| (a) Definitions. Definitions in Finance Code, §182.011(a
- 1), are incorporated herein by reference except for the term "family
member." As used in this section and in Finance Code, Title 3, Subtitle
F (the Trust Company Act), the following words and terms shall have
the following meanings, unless the context clearly indicates otherwise:
(1) "Family" means individuals who are related within
the seventh degree of affinity or consanguinity to a shared common
ancestor.
(2) "Family member" means each individual included
in the definition of "family," provided that a foster child is considered
the child of the foster parent and a person for whom a guardian was
appointed before the person's 18th birthday is considered the child
of the guardian. The term "family member" also includes the shared
common ancestor.
(3) "Key employee" means the president of the trust
company, any of its officers in charge of a principal business unit,
division or function (such as administration or finance), an officer
who performs a policymaking function for the trust company, or another
person who performs similar policymaking functions for the trust company.
(b) Application for exemption.
(1) Pursuant to Finance Code, §182.011 and §182.012,
a trust company may request in writing that it be exempted from specified
provisions of the Trust Company Act, if it has only family clients,
transacts business solely on behalf of family clients and their related
interests, is wholly owned, directly or indirectly, legally or beneficially,
by one or more family members, and does not hold itself out to the
general public as a corporate fiduciary for hire.
(2) The application must:
(A) be accompanied by the appropriate filing fee required
by §21.2 of this title (relating to Filing and Investigation
Fees);
(B) specify the specific exemptions requested and the
reasons or justification for requesting the exemptions; and
(C) include a copy of the trust company's certificate
of formation containing, or a proposed amendment to the certificate
of formation that would cause it to contain, the following statement
in its purposes clause: "The sole purpose for which the trust company
is organized is to act as a corporate fiduciary for accounts in which
all beneficiaries are descendants of and related within the seventh
degree of affinity or consanguinity to _____________ (name of common
ancestor), and their related interests to the extent permitted by
the Texas Finance Code or applicable rules and regulations."
(c) Exemption. Subject to conditions or limitations
being imposed by the banking commissioner, a family trust company
may request exemption from the following provisions of the Trust Company
Act:
(1) the requirement of Finance Code, §183.103(a),
that five is the minimum number of directors, managers, or managing
participants that can be specified in the certificate of formation,
provided that the certificate of formation must specify the number
of directors, managers, or managing participants, consistent with
paragraph (2) of this subsection;
(2) the requirement of Finance Code, §183.103(a),
that the number of directors, managers, or managing participants of
a trust company cannot be less than five or more than 25, the majority
of whom must be residents of this state, provided that the board of
a trust company seeking exemption under this section must consist
of not fewer than three or more than 25 directors, managers, or managing
participants, at least one of whom must be a resident of this state;
(3) the restrictions of Finance Code, §183.109(a)
- (c), regarding transactions with management and affiliates;
(4) the limitations of Finance Code, §184.002,
on investment in trust company facilities;
(5) the limitations of Finance Code, §184.101,
on securities investments, provided that the exemption request must
address each limitation and the reasons for exemption separately;
(6) the restrictions of Finance Code, §184.102,
regarding transactions in state trust company shares or participation
shares;
(7) the limitations of Finance Code, §184.003,
on other real estate investments; and
(8) the limitations of Finance Code, §§184.201
- 184.203, regarding lending limit and lease financing transaction
restrictions, provided that no loans may be made from a trust company's
minimum restricted capital amount.
(d) Notice to applicant. The banking commissioner shall
issue a written notice as required by §21.4 of this title (relating
to Required Information and Abandoned Filings) informing the applicant
either that all filing fees have been paid and the application is
complete and accepted for filing, or that the application is deficient
and specific additional information is required.
(e) Notice to clients. A family trust company which
has been granted an exemption under subsection (c) of this section
must provide each family client with a copy of the exemption granted
by the banking commissioner. The trust company must maintain an acknowledged
receipt of such notice in its files.
(f) Transition period for certain former family clients.
Pursuant to Finance Code, §182.011(a - 1)(1)(C) and (I), a family
trust company may continue providing services to a former key employee
or a formerly revocable trust that is no longer an eligible family
client for a period of one year after the date of the disqualifying
event. The banking commissioner may grant an extension of up to one
year in response to a written request if the commissioner determines
that:
(1) the trust company has acted diligently and in good
faith in its efforts to terminate the disqualified relationship in
a manner consistent with its fiduciary duties; and
(2) additional time is needed to avoid harm to the
affected beneficiaries and appropriately discharge the trust company's
fiduciary duties with respect to the disqualified relationship.
(g) Effect on existing family trust company. A family
trust company with exemptions granted prior to September 1, 2015,
under Finance Code, §182.011 and §182.012, is not required
to take any action to preserve its exemption as a result of changes
in law made by Acts 2015, 84th Leg., R.S., Ch. 250, §5. However,
unless and until any such family trust company amends its certificate
of formation to name a new shared common ancestor, the control person
named in its certificate of formation is considered to be the shared
common ancestor for purposes of determining eligibility of family
members under Finance Code, §182.011, and this section.
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| Source Note: The provisions of this §21.24 adopted to be effective September 3, 1998, 23 TexReg 8832; amended to be effective September 5, 2002, 27 TexReg 8203; amended to be effective May 10, 2007, 32 TexReg 2463; amended to be effective November 7, 2013, 38 TexReg 7690; amended to be effective January 7, 2016, 41 TexReg 110; amended to be effective May 5, 2016, 41 TexReg 3100 |
