state and the comptroller may not be held liable
for the depository or related activities of the depository. This
chapter may not be construed as creating financial or other
responsibilities to the state or to the comptroller. This state
does not pledge the full faith and credit of this state for the
benefit of the depository.
(f) The depository may enter into one or more contracts with
a vendor to operate the depository or provide any of the
depository's services.
(g) Notwithstanding Chapter 2113, Government Code, the
depository may enter into contracts and engage in marketing, the
sale of promotional items, advertising, and other activities to
promote the depository. The comptroller may use appropriated funds
to pay for activities of the depository authorized under this
section.
SECTION 3. Section 2116.003, Government Code, is amended to
read as follows:
Sec. 2116.003. DEPOSITORY ADMINISTRATION; ADMINISTRATOR.
(a) The depository is administered as a program [division] of the
office of the comptroller and under the direction and supervision
of a bullion depository administrator appointed by the comptroller
[with the advice and consent of the governor, lieutenant governor,
and senate].
(b) The administrator shall:
(1) administer, supervise, and direct the operations
and affairs of the depository and liaise with depository agents;
and
(2) liaise with the comptroller and other divisions of
the office of the comptroller to ensure that each transaction with
the depository that involves state money, that involves an agency,
a political subdivision, or another instrumentality of this state,
or that involves a private person is planned, administered, and
executed in a manner to achieve the purposes of this chapter.
(c) The administrator may appoint, subject to the approval
of the comptroller, a deputy administrator or other subordinate
officer or staff member as necessary and appropriate to the
efficient administration of the depository. The depository may
contract with the comptroller's office to provide staff support.
(d) The administrator, the deputy administrator or another
subordinate officer, or a staff member of the depository is not
personally liable in the person's private capacity for any act
performed or for any contract or other obligation entered into or
undertaken in an official capacity in good faith and without intent
to defraud in connection with the administration, management, or
conduct of the depository, its business, or other related affairs.
SECTION 4. The heading to Section 2116.009, Government
Code, is amended to read as follows:
Sec. 2116.009. ACCOUNT BALANCES [CAUSE OF ACTION FOR DENIAL
OF DEPOSIT LIABILITY].
SECTION 5. Section 2116.009, Government Code, is amended by
amending Subsection (b) and adding Subsections (b-1), (b-2), (b-3),
and (b-4) to read as follows:
(b) The depository shall furnish depository account holders
with [depository's act of furnishing] an account statement or
passbook, whether in physical, digital, or electronic form [,
constitutes a denial of liability and the giving of such notice as
to any amount not shown on the statement or passbook].
(b-1) The depository account holder is responsible for:
(1) promptly examining each account statement
received from the depository; and
(2) reporting any discrepancy in the account statement
to the depository not later than the 60th day after the depository
sent the account statement.
(b-2) The depository may establish a process to resolve any
disputed depository account balance.
(b-3) If the depository account holder fails to report any
account balance discrepancy reflected on the account balance
statement or passbook to the depository within 60 days of the date
the depository sent the statement or passbook, then:
(1) the depository account holder will be deemed to
have accepted the account statement or passbook as accurate;
(2) the depository account holder may not dispute the
account balance; and
(3) the depository shall deem the depository account
statement or passbook as accurate and undisputed by the depository
account holder.
(b-4) The comptroller may adopt rules to implement this
section.
SECTION 6. Section 2116.010, Government Code, is amended to
read as follows:
Sec. 2116.010. FEES; SERVICE CHARGES; PAYMENTS; PENALTIES.
(a) The comptroller [by rule] may establish fees, service charges,
and penalties to be charged a depository account holder for a
service or activity regarding a depository account, including a fee
for an overdraft, an insufficient fund check or draft, or a stop
payment order.
(b) The comptroller may establish other charges and receive
payments in the course of depository operations and activities,
including from transactions and relationships authorized by
Section 2116.021.
(c) The comptroller shall deposit revenue realized by the
depository under this section to the credit of the general revenue
fund.
(d) Money credited to the general revenue fund under this
section may be appropriated to the comptroller to offset the costs
of implementation, administration, promotion, marketing,
advertising, and operation of the depository.
SECTION 7. Section 2116.021, Government Code, is amended to
read as follows:
Sec. 2116.021. TRANSACTIONS AND RELATIONSHIPS. The
depository may [shall] enter into transactions and relationships
with bullion banks, depositories, dealers, central banks, an IRS
approved bank or non-bank acting as custodian for Individual
Retirement Accounts, sovereign wealth funds, financial
institutions, international nongovernmental organizations,
intermediaries, and other persons, located inside or outside of
this state or inside or outside of the United States, as the
comptroller determines to be prudent and suitable to facilitate the
operations of the depository and to further the purposes of this
chapter.
SECTION 8. Section 2116.023, Government Code, is amended by
amending Subsection (c) and adding Subsection (d) to read as
follows:
(c) On receipt of notice of any transaction described by
Subsection (a), with respect to all or any portion of the balance of
a depository account, the depository shall suspend withdrawal
privileges associated with the balances of the depository account
until suitable substitute arrangements may be effected in
accordance with the representation of the depository by the
attorney general and rules of the comptroller to enable the
registered account holder to take delivery of the precious metals
represented by the account balances in question. A voluntary
transfer of a depository account balance or of a depository account
among depository account holders may continue to take place
unaffected by the suspension, and the depository shall recognize
the transfer to the full extent authorized by this chapter, the
representation of the depository by the attorney general, and rules
adopted under this chapter.
(d) On receipt of notice of any transaction described by
Subsection (a), the depository shall refer the notice to the
attorney general for representation, and the attorney general shall
represent the depository in any action related to the notice.
SECTION 9. Subchapter A, Chapter 2116, Government Code, is
amended by adding Sections 2116.027 and 2116.028 to read as
follows:
Sec. 2116.027. CONFIDENTIALITY OF RECORDS. (a) Except as
otherwise provided by Section 2116.028 and this section, the
depository's records are subject to public inspection to the extent
authorized by Chapter 552.
(b) The following information is confidential and is exempt
from disclosure under Chapter 552:
(1) records and information related to the
depository's physical security, information security, or designed
to ensure the integrity and security of the depository including
without limitation access codes, passwords, signatures,
specifications, technical details, operating procedures,
locations, and financial information on expenditures for
depository security;
(2) records relating to individual accounts or to
current or prospective depository account holders that are in the
custody of the depository or in the custody of a vendor performing
services related to the depository;
(3) records related to setting depository fees,
service charges, penalties, or other charges or payments;
(4) records related to establishing standards under
Sections 2116.005(c) and (d); and
(5) operational or other information that would give
advantage to competitors or bidders.
(c) Notwithstanding Subsection (b)(2), depository account
information may be disclosed:
(1) to a depository account holder regarding the
depository account holder's account;
(2) to a state or federal agency as necessary to
administer the program or as required by applicable law;
(3) to a vendor providing services to the depository
or to a current or prospective depository account holder;
(4) in response to a subpoena issued under applicable
law;
(5) if compiled as collective information that does
not include any identifying information about a person; or
(6) with the express written permission of a
depository account holder.
Sec. 2116.028. INTELLECTUAL PROPERTY. (a) The depository
may:
(1) apply for, register, secure, hold, and protect
under the laws of the United States or any state or nation:
(A) a patent for the invention, discovery, or
improvement of any process, machine, manufacture, or composition of
matter;
(B) a copyright for an original work of
authorship fixed in any tangible medium of expression, known or
later developed, from which it can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a
machine or device;
(C) a trademark, service mark, collective mark,
or certification mark for a word, name, symbol, device, or slogan
that the depository uses to identify and distinguish the
depository's goods and services from other goods and services; or
(D) other evidence of protection or exclusivity
issued for intellectual property;
(2) contract with a person for the reproduction,
public performance, display, distribution, advertising, sale,
lease, marketing, licensing, sale, use, or other distribution of
the depository's intellectual property;
(3) obtain under a contract described in Subdivision
(2) a royalty, license right, or other appropriate means of
securing reasonable compensation for the exercise of the
depository's intellectual property rights; and
(4) waive or reduce the amount of compensation secured
by contract under Subdivision (3) if the depository determines that
the waiver or reduction will:
(A) further a goal or mission of the depository;
and
(B) result in a net benefit to the depository.
(b) Intellectual property of the depository is excepted
from required disclosure under Chapter 552:
(1) beginning on the date the depository decides to
seek a patent, trademark, service mark, collective mark,
certification mark, or other evidence of protection of exclusivity
concerning the property; and
(2) ending on the date the depository receives a
decision on the depository's application for a patent, trademark,
service mark, collective mark, certification mark, or other
evidence of protection of exclusivity concerning the property.
(c) The comptroller shall deposit revenue realized by the
depository under this section to the credit of the general revenue
fund.
(d) Money credited to the general revenue fund under this
section may be appropriated to the comptroller to offset the costs
of implementation, administration, promotion, marketing,
advertising, and operation of the depository.
(e) The comptroller may establish intellectual property
policies.
SECTION 10. Section 2116.051, Government Code, is amended
to read as follows:
Sec. 2116.051. USE OF DEPOSITORY AGENTS. The depository
shall use private, independently managed firms and institutions
licensed as depository agents as intermediaries to conduct retail
transactions in bullion and specie on behalf of [the depository
with] current and prospective depository account holders.
SECTION 11. Section 2116.052, Government Code, is amended
to read as follows:
Sec. 2116.052. ELECTRONIC INFORMATION SHARING SYSTEMS AND
PROCESSES. A [The comptroller by rule shall require a] depository
agent shall [to] maintain suitable systems and processes for
electronic information sharing and communication with the
comptroller and the depository to ensure that all transactions
effected on behalf of current and prospective [the] depository
account holders are reported to and integrated into the
depository's records not later than 11:59:59 p.m. on the date of
each transaction.
SECTION 12. Section 151.002(b)(9-c), Finance Code, is
amended to read as follows:
(9-c) "Depository agent services" means services
rendered [to the general public] for or on behalf of current or
prospective depository account holders of the Texas Bullion
Depository in the nature of purchasing, selling, transferring,
accepting, transporting, delivering, or otherwise dealing in
precious metals bullion or specie in connection with the creation,
transfer, clearing, settlement, or liquidation of the rights and
interests of a depository account holder and a direct or indirect
transferee of a depository account holder, as those terms are
defined by Subchapter J. The term "depository agent services" does
not include:
(A) participation as a party or counterparty to a
transaction, including an agreement with respect to a transaction,
in or in connection with a contract for the purchase or sale of a
person's rights and interests as a depository account holder, as a
cash contract for present delivery, a cash contract for deferred
shipment or delivery, or a contract for future delivery, where the
underlying deliverable consists of the depository account holder's
interest in the depository account, rather than the underlying
precious metal represented by the depository account balance;
(B) the opening, transfer, settlement, or
liquidation of any derivative of a contract described by Paragraph
(A), including a forward transaction, swap transaction, currency
transaction, future transaction, index transaction, or option on or
other derivative of a transaction of any of those types, in the
nature of a cap transaction, floor transaction, collar transaction,
repurchase transaction, reverse repurchase transaction,
buy-and-sell-back transaction, securities lending transaction, or
other financial instrument or interest, including an option with
respect to a transaction, or any combination of these transactions;
or
(C) the rendition of services exclusively in
support of the opening, transfer, settlement, or liquidation of
transaction derivatives described by Paragraph (B) through a
central counterparty, such as those customarily rendered by a
clearinghouse, clearing association, or clearing corporation, or
through an interbank payment system, physical or electronic trading
facility, broker or brokerage firm, or similar entity, facility,
system, or organization.
SECTION 13. Section 151.858, Finance Code, is amended to
read as follows:
Sec. 151.858. LIABILITY OF LICENSE HOLDER. A depository
agent license holder is liable for the delivery to or for the
depository account of [the depository or] each current or
prospective depository account holder [depositor], as applicable,
of all bullion, specie, and money payable or deliverable in
connection with the transactions in which the license holder
engages on behalf of the current or prospective depositor who is
entitled to depository agent services.
SECTION 14. Sections 2116.009(a), (c), (d), (e), and (f),
Government Code, are repealed.
SECTION 15. If, on or before September 1, 2017,the
Comptroller has not appointed the bullion depository administrator
required by Section 2116.002, as amended by this Act, all rights,
duties, powers, obligations, and other requirements established by
this Act and Chapter 1000 (H.B. 483), General Laws, Acts of the 84th
Legislature, Regular Session, 2015, are transferred to the General
Land Office.
SECTION 16. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2017.