By: Kolkhorst S.B. No. 2173               A BILL TO BE ENTITLED   AN ACT   relating to the operation and administration of the Texas Bullion   Depository; depository agents; and to the appropriation of money   from the fees, charges, penalties, and other amounts related to the   depository and deposited to the general revenue fund for that   purpose.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 2116.001(9), Government Code, is amended   to read as follows:                (9)  "Depository agent" means a person licensed in   accordance with this chapter to serve as an agent on behalf of a   current or prospective [intermediary between the] depository   account holder [and a retail customer] in making a retail   transaction in precious metals bullion or specie.          SECTION 2.  Section 2116.002, Government Code, is amended by   amending Subsection (a) and adding Subsections (c)-(h) to read as   follows:          (a)  The Texas Bullion Depository is established as a program   [an agency of this state] in the office of the comptroller to   provide a bullion depository and services for the public benefit   relating to bullion, specie, and precious metals.          (c)  The comptroller may establish a special purpose   corporation or other legal entity, with all general corporate   powers incident to its operation as a corporate body, to operate the   depository for the public benefit and provide related services, as   provided by this chapter. The entity has all necessary and implied   powers to accomplish the purposes of the entity. The entity is   subject to regulation only as provided by this chapter.          (d)  The depository may adopt and amend articles of   incorporation, bylaws, resolutions, and other documents necessary   to carry out its purposes.          (e)  This state and the comptroller may not be held liable   for the depository or related activities of the depository. This   chapter may not be construed as creating financial or other   responsibilities to the state or to the comptroller. This state   does not pledge the full faith and credit of this state for the   benefit of the depository.          (f)  The depository may enter into one or more contracts with   a vendor to operate the depository or provide any of the   depository's services.          (g)  Notwithstanding Chapter 2113, Government Code, the   depository may enter into contracts and engage in marketing, the   sale of promotional items, advertising, and other activities to   promote the depository. The comptroller may use appropriated funds   to pay for activities of the depository authorized under this   section.          SECTION 3.  Section 2116.003, Government Code, is amended to   read as follows:          Sec. 2116.003.  DEPOSITORY ADMINISTRATION; ADMINISTRATOR.   (a) The depository is administered as a program [division] of the   office of the comptroller and under the direction and supervision   of a bullion depository administrator appointed by the comptroller   [with the advice and consent of the governor, lieutenant governor,   and senate].          (b)  The administrator shall:                (1)  administer, supervise, and direct the operations   and affairs of the depository and liaise with depository agents;   and                (2)  liaise with the comptroller and other divisions of   the office of the comptroller to ensure that each transaction with   the depository that involves state money, that involves an agency,   a political subdivision, or another instrumentality of this state,   or that involves a private person is planned, administered, and   executed in a manner to achieve the purposes of this chapter.          (c)  The administrator may appoint, subject to the approval   of the comptroller, a deputy administrator or other subordinate   officer or staff member as necessary and appropriate to the   efficient administration of the depository. The depository may   contract with the comptroller's office to provide staff support.          (d)  The administrator, the deputy administrator or another   subordinate officer, or a staff member of the depository is not   personally liable in the person's private capacity for any act   performed or for any contract or other obligation entered into or   undertaken in an official capacity in good faith and without intent   to defraud in connection with the administration, management, or   conduct of the depository, its business, or other related affairs.          SECTION 4.  The heading to Section 2116.009, Government   Code, is amended to read as follows:          Sec. 2116.009.  ACCOUNT BALANCES [CAUSE OF ACTION FOR DENIAL   OF DEPOSIT LIABILITY].          SECTION 5.  Section 2116.009, Government Code, is amended by   amending Subsection (b) and adding Subsections (b-1), (b-2), (b-3),   and (b-4) to read as follows:          (b)  The depository shall furnish depository account holders   with [depository's act of furnishing] an account statement or   passbook, whether in physical, digital, or electronic form [,   constitutes a denial of liability and the giving of such notice as   to any amount not shown on the statement or passbook].          (b-1)  The depository account holder is responsible for:                (1)  promptly examining each account statement   received from the depository; and                (2)  reporting any discrepancy in the account statement   to the depository not later than the 60th day after the depository   sent the account statement.          (b-2)  The depository may establish a process to resolve any   disputed depository account balance.          (b-3)  If the depository account holder fails to report any   account balance discrepancy reflected on the account balance   statement or passbook to the depository within 60 days of the date   the depository sent the statement or passbook, then:                (1)  the depository account holder will be deemed to   have accepted the account statement or passbook as accurate;                (2)  the depository account holder may not dispute the   account balance; and                (3)  the depository shall deem the depository account   statement or passbook as accurate and undisputed by the depository   account holder.          (b-4)  The comptroller may adopt rules to implement this   section.          SECTION 6.  Section 2116.010, Government Code, is amended to   read as follows:          Sec. 2116.010.  FEES; SERVICE CHARGES; PAYMENTS; PENALTIES.   (a) The comptroller [by rule] may establish fees, service charges,   and penalties to be charged a depository account holder for a   service or activity regarding a depository account, including a fee   for an overdraft, an insufficient fund check or draft, or a stop   payment order.          (b)  The comptroller may establish other charges and receive   payments in the course of depository operations and activities,   including from transactions and relationships authorized by   Section 2116.021.          (c)  The comptroller shall deposit revenue realized by the   depository under this section to the credit of the general revenue   fund.          (d)  Money credited to the general revenue fund under this   section may be appropriated to the comptroller to offset the costs   of implementation, administration, promotion, marketing,   advertising, and operation of the depository.          SECTION 7.  Section 2116.021, Government Code, is amended to   read as follows:          Sec. 2116.021.  TRANSACTIONS AND RELATIONSHIPS. The   depository may [shall] enter into transactions and relationships   with bullion banks, depositories, dealers, central banks, an IRS   approved bank or non-bank acting as custodian for Individual   Retirement Accounts, sovereign wealth funds, financial   institutions, international nongovernmental organizations,   intermediaries, and other persons, located inside or outside of   this state or inside or outside of the United States, as the   comptroller determines to be prudent and suitable to facilitate the   operations of the depository and to further the purposes of this   chapter.          SECTION 8.  Section 2116.023, Government Code, is amended by   amending Subsection (c) and adding Subsection (d) to read as   follows:          (c)  On receipt of notice of any transaction described by   Subsection (a), with respect to all or any portion of the balance of   a depository account, the depository shall suspend withdrawal   privileges associated with the balances of the depository account   until suitable substitute arrangements may be effected in   accordance with the representation of the depository by the   attorney general and rules of the comptroller to enable the   registered account holder to take delivery of the precious metals   represented by the account balances in question. A voluntary   transfer of a depository account balance or of a depository account   among depository account holders may continue to take place   unaffected by the suspension, and the depository shall recognize   the transfer to the full extent authorized by this chapter, the   representation of the depository by the attorney general, and rules   adopted under this chapter.          (d)  On receipt of notice of any transaction described by   Subsection (a), the depository shall refer the notice to the   attorney general for representation, and the attorney general shall   represent the depository in any action related to the notice.          SECTION 9.  Subchapter A, Chapter 2116, Government Code, is   amended by adding Sections 2116.027 and 2116.028 to read as   follows:          Sec. 2116.027.  CONFIDENTIALITY OF RECORDS. (a) Except as   otherwise provided by Section 2116.028 and this section, the   depository's records are subject to public inspection to the extent   authorized by Chapter 552.          (b)  The following information is confidential and is exempt   from disclosure under Chapter 552:                (1)  records and information related to the   depository's physical security, information security, or designed   to ensure the integrity and security of the depository including   without limitation access codes, passwords, signatures,   specifications, technical details, operating procedures,   locations, and financial information on expenditures for   depository security;                (2)  records relating to individual accounts or to   current or prospective depository account holders that are in the   custody of the depository or in the custody of a vendor performing   services related to the depository;                (3)  records related to setting depository fees,   service charges, penalties, or other charges or payments;                (4)  records related to establishing standards under   Sections 2116.005(c) and (d); and                (5)  operational or other information that would give   advantage to competitors or bidders.          (c)  Notwithstanding Subsection (b)(2), depository account   information may be disclosed:                (1)  to a depository account holder regarding the   depository account holder's account;                (2)  to a state or federal agency as necessary to   administer the program or as required by applicable law;                (3)  to a vendor providing services to the depository   or to a current or prospective depository account holder;                (4)  in response to a subpoena issued under applicable   law;                (5)  if compiled as collective information that does   not include any identifying information about a person; or                (6)  with the express written permission of a   depository account holder.          Sec. 2116.028.  INTELLECTUAL PROPERTY. (a) The depository   may:                (1)  apply for, register, secure, hold, and protect   under the laws of the United States or any state or nation:                      (A)  a patent for the invention, discovery, or   improvement of any process, machine, manufacture, or composition of   matter;                      (B)  a copyright for an original work of   authorship fixed in any tangible medium of expression, known or   later developed, from which it can be perceived, reproduced, or   otherwise communicated, either directly or with the aid of a   machine or device;                      (C)  a trademark, service mark, collective mark,   or certification mark for a word, name, symbol, device, or slogan   that the depository uses to identify and distinguish the   depository's goods and services from other goods and services; or                      (D)  other evidence of protection or exclusivity   issued for intellectual property;                (2)  contract with a person for the reproduction,   public performance, display, distribution, advertising, sale,   lease, marketing, licensing, sale, use, or other distribution of   the depository's intellectual property;                (3)  obtain under a contract described in Subdivision   (2) a royalty, license right, or other appropriate means of   securing reasonable compensation for the exercise of the   depository's intellectual property rights; and                (4)  waive or reduce the amount of compensation secured   by contract under Subdivision (3) if the depository determines that   the waiver or reduction will:                      (A)  further a goal or mission of the depository;   and                      (B)  result in a net benefit to the depository.          (b)  Intellectual property of the depository is excepted   from required disclosure under Chapter 552:                (1)  beginning on the date the depository decides to   seek a patent, trademark, service mark, collective mark,   certification mark, or other evidence of protection of exclusivity   concerning the property; and                (2)  ending on the date the depository receives a   decision on the depository's application for a patent, trademark,   service mark, collective mark, certification mark, or other   evidence of protection of exclusivity concerning the property.          (c)  The comptroller shall deposit revenue realized by the   depository under this section to the credit of the general revenue   fund.          (d)  Money credited to the general revenue fund under this   section may be appropriated to the comptroller to offset the costs   of implementation, administration, promotion, marketing,   advertising, and operation of the depository.          (e)  The comptroller may establish intellectual property   policies.          SECTION 10.  Section 2116.051, Government Code, is amended   to read as follows:          Sec. 2116.051.  USE OF DEPOSITORY AGENTS. The depository   shall use private, independently managed firms and institutions   licensed as depository agents as intermediaries to conduct retail   transactions in bullion and specie on behalf of [the depository   with] current and prospective depository account holders.          SECTION 11.  Section 2116.052, Government Code, is amended   to read as follows:          Sec. 2116.052.  ELECTRONIC INFORMATION SHARING SYSTEMS AND   PROCESSES. A [The comptroller by rule shall require a] depository   agent shall [to] maintain suitable systems and processes for   electronic information sharing and communication with the   comptroller and the depository to ensure that all transactions   effected on behalf of current and prospective [the] depository   account holders are reported to and integrated into the   depository's records not later than 11:59:59 p.m. on the date of   each transaction.          SECTION 12.  Section 151.002(b)(9-c), Finance Code, is   amended to read as follows:                (9-c)  "Depository agent services" means services   rendered [to the general public] for or on behalf of current or   prospective depository account holders of the Texas Bullion   Depository in the nature of purchasing, selling, transferring,   accepting, transporting, delivering, or otherwise dealing in   precious metals bullion or specie in connection with the creation,   transfer, clearing, settlement, or liquidation of the rights and   interests of a depository account holder and a direct or indirect   transferee of a depository account holder, as those terms are   defined by Subchapter J. The term "depository agent services" does   not include:                      (A)  participation as a party or counterparty to a   transaction, including an agreement with respect to a transaction,   in or in connection with a contract for the purchase or sale of a   person's rights and interests as a depository account holder, as a   cash contract for present delivery, a cash contract for deferred   shipment or delivery, or a contract for future delivery, where the   underlying deliverable consists of the depository account holder's   interest in the depository account, rather than the underlying   precious metal represented by the depository account balance;                      (B)  the opening, transfer, settlement, or   liquidation of any derivative of a contract described by Paragraph   (A), including a forward transaction, swap transaction, currency   transaction, future transaction, index transaction, or option on or   other derivative of a transaction of any of those types, in the   nature of a cap transaction, floor transaction, collar transaction,   repurchase transaction, reverse repurchase transaction,   buy-and-sell-back transaction, securities lending transaction, or   other financial instrument or interest, including an option with   respect to a transaction, or any combination of these transactions;   or                      (C)  the rendition of services exclusively in   support of the opening, transfer, settlement, or liquidation of   transaction derivatives described by Paragraph (B) through a   central counterparty, such as those customarily rendered by a   clearinghouse, clearing association, or clearing corporation, or   through an interbank payment system, physical or electronic trading   facility, broker or brokerage firm, or similar entity, facility,   system, or organization.          SECTION 13.  Section 151.858, Finance Code, is amended to   read as follows:          Sec. 151.858.  LIABILITY OF LICENSE HOLDER. A depository   agent license holder is liable for the delivery to or for the   depository account of [the depository or] each current or   prospective depository account holder [depositor], as applicable,   of all bullion, specie, and money payable or deliverable in   connection with the transactions in which the license holder   engages on behalf of the current or prospective depositor who is   entitled to depository agent services.          SECTION 14.  Sections 2116.009(a), (c), (d), (e), and (f),   Government Code, are repealed.          SECTION 15.  If, on or before September 1, 2017,the   Comptroller has not appointed the bullion depository administrator   required by Section 2116.002, as amended by this Act, all rights,   duties, powers, obligations, and other requirements established by   this Act and Chapter 1000 (H.B. 483), General Laws, Acts of the 84th   Legislature, Regular Session, 2015, are transferred to the General   Land Office.          SECTION 16.  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.