| (a) An opinion of legal counsel required by this subchapter
must be addressed to the banking commissioner and state the opinions expressed,
the specific documents reviewed and the matters considered of both law and
fact, as legal counsel has considered necessary or appropriate in the exercise
of professional judgment for the opinions expressed, and the assumptions,
qualifications, limitations, and exceptions made or taken with respect to
the opinions expressed. A draft opinion may be submitted with an application
under this chapter provided a final, signed opinion is delivered to the banking
commissioner prior to final action on the application. Any variation in the
final opinion from the draft version must be specifically called to the attention
of the banking commissioner.
(b) An opinion letter required under this subchapter will be
governed by and interpreted in accordance with the Third Party Legal Opinion
Report, Including the Legal Opinion Accord, of the Section of Business Law
(American Bar Association, 1991), available in pamphlet form as reprinted
from the November 1991 issue of The Business Lawyer (Volume 47, Number 1,
Page 167), (the Accord), or a successor document officially promulgated by
an appropriate authority.
(c) Unless specifically noted in the opinion, the banking commissioner
will assume that the opinions expressed are based upon and subject to the
assumptions, qualifications, limitations and exceptions set forth in the Accord,
provided the Accord is incorporated by reference. In addition, whether or
not stated in the Accord, if specifically noted in the opinion, counsel:
(1) need not express an opinion as to the laws of the United
States or a foreign jurisdiction unless such an opinion is specifically requested
by the banking commissioner;
(2) may assume that the parties to the transaction have engaged
only in activities provided in their respective constitutive documents, and
that all surviving parties to the transaction will engage only in activities
provided in their respective constitutive documents;
(3) may assume that the transaction will be consummated in
accordance with its terms as disclosed in the application; and
(4) may qualify the opinions given as opinions solely for the
benefit of the banking commissioner that may not be quoted in whole or in
part or otherwise referred to in another document or report, and that may
not be furnished to a person or entity other than the banking commissioner
and the department without the written consent of counsel, except as may be
permitted or required by law, including Finance Code, §§181.301
et seq, and Government Code, Chapter 552.
(d) Legal counsel shall specifically notify the banking commissioner
of any substantive deviation from the assumptions, qualifications, limitations
and exceptions allowed in this section and the Accord, and any substantive
deviation from the opinion requirements of the section of this subchapter
that governs a particular application. Deviations may result in a processing
delay of the application to the extent additional analysis is required to
understand the purpose of the deviation. A substantive deviation from the
requirements of this subchapter applicable to legal opinions that is not brought
to the attention of the banking commissioner will be considered a material
misrepresentation in the application.
(e) Legal counsel rendering an opinion under this subchapter
shall be an attorney in good standing admitted to practice before the highest
court of a state, territory or district of the United States. However, legal
counsel shall be well versed and professionally competent in applicable Texas
law, or should seek the advice and opinion of an attorney in good standing
admitted to practice before the highest courts in this state if legal counsel
may not properly and ethically render opinions regarding applicable Texas
law. An opinion of local legal counsel must be disclosed if relied on by legal
counsel.
(f) Legal counsel rendering an opinion under this subchapter
shall be independent of the applicant, the notice provider, or another person
or entity required to submit an opinion of counsel pursuant to this section.
Legal counsel is considered independent if able to exercise independent professional
judgment and render candid advice, whether in private practice or employed
by an applicant.
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