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AN ACT
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relating to self-directed and semi-independent status of state |
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financial regulatory agencies and the licensing and regulation of |
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certain persons involved in residential mortgage lending; making an |
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appropriation; providing a penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 156.101, Finance Code, is amended by |
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adding Subsection (d) to read as follows: |
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(d) The commissioner shall participate in the Nationwide |
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Mortgage Licensing System and Registry as provided by Chapter 180. |
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SECTION 2. Section 156.102, Finance Code, is amended by |
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adding Subsections (a-1) and (b-1) to read as follows: |
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(a-1) The finance commission may adopt rules under this |
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chapter as required to carry out the intentions of the federal |
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Secure and Fair Enforcement for Mortgage Licensing Act of 2008 |
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(Pub. L. No. 110-289). |
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(b-1) The finance commission on the commissioner's |
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recommendation may adopt rules to promote a fair and orderly |
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administration of the fund consistent with the purposes of |
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Subchapter F. |
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SECTION 3. The heading to Section 156.104, Finance Code, is |
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amended to read as follows: |
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Sec. 156.104. MORTGAGE INDUSTRY [BROKER] ADVISORY |
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COMMITTEE. |
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SECTION 4. Sections 156.104(a), (b), and (h), Finance Code, |
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are amended to read as follows: |
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(a) The mortgage industry [broker] advisory committee is |
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created to advise and assist the commissioner. |
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(b) The advisory committee is composed of six members [to
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be] appointed by [as follows:
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[(1)] the commissioner. Each of the members must be |
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[shall appoint four members, each of whom]: |
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(1) under the regulatory authority of the department |
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[(A) must hold a mortgage broker license]; |
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(2) [(B) is] actively engaged in the business of |
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originating, brokering, or funding residential mortgage loans at |
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the time of appointment; and |
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(3) [(C) has been] primarily engaged in the business |
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of originating, brokering, or funding residential mortgage loans |
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for at least two years before the member's appointment[; and
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[(2)
the Texas Real Estate Commission shall appoint
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two members, each of whom must hold a real estate broker or
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salesperson license]. |
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(h) In addition to other powers and duties delegated to it |
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by the commissioner, the advisory committee shall advise the |
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commissioner with respect to: |
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(1) the proposal and adoption of rules relating to: |
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(A) the licensing of mortgage brokers and loan |
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officers; |
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(B) the education and experience requirements |
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for licensing mortgage brokers and loan officers; and |
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(C) conduct and ethics of mortgage brokers and |
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loan officers; |
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[(D)
continuing education for licensed mortgage
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brokers and loan officers and the types of courses acceptable as
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continuing education courses under this chapter; and
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[(E)
the granting or denying of an application or
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request for renewal for a mortgage broker license or loan officer
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license;] |
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(2) the form of or format for any applications or other |
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documents under this chapter; and |
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(3) the interpretation, implementation, and |
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enforcement of this chapter. |
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SECTION 5. Effective April 1, 2010, Section 156.104, |
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Finance Code, is amended by adding Subsection (b-1) to read as |
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follows: |
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(b-1) The members of the committee must include: |
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(1) three individuals licensed as residential |
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mortgage loan originators under this chapter, one of whom must hold |
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an active real estate broker or salesperson license issued under |
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Chapter 1101, Occupations Code; and |
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(2) three individuals licensed as residential |
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mortgage loan originators under Chapter 157, one of whom must hold |
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an active real estate broker or salesperson license issued under |
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Chapter 1101, Occupations Code. |
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SECTION 6. Section 156.202, Finance Code, is amended to |
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read as follows: |
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Sec. 156.202. EXEMPTIONS. (a) The following persons are |
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exempt from this chapter: |
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(1) any of the following entities or an employee of any |
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of the following entities provided the employee is acting for the |
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benefit of the employer: |
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(A) a bank, savings bank, or savings and loan |
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association, or a subsidiary or an affiliate of a bank, savings |
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bank, or savings and loan association; |
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(B) a state or federal credit union, or a |
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subsidiary, affiliate, or credit union service organization of a |
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state or federal credit union; |
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(C) an insurance company licensed or authorized |
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to do business in this state under the Insurance Code; |
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(D) a mortgage banker registered under Chapter |
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157; |
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(E) an organization that qualifies for an |
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exemption from state franchise and sales tax as a 501(c)(3) |
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organization; |
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(F) a Farm Credit System institution; or |
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(G) a political subdivision of this state |
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involved in affordable home ownership programs; |
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(2) an individual who makes a mortgage loan from the |
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individual's own funds to a spouse, former spouse, or persons in the |
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lineal line of consanguinity of the individual lending the money; |
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(3) an owner of real property who in any |
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12-consecutive-month period makes no more than five mortgage loans |
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to purchasers of the property for all or part of the purchase price |
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of the real estate against which the mortgage is secured; |
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(4) an individual who: |
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(A) makes a mortgage loan from the individual's |
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own funds; |
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(B) is not an authorized lender under Chapter |
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342, Finance Code; and |
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(C) does not regularly engage in the business of |
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making or brokering mortgage loans; or |
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(5) an individual who is an exclusive agent of a |
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registered financial services company under a written agreement |
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prohibiting the individual from soliciting, processing, |
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negotiating, or placing a mortgage loan with a person other than the |
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registered financial services company or an affiliate of that |
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company. |
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(b) An exclusive agent described by Subsection (a)(5) is |
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considered an employee of the registered financial services company |
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for purposes of this chapter. |
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SECTION 7. Section 156.203, Finance Code, is amended by |
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adding Subsection (e) to read as follows: |
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(e) In addition to the disciplinary action by the |
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commissioner authorized under Section 156.303(a)(7), the |
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commissioner may collect a fee in an amount not to exceed $50 for |
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any returned check or credit card charge back. |
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SECTION 8. Section 156.204, Finance Code, is amended by |
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amending Subsections (a) and (c) and adding Subsection (f) to read |
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as follows: |
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(a) To be eligible to be licensed as a mortgage broker as an |
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individual, the individual must: |
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(1) be at least 18 years of age; |
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(2) be a citizen of the United States or a lawfully |
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admitted alien; |
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(3) maintain a physical office in this state and |
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designate that office in the application; |
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(4) provide the commissioner with satisfactory |
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evidence that the applicant satisfies one of the following: |
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(A) the individual [person] has received a |
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bachelor's degree in an area relating to finance, banking, or |
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business administration from an accredited college or university |
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and has 18 months of experience in the mortgage or lending field as |
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evidenced by documentary proof of full-time employment as a |
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mortgage broker or licensed loan officer with a mortgage broker or |
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an individual [a person] exempt under Section 156.202; |
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(B) the individual [person] is licensed in this |
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state as: |
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(i) an active real estate broker under |
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Chapter 1101, Occupations Code; |
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(ii) an active attorney; or |
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(iii) an active general lines [a local
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recording agent or] insurance [solicitor or] agent or a limited |
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lines [for a legal reserve life] insurance agent [company under
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Chapter 21, Insurance Code], or holds an equivalent insurance |
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license under the [Chapter 21,] Insurance Code; or |
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(C) the individual [person] has three years of |
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experience in the mortgage lending field as evidenced by |
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documentary proof of full-time employment as a licensed loan |
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officer with a mortgage broker or an individual [a person] exempt |
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under Section 156.202; |
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(5) provide the commissioner with satisfactory |
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evidence of: |
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(A) having passed an examination, offered by a |
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testing service or company approved by the finance commission, that |
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demonstrates knowledge of: |
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(i) the mortgage industry; and |
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(ii) the role and responsibilities of a |
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mortgage broker; and |
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(B) compliance with the financial requirements |
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of this chapter; |
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(6) not have been convicted of a criminal offense that |
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the commissioner determines directly relates to the occupation of a |
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mortgage broker as provided by Chapter 53, Occupations Code; |
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(7) satisfy the commissioner as to the individual's |
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good moral character, including the individual's honesty, |
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trustworthiness, and integrity; |
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(8) not be in violation of this chapter, a rule adopted |
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under this chapter, or any order previously issued to the |
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individual by the commissioner; and |
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(9) provide the commissioner with satisfactory |
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evidence that: |
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(A) if the individual [person] has not been |
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previously licensed as a mortgage broker or a loan officer under |
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this subchapter, the individual [person] has completed 90 |
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[classroom] hours of education courses approved by the commissioner |
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under this section; or |
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(B) if the individual [person] has not been |
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previously licensed as a mortgage broker under this subchapter but |
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has been licensed as a loan officer under this subchapter, the |
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individual [person] has successfully completed an additional 30 |
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[classroom] hours of education courses approved by the commissioner |
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under this section. |
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(c) To be eligible to be licensed as a loan officer a person |
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must: |
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(1) be an individual who is at least 18 years of age; |
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(2) be a citizen of the United States or a lawfully |
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admitted alien; |
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(3) designate in the application the name of the |
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mortgage broker sponsoring the loan officer; |
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(4) provide the commissioner with satisfactory |
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evidence that the applicant satisfies one of the following: |
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(A) the person [meets one of the requirements
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described by Subsection (a)(4) and] has successfully completed at |
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least 60 [classroom] hours of education courses approved by the |
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commissioner; [under this section;] |
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(B) the person [has 18 months of experience as a
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loan officer as evidenced by documentary proof of full-time
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employment as a loan officer with a person exempt under Section
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156.202 and] has successfully completed 30 [classroom] hours of |
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education courses approved by the commissioner under this section |
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if the applicant: |
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(i) has 18 months or more of experience as a |
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mortgage loan officer as evidenced by documentary proof of |
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full-time employment as a mortgage loan officer with a person |
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exempt under Section 156.202; or |
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(ii) is a person who meets the |
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qualifications under Subsection (a)(4)(B); or |
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(C) the person holds an active mortgage broker |
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license issued under this chapter [for applications received prior
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to January 1, 2000, the mortgage broker that will sponsor the
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applicant provides a certification under oath that the applicant
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has been provided necessary and appropriate education and training
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regarding all applicable state and federal law and regulations
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relating to mortgage loans]; |
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(5) not have been convicted of a criminal offense that |
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the commissioner determines directly relates to the occupation of a |
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loan officer as provided by Chapter 53, Occupations Code; |
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(6) satisfy the commissioner as to the individual's |
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good moral character, including the individual's honesty, |
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trustworthiness, and integrity; |
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(7) provide the commissioner with satisfactory |
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evidence of having passed an examination, offered by a testing |
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service or company approved by the finance commission, that |
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demonstrates knowledge of: |
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(A) the mortgage industry; and |
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(B) the role and responsibilities of a loan |
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officer; and |
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(8) not be in violation of this chapter, a rule adopted |
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under this chapter, or any order previously issued to the |
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individual by the commissioner. |
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(f) Subsection (c) and this subsection expire January 1, |
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2011. |
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SECTION 9. Effective January 1, 2011, Section 156.204, |
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Finance Code, is amended by adding Subsection (c-1) to read as |
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follows: |
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(c-1) To be eligible to be licensed as a loan officer a |
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person must: |
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(1) be an individual who is at least 18 years of age; |
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(2) be a citizen of the United States or a lawfully |
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admitted alien; |
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(3) designate in the application the name of the |
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mortgage broker sponsoring the loan officer; |
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(4) provide the commissioner with satisfactory |
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evidence that the applicant satisfies one of the following: |
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(A) the person has successfully completed at |
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least 60 hours of education courses approved by the commissioner; |
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(B) the person has successfully completed 30 |
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hours of education courses approved by the commissioner under this |
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section if the applicant has 18 months or more of experience as a |
|
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residential mortgage loan originator as evidenced by documentary |
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proof of full-time employment; or |
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(C) the person holds an active license as a |
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residential mortgage loan originator under Chapter 157 and has held |
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that license for a minimum of one year; |
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(5) not have been convicted of a criminal offense that |
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the commissioner determines directly relates to the occupation of a |
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loan officer as provided by Chapter 53, Occupations Code; |
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(6) satisfy the commissioner as to the individual's |
|
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good moral character, including the individual's honesty, |
|
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trustworthiness, and integrity; |
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(7) provide the commissioner with satisfactory |
|
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evidence of having passed an examination, offered by a testing |
|
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service or company approved by the finance commission, that |
|
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demonstrates knowledge of: |
|
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(A) the mortgage industry; and |
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(B) the role and responsibilities of a loan |
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officer; and |
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(8) not be in violation of this chapter, a rule adopted |
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under this chapter, or any order previously issued to the |
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individual by the commissioner. |
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SECTION 10. Section 156.205, Finance Code, is amended to |
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read as follows: |
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Sec. 156.205. FINANCIAL REQUIREMENTS [FOR A MORTGAGE
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BROKER]. Financial requirements for holding a mortgage broker or |
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loan officer license shall be met through participation in the |
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fund. [(a)
In this section, "net assets" means the difference
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between total assets and total liabilities, as determined by
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generally acceptable accounting principles, and does not include
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any assets that are exempt under state or federal law.
All assets
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and liabilities are subject to verification by the commissioner.
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[(b)
A mortgage broker must maintain net assets of at least
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$25,000 or a surety bond in the amount of at least $50,000.
The term
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of the surety bond must coincide with the term of the license.
The
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finance commission may adopt rules establishing the terms and
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conditions of the surety bond and the qualifications of the surety.
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[(c)
The commissioner shall require proof of compliance
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with this section at the time the mortgage broker applies for or
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renews a license.] |
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SECTION 11. Section 156.208, Finance Code, is amended by |
|
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amending Subsections (a), (b), and (j) and adding Subsections (k) |
|
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and (l) to read as follows: |
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(a) A mortgage broker license issued under this chapter is |
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valid for a term of not more than two years and may be renewed on or |
|
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before its expiration date if the mortgage broker: |
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(1) pays to the commissioner a renewal fee in an amount |
|
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determined by the commissioner not to exceed $375 and a recovery |
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fund fee provided by Section 156.502; |
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(2) has not been convicted of a criminal offense the |
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commissioner determines is directly related to the occupation of a |
|
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mortgage broker as provided by Chapter 53, Occupations Code; and |
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(3) provides the commissioner with satisfactory |
|
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evidence that the mortgage broker: |
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(A) has attended, during the term of the current |
|
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license, 15 hours of continuing education courses that the |
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commissioner, in accordance with the rules adopted by the finance |
|
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commission under this section, has approved as continuing education |
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courses; or |
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(B) maintains an active license in this state as: |
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(i) a real estate broker; |
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(ii) a real estate salesperson; |
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(iii) an attorney; or |
|
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(iv) an active general lines insurance [a
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local recording] agent or a limited lines [or] insurance [solicitor
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or] agent [for a legal reserve life insurance company under Chapter
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21, Insurance Code], or holds an equivalent insurance license under |
|
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the [Chapter 21,] Insurance Code. |
|
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(b) A loan officer license issued under this chapter is |
|
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valid for a term of not more than two years and may be renewed on or |
|
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before its expiration date if the loan officer: |
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(1) pays to the commissioner a renewal fee in an amount |
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determined by the commissioner not to exceed $275 [$175] and a |
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recovery fund fee provided by Section 156.502; |
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(2) has not been convicted of a criminal offense the |
|
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commissioner determines is directly related to the occupation of a |
|
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loan officer as provided by Chapter 53, Occupations Code; and |
|
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(3) provides the commissioner with satisfactory |
|
|
evidence that the loan officer: |
|
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(A) has attended, during the term of the current |
|
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license, 15 hours of continuing education courses that the |
|
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commissioner, in accordance with the rules adopted by the finance |
|
|
commission under this section, has approved as continuing education |
|
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courses, including courses provided by or through the licensed |
|
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mortgage broker with whom the loan officer is associated after |
|
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submission to and approval by the commission; or |
|
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(B) maintains an active license in this state as: |
|
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(i) a real estate broker; |
|
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(ii) a real estate salesperson; |
|
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(iii) an attorney; or |
|
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(iv) an active general lines insurance [a
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|
local recording] agent or a limited lines [or] insurance [solicitor
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|
or] agent [for a legal reserve life insurance company under Chapter
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|
21, Insurance Code], or holds an equivalent insurance license under |
|
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the [Chapter 21,] Insurance Code. |
|
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(j) The commissioner may deny the renewal of a mortgage |
|
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broker license or a loan officer license if: |
|
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(1) the mortgage broker or loan officer is in |
|
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violation of this chapter, a rule adopted under this chapter, or any |
|
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order previously issued to the individual by the commissioner; |
|
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(2) the mortgage broker or loan officer is in default |
|
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in the payment of any administrative penalty, fee, charge, or other |
|
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indebtedness owed under this title; [or] |
|
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(3) during the current term of the license, the |
|
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commissioner becomes aware of any fact that would have been grounds |
|
|
for denial of an original license if the fact had been known by the |
|
|
commissioner on the date the license was granted; or |
|
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(4) the mortgage broker or loan officer is in default |
|
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on a student loan administered by the Texas Guaranteed Student Loan |
|
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Corporation, pursuant to Section 57.491, Education Code. |
|
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(k) In addition to the disciplinary action by the |
|
|
commissioner authorized under Section 156.303(a)(7), the |
|
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commissioner may collect a fee in an amount not to exceed $50 for |
|
|
any returned check or credit card charge back. |
|
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(l) Subsections (a) and (b) and this subsection expire |
|
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January 1, 2011. |
|
|
SECTION 12. Effective January 1, 2011, Section 156.208, |
|
|
Finance Code, is amended by adding Subsections (a-1) and (b-1) to |
|
|
read as follows: |
|
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(a-1) A mortgage broker license issued under this chapter is |
|
|
valid for a term of not more than two years and may be renewed on or |
|
|
before its expiration date if the mortgage broker: |
|
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(1) pays to the commissioner a renewal fee in an amount |
|
|
determined by the commissioner not to exceed $375 and a recovery |
|
|
fund fee provided by Section 156.502; |
|
|
(2) has not been convicted of a criminal offense the |
|
|
commissioner determines is directly related to the occupation of a |
|
|
mortgage broker as provided by Chapter 53, Occupations Code; and |
|
|
(3) provides the commissioner with satisfactory |
|
|
evidence that the mortgage broker has attended, during the term of |
|
|
the current license, continuing education courses in accordance |
|
|
with the applicable requirements of Chapter 180. |
|
|
(b-1) A loan officer license issued under this chapter is |
|
|
valid for a term of not more than two years and may be renewed on or |
|
|
before its expiration date if the loan officer: |
|
|
(1) pays to the commissioner a renewal fee in an amount |
|
|
determined by the commissioner not to exceed $275 and a recovery |
|
|
fund fee provided by Section 156.502; |
|
|
(2) has not been convicted of a criminal offense the |
|
|
commissioner determines is directly related to the occupation of a |
|
|
loan officer as provided by Chapter 53, Occupations Code; and |
|
|
(3) provides the commissioner with satisfactory |
|
|
evidence that the loan officer has attended, during the term of the |
|
|
current license, continuing education courses in accordance with |
|
|
the applicable requirements of Chapter 180. |
|
|
SECTION 13. The heading to Section 156.212, Finance Code, |
|
|
is amended to read as follows: |
|
|
Sec. 156.212. MAINTENANCE AND LOCATION OF OFFICES[; DISPLAY
|
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OF LICENSE CERTIFICATES]. |
|
|
SECTION 14. Section 156.214(b), Finance Code, as added by |
|
|
Chapter 228 (H.B. 1716), Acts of the 80th Legislature, Regular |
|
|
Session, 2007, is amended to read as follows: |
|
|
(b) To be eligible to register as a registered financial |
|
|
services company, a person must: |
|
|
(1) be a depository institution exempt from this |
|
|
chapter under Section 156.202(1)(A) or (B) and chartered and |
|
|
regulated by the Office of Thrift Supervision or the Office of the |
|
|
Comptroller of the Currency, or be a subsidiary or affiliate of the |
|
|
institution; |
|
|
(2) provide the commissioner with satisfactory |
|
|
evidence of an undertaking of accountability in a form acceptable |
|
|
to the commissioner, supported by a surety bond equal to $1 million |
|
|
to cover the person's responsibility for mortgage broker activities |
|
|
of each exclusive agent; |
|
|
(3) provide a business plan satisfactory to the |
|
|
commissioner that sets forth the person's plan to provide education |
|
|
to its exclusive agents, handle consumer complaints relating to its |
|
|
exclusive agents, and supervise the mortgage broker activities of |
|
|
its exclusive agents; |
|
|
(4) pay an annual registration fee in an amount |
|
|
determined as follows [of the lesser of]: |
|
|
(A) if the registered financial services company |
|
|
has 2,000 or fewer exclusive agents acting in this state, an amount |
|
|
equal to the lesser of: |
|
|
(i) one-half of the license fee for a loan |
|
|
officer under Section 156.203(c)(1), multiplied by the number of |
|
|
exclusive agents under contract to act for the person in this state; |
|
|
or |
|
|
(ii) [(B)] $200,000; |
|
|
(B) if the registered financial services company |
|
|
has at least 2,001 but not more than 2,500 exclusive agents acting |
|
|
in this state, $225,000; |
|
|
(C) if the registered financial services company |
|
|
has at least 2,501 but not more than 3,000 exclusive agents acting |
|
|
in this state, $250,000; |
|
|
(D) if the registered financial services company |
|
|
has at least 3,001 but not more than 5,000 exclusive agents acting |
|
|
in this state, $300,000; or |
|
|
(E) if the registered financial services company |
|
|
has at least 5,001 exclusive agents acting in this state, $350,000; |
|
|
and |
|
|
(5) designate an officer of the person to be |
|
|
responsible for the activities of the exclusive agents. |
|
|
SECTION 15. Section 156.301, Finance Code, is amended by |
|
|
adding Subsection (h) to read as follows: |
|
|
(h) The commissioner may require reimbursement in an amount |
|
|
not to exceed $325 for each examiner a day for on-site examination |
|
|
or investigation of a mortgage broker if records are located out of |
|
|
state or if the review is considered necessary beyond the routine |
|
|
examination process. |
|
|
SECTION 16. Section 156.302(a), Finance Code, is amended to |
|
|
read as follows: |
|
|
(a) The commissioner, after notice and opportunity for |
|
|
hearing, may impose an administrative penalty on a person licensed |
|
|
under this chapter who violates this chapter or a rule or order |
|
|
adopted under this chapter. |
|
|
SECTION 17. Section 156.303, Finance Code, is amended by |
|
|
amending Subsections (a), (e), (g), (h), and (j) and adding |
|
|
Subsection (a-1) to read as follows: |
|
|
(a) The commissioner may order disciplinary action against |
|
|
a licensed mortgage broker or a licensed loan officer when the |
|
|
commissioner, after notice and opportunity for [a] hearing, has |
|
|
determined that the person: |
|
|
(1) obtained a license, including a renewal of a |
|
|
license, under this chapter through a false or fraudulent |
|
|
representation or made a material misrepresentation in an |
|
|
application for a license or for the renewal of a license under this |
|
|
chapter; |
|
|
(2) published or caused to be published an |
|
|
advertisement related to the business of a mortgage broker or loan |
|
|
officer that: |
|
|
(A) is misleading; |
|
|
(B) is likely to deceive the public; |
|
|
(C) in any manner tends to create a misleading |
|
|
impression; |
|
|
(D) fails to identify as a mortgage broker or |
|
|
loan officer the person causing the advertisement to be published; |
|
|
or |
|
|
(E) violates federal or state law; |
|
|
(3) while performing an act for which a license under |
|
|
this chapter is required, engaged in conduct that constitutes |
|
|
improper, fraudulent, or dishonest dealings; |
|
|
(4) entered a plea of guilty or nolo contendere to, or |
|
|
is convicted of, a criminal offense that is a felony or that |
|
|
involves fraud or moral turpitude in a court of this or another |
|
|
state or in a federal court; |
|
|
(5) failed to use a fee collected in advance of closing |
|
|
of a mortgage loan for a purpose for which the fee was paid; |
|
|
(6) charged or received, directly or indirectly, a fee |
|
|
for assisting a mortgage applicant in obtaining a mortgage loan |
|
|
before all of the services that the person agreed to perform for the |
|
|
mortgage applicant are completed, and the proceeds of the mortgage |
|
|
loan have been disbursed to or on behalf of the mortgage applicant, |
|
|
except as provided by Section 156.304; |
|
|
(7) failed within a reasonable time to honor a check |
|
|
issued to the commissioner after the commissioner has mailed a |
|
|
request for payment by certified mail to the person's last known |
|
|
business address as reflected by the commissioner's records; |
|
|
(8) paid compensation to a person who is not licensed |
|
|
or exempt under this chapter for acts for which a license under this |
|
|
chapter is required; |
|
|
(9) induced or attempted to induce a party to a |
|
|
contract to breach the contract so the person may make a mortgage |
|
|
loan; |
|
|
(10) published or circulated an unjustified or |
|
|
unwarranted threat of legal proceedings in matters related to the |
|
|
person's actions or services as a mortgage broker or loan officer, |
|
|
as applicable; |
|
|
(11) established an association, by employment or |
|
|
otherwise, with a person not licensed or exempt under this chapter |
|
|
who was expected or required to act as a mortgage broker or loan |
|
|
officer; |
|
|
(12) aided, abetted, or conspired with a person to |
|
|
circumvent the requirements of this chapter; |
|
|
(13) acted in the dual capacity of a mortgage broker or |
|
|
loan officer and real estate broker, salesperson, or attorney in a |
|
|
transaction without the knowledge and written consent of the |
|
|
mortgage applicant or in violation of applicable requirements under |
|
|
federal law; |
|
|
(14) discriminated against a prospective borrower on |
|
|
the basis of race, color, religion, sex, national origin, ancestry, |
|
|
familial status, or a disability; |
|
|
(15) failed or refused on demand to: |
|
|
(A) produce a document, book, or record |
|
|
concerning a mortgage loan transaction conducted by the mortgage |
|
|
broker or loan officer for inspection by the commissioner or the |
|
|
commissioner's authorized personnel or representative; |
|
|
(B) give the commissioner or the commissioner's |
|
|
authorized personnel or representative free access to the books or |
|
|
records relating to the person's business kept by an officer, |
|
|
agent, or employee of the person or any business entity through |
|
|
which the person conducts mortgage brokerage activities, including |
|
|
a subsidiary or holding company affiliate; or |
|
|
(C) provide information requested by the |
|
|
commissioner as a result of a formal or informal complaint made to |
|
|
the commissioner; |
|
|
(16) failed without just cause to surrender, on |
|
|
demand, a copy of a document or other instrument coming into the |
|
|
person's possession that was provided to the person by another |
|
|
person making the demand or that the person making the demand is |
|
|
under law entitled to receive; |
|
|
(17) disregarded or violated this chapter, a rule |
|
|
adopted by the finance commission under this chapter, or an order |
|
|
issued by the commissioner under this chapter; or |
|
|
(18) provided false information to the commissioner |
|
|
during the course of an investigation or inspection. |
|
|
(a-1) The commissioner may also order disciplinary action |
|
|
after notice and opportunity for hearing against a licensed |
|
|
mortgage broker or a licensed loan officer if the commissioner |
|
|
becomes aware during the term of the license of any fact that would |
|
|
have been grounds for denial of an original license if the fact had |
|
|
been known by the commissioner on the date the license was issued. |
|
|
(e) The commissioner, after giving notice and an |
|
|
opportunity for hearing, may impose against a person who violates a |
|
|
cease and desist order an administrative penalty in an amount not to |
|
|
exceed $1,000 for each day of the violation. In addition to any |
|
|
other remedy provided by law, the commissioner may institute in |
|
|
district court a suit for injunctive relief and to collect the |
|
|
administrative penalty. A bond is not required of the commissioner |
|
|
with respect to injunctive relief granted under this subsection. |
|
|
[A penalty collected under this subsection shall be deposited in
|
|
|
the fund.] |
|
|
(g) If a person fails to pay an administrative penalty that |
|
|
has become final or fails to comply with an order of the |
|
|
commissioner that has become final, in addition to any other remedy |
|
|
provided under law the commissioner, on not less than 10 days' |
|
|
notice to the person, may without a prior hearing suspend the |
|
|
person's mortgage broker license or loan officer license. The |
|
|
suspension shall continue until the person has complied with the |
|
|
[cease and desist] order or paid the administrative penalty. |
|
|
During the period of suspension, the person may not originate a |
|
|
mortgage loan and all compensation received by the person during |
|
|
the period of suspension is subject to forfeiture as provided by |
|
|
Section 156.406(b). |
|
|
(h) An order of suspension under Subsection (g) may be |
|
|
appealed. An appeal is a contested case governed by Chapter 2001, |
|
|
Government Code. A hearing of an appeal of an order of suspension |
|
|
issued under Subsection (g) shall be held not later than the 30th |
|
|
[15th] day after the date of receipt of the notice of appeal. The |
|
|
appellant shall be provided at least three days' notice of the time |
|
|
and place of the hearing. |
|
|
(j) The [On notice and opportunity for hearing, the] |
|
|
commissioner may, on not less than 10 days' notice to the person, |
|
|
suspend a person's license without a prior hearing under this |
|
|
chapter if an indictment or information is filed or returned |
|
|
alleging that the person committed a criminal offense involving |
|
|
fraud, theft, or dishonesty. The suspension continues until the |
|
|
criminal case is dismissed or the person is acquitted. A person may |
|
|
appeal the suspension in accordance with Subsection (h). |
|
|
SECTION 18. Section 156.401(a), Finance Code, is amended to |
|
|
read as follows: |
|
|
(a) The commissioner may employ an enforcement staff to |
|
|
investigate and prosecute complaints made against persons licensed |
|
|
under this chapter. The commissioner may employ a hearings officer |
|
|
to conduct hearings under this section. The commissioner may |
|
|
collect and deposit any court costs collected pursuant to a final |
|
|
order. |
|
|
SECTION 19. Section 156.501, Finance Code, is amended by |
|
|
amending Subsections (a) and (b) and adding Subsections (d), (e), |
|
|
and (f) to read as follows: |
|
|
(a) The commissioner shall establish, administer, and |
|
|
maintain a mortgage broker recovery fund as provided by this |
|
|
subchapter. The amounts received by the commissioner for deposit |
|
|
in the fund shall be held by the commissioner in trust for carrying |
|
|
out the purposes of the fund. |
|
|
(b) Subject to this subsection, the [The] fund shall be used |
|
|
to reimburse residential mortgage loan applicants for actual |
|
|
damages incurred because of [aggrieved persons to whom a court
|
|
|
awards actual damages because of certain] acts committed by a |
|
|
mortgage broker or loan officer who was licensed under this chapter |
|
|
when the act was committed. The use of the fund is limited to |
|
|
reimbursement for out-of-pocket losses caused by an act by a |
|
|
mortgage broker or loan officer that constitutes a violation of |
|
|
Section 156.303(a)(2), (3), (5), (6), (8), (9), (10), (11), (12), |
|
|
(13), or (16) or 156.304. Payments from the fund may not be made to |
|
|
a lender who makes a mortgage loan originated by the mortgage broker |
|
|
or loan officer or who acquires a mortgage loan originated by the |
|
|
mortgage broker or loan officer. |
|
|
(d) The fund may be used at the discretion of the |
|
|
commissioner to reimburse expenses incurred to secure and destroy |
|
|
residential mortgage loan documents that have been abandoned by a |
|
|
current or former individual or entity under the regulatory |
|
|
authority of the department. |
|
|
(e) Payments from the fund shall be reduced by the amount of |
|
|
any recovery from the mortgage broker or loan officer or from any |
|
|
surety, insurer, or other person or entity making restitution to |
|
|
the applicant on behalf of the mortgage broker or loan officer. |
|
|
(f) The commissioner, as manager of the fund, is entitled to |
|
|
reimbursement for reasonable and necessary costs and expenses |
|
|
incurred in the management of the fund, including costs and |
|
|
expenses incurred with regard to applications filed under Section |
|
|
156.504. |
|
|
SECTION 20. Section 156.502(a), Finance Code, is amended to |
|
|
read as follows: |
|
|
(a) On an application for an original license or for renewal |
|
|
of a license issued under this chapter, the applicant, in addition |
|
|
to paying the original application fee or renewal fee, shall pay a |
|
|
fee in an amount determined by the commissioner, not to exceed $20 |
|
|
[fee]. The fee shall be deposited in the fund. |
|
|
SECTION 21. Section 156.502(b), Finance Code, is amended to |
|
|
read as follows: |
|
|
(b) If the balance remaining in the fund at the end of a |
|
|
calendar year [after 2010] is more [less] than $3.5 million, the |
|
|
amount of money in excess of that amount shall be available to the |
|
|
commissioner to offset the expenses of participating in and sharing |
|
|
information with the Nationwide Mortgage Licensing System and |
|
|
Registry in accordance with Chapter 180 [$500,000, each mortgage
|
|
|
broker and loan officer licensed under this chapter, on the next
|
|
|
renewal of the license, shall pay, in addition to any other required
|
|
|
fees, the lesser of a $10 fee or a pro rata share of the amount
|
|
|
necessary to bring the fund to $1 million. The fee shall be
|
|
|
deposited in the fund]. |
|
|
SECTION 22. Section 156.503, Finance Code, is amended to |
|
|
read as follows: |
|
|
Sec. 156.503. STATUTE OF LIMITATIONS. (a) An application |
|
|
for the recovery of actual damages [action for a judgment that
|
|
|
subsequently results in an order for collection] from the fund |
|
|
under Section 156.504 may not be filed [instituted] after the |
|
|
second anniversary of the date of the alleged act or omission |
|
|
causing the actual damages or the date the act or omission should |
|
|
reasonably have been discovered. |
|
|
(b) This section does not apply to a subrogation claim |
|
|
brought by the commissioner for recovery of money paid out of the |
|
|
fund [on which the cause of action accrues]. |
|
|
SECTION 23. Section 156.504, Finance Code, is amended to |
|
|
read as follows: |
|
|
Sec. 156.504. PROCEDURE FOR RECOVERY. (a) To recover from |
|
|
the fund, a residential mortgage loan applicant must file a written |
|
|
sworn application with the commissioner in the form prescribed by |
|
|
[An aggrieved person who recovers against a mortgage broker or loan
|
|
|
officer licensed under this chapter a valid court judgment for
|
|
|
conduct described by Section 156.501 that occurred on or after
|
|
|
January 1, 2000, after final judgment has been entered, execution
|
|
|
returned nulla bona, and a judgment lien perfected, may file a
|
|
|
verified claim in the court in which the judgment was entered and,
|
|
|
on 20 days' written notice to] the commissioner [and to the judgment
|
|
|
debtor, may apply to the court for an order directing payment from
|
|
|
the fund of any unpaid judgment amount], subject to Section |
|
|
156.503. A person who knowingly makes a false statement in |
|
|
connection with applying for money out of the fund may be subject to |
|
|
criminal prosecution under Section 37.10, Penal Code. |
|
|
(b) The residential mortgage loan applicant [On the hearing
|
|
|
on the application, the aggrieved person] is required to show: |
|
|
(1) that the applicant's claim [judgment] is based on |
|
|
facts allowing recovery under Section 156.501; and |
|
|
(2) that the applicant: |
|
|
(A) [person] is not a spouse of the licensed |
|
|
mortgage broker or loan officer; |
|
|
(B) is not a child, parent, grandchild, |
|
|
grandparent, or sibling, including relationships by adoption, of |
|
|
the licensed mortgage broker or loan officer; |
|
|
(C) is not a person sharing living quarters with |
|
|
the licensed mortgage broker or loan officer or a current or former |
|
|
employer, employee, or associate of the licensed mortgage broker or |
|
|
loan officer; |
|
|
(D) is not a person who has aided, abetted, or |
|
|
participated other than as a victim with the [of the debtor, or the
|
|
|
personal representative of the spouse, and that the person is not] |
|
|
licensed [as a] mortgage broker or loan officer in any activity that |
|
|
is illegal under Section 156.303(a)(2), (3), (5), (6), (8), (9), |
|
|
(10), (11), (12), (13), or (16) or Section 156.304 or is not the |
|
|
personal representative of a licensed mortgage broker or loan |
|
|
officer; and |
|
|
(E) is not licensed as a mortgage broker or loan |
|
|
officer under this chapter who is seeking to recover any |
|
|
compensation in the transaction or transactions for which the |
|
|
application for payment is made[;
|
|
|
[(3)
that based on the best available information, the
|
|
|
judgment debtor lacks sufficient attachable assets in this state or
|
|
|
any other state to satisfy the judgment and the surety bond required
|
|
|
by Section 156.205 is not sufficient to satisfy the judgment; and
|
|
|
[(4)
the amount that may be realized from the sale of
|
|
|
property or other assets liable to be sold or applied in
|
|
|
satisfaction of the judgment and the balance remaining due on the
|
|
|
judgment after application of the amount that may be realized]. |
|
|
(c) On receipt of the verified application, the |
|
|
commissioner's staff shall: |
|
|
(1) notify each appropriate license holder and the |
|
|
issuer of any surety bond issued in connection with their licenses; |
|
|
and |
|
|
(2) investigate the application and issue a |
|
|
preliminary determination, giving the applicant, the license |
|
|
holder, and any surety an opportunity to resolve the matter by |
|
|
agreement or to dispute the preliminary determination. |
|
|
(d) If the preliminary determination under Subsection |
|
|
(c)(2) is not otherwise resolved by agreement and is not disputed by |
|
|
written notice to the commissioner before the 31st day after the |
|
|
notification date, the preliminary determination automatically |
|
|
becomes final and the commissioner shall make payment from the |
|
|
fund, subject to [A recovery on the judgment against a single
|
|
|
defendant made before payment from the fund shall be applied first
|
|
|
by the creditor to actual damages.
|
|
|
[(d)
The court shall make an order directed to the
|
|
|
commissioner requiring payment from the fund of the amount the
|
|
|
court finds to be payable on the claim, pursuant to and in
|
|
|
accordance with the limitations contained in this subchapter, if
|
|
|
the court is satisfied, on the hearing, of the truth of all matters
|
|
|
required to be shown by the aggrieved person under Subsection (b)
|
|
|
and that the aggrieved person has satisfied all of the requirements
|
|
|
of this section.
|
|
|
[(e)
When the commissioner receives notice of entry of a
|
|
|
final judgment and a hearing is scheduled under this section, the
|
|
|
commissioner may notify the attorney general of the commissioner's
|
|
|
desire to enter an appearance, file a response, appear at the court
|
|
|
hearing, defend the action, or to take any other appropriate
|
|
|
action. In taking any action described by this subsection, the
|
|
|
commissioner and the attorney general shall act only to protect the
|
|
|
fund from spurious or unjust claims or to ensure compliance with the
|
|
|
requirements for recovery under this subchapter.
|
|
|
[(f)
The commissioner may relitigate any issue material and
|
|
|
relevant in the hearing on the application that was determined in
|
|
|
the underlying action on which the judgment in favor of the
|
|
|
applicant was based.
|
|
|
[(g)
If the court finds that the aggregate amount of claims
|
|
|
against a licensed mortgage broker or loan officer exceeds] the |
|
|
limits of [contained in] Section 156.505. |
|
|
(e) If the preliminary determination under Subsection |
|
|
(c)(2) is disputed by the applicant, the license holder, or any |
|
|
surety by written notice to the commissioner before the 31st day |
|
|
after the notification date, the matter shall be set for a hearing |
|
|
governed by Chapter 2001, Government Code, and the hearing rules of |
|
|
the finance commission [, the court shall reduce proportionately
|
|
|
the amount the court finds payable on the claim]. |
|
|
SECTION 24. Section 156.505, Finance Code, is amended to |
|
|
read as follows: |
|
|
Sec. 156.505. RECOVERY LIMITS. (a) A person entitled to |
|
|
receive payment out of the fund is entitled to receive |
|
|
reimbursement of actual, out-of-pocket damages[, reasonable
|
|
|
attorney's fees, and court costs as determined by the court] as |
|
|
provided by this section. |
|
|
(b) A payment from the fund may be made [only pursuant to a
|
|
|
court order] as provided by Section 156.504 and this section. A |
|
|
payment for claims: |
|
|
(1) arising out of the same transaction, including |
|
|
[attorney's fees,] interest, [and court costs,] is limited in the |
|
|
aggregate to $25,000, regardless of the number of claimants; and |
|
|
(2) [based on judgments] against a single person |
|
|
licensed as a mortgage broker or loan officer under this chapter |
|
|
arising out of separate transactions, including interest, is |
|
|
limited in the aggregate to $50,000 until the fund has been |
|
|
reimbursed for all amounts paid. |
|
|
(c) In the event there are concurrent claims under |
|
|
Subsections (b)(1) and (2) that exceed the amounts available under |
|
|
the fund, the commissioner shall prorate recovery based on the |
|
|
amount of damage suffered by each claimant. |
|
|
SECTION 25. Section 156.506, Finance Code, is amended by |
|
|
amending Subsections (a) and (c) and adding Subsection (a-1) to |
|
|
read as follows: |
|
|
(a) The commissioner may revoke a license issued under this |
|
|
chapter on proof that the commissioner has made a payment from the |
|
|
fund of any amount toward satisfaction of a claim [judgment] |
|
|
against a [person licensed as a] mortgage broker or loan officer |
|
|
under this chapter. |
|
|
(a-1) The commissioner may seek to collect from a mortgage |
|
|
broker or loan officer the amount paid from the fund on behalf of |
|
|
the mortgage broker or loan officer and any costs associated with |
|
|
investigating and processing the claim against the fund or with |
|
|
collection of reimbursement for payments from the fund, plus |
|
|
interest at the current legal rate until the amount has been repaid |
|
|
in full. Any amount, including interest, recovered by the |
|
|
commissioner shall be deposited to the credit of the fund. |
|
|
(c) A person on whose behalf payment was made from the fund |
|
|
is not eligible to receive a new license under this chapter until |
|
|
the person has repaid in full, plus interest at the current legal |
|
|
rate, the amount paid from the fund on the person's behalf and any |
|
|
costs associated with investigating and processing the claim |
|
|
against the fund or with collection of reimbursement for payments |
|
|
from the fund. |
|
|
SECTION 26. Section 156.507, Finance Code, is amended to |
|
|
read as follows: |
|
|
Sec. 156.507. SUBROGATION. When the commissioner has paid |
|
|
an applicant [a judgment creditor] an amount from the fund under |
|
|
Section 156.504 [as directed by the court], the commissioner is |
|
|
subrogated to all of the rights of the applicant [judgment
|
|
|
creditor] to the extent of the amount paid. The applicant [judgment
|
|
|
creditor] shall assign all of the applicant's [creditor's] right, |
|
|
title, and interest in [the judgment up to the amount paid by the
|
|
|
commissioner, and that amount has priority for repayment in the
|
|
|
event of] any subsequent [recovery on the] judgment against the |
|
|
license holder, up to the[. Any] amount paid[, including interest,
|
|
|
recovered] by the commissioner. Any amount, including interest, |
|
|
recovered by the commissioner on the assignment [judgment] shall be |
|
|
deposited to the credit of the fund. |
|
|
SECTION 27. Section 156.508, Finance Code, is amended to |
|
|
read as follows: |
|
|
Sec. 156.508. FAILURE TO COMPLY WITH SUBCHAPTER OR RULE |
|
|
ADOPTED BY THE FINANCE COMMISSION. The failure of an applicant |
|
|
under Section 156.504 [aggrieved person] to comply with a provision |
|
|
of this subchapter relating to the fund or with a rule adopted by |
|
|
the finance commission relating to the fund constitutes a waiver of |
|
|
any rights under this subchapter. |
|
|
SECTION 28. (a) Title 2, Finance Code, is amended by |
|
|
adding Chapter 16 to read as follows: |
|
|
CHAPTER 16. FINANCIAL REGULATORY AGENCIES: SELF-DIRECTED AND |
|
|
SEMI-INDEPENDENT |
|
|
Sec. 16.001. DEFINITIONS. In this chapter: |
|
|
(1) "Financial regulatory agency" means: |
|
|
(A) the Texas Department of Banking; |
|
|
(B) the Department of Savings and Mortgage |
|
|
Lending; |
|
|
(C) the Office of Consumer Credit Commissioner; |
|
|
and |
|
|
(D) the Credit Union Department. |
|
|
(2) "Policy-making body" means: |
|
|
(A) the Finance Commission of Texas for: |
|
|
(i) the Texas Department of Banking; |
|
|
(ii) the Department of Savings and Mortgage |
|
|
Lending; and |
|
|
(iii) the Office of Consumer Credit |
|
|
Commissioner; and |
|
|
(B) the Credit Union Commission for the Credit |
|
|
Union Department. |
|
|
Sec. 16.002. SELF-DIRECTED AND SEMI-INDEPENDENT STATUS OF |
|
|
FINANCIAL REGULATORY AGENCIES. Notwithstanding any other |
|
|
provision of law, a financial regulatory agency is self-directed |
|
|
and semi-independent as specified by this chapter. Any Act of the |
|
|
81st Legislature that relates to a financial regulatory agency and |
|
|
that is inconsistent with the agency being self-directed and |
|
|
semi-independent may be implemented by the financial regulatory |
|
|
agency only on authorization by the policy-making body of the |
|
|
financial regulatory agency. |
|
|
Sec. 16.003. BUDGET, REVENUES, AND EXPENSES. (a) A |
|
|
financial regulatory agency shall submit to the policy-making body |
|
|
of the financial regulatory agency a budget annually using |
|
|
generally accepted accounting principles. Notwithstanding any |
|
|
other provision of law, including the General Appropriations Act, |
|
|
the budget shall be adopted and approved only by the policy-making |
|
|
body of the financial regulatory agency. |
|
|
(b) A financial regulatory agency shall be responsible for |
|
|
all direct and indirect costs of the agency's existence and |
|
|
operation. The financial regulatory agency may not directly or |
|
|
indirectly cause the general revenue fund to incur any cost. |
|
|
(c) Subject to any limitations in a financial regulatory |
|
|
agency's enabling legislation, a financial regulatory agency may |
|
|
set the amounts of fees, penalties, charges, and revenues required |
|
|
or permitted by statute or rule as necessary for the purpose of |
|
|
carrying out the functions of the financial regulatory agency and |
|
|
funding the budget adopted and approved under Subsection (a). |
|
|
(d) All fees and funds collected by a financial regulatory |
|
|
agency and any funds appropriated to the financial regulatory |
|
|
agency shall be deposited in interest-bearing deposit accounts in |
|
|
the Texas Treasury Safekeeping Trust Company. The comptroller |
|
|
shall contract with the financial regulatory agency for the |
|
|
maintenance of the deposit accounts under terms comparable to a |
|
|
contract between a commercial banking institution and the |
|
|
institution's customers. |
|
|
(e) Periodically, each financial regulatory agency shall |
|
|
submit to the agency's policy-making body, as directed by the |
|
|
policy-making body, a report of the receipts and expenditures of |
|
|
the financial regulatory agency. |
|
|
(f) The fiscal year for a financial regulatory agency begins |
|
|
on September 1 and ends on August 31. |
|
|
Sec. 16.004. AUDITS. This chapter does not affect the duty |
|
|
of the state auditor to audit a financial regulatory agency. The |
|
|
state auditor shall enter into a contract and schedule with each |
|
|
financial regulatory agency to conduct audits, including financial |
|
|
reports and performance audits. The financial regulatory agency |
|
|
shall reimburse the state auditor for all costs incurred in |
|
|
performing the audits and shall provide to the governor a copy of |
|
|
any audit performed. |
|
|
Sec. 16.005. RECORDS; REPORTING REQUIREMENTS. (a) A |
|
|
financial regulatory agency shall keep financial and statistical |
|
|
information as necessary to disclose completely and accurately the |
|
|
financial condition and results of operations of the agency. |
|
|
(b) Before the beginning of each regular session of the |
|
|
legislature, each financial regulatory agency shall submit to the |
|
|
legislature and the governor a report describing all of the |
|
|
agency's activities in the previous biennium. The report must |
|
|
include: |
|
|
(1) an audit as required by Section 16.004; |
|
|
(2) a financial report of the previous fiscal year, |
|
|
including reports on financial condition and results of operations; |
|
|
(3) a description of all changes in fees imposed on |
|
|
regulated industries; |
|
|
(4) a report on changes in the regulatory jurisdiction |
|
|
of the agency, including the number of chartered financial |
|
|
institutions, license holders, and registrants subject to the |
|
|
agency's jurisdiction and any changes in those figures; and |
|
|
(5) a list of all new rules adopted or repealed. |
|
|
(c) In addition to the reporting requirements of Subsection |
|
|
(b), not later than November 1 of each year, each financial |
|
|
regulatory agency shall submit to the governor, the committee of |
|
|
each house of the legislature that has jurisdiction over |
|
|
appropriations, and the Legislative Budget Board a report that |
|
|
contains: |
|
|
(1) the salary for all financial regulatory agency |
|
|
personnel and the total amount of per diem expenses and travel |
|
|
expenses paid for all agency employees; |
|
|
(2) the total amount of per diem expenses and travel |
|
|
expenses paid for each member of the agency's policy-making body, |
|
|
provided that only one report must be submitted regarding the |
|
|
Finance Commission of Texas; |
|
|
(3) the agency's operating plan and annual budget; and |
|
|
(4) a detailed report of all revenue received and all |
|
|
expenses incurred by the financial regulatory agency in the |
|
|
previous 12 months. |
|
|
Sec. 16.006. ABILITY TO CONTRACT. (a) To carry out and |
|
|
promote the objectives of this chapter, a financial regulatory |
|
|
agency may enter into contracts and do all other acts incidental to |
|
|
those contracts that are necessary for the administration of the |
|
|
agency's affairs and for the attainment of the agency's purposes, |
|
|
except as limited by Subsection (b). |
|
|
(b) Any indebtedness, liability, or obligation of the |
|
|
financial regulatory agency incurred under this section may not: |
|
|
(1) create a debt or other liability of this state or |
|
|
another entity other than the financial regulatory agency; or |
|
|
(2) create any personal liability on the part of the |
|
|
members of the policy-making body or the body's or agency's |
|
|
employees. |
|
|
Sec. 16.007. PROPERTY. A financial regulatory agency may: |
|
|
(1) acquire by purchase, lease, gift, or any other |
|
|
manner provided by law and maintain, use, and operate any real, |
|
|
personal, or mixed property, or any interest in property, necessary |
|
|
or convenient to the exercise of the powers, rights, privileges, or |
|
|
functions of the financial regulatory agency; |
|
|
(2) sell or otherwise dispose of any real, personal, |
|
|
or mixed property, or any interest in property, that the financial |
|
|
regulatory agency determines is not necessary or convenient to the |
|
|
exercise of the agency's powers, rights, privileges, or functions; |
|
|
(3) construct, extend, improve, maintain, and |
|
|
reconstruct, or cause to construct, extend, improve, maintain, and |
|
|
reconstruct, and use and operate all facilities necessary or |
|
|
convenient to the exercise of the powers, rights, privileges, or |
|
|
functions of the financial regulatory agency; and |
|
|
(4) borrow money, as may be authorized from time to |
|
|
time by an affirmative vote of a two-thirds majority of the |
|
|
policy-making body of the financial regulatory agency, for a period |
|
|
not to exceed five years if necessary or convenient to the exercise |
|
|
of the financial regulatory agency's powers, rights, privileges, or |
|
|
functions. |
|
|
Sec. 16.008. SUITS. The office of the attorney general |
|
|
shall represent a financial regulatory agency in any litigation. |
|
|
The attorney general may assess and collect from the financial |
|
|
regulatory agency reasonable attorney's fees associated with any |
|
|
litigation under this section. |
|
|
Sec. 16.009. POST-PARTICIPATION LIABILITY. (a) If a |
|
|
financial regulatory agency no longer has status under this chapter |
|
|
as a self-directed semi-independent financial regulatory agency |
|
|
for any reason, the agency shall be liable for any expenses or debts |
|
|
incurred by the agency during the time the agency was a |
|
|
self-directed semi-independent financial regulatory agency. The |
|
|
agency's liability under this section includes liability for any |
|
|
lease entered into by the agency. This state is not liable for any |
|
|
expense or debt covered by this subsection, and money from the |
|
|
general revenue fund may not be used to repay the expense or debt. |
|
|
(b) If a financial regulatory agency no longer has status |
|
|
under this chapter as a self-directed semi-independent financial |
|
|
regulatory agency for any reason, ownership of any property or |
|
|
other asset acquired by the agency during the time the agency was a |
|
|
self-directed semi-independent financial regulatory agency, |
|
|
including unexpended fees in a deposit account in the Texas |
|
|
Treasury Safekeeping Trust Company, shall be transferred to this |
|
|
state. |
|
|
Sec. 16.010. DUE PROCESS; OPEN GOVERNMENT. A financial |
|
|
regulatory agency is: |
|
|
(1) a governmental body for purposes of Chapters 551 |
|
|
and 552, Government Code; and |
|
|
(2) a state agency for purposes of Chapters 2001 and |
|
|
2005, Government Code. |
|
|
Sec. 16.011. MEMBERSHIP IN EMPLOYEES RETIREMENT SYSTEM. |
|
|
Employees of the financial regulatory agencies are members of the |
|
|
Employees Retirement System of Texas under Chapter 812, Government |
|
|
Code, and the agencies' transition to independent status as |
|
|
provided by this chapter has no effect on their membership or any |
|
|
benefits under that system. |
|
|
Sec. 16.012. GIFTS. (a) Notwithstanding any other law, a |
|
|
financial regulatory agency may not accept a gift, grant, or |
|
|
donation: |
|
|
(1) from a party to an enforcement action; or |
|
|
(2) to pursue a specific investigation or enforcement |
|
|
action. |
|
|
(b) A financial regulatory agency must: |
|
|
(1) report each gift, grant, or donation that the |
|
|
agency receives as a separate item in the agency's report required |
|
|
under Section 16.005(b); and |
|
|
(2) include with the report a statement indicating the |
|
|
purpose for which each gift, grant, or donation was donated and |
|
|
used. |
|
|
(b) Section 11.104, Finance Code, is amended to read as |
|
|
follows: |
|
|
Sec. 11.104. EXPENSES AND COMPENSATION OF MEMBERS. A |
|
|
member of the finance commission is entitled to: |
|
|
(1) the reimbursement for reasonable and necessary |
|
|
expenses incidental to travel incurred in connection with the |
|
|
performance of official duties; and |
|
|
(2) a per diem [as set by legislative appropriation] |
|
|
for each day that the member engages in the business of the finance |
|
|
commission. |
|
|
(c) Section 11.110(c), Finance Code, is amended to read as |
|
|
follows: |
|
|
(c) A person appointed to the finance commission is entitled |
|
|
to reimbursement under Section 11.104, as if the person were a |
|
|
member of the finance commission, [as provided by the General
|
|
|
Appropriations Act,] for the travel expenses incurred in attending |
|
|
the training program regardless of whether the attendance at the |
|
|
program occurs before or after the person qualifies for office. |
|
|
(d) Section 11.204, Finance Code, is amended by adding |
|
|
Subsection (c) to read as follows: |
|
|
(c) The finance commission shall have charge and control of |
|
|
the property known as the Finance Commission Building and use of |
|
|
staff, equipment, and facilities of the finance agencies. The |
|
|
Finance Commission Building refers to the property located in the |
|
|
city of Austin and titled in the name of the Banking Section of the |
|
|
Finance Commission of Texas, as described by deed recorded in |
|
|
Volume 5080, Page 1099, of the Deed Records of Travis County, Texas. |
|
|
(e) Section 15.2041(c), Finance Code, is amended to read as |
|
|
follows: |
|
|
(c) A person appointed to the commission is entitled to |
|
|
reimbursement under Section 15.207, as if the person were a member |
|
|
of the commission, for travel expenses incurred in attending the |
|
|
training program, regardless of whether the attendance at the |
|
|
program occurs before or after the person qualifies for office[, as
|
|
|
provided by the General Appropriations Act and as if the person were
|
|
|
a member of the commission]. |
|
|
(f) Subchapter E, Chapter 15, Finance Code, is amended by |
|
|
adding Section 15.4011 to read as follows: |
|
|
Sec. 15.4011. CREDIT UNION DEPARTMENT BUILDING. The |
|
|
commission shall have charge and control of the property known as |
|
|
the Credit Union Department Building and use of staff, equipment, |
|
|
and facilities of the department. The Credit Union Department |
|
|
Building refers to the property located in the city of Austin and |
|
|
titled in the name of the State of Texas for the use and benefit of |
|
|
the Credit Union Department, as described by deed recorded in |
|
|
Volume 6126, Page 27, of the Deed Records of Travis County, Texas. |
|
|
(g) Section 156.101(a), Finance Code, is amended to read as |
|
|
follows: |
|
|
(a) The commissioner shall administer and enforce this |
|
|
chapter. |
|
|
(h) Section 2165.007(b), Government Code, is amended to |
|
|
read as follows: |
|
|
(b) Notwithstanding any other law, the commission shall |
|
|
provide facilities management services in relation to all state |
|
|
agency facilities in Travis County or a county adjacent to Travis |
|
|
County. The commission's duty does not apply to: |
|
|
(1) a facility owned or operated by an institution of |
|
|
higher education; |
|
|
(2) military facilities; |
|
|
(3) facilities owned or operated by the Texas |
|
|
Department of Criminal Justice; |
|
|
(4) facilities owned or operated by the Texas Youth |
|
|
Commission; |
|
|
(5) facilities owned or operated by the Texas |
|
|
Department of Transportation; |
|
|
(6) the Capitol, including the Capitol Extension, the |
|
|
General Land Office building, the Bob Bullock Texas State History |
|
|
Museum, any museum located on the Capitol grounds, the Governor's |
|
|
Mansion, and any property maintained by the Texas Historical |
|
|
Commission under Sections 442.0072 and 442.0073; |
|
|
(7) a facility determined by the commission to be |
|
|
completely residential; |
|
|
(8) a regional or field office of a state agency; [or] |
|
|
(9) a facility located within or on state park |
|
|
property; |
|
|
(10) the property known as the Finance Commission |
|
|
Building described by deed recorded in Volume 5080, Page 1099, of |
|
|
the Deed Records of Travis County, Texas; or |
|
|
(11) the property known as the Credit Union Department |
|
|
Building described by deed recorded in Volume 6126, Page 27, of the |
|
|
Deed Records of Travis County, Texas. |
|
|
(i) Sections 12.103, 13.005, 13.008, 14.053, 14.060, |
|
|
15.104, 15.207(c), 15.308, 15.408, and 156.101(b) and (c), Finance |
|
|
Code, are repealed. |
|
|
(j)(1) To provide a reasonable period for each financial |
|
|
regulatory agency, as defined by Section 16.001, Finance Code, as |
|
|
added by this section, to establish itself as a self-directed and |
|
|
semi-independent agency, the following amounts are appropriated |
|
|
from the general revenue fund to each of those financial regulatory |
|
|
agencies: |
|
|
(A) for the state fiscal year ending August 31, |
|
|
2010, an amount equal to 50 percent of the amount of general revenue |
|
|
appropriated to the agency for the state fiscal year ending August |
|
|
31, 2009; and |
|
|
(B) for the state fiscal year ending August 31, |
|
|
2011, an amount equal to 50 percent of the amount of general revenue |
|
|
appropriated to the agency for the state fiscal year ending August |
|
|
31, 2009. |
|
|
(2) Subject to Section 16.003, Finance Code, as added |
|
|
by this section, the appropriations made by Subdivision (1) of this |
|
|
subsection may be spent by the financial regulatory agency to which |
|
|
they are made as the financial regulatory agency directs. The |
|
|
financial regulatory agency shall repay to the general revenue fund |
|
|
the appropriation made to the agency for the state fiscal year |
|
|
ending August 31, 2010, not later than that date and as funds become |
|
|
available. The financial regulatory agency shall repay to the |
|
|
general revenue fund the appropriation made to the agency for the |
|
|
state fiscal year ending August 31, 2011, not later than that date |
|
|
and as funds become available. |
|
|
(k) The transfer of a financial regulatory agency, as |
|
|
defined by Section 16.001, Finance Code, as added by this section, |
|
|
to self-directed and semi-independent status under Chapter 16, |
|
|
Finance Code, as added by this section, and the expiration of |
|
|
self-directed and semi-independent status may not act to cancel, |
|
|
suspend, or prevent: |
|
|
(1) any debt owed to or by the financial regulatory |
|
|
agency; |
|
|
(2) any fine, tax, penalty, or obligation of any |
|
|
party; |
|
|
(3) any contract or other obligation of any party; or |
|
|
(4) any action taken by the financial regulatory |
|
|
agency in the administration or enforcement of the agency's duties. |
|
|
(l) Each financial regulatory agency, as defined by Section |
|
|
16.001, Finance Code, as added by this section, shall continue to |
|
|
have and exercise the powers and duties allocated to the agency in |
|
|
the agency's enabling legislation, except as specifically amended |
|
|
by this section. |
|
|
(m) Title to all supplies, materials, records, equipment, |
|
|
books, papers, and facilities used by each financial regulatory |
|
|
agency, as defined by Section 16.001, Finance Code, as added by this |
|
|
section, is transferred to each respective financial regulatory |
|
|
agency in fee simple. Nothing in this section shall have an effect |
|
|
on property owned by a financial regulatory agency on or before the |
|
|
effective date of this section. |
|
|
(n) If a conflict exists between this section and another |
|
|
Act of the 81st Legislature, Regular Session, 2009, that relates to |
|
|
the self-directed and semi-independent status of a state financial |
|
|
regulatory agency, this section controls without regard to the |
|
|
relative dates of the enactment. |
|
|
SECTION 29. Sections 156.212(c) and (d) and 156.502(c), |
|
|
Finance Code, are repealed. |
|
|
SECTION 30. The provisions of this Act or the applications |
|
|
of those provisions are severable as provided by Section |
|
|
311.032(c), Government Code. If the Secretary of Housing and Urban |
|
|
Development determines that any provision of Sections 1-27 and 29 |
|
|
of this Act fails to meet the requirements of the federal Secure and |
|
|
Fair Enforcement for Mortgage Licensing Act of 2008 (Pub. L. No. |
|
|
110-289), that provision of this Act shall be held invalid; |
|
|
however, the remainder of this Act or the application of the |
|
|
provision to other persons or circumstances is not affected. |
|
|
SECTION 31. To the extent of any conflict, this Act prevails |
|
|
over another Act of the 81st Legislature, Regular Session, 2009, |
|
|
relating to nonsubstantive additions to and corrections in enacted |
|
|
codes. |
|
|
SECTION 32. (a) Subject to Subsection (b) of this section, |
|
|
this Act takes effect September 1, 2009. |
|
|
(b) Sections 1, 2, and 18 of this Act take effect only if |
|
|
House Bill 10 or another similar bill of the Regular Session of the |
|
|
81st Legislature relating to the licensing of residential mortgage |
|
|
loan originators is enacted and becomes law. If House Bill 10 or |
|
|
another similar bill of the Regular Session of the 81st Legislature |
|
|
relating to the licensing of residential mortgage loan originators |
|
|
does not become law, Sections 1, 2, and 18 of this Act do not take |
|
|
effect. |
| |
| |
| |
______________________________ |
______________________________ |
| |
President of the Senate |
Speaker of the House |
| |
| |
|
|
I certify that H.B. No. 2774 was passed by the House on April |
|
|
28, 2009, by the following vote: Yeas 147, Nays 0, 1 present, not |
|
|
voting; that the House refused to concur in Senate amendments to |
|
|
H.B. No. 2774 on May 29, 2009, and requested the appointment of a |
|
|
conference committee to consider the differences between the two |
|
|
houses; and that the House adopted the conference committee report |
|
|
on H.B. No. 2774 on May 31, 2009, by the following vote: Yeas 144, |
|
|
Nays 0, 1 present, not voting. |
|
|
|
|
|
______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2774 was passed by the Senate, with |
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amendments, on May 26, 2009, by the following vote: Yeas 31, Nays |
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0; at the request of the House, the Senate appointed a conference |
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committee to consider the differences between the two houses; and |
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that the Senate adopted the conference committee report on H.B. No. |
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2774 on June 1, 2009, by the following vote: Yeas 31, Nays 0. |
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Secretary of the Senate |
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APPROVED: __________________ |
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Governor |