FINANCE CODE
CHAPTER 59. MISCELLANEOUS PROVISIONS
SUBCHAPTER A. GENERAL PROVISIONS
§ 59.001. DEFINITIONS. In this subchapter:
(1) "Civil action" means a civil proceeding pending in
a tribunal. The term does not include an examination or enforcement
proceeding initiated by:
(A) a governmental agency with primary
regulatory jurisdiction over a financial institution in possession
of a compliance review document;
(B) the Federal Deposit Insurance
Corporation or its successor; or
(C) the board of governors of the Federal
Reserve System or its successor.
(2) "Claim against a customer" means a writ of
attachment, writ of garnishment, notice of freeze, notice of levy,
notice of child support lien, notice of seizure, notice of
receivership, restraining order, injunction or other instrument
served on or delivered to a financial institution and purporting to
assert, establish, or perfect any interest in or claim against an
account, extension of credit, or product of the financial
institution held or established by the financial institution in the
name of the customer or for the benefit of the customer, or in the
name of the financial institution as the fiduciary, agent, or
custodian or in another representative capacity for the customer.
The term does not include citation or other process in a civil suit
in which the financial institution is made a defendant and against
which claims for affirmative relief are asserted, even though the
subject matter of the suit is an account, extension of credit, or
product of the financial institution held or established by the
financial institution in the name of a customer or in the name of
the financial institution as the fiduciary, agent, or custodian or
in another representative capacity for the customer.
(3) "Compliance review document" means a document
prepared by or for a compliance review committee acting pursuant to
Section 59.009.
(4) "Customer" means a person who uses, purchases, or
obtains an account, extension of credit, or product of a financial
institution or for whom a financial institution acts as a
fiduciary, agent, or custodian or in another representative
capacity.
(5) "Financial institution" has the meaning assigned
by Section 201.101, except that the term does not include a
financial institution organized under the laws of another state or
organized under federal law with its main office in another state
that does not maintain a branch or other office in this state.
(6) "Out-of-state financial institution" means a
financial institution, organized under the laws of another state or
organized under federal law with its main office in another state,
that has a branch or other office in this state.
(7) "Record" means financial or other information of a
customer maintained by a financial institution.
(8) "Record request" means a valid and enforceable
subpoena, request for production, or other instrument issued under
authority of a tribunal that compels production of a customer
record.
(9) "Texas financial institution" means a financial
institution organized under the laws of this state or organized
under federal law with its main office in this state.
(10) "Tribunal" means a court or other adjudicatory
tribunal with jurisdiction to issue a request for records,
including a government agency exercising adjudicatory functions
and an alternative dispute resolution mechanism, voluntary or
required, under which a party may compel the production of records.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999.
§ 59.005. AGENCY ACTIVITIES. (a) A financial
institution may receive deposits, renew time deposits, close loans,
service loans, receive payments on loans and other obligations, and
perform other services as an agent for another financial
institution under a written agency agreement.
(b) A financial institution may not under an agency
agreement:
(1) conduct an activity as agent that it would be
prohibited from conducting as a principal under applicable state or
federal law; or
(2) have an agent conduct an activity that the bank as
principal would be prohibited from conducting under applicable
state or federal law.
(c) The banking commissioner may order a state bank or
another financial institution subject to the banking
commissioner's enforcement powers to cease acting as an agent or
principal under an agency agreement in a manner that the banking
commissioner finds to be inconsistent with safe and sound banking
practices or governing law.
(d) Notwithstanding another law, a financial institution
acting as an agent for another financial institution in accordance
with this section is not considered to be a branch of the
institution acting as principal.
(e) This section does not affect:
(1) authority under another law for a financial
institution to act as an agent on behalf of another person or to act
as a principal in employing another person as agent; or
(2) whether an agent's activities on behalf of a
financial institution under another law would cause the agent to be
considered a branch of the financial institution.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 528, § 14, eff. Sept. 1, 2001.
§ 59.006. DISCOVERY OF CUSTOMER RECORDS. (a) This
section provides the exclusive method for compelled discovery of a
record of a financial institution relating to one or more customers
but does not create a right of privacy in a record. This section
does not apply to and does not require or authorize a financial
institution to give a customer notice of:
(1) a demand or inquiry from a state or federal
government agency authorized by law to conduct an examination of
the financial institution;
(2) a record request from a state or federal
government agency or instrumentality under statutory or
administrative authority that provides for, or is accompanied by, a
specific mechanism for discovery and protection of a customer
record of a financial institution, including a record request from
a federal agency subject to the Right to Financial Privacy Act of
1978 (12 U.S.C. Section 3401 et seq.), as amended, or from the
Internal Revenue Service under Section 1205, Internal Revenue Code
of 1986;
(3) a record request from or report to a government
agency arising out of the investigation or prosecution of a
criminal offense;
(4) a record request in connection with a garnishment
proceeding in which the financial institution is garnishee and the
customer is debtor;
(5) a record request by a duly appointed receiver for
the customer;
(6) an investigative demand or inquiry from a state
legislative investigating committee;
(7) an investigative demand or inquiry from the
attorney general of this state as authorized by law other than the
procedural law governing discovery in civil cases; or
(8) the voluntary use or disclosure of a record by a
financial institution subject to other applicable state or federal
law.
(b) A financial institution shall produce a record in
response to a record request only if:
(1) it is served with the record request not later than
the 24th day before the date that compliance with the record request
is required;
(2) before the financial institution complies with the
record request the requesting party pays the financial
institution's reasonable costs of complying with the record
request, including costs of reproduction, postage, research,
delivery, and attorney's fees, or posts a cost bond in an amount
estimated by the financial institution to cover those costs; and
(3) if the customer is not a party to the proceeding in
which the request was issued, the requesting party complies with
Subsections (c) and (d) and:
(A) the financial institution receives the
customer's written consent to release the record after a request
under Subsection (c)(3); or
(B) the tribunal takes further action based on
action initiated by the requesting party under Subsection (d).
(c) If the affected customer is not a party to the
proceeding in which the record request was issued, in addition to
serving the financial institution with a record request, the
requesting party shall:
(1) give notice stating the rights of the customer
under Subsection (e) and a copy of the request to each affected
customer in the manner and within the time provided by Rule 21a,
Texas Rules of Civil Procedure;
(2) file a certificate of service indicating that the
customer has been mailed or served with the notice and a copy of the
record request as required by this subsection with the tribunal and
the financial institution; and
(3) request the customer's written consent authorizing
the financial institution to comply with the request.
(d) If the customer that is not a party to the proceeding
does not execute the written consent requested under Subsection
(c)(3) on or before the date that compliance with the request is
required, the requesting party may by written motion seek an in
camera inspection of the requested record as its sole means of
obtaining access to the requested record. In response to a motion
for in camera inspection, the tribunal may inspect the requested
record to determine its relevance to the matter before the
tribunal. The tribunal may order redaction of portions of the
records that the tribunal determines should not be produced and
shall enter a protective order preventing the record that it orders
produced from being:
(1) disclosed to a person who is not a party to the
proceeding before the tribunal; and
(2) used by a person for any purpose other than
resolving the dispute before the tribunal.
(e) A customer that is a party to the proceeding bears the
burden of preventing or limiting the financial institution's
compliance with a record request subject to this section by seeking
an appropriate remedy, including filing a motion to quash the
record request or a motion for a protective order. Any motion filed
shall be served on the financial institution and the requesting
party before the date that compliance with the request is required.
A financial institution is not liable to its customer or another
person for disclosure of a record in compliance with this section.
(f) A financial institution may not be required to produce a
record under this section before the later of:
(1) the 24th day after the date of receipt of the
record request as provided by Subsection (b)(1);
(2) the 15th day after the date of receipt of a
customer consent to disclose a record as provided by Subsection
(b)(3); or
(3) the 15th day after the date a court orders
production of a record after an in camera inspection of a requested
record as provided by Subsection (d).
(g) An order to quash or for protection or other remedy
entered or denied by the tribunal under Subsection (d) or (e) is not
a final order and an interlocutory appeal may not be taken.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 528, § 15, eff. Sept. 1, 2001.
§ 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, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1, 1999.
§ 59.008. CLAIMS AGAINST CUSTOMERS OF FINANCIAL
INSTITUTIONS. (a) A claim against a customer of a financial
institution shall be delivered or served as otherwise required or
permitted by law at the address designated as the address of the
registered agent of the financial institution in a registration
filed with the secretary of state pursuant to Section 201.102, with
respect to an out-of-state financial institution, or Section
201.103, with respect to a Texas financial institution.
(b) If a financial institution files a registration
statement with the secretary of state pursuant to Section 201.102,
with respect to an out-of-state financial institution, or Section
201.103, with respect to a Texas financial institution, a claim
against a customer of the financial institution is not effective as
to the financial institution if the claim is served or delivered to
an address other than that designated by the financial institution
in the registration as the address of the financial institution's
registered agent.
(c) The customer bears the burden of preventing or limiting
a financial institution's compliance with or response to a claim
subject to this section by seeking an appropriate remedy, including
a restraining order, injunction, protective order, or other remedy,
to prevent or suspend the financial institution's response to a
claim against the customer.
(d) A financial institution that does not file a
registration with the secretary of state pursuant to Section
201.102, with respect to an out-of-state financial institution, or
Section 201.103, with respect to a Texas financial institution, is
subject to service or delivery of all claims against customers of
the financial institution as otherwise provided by law.
Added by Acts 1999, 76th Leg., ch. 344, § 2.016, eff. Sept. 1,
1999.
§ 59.009. COMPLIANCE REVIEW COMMITTEE. (a) A
financial institution or an affiliate of a financial institution,
including its holding company, may establish a compliance review
committee to test, review, or evaluate the financial institution's
conduct, transactions, or potential transactions for the purpose of
monitoring and improving or enforcing compliance with:
(1) a statutory or regulatory requirement;
(2) financial reporting to a governmental agency;
(3) the policies and procedures of the financial
institution or its affiliates; or
(4) safe, sound, and fair lending practices.
(b) Except as provided by Subsection (c):
(1) a compliance review document is confidential and
is not discoverable or admissible in evidence in a civil action;
(2) an individual serving on a compliance review
committee or acting under the direction of a compliance review
committee may not be required to testify in a civil action as to:
(A) the contents or conclusions of a compliance
review document; or
(B) an action taken or discussions conducted by
or for a compliance review committee; and
(3) a compliance review document or an action taken or
discussion conducted by or for a compliance review committee that
is disclosed to a governmental agency remains confidential and is
not discoverable or admissible in a civil action.
(c) Subsection (b)(2) does not apply to an individual who
has management responsibility for the operations, records,
employees, or activities being examined or evaluated by the
compliance review committee.
(d) This section does not limit the discovery or
admissibility in a civil action of a document that is not a
compliance review document.
Renumbered from § 59.007 and amended by Acts 1999, 76th Leg., ch.
344, § 2.016, eff. Sept. 1, 1999.
§ 59.010. CONFIDENTIALITY OF ADMINISTRATIVE
SUBPOENA. (a) Except to the extent disclosure is necessary to
locate and produce responsive records, an administrative subpoena
that meets the requirements of Subsection (b) and is served on a
financial institution may provide that the financial institution to
whom the subpoena is directed may not:
(1) disclose that the subpoena has been issued;
(2) identify or describe any records requested in the
subpoena; or
(3) disclose whether records have been furnished in
response to the subpoena.
(b) The government agency issuing the subpoena may prohibit
the disclosure of information described in Subsection (a) only if
the agency finds, and the subpoena states the agency's finding
that:
(1) the records relate to an ongoing criminal
investigation by the agency; and
(2) the disclosure could significantly impede or
jeopardize the investigation.
(c) For purposes of this section, "administrative subpoena"
means a valid and enforceable subpoena requesting customer records,
issued under the laws of this state by a government agency
exercising investigatory or adjudicative functions with respect to
a matter within the agency's jurisdiction.
Added by Acts 2001, 77th Leg., ch. 528, § 16, eff. Sept. 1, 2001.
SUBCHAPTER B. SAFE DEPOSIT BOXES
§ 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, § 1, eff. Sept. 1, 1997.
§ 59.102. AUTHORITY TO ACT AS SAFE DEPOSIT COMPANY. Any
person may be a safe deposit company.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 59.107. NONEMERGENCY OPENING AND RELOCATION. (a) A
safe deposit company may not relocate a safe deposit box rented for
a term of at least six months if the box rental is not delinquent or
open a safe deposit box to relocate its contents to another safe
deposit box or other location except:
(1) in the presence of the lessee;
(2) with the lessee's written authorization; or
(3) as otherwise provided by this section or Section
59.108.
(b) A safe deposit box may not be relocated under this
section unless the storage conditions at the new location are at
least as secure as the conditions at the original box location.
(c) Not later than the 30th day before the scheduled date of
a nonemergency relocation, the safe deposit company shall give
notice of the relocation to each lessee of the safe deposit box.
The notice must state the scheduled date and time of the relocation
and whether the box will be opened during the relocation.
(d) A lessee may personally supervise the relocation or
authorize the relocation in writing if notice is given to each
lessee.
(e) If during the relocation the box is opened and a lessee
does not personally supervise the relocation or has not authorized
the relocation in writing, two employees, at least one of whom is an
officer or manager of the safe deposit company and at least one of
whom is a notary public, shall inventory the contents of the box in
detail. The safe deposit company shall notify each lessee of the
new box number or location not later than the 30th day after the
date of the relocation and shall include a signed and notarized copy
of the inventory report. The cost of a certified mailing other than
the first notice sent in connection with each relocation may be
treated as box rental due at the expiration of the rental term.
(f) This section does not apply to a relocation of a safe
deposit box within the same building.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 62, § 7.30, eff. Sept. 1, 1999.
§ 59.108. EMERGENCY OPENING AND RELOCATION. (a) A
safe deposit company may relocate a safe deposit box or open the box
to relocate its contents to another box or location without
complying with Sections 59.107(a)-(d) if the security of the
original box is threatened or destroyed by natural disaster,
including tornado, flood, fire, or other unforeseeable
circumstances beyond the control of the safe deposit company.
(b) The safe deposit company shall follow the procedure
provided by Section 59.107(e), except that the notice of the new box
number or location must be given not later than the 90th day after
the date of a relocation under this section.
(c) This section does not apply to a relocation of a safe
deposit box within the same building.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 59.110. ROUTING NUMBER ON KEY. (a) A depository
institution that rents or permits access to a safe deposit box shall
imprint the depository institution's routing number on each key to
the box or on a tag attached to the key.
(b) If a depository institution believes that the routing
number imprinted on a key, or on a tag attached to a key, used to
open a safe deposit box has been altered or defaced so that the
correct routing number is illegible, the depository institution
shall notify the Department of Public Safety of the State of Texas,
on a form designed by the banking commissioner, not later than the
10th day after the date the key is used to open the box.
(c) This section does not require a depository institution
to inspect the routing number imprinted on a key or an attached tag
to determine whether the number has been altered or defaced. A
depository institution that has imprinted a key to a safe deposit
box or a tag attached to the key as provided by this section and that
follows applicable law and the depository institution's
established security procedures in permitting access to the box is
not liable for any damage arising because of access to or removal of
the contents of the box.
(d) Subsection (a) does not apply to a key issued under a
lease in effect on September 1, 1992, until the date the term of
that lease expires, without regard to any extension of the lease
term.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER C. ELECTRONIC TERMINALS
§ 59.201. ELECTRONIC TERMINALS AUTHORIZED; SHARING OF
ELECTRONIC TERMINAL. (a) A person may install, maintain, and
operate one or more electronic terminals at any location for the
convenience of customers of financial institutions.
(b) Financial institutions may agree in writing to share in
the use of an electronic terminal on a reasonable,
nondiscriminatory basis and on the condition that a financial
institution using an electronic terminal may be required to meet
necessary and reasonable technical standards and to pay charges for
the use of the electronic terminal. The standards or charges
imposed must be reasonable, fair, equitable, and nondiscriminatory
among the financial institutions. Any charges imposed:
(1) may not exceed an equitable proportion of the cost
of establishing the electronic terminal, including provisions for
amortization of development costs and capital expenditures over a
reasonable period, and the cost of operation and maintenance of the
electronic terminal, plus a reasonable return on those costs; and
(2) must be related to the services provided to the
financial institution or its customers.
(c) This section does not apply to:
(1) an electronic terminal located at the domicile or
home office or a branch of a financial institution; or
(2) the use by a person of an electronic terminal,
regardless of location, solely to withdraw cash, make account
balance inquiries, or make transfers between the person's accounts
in the same financial institution.
(d) In this section, the term "financial institution" has
the meaning assigned by Section 201.101.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 356, § 1, eff. Aug. 30, 1999; Acts
1999, 76th Leg., ch. 344, § 2.017, eff. Sept. 1, 1999; Acts
2001, 77th Leg., ch. 412, § 2.16, eff. Sept. 1, 2001.
§ 59.202. USER FEE FOR SHARED ELECTRONIC
TERMINAL. (a) The owner of an electronic terminal that is located
in this state and that is connected to a shared network may impose a
fee for the use of that terminal if imposition of the fee is
disclosed at a time and in a manner that allows a user to avoid the
transaction without incurring the transaction fee.
(b) An agreement to share an electronic terminal may not:
(1) limit the right of the owner of an electronic
terminal to charge a fee described by Subsection (a) as allowed by
the law of this state or the United States;
(2) require the owner to limit or waive its rights or
obligations under this section; or
(3) otherwise discriminate in any manner against the
owner as a result of the owner's charging of a fee authorized under
this section.
(c) In this section:
(1) "Electronic fund transfer" means any transfer of
money, other than a transaction originated by check, draft, or
similar paper instrument, that is initiated through an electronic
terminal and orders, instructs, or authorizes a financial
institution to debit or credit an account. The term includes a
point-of-sale transfer, an unmanned teller machine transaction,
and a cash dispensing machine transaction.
(2) "Electronic terminal" means an electronic device,
other than a telephone, through which a consumer may initiate an
electronic fund transfer. The term includes a point-of-sale
terminal, an unmanned teller machine, and a cash dispensing
machine.
(3) "Financial institution" has the meaning assigned
by Section 201.101.
(4) "Shared network" means an electronic information
communication and processing facility used by two or more owners of
electronic terminals to receive, transmit, or retransmit
electronic impulses or other electronic indicia of transactions,
originating at electronic terminals, to financial institutions or
to other transmission facilities for the purpose of:
(A) the withdrawal by a customer of money from
the customer's account, including a withdrawal under a line of
credit previously authorized by a financial institution for the
customer;
(B) the deposit of money by a customer in the
customer's account with a financial institution;
(C) the transfer of money by a customer between
one or more accounts maintained by the customer with a financial
institution, including the application of money against an
indebtedness of the customer to the financial institution; or
(D) a request for information by a customer
concerning the balance of the customer's account with a financial
institution.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.018, eff. Sept. 1, 1999.
SUBCHAPTER D. SAFETY AT UNMANNED TELLER MACHINES
§ 59.301. DEFINITIONS. In this subchapter:
(1) "Access area" means a paved walkway or sidewalk
that is within 50 feet of an unmanned teller machine. The term does
not include a public right-of-way or any structure, sidewalk,
facility, or appurtenance incidental to the right-of-way.
(2) "Access device" has the meaning assigned by
Regulation E (12 C.F.R. Section 205.2), as amended, adopted under
the Electronic Fund Transfer Act (15 U.S.C. Section 1693 et seq.),
as amended.
(3) "Candlefoot power" means the light intensity of
candles on a horizontal plane at 36 inches above ground level and
five feet in front of the area to be measured.
(4) "Control" means the authority to determine how,
when, and by whom an access area or defined parking area may be
used, maintained, lighted, and landscaped.
(5) "Customer" means an individual to whom an access
device is issued for personal, family, or household use.
(6) "Defined parking area" means the portion of a
parking area open for unmanned teller machine customer parking that
is contiguous to an access area, is regularly, principally, and
lawfully used during the period beginning 30 minutes after sunset
and ending 30 minutes before sunrise for parking by customers using
the machine, and is owned or leased by the owner or operator of the
machine or owned or controlled by a person leasing the machine site
to the owner or operator of the machine. The term does not include:
(A) a parking area that is physically closed or
on which one or more conspicuous signs indicate that the area is
closed; or
(B) a level of a multiple-level parking area
other than the level considered by the operator of the unmanned
teller machine to be the most directly accessible to a customer.
(7) "Financial institution" has the meaning assigned
by Section 201.101.
(8) "Operator" means the person primarily responsible
for the operation of an unmanned teller machine.
(9) "Owner" means a person having the right to
determine which financial institutions are permitted to use or
participate in the use of an unmanned teller machine.
(10) "Unmanned teller machine" means a machine, other
than a telephone, capable of being operated solely by a customer to
communicate to a financial institution:
(A) a request to withdraw money from the
customer's account directly or under a line of credit previously
authorized by the financial institution for the customer;
(B) an instruction to deposit money in the
customer's account with the financial institution;
(C) an instruction to transfer money between one
or more accounts maintained by the customer with the financial
institution;
(D) an instruction to apply money against an
indebtedness of the customer to the financial institution; or
(E) a request for information concerning the
balance of the account of the customer with the financial
institution.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 344, § 2.019, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 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, § 1, eff. Sept. 1, 1997.
§ 59.309. NOTICE OF SAFETY PRECAUTIONS. (a) An issuer
of an access device shall give the customer a notice of basic safety
precautions that the customer should follow while using an unmanned
teller machine.
(b) The issuer shall personally deliver or mail the notice
to each customer whose mailing address is in this state according to
records for the account to which the access device relates. If the
issuer furnishes an access device to more than one customer on the
same account, the issuer is required to furnish a notice to only one
of the customers.
(c) The issuer may furnish information under this section
with other disclosures related to the access device, including an
initial or periodic disclosure statement furnished under the
Electronic Fund Transfer Act (15 U.S.C. Section 1693 et seq.).
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 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.
(c) A financial institution that violates a rule adopted
under this section is subject to a civil penalty of not less than
$50 or more than $1,000 for each day of violation and each act of
violation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
