Bill Text: TX SB805 | 2013-2014 | 83rd Legislature | Engrossed
Bill Title: Relating to the regulation of banks, trust companies, and bank holding companies.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2013-04-16 - Referred to Investments & Financial Services [SB805 Detail]
Download: Texas-2013-SB805-Engrossed.html
By: Carona | S.B. No. 805 |
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relating to the regulation of banks, trust companies, and bank | ||
holding companies. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Subsection (c), Section 11.107, Finance Code, is | ||
amended to read as follows: | ||
(c) The presiding officer may: | ||
(1) adopt rules and procedures as the presiding | ||
officer considers necessary for the orderly operation of the | ||
finance commission and for communication among the finance | ||
commission, the Texas Department of Banking [ |
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Department of Savings and Mortgage Lending, and the Office of | ||
Consumer Credit Commissioner; | ||
(2) adopt internal procedures governing the time and | ||
place of meetings, the type of notice for special public meetings, | ||
the manner in which public meetings are to be conducted, and other | ||
similar matters; and | ||
(3) appoint committees composed of finance commission | ||
members as the presiding officer considers necessary to carry out | ||
the commission's business. | ||
SECTION 2. Subdivision (8), Subsection (a), Section 31.002, | ||
Finance Code, is amended to read as follows: | ||
(8) "Branch" means a location of a bank, other than the | ||
bank's home office, at which the bank engages the public in the | ||
business of banking. The term does not include: | ||
(A) a drive-in facility located not more than | ||
2,000 feet from the nearest wall of the home office or an approved | ||
branch office of the bank; | ||
(B) a night depository; | ||
(C) an electronic terminal; | ||
(D) a deposit or loan production office as | ||
described by Section 32.204; | ||
(E) a state or federally licensed armored car | ||
service or other courier service transporting items for deposit or | ||
payment, unless: | ||
(i) the risk of loss of items in the custody | ||
of the service is borne by the employing bank; or | ||
(ii) the items in the custody of the service | ||
are considered to be in customer accounts at the employing bank or | ||
federally insured through the employing bank; | ||
(F) a location at which the bank offers | ||
exclusively nondepository financial products or services to the | ||
public, including financial, investment, or economic advisory | ||
services; | ||
(G) a location that combines permissible | ||
non-branch functions or facilities; or | ||
(H) another office or facility as provided by | ||
this subtitle or a rule adopted under this subtitle. | ||
SECTION 3. Section 31.105, Finance Code, is amended by | ||
amending Subsections (c) and (d) and adding Subsections (c-1) and | ||
(e) to read as follows: | ||
(c) The banking commissioner may: | ||
(1) administer oaths and examine persons under oath on | ||
any subject that the commissioner considers pertinent to the | ||
financial condition or the safety and soundness of the activities | ||
of a state bank; and | ||
(2) subpoena witnesses and require and compel by | ||
subpoena the production of documents not voluntarily produced. | ||
(c-1) If a person refuses to obey a subpoena, a district | ||
court of Travis County, on application by the banking commissioner, | ||
may issue an order requiring the person to appear before the | ||
commissioner and produce documents or give evidence regarding the | ||
matter under examination or investigation. | ||
(d) Disclosure of information to the banking commissioner | ||
pursuant to an examination request or a subpoena issued under this | ||
section does not constitute a waiver of or otherwise affect or | ||
diminish an evidentiary privilege to which the information is | ||
otherwise subject. A report of an examination under this section | ||
is confidential and may be disclosed only under the circumstances | ||
provided by this subtitle. | ||
(e) A subpoena issued to a financial institution under this | ||
section is not subject to Section 59.006. | ||
SECTION 4. Section 32.204, Finance Code, is amended to read | ||
as follows: | ||
Sec. 32.204. DEPOSIT OR LOAN PRODUCTION OFFICES. (a) A | ||
state bank may establish one or more deposit or loan production | ||
offices for the purpose of: | ||
(1) soliciting deposit accounts, applications for | ||
loans, or equivalent transactions; | ||
(2) [ |
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ministerial duties related to solicitations described by | ||
Subdivision (1); and | ||
(3) conducting other activities as permitted by rules | ||
adopted under this subtitle [ |
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(b) The bank shall notify the banking commissioner in | ||
writing of the location of and activities to be conducted at a | ||
proposed deposit or loan production office of the bank. The bank | ||
may establish the proposed office beginning on the 31st day after | ||
the date [ |
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receives the bank's notice unless [ |
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established on an earlier or later date. | ||
(c) The banking commissioner may extend the 30-day period | ||
prescribed by Subsection (b) on a determination that the bank's | ||
notice raises issues that require additional information or time | ||
for analysis. If the period is extended, [ |
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may establish the proposed deposit or [ |
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office only with the prior written approval of the banking | ||
commissioner. | ||
SECTION 5. Section 33.104, Finance Code, is amended to read | ||
as follows: | ||
Sec. 33.104. ADVISORY DIRECTOR. (a) An advisory director | ||
is not considered a director if the advisory director: | ||
(1) is not elected by the shareholders of the bank; | ||
(2) does not vote on matters before the board or a | ||
committee of the board; | ||
(3) is not counted for purposes of determining a | ||
quorum of the board or committee; and | ||
(4) provides solely general policy advice to the | ||
board. | ||
(b) A state bank may not disclose to an advisory director | ||
confidential information pertaining to the bank or the bank's | ||
customers unless: | ||
(1) the board adopts a resolution that designates the | ||
advisory director as a person who is officially connected to the | ||
bank and that describes the purpose for disclosure of the | ||
information, which must be a reasonable business purpose; and | ||
(2) the disclosure is made under a written | ||
confidentiality agreement between the bank and the advisory | ||
director. | ||
SECTION 6. Section 33.105, Finance Code, is amended to read | ||
as follows: | ||
Sec. 33.105. REQUIRED MONTHLY BOARD MEETING. (a) Except | ||
as provided by Subsection (b), the [ |
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hold at least one regular meeting each month. | ||
(b) On application by the board, the banking commissioner | ||
may grant the board approval to hold regular meetings on a less | ||
frequent basis than the period prescribed by Subsection (a). The | ||
commissioner may revoke or modify a prior approval granted under | ||
this subsection if the commissioner determines that more frequent | ||
regular meetings of the board are necessary to promote the safety | ||
and soundness of the bank. | ||
(c) At each regular meeting the board shall review and | ||
approve the minutes of the prior meeting and review the operations, | ||
activities, and financial condition of the bank. The board may | ||
designate a committee from among its members to perform those | ||
duties and approve or disapprove the committee's report at each | ||
regular meeting. Each action of the board must be recorded in its | ||
minutes. | ||
SECTION 7. Subsection (c), Section 34.003, Finance Code, is | ||
amended to read as follows: | ||
(c) A state bank shall dispose of real property subject to | ||
this section not later than[ |
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[ |
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property: | ||
(1) [ |
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provided by rules adopted under this subtitle; [ |
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(2) [ |
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(3) [ |
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ceases to be a bank facility as provided by Section 34.002(b). | ||
SECTION 8. Section 34.004, Finance Code, is amended to read | ||
as follows: | ||
Sec. 34.004. RETENTION OF NONPARTICIPATING ROYALTY | ||
[ |
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Section 34.003(a), a state bank may hold nonparticipating | ||
[ |
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(1) the state bank acquires the interest pursuant to | ||
Section 34.003(a)(3) or retains the interest in a sale of property | ||
acquired under that section; | ||
(2) the interest is nonparticipating due to the fact | ||
the interest: | ||
(A) is nonpossessory; | ||
(B) does not bear executive rights, the right of | ||
ingress and egress, the right to receive bonus payments, or the | ||
right to receive delay rentals; and | ||
(C) is accordingly not subject to expenses of | ||
exploration, development, production, operation, maintenance, or | ||
abandonment, or [ |
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extracting and marketing the minerals subject to the [ |
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interest; | ||
(3) the interest is reasonably valued on the books of | ||
the state bank for not more than a nominal amount, and the aggregate | ||
amount of earnings from such interests is separately disclosed in | ||
the annual financial statements of the state bank; | ||
(4) the state bank does not make any new investments | ||
relating to the [ |
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banking commissioner; and | ||
(5) the banking commissioner determines that the | ||
possession of such [ |
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the safety and soundness of the state bank. | ||
(b) The banking commissioner may order a state bank that | ||
holds nonparticipating [ |
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to divest such interests at any time if the banking commissioner | ||
determines that continued ownership of such interests is | ||
detrimental to the state bank. | ||
(c) Subject to compliance with this section, | ||
nonparticipating [ |
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considered to be real property for purposes of this subtitle. | ||
SECTION 9. Subsection (b), Section 35.003, Finance Code, is | ||
amended to read as follows: | ||
(b) If the banking commissioner has grounds for action under | ||
Subsection (a) and finds that a removal or prohibition order | ||
appears to be necessary and in the best interest of the public [ |
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banking commissioner may serve a proposed removal or prohibition | ||
order, as appropriate, on a person alleged to have committed or | ||
participated in the action. The proposed order must: | ||
(1) be delivered by personal delivery or by registered | ||
or certified mail, return receipt requested; | ||
(2) state with reasonable certainty the grounds for | ||
removal or prohibition; | ||
(3) state the effective date of the order, which may | ||
not be before the 21st day after the date the proposed order is | ||
delivered or mailed; and | ||
(4) state the duration of the order, including whether | ||
the duration of the order is perpetual. | ||
SECTION 10. Section 35.106, Finance Code, is amended to | ||
read as follows: | ||
Sec. 35.106. AUTHORITY OF SUPERVISOR. During a period of | ||
supervision, a bank, without the prior approval of the banking | ||
commissioner or the supervisor or as otherwise permitted or | ||
restricted by the order of supervision, may not: | ||
(1) dispose of, sell, transfer, convey, or encumber | ||
the bank's assets; | ||
(2) lend or invest the bank's money; | ||
(3) incur a debt, obligation, or liability; [ |
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(4) pay a cash dividend to the bank's shareholders; or | ||
(5) remove an executive officer or director, change | ||
the number of executive officers or directors, or have any other | ||
change in the position of executive officer or director. | ||
SECTION 11. Subsection (a), Section 181.002, Finance Code, | ||
is amended by adding Subdivision (47-a) to read as follows: | ||
(47-a) "Surplus" means the amount by which the assets | ||
of a state trust company exceed the company's liabilities, capital, | ||
and undivided profits. | ||
SECTION 12. Section 181.104, Finance Code, is amended by | ||
amending Subsections (d) and (f) and adding Subsections (f-1) and | ||
(g) to read as follows: | ||
(d) Disclosure of information to the banking commissioner | ||
pursuant to an examination request or a subpoena issued under this | ||
section does not constitute a waiver of or otherwise affect or | ||
diminish an evidentiary privilege to which the information is | ||
otherwise subject. A report of an examination under this section is | ||
confidential and may be disclosed only under the circumstances | ||
provided by this subtitle. | ||
(f) The banking commissioner may: | ||
(1) administer oaths and examine persons under oath on | ||
any subject that the banking commissioner considers pertinent to | ||
the financial condition or the safety and soundness of the | ||
activities of a state trust company; and | ||
(2) subpoena witnesses and require and compel by | ||
subpoena the production of documents not voluntarily produced. | ||
(f-1) If a person refuses to obey a subpoena, a district | ||
court of Travis County, on application by the banking commissioner, | ||
may issue an order requiring the person to appear before the | ||
commissioner and produce documents or give evidence regarding the | ||
matter under examination or investigation. | ||
(g) A subpoena issued to a financial institution under this | ||
section is not subject to Section 59.006. | ||
SECTION 13. Section 183.104, Finance Code, is amended to | ||
read as follows: | ||
Sec. 183.104. ADVISORY DIRECTOR OR ADVISORY MANAGER. | ||
(a) An advisory director or advisory manager is not considered to | ||
be a director if the advisory director or advisory manager: | ||
(1) is not elected by the shareholders or participants | ||
of the state trust company; | ||
(2) does not vote on matters before the board or a | ||
committee of the board; | ||
(3) is not counted for purposes of determining a | ||
quorum of the board or committee; and | ||
(4) provides solely general policy advice to the | ||
board. | ||
(b) A state trust company may not disclose to an advisory | ||
director or advisory manager confidential information pertaining | ||
to the state trust company or the company's clients unless: | ||
(1) the board adopts a resolution that designates the | ||
advisory director or advisory manager as a person who is officially | ||
connected to the trust company and that describes the purpose for | ||
disclosure of the information, which must be a reasonable business | ||
purpose; and | ||
(2) the disclosure is made under a written | ||
confidentiality agreement between the state trust company and the | ||
advisory director or advisory manager. | ||
SECTION 14. Subsections (a) and (c), Section 184.002, | ||
Finance Code, are amended to read as follows: | ||
(a) Without the prior written approval of the banking | ||
commissioner, a state trust company may not directly or indirectly | ||
invest an amount in excess of the company's [ |
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restricted capital in state trust company facilities, furniture, | ||
fixtures, and equipment. Except as otherwise provided by rules | ||
adopted under this subtitle, in computing the limitation provided | ||
by this subsection a state trust company: | ||
(1) shall include: | ||
(A) its direct investment in state trust company | ||
facilities; | ||
(B) an investment in equity or investment | ||
securities of a company holding title to a facility used by the | ||
state trust company for the purposes specified by Section 184.001; | ||
(C) a loan made by the state trust company to or | ||
on the security of equity or investment securities issued by a | ||
company holding title to a facility used by the state trust company; | ||
and | ||
(D) any indebtedness incurred on state trust | ||
company facilities by a company: | ||
(i) that holds title to the facility; | ||
(ii) that is an affiliate of the state trust | ||
company; and | ||
(iii) in which the state trust company is | ||
invested in the manner described by Paragraph (B) or (C); and | ||
(2) may exclude an amount included under Subdivisions | ||
(1)(B)-(D) to the extent any lease of a facility from the company | ||
holding title to the facility is capitalized on the books of the | ||
state trust company. | ||
(c) A state trust company shall dispose of any real property | ||
subject to Subsection (a) not later than the fifth anniversary of | ||
the date the real property: | ||
(1) was acquired, except as otherwise provided by | ||
rules adopted under this subtitle; | ||
(2) ceases to be used as a state trust company | ||
facility; or | ||
(3) ceases to be a [ |
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state trust company facility as provided by Subsection (b) | ||
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SECTION 15. Subsection (b), Section 185.003, Finance Code, | ||
is amended to read as follows: | ||
(b) If the banking commissioner has grounds for action under | ||
Subsection (a) and finds that a removal or prohibition order | ||
appears to be necessary and in the best interest of the public | ||
[ |
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a proposed removal or prohibition order, as appropriate, on an | ||
officer, employee, director, manager or managing participant, | ||
controlling shareholder or participant, or other person alleged to | ||
have committed or participated in the violation or other conduct | ||
described by Section 185.002(a). The order must: | ||
(1) be delivered by personal delivery or by registered | ||
or certified mail, return receipt requested; | ||
(2) state with reasonable certainty the grounds for | ||
removal or prohibition; | ||
(3) state the effective date of the order, which may | ||
not be before the 21st day after the date the proposed order is | ||
delivered or mailed; and | ||
(4) state the duration of the order, including whether | ||
the duration of the order is perpetual. | ||
SECTION 16. Section 185.106, Finance Code, is amended to | ||
read as follows: | ||
Sec. 185.106. DUTIES OF STATE TRUST COMPANY UNDER | ||
SUPERVISION. During a period of supervision, a state trust | ||
company, without the prior approval of the banking commissioner or | ||
the supervisor or as otherwise permitted or restricted by the order | ||
of supervision, may not: | ||
(1) dispose of, sell, transfer, convey, or encumber | ||
the state trust company's assets; | ||
(2) lend or invest the state trust company's funds; | ||
(3) incur a debt, obligation, or liability; | ||
(4) pay a cash dividend to the state trust company's | ||
shareholders or participants; [ |
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(5) solicit or accept any new client accounts; or | ||
(6) remove an executive officer or director, change | ||
the number of executive officers or directors, or have any other | ||
change in the position of executive officer or director. | ||
SECTION 17. Subsection (a), Section 187.103, Finance Code, | ||
is amended to read as follows: | ||
(a) An out-of-state trust company that does not operate a | ||
trust office in this state and that meets the requirements of this | ||
subchapter may acquire an existing trust institution in this state | ||
and after the acquisition operate and maintain the acquired | ||
institution as a trust office in this state, subject to Subchapter | ||
A, Chapter 183, or Subchapter A, Chapter 33, if applicable. [ |
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SECTION 18. Subsection (a), Section 187.105, Finance Code, | ||
is amended to read as follows: | ||
(a) A trust office of an out-of-state trust company may be | ||
acquired or established in this state under this subchapter if: | ||
(1) the out-of-state trust company confirms in writing | ||
to the banking commissioner that while it maintains a trust office | ||
in this state, it will comply with all applicable laws of this | ||
state; | ||
(2) the out-of-state trust company provides | ||
satisfactory evidence to the banking commissioner of compliance | ||
with Section 201.102 and the applicable requirements of its home | ||
state regulator for acquiring or establishing and maintaining the | ||
office; | ||
(3) all filing fees have been paid as required by law; | ||
and | ||
(4) the banking commissioner finds that: | ||
(A) applicable conditions of Section 187.102 or | ||
187.103 have been met; | ||
(B) if a state bank is being acquired, the | ||
applicable requirements of Subchapter A, Chapter 33[ |
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acquired, the applicable requirements of Subchapter A, Chapter 183 | ||
have been met; and | ||
(C) any conditions imposed by the banking | ||
commissioner pursuant to Subsection (b) have been satisfied. | ||
SECTION 19. Subdivision (7), Subsection (a), Section | ||
201.002, Finance Code, is amended to read as follows: | ||
(7) "Bank supervisory agency" means any of the | ||
following: | ||
(A) an agency of another state with primary | ||
responsibility for chartering and supervising banks; | ||
(B) the Office of the Comptroller of the | ||
Currency, the Federal Deposit Insurance Corporation, [ |
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of Governors of the Federal Reserve System, or the Bureau of | ||
Consumer Financial Protection, and any successor to these agencies; | ||
or | ||
(C) an agency of a country, including a colony, | ||
dependency, possession, or political subdivision of a country, | ||
other than the United States with primary responsibility for | ||
chartering and supervising banks. | ||
SECTION 20. Section 201.004, Finance Code, is amended by | ||
amending Subsection (a) and adding Subsection (d) to read as | ||
follows: | ||
(a) The laws of this state, including laws regarding | ||
community reinvestment, consumer protection, fair lending, and | ||
establishment of intrastate branches, apply to an interstate branch | ||
located in this state to the same extent the laws of this state | ||
would apply if the branch in this state were a branch of an | ||
out-of-state national bank [ |
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state, except to the extent otherwise provided under federal law. | ||
An out-of-state state bank that establishes an interstate branch in | ||
this state under this subtitle may conduct any activity at the | ||
branch in this state that is permissible under the laws of the | ||
bank's home state, to the extent the activity is permissible for a | ||
Texas state bank or for a branch of an out-of-state national bank in | ||
this state. | ||
(d) This subtitle does not limit or affect the authority of: | ||
(1) the home state regulator of a bank's home state to | ||
enforce any law applicable to a branch of an out-of-state state | ||
bank; | ||
(2) a law enforcement officer, a regulatory | ||
supervisor, other than the commissioner, or another official of | ||
this state to enforce the laws of this state applicable to a branch | ||
of an out-of-state state bank; or | ||
(3) this state to adopt, apply, or administer any tax | ||
or method of taxation to a bank, bank holding company, or foreign | ||
bank, or any affiliate of a bank, bank holding company, or foreign | ||
bank, to the extent that the tax or tax method is otherwise | ||
permissible by or under the United States Constitution or other | ||
federal law. | ||
SECTION 21. Section 201.005, Finance Code, is amended by | ||
adding Subsection (c) to read as follows: | ||
(c) A cooperative agreement entered into by the | ||
commissioner under this section does not limit the authority of a | ||
law enforcement officer, regulatory supervisor, or other official | ||
of this state who is not a party to the agreement to enforce the laws | ||
of this state applicable to a branch of an out-of-state state bank | ||
located in this state. | ||
SECTION 22. Subsection (b), Section 201.009, Finance Code, | ||
is amended to read as follows: | ||
(b) If the commissioner determines that an interstate | ||
branch maintained by an out-of-state state bank in this state is | ||
being operated in violation of a law of this state that is | ||
applicable to the branch under Section 24(j), Federal Deposit | ||
Insurance Act (12 U.S.C. Section 1831a(j)), including a law that | ||
governs community reinvestment, fair lending, or consumer | ||
protection [ |
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with written notice to the home state regulator and subject to the | ||
terms of any applicable cooperative agreement with the home state | ||
regulator, may take any enforcement action the commissioner would | ||
be empowered to take if the branch were a Texas state bank or state | ||
savings bank, as the case may be[ |
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An out-of-state state bank may appeal a final order or other | ||
decision of the commissioner under this subtitle as provided by | ||
Sections 31.202, 31.203, and 31.204, or as provided under Subtitle | ||
C with respect to a state savings bank. | ||
SECTION 23. Subsection (a), Section 203.002, Finance Code, | ||
is amended to read as follows: | ||
(a) An out-of-state bank may establish a de novo branch in | ||
this state if: | ||
(1) [ |
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[ |
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commissioner that as long as it maintains a branch in this state, it | ||
will comply with all applicable laws of this state; | ||
(2) [ |
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evidence to the commissioner of compliance with the applicable | ||
requirements of Section 201.102; and | ||
(3) [ |
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30th day after the date the commissioner receives notice of an | ||
application under Subsection (b), certifies to the responsible | ||
federal bank supervisory agency that the requirements of this | ||
subchapter have been met. | ||
SECTION 24. Subsection (a), Section 203.003, Finance Code, | ||
is amended to read as follows: | ||
(a) Subject to Section [ |
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one or more Texas banks may enter into an interstate merger | ||
transaction with one or more out-of-state banks under this chapter, | ||
and an out-of-state bank resulting from the transaction may | ||
maintain and operate the branches in this state of a Texas bank that | ||
participated in the transaction. An out-of-state bank that will be | ||
the resulting bank in the interstate merger transaction shall | ||
comply with Section 201.102. | ||
SECTION 25. Section 203.007, Finance Code, is amended to | ||
read as follows: | ||
Sec. 203.007. EXAMINATIONS[ |
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respect to an interstate branch maintained by an out-of-state state | ||
bank in this state, the [ |
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(1) with written notice to the home state regulator | ||
and subject to the terms of any applicable cooperative agreement | ||
with the home state regulator, may examine the branch for the | ||
purpose of determining whether the branch is in [ |
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applicable under Section 24(j), Federal Deposit Insurance Act (12 | ||
U.S.C. Section 1831a(j)), including laws governing community | ||
reinvestment, fair lending, and consumer protection; and | ||
(2) if expressly permitted under and subject to the | ||
terms of any cooperative agreement with the home state regulator, | ||
or if the bank has been determined to be in a troubled condition by | ||
the home state regulator or the bank's appropriate federal banking | ||
agency, may participate in the examination of the bank by the home | ||
state regulator to ascertain whether the activities of the branch | ||
in this state are being conducted in an unsafe or unsound manner | ||
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(b) For purposes of this section, a bank is considered to be | ||
in a troubled condition if the bank: | ||
(1) has a composite rating, as determined in the bank's | ||
most recent report of examination, of four or five under the Uniform | ||
Financial Institutions Ratings System; | ||
(2) is subject to a proceeding initiated by the | ||
Federal Deposit Insurance Corporation for termination or | ||
suspension of deposit insurance; or | ||
(3) is subject to a proceeding initiated by the home | ||
state regulator to: | ||
(A) vacate, revoke, or terminate the bank's | ||
charter; | ||
(B) liquidate the bank; or | ||
(C) appoint a receiver for the bank. [ |
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SECTION 26. Subsection (c), Section 201.009, Subsection | ||
(c), Section 203.003, and Section 203.005, Finance Code, are | ||
repealed. | ||
SECTION 27. 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, 2013. |