CHAPTER 59. MISCELLANEOUS PROVISIONS

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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;

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.

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).

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.

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;

(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.

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;

(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.

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.

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.

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.

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.

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.

(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.

(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;

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;

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.

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.

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.

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

State Codes and Statutes

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