H.B. No. 2458
AN ACT
relating to the operation and administration of the Texas Bullion
Depository.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 151.002(a), Finance Code, is amended to
read as follows:
(a) This section defines general terms that apply to an
applicant for or holder of a money services license issued under
this chapter, regardless of whether the license is a money
transmission license or [,] a currency exchange license[, or a
depository agent license]. Additional terms that apply
specifically to money transmission are defined in Section
151.301. Additional terms that apply specifically to currency
exchange are defined in Section 151.501. [Additional terms that
apply specifically to depository agents are defined in Section
151.851.]
SECTION 2. Sections 151.002(b)(11) and (14), Finance Code,
are amended to read as follows:
(11) "License holder" means a person that holds a
money transmission license or[,] a currency exchange license[, or a
depository agent license].
(14) "Money services" means money transmission or[,]
currency exchange[, or depository agent] services.
SECTION 3. Section 151.003, Finance Code, is amended to
read as follows:
Sec. 151.003. EXCLUSIONS. The [Subject to Subchapter J,
the] following persons are not required to be licensed under this
chapter:
(1) the United States or an instrumentality of the
United States, including the United States Post Office or a
contractor acting on behalf of the United States Post Office;
(2) a state or an agency, political subdivision, or
other instrumentality of a state;
(3) a federally insured financial institution, as that
term is defined by Section 201.101, that is organized under the laws
of this state, another state, or the United States;
(4) a foreign bank branch or agency in the United
States established under the federal International Banking Act of
1978 (12 U.S.C. Section 3101 et seq.);
(5) a person acting as an agent for an entity excluded
under Subdivision (3) or (4), to the extent of the person's actions
in that capacity, provided that:
(A) the entity is liable for satisfying the money
services obligation owed to the purchaser on the person's receipt
of the purchaser's money; and
(B) the entity and person enter into a written
contract that appoints the person as the entity's agent and the
person acts only within the scope of authority conferred by the
contract;
(6) a person that, on behalf of the United States or a
department, agency, or instrumentality of the United States, or a
state or county, city, or any other governmental agency or
political subdivision of a state, provides electronic funds
transfer services of governmental benefits for a federal, state,
county, or local governmental agency;
(7) a person that acts as an intermediary on behalf of
and at the direction of a license holder in the process by which the
license holder, after receiving money or monetary value from a
purchaser, either directly or through an authorized delegate,
transmits the money or monetary value to the purchaser's designated
recipient, provided that the license holder is liable for
satisfying the obligation owed to the purchaser;
(8) an attorney or title company that in connection
with a real property transaction receives and disburses domestic
currency or issues an escrow or trust fund check only on behalf of a
party to the transaction;
(9) a person engaged in the business of currency
transportation who is both a registered motor carrier under Chapter
643, Transportation Code, and a licensed armored car company or
courier company under Chapter 1702, Occupations Code, provided that
the person:
(A) only transports currency:
(i) from a person to the same person at
another location;
(ii) from a person to a financial
institution to be deposited in an account belonging to the same
person; or
(iii) to a person from a financial
institution after being withdrawn from an account belonging to the
same person; and
(B) does not otherwise engage in the money
transmission or currency exchange business [or depository agent
services business] without a license issued under this chapter;
(9-a) a trust company, as defined by Section
187.001(a), that is organized under the laws of this state; and
(10) any other person, transaction, or class of
persons or transactions exempted by commission rule or any other
person or transaction exempted by the commissioner's order on a
finding that the licensing of the person is not necessary to achieve
the purposes of this chapter.
SECTION 4. Section 151.201, Finance Code, is amended to
read as follows:
Sec. 151.201. SCOPE. This subchapter sets out the general
qualifications and provisions that apply to a money services
license, regardless of whether the license is a money transmission
license or [,] a currency exchange license[, or a depository agent
license]. Subchapters D and E set forth the additional
qualifications and provisions that apply specifically to a money
transmission license. Subchapter F sets forth the additional
qualifications and provisions that apply specifically to a currency
exchange license. [Subchapter J sets forth the additional
qualifications and provisions that apply specifically to a
depository agent license.]
SECTION 5. Sections 151.207(a), (b), and (d), Finance Code,
are amended to read as follows:
(a) If a license holder does not continue to meet the
qualifications or satisfy the requirements that apply to an
applicant for a new money transmission license or [,] currency
exchange license, [or depository agent license,] as applicable, the
commissioner may suspend or revoke the license holder's license.
(b) In addition to complying with Subsection (a), a license
holder must annually:
(1) pay a license fee in an amount established by
commission rule; and
(2) submit a report that is under oath, is in the form
and medium required by the commissioner, and contains:
(A) if the license is a money transmission
license [or depository agent license], an audited unconsolidated
financial statement dated as of the last day of the license holder's
fiscal year that ended in the immediately preceding calendar year;
(B) if the license is a currency exchange
license, a financial statement, audited or unaudited, dated as of
the last day of the license holder's fiscal year that ended in the
immediately preceding calendar year; and
(C) documentation and certification, or any
other information the commissioner reasonably requires to
determine the security, net worth, permissible investments, and
other requirements the license holder must satisfy and whether the
license holder continues to meet the qualifications and
requirements for licensure.
(d) If the license holder fails to submit the completed
annual report and pay the annual license fee and any late fee due
within the time prescribed by Subsection (c)(1), the license
expires, and the license holder must cease and desist from engaging
in the business of money transmission or [,] currency exchange, [or
depository agent services,] as applicable, as of that date. The
expiration of a license is not subject to appeal.
SECTION 6. Section 151.302(a), Finance Code, as amended by
Chapters 75 (S.B. 899) and 1000 (H.B. 483), Acts of the 84th
Legislature, Regular Session, 2015, is reenacted to read as
follows:
(a) A person may not engage in the business of money
transmission in this state or advertise, solicit, or represent that
the person engages in the business of money transmission in this
state unless the person:
(1) is licensed under this subchapter;
(2) is an authorized delegate of a person licensed
under this subchapter, appointed by the license holder in
accordance with Section 151.402;
(3) is excluded from licensure under Section 151.003;
or
(4) has been granted an exemption under Subsection
(c).
SECTION 7. Section 151.502(a), Finance Code, is amended to
read as follows:
(a) A person may not engage in the business of currency
exchange or advertise, solicit, or hold itself out as providing
currency exchange unless the person:
(1) is licensed under this subchapter;
(2) is licensed for money transmission under
Subchapter D;
(3) is an authorized delegate of a person licensed for
money transmission under Subchapter D;
(4) is excluded under Section 151.003; or
(5) [is licensed as a depository agent under
Subchapter J and only engages in the business of currency exchange
in connection with, and to the extent necessary for, the
performance of depository agent activities; or
[(6)] has been granted an exemption under Subsection
(d).
SECTION 8. Section 151.602(a), Finance Code, is amended to
read as follows:
(a) A license holder must prepare, maintain, and preserve
the following books, accounts, and other records for at least five
years or another period as may be prescribed by rule of the
commission:
(1) a record of each money transmission transaction or
[,] currency exchange transaction, [or depository agent services
transaction,] as applicable;
(2) a general ledger posted in accordance with
generally accepted accounting principles containing all asset,
liability, capital, income, and expense accounts, unless directed
otherwise by the commissioner;
(3) bank statements and bank reconciliation records;
(4) all records and reports required by applicable
state and federal law, including the reporting and recordkeeping
requirements imposed by the Bank Secrecy Act, the USA PATRIOT ACT,
and Chapter 271, and other federal and state laws pertaining to
money laundering, drug trafficking, or terrorist funding; and
(5) any other records required by commission rule or
reasonably requested by the commissioner to determine compliance
with this chapter.
SECTION 9. Section 2116.001, Government Code, is amended by
amending Subdivision (9) and adding Subdivision (9-a) to read as
follows:
(9) "Depository agent" means a financial institution
that has entered into an agreement with the depository to provide a
retail location for the provision of depository services to the
general public on behalf of [person licensed in accordance with
this chapter to serve as an intermediary between] the depository
[and a retail customer in making a transaction in precious metals
bullion or specie].
(9-a) "Financial institution" has the meaning
assigned by Section 201.101, Finance Code.
SECTION 10. Section 2116.002, Government Code, is amended
by adding Subsection (c) to read as follows:
(c) The comptroller shall adopt rules necessary to carry out
this chapter.
SECTION 11. Section 2116.003, Government Code, is amended
by amending Subsection (c) and adding Subsection (d) to read as
follows:
(c) The administrator may appoint or employ, subject to the
approval of the comptroller, a deputy administrator or other
subordinate officers or employees [officer] as necessary and
appropriate to the efficient administration of the depository.
(d) The comptroller may employ security officers to provide
needed security services for the depository and may commission the
officers as peace officers.
SECTION 12. Sections 2116.005(c) and (d), Government Code,
are amended to read as follows:
(c) The comptroller [by rule] shall adopt standards by which
the quantities of precious metals deposited are credited to a
depositor's depository account by reference to the particular form
in which the metals were deposited, classified by mint,
denomination, weight, assay mark, or other indicator, as
applicable. The standards must conform to applicable national and
international standards of weights and measures.
(d) The comptroller [by rule] may, if the comptroller
determines that to do so is in the public interest, restrict the
forms in which deposits of precious metals may be made [to those
forms that conveniently lend themselves to measurement and
accounting in units of troy ounces and standardized fractions of
troy ounces].
SECTION 13. Sections 2116.006(b) and (c), Government Code,
are amended to read as follows:
(b) The depository shall make a delivery described by
Subsection (a) on demand by the presentment of a written demand
[suitable check, draft,] or digital electronic instruction to the
depository or a depository agent. The comptroller may prescribe
[by rule shall adopt] the forms, standards, and processes through
which an order for delivery on demand may be made, presented, and
honored.
(c) The depository shall make a delivery at the depository's
settlement facility designated by the comptroller, shipping to an
address specified by the account holder or, at the depository's
discretion, at a facility of a depository agent at which
presentment is made, not later than 10 [five] business days after
the date of presentment.
SECTION 14. Section 2116.007, Government Code, is amended
to read as follows:
Sec. 2116.007. TRANSFER OF DEPOSITORY ACCOUNT BALANCE. (a)
In accordance with rules adopted under this chapter, a depository
account holder may transfer any portion of the balance of the
holder's depository account by written demand [check, draft,] or
digital electronic instruction to another person [depository
account holder or to a person who at the time the transfer is
initiated is not a depository account holder].
(b) The depository shall adjust the depository account
balances of the depository accounts to reflect a transfer
transaction between depository account holders on presentment of
the written demand [check, draft,] or other instruction by reducing
the payor's depository account balance and increasing the
depository account balance of the payee accordingly.
(c) If a depository account holder transfers to a payee who
is not a depository account holder any portion of the balance of the
depository account holder's depository account, the depository
shall, if the payee is otherwise eligible to open a depository
account under applicable laws and depository policy, allow the
payee to establish a depository account [by presentment of the
payor's check, draft, or instruction to the depository or to a
depository agent]. The depository shall credit a newly
established account on behalf of the payee and shall debit the
payor's account accordingly.
SECTION 15. Sections 2116.008(c) and (e), Government Code,
are amended to read as follows:
(c) The depository [or a depository agent] shall hold the
contract for a depository account in the records pertaining to the
account.
(e) The depository and the depository account holder may
amend a contract for a depository account by agreement, or the
depository may amend the deposit contract by providing [mailing a]
written notice of the amendment to the account holder, separately
or as an enclosure with or part of the account holder's statement of
account or passbook. In the case of amendment by notice from the
depository, the notice must include the text and effective date of
the amendment. The notice may be provided electronically. The
effective date may not be earlier than the 30th day after the date
the notice is mailed, unless otherwise provided by rules adopted
under this chapter.
SECTION 16. Section 2116.010, Government Code, is amended
to read as follows:
Sec. 2116.010. FEES; SERVICE CHARGES; PENALTIES. 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. The comptroller may waive any fees, service charges, or
penalties established under this section.
SECTION 17. Section 2116.021, Government Code, is amended
to read as follows:
Sec. 2116.021. TRANSACTIONS AND RELATIONSHIPS; MARKETING
AND PUBLICITY. (a) The depository may [shall] enter into
transactions and relationships with bullion banks, depositories,
dealers, central banks, sovereign wealth funds, financial
institutions, international nongovernmental organizations, 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.
(b) The depository may advertise and promote the depository
in any available media.
(c) The depository may issue, sell, license for sale, or
obtain a license to sell promotional items approved by the
administrator to further the purposes of this chapter and to
promote the depository. The depository may set commercially
reasonable prices for items licensed or sold under this section.
SECTION 18. Section 2116.023, Government Code, is amended
by adding Subsection (d) to read as follows:
(d) The depository shall refer any matter relating to an
action described by Subsection (a) to the attorney general for
resolution.
SECTION 19. Section 2116.024, Government Code, is amended
to read as follows:
Sec. 2116.024. OFFICIAL EXCHANGE RATES. The comptroller
[by rule] shall establish the references by which the official
exchange rate for pricing precious metals transactions in terms of
United States dollars or other currency must be established at the
time of a depository transaction. The comptroller shall establish
procedures and facilities through which the rates are made
discoverable at all reasonable times by system participants, both
on a real-time basis and retrospectively.
SECTION 20. Section 2116.025, Government Code, is amended
to read as follows:
Sec. 2116.025. FACILITATION OF ACCOUNTING AND REPORTING OF
TAXABLE GAINS. The comptroller [by rule] shall establish
procedures and requirements for the depository and depository
agents designed to minimize the burden to system participants of
accounting for and reporting taxable gains and losses arising out
of depository transactions as denominated in United States dollars
or another currency.
SECTION 21. Subchapter A, Chapter 2116, Government Code, is
amended by adding Section 2116.027 to read as follows:
Sec. 2116.027. CONFIDENTIALITY OF RECORDS; OTHER RECORDS
EXEMPT FROM DISCLOSURE. (a) Records relating to individual
depository accounts or depository account holders, including
current, former, or prospective depository account holders, that
are in the custody of the depository or a vendor performing services
related to the depository are confidential and exempt from
disclosure under Chapter 552.
(b) The following information of the depository is excepted
from the requirements of Section 552.021:
(1) records and other information related to the
security of the depository;
(2) records related to the method of setting the
depository's fees, service charges, penalties, and other charges or
payments; and
(3) commercial or financial information that would
cause substantial competitive harm to the depository, including
operational or other information that would give advantage to
competitors or bidders.
(c) Notwithstanding Subsection (a), 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 required by
applicable law;
(3) to a vendor providing services to the depository;
(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) as otherwise permitted by the depository account
agreement applicable to a depository account holder's account.
SECTION 22. Section 2116.051, Government Code, is amended
to read as follows:
Sec. 2116.051. USE OF DEPOSITORY AGENTS. The depository
may [shall] use private, independently managed financial [firms
and] institutions to provide retail locations for the provision of
depository services to the public [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 23. The following laws are repealed:
(1) Sections 151.002(b)(9-a), (9-b), and (9-c),
Finance Code;
(2) Section 151.603(c-1), Finance Code; and
(3) Subchapter J, Chapter 151, Finance Code.
SECTION 24. 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, 2019.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2458 was passed by the House on April
25, 2019, by the following vote: Yeas 133, Nays 2, 1 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2458 was passed by the Senate on May
10, 2019, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor