FINANCE CODE
CHAPTER 34. INVESTMENTS, LOANS, AND DEPOSITS
SUBCHAPTER A. ACQUISITION AND OWNERSHIP OF BANK FACILITIES AND
OTHER REAL PROPERTY
§ 34.001. DEFINITION. In this subchapter, "bank
facility" means real property, including an improvement, that a
state bank owns or leases, to the extent the lease or the leasehold
improvement is capitalized, for the purpose of:
(1) providing space for bank employees to perform
their duties and for bank employees and customers to park;
(2) conducting bank business, including meeting the
reasonable needs and convenience of the public and the bank's
customers, computer operations, document and other item
processing, maintenance and storage of foreclosed collateral
pending disposal, and record retention and storage;
(3) holding, improving, and occupying as an incident
to future expansion of the bank's facilities; or
(4) conducting another activity authorized by rules
adopted under this subtitle.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.002. INVESTMENT IN BANK FACILITIES. (a) Without
the prior written approval of the banking commissioner, a state
bank may not directly or indirectly invest an amount in excess of
its capital and certified surplus in bank facilities, furniture,
fixtures, and equipment. Except as otherwise provided by rules
adopted under this subtitle, in computing this limitation the bank:
(1) shall include:
(A) its direct investment in bank facilities;
(B) an investment in equity or investment
securities of a company holding title to a facility used by the bank
for a purpose specified by Section 34.001;
(C) a loan made by the bank to or on the security
of equity or investment securities issued by a company holding
title to a facility used by the bank; and
(D) any indebtedness incurred on bank facilities
by a company:
(i) that holds title to the facility;
(ii) that is an affiliate of the bank; and
(iii) in which the bank 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 a lease of a facility from the company
holding title to the facility is capitalized on the books of the
bank.
(b) Real property acquired for the purposes described by
Section 34.001(3) and not improved and occupied by the bank ceases
to be a bank facility on the third anniversary of the date of its
acquisition unless the banking commissioner on application grants
written approval to further delay in the improvement and occupation
of the property by the bank.
(c) A bank shall comply with regulatory accounting
principles in accounting for its investment in and depreciation of
bank facilities, furniture, fixtures, and equipment.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.003. OTHER REAL PROPERTY. (a) A state bank may
not acquire real property except:
(1) as permitted by this subtitle or rules adopted
under this subtitle;
(2) with the prior written approval of the banking
commissioner; or
(3) as necessary to avoid or minimize a loss on a loan
or investment previously made in good faith.
(b) With the prior written approval of the banking
commissioner, a state bank may:
(1) exchange real property for other real property or
personal property;
(2) invest additional money in or improve real
property acquired under this subsection or Subsection (a); or
(3) acquire additional real property to avoid or
minimize loss on real property acquired as permitted by Subsection
(a).
(c) A state bank shall dispose of real property subject to
this section not later than:
(1) the fifth anniversary of the date:
(A) it was acquired except as otherwise provided
by rules adopted under this subtitle; or
(B) it ceases to be used as a bank facility; or
(2) the second anniversary of the date it ceases to be
a bank facility as provided by Section 34.002(b).
(d) The banking commissioner on application may grant one or
more extensions of time for disposing of real property if the
banking commissioner determines that:
(1) the bank has made a good faith effort to dispose of
the real property; or
(2) disposal of the real property would be detrimental
to the bank.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. INVESTMENTS
§ 34.101. SECURITIES. (a) A state bank may purchase
and sell securities without recourse solely on the order and for the
account of a customer.
(b) Except as otherwise provided by this subtitle or rules
adopted under this subtitle, a state bank may not:
(1) underwrite an issue of securities; or
(2) invest its money in equity securities except as
necessary to avoid or minimize a loss on a loan or investment
previously made in good faith.
(c) A state bank may purchase investment securities for its
own account under limitations and restrictions prescribed by rules
adopted under this subtitle. Except as otherwise provided by this
section, the amount of the investment securities of any one obligor
or maker held by the bank for its own account may not exceed an
amount equal to the lesser of 15 percent of the bank's capital and
certified surplus or the bank's total equity capital. The banking
commissioner may authorize investments in excess of this limitation
on written application if the banking commissioner determines that:
(1) the excess investment is not prohibited by other
applicable law; and
(2) the safety and soundness of the requesting state
bank is not adversely affected.
(d) Notwithstanding Subsections (a)-(c), a state bank may,
without limit and subject to the exercise of prudent banking
judgment, deal in, underwrite, or purchase for its own account:
(1) bonds and other legally created general
obligations of a state, an agency or political subdivision of a
state, the United States, or an instrumentality of the United
States;
(2) obligations that this state, an agency or
political subdivision of this state, the United States, or an
instrumentality of the United States has unconditionally agreed to
purchase, insure, or guarantee;
(3) securities that are offered and sold under 15
U.S.C. Section 77d(5);
(4) mortgage related securities or small business
related securities, as those terms are defined by 15 U.S.C. Section
78c(a);
(5) mortgages, obligations, or other securities that
are or ever have been sold by the Federal Home Loan Mortgage
Corporation under 12 U.S.C. Sections 1434 and 1455;
(6) obligations, participation, or other instruments
of or issued by the Federal National Mortgage Association or the
Government National Mortgage Association;
(7) obligations issued by the Federal Agricultural
Mortgage Corporation, the Federal Farm Credit Banks Funding
Corporation, or a Federal Home Loan Bank;
(8) obligations of the Federal Financing Bank or the
Environmental Financing Authority;
(9) obligations or other instruments or securities of
the Student Loan Marketing Association;
(10) qualified Canadian government obligations, as
defined by 12 U.S.C. Section 24; or
(11) if the state bank is well capitalized, as defined
by Section 38, Federal Deposit Insurance Act (12 U.S.C. Section
1831o), obligations, including limited obligation bonds, revenue
bonds, and obligations that satisfy the requirements of 26 U.S.C.
Section 142(b)(1), issued by or on behalf of a state or a political
subdivision of a state, including a municipal corporate
instrumentality of one or more states or a public agency or
authority of a state or political subdivision of a state.
(e) Notwithstanding Subsections (a) and (b), subject to the
exercise of prudent banking judgment, a state bank may deal in,
underwrite, or purchase for its own account, including for purposes
of Subsection (c) obligations as to which the bank is under
commitment, the following:
(1) obligations issued by a development bank,
corporation, or other entity created by international agreement if
the United States is a member and a capital stock shareholder;
(2) obligations issued by a state or political
subdivision or an agency of a state or political subdivision for
housing, university, or dormitory purposes, that are at the time
eligible for purchase by a state bank for its own account; or
(3) bonds, notes, and other obligations issued by the
Tennessee Valley Authority or by the United States Postal Service.
(f) A state bank may not invest more than an amount equal to
the lesser of 25 percent of the bank's capital and certified surplus
or the bank's total equity capital in investment grade adjustable
rate preferred stock and money market (auction rate) preferred
stock.
(g) A state bank may deposit money in a federally insured
financial institution, a Federal Reserve Bank, or a Federal Home
Loan Bank without limitation.
(h) The finance commission may adopt rules to administer and
carry out this section, including rules to:
(1) define or further define terms used by this
section;
(2) establish limits, requirements, or exemptions
other than those specified by this section for particular classes
or categories of securities; and
(3) limit or expand investment authority for state
banks for particular classes or categories of securities.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 528, § 9, eff. Sept. 1, 2001.
§ 34.102. TRANSACTION IN BANK SHARES OR PARTICIPATION
SHARES. (a) A state bank may not acquire a lien by pledge or
otherwise on its own shares or participation shares, or otherwise
purchase or acquire title to its own shares or participation
shares, except:
(1) as necessary to avoid or minimize a loss on a loan
or investment previously made in good faith; or
(2) as provided by Subsection (b).
(b) With the prior written approval of the banking
commissioner or as permitted by rules adopted under this subtitle,
a state bank may acquire title to its own shares or participation
shares and hold those shares or participation shares as treasury
stock. Treasury stock acquired under this subsection is not
considered an equity investment.
(c) If a state bank acquires a lien on or title to its own
shares or participation shares under this section, the lien may not
by its original terms extend for more than two years. Except with
the prior written approval of the banking commissioner, the bank
may not hold title to its own shares or participation shares for
more than one year.
(d) A state bank may make loans on the collateral security
of securities issued by an affiliate, if the loan is subject to and
in compliance with the provisions of Sections 23A and 23B, Federal
Reserve Act (12 U.S.C. Sections 371c and 371c-1), as amended,
applicable to nonmember insured state banks by virtue of Section
18(j)(1), Federal Deposit Insurance Act (12 U.S.C. Section
1828(j)(1)), as amended.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 412, § 2.12, eff. Sept. 1, 2001.
§ 34.103. BANK SUBSIDIARIES. (a) Subject to this
section and except as otherwise provided by this subtitle or rules
adopted under this subtitle, a state bank may conduct any activity
or make any investment through an operating subsidiary that a state
bank or a bank holding company, including a financial holding
company, is authorized to conduct or make under state or federal law
if the operating subsidiary is adequately empowered and
appropriately licensed to conduct its business.
(b) Except for investment in a subsidiary engaging solely in
activities that may be engaged in directly by the bank and that are
conducted on the same terms and conditions that govern the conduct
of the activities by the bank, a state bank without the prior
written approval of the banking commissioner may not invest more
than an amount equal to 10 percent of the lesser of its capital and
certified surplus or the bank's total equity capital in a single
subsidiary. For purposes of this subsection, the amount of a state
bank's investment in a subsidiary is the sum of the amount of the
bank's investment in securities issued by the subsidiary and any
loans and extensions of credit from the bank to the subsidiary.
(c) A state bank may not establish or acquire a subsidiary
or a controlling interest in a subsidiary that engages in
activities as principal in which the bank is prohibited from
engaging directly unless:
(1) the state bank's investment in the subsidiary has
been approved by the Federal Deposit Insurance Corporation under
Section 24, Federal Deposit Insurance Act (12 U.S.C. Section
1831a); or
(2) with respect to a subsidiary engaged in activities
as principal that a national bank may conduct only through a
financial subsidiary, including firm underwriting of equity
securities other than as permitted by Section 34.101, and not
otherwise engaged in activities as principal that are impermissible
for a state bank or a financial subsidiary of a national bank, the
subsidiary's activities and the bank's investment are in compliance
with the restrictions and requirements of Section 46, Federal
Deposit Insurance Act (12 U.S.C. Section 1831w).
(d) Except as otherwise provided by this subtitle or a rule
adopted under this subtitle, a state bank may not make a
non-controlling minority investment in equity securities of a
company unless:
(1) the investment or company is described by
Subsection (c)(2) or Section 34.104 or 34.105;
(2) the company engages solely in activities that are
part of or incidental to the permissible business of a state bank
under this subtitle and:
(A) the state bank is adequately empowered to
prevent the company from engaging in activities not part of or
incidental to the permissible business of a state bank or, as a
practical matter, is otherwise enabled to withdraw or liquidate its
investment in the company in such an event;
(B) as a legal and accounting matter, the loss
exposure of the state bank with respect to the activities of the
company is limited and does not include any open-ended liability
for an obligation of the company; and
(C) the investment is convenient or useful to the
state bank in carrying out its business and is not a mere passive
investment unrelated to the bank's banking business; or
(3) the investment is made indirectly through an
operating subsidiary in equity securities issued by:
(A) another bank;
(B) a company that engages solely in an activity
that is permissible for a bank service corporation or a bank holding
company subsidiary; or
(C) a company that engages solely in activities
as agent or trustee or in a brokerage, custodial, advisory, or
administrative capacity, or in a substantially similar capacity.
(e) A state bank that intends to acquire, establish, or
perform new activities through a subsidiary shall submit a letter
to the banking commissioner describing in detail the proposed
activities of the subsidiary. The bank may acquire or establish a
subsidiary or perform new activities in an existing subsidiary
beginning on the 31st day after the date the banking commissioner
receives the bank's letter unless the banking commissioner
specifies an earlier or later date. The banking commissioner may
extend the 30-day period on a determination that the bank's letter
raises issues that require additional information or additional
time for analysis. If the period is extended, the bank may acquire
or establish a subsidiary, or may perform new activities in an
existing subsidiary, only on prior written approval of the banking
commissioner.
(f) A subsidiary of a state bank is subject to regulation by
the banking commissioner to the extent provided by Chapter 11 or 12,
this subtitle, or rules adopted under this subtitle. In the absence
of limiting rules, the banking commissioner may regulate a
subsidiary as if it were a state bank.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 528, § 10, eff. Sept. 1, 2001.
§ 34.104. MUTUAL FUNDS. (a) A state bank may invest
for its own account in equity securities of an investment company
registered under the Investment Company Act of 1940 (15 U.S.C.
Section 80a-1 et seq.) and the Securities Act of 1933 (15 U.S.C.
Section 77a et seq.) if the portfolio of the investment company
consists wholly of investments in which the bank could invest
directly for its own account.
(b) If the portfolio of an investment company described by
Subsection (a) consists wholly of investments in which the bank
could invest directly without limitation under Section 34.101(e),
the bank may invest in the investment company without limitation.
(c) The bank may invest not more than an amount equal to 15
percent of the bank's capital and certified surplus in an
investment company described by Subsection (a) the portfolio of
which contains an investment or obligation that is subject to the
limitations of Section 34.101(d) or 34.201(a).
(d) A state bank that invests in an investment company as
provided by Subsection (c) shall periodically determine that its
pro rata share of any security in the portfolio of the investment
company combined with the bank's pro rata share of that security
held by all other investment companies in which the bank has
invested and with the bank's own direct investment and loan
holdings is not in excess of applicable investment and lending
limitations.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.105. OTHER DIRECT EQUITY INVESTMENTS. (a) A
state bank may purchase for its own account equity securities of any
class issued by:
(1) a bank service corporation, except that the bank
may not invest more than an amount equal to 15 percent of the bank's
capital and certified surplus in a single bank service corporation
or more than an amount equal to five percent of its assets in all
bank service corporations;
(2) an agricultural credit corporation, except that
the bank may not invest more than an amount equal to 30 percent of
the bank's capital and certified surplus in the agricultural credit
corporation unless the bank owns at least 80 percent of the equity
securities of the agricultural credit corporation;
(3) a small business investment company if the
aggregate investment does not exceed an amount equal to 10 percent
of the bank's capital and certified surplus;
(4) a banker's bank if the aggregate investment does
not exceed an amount equal to 15 percent of the bank's capital and
certified surplus or result in the bank acquiring or retaining
ownership, control, or power to vote more than five percent of any
class of voting securities of the banker's bank; or
(5) a housing corporation if the sum of the amount of
investment and the amount of loans and commitments for loans to the
housing corporation does not exceed an amount equal to 10 percent of
the bank's capital and certified surplus.
(b) On written application, the banking commissioner may
authorize investments in excess of a limitation of Subsection (a)
if the banking commissioner concludes that:
(1) the excess investment is not precluded by other
applicable law; and
(2) the safety and soundness of the requesting bank
would not be adversely affected.
(c) For purposes of this section:
(1) "Agricultural credit corporation" means a company
organized solely to make loans to farmers and ranchers for
agricultural purposes, including the breeding, raising, fattening,
or marketing of livestock.
(2) "Banker's bank" means a bank insured by the Federal
Deposit Insurance Corporation or a bank holding company that owns
or controls such an insured bank if:
(A) all equity securities of the bank or bank
holding company, other than director's qualifying shares or shares
issued under an employee compensation plan, are owned by depository
institutions or depository institution holding companies; and
(B) the bank or bank holding company and all its
subsidiaries are engaged exclusively in providing:
(i) services to or for other depository
institutions, depository institution holding companies, and the
directors, managers, managing participants, officers, and
employees of other depository institutions and depository
institution holding companies; and
(ii) correspondent banking services at the
request of other depository institutions, depository institution
holding companies, or their subsidiaries.
(3) "Bank service corporation" has the meaning
assigned by the Bank Service Corporation Act (12 U.S.C. Section
1861 et seq.) or a successor to that Act.
(4) "Housing corporation" means a corporation
organized under Title IX of the Housing and Urban Development Act of
1968 (42 U.S.C. Section 3931 et seq.), a partnership, limited
partnership, or joint venture organized under Section 907(a) or (c)
of that Act (42 U.S.C. Section 3937(a) or (c)), or a housing
corporation organized under the laws of this state to engage in or
finance low-income and moderate-income housing developments or
projects.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.106. INVESTMENTS FOR PUBLIC WELFARE. (a) A state
bank may make investments of a predominantly civic, community, or
public nature, including investments providing housing, services,
or jobs or promoting the welfare of low-income and moderate-income
communities or families.
(b) The bank may make the investments directly or by
purchasing equity securities in an entity primarily engaged in
making those investments. The bank may not make an investment that
would expose the bank to unlimited liability.
(c) A bank may serve as a community partner and make
investments in a community partnership, as those terms are defined
by the Riegle Community Development and Regulatory Improvement Act
of 1994 (Pub. L. 103-325).
(d) A bank's aggregate investments under this section,
including loans and commitments for loans, may not exceed an amount
equal to 10 percent of the bank's capital and certified surplus.
The banking commissioner may authorize investments in excess of
this limitation in response to a written application if the banking
commissioner concludes that:
(1) the excess investment is not precluded by other
applicable law; and
(2) the safety and soundness of the requesting bank
would not be adversely affected.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 412, § 2.13, eff. Sept. 1, 2001.
§ 34.107. ENGAGING IN COMMERCE PROHIBITED. (a) A
state bank may not buy, sell, or otherwise deal in goods in trade or
commerce or own or operate a business not part of the business of
banking except:
(1) as necessary to avoid or minimize a loss on a loan
or investment previously made in good faith; or
(2) as otherwise provided by this subtitle or rules
adopted under this subtitle.
(b) Engaging in an approved activity, directly or through a
subsidiary, that is a financial activity or incidental or
complementary to a financial activity, whether as principal or
agent, is not considered to be engaging in commerce.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 528, § 11, eff. Sept. 1, 2001.
SUBCHAPTER C. LOANS
§ 34.201. LENDING LIMITS. (a) Without the prior
written approval of the banking commissioner, the total loans and
extensions of credit by a state bank to a person outstanding at one
time may not exceed an amount equal to 25 percent of the lesser of
the bank's capital and certified surplus or the bank's total equity
capital. This limitation does not apply to:
(1) liability as endorser or guarantor of commercial
or business paper discounted by or assigned to the bank by its owner
who has acquired it in the ordinary course of business;
(2) indebtedness evidenced by bankers' acceptances as
described by 12 U.S.C. Section 372 and issued by other banks;
(3) indebtedness secured by a bill of lading,
warehouse receipt, or similar document transferring or securing
title to readily marketable goods, except that:
(A) the goods must be insured if it is customary
to insure those goods; and
(B) the aggregate indebtedness of a person under
this subdivision may not exceed an amount equal to 50 percent of the
lesser of the bank's capital and certified surplus or the bank's
total equity capital;
(4) indebtedness evidenced by notes or other paper
secured by liens on agricultural products in secure and properly
documented storage in bonded warehouses or elevators if the value
of the collateral is not less than 125 percent of the amount of the
indebtedness and the bank's interest in the collateral is
adequately insured against loss, except that the aggregate
indebtedness of a person under this subdivision may not exceed an
amount equal to 50 percent of the lesser of the bank's capital and
certified surplus or the bank's total equity capital;
(5) indebtedness of another depository institution
arising out of loans with settlement periods of less than one week;
(6) indebtedness arising out of the daily transaction
of the business of a clearinghouse association in this state;
(7) liability under an agreement by a third party to
repurchase from the bank an investment security listed in Section
34.101(d) to the extent that the agreed repurchase price does not
exceed the original purchase price to the bank or the market value
of the investment security;
(8) the portion of an indebtedness that this state, an
agency or political subdivision of this state, the United States,
or an instrumentality of the United States has unconditionally
agreed to repay, purchase, insure, or guarantee;
(9) indebtedness secured by securities listed in
Section 34.101(d) to the extent that the market value of the
securities equals or exceeds the indebtedness;
(10) the portion of an indebtedness that is fully
secured by a segregated deposit account in the lending bank;
(11) loans and extensions of credit arising from the
purchase of negotiable or nonnegotiable installment consumer paper
that carries a full recourse endorsement or unconditional guarantee
by the person transferring the paper if:
(A) the bank's files or the knowledge of its
officers of the financial condition of each maker of the consumer
paper is reasonably adequate; and
(B) an officer of the bank designated for that
purpose by the board certifies in writing that the bank is relying
primarily on the responsibility of each maker for payment of the
loans or extensions of credit and not on a full or partial recourse
endorsement or guarantee by the transferor;
(12) the portion of an indebtedness in excess of the
limitation of this subsection that is fully secured by marketable
securities or bullion with a market value at least equal to the
amount of the overage, as determined by reliable and continuously
available price quotations, except that the exempted indebtedness
or overage of a person under this subdivision may not exceed an
amount equal to 15 percent of the lesser of the bank's capital and
certified surplus or the bank's total equity capital;
(13) indebtedness of an affiliate of the bank if the
transaction with the affiliate is subject to the restrictions and
limitations of 12 U.S.C. Section 371c;
(14) indebtedness of an operating subsidiary of the
bank other than a subsidiary described by Section 34.103(c)(2);
and
(15) the portion of the indebtedness of a person
secured in good faith by a purchase money lien taken by the bank in
exchange for the sale of real or personal property owned by the bank
if the sale is in the best interest of the bank.
(b) The finance commission may adopt rules to administer
this section, including rules to:
(1) define or further define terms used by this
section;
(2) establish limits, requirements, or exemptions
other than those specified by this section for particular classes
or categories of loans or extensions of credit; and
(3) establish collective lending and investment
limits.
(c) The banking commissioner may determine whether a loan or
extension of credit putatively made to a person will be attributed
to another person for purposes of this section.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 528, § 12, eff. Sept. 1, 2001.
§ 34.202. VIOLATION OF LENDING LIMIT. (a) An officer,
director, manager, managing participant, or employee of a state
bank who approves or participates in the approval of a loan with
actual knowledge that the loan violates Section 34.201 is jointly
and severally liable to the bank for the lesser of the amount by
which the loan exceeded applicable lending limits or the bank's
actual loss. The person remains liable for that amount until the
loan and all prior indebtedness of the borrower to the bank have
been fully repaid.
(b) The bank may initiate a proceeding to collect an amount
due under this section at any time before the fourth anniversary of
the date the borrower defaults on the subject loan or any prior
indebtedness.
(c) A person who is liable for and pays amounts to the bank
under this section is entitled to an assignment of the bank's claim
against the borrower to the extent of the payments.
(d) For purposes of this section, an officer, director,
manager, managing participant, or employee of a state bank is
presumed to know the amount of the bank's lending limit under
Section 34.201(a) and the amount of the borrower's aggregate
outstanding indebtedness to the bank immediately before a new loan
or extension of credit to that borrower.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.203. LOAN EXPENSES AND FEES. (a) A bank may
require a borrower to pay all reasonable expenses and fees incurred
in connection with the making, closing, disbursing, extending,
readjusting, or renewing of a loan, regardless of whether those
expenses or fees are paid to third parties. A fee charged by the
bank under this section may not exceed the cost the bank reasonably
expects to incur in connection with the transaction to which the fee
relates. Payment for those expenses may be:
(1) collected by the bank from the borrower and:
(A) retained by the bank; or
(B) paid to a person rendering services for which
a charge has been made; or
(2) paid directly by the borrower to a third party to
whom they are payable.
(b) This section does not authorize the bank to charge its
borrower for payment of fees and expenses to an officer, director,
manager, or managing participant of the bank for services rendered
in the person's capacity as an officer, director, manager, or
managing participant.
(c) A bank may charge a penalty for prepayment or late
payment. Only one penalty may be charged by the bank on each past
due payment. Unless otherwise agreed in writing, prepayment of
principal must be applied on the final installment of the note or
other obligation until that installment is fully paid, and further
prepayments must be applied on installments in the inverse order of
their maturity.
(d) Fees and expenses charged and collected as provided by
this section are not considered a part of the interest or
compensation charged by the bank for the use, forbearance, or
detention of money.
(e) To the extent of any conflict between this section and a
provision of Subtitle B, Title 4, the provision of Subtitle B, Title
4, prevails.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.204. LEASE FINANCING TRANSACTION. (a) Subject to
rules adopted under this subtitle, a state bank may, directly or
indirectly through an operating subsidiary, provide the equivalent
of a financing transaction by acting as lessor under a lease for the
benefit of a customer.
(b) Without the written approval of the banking
commissioner to continue holding property acquired for leasing
purposes under this subsection, the bank may not hold personal
property more than six months or real property more than two years
after the date of expiration of the original or any extended or
renewed lease period agreed to by the customer for whom the property
was acquired or by a subsequent lessee.
(c) A rental payment received by the bank in a lease
financing transaction under this section is considered to be rent
and not interest or compensation for the use, forbearance, or
detention of money. However, a lease financing transaction is
considered to be a loan or extension of credit for purposes of
Sections 34.201 and 34.202.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 528, § 13, eff. Sept. 1, 2001.
SUBCHAPTER D. DEPOSITS
§ 34.301. NATURE OF DEPOSIT CONTRACT. (a) A deposit
contract between a bank and an account holder is considered a
contract in writing for all purposes and may be evidenced by one or
more agreements, deposit tickets, signature cards, or notices as
provided by Section 34.302, or by other documentation as provided
by law.
(b) A cause of action for denial of deposit liability on a
deposit contract without a maturity date does not accrue until the
bank has denied liability and given notice of the denial to the
account holder. A bank that provides an account statement or
passbook to the account holder is considered to have denied
liability and given the notice as to any amount not shown on the
statement or passbook.
(c) To the extent provided by Section 4.102(c), Business &
Commerce Code, the laws of this state govern a deposit contract
between a bank and a consumer account holder if the branch or
separate office of the bank that accepts the deposit contract is
located in this state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.012, eff. Sept. 1, 1999.
§ 34.302. AMENDMENT OF DEPOSIT CONTRACT. (a) A bank
and its account holder may amend the deposit contract by agreement
or as permitted by Subsection (b) or other law.
(b) A bank may amend a deposit contract by mailing a written
notice of the amendment to the account holder, separately or as an
enclosure with or part of the account holder's statement of account
or passbook. The notice must include the text and effective date of
the amendment. The bank is required to deliver the notice to only
one of the account holders of a deposit account that has more than
one account holder. The effective date may not be earlier than the
30th day after the date of mailing the notice unless the amendment:
(1) is made to comply with a statute or rule that
authorizes an earlier effective date;
(2) does not reduce the interest rate on the account or
otherwise adversely affect the account holder; or
(3) is made for a reason relating to security of an
account.
(c) Except for a disclosure required to be made under
Section 34.303 or the Truth in Savings Act (12 U.S.C. Section 4301
et seq.) or other federal law, before renewal of an account a notice
of amendment is not required under Subsection (b) for:
(1) a change in the interest rate on a variable-rate
account, including a money market or negotiable order of withdrawal
account;
(2) a change in a term for a time account with a
maturity of one month or less if the deposit contract authorizes the
change in the term; or
(3) a change contemplated and permitted by the
original contract.
(d) An amendment under Subsection (b) may reduce the rate of
interest or eliminate interest on an account without a maturity
date.
(e) Amendment of a deposit contract made in compliance with
this section is not a violation of the Deceptive Trade
Practices-Consumer Protection Act(Section 17.41 et seq., Business &
Commerce Code).
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.303. FEES; DISCLOSURES. (a) Except as otherwise
provided by law, a bank may charge an account holder a fee, service
charge, or penalty relating to service or activity of a deposit
account, including a fee for an overdraft, insufficient fund check,
or stop payment order.
(b) Except as otherwise provided by the Truth in Savings Act
(12 U.S.C. Section 4301 et seq.) or other federal law, a bank shall
disclose the amount of each fee, charge, or penalty related to an
account or, if the amount of a fee, charge, or penalty cannot be
stated, the method of computing the fee, charge, or penalty. The
disclosure must be made by written notice delivered or mailed to
each customer opening an account not later than the 10th business
day after the date the account is opened. A bank that increases or
adds a new fee, charge, or penalty shall give notice of the change
to each affected account holder in the manner provided by Section
34.302(b) for notice of an amendment of a deposit contract.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.304. SECURING DEPOSITS. (a) A state bank may not
create a lien on its assets or secure the repayment of a deposit
except as authorized or required by this section, rules adopted
under this subtitle, or other law.
(b) A state bank may pledge its assets to secure a deposit of
this state, an agency or political subdivision of this state, the
United States, or an instrumentality of the United States.
(c) This section does not prohibit the pledge of assets to
secure the repayment of money borrowed or the purchase of excess
deposit insurance from a private insurance company.
(d) An act, deed, conveyance, pledge, or contract in
violation of this section is void.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.305. DEPOSIT ACCOUNT OF MINOR. (a) Except as
otherwise provided by this section, a bank lawfully doing business
in this state may enter into a deposit account with a minor as the
sole and absolute owner of the account and may pay checks and
withdrawals and otherwise act with respect to the account on the
order of the minor. A payment or delivery of rights to a minor who
holds a deposit account evidenced by an acquittance signed by the
minor discharges the bank to the extent of the payment made or
rights delivered.
(b) The disabilities of minority of a minor who is the sole
and absolute owner of the deposit account are removed for the
limited purpose of enabling:
(1) the minor to enter into a depository contract with
the bank; and
(2) the bank to enforce the contract against the
minor, including collection of an overdraft or account fee and
submission of account history to an account reporting agency or
credit reporting bureau.
(c) A parent or legal guardian of a minor may deny the
minor's authority to control, transfer, draft on, or make a
withdrawal from the minor's deposit account by notifying the bank
in writing. On receipt of the notice by the bank, the minor may not
control, transfer, draft on, or make a withdrawal from the account
during minority except with the joinder of a parent or legal
guardian of the minor.
(d) If a minor with a deposit account dies, the acquittance
of the minor's parent or legal guardian discharges the liability of
the bank to the extent of the acquittance, except that the aggregate
discharges under this subsection may not exceed $3,000.
(e) Subsection (a) does not authorize a loan to the minor by
the bank, whether on pledge of the minor's savings account or
otherwise, or bind the minor to repay a loan made except as provided
by Subsection (b) or other law or unless the depository institution
has obtained the express consent and joinder of a parent or legal
guardian of the minor. This subsection does not apply to an
inadvertent extension of credit because of an overdraft from
insufficient funds, a returned check or deposit, or another
shortage in a depository account resulting from normal banking
operations.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.306. TRUST ACCOUNT WITH LIMITED
DOCUMENTATION. (a) Subject to Chapter XI, Probate Code, a bank
may accept and administer a deposit account:
(1) that is opened with the bank by one or more persons
expressly as a trustee for one or more other named persons; and
(2) for which further notice of the existence and
terms of a trust is not given in writing to the bank.
(b) For a deposit account that is opened with a bank by one
or more persons expressly as a trustee for one or more other named
persons under or purporting to be under a written trust agreement,
the trustee may provide the bank with a certificate of trust to
evidence the trust relationship. The certificate must be an
affidavit of the trustee and must include the effective date of the
trust, the name of the trustee, the name of or method for choosing
successor trustees, the name and address of each beneficiary, the
authority granted to the trustee, the disposition of the account on
the death of the trustee or the survivor of two or more trustees,
other information required by the bank, and an indemnification of
the bank. The bank may accept and administer the account, subject
to Chapter XI, Probate Code, in accordance with the certificate of
trust without requiring a copy of the trust agreement. The bank is
not liable for administering the account as provided by the
certificate of trust, even if the certificate of trust is contrary
to the terms of the trust agreement, unless the bank has actual
knowledge of the terms of the trust agreement.
(c) On the death of the trustee or of the survivor of two or
more trustees, the bank may pay all or part of the withdrawal value
of the account with interest as provided by the certificate of
trust. If the trustee did not deliver a certificate of trust, the
bank's right to treat the account as owned by a trustee ceases on
the death of the trustee. On the death of the trustee or of the
survivor of two or more trustees, the bank, unless the certificate
of trust provides otherwise, shall pay the withdrawal value of the
account with interest in equal shares to the persons who survived
the trustee, are named as beneficiaries in the certificate of
trust, and can be located by the bank from its own records. If there
is not a certificate of trust, payment of the withdrawal value and
interest shall be made as provided by Chapter XI, Probate Code. Any
payment made under this section for all or part of the withdrawal
value and interest discharges any liability of the bank to the
extent of the payment. The bank may pay all or part of the
withdrawal value and interest in the manner provided by this
section, regardless of whether it has knowledge of a competing
claim, unless the bank receives actual knowledge that payment has
been restrained by court order.
(d) This section does not obligate a bank to accept a
deposit account from a trustee who does not furnish a copy of the
trust agreement or to search beyond its own records for the location
of a named beneficiary.
(e) This section does not affect a contractual provision to
the contrary that otherwise complies with the laws of this state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 34.307. RIGHT OF SET-OFF. (a) Except as otherwise
provided by the Truth in Lending Act (15 U.S.C. Section 1601 et
seq.) or other federal law, a bank has a right of set-off, without
further agreement or action, against all accounts owned by a
depositor to whom or on whose behalf the bank has made an advance of
money by loan, overdraft, or otherwise if the bank has previously
disclosed this right to the depositor. If the depositor defaults in
the repayment or satisfaction of the obligation, the bank, without
notice to or consent of the depositor, may set off or cancel on its
books all or part of the accounts owned by the depositor and apply
the value of the accounts in payment of and to the extent of the
obligation.
(b) For purposes of this section, a default occurs when an
obligor has failed to make a payment as provided by the terms of the
loan or other credit obligation and a grace period provided for by
the agreement or law has expired. An obligation is not required to
be accelerated or matured for a default to authorize set-off of the
depositor's obligation against the defaulted payment.
(c) A bank may not exercise its right of set-off under this
section against an account unless the account is due the depositor
in the same capacity as the defaulted credit obligation. A trust
account for which a depositor is trustee, including a trustee under
a certificate of trust delivered under Section 34.306(b), is not
subject to the right of set-off under this section unless the trust
relationship is solely evidenced by the account card as provided by
Chapter XI, Probate Code.
(d) This section does not limit the exercise of another
right of set-off, including a right under contract or common law.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
