Bill Text: TX HB2829 | 2017-2018 | 85th Legislature | Introduced
Bill Title: Relating to enforcement of certain unclaimed property laws.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-04-24 - Committee report sent to Calendars [HB2829 Detail]
Download: Texas-2017-HB2829-Introduced.html
85R11924 AJA-F | ||
By: Oliveira | H.B. No. 2829 |
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relating to enforcement of certain unclaimed property laws. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subchapter H, Chapter 74, Property Code, is | ||
amended by adding Sections 74.7021 through 74.7026 to read as | ||
follows: | ||
Sec. 74.7021. AUTHORITY TO TAKE TESTIMONY AND ISSUE | ||
SUBPOENAS AND COMMISSIONS. (a) In addition to the authority to | ||
examine and investigate granted under Section 74.702, the | ||
comptroller, or the comptroller's designee, in furtherance of that | ||
authority, at reasonable times and on reasonable prior notice, may: | ||
(1) take testimony; | ||
(2) administer oaths; | ||
(3) subpoena witnesses; and | ||
(4) issue subpoenas or commissions to require any | ||
person to appear at the place and time stated in the subpoena or | ||
commission and: | ||
(A) give testimony under oath; or | ||
(B) produce relevant books, records, documents, | ||
papers, accounts, or other data, in whatever form, for audit, | ||
inspection, and copying as may be relevant or material to the | ||
inquiry being made. | ||
(b) A subpoena or commission issued under Subsection (a) may | ||
be directed to: | ||
(1) a suspected holder; | ||
(2) an affiliate, third-party agent, or third-party | ||
recordkeeper of a suspected holder; | ||
(3) another custodian of relevant information; or | ||
(4) any other person the comptroller determines may | ||
provide assistance to enforce this chapter. | ||
(c) Authority granted under Subsection (a) may be exercised | ||
for the purpose of: | ||
(1) ascertaining the correctness of any report; | ||
(2) obtaining a report in instances in which none has | ||
been made; | ||
(3) determining whether unclaimed property improperly | ||
remains in the possession of any person; | ||
(4) collecting all such unclaimed property; and | ||
(5) inquiring into any offense connected with the | ||
administration or enforcement of this chapter. | ||
(d) On receipt of a subpoena or commission under this | ||
section, the person to whom the subpoena or commission is directed | ||
shall: | ||
(1) assemble the witnesses and records requested; and | ||
(2) be prepared to produce the testimony and records | ||
pursuant to the subpoena or commission on the day on which the | ||
witnesses and records are to be examined. | ||
(e) Any person, or agent or employee of a person, who makes a | ||
disclosure of records or gives testimony under this section in good | ||
faith reliance on a subpoena or commission of the comptroller or a | ||
court order requiring that the records be disclosed or the | ||
testimony be given is not liable to any person for the disclosure or | ||
testimony. | ||
(f) A person authorized to serve process under the Texas | ||
Rules of Civil Procedure may serve a subpoena or commission issued | ||
under Subsection (a). The person shall serve the subpoena or | ||
commission in accordance with the Texas Rules of Civil Procedure. | ||
(g) A subpoena or commission issued under Subsection (a) to | ||
a third-party recordkeeper may also be served by certified or | ||
registered mail to the last known address of that recordkeeper. | ||
Sec. 74.7022. NOTICE TO CERTAIN PERSONS INTERESTED IN | ||
SUBPOENA OR COMMISSION. (a) Except as provided by Subsection (d) | ||
or (e), if a subpoena or commission issued under Section 74.7021 | ||
requires a third-party recordkeeper to give testimony on or related | ||
to the production of books, records, documents, papers, accounts, | ||
or other data with respect to any person other than the third-party | ||
recordkeeper, the comptroller shall give notice to that person on | ||
or before the earlier of: | ||
(1) the third day after the date on which the | ||
third-party recordkeeper is served with the subpoena or commission; | ||
or | ||
(2) the 21st day before the date the data is to be | ||
examined. | ||
(b) Notice under Subsection (a) must be accompanied by a | ||
copy of the subpoena or commission served and contain an | ||
explanation of the right of the person to whom the notice is | ||
directed to bring a proceeding to quash the subpoena or commission | ||
under Section 74.7026. | ||
(c) Notice required by this section is sufficient if served | ||
in the time and manner provided by this section on the person | ||
entitled to notice by certified or registered mail to the last known | ||
address of that person or to the last known address of a fiduciary | ||
of that person or, in the absence of a last known address, by | ||
leaving the notice with the person. | ||
(d) Notice is not required under this section if there is | ||
reasonable cause to believe that giving the notice may lead a person | ||
to attempt to: | ||
(1) conceal, destroy, or alter records or assets | ||
relevant to the examination; | ||
(2) prevent the communication of information by other | ||
persons through intimidation, bribery, or collusion; or | ||
(3) flee to avoid prosecution, testifying, or | ||
production of records. | ||
(e) Notice is not required under this section or under other | ||
law if: | ||
(1) the holder or another party identified in the | ||
subpoena or commission is under criminal investigation; and | ||
(2) the subpoena or commission has been issued as part | ||
of the criminal investigation. | ||
(f) A third-party recordkeeper who is advised that a | ||
subpoena or commission has been issued as part of a criminal | ||
investigation is prohibited from informing by any means the holder | ||
or any other party identified in the subpoena or commission of the | ||
receipt of the subpoena or commission, the contents of the subpoena | ||
or commission, or the fact that the holder or other party identified | ||
may be or is under criminal investigation. | ||
Sec. 74.7023. REIMBURSEMENT OF THIRD-PARTY COSTS. (a) The | ||
comptroller shall by rule establish rates and conditions for | ||
payments to reimburse a person, other than a holder or suspected | ||
holder, who is subpoenaed or commissioned to give a deposition or to | ||
produce books, records, documents, papers, accounts, or other data | ||
under Section 74.7021, for specified costs directly incurred in | ||
reproducing or transporting the items. | ||
(b) Rules adopted under this section may: | ||
(1) require presentation of a voucher that is sworn by | ||
the person requesting reimbursement and approved by the | ||
comptroller; and | ||
(2) establish rates for payment of: | ||
(A) mileage for going to and returning from the | ||
place where the deposition is taken if the place is more than 25 | ||
miles from the deposed person's place of residence; | ||
(B) a fee for each day or part of a day a person is | ||
necessarily present as a deponent; or | ||
(C) reasonable costs to copy, reproduce, or | ||
transport books, records, documents, papers, accounts, or other | ||
data required to be produced to the comptroller. | ||
(c) The comptroller may assess costs reimbursed to a | ||
third-party recordkeeper under this section against a holder if | ||
information obtained during the course of the audit, inspection, or | ||
investigation contributes to a determination that the holder is not | ||
in compliance with the holder's duties under this chapter. | ||
Sec. 74.7024. PRE-COMPLIANCE REVIEW. Before the return | ||
date specified on a subpoena or commission issued under Section | ||
74.7021, the person receiving the subpoena or commission may | ||
petition a district court in Travis County for an order to modify or | ||
quash the subpoena or commission or to prohibit disclosure of | ||
applicable information. | ||
Sec. 74.7025. ENFORCEMENT OF SUBPOENAS OR COMMISSIONS. (a) | ||
A district court of Travis County has jurisdiction to hear a | ||
proceeding brought under this section. | ||
(b) If a person to whom a subpoena or commission is directed | ||
under Section 74.7021 fails to comply with the subpoena or | ||
commission or fails to file a motion under Section 74.7024 before | ||
the return date specified on the subpoena or commission: | ||
(1) the subpoena or commission has the force and | ||
effect of a court order; and | ||
(2) the comptroller acting through the attorney | ||
general may bring suit to enforce the subpoena or commission. | ||
(c) A suit under Subsection (b) may be brought: | ||
(1) in a state or a federal district court in which | ||
service may be obtained on the person refusing to testify or | ||
produce, if the person is within this state; or | ||
(2) in the appropriate court of the state having | ||
jurisdiction over the person refusing to testify or produce, if the | ||
person is outside the state. | ||
(d) The burden to prove any challenge to a subpoena or | ||
commission issued under Section 74.7021 rests on the person making | ||
the challenge. | ||
(e) A court that determines that a subpoena or commission | ||
was issued in good faith under Section 74.7021 shall order | ||
compliance with the subpoena or commission. The court may modify | ||
the requirements of a subpoena or commission issued under that | ||
section that the court determines are unreasonable. The court may | ||
apply penalties for civil and criminal contempt otherwise available | ||
at law if a person refuses to comply with the court's order. | ||
(f) In addition to bringing suit under this section, the | ||
comptroller may elect to initiate an action under Section 74.709 or | ||
bring charges under Section 74.710. | ||
Sec. 74.7026. RIGHT TO INTERVENE; NOTICE TO SUBPOENA OR | ||
COMMISSION RECIPIENT AND TO COMPTROLLER. (a) Any person who is | ||
entitled to notice of a subpoena or commission issued under Section | ||
74.7021 has the right to intervene in any proceeding with respect to | ||
the enforcement of the subpoena or commission and begin a | ||
proceeding to quash the subpoena or commission not later than the | ||
20th day after the date notice is given. | ||
(b) In a proceeding to quash under Subsection (a), the | ||
comptroller may seek to compel compliance with the subpoena or | ||
commission. | ||
(c) If a person begins a proceeding to quash under | ||
Subsection (a) with respect to any subpoena or commission issued | ||
under Section 74.7021, before the expiration of the period for | ||
beginning the proceeding prescribed by Subsection (a), the person | ||
shall mail by registered or certified mail a copy of the petition to | ||
the recipient of the subpoena or commission and to the comptroller. | ||
SECTION 2. This Act does not relieve a holder of any duty or | ||
obligation that arose before the effective date of this Act to | ||
report or deliver property or to comply with an examination of | ||
records authorized under Section 74.702, Property Code. A holder | ||
who did not comply with the law in effect before the effective date | ||
of this Act remains subject to the applicable provisions for | ||
collection, enforcement, and penalties that existed on that date, | ||
and those provisions continue in effect for that purpose. On the | ||
effective date of this Act the comptroller may exercise the | ||
authority granted under this Act to issue and seek enforcement of | ||
administrative subpoenas and commissions related to unclaimed | ||
property examinations in progress as well as those initiated on or | ||
after the effective date of this Act. | ||
SECTION 3. This Act takes effect immediately if it receives | ||
a vote of two-thirds of all the members elected to each house, as | ||
provided by Section 39, Article III, Texas Constitution. If this | ||
Act does not receive the vote necessary for immediate effect, this | ||
Act takes effect September 1, 2017. |