(Editor's note: In accordance with Texas Government Code, §2002.014, which permits the omission of material which is "cumbersome, expensive, or otherwise inexpedient," the figures in 19 TAC §109.51(c) and (d) are not included in the print version of the Texas Register. The figure is available in the on-line version of the March 3, 2017, issue of the Texas Register.)

The State Board of Education (SBOE) proposes an amendment to §109.51, concerning uniform depository bank bid or proposal form. The proposed amendment would facilitate the acquisition of a depository contract that is in compliance with current banking standards.

The rules in 19 TAC Chapter 109, Subchapter D, establish requirements related to a school district's selection of and contract with a bank to serve as the district's depository for all funds.

Specifically, §109.51 establishes the requirement that each school district, before the current depository contract expires, choose whether to select a depository bank through competitive bidding or through requests for proposals and then submit a blank uniform bid or proposal form to each bank in the district and, if desired, to other interested banks. Section 109.51 also establishes the requirement that a district file the selected form with the Texas Education Agency. The section includes the bid and proposal forms prescribed by the SBOE.

The proposed amendment to §109.51 would update the rule to comply with current banking standards by facilitating the acquisition of a depository contract that a school district must use with a depository bank.

Both the uniform bid blank form, adopted as Figure: 19 TAC §109.51(c), and the uniform proposal blank form, adopted as Figure: 19 TAC §109.51(d), would be revised as follows.

The Definitions and Instructions section would be revised to include the right to use a sub-depository bank other than the primary bank and specify that those deposits will be collateralized.

The Bank Compensation section would specify that the district may pay for the bank's services by targeted balances or by fees and change the methodology when appropriate. The bank would be required to detail any differences in related costs for either option.

The Compensation Based on a Targeted Balance section would specify that a money market mutual fund used for excess collected balance daily investments must be one that strives to maintain a $1 NAV (Net Asset Value).

The District Investments section would be modified to update the single maturity time deposits amount from more than $100,000 to more than $250,000.

The Collateral section would be amended to remove language that requires the bank to specify whether it will use corporate surety bonds or pledged securities as collateral for the district's funds. Removing the language would avoid duplication and contradiction with the section on Eligible Collateral.

The Collateral Conditions section would be amended to remove language stating that the district may specify any limitations on its preferred custodial arrangement.

The Eligible Collateral section would be revised to add language allowing the use of voluntary pooled collateral (if available) or a Federal Home Loan Bank Letter of Credit.

The Banking Services Fees section would be modified to include language stating that all fees that may be charged to supply the services must be included or will not be eligible under the contract and that both the district and the bank reserve the right to mutually agree upon any change of contract terms or pricing during the contract extension periods.

The Depository Information section would be amended to remove reference to the Uniform Bank Performance Report and add a requirement that audited financial statements will be required for each year of the contract.

The Consolidated Account Structure with Sweep Mechanism section would be updated to add an option for the district to specify that it will not accept offshore investments as sweep investment vehicles; clarify that the district does not guarantee that it will maintain the account structure at the same level; and state that a money market fund used for the sweep proposal must strive to maintain a $1 NAV.

The Automated Cash Management Information section would include language that the district is interested in online retention of cash management information. The amendment would also make optional the language relating to controlled disbursement presentment totals and the questions about controlled disbursements.

The Remote Deposit section would be modified to clarify that the district is interested in using remote check deposit for certain locations.

The Standard Disbursing Services section would update language to ask if the bank images all paid checks, deposit items, and deposit slips.

The Positive Pay section would be modified to state that the district requires positive pay services if available at the bank for designated accounts on which checks are written. In addition, "payroll" would change to "payee" in subsection (g).

The Account Reconciliation section would include a new subsection requesting that the bank provide references of customers who use the XX ledger system.

The Funds Transfer and Wire Services section would be revised in subsection (f) to ask if templates and template storage are available for repetitive transfers.

The Optical Imaging section would include new language in subsection (a) to ask how long certain items and reports are available online.

The Automated Clearinghouse (ACH) Services section would be amended to state that the district requires ACH transactions for payable and receivable transactions. The section would also include new subsections (f) and (g) that ask if ACH positive pay is available and if ACH debits the account on day of initiation or settlement.

The title of section 10 would change to Safekeeping Services. Language in the section would be amended to specify that the district may require the bank or another eligible offeror to provide book-entry safekeeping services for any securities the district owns and that the district will make all its investments and transmit instructions for clearing and safekeeping to the bank in writing or electronically. Language relating to the Federal Reserve or a Federal Home Loan Bank would be updated.

The Collateral Requirements section would be revised to state that the bank must meet all the requirements, including those beyond the Public Funds Collateral Act, as stated in the section. An update would also be made to specify that authorized collateral includes only approved securities as specified by the Texas Government Code, Chapter 2257, Public Funds Collateral Act, and noted previously in the section.

The Account Analysis section would be amended in subsection (b) to ask if account analysis is imaged monthly on electronic media.

The Monthly Statements section would be modified to specify that the bank must state when monthly statements will be available online and on paper. In addition, language would be amended to ask if statements are imaged and/or put on electronic media monthly.

Two new sections would be added under Optional Services. Section 5 relates to check printing and asks if the bank offers check printing services, the deadline for same-day and next day printing, and where checks are printed and sent from. Section 6 relates to smart safes and asks if the bank offers smart safes and if smart safes are cost effective given the district's deposit history.

The SBOE approved the proposed amendment for first reading and filing authorization at its February 3, 2017, meeting.

The proposed amendment would modify the forms for school districts to use to select and contract with a depository bank, but the process would remain the same.

The proposed amendment would have no new locally maintained paperwork requirements.

FISCAL NOTE. Leo Lopez, associate commissioner for school finance / chief school finance officer, has determined that for the first five-year period the proposed amendment is in effect there will be no additional costs to state government as a result of enforcing or administering the proposed amendment. The proposed amendment may provide some economic benefit to school districts by allowing for more competition from banks to bid or propose on the depository contract. However, it is not possible to determine the estimated savings because individual banks set the rates offered to school districts.

There is no effect on local economy for the first five years that the proposed amendment is in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

PUBLIC BENEFIT/COST NOTE. Mr. Lopez has determined that for each year of the first five years the proposed amendment is in effect, the public benefit anticipated as a result of enforcing the amendment will be an updated process for a district to select and contract with a depository bank. There is no anticipated economic cost to persons who are required to comply with the proposed amendment.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES AND MICROBUSINESSES. There is no direct adverse economic impact for small businesses and microbusinesses; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

REQUEST FOR PUBLIC COMMENT. Comments on the proposal may be submitted to Cristina De La Fuente-Valadez, Rulemaking, Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701. Comments may also be submitted electronically to rules@tea.texas.gov. A request for a public hearing on the proposed amendment submitted under the Administrative Procedure Act must be received by the commissioner of education not more than 14 calendar days after notice of the proposal has been published in the Texas Register.

STATUTORY AUTHORITY. The amendment is proposed under the Texas Education Code (TEC), §7.102(c)(34), which requires the State Board of Education (SBOE) to prescribe uniform bid blanks for school districts to use in selecting a depository bank; TEC, §45.206, which requires school districts to use the uniform bid blank and request for proposal forms prescribed by the SBOE when selecting a depository bank; and TEC, §45.208, which requires that a school district and a bank selected as a depository enter into a depository contract using the form prescribed by the SBOE.

CROSS REFERENCE TO STATUTE. The amendment implements the Texas Education Code, §§7.102(c)(34), 45.206, and 45.208.