HBA-TYH H.B. 1553 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 1553
By: Craddick
Financial Institutions
3/5/1999
Introduced



BACKGROUND AND PURPOSE 

In the past, the existence of corporations was restricted to a specified
period of years.  However, current Texas law allows for perpetual
corporations. Other states, such as Delaware, have enabled the formation of
perpetual corporations to boost their economic prosperity.  As a result,
Delaware has become a magnet for the establishment of many businesses. 

H.B. 1553 seeks to similarly impact the trust and asset management
industries in Texas by freeing Texas trusts from the Rule of Perpetuities
and enabling farmers, businesses, and other asset holders to place their
assets in perpetual trusts. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 112.035(d), Property Code, to provide that,
except as provided by Section 112.037, a provision restraining the
voluntary or involuntary transfer of a beneficiary's interest prevents,
rather than does not prevent, a creditor existing when the trust is
created, a person who subsequently becomes a creditor, or another person
from satisfying claims out of the beneficiary's interest in the trust
estate.  Deletes the precondition that the settlor is also a beneficiary of
the trust.  Makes conforming changes. 

SECTION 2.  Amends Section 112.036, Property Code, by deleting original
text regarding the rule against perpetuities and adding new text, as
follows: 

Sec. 112.036.  New title: SPENDTHRIFT TRUST AVOIDED IN CERTAIN
CIRCUMSTANCES.  (a)  Authorizes a creditor existing when the trust is
created, a person who subsequently becomes a creditor, or another person to
satisfy a claim out of the beneficiary's interest in the trust if: 

(1)  the transfer was intended in whole or in part to hinder, delay, or
defraud a creditor or another person entitled to recover by law; 
  
(2)  the trust instrument provides that the settlor may revoke or terminate
all or part of the trust without the consent of a person who has a
substantial beneficial interest in the trust and the person's interest
would be adversely affected by the exercise of that power; 
  
(3)  the trust instrument provides that all or part of the income or
principal of the trust must be distributed to the settlor; or 
  
(4)  at the time of the transfer, the settlor is in default by 30 days or
more in making a payment due under a child support judgment or order.  
 
(b)  Provides that for purposes of Subsection (a)(2), the power to veto a
distribution from the  trust, a testamentary special power or similar
power, or the right to receive a distribution of income or corpus in the
discretion of a person, including a trustee, other than the settlor, does
not constitute the power to revoke or terminate all or part of the trust
without the consent of a person who has a substantial beneficial interest
in the trust.  
 
(c)  Provides that the satisfaction of a claim under Subsection (a)(1),
(2), (3), or (4) is limited to that part of the trust to which the
subdivision applies.  
 
(d)  Authorizes a person who is a creditor when the trust is created to
bring an action under Subsection (a)(1) only if the person brings the
action on or before the fourth anniversary of the date on which the
transfer is made or on or before the first anniversary of the date the
person should have known that the transfer was made, whichever is later.  
 
(e)  Authorizes a person who becomes a creditor after the transfer is made
to bring an action under Subsection (a)(1) only if the person brings the
action on or before the fourth anniversary of the date on which the
transfer is made 

SECTION 3.  Amends Subchapter B, Chapter 112, Property Code, by adding
Section 112.037, as follows: 

Sec. 112.037.  CONFLICT OF LAWS PROVISION:  SPENDTHRIFT TRUSTS.  (a)
Defines "bank," "qualified person," and "state trust company." 

(b)  Provides that a provision in a trust instrument described by Section
112.035 (Spendthrift Trusts) that provides that the laws of this state
govern the validity, construction, and administration of the trust is
conclusive if: 

(1)  some or all of the trust assets are deposited in this state and are
administered by a qualified person; 
  
(2)  at least one trustee is a qualified person who is designated as a
trustee under the trust instrument or by a court having jurisdiction over
the trust; 
  
(3)  the administrative powers of the qualified person include maintaining
records for the trust, exclusively or nonexclusively, and preparing or
providing for the preparation of, exclusively or nonexclusively, an income
tax return that must be filed by the trust; and 
  
(4)  all or part of the administration occurs in this state.

(c)  Provides that for purposes of Subsection (b)(1), trust assets are
deposited in this state if the assets are held in a checking account, time
deposit, certificate of deposit, brokerage account, trust company fiduciary
account, or other similar account or deposit that is located in this state.

SECTION 4.  Effective date: September 1, 1999.
  Makes application of this Act prospective.

SECTION 5.  Emergency clause.