CHAPTER 59. MISCELLANEOUS PROVISIONS
FINANCE CODE
TITLE 3. FINANCIAL INSTITUTIONS AND BUSINESSES
SUBTITLE A. BANKS
CHAPTER 59. MISCELLANEOUS PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 59.001. DEFINITIONS. In this subchapter:
(1) "Civil action" means a civil proceeding pending in a
tribunal. The term does not include an examination or enforcement
proceeding initiated by:
(A) a governmental agency with primary regulatory jurisdiction
over a financial institution in possession of a compliance review
document;
(B) the Federal Deposit Insurance Corporation or its successor;
or
(C) the board of governors of the Federal Reserve System or its
successor.
(2) "Claim against a customer" means a writ of attachment, writ
of garnishment, notice of freeze, notice of levy, notice of child
support lien, notice of seizure, notice of receivership,
restraining order, injunction or other instrument served on or
delivered to a financial institution and purporting to assert,
establish, or perfect any interest in or claim against an
account, extension of credit, or product of the financial
institution held or established by the financial institution in
the name of the customer or for the benefit of the customer, or
in the name of the financial institution as the fiduciary, agent,
or custodian or in another representative capacity for the
customer. The term does not include citation or other process in
a civil suit in which the financial institution is made a
defendant and against which claims for affirmative relief are
asserted, even though the subject matter of the suit is an
account, extension of credit, or product of the financial
institution held or established by the financial institution in
the name of a customer or in the name of the financial
institution as the fiduciary, agent, or custodian or in another
representative capacity for the customer.
(3) "Compliance review document" means a document prepared by or
for a compliance review committee acting pursuant to Section
59.009.
(4) "Customer" means a person who uses, purchases, or obtains an
account, extension of credit, or product of a financial
institution or for whom a financial institution acts as a
fiduciary, agent, or custodian or in another representative
capacity.
(5) "Financial institution" has the meaning assigned by Section
201.101, except that the term does not include a financial
institution organized under the laws of another state or
organized under federal law with its main office in another state
that does not maintain a branch or other office in this state.
(6) "Out-of-state financial institution" means a financial
institution, organized under the laws of another state or
organized under federal law with its main office in another
state, that has a branch or other office in this state.
(7) "Record" means financial or other information of a customer
maintained by a financial institution.
(8) "Record request" means a valid and enforceable subpoena,
request for production, or other instrument issued under
authority of a tribunal that compels production of a customer
record.
(9) "Texas financial institution" means a financial institution
organized under the laws of this state or organized under federal
law with its main office in this state.
(10) "Tribunal" means a court or other adjudicatory tribunal
with jurisdiction to issue a request for records, including a
government agency exercising adjudicatory functions and an
alternative dispute resolution mechanism, voluntary or required,
under which a party may compel the production of records.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999.
Sec. 59.002. SLANDER OR LIBEL OF BANK. (a) A person commits an
offense if the person:
(1) knowingly makes, circulates, or transmits to another person
an untrue statement that is derogatory to the financial condition
of a bank located in this state; or
(2) with intent to injure a bank located in this state,
counsels, aids, procures, or induces another person to knowingly
make, circulate, or transmit to another person an untrue
statement that is derogatory to the financial condition of any
bank located in this state.
(b) An offense under this section is a state jail felony.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999.
Sec. 59.003. AUTHORITY OF NOTARY PUBLIC. A notary public is not
disqualified from taking an acknowledgment or proof of a written
instrument as provided by Section 406.016, Government Code,
solely because of the person's ownership of stock or a
participation interest in or employment by a financial
institution that is an interested party to the underlying
transaction.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999.
Sec. 59.004. SUCCESSION OF TRUST POWERS. (a) If, at the time
of a merger, reorganization, conversion, sale of substantially
all of its assets under Chapter 32 or other applicable law, or
sale of substantially all of its trust accounts and related
activities at a separate branch or other office, a reorganizing
or selling financial institution is acting as trustee, guardian,
executor, or administrator, or in another fiduciary capacity, a
successor or purchasing financial institution with sufficient
fiduciary authority may continue the office, trust, or fiduciary
relationship:
(1) without the necessity of judicial action or action by the
creator of the office, trust, or fiduciary relationship; and
(2) without regard to whether the successor or purchasing
financial institution meets qualification requirements specified
in an instrument creating the office, trust, or fiduciary
relationship other than a requirement related to geographic
locale of account administration, including requirements as to
jurisdiction of incorporation, location of principal office, or
type of financial institution.
(b) The successor or purchasing financial institution may
perform all the duties and exercise all the powers connected with
or incidental to the fiduciary relationship in the same manner as
if the successor or purchasing financial institution had been
originally designated as the fiduciary.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999.
Sec. 59.005. AGENCY ACTIVITIES. (a) A financial institution
may receive deposits, renew time deposits, close loans, service
loans, receive payments on loans and other obligations, and
perform other services as an agent for another financial
institution under a written agency agreement.
(b) A financial institution may not under an agency agreement:
(1) conduct an activity as agent that it would be prohibited
from conducting as a principal under applicable state or federal
law; or
(2) have an agent conduct an activity that the bank as principal
would be prohibited from conducting under applicable state or
federal law.
(c) The banking commissioner may order a state bank or another
financial institution subject to the banking commissioner's
enforcement powers to cease acting as an agent or principal under
an agency agreement in a manner that the banking commissioner
finds to be inconsistent with safe and sound banking practices or
governing law.
(d) Notwithstanding another law, a financial institution acting
as an agent for another financial institution in accordance with
this section is not considered to be a branch of the institution
acting as principal.
(e) This section does not affect:
(1) authority under another law for a financial institution to
act as an agent on behalf of another person or to act as a
principal in employing another person as agent; or
(2) whether an agent's activities on behalf of a financial
institution under another law would cause the agent to be
considered a branch of the financial institution.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999; Acts 2001, 77th Leg., ch. 528, Sec. 14, eff. Sept. 1,
2001.
Sec. 59.006. DISCOVERY OF CUSTOMER RECORDS. (a) This section
provides the exclusive method for compelled discovery of a record
of a financial institution relating to one or more customers but
does not create a right of privacy in a record. This section does
not apply to and does not require or authorize a financial
institution to give a customer notice of:
(1) a demand or inquiry from a state or federal government
agency authorized by law to conduct an examination of the
financial institution;
(2) a record request from a state or federal government agency
or instrumentality under statutory or administrative authority
that provides for, or is accompanied by, a specific mechanism for
discovery and protection of a customer record of a financial
institution, including a record request from a federal agency
subject to the Right to Financial Privacy Act of 1978 (12 U.S.C.
Section 3401 et seq.), as amended, or from the Internal Revenue
Service under Section 1205, Internal Revenue Code of 1986;
(3) a record request from or report to a government agency
arising out of the investigation or prosecution of a criminal
offense;
(4) a record request in connection with a garnishment proceeding
in which the financial institution is garnishee and the customer
is debtor;
(5) a record request by a duly appointed receiver for the
customer;
(6) an investigative demand or inquiry from a state legislative
investigating committee;
(7) an investigative demand or inquiry from the attorney general
of this state as authorized by law other than the procedural law
governing discovery in civil cases; or
(8) the voluntary use or disclosure of a record by a financial
institution subject to other applicable state or federal law.
(b) A financial institution shall produce a record in response
to a record request only if:
(1) it is served with the record request not later than the 24th
day before the date that compliance with the record request is
required;
(2) before the financial institution complies with the record
request the requesting party pays the financial institution's
reasonable costs of complying with the record request, including
costs of reproduction, postage, research, delivery, and
attorney's fees, or posts a cost bond in an amount estimated by
the financial institution to cover those costs; and
(3) if the customer is not a party to the proceeding in which
the request was issued, the requesting party complies with
Subsections (c) and (d) and:
(A) the financial institution receives the customer's written
consent to release the record after a request under Subsection
(c)(3); or
(B) the tribunal takes further action based on action initiated
by the requesting party under Subsection (d).
(c) If the affected customer is not a party to the proceeding in
which the record request was issued, in addition to serving the
financial institution with a record request, the requesting party
shall:
(1) give notice stating the rights of the customer under
Subsection (e) and a copy of the request to each affected
customer in the manner and within the time provided by Rule 21a,
Texas Rules of Civil Procedure;
(2) file a certificate of service indicating that the customer
has been mailed or served with the notice and a copy of the
record request as required by this subsection with the tribunal
and the financial institution; and
(3) request the customer's written consent authorizing the
financial institution to comply with the request.
(d) If the customer that is not a party to the proceeding does
not execute the written consent requested under Subsection (c)(3)
on or before the date that compliance with the request is
required, the requesting party may by written motion seek an in
camera inspection of the requested record as its sole means of
obtaining access to the requested record. In response to a motion
for in camera inspection, the tribunal may inspect the requested
record to determine its relevance to the matter before the
tribunal. The tribunal may order redaction of portions of the
records that the tribunal determines should not be produced and
shall enter a protective order preventing the record that it
orders produced from being:
(1) disclosed to a person who is not a party to the proceeding
before the tribunal; and
(2) used by a person for any purpose other than resolving the
dispute before the tribunal.
(e) A customer that is a party to the proceeding bears the
burden of preventing or limiting the financial institution's
compliance with a record request subject to this section by
seeking an appropriate remedy, including filing a motion to quash
the record request or a motion for a protective order. Any motion
filed shall be served on the financial institution and the
requesting party before the date that compliance with the request
is required. A financial institution is not liable to its
customer or another person for disclosure of a record in
compliance with this section.
(f) A financial institution may not be required to produce a
record under this section before the later of:
(1) the 24th day after the date of receipt of the record request
as provided by Subsection (b)(1);
(2) the 15th day after the date of receipt of a customer consent
to disclose a record as provided by Subsection (b)(3); or
(3) the 15th day after the date a court orders production of a
record after an in camera inspection of a requested record as
provided by Subsection (d).
(g) An order to quash or for protection or other remedy entered
or denied by the tribunal under Subsection (d) or (e) is not a
final order and an interlocutory appeal may not be taken.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999; Acts 2001, 77th Leg., ch. 528, Sec. 15, eff. Sept. 1,
2001.
Sec. 59.007. ATTACHMENT, INJUNCTION, EXECUTION, OR GARNISHMENT.
(a) An attachment, injunction, execution, or writ of garnishment
may not be issued against or served on a financial institution
that has its principal office or a branch in this state to
collect a money judgment or secure a prospective money judgment
against the financial institution before the judgment is final
and all appeals have been foreclosed by law.
(b) An attachment, injunction, execution, or writ of garnishment
issued to or served on a financial institution for the purpose of
collecting a money judgment or securing a prospective money
judgment against a customer of the financial institution is
governed by Section 59.008 and not this section.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept.
1, 1999.
Sec. 59.008. CLAIMS AGAINST CUSTOMERS OF FINANCIAL INSTITUTIONS.
(a) A claim against a customer of a financial institution shall
be delivered or served as otherwise required or permitted by law
at the address designated as the address of the registered agent
of the financial institution in a registration filed with the
secretary of state pursuant to Section 201.102, with respect to
an out-of-state financial institution, or Section 201.103, with
respect to a Texas financial institution.
(b) If a financial institution files a registration statement
with the secretary of state pursuant to Section 201.102, with
respect to an out-of-state financial institution, or Section
201.103, with respect to a Texas financial institution, a claim
against a customer of the financial institution is not effective
as to the financial institution if the claim is served or
delivered to an address other than that designated by the
financial institution in the registration as the address of the
financial institution's registered agent.
(c) The customer bears the burden of preventing or limiting a
financial institution's compliance with or response to a claim
subject to this section by seeking an appropriate remedy,
including a restraining order, injunction, protective order, or
other remedy, to prevent or suspend the financial institution's
response to a claim against the customer.
(d) A financial institution that does not file a registration
with the secretary of state pursuant to Section 201.102, with
respect to an out-of-state financial institution, or Section
201.103, with respect to a Texas financial institution, is
subject to service or delivery of all claims against customers of
the financial institution as otherwise provided by law.
Added by Acts 1999, 76th Leg., ch. 344, Sec. 2.016, eff. Sept. 1,
1999.
Sec. 59.009. COMPLIANCE REVIEW COMMITTEE. (a) A financial
institution or an affiliate of a financial institution, including
its holding company, may establish a compliance review committee
to test, review, or evaluate the financial institution's conduct,
transactions, or potential transactions for the purpose of
monitoring and improving or enforcing compliance with:
(1) a statutory or regulatory requirement;
(2) financial reporting to a governmental agency;
(3) the policies and procedures of the financial institution or
its affiliates; or
(4) safe, sound, and fair lending practices.
(b) Except as provided by Subsection (c):
(1) a compliance review document is confidential and is not
discoverable or admissible in evidence in a civil action;
(2) an individual serving on a compliance review committee or
acting under the direction of a compliance review committee may
not be required to testify in a civil action as to:
(A) the contents or conclusions of a compliance review document;
or
(B) an action taken or discussions conducted by or for a
compliance review committee; and
(3) a compliance review document or an action taken or
discussion conducted by or for a compliance review committee that
is disclosed to a governmental agency remains confidential and is
not discoverable or admissible in a civil action.
(c) Subsection (b)(2) does not apply to an individual who has
management responsibility for the operations, records, employees,
or activities being examined or evaluated by the compliance
review committee.
(d) This section does not limit the discovery or admissibility
in a civil action of a document that is not a compliance review
document.
Renumbered from Sec. 59.007 and amended by Acts 1999, 76th Leg.,
ch. 344, Sec. 2.016, eff. Sept. 1, 1999.
Sec. 59.010. CONFIDENTIALITY OF ADMINISTRATIVE SUBPOENA. (a)
Except to the extent disclosure is necessary to locate and
produce responsive records, an administrative subpoena that meets
the requirements of Subsection (b) and is served on a financial
institution may provide that the financial institution to whom
the subpoena is directed may not:
(1) disclose that the subpoena has been issued;
(2) identify or describe any records requested in the subpoena;
or
(3) disclose whether records have been furnished in response to
the subpoena.
(b) The government agency issuing the subpoena may prohibit the
disclosure of information described in Subsection (a) only if the
agency finds, and the subpoena states the agency's finding that:
(1) the records relate to an ongoing criminal investigation by
the agency; and
(2) the disclosure could significantly impede or jeopardize the
investigation.
(c) For purposes of this section, "administrative subpoena"
means a valid and enforceable subpoena requesting customer
records, issued under the laws of this state by a government
agency exercising investigatory or adjudicative functions with
respect to a matter within the agency's jurisdiction.
Added by Acts 2001, 77th Leg., ch. 528, Sec. 16, eff. Sept. 1,
2001.
Sec. 59.011. LENDER LIABILITY FOR CONSTRUCTION. (a) For
purposes of Chapter 27, Property Code, and Title 16, Property
Code, a federally insured financial institution regulated under
this code is not a builder.
(b) A lender regulated by this code that forecloses on or
otherwise acquires a home through the foreclosure process or
other legal means when the loan is in default is not liable to a
subsequent purchaser for any construction defects of which the
lender had no knowledge that were created prior to the
acquisition of the home by the lender.
(c) A builder hired by a lender to complete the construction of
a foreclosed home is not liable for any construction defects of
which the builder had no knowledge that existed prior to the
acquisition of the home by the lender, but the builder is subject
to Chapter 27, Property Code, and Title 16, Property Code, for
work performed for the lender subsequent to the acquisition of
the home by the lender.
Added by Acts 2005, 79th Leg., Ch.
1018, Sec. 5.01, eff. September 1, 2005.
SUBCHAPTER B. SAFE DEPOSIT BOXES
Sec. 59.101. DEFINITION. In this subchapter, "safe deposit
company" means a person who maintains and rents safe deposit
boxes.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.102. AUTHORITY TO ACT AS SAFE DEPOSIT COMPANY. Any
person may be a safe deposit company.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.103. RELATIONSHIP OF SAFE DEPOSIT COMPANY AND RENTER.
In a safe deposit transaction the relationship of the safe
deposit company and the renter is that of lessor and lessee and
landlord and tenant, and the rights and liabilities of the safe
deposit company are governed accordingly in the absence of a
contract or statute to the contrary. The lessee is considered for
all purposes to be in possession of the box and its contents.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.104. DELIVERY OF NOTICE. A notice required by this
subchapter to be given to a lessee of a safe deposit box must be
in writing and personally delivered or sent by registered or
certified mail, return receipt requested, to each lessee at the
most recent address of the person according to the records of the
safe deposit company.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.105. EFFECT OF SUBCHAPTER ON OTHER LAW. This
subchapter does not affect Sections 36B-36F, Texas Probate Code,
or another statute of this state governing safe deposit boxes.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.106. ACCESS BY MORE THAN ONE PERSON. (a) If a safe
deposit box is leased in the name of two or more persons jointly
or if a person other than the lessee is designated in the lease
agreement as having a right of access to the box, each of those
persons is entitled to have access to the box and to remove its
contents in the absence of a contract to the contrary. This right
of access and removal is not affected by the death or incapacity
of another person who is a lessee or otherwise entitled to have
access to the box.
(b) A safe deposit company is not responsible for damage arising
from access to a safe deposit box or removal of any of its
contents by a person with a right of access to the box.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.107. NONEMERGENCY OPENING AND RELOCATION. (a) A safe
deposit company may not relocate a safe deposit box rented for a
term of at least six months if the box rental is not delinquent
or open a safe deposit box to relocate its contents to another
safe deposit box or other location except:
(1) in the presence of the lessee;
(2) with the lessee's written authorization; or
(3) as otherwise provided by this section or Section 59.108.
(b) A safe deposit box may not be relocated under this section
unless the storage conditions at the new location are at least as
secure as the conditions at the original box location.
(c) Not later than the 30th day before the scheduled date of a
nonemergency relocation, the safe deposit company shall give
notice of the relocation to each lessee of the safe deposit box.
The notice must state the scheduled date and time of the
relocation and whether the box will be opened during the
relocation.
(d) A lessee may personally supervise the relocation or
authorize the relocation in writing if notice is given to each
lessee.
(e) If during the relocation the box is opened and a lessee does
not personally supervise the relocation or has not authorized the
relocation in writing, two employees, at least one of whom is an
officer or manager of the safe deposit company and at least one
of whom is a notary public, shall inventory the contents of the
box in detail. The safe deposit company shall notify each lessee
of the new box number or location not later than the 30th day
after the date of the relocation and shall include a signed and
notarized copy of the inventory report. The cost of a certified
mailing other than the first notice sent in connection with each
relocation may be treated as box rental due at the expiration of
the rental term.
(f) This section does not apply to a relocation of a safe
deposit box within the same building.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 62, Sec. 7.30, eff. Sept. 1,
1999.
Sec. 59.108. EMERGENCY OPENING AND RELOCATION. (a) A safe
deposit company may relocate a safe deposit box or open the box
to relocate its contents to another box or location without
complying with Sections 59.107(a)-(d) if the security of the
original box is threatened or destroyed by natural disaster,
including tornado, flood, fire, or other unforeseeable
circumstances beyond the control of the safe deposit company.
(b) The safe deposit company shall follow the procedure provided
by Section 59.107(e), except that the notice of the new box
number or location must be given not later than the 90th day
after the date of a relocation under this section.
(c) This section does not apply to a relocation of a safe
deposit box within the same building.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.109. DELINQUENT RENTAL; LIEN; SALE OF CONTENTS. (a) If
the rental for a safe deposit box is delinquent for at least six
months, the safe deposit company may send notice to each lessee
that the company will remove the contents of the box if the rent
is not paid before the date specified in the notice, which may
not be earlier than the 60th day after the date the notice is
delivered or sent. If the rent is not paid before the date
specified in the notice, the safe deposit company may open the
box in the presence of two employees, at least one of whom is an
officer or manager of the safe deposit company and at least one
of whom is a notary public. The safe deposit company shall
inventory the contents of the box in detail as provided by the
comptroller's reporting instructions and place the contents of
the box in a sealed envelope or container bearing the name of the
lessee.
(b) The safe deposit company has a lien on the contents of the
box for an amount equal to the rental owed for the box and the
cost of opening the box. The safe deposit company may retain
possession of the contents. If the rental and the cost of opening
the box are not paid before the second anniversary of the date
the box was opened, the safe deposit company may sell all or part
of the contents at public auction in the manner and with the
notice prescribed by Section 51.002, Property Code, for the sale
of real property under a deed of trust. Any unsold contents of
the box and any excess proceeds from a sale of contents shall be
remitted to the comptroller as provided by Chapters 72-75,
Property Code.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.110. ROUTING NUMBER ON KEY. (a) A depository
institution that rents or permits access to a safe deposit box
shall imprint the depository institution's routing number on each
key to the box or on a tag attached to the key.
(b) If a depository institution believes that the routing number
imprinted on a key, or on a tag attached to a key, used to open a
safe deposit box has been altered or defaced so that the correct
routing number is illegible, the depository institution shall
notify the Department of Public Safety of the State of Texas, on
a form designed by the banking commissioner, not later than the
10th day after the date the key is used to open the box.
(c) This section does not require a depository institution to
inspect the routing number imprinted on a key or an attached tag
to determine whether the number has been altered or defaced. A
depository institution that has imprinted a key to a safe deposit
box or a tag attached to the key as provided by this section and
that follows applicable law and the depository institution's
established security procedures in permitting access to the box
is not liable for any damage arising because of access to or
removal of the contents of the box.
(d) Subsection (a) does not apply to a key issued under a lease
in effect on September 1, 1992, until the date the term of that
lease expires, without regard to any extension of the lease term.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
SUBCHAPTER C. ELECTRONIC TERMINALS
Sec. 59.201. ELECTRONIC TERMINALS AUTHORIZED; SHARING OF
ELECTRONIC TERMINAL. (a) A person may install, maintain, and
operate one or more electronic terminals at any location for the
convenience of customers of financial institutions.
(b) Financial institutions may agree in writing to share in the
use of an electronic terminal on a reasonable, nondiscriminatory
basis and on the condition that a financial institution using an
electronic terminal may be required to meet necessary and
reasonable technical standards and to pay charges for the use of
the electronic terminal. The standards or charges imposed must be
reasonable, fair, equitable, and nondiscriminatory among the
financial institutions. Any charges imposed:
(1) may not exceed an equitable proportion of the cost of
establishing the electronic terminal, including provisions for
amortization of development costs and capital expenditures over a
reasonable period, and the cost of operation and maintenance of
the electronic terminal, plus a reasonable return on those costs;
and
(2) must be related to the services provided to the financial
institution or its customers.
(c) This section does not apply to:
(1) an electronic terminal located at the domicile or home
office or a branch of a financial institution; or
(2) the use by a person of an electronic terminal, regardless of
location, solely to withdraw cash, make account balance
inquiries, or make transfers between the person's accounts in the
same financial institution.
(d) In this section, the term "financial institution" has the
meaning assigned by Section 201.101.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 356, Sec. 1, eff. Aug. 30,
1999; Acts 1999, 76th Leg., ch. 344, Sec. 2.017, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 412, Sec. 2.16, eff. Sept. 1,
2001.
Sec. 59.202. USER FEE FOR SHARED ELECTRONIC TERMINAL. (a) The
owner of an electronic terminal that is located in this state and
that is connected to a shared network may impose a fee for the
use of that terminal if imposition of the fee is disclosed at a
time and in a manner that allows a user to avoid the transaction
without incurring the transaction fee.
(b) An agreement to share an electronic terminal may not:
(1) limit the right of the owner of an electronic terminal to
charge a fee described by Subsection (a) as allowed by the law of
this state or the United States;
(2) require the owner to limit or waive its rights or
obligations under this section; or
(3) otherwise discriminate in any manner against the owner as a
result of the owner's charging of a fee authorized under this
section.
(c) In this section:
(1) "Electronic fund transfer" means any transfer of money,
other than a transaction originated by check, draft, or similar
paper instrument, that is initiated through an electronic
terminal and orders, instructs, or authorizes a financial
institution to debit or credit an account. The term includes a
point-of-sale transfer, an unmanned teller machine transaction,
and a cash dispensing machine transaction.
(2) "Electronic terminal" means an electronic device, other than
a telephone, through which a consumer may initiate an electronic
fund transfer. The term includes a point-of-sale terminal, an
unmanned teller machine, and a cash dispensing machine.
(3) "Financial institution" has the meaning assigned by Section
201.101.
(4) "Shared network" means an electronic information
communication and processing facility used by two or more owners
of electronic terminals to receive, transmit, or retransmit
electronic impulses or other electronic indicia of transactions,
originating at electronic terminals, to financial institutions or
to other transmission facilities for the purpose of:
(A) the withdrawal by a customer of money from the customer's
account, including a withdrawal under a line of credit previously
authorized by a financial institution for the customer;
(B) the deposit of money by a customer in the customer's account
with a financial institution;
(C) the transfer of money by a customer between one or more
accounts maintained by the customer with a financial institution,
including the application of money against an indebtedness of the
customer to the financial institution; or
(D) a request for information by a customer concerning the
balance of the customer's account with a financial institution.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.018, eff. Sept.
1, 1999.
SUBCHAPTER D. SAFETY AT UNMANNED TELLER MACHINES
Sec. 59.301. DEFINITIONS. In this subchapter:
(1) "Access area" means a paved walkway or sidewalk that is
within 50 feet of an unmanned teller machine. The term does not
include a public right-of-way or any structure, sidewalk,
facility, or appurtenance incidental to the right-of-way.
(2) "Access device" has the meaning assigned by Regulation E (12
C.F.R. Section 205.2), as amended, adopted under the Electronic
Fund Transfer Act (15 U.S.C. Section 1693 et seq.), as amended.
(3) "Candlefoot power" means the light intensity of candles on a
horizontal plane at 36 inches above ground level and five feet in
front of the area to be measured.
(4) "Control" means the authority to determine how, when, and by
whom an access area or defined parking area may be used,
maintained, lighted, and landscaped.
(5) "Customer" means an individual to whom an access device is
issued for personal, family, or household use.
(6) "Defined parking area" means the portion of a parking area
open for unmanned teller machine customer parking that is
contiguous to an access area, is regularly, principally, and
lawfully used during the period beginning 30 minutes after sunset
and ending 30 minutes before sunrise for parking by customers
using the machine, and is owned or leased by the owner or
operator of the machine or owned or controlled by a person
leasing the machine site to the owner or operator of the machine.
The term does not include:
(A) a parking area that is physically closed or on which one or
more conspicuous signs indicate that the area is closed; or
(B) a level of a multiple-level parking area other than the
level considered by the operator of the unmanned teller machine
to be the most directly accessible to a customer.
(7) "Financial institution" has the meaning assigned by Section
201.101.
(8) "Operator" means the person primarily responsible for the
operation of an unmanned teller machine.
(9) "Owner" means a person having the right to determine which
financial institutions are permitted to use or participate in the
use of an unmanned teller machine.
(10) "Unmanned teller machine" means a machine, other than a
telephone, capable of being operated solely by a customer to
communicate to a financial institution:
(A) a request to withdraw money from the customer's account
directly or under a line of credit previously authorized by the
financial institution for the customer;
(B) an instruction to deposit money in the customer's account
with the financial institution;
(C) an instruction to transfer money between one or more
accounts maintained by the customer with the financial
institution;
(D) an instruction to apply money against an indebtedness of the
customer to the financial institution; or
(E) a request for information concerning the balance of the
account of the customer with the financial institution.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by Acts 1999, 76th Leg., ch. 344, Sec. 2.019, eff. Sept.
1, 1999.
Sec. 59.302. EXCEPTION FOR CERTAIN UNMANNED TELLER MACHINES.
This subchapter does not apply to an unmanned teller machine:
(1) by which:
(A) a customer of a financial institution can authorize and
effect the electronic transfer of money from the customer's
account at the financial institution to a merchant's account at a
financial institution in the county or municipality in which the
terminal is located to obtain cash or to purchase, rent, or pay
for goods or services; and
(B) the merchant can ascertain that the transaction has been
completed and the money has been or will be transferred to the
merchant's account at the merchant's financial institution in the
county or municipality in which the terminal is located; or
(2) located:
(A) inside a building:
(i) unless the building is a freestanding installation existing
solely to provide an enclosure for the machine; or
(ii) except to the extent a transaction can be conducted from
outside the building; or
(B) in an area not controlled by the owner or operator of the
machine.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.303. APPLICABILITY TO CERTAIN PERSONS WHO ARE NOT OWNERS
OR OPERATORS. (a) A person is not an owner or operator solely
because the person's primary function is to provide for the
exchange, transfer, or dissemination of electronic fund transfer
data.
(b) A person whose primary function is to provide for the
exchange, transfer, or dissemination of electronic fund transfer
data and who is not an owner or operator is not liable to a
customer or user of an unmanned teller machine for a claim
arising out of or in connection with a use or attempted use of
the machine.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.304. CONSTRUCTION OF SUBCHAPTER. (a) This subchapter
does not require the relocation or modification of an unmanned
teller machine on the occurrence of a particular event or
circumstance.
(b) A violation of this subchapter or a rule adopted under this
subchapter is not negligence per se. Substantial compliance with
this subchapter and each rule adopted under this subchapter is
prima facie evidence that a person has provided adequate safety
protection measures relating to an unmanned teller machine under
this subchapter.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.305. LIGHTING REQUIRED. During the period beginning 30
minutes after sunset and ending 30 minutes before sunrise,
lighting shall be provided for:
(1) an unmanned teller machine;
(2) the machine's access area and defined parking area; and
(3) the exterior of the machine's enclosure, if the machine is
located in an enclosure.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.306. PERSONS REQUIRED TO PROVIDE LIGHTING. (a) Except
as provided by Subsection (b), the owner or operator shall
provide the lighting required by this subchapter.
(b) A person who leases the site where an unmanned teller
machine is located shall provide the lighting required by this
subchapter if the person controls the access area or defined
parking area for the machine and the owner or operator does not
control the access area or defined parking area.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.307. STANDARDS FOR LIGHTING. The lighting must be at
least:
(1) 10 candlefoot power at the face of the unmanned teller
machine and extending in an unobstructed direction outward five
feet;
(2) two candlefoot power within 50 feet from any unobstructed
direction from the face of the machine, except as provided by
Subdivision (3);
(3) if the machine is located within 10 feet of the corner of a
building and is generally accessible from the adjacent side, two
candlefoot power along the first 40 unobstructed feet of the
adjacent side of the building; and
(4) two candlefoot power in the part of the defined parking area
within 60 feet of the unmanned teller machine.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.308. SAFETY EVALUATION. (a) An owner or operator shall
in good faith evaluate the safety of each unmanned teller machine
that the person owns or operates.
(b) In making the evaluation, the owner or operator shall
consider:
(1) the extent to which the lighting for the machine complies
with Section 59.307;
(2) the presence of obstructions, including landscaping and
vegetation, in the area of the machine and the access area and
defined parking area for the machine; and
(3) the incidence of violent crimes in the immediate
neighborhood of the machine as shown by local law enforcement
records and of which the owner or operator has actual knowledge.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.309. NOTICE OF SAFETY PRECAUTIONS. (a) An issuer of an
access device shall give the customer a notice of basic safety
precautions that the customer should follow while using an
unmanned teller machine.
(b) The issuer shall personally deliver or mail the notice to
each customer whose mailing address is in this state according to
records for the account to which the access device relates. If
the issuer furnishes an access device to more than one customer
on the same account, the issuer is required to furnish a notice
to only one of the customers.
(c) The issuer may furnish information under this section with
other disclosures related to the access device, including an
initial or periodic disclosure statement furnished under the
Electronic Fund Transfer Act (15 U.S.C. Section 1693 et seq.).
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Sec. 59.310. ENFORCEMENT AND RULES. (a) The finance commission
and the Credit Union Commission shall enforce this subchapter and
adopt rules to implement this subchapter.
(b) The rules must establish security requirements to be
implemented by a financial institution for the operation of an
unmanned teller machine. The rules may require the financial
institution to install and maintain security devices in addition
to those required by this subchapter to be operated in
conjunction with the machine for the protection of customers
using the machine, including:
(1) video surveillance equipment that is maintained in working
order and operated continuously during the hours of operation of
the machine; and
(2) adequate lighting around the premises that contain the
machine.
(b-1) The rules may provide for a system that enhances customer
security, taking into account emerging technologies, the
availability of networks to exchange information, and the
potential compliance costs for financial institutions and other
unmanned teller machine service providers.
(c) A financial institution that violates a rule adopted under
this section is subject to a civil penalty of not less than $50
or more than $1,000 for each day of violation and each act of
violation.
Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch.
692, Sec. 1, eff. June 15, 2007.