CHAPTER 66. ENFORCEMENT AND REGULATION

FINANCE CODE

TITLE 3. FINANCIAL INSTITUTIONS AND BUSINESSES

SUBTITLE B. SAVINGS AND LOAN ASSOCIATIONS

CHAPTER 66. ENFORCEMENT AND REGULATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 66.001. GENERAL DUTIES. The Department of Savings and

Mortgage Lending and the commissioner shall regulate associations

and subsidiaries of associations operating under this subtitle.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 6.029, eff. September 1, 2007.

Sec. 66.002. ADOPTION OF RULES. The finance commission may

adopt rules relating to:

(1) the minimum amounts of capital stock and paid-in surplus

required for incorporation as a capital stock association;

(2) the minimum amounts of savings liability and expense funds

required for incorporation as a mutual association;

(3) the fees and procedures for processing, hearing, and

deciding applications filed with the commissioner or the

Department of Savings and Mortgage Lending under this subtitle;

(4) the books and records that an association is required to

keep and the location at which the books and records are required

to be maintained;

(5) the accounting principles and practices that an association

is required to observe;

(6) the conditions under which records may be copied or

reproduced for permanent storage before the original records are

destroyed;

(7) the form, contents, and time of publication of statements of

condition;

(8) the form and contents of annual reports and other reports

that an association is required to prepare and publish or file;

(9) the manner in which assets, liabilities, and transactions in

general are to be described when entered in the books of an

association, so that the entry accurately describes the subject

matter of the entry; and

(10) the conditions under which the commissioner may require an

asset to be charged off or reserves established by transfer from

surplus or paid-in capital because of the depreciation of or

overstated value of the asset.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 867, Sec. 31, eff. Sept. 1,

2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 6.030, eff. September 1, 2007.

SUBCHAPTER B. EXAMINATIONS

Sec. 66.051. EXAMINATIONS. (a) The commissioner shall

periodically examine the affairs of each association, including

the subsidiaries and transactions of the association and the

dealings of any savings and loan holding company that are related

to the savings and loan subsidiaries of the association.

(b) An examination must include an audit if an independent audit

is not available or is unsatisfactory to the commissioner.

(c) On completion of an audit, the auditor shall sign and

certify the audit report. A copy shall be filed promptly with the

commissioner.

(d) An examination under this section may be made in conjunction

with an examination by the Federal Home Loan Bank Board, a

Federal Home Loan Bank, or the Federal Deposit Insurance

Corporation. The commissioner shall accept an audit made by or

accepted by one of those agencies in an examination of an

association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.052. ADDITIONAL EXAMINATIONS. (a) The commissioner at

the association's cost shall conduct an additional examination or

audit or devote extraordinary attention to an association's

affairs if the commissioner determines that the condition of the

association makes it necessary or expedient to do so.

(b) A copy of the report of an examination or audit conducted

under this section shall be furnished promptly to the

association. The report shall be:

(1) presented to the board of the association at its next

regular meeting or at a special meeting called for purposes of

permitting the presentation of the report; and

(2) noted in the minutes of the meeting.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.053. ACCESS TO BOOKS AND RECORDS. The commissioner, a

deputy commissioner, or an examiner or auditor of the

commissioner shall be given free access to:

(1) the books and records of an association;

(2) the books and records of a subsidiary or savings and loan

holding company of an association relating to the association's

business; and

(3) the books and records kept by an officer, agent, or employee

of the association, subsidiary, or savings and loan holding

company relating to the association's business.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.054. SUBPOENA; ADMINISTRATION OF OATH OR AFFIRMATION.

(a) In an examination conducted under this subchapter, the

commissioner, the deputy commissioner, or an examiner or auditor

of the commissioner may:

(1) subpoena witnesses;

(2) administer an oath or affirmation to a person, including a

director, officer, agent, or employee of an association; or

(3) require and compel by subpoena the production of documents,

including records, books, papers, and contracts.

(b) The commissioner may apply to a district court in Travis

County for an order requiring a person to obey a subpoena or to

appear or answer questions in connection with an examination.

(c) The court shall issue an order under Subsection (b) if the

court finds good cause to issue the subpoena or to take

testimony.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER C. SUPERVISORY INTERVENTION

Sec. 66.101. INTERVENTION FOR VIOLATIONS AND UNSAFE AND UNSOUND

PRACTICES. The commissioner may intervene in the affairs of an

association if the association or a person who participates in

the affairs of the association or a subsidiary of the

association:

(1) engages in or is about to engage in an unsafe and unsound

practice in conducting the affairs of the association; or

(2) violates or is about to violate:

(A) the articles of incorporation or bylaws of the association;

(B) a law or supervisory order applicable to the association; or

(C) a condition that the commissioner or the finance commission

has imposed on the association by written order or agreement.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.102. INTERVENTION FOR FILING INAPPROPRIATE INFORMATION.

The commissioner may intervene in the affairs of an association

if the association or a person who participates in the affairs of

the association or a subsidiary of the association files

materially false or misleading information in a filing required

by Subchapter L, Chapter 62.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.103. INTERVENTION FOR ACTIVITY RESULTING IN ACTUAL OR

POTENTIAL LOSS. (a) The commissioner may intervene in the

affairs of an association if a person who participates in the

affairs of the association or a subsidiary or savings and loan

holding company of the association commits or is about to commit:

(1) a fraudulent or criminal act in conducting the affairs that

may cause the association or a subsidiary of the association to

become or be in danger of becoming insolvent;

(2) an act that threatens immediate or irreparable harm to the

public or the association, a subsidiary of the association, or

the account holders or creditors of the association; or

(3) a breach of fiduciary duty that results in actual or

probable substantial financial losses or other damages to the

association or a subsidiary of the association or that would

seriously prejudice the interest of savings account holders or

holders of other security issued by the association.

(b) The commissioner may intervene in the affairs of an

association if the association:

(1) is insolvent;

(2) is in imminent danger of insolvency; or

(3) makes or is about to make:

(A) a loan the value of the security for which is materially

overstated; or

(B) an investment the market value of which is materially

overstated.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.104. INTERVENTION RELATING TO EXAMINATION OF AFFAIRS.

(a) The commissioner may intervene in the affairs of an

association if a person who participates in the affairs of the

association or a subsidiary or savings and loan holding company

of the association:

(1) refuses or is about to refuse to submit to interrogation

under oath by the commissioner or the commissioner's agent with

respect to the association's affairs; or

(2) materially alters, conceals, removes, or falsifies or is

about to materially alter, conceal, remove, or falsify a book or

record of the association or a subsidiary of the association.

(b) The commissioner may intervene in the affairs of an

association if the association:

(1) fails to maintain books and records from which the true

financial condition of the association or the state of the

association's affairs can be determined; or

(2) refuses to direct a person having possession of the books,

papers, records, or accounts of the association or the

association's subsidiary to permit the commissioner or the

commissioner's authorized representative to inspect or examine

those documents or accounts.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.105. TEMPORARY SUPERVISORY ORDER. (a) If the

commissioner has reasonable cause to believe that one or more of

the grounds for intervention under Section 66.101 exists or is

imminent, the commissioner may issue without notice and hearing

one or more of the following types of temporary supervisory

orders to correct and eliminate the grounds for supervisory

action:

(1) an order to cease and desist from continuing a particular

action, an order to take affirmative action, or both;

(2) an order suspending or prohibiting a person who participates

in the affairs of the association from further participating in

the affairs of the association or of another association;

(3) an order requiring divestiture of control of an association

obtained under Subchapter L, Chapter 62; or

(4) an order placing the affairs of the association under the

control of a conservator designated in the order, who may take

possession and control of the books, records, property, assets,

liabilities, and business of the association and manage the

association under the direction of the commissioner.

(b) An order under this section:

(1) must contain a reasonably detailed statement of the facts on

which the order is based; and

(2) takes effect when issued.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.106. SERVICE OF TEMPORARY SUPERVISORY ORDER. (a) A

temporary supervisory order may be served by personal delivery by

an agent of the commissioner or by certified or registered mail.

(b) Service is complete when an officer or director of the

association receives the order.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.107. HEARING ON TEMPORARY SUPERVISORY ORDER; FINAL

ORDER. (a) A temporary supervisory order issued under Section

66.105 becomes final and unappealable on the 16th day after the

date on which the order is issued unless before that day the

association or a person affected by the order requests a hearing

before the commissioner to determine whether the order should be

vacated, made permanent, or modified.

(b) The commissioner shall set the matter for hearing to be held

not earlier than the 11th day or later than the 30th day after

the date of the request. The hearing must be held at the offices

of the Department of Savings and Mortgage Lending in Austin.

(c) After the hearing, the commissioner may enter a final order

that vacates the temporary order or makes the temporary order

permanent in its original form or a modified form that is

consistent with the facts found by the commissioner.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 6.031, eff. September 1, 2007.

Sec. 66.108. PLAN OF OPERATION OF ASSOCIATION AFTER ORDER OF

TEMPORARY CONSERVATORSHIP. (a) Before or during a hearing under

Section 66.107 on a temporary supervisory order placing an

association under the control of a conservator, the board of the

association may present to the commissioner a plan to continue

the operation of the association in a manner that will correct or

eliminate the grounds on which the order is based.

(b) If the commissioner approves the plan or a modification of

the plan, the commissioner shall vacate the order placing the

association under conservatorship, conditioned on the

implementation and diligent prosecution of the plan.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.109. ENFORCEMENT OF SUPERVISORY ORDER. (a) The

commissioner, after giving notice, may assess against an

association or another person designated in a final supervisory

order who violates the order, or both, an administrative penalty

of not more than $1,000 each for each day of the violation. The

association may not reimburse or indemnify a person for any part

of the penalty.

(b) In addition to any other remedy provided by law, the

commissioner may institute in a district court in Travis County:

(1) a suit for injunctive relief to stop or prevent a violation

of a supervisory order; or

(2) a suit for injunctive relief and to collect the

administrative penalty.

(c) A bond is not required of the commissioner with respect to

injunctive relief granted under this section.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.110. STAY OF SUPERVISORY ORDER. (a) A temporary

supervisory order may not be stayed pending a hearing unless the

commissioner orders a stay.

(b) A final supervisory order may not be stayed pending judicial

review unless the reviewing court orders a stay for good cause.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.111. DISCLOSURE OF INFORMATION IN SUPERVISORY ORDER;

CONFIDENTIALITY. (a) Except as provided by Subsection (b) or

(c), information contained in a temporary or final supervisory

order or a notice, correspondence, or other record relating to

the order is confidential.

(b) The commissioner, for good reason as determined by the

commissioner, may disclose the information described by

Subsection (a) in a hearing or judicial proceeding under Section

66.107, 66.109, or 66.110 or in a proceeding to assert a defense

under Section 66.403.

(c) The commissioner may disclose the information described by

Subsection (a) to a department, agency, or instrumentality of

this or another state or the United States if the commissioner

determines that disclosure is necessary or proper to enforce the

laws of this or another state or the United States.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER D. CONSERVATORSHIP

Sec. 66.151. PLACEMENT OF ASSOCIATION UNDER CONSERVATORSHIP. If

the commissioner does not approve a plan to continue the

operation of an association under Section 66.108, the conservator

shall continue to manage the affairs of the association unless

the temporary conservatorship order is modified or vacated:

(1) by order of the commissioner; or

(2) as a result of judicial review.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.152. DUTIES OF CONSERVATOR. (a) The conservator and

any deputy or assistant conservator appointed by the

commissioner, under the direction and supervision of the

commissioner, shall:

(1) take possession and control of the books, records, property,

assets, liabilities, and business of the association; and

(2) conduct the business and affairs of the association.

(b) The conservator shall:

(1) undertake to remove the causes and conditions that made the

conservatorship necessary; and

(2) during the conservatorship, report to the commissioner as

required by the commissioner.

(c) The conservator shall take measures necessary to preserve,

protect, and recover the assets or property of the association,

including a claim or cause of action that belongs to or may be

asserted by the association. The conservator may deal with that

property in the capacity of conservator.

(d) The conservator may file, prosecute, or defend a suit

brought by or against the association if the conservator

considers it necessary to protect the interested party or

property affected by the suit.

(e) A suit filed by the conservator under Subsection (c) must be

brought in Travis County.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.153. TERM OF CONSERVATOR. The conservator shall serve

until the purposes of the conservatorship are accomplished.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.154. TRANSFER OF MANAGEMENT OF REHABILITATED

ASSOCIATION. If the association is rehabilitated, the

conservator shall return the management of the association to the

association's board under terms that are reasonable and necessary

to prevent a recurrence of the conditions that created the need

for the conservatorship.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.155. SCOPE OF AUTHORITY OF OTHER PERSONS DURING

CONSERVATORSHIP. During the conservatorship, a person who

participates in the affairs of the association shall act

according to the conservator's instructions and may exercise only

the authority that the conservator expressly grants.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.156. COST OF CONSERVATORSHIP. (a) The commissioner

shall determine the cost of the conservatorship.

(b) The cost of conservatorship shall be paid from the

association's assets.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.157. VENUE. A suit filed against an association or its

conservator while a conservatorship order is in effect must be

brought in Travis County.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER E. VOLUNTARY SUPERVISORY CONTROL

Sec. 66.201. PLACEMENT OF ASSOCIATION UNDER VOLUNTARY

SUPERVISORY CONTROL. (a) An association's board may consent to

the commissioner's placement of the association under supervisory

control.

(b) The commissioner may appoint the supervisor and one or more

deputy supervisors.

(c) Supervisory control continues until the conditions for which

the supervisory control was imposed are corrected.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.202. POWERS OF SUPERVISORS. A supervisor or deputy

supervisor has the powers of a conservator under Subchapter D and

any other power established by agreement between the commissioner

and the association's board of directors.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.203. COST OF SUPERVISORY CONTROL. The cost of the

supervisory control of an association shall be set by the

commissioner and paid by the association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER F. CLOSING

Sec. 66.251. CLOSING OF ASSOCIATION BY BOARD RESOLUTION. An

association's board, by resolution and with the commissioner's

consent, may close the association and tender to the commissioner

for disposition as provided by this subchapter the assets and all

the affairs of the association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.252. CLOSING OF ASSOCIATION BY COMMISSIONER'S ORDER.

The commissioner or the commissioner's representative may close

an association if the commissioner determines after an

examination that:

(1) the interests of the depositors and creditors of the

association are jeopardized because of:

(A) the association's insolvency or imminent insolvency; or

(B) a substantial dissipation of the association's assets or

earnings because of a violation of a law or an unsafe or unsound

practice; and

(2) it is in the best interest of the depositors and creditors

to close the association and liquidate the association's assets.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.253. NOTICE OF CLOSING. (a) Immediately after an

association is closed by its board or by the commissioner under

this subchapter, the commissioner shall post at the main entrance

of the association an appropriate notice of the closure. After

notice is posted, a judgment lien, attachment lien, or other

voluntary lien may not attach to an asset of the association, and

a director or an officer or agent of the association may not:

(1) act for the association; or

(2) convey, transfer, assign, pledge, mortgage, or encumber an

asset of the association.

(b) An attempt to take an action prohibited under Subsection

(a)(2) after the notice is posted or in anticipation of posting

the notice, including preferring in any manner a depositor or

creditor of the association, is void.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.254. EFFECT OF CLOSING. (a) On closing an association

under this subchapter, the commissioner may:

(1) liquidate the association as provided by Subchapter E; or

(2) tender the association's assets and all the association's

affairs to the Federal Deposit Insurance Corporation and appoint

the Federal Deposit Insurance Corporation as receiver or

liquidating agent to act in accordance with this chapter or

federal law.

(b) The Federal Deposit Insurance Corporation on accepting the

tender and appointment prescribed by Subsection (a)(2) may:

(1) act without bond or other security as to the appointment;

and

(2) without court supervision, exercise any right, power, or

privilege provided by the laws of this state to a receiver or

liquidating agent, as applicable, and any applicable right,

power, or privilege available under federal law.

(c) On acceptance of the appointment prescribed by Subsection

(a)(2), possession of and title to all the assets, business, and

property of the association pass to the Federal Deposit Insurance

Corporation without the execution of any instrument transferring

title or right of use.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.255. HEARING ON COMMISSIONER'S ORDER. (a) Not later

than the second day, excluding legal holidays, after the date on

which the commissioner closes an association under Section

66.252, the association, by resolution of its board, may sue in a

district court of Travis County to enjoin the commissioner from

taking further action under this subchapter.

(b) The court, without notice or hearing, may restrain the

commissioner from taking further action until after a hearing on

the suit is held. If the court restrains the commissioner, the

court shall instruct the commissioner to hold the assets and

affairs of the association in the commissioner's possession until

disposition of the suit. On receipt of this instruction, the

commissioner shall refrain from taking further action, other than

a necessary or proper action approved by the court to prevent

loss or depreciation in the value of the assets.

(c) The court as soon as possible shall hear the suit and shall

enter a judgment enjoining or refusing to enjoin the commissioner

from proceeding under this subchapter.

(d) The commissioner, regardless of the judgment entered by the

court or any supersedeas bond filed, shall retain possession of

the association's assets until final disposition of any appeal of

the judgment.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER G. LIQUIDATION

Sec. 66.301. LIQUIDATION OF ASSOCIATION. (a) If the

commissioner doubts that an association subject to a

conservatorship order can be rehabilitated, the commissioner may

set a hearing to determine whether the association should be

liquidated. Not later than the 10th day before the hearing date,

notice of the hearing shall be given by certified mail to the

officers and directors of the association and by publication in a

newspaper of general circulation in the county in which the

principal office of the association is located.

(b) If the commissioner finds that the association cannot be

rehabilitated and it is in the public interest and the best

interest of the savings account holders and creditors of the

association that the bank be closed and its assets liquidated,

the commissioner by liquidation order may appoint a liquidating

agent and dissolve the association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.302. REMOVAL OR REPLACEMENT OF LIQUIDATING AGENT. (a)

The commissioner, with or without cause, may remove a liquidating

agent and appoint another agent.

(b) If a liquidating agent resigns, dies, or otherwise becomes

unable to serve, the commissioner shall promptly appoint another

agent.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.303. DUTIES OF LIQUIDATING AGENT. (a) Under the

commissioner's supervision, the liquidating agent shall:

(1) receive and take possession of the books, records, assets,

and property of the association;

(2) sell, enforce collection of, and liquidate the assets and

property of the association;

(3) sue in the name of the liquidating agent or the association;

(4) defend an action brought against the liquidating agent or

the association;

(5) receive, examine, and pass on a claim brought against the

association, including a claim of a depositor;

(6) make distributions to and pay creditors, depositors,

shareholders, and members of the association as their interests

appear;

(7) from time to time make a ratable liquidation dividend on

claims that have been proved to the satisfaction of the

association's board of directors or the liquidating agent or that

have been adjusted by a court;

(8) after the association's assets have been liquidated, make

further liquidation dividends on claims previously proved or

adjusted; and

(9) execute documents and perform any other action that the

liquidating agent considers necessary or desirable to the

liquidation.

(b) For purposes of making a further liquidation dividend under

Subsections (a)(7) and (8), the liquidating agent may accept the

statement of an amount due a claimant as shown on the

association's books and records instead of a formal proof of

claim filed on the claimant's behalf.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.304. NOTICE. (a) Under the commissioner's supervision,

the liquidating agent shall give notice to creditors and savings

account holders directing them to present and prove their claims

and requiring them to file a written proof of claim at the

address designated in the notice.

(b) The notice shall be published once a week for three

successive weeks in a newspaper of general circulation in each

county in which the association maintained an office or branch to

transact business on the date the association ceased unrestricted

operations.

(c) Not later than the 30th day after the date on which the

notice is first published, the liquidating agent shall mail a

similar notice to each depositor and creditor named in the books

of the association at the address shown in those books.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.305. PRESENTATION OF CLAIM. (a) To be entitled to

priority, each person asserting a claim against an association

being liquidated under this subchapter must present the claim in

writing to the commissioner or the liquidating agent at the

address designated in the notice under Section 66.304 before the

last day of the 18th month after the date the notice is first

published.

(b) The claim must:

(1) contain a statement of the facts on which the claim is

based;

(2) set out any right of payment priority or other specific

right asserted by the claimant; and

(3) be signed and sworn to by the claimant.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.306. PRIORITY OF CLAIMS. On liquidation of an

association, claims for payment have the following priority:

(1) obligations incurred by the commissioner or the liquidating

agent, fees and assessments due the Department of Savings and

Mortgage Lending, and expenses of liquidation, all of which may

be covered by the proper reserve of money;

(2) approved claims of creditors, to the extent that the claims

are secured by, or constitute a lien on, the assets or property

of the association;

(3) approved claims of depositors against the general

liquidating account of the association;

(4) approved claims of general creditors and the unsecured

portion of a creditor obligation described by Subdivision (2);

(5) otherwise approved claims that were not filed within the

time prescribed by Section 66.305;

(6) approved claims of subordinated creditors; and

(7) claims of shareholders of the association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 6.032, eff. September 1, 2007.

Sec. 66.307. ACTION ON CLAIM. (a) Within three months after

the date of receipt of a claim against an association being

liquidated, the liquidating agent shall approve or reject the

claim in whole or in part, unless that period is extended by

written agreement with the claimant.

(b) A liquidating agent who approves the claim or a part of the

claim shall classify the claim and enter the claim and the action

taken in a claim register.

(c) A liquidating agent who rejects the claim in whole or in

part, or who denies a right of payment priority or any other

right asserted by the claimant, shall notify the claimant of the

action by registered mail.

(d) An approved claim presented after the declaration and

payment of any dividend and on or before the last day of the 18th

month after the date on which notice is first published under

Section 66.304 qualifies to participate in dividends previously

paid before an additional dividend is declared. A claim that was

not presented during that period does not qualify to participate

in a dividend or distribution of assets until all approved claims

filed during that period are fully paid.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.308. HEARING ON CLAIM; APPEAL OF ADVERSE DETERMINATION

OF CLAIM. (a) A claimant may appeal an adverse determination of

a claim by filing suit on the claim in a district court of Travis

County within three months after the date on which notice is

mailed under Section 66.307.

(b) The determination on a claim becomes final and is not

subject to review if suit is not filed in accordance with

Subsection (a).

(c) Review by a district court under Subsection (a) is by trial

de novo.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.309. PAYMENT OF FINAL DIVIDEND. (a) The liquidating

agent may not pay a final dividend before the first day of the

19th month after the date notice is first published under Section

66.304.

(b) The liquidating agent shall declare and pay a final dividend

after:

(1) the period provided by Subsection (a) expires; and

(2) the liquidating agent liquidates each asset of the

association capable of being liquidated or receives sufficient

money from the liquidation to:

(A) pay the costs of the liquidation;

(B) pay all claims that have been presented and established; and

(C) leave money available to pay all nonclaiming depositors and

creditors of the association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.310. DEPOSIT OF MONEY BY LIQUIDATING AGENT. The

liquidating agent shall deposit all unclaimed dividends and all

money available for nonclaiming depositors and creditors in one

or more state-chartered financial institutions for the benefit of

the depositors and creditors entitled to the dividends or money.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.311. PAYMENT OF NONCLAIMING DEPOSITORS AND CREDITORS.

(a) Except as provided by Subsection (b), the liquidating agent,

on demand, shall pay a depositor or creditor of the association

who does not make a claim under Section 66.305 any amount held by

the liquidating agent for the benefit of the depositor or

creditor.

(b) If the liquidating agent has a doubt about the identity of a

claimant or the claimant's right to the money, the liquidating

agent shall reject the claim and notify the claimant by

registered mail.

(c) The liquidating agent's rejection of a claim becomes final

if the claimant does not file suit against the liquidating agent

to recover the money in a district court of Travis County within

three months after the date on which the notice is mailed.

(d) A suit under Subsection (c) is an action in rem. Judgment is

binding on all persons interested in the money.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.312. COST OF LIQUIDATION. (a) The commissioner shall

determine the cost of the liquidation.

(b) The cost of liquidation shall be paid from the association's

assets as the commissioner directs.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.313. FINAL REPORT. After paying a final dividend as

provided by Section 66.309 and performing any necessary or proper

action in liquidating the association's assets for the benefit of

the depositors and creditors of the association, the liquidating

agent shall file with the commissioner a final report of the

liquidation.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.314. CONTINUED EXISTENCE OF ASSOCIATION FOLLOWING

LIQUIDATION. For the purposes of adjusting and settling claims

not disposed of during the liquidation, the association continues

to exist until the third anniversary of the date the liquidation

order is issued.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.315. SPECIAL LIQUIDATING AGENT. At the completion of

the liquidation, the commissioner may appoint a special

liquidating agent if necessary to adjust and settle undisposed

claims.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.316. CLOSING OF LIQUIDATION; ORDER AND LIABILITY. (a)

The liquidating agent shall certify the completion of the

liquidation to the commissioner, who shall then issue an order

closing the liquidation.

(b) After the commissioner issues the order, the commissioner

and the liquidating agent are discharged from any further duty or

liability in connection with the administration of the

association's affairs.

(c) After the closing order, a person does not have a claim,

suit, or action against the commissioner or the liquidating

agent, individually or in an official capacity, except a suit to

recover an unclaimed deposit as provided by this subchapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.317. ADMINISTRATIVE PROCEDURE. The procedures for a

contested case hearing under Chapter 2001, Government Code, apply

to a hearing set by the commissioner under this subchapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER H. RECEIVERSHIP OF UNINSURED ASSOCIATIONS

Sec. 66.351. PLACEMENT OF CERTAIN ASSOCIATIONS IN RECEIVERSHIP.

(a) After a final liquidation order has been issued under

Subchapter F or G for an association the deposits of which are

not insured by the Federal Deposit Insurance Corporation or

another state or federal agency, the commissioner or liquidating

agent may apply to a district court of Travis County to appoint a

receiver for the association.

(b) The court shall appoint a receiver if the court finds

substantial evidence that:

(1) the commissioner has met all applicable requirements of

Subchapter F or G for issuing the liquidation order;

(2) service of the liquidation order has been completed as

provided by Section 66.106; and

(3) the order is a final unappealable order under Subchapter F

or G.

(c) The court shall appoint the liquidating agent appointed

during the liquidation of the association to serve as

transitional receiver during the first 60 days of the

receivership. The court may appoint a different receiver for the

remainder of the receivership.

(d) After the court appoints a receiver, liquidation of the

association under the supervision of the commissioner ends and

the receiver shall liquidate the association under the

supervision of the court.

(e) A receiver is governed by:

(1) Subchapter F, to the extent that subchapter is not

inconsistent with this section;

(2) Subchapter G, other than Sections 66.302 and 66.316, and to

the extent that subchapter is not inconsistent with this section;

and

(3) state law applicable to receiverships generally to the

extent the law is not inconsistent with this chapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.352. DUTIES OF RECEIVER. On appointment, the receiver

shall:

(1) immediately take charge of the affairs of the association,

subject to the direction of the court; and

(2) conduct the business of the association or act as necessary

to conserve the assets and protect the rights of the depositors

or creditors and shareholders and members of the association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.353. COMPENSATION OF RECEIVER. The receiver is entitled

to compensation as determined by the court.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.354. EFFECT OF RECEIVERSHIP ON COMMISSIONER AND

LIQUIDATING AGENT. (a) On appointment of the receiver, the

commissioner and liquidating agent are discharged from further

duty in connection with the administration or regulation of the

affairs of the association and are not liable, individually or in

an official capacity, for an action or a failure to act while the

association was in liquidation under this chapter.

(b) The appointment or the action of a receiver under this

subchapter does not invalidate an authorized action taken by the

liquidating agent under Subchapter G. The prior action of the

liquidating agent is considered valid as if the action had been

approved by the court in the receivership proceedings.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.355. RECEIPT OF ITEMS AS EVIDENCE IN RECEIVERSHIP

PROCEEDING; CERTIFICATION. (a) A book, record, document, or

paper of the association received and held by the receiver during

the receivership proceeding or a certified copy of one of those

items, under the hand and official seal of the receiver, is

admissible as evidence in a case brought by or against the

receiver without additional evidence of authenticity except for a

certificate of the receiver stating that the item was received

from the custody of the association or found among the

association's effects.

(b) In a case brought by or against the receiver, the receiver

may:

(1) certify the correctness of a paper, document, or record of

the receiver's office, including an item described by Subsection

(a); and

(2) certify under seal of the receiver to a fact contained in

the paper, document, or record in evidence in a case in which the

original would be evidence.

(c) When admitted into evidence, the original or a certified

copy or part of an item described by Subsection (b) becomes prima

facie evidence of the facts disclosed in the item.

(d) This section applies to a case brought by or against the

liquidating agent before the appointment of a receiver as if the

case had been brought by or against the receiver.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.356. TITLE AND CUSTODY OF ASSOCIATION'S ASSETS. (a)

The property and assets of the association are in the custody of

the court from the date the receivership begins.

(b) The receiver and a receiver's successor in office have title

to all property, contracts, and rights of action of the

association, wherever located, beginning on the date the order

directing the receiver to take possession is entered. The title

of the receiver relates back to the date the liquidation of the

association begins unless the court provides otherwise.

(c) The filing or recording of the order in a record office of

the state has the same effect for notice purposes as a filed or

recorded deed, bill of sale, or other evidence of title.

(d) If the court considers it desirable to protect the assets of

the association, the court may require a bond from the receiver,

in an amount set by the court, to be paid from the association's

assets.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER I. MISCELLANEOUS PROVISIONS

Sec. 66.401. DERIVATIVE SUIT. (a) The commissioner may bring a

derivative suit on behalf of an association on an unpursued cause

of action if:

(1) the commissioner determines that the suit should be brought

to protect the public interest or the interest of the association

or the shareholders, members, or creditors of the association;

and

(2) the association has not brought suit on the action before

the 31st day after the date on which the commissioner gives

notice to the association that suit should be brought.

(b) Except as provided by another statute that provides for

mandatory venue, venue is in a district court of Travis County.

(c) The commissioner may employ legal counsel to bring and

prosecute a derivative suit. The commissioner may:

(1) pay the counsel from funds appropriated for the operation of

the Department of Savings and Mortgage Lending; or

(2) require the association for which the suit is brought to pay

the counsel directly or to reimburse the Department of Savings

and Mortgage Lending for the payment.

(d) The association shall be paid an amount equal to the amount

of the proceeds of a judgment on a suit brought under this

section less unreimbursed costs and expenses, including

attorney's fees, incurred by the Department of Savings and

Mortgage Lending in prosecuting the suit.

(e) In this section, "unpursued cause of action" means an

existing claim belonging to an association on which a suit or

other effective action has not been filed or taken by or on

behalf of the association on or before the last day of the sixth

month after the date on which the cause of action arose,

involving:

(1) a claim for monetary damages or recovery of property;

(2) a claim for equitable relief;

(3) a cause of action for breach of contract or for enforcement

of a contract; or

(4) a claim on a fidelity bond.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 6.033, eff. September 1, 2007.

Sec. 66.402. PAYMENT OF INSURED DEPOSIT LIABILITIES BY FDIC. If

the Federal Deposit Insurance Corporation pays the insured

deposit liabilities of an association that has been closed or is

being liquidated under this chapter, regardless of whether the

Federal Deposit Insurance Corporation has become receiver or

liquidating agent, the Federal Deposit Insurance Corporation is

subrogated, to the extent of the payment, to all rights that the

owners of the savings accounts or deposits have against the

association.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 66.403. ENFORCEABILITY OF LOAN PROMISE OR AGREEMENT MADE BY

ASSOCIATION BEFORE CONSERVATORSHIP OR SUPERVISORY CONTROL. If a

promise or agreement to lend money is not otherwise unenforceable

under Chapter 26, Business & Commerce Code, and if the

promise or agreement is made by the association before the

association is placed under conservatorship or supervisory

control, the promise or agreement or a memorandum of the promise

or agreement is enforceable against the association only if the

promise or agreement or memorandum:

(1) is in writing and states the material terms of the loan and

the loan's repayment;

(2) is signed by an authorized officer or employee of the

association and the person to whom the promise or agreement was

made; and

(3) is approved by the association's board.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.