HB5621 - Relating to the jurisdiction of district and county attorneys to prosecute certain consumer protection violations.

      By: Dutton H.B. No. 5621       A BILL TO BE ENTITLED   AN ACT   Relating to the jurisdiction of district and county attorneys to   prosecute certain consumer protection violations.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Section 17.48, Business & Commerce Code, is   amended by adding the following:           (a)     An act to which this section applies is subject to   action by a district or county attorney under Sections 17.58,   17.60, 17.61, and 17.62 to the same extent as the act is subject to   action by the consumer protection division under those sections.           (b)     If a district or county attorney, under the authority of   this section, accepts assurance of voluntary compliance under   Section 17.58, the district or county attorney must file the   assurance of voluntary compliance in the district court in the   county in which the alleged violator resides or does business.           (c)     If a district or county attorney, under the authority of   this section, executes and serves a civil investigative demand and   files a petition described in Section 17.61(g), the petition must   be filed in the district court in the county where the parties   reside.          ( a d)  It is the duty of the district and county attorneys to   lend to the consumer protection division any assistance requested   in the commencement and prosecutions of actions under this   subchapter.          ( b e)  A district or county attorney, with prior written   notice to the consumer protection division, may institute and   prosecute actions under Section 17.47 to the same extent and in the   same manner as the consumer protection division so long as the   consumer protection division does not intend to institute or   prosecute an action with respect to that matter. A district or   county attorney may institute a suit described by this section on or   after the 90th day after the date the consumer protection division   receives written notice unless before the 90th day after the date   the notice is received the attorney general responds that it is   actively investigating or litigating at least one of the alleged   violations set forth in the notice. The consumer protection   division shall notify the district or county attorney it no longer   intends to actively investigate or litigate an alleged violation   within a reasonable time of such determination. On request, the   consumer protection division shall assist the district or county   attorney in any action taken under this subchapter. If an action is   prosecuted by a district or county attorney alone, he shall make a   full report to the consumer protection division including the final   disposition of the matter. No district or county attorney may bring   an action under this section against any licensed insurer or   licensed insurance agent transacting business under the authority   and jurisdiction of the State Board of Insurance unless first   requested in writing to do so by the State Board of Insurance, the   commissioner of insurance, or the consumer protection division   pursuant to a request by the State Board of Insurance or   commissioner of insurance.          (f)  In an action prosecuted by a district or county attorney   under this subchapter for a violation of Section 17.46(b)(28),   three-fourths of any civil penalty awarded by a court must be paid   to the county where the court is located.          (g)  A district or county attorney is not required to obtain   the permission of the consumer protection division to prosecute an   action under this subchapter for a violation of Section   17.46(b)(28), if the district or county attorney provides prior   written notice to the division as required by Subsection (b).          SECTION 2.  Section 17.61, Business & Commerce Code is   amended to read as follows.          (a)  Whenever the consumer protection division believes that   any person may be in possession, custody, or control of the original   copy of any documentary material relevant to the subject matter of   an investigation of a possible violation of this subchapter, an   authorized agent of the division may execute in writing and serve on   the person a civil investigative demand requiring the person to   produce the documentary material and permit inspection and copying.          (b)  Each demand shall:                (1)  state the statute and section under which the   alleged violation is being investigated, and the general subject   matter of the investigation;                (2)  describe the class or classes of documentary   material to be produced with reasonable specificity so as to fairly   indicate the material demanded;                (3)  prescribe a return date within which the   documentary material is to be produced; and                (4)  identify the persons authorized by the consumer   protection division to whom the documentary material is to be made   available for inspection and copying.          (c)  A civil investigative demand may contain a requirement   or disclosure of documentary material which would be discoverable   under the Texas Rules of Civil Procedure.          (d)  Service of any demand may be made by:                (1)  delivering a duly executed copy of the demand to   the person to be served or to a partner or to any officer or agent   authorized by appointment or by law to receive service of process on   behalf of that person;                (2)  delivering a duly executed copy of the demand to   the principal place of business in the state of the person to be   served;                (3)  mailing by registered mail or certified mail a   duly executed copy of the demand addressed to the person to be   served at the principal place of business in this state, or if the   person has no place of business in this state, to his principal   office or place of business.          (e)  Documentary material demanded pursuant to this section   shall be produced for inspection and copying during normal business   hours at the principal office or place of business of the person   served, or at other times and places as may be agreed on by the   person served and the consumer protection division.          (f)  No documentary material produced pursuant to a demand   under this section, unless otherwise ordered by a court for good   cause shown, shall be produced for inspection or copying by, nor   shall its contents be disclosed to any person other than the   authorized employee of the office of the attorney general or   district or county attorney without the consent of the person who   produced the material. The office of the attorney general or   district or county attorney shall prescribe reasonable terms and   conditions allowing the documentary material to be available for   inspection and copying by the person who produced the material or   any duly authorized representative of that person. The office of   the attorney general or district or county attorney may use the   documentary material or copies of it as it determines necessary in   the enforcement of this subchapter, including presentation before   any court. Any material which contains trade secrets shall not be   presented except with the approval of the court in which the action   is pending after adequate notice to the person furnishing the   material.          (g)  At any time before the return date specified in the   demand, or within 20 days after the demand has been served,   whichever period is shorter, a petition to extend the return date   for, or to modify or set aside the demand, stating good cause, may   be filed in the district court in the county where the parties   reside, or a district court of Travis County.          (h)  A person on whom a demand is served under this section   shall comply with the terms of the demand unless otherwise provided   by a court order.          (i)  Personal service of a similar investigative demand   under this section may be made on any person outside of this state   if the person has engaged in conduct in violation of this   subchapter. Such persons shall be deemed to have submitted   themselves to the jurisdiction of this state within the meaning of   this section.          SECTION 3  Section 59.006 of the Texas Finance Code is   amended to read as follows:          (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:                      (A)  the investigation or prosecution of a   criminal offense;                      (B)  the investigation of alleged abuse, neglect,   or exploitation of an elderly or disabled person in accordance with   Chapter 48, Human Resources Code; or                      (C)  the assessment for or provision of   guardianship services under Subchapter E, Chapter 161, Human   Resources Code;                (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 or a district or county attorney as   authorized by law other than the procedural law governing discovery   in civil cases;                (8)  the voluntary use or disclosure of a record by a   financial institution subject to other applicable state or federal   law; or                (9)  a record request in connection with an   investigation conducted under Section 1054.151, 1054.152, or   1102.001, Estates Code.          (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 [Text truncated for display. 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