TITLE banking-and-securities

Part II. Texas Department of Banking

Chapter 25. Prepaid Funeral Contracts

Subchapter B. Regulation of Licenses

7 TAC §25.31

The Texas Department of Banking (the department) proposes new §25.31, concerning the effect that a criminal conviction of certain officials of an applicant for or holder of a permit to sell or accept money for prepaid funeral benefits may have on the application or permit.

As required by Texas Civil Statutes, Article 6252-13d, the section defines the crimes that are considered to be directly related to the duties and responsibilities of selling and managing prepaid funeral benefits contracts, the officials whose conviction of such a crime could adversely affect a proposed or existing permit, and specifies the administrative and judicial review available upon the denial of an application for a permit, or the cancellation, suspension, or refusal to renew an existing permit because of such criminal conviction.

Everette Jobe, General Counsel, Texas Department of Banking, has determined that for the first five-year period the section as proposed will be in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the section.

Mr. Jobe also has determined that for each year of the first five-year period the section as proposed will be in effect, the public benefit anticipated as a result of the proposed section will be that applicants for a permit can better assess the prospects of obtaining a permit prior to expending the resources necessary to do so when an official of the applicant has a criminal conviction, and existing permit holders may avoid adverse action with respect to the permit because of such a conviction. There will be no effect on small businesses. There is no anticipated economic cost to persons who are required to comply with the section as proposed.

Comments on the proposal may be submitted in writing to Loren E. Svor, Assistant General Counsel, Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas, 78705-4294, or by e-mail to loren.svor@banking.state.tx.us.

The section is proposed under Texas Civil Statutes, Article 6252-13d, which requires a licensing authority to issue guidelines relating to the suspension, revocation, or denial of a license because of a conviction of a crime which directly relates to the licensed occupation, and Finance Code, §154.051(b), which authorizes the department to adopt rules on any matter relating to the enforcement and administration of Finance Code, Chapter 154.

Finance Codes, §154.109 and §154.110, are affected by the proposal.

§25.31.Effect of Criminal Convictions on Permits.

(a)

Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise:

(1)

Commissioner--The banking commissioner of Texas.

(2)

Official--An individual applying for or holding a permit, or an owner, director, officer, or holder of more than 25 percent of the outstanding shares of an entity applicant for or holder of a permit.

(3)

Permit--The authorization issued by the commissioner pursuant to Finance Code, Chapter 154, Subchapter C, to sell or accept money for prepaid funeral benefits, or solicit an individual's designation of prepaid funeral benefits to be paid out of a fund, investment, security, or contract.

(b)

Effect of criminal conviction on proposed or existing permit. The commissioner may deny an application for a permit, or cancel, suspend, or refuse to renew a permit if an official of the applicant or permit holder has been convicted of a crime which directly relates to the duties and responsibilities of a seller or servicer of prepaid funeral benefits contracts.

(c)

Crimes directly related to fitness for permit. The sale and servicing of prepaid funeral benefits involves or may involve the making of representations to prospective plan purchasers, the collection and investment of money paid by purchasers of prepaid funeral benefits, paying premiums on insurance policies sufficient to fund the benefits, and the provision of funeral services on matured contracts. Consequently, a crime involving the misrepresentation of costs or benefits of a product or service, or the improper handling of money or property entrusted to the person for the future benefit of another is a crime directly related to the duties and responsibilities of a permit holder, including a crime involving:

(1)

fraud, misrepresentation, deception, or forgery;

(2)

breach of trust or other fiduciary duty;

(3)

dishonesty or theft;

(4)

violation of a statute of this or another state governing prepaid funeral benefits plans;

(5)

violation of a statute of this or another state governing the provision of funeral services;

(6)

failure to file a required report with a governmental body, or falsification of such a report; or

(7)

attempt, preparation, or conspiracy to commit one of the preceding crimes.

(d)

Mitigating considerations. In determining whether a conviction for a directly-related crime renders a person or an entity related to the person presently unfit to be a permit holder, the commissioner shall consider:

(1)

the extent and nature of the person's past criminal activity;

(2)

the age of the person at the time of the commission of the crime;

(3)

the time elapsed since the person's last criminal activity;

(4)

the conduct and work activity of the person prior to and following the criminal activity;

(5)

the person's rehabilitation or rehabilitative effort while incarcerated or following release; and

(6)

the person's present fitness for a permit, evidence of which may include letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for the person, the sheriff and chief of police in the community where the person resides, and other persons in contact with the convicted person.

(e)

The applicant must, to the extent possible, secure and provide to the commissioner reliable documents and/or testimony evidencing required to make a determination under subsection (d) of this section, including the recommendations of the prosecution, law enforcement, and correctional authorities. The applicant must also furnish proof in such form as may be required by the commissioner that he or she has maintained a record of steady employment and has supported his or her dependents and has otherwise maintained a record of good conduct and has paid all outstanding court costs, supervision fees, fines, and restitution as may have been ordered in all criminal cases in which he or she has been convicted.

(f)

Notification of adverse action. If a permit application is denied, or if a permit is canceled, suspended or not renewed because of the criminal conviction of an official, the commissioner will so notify the applicant or permit holder in writing. The notification must include a statement of the reasons for the action and a description of the person's right to administrative or judicial review of the action, including any time frames within which the person must act to obtain such review.

(g)

Administrative appeal. An applicant whose permit application is denied, or a permit holder whose permit is suspended, canceled, or not renewed may request a hearing. A hearing on an order of suspension, cancellation, or non-renewal must be requested not later than 15 days from the date the order is mailed. A hearing is subject to the provisions of the Administrative Procedure Act, Chapter 2001, Government Code and the provisions of Chapter 9, Subchapter B of this title (relating to Contested Case Hearings).

(h)

Judicial review. An applicant whose permit application has been denied, or a permit holder whose permit has been suspended, canceled or not renewed because of the criminal conviction of an official, and who has exhausted all administrative appeals, may file an action for judicial review as set forth in Texas Civil Statutes, Article 6252-13d.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on May 11, 1999.

TRD-9902714

Everette D. Jobe

General Counsel

Texas Department of Banking

Earliest possible date of adoption: June 27, 1999

For further information, please call: (512) 475-1300