87th TEXAS LEGISLATURE – 2021
INDEPENDENT BANKERS ASSOCIATION OF TEXAS
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The Independent Bankers Association of Texas (IBAT) has historically promoted a proactive legislative agenda during each session of the Texas Legislature. Given the unusual nature of this session due to a variety of issues related to the pandemic, our focus has been more limited in scope. We will remain vigilant and engaged to protect the exclusive interests of the community banking industry.
IBAT will focus on the following issues in the 87th Texas Legislative Session:
Card Skimmers at the Gas Pump (HB 2106, Perez/SB 964, Zaffirini)
Compromised debit and credit cards create significant losses for financial institutions and multiple headaches for consumers. One of the most common sources of breaches and compromised card information is through skimming devices installed on gasoline pumps. IBAT is working with multiple parties to enhance and develop minimum standards for gasoline pump security, inspections and reporting protocols. Further, coordination between and among law enforcement, government agencies and other stakeholders will curtail the occurrence and negative impact of these criminal activities.
Legislation (HB 2945) was passed in the 86th Legislative Session to address payment card fraud with particular attention to skimmers at the gas pump. HB 2106/SB 964 are companion clean-up bills designed to enhance the effectiveness and efficiency of the program and consolidate oversight under the Texas Department of Licensing and Regulation (TDLR). TDLR would be granted rulemaking authority regarding security standards and best practices for merchants, reporting and standards required upon the discovery of a skimmer, investigations and other necessary clarifications and directives to implement and carry out the oversight responsibilities of this program.
A “Payment Fraud Intelligence Unit” (unit) is established within the TDLR, who would be authorized to enter into agreements with law enforcement or other governmental agencies for the operation of the unit. The unit will serve as a centralized “clearing house” for the coordination and sharing of information (as appropriate) with law enforcement and other stakeholders related to payment fraud. Further, the unit would be charged with training law enforcement agencies, public educational outreach and maximizing the effectiveness of combating the criminal activities related to payment fraud.
Authorization for Real Property Evaluations (HB 2533, Darby/SB 996, Nichols)
A recent AG opinion pointed out that certified appraisers may not perform real property evaluations but rather must always follow Uniform Standards of Professional Appraisal Practice (USPAP) guidelines. These companion bills negotiated by and agreed to by both the appraisal and financial services industries (including IBAT) would clarify that both certified appraisers and financial institution employees may perform evaluations in circumstances where a certified appraisal is not required by law. This fix to an inadvertent glitch in Texas law ultimately benefits consumers as it would permit lower cost evaluations where appropriate.
COVID-19 Liability (HB 3, Burrows, HB 2782, Dean and SB 6, Hancock/HB 3659 Leach)
Several pieces of legislation have been introduced that would limit a business’s liability caused by exposure to COVID-19. HB 2782 eliminates liability on the part of a business provided the exposure to the virus was not caused by gross negligence or willful misconduct. HB 3 includes a broader exclusion from liability relating to any pandemic disaster. It requires the business to make a “reasonable effort” to comply with applicable law, declarations, and proclamations. In addition, the act or omission giving rise to the exposure may not have been willful, reckless, or grossly negligent. SB 6/HB 3659 are companion bills that provide liability protection for those entities who attempted to follow applicable government guidelines and provides more specific protections for health care providers, manufacturers and higher educational institutions. IBAT supports these reasonable provisions as our bankers continue to take precautions to prevent the spread of COVID-19 to employees and bank customers.
Trust and Estate Planning. Rule Against Perpetuities (HB 654, Eddie Lucio III/SB 1377, Johnson)
This bill, supported by a number of Texas community banks that are operating active trust departments, would extend the vesting period for trusts to 300 years for those trusts created after September 1, 2021. Currently, a trust must terminate (allowing the beneficiary to become absolutely entitled to the trust assets) not later than 21 years after some “life in being” at the beginning of the trust. Texas trust departments and companies are losing business to out-of-state competitors who have more flexibility in this area. IBAT supports this legislation as it will allow more flexibility for trust and estate planning, will make Texas banks more competitive with out-of-state trust service providers and will help keep trust business in Texas.
Trust and Estate Planning. Trustee Accounting (HB 653, Eddie Lucio III)
Current law provides for a four year “window” for a beneficiary to challenge a trust “accounting” (statement of account) sent to the last known address of the beneficiary. This bill shortens that timeframe to six months, and would not apply in the case of fraud, intentional misrepresentation or material omission.
Broadband Access (HB 5, Ashby and SB 5, Nichols)
This bill is one of the Governor’s “emergency issues.” We have all seen firsthand the importance of reliable internet access on so many levels over the past year. COVID-19 was clearly a “game-changer” as internet access became indispensable for businesses, the education community, commerce of all kinds and even as an entertainment option for Texans. Most of our banks transitioned a significant portion of their employees to a work from home environment with limited staff in their offices and branches. Many of our community banks and branches are located in rural areas where access to a reliable broadband connection is an ongoing issue. Safe, secure and reliable access to reliable internet is critical for all Texans. IBAT is supportive of the efforts of Representative Ashby and Senator Nichols in this important initiative.
Privacy (HB 3741, Capriglione)
Representative Capriglione has again introduced legislation to address the protection of personal identifying information (PII) held by for-profit businesses. The bill only applies to larger businesses with 50 or more employees who collect information on 5,000 or more individuals, households or devices and either have gross revenues of $25 million or more or derive over half of their revenue from the processing of PII. Importantly, banks are already required to comply with the privacy provisions of Gramm-Leach-Bliley (GLBA) and are among those entities that are exempt. The bill provides consumers the rights to “know, correct, access and delete” their personal information with a covered entity; gives consumers some level of control over their PII; requires plain and simple notice of what a business is doing regarding the sharing of a consumer’s PII; and gives the Attorney General the ability to assess monetary penalties of up to $1 million for failure to comply.
IBAT has long taken the stance that any entity retaining PII should be subject to the same requirements as financial institutions under GLBA. We are appreciative of the efforts of Representative Capriglione to address an ongoing and escalating problem and are pleased to support his efforts and this bill.
Steve Scurlock, Direct 512.275.2226, Cell 512.413.2058, email@example.com
Meredyth Fowler, Direct 512.275.2245, Cell 512.657.7963, firstname.lastname@example.org
Karen Neeley, Direct 512.275.2234, Cell 512.289.0594, email@example.com
Updated March 24, 2021