By Duncan, Counts                                      H.B. No. 958
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the issuance of insurance through eligible surplus
    1-3  lines insurers.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 1, Article 1.14-1, Insurance Code, is
    1-6  amended to read as follows:
    1-7        Sec. 1.  Purpose.  The purpose of this Article is to subject
    1-8  certain persons and insurers to the jurisdiction of the State Board
    1-9  of Insurance, of proceedings before the Board, and of the courts of
   1-10  this state in suits by or on behalf of the state and insureds or
   1-11  beneficiaries under insurance contracts.  The Legislature declares
   1-12  that it is a subject of concern that many residents of this state
   1-13  hold policies of insurance issued by persons and insurers neither
   1-14  <not> authorized to do insurance business in this state nor
   1-15  qualified as eligible surplus lines insurers as defined in Article
   1-16  1.14-2, thus presenting to such residents the often insuperable
   1-17  obstacle of asserting their legal rights under such policies in
   1-18  forums foreign to them under laws and rules of practice with which
   1-19  they are not familiar.  The Legislature declares that it is also
   1-20  concerned with the protection of residents of this state against
   1-21  acts by persons and insurers not authorized to do an insurance
   1-22  business in this state by the maintenance of fair and honest
   1-23  insurance markets, by protecting the premium tax revenues of this
   1-24  state, by protecting authorized persons and insurers, which are
    2-1  subject to strict regulation, from unfair competition by
    2-2  unauthorized persons and insurers and by protecting against the
    2-3  evasion of the insurance regulatory laws of this state.  In
    2-4  furtherance of such state interest, the Legislature herein provides
    2-5  methods for substituted service of process upon such persons or
    2-6  insurers in any proceeding, suit or action in any court and
    2-7  substitute service of any notice, order, pleading or process upon
    2-8  such persons or insurers in any proceeding before the State Board
    2-9  of Insurance to enforce or effect full compliance with the
   2-10  insurance and tax statutes of this state, and declares in so doing
   2-11  it exercises its power to protect residents of this state and to
   2-12  define what constitutes doing an insurance business in this state,
   2-13  and also exercises powers and privileges available to this state by
   2-14  virtue of P.L. 79-15 (1945), (Chapter 20, 1st Sess., S. 340), 59
   2-15  Stats. 33, as amended, which declares that the business of
   2-16  insurance and every person engaged therein shall be subject to the
   2-17  laws of the several states.
   2-18        SECTION 2.  Section 2(b), Article 1.14-1, Insurance Code, is
   2-19  amended to read as follows:
   2-20        (b)  The provisions of this section do not apply to:
   2-21              1.  The lawful transaction of surplus lines insurance
   2-22  pursuant to Article 1.14-2.
   2-23              2.  The lawful transaction of reinsurance by insurers.
   2-24              3.  Transactions in this state involving a policy
   2-25  lawfully solicited, written, and delivered outside of this state
   2-26  covering only subjects of insurance not resident, located, or
   2-27  expressly to be performed in this state at the time of issuance,
    3-1  and which transactions are subsequent to the issuance of such
    3-2  policy.
    3-3              4.  Transactions involving contracts of insurance
    3-4  independently procured through negotiations occurring entirely
    3-5  outside of this state for out-of-state insureds with Texas
    3-6  exposures which are reported and on which premium tax is paid in
    3-7  accordance with this Article.
    3-8              5.  Transactions in this state involving group life,
    3-9  health or accident insurance (other than credit insurance) and
   3-10  group annuities where the master policy of such groups was lawfully
   3-11  issued and delivered in a state in which the company was authorized
   3-12  to do an insurance business and such transactions are authorized by
   3-13  other statutes of this state.
   3-14              6.  Lawful transactions by servicing companies of the
   3-15  Texas workers' compensation employers' rejected risk fund pursuant
   3-16  to Section 4.08, Article 5.76-2.
   3-17        SECTION 3.  Section 8, Article 1.14-1, Insurance Code, is
   3-18  amended to read as follows:
   3-19        Sec. 8.  Validity of Insurance Contracts.  Except for
   3-20  <lawfully procured surplus lines> insurance procured by a licensed
   3-21  surplus lines agent from an eligible surplus lines insurer as
   3-22  defined in Article 1.14-2 and contracts of insurance independently
   3-23  procured, as defined in Section 2(b)4 of this Article, <through
   3-24  negotiations occurring entirely outside of this state> which are
   3-25  reported and on which premium tax is paid in accordance with this
   3-26  Article or Article 1.14-2, any contract of insurance effective in
   3-27  this state and entered into by an unauthorized insurer is
    4-1  unenforceable by such insurer.  In event of failure of any such
    4-2  unauthorized insurer to pay any claim or loss within the provisions
    4-3  of such insurance contract, any person who assisted or in any
    4-4  manner aided directly or indirectly in the procurement of such
    4-5  insurance contract shall be liable to the insured for the full
    4-6  amount thereof pursuant to the provisions of such insurance
    4-7  contract.
    4-8        SECTION 4.  Section 9, Article 1.14-1, Insurance Code, is
    4-9  amended by adding Subsection (c) to read as follows:
   4-10        (c)  This section does not apply to transactions in this
   4-11  state involving a policy lawfully solicited, negotiated, written,
   4-12  and delivered outside of this state covering only subjects of
   4-13  insurance not resident, located or expressly to be performed in
   4-14  this state at the time of issuance, and which transactions are
   4-15  subsequent to the issuance of such policy or surplus lines
   4-16  insurance procured through eligible surplus lines carriers as
   4-17  defined in Article 1.14-2.
   4-18        SECTION 5.  Section 10, Article 1.14-1, Insurance Code, is
   4-19  amended to read as follows:
   4-20        Sec. 10.  Reporting of Unauthorized Insurance.  (a)  Every
   4-21  person investigating or adjusting any loss or claim on a subject of
   4-22  insurance in this state shall immediately report to the State Board
   4-23  of Insurance every insurance policy or contract which has been
   4-24  entered into by any insurer unauthorized <not authorized> to
   4-25  transact such insurance in this state.
   4-26        (b)  This section does not apply to transactions in this
   4-27  state involving contracts of insurance independently procured, as
    5-1  defined in Section 2(b)4 of this Article or surplus lines insurance
    5-2  procured by a licensed surplus lines agent from an eligible surplus
    5-3  lines carrier as defined in Article 1.14-2  <a policy lawfully
    5-4  solicited, written, and delivered outside of this state covering
    5-5  only subjects of insurance not resident, located or expressly to be
    5-6  performed in this state at the time of issuance, and which
    5-7  transactions are subsequent to the issuance of such policy>.
    5-8        SECTION 6.  Section 11, Article 1.14-1, Insurance Code, is
    5-9  amended to read as follows:
   5-10        Sec. 11.  Unauthorized insurance premium tax.  (a)  Except as
   5-11  to premiums on <lawfully procured surplus lines> insurance procured
   5-12  by a licensed surplus lines agent from an eligible surplus lines
   5-13  insurer as defined in Article 1.14-2 and premiums on independently
   5-14  procured insurance on which a tax has been paid pursuant to this
   5-15  Article or Article 1.14-2, every unauthorized insurer shall pay to
   5-16  the State Board of Insurance before March 1 next succeeding the
   5-17  calendar year in which the insurance was so effectuated, continued
   5-18  or renewed a premium receipts tax of 4.85 percent of gross premiums
   5-19  charged for such insurance on subjects resident, located or to be
   5-20  performed in this state.  Such insurance on subjects resident,
   5-21  located or to be performed in this state procured through
   5-22  negotiations or an application, in whole or in part occurring or
   5-23  made within or from within or outside of this state, or for which
   5-24  premiums in whole or in part are remitted directly or indirectly
   5-25  from within or outside of this state, shall be deemed to be
   5-26  insurance procured, or continued or renewed in this state.  The
   5-27  term "premium" includes all premiums, membership fees, assessments,
    6-1  dues and any other consideration for insurance.  Such tax shall be
    6-2  in lieu of all other insurance taxes.  On default of any such
    6-3  unauthorized insurer in the payment of such tax the insured shall
    6-4  pay the tax.  If the tax prescribed by this subsection is not paid
    6-5  within the time stated, the tax shall be increased by a penalty of
    6-6  25 percent and by the amount of an additional penalty computed at
    6-7  the rate of one percent per month or any part thereof from the date
    6-8  such payment was due to the date paid.
    6-9        (b)  If a policy covers risks or exposures only partially in
   6-10  this state, the tax payable shall be computed on the portions of
   6-11  the premiums which are properly allocable to the risks or exposures
   6-12  located in this state.  In determining the amount of premiums
   6-13  taxable in this state, all premiums written, procured, or received
   6-14  in this state and all premiums on policies negotiated in this state
   6-15  shall be deemed written on property or risks located or resident in
   6-16  this state, except such premiums as are properly allocated or
   6-17  apportioned and reported as taxable premiums of any other state or
   6-18  states.  Premiums on risks or exposures which are properly
   6-19  allocated to federal waters, international waters or under the
   6-20  jurisdiction of a foreign government shall not be considered
   6-21  taxable by this state.
   6-22        SECTION 7.  Section 12, Article 1.14-1, Insurance Code, is
   6-23  amended to read as follows:
   6-24        Sec. 12.  Independently procured insurance Tax.  (a)  Every
   6-25  insured who procures insurance in accordance with Section 2(b)4 of
   6-26  this Article must file a report with the State Board of Insurance
   6-27  and pay an independently procured insurance tax of 4.85 percent.
    7-1        (b)  A report must be filed with the State Board of Insurance
    7-2  within 60 days after the date the insurance was independently
    7-3  procured.  The report must be made in writing on forms provided by
    7-4  the State Board of Insurance.  The report must contain the name and
    7-5  address of the insured or insureds, the name and address of the
    7-6  insurer, the subject of the insurance, a general description of the
    7-7  coverage, the amount of premium charged, and any additional
    7-8  information which the State Board of Insurance requests.
    7-9        (c)  The report shall be filed and any tax due shall be paid
   7-10  by the insured or by any other person designated by the insured.
   7-11  <Every insured who procures or causes to be procured or continues
   7-12  or renews insurance with any unauthorized insurer, or any insured
   7-13  or self-insurer who so procures or continues excess loss,
   7-14  catastrophe or other insurance, upon a subject of insurance
   7-15  resident, located or to be performed within this state, other than
   7-16  insurance procured through a surplus lines agent pursuant to the
   7-17  surplus lines law of this state shall within 60 days after the date
   7-18  such insurance was so procured, continued or renewed, file a report
   7-19  of the same with the State Board of Insurance in writing and upon
   7-20  forms designated by the State Board of Insurance and furnished to
   7-21  such an insured upon request.  The report shall show the name and
   7-22  address of the insured or insureds, name and address of the
   7-23  insurer, the subject of the insurance, a general description of the
   7-24  coverage, the amount of premium currently charged therefor, and
   7-25  such additional pertinent information as is reasonably requested by
   7-26  the State Board of Insurance.>
   7-27        <(b)  Any insurance in an unauthorized insurer of a subject
    8-1  of insurance resident, located or to be performed within this state
    8-2  procured through negotiations or an application, in whole or in
    8-3  part occurring or made within or from within or outside of this
    8-4  state, or for which premiums in whole or in part are remitted
    8-5  directly or indirectly from within or outside of this state, shall
    8-6  be deemed to be insurance procured, or continued or renewed in this
    8-7  state within the intent of Paragraph (a).>
    8-8        <(c)  There is hereby levied upon the obligation, chose in
    8-9  action, or right represented by the premium charged for such
   8-10  insurance, a premium receipts tax of 3.85 percent of gross premiums
   8-11  charged for such insurance.  The term "premium" shall include all
   8-12  premiums, membership fees, assessments, dues and any other
   8-13  consideration for insurance.  Such tax shall be in lieu of all
   8-14  other insurance taxes.  The insured shall, before March 1 next
   8-15  succeeding the calendar year in which the insurance was so
   8-16  procured, continued or renewed, pay the amount of the tax to the
   8-17  State Board of Insurance.  In event of cancellation and rewriting
   8-18  of any such insurance contract the additional premium for premium
   8-19  receipts tax purposes shall be the premium in excess of the
   8-20  unearned premium of the canceled insurance contract.>
   8-21        (d)  If a policy covers risks or exposures only partially in
   8-22  this state, the tax payable shall be computed on the portions of
   8-23  the premium which are properly allocable to the risks or exposures
   8-24  located in this state.  In determining the amount of premiums
   8-25  taxable in this state, all premiums written, procured or received
   8-26  in this state and all premiums on policies negotiated in this state
   8-27  shall be deemed written on property or risks located or resident in
    9-1  this state, except such premiums as are properly allocated or
    9-2  apportioned and reported as taxable premiums of any other state or
    9-3  states.  Premiums on risks or exposures which are properly
    9-4  allocated to federal waters, international waters or under the
    9-5  jurisdiction of a foreign government shall not be taxable.
    9-6        (e)  If the insured fails to withhold from the premium the
    9-7  amount of tax herein levied, the insured shall be liable for the
    9-8  amount thereof and shall pay the same to the State Board of
    9-9  Insurance within the time stated in Paragraph (c).  If the tax
   9-10  prescribed by this subsection is not paid within the time stated in
   9-11  Paragraph (c), the tax shall be increased by a penalty of 25
   9-12  percent and by the amount of an additional penalty computed at the
   9-13  rate of one percent per month or any part thereof from the date
   9-14  such payment was due to the date paid.
   9-15        (f)  The Attorney General, upon request of the State Board of
   9-16  Insurance, shall proceed in the courts of this or any other state
   9-17  or in any federal court or agency to recover such tax not paid
   9-18  within the time prescribed in this section.
   9-19        (g)  This section shall not be construed or deemed to
   9-20  abrogate or modify any provision of this Article.  This section
   9-21  does not apply as to individual life or individual disability
   9-22  insurance.
   9-23        SECTION 8.  Section 1, Article 1.14-2, Insurance Code, is
   9-24  amended to read as follows:
   9-25        Sec. 1.  Purpose.  Insurance transactions which are entered
   9-26  into by citizens of this state with eligible surplus lines
   9-27  <unauthorized> insurers through a surplus lines agent as a result
   10-1  of difficulty in obtaining coverage from licensed insurers are a
   10-2  matter of public interest.  The Legislature declares that such
   10-3  transaction of surplus lines insurance is a subject of concern and
   10-4  that it is necessary to provide for the regulation, taxation,
   10-5  supervision and control of such transactions and the practices and
   10-6  matters related thereto by requiring appropriate standards and
   10-7  reports concerning the placement of such insurance; by imposing
   10-8  requirements necessary to make such regulation and control
   10-9  reasonably complete and effective; by providing orderly access to
  10-10  eligible surplus lines insurers <that are not authorized to
  10-11  transact the business of insurance in this state>; by insuring the
  10-12  maintenance of fair and honest markets; by protecting the revenues
  10-13  of this state; and by protecting licensed <authorized> insurers,
  10-14  which under the laws of this state must meet strict standards as to
  10-15  the regulation of the business of insurance and the taxation
  10-16  thereof, from unfair competition by unauthorized insurers.  In
  10-17  order to properly regulate and tax such <unauthorized> insurance
  10-18  placed in accordance with this Article within the meaning and
  10-19  intent of P.L. 79-15 (1945), (Chap. 20, 1st Sess., S. 340), 59
  10-20  Stat. 33, the Legislature herein provides an orderly method for the
  10-21  <insuring> public of this state to effect insurance with eligible
  10-22  surplus lines <unauthorized> insurers through qualified, licensed
  10-23  and supervised surplus line agents in this state if coverage is not
  10-24  available from duly licensed, regulated insurers conducting
  10-25  business in this state and under reasonable and practical
  10-26  safeguards so that such insurance coverage may be obtained by
  10-27  residents of this state <to the extent that the coverage is not
   11-1  procurable from duly licensed, regulated insurers conducting
   11-2  business in this state>.
   11-3        SECTION 9.  Section 2(b), Article 1.14-2, Insurance Code, is
   11-4  amended to read as follows:
   11-5        (b)  "Surplus lines insurer" means an unlicensed
   11-6  <unauthorized> insurer deemed eligible pursuant to Section 8 of
   11-7  this Article in which an insurance coverage is placed or may be
   11-8  placed under this Article.
   11-9        SECTION 10.  Section 3(a), Article 1.14-2, Insurance Code, is
  11-10  amended to read as follows:
  11-11        (a)  If insurance coverages of subjects resident, located or
  11-12  to be performed in this state cannot be procured from licensed
  11-13  insurers after diligent effort, such coverages, hereinafter
  11-14  designated as surplus line insurance, may be procured from eligible
  11-15  surplus lines <unauthorized> insurers subject to the following
  11-16  conditions:
  11-17              1.  The insurance must be eligible for surplus lines
  11-18  under Section 5.
  11-19              2.  The insurer must be an eligible surplus lines
  11-20  insurer under Section 8.
  11-21              3.  The insurance must be placed through a licensed
  11-22  Texas surplus lines agent resident in this state.
  11-23              4.  The other applicable provisions of this section
  11-24  must be complied with.
  11-25        SECTION 11.  Section 4(a), Article 1.14-2, Insurance Code, is
  11-26  amended to read as follows:
  11-27        (a)  An agent licensed by the state may not issue or cause to
   12-1  be issued an insurance contract with an eligible surplus lines
   12-2  <unauthorized> insurer, unless the agent possesses a current
   12-3  surplus lines license issued by the State Board of Insurance.
   12-4        SECTION 12.  Section 6, Article 1.14-2, Insurance Code, is
   12-5  amended to read as follows:
   12-6        Sec. 6.  Procedure for Effecting Surplus Lines Contracts.
   12-7  (a)  <Before any new or renewal insurance shall be procured in an
   12-8  unlicensed insurer the agent shall make an affidavit, which shall
   12-9  be promptly filed with the State Board of Insurance, that he is
  12-10  after diligent effort unable to procure from any licensed insurer
  12-11  or insurers the full amount of insurance required to protect the
  12-12  interest of the insured.  If the annual premiums paid by the
  12-13  insured for such surplus lines coverage exceed $25,000, the insured
  12-14  may execute the affidavit in lieu of the surplus lines agent.>
  12-15        <(b)>  Upon placing a new or renewal surplus line coverage,
  12-16  the surplus lines agent shall promptly issue and deliver to the
  12-17  insured or his agent, as the case may be, evidence of the insurance
  12-18  consisting either of the policy as issued by the insurer or, if
  12-19  such policy is not then available, a certificate, cover note or
  12-20  other confirmation of insurance.
  12-21        (b) <(c)>  Within 60 days after the effective date or issue
  12-22  date, whichever is later, <effectuation> of any new or renewal
  12-23  surplus lines insurance contract, the surplus lines agent shall
  12-24  file with the Surplus Lines Stamping Office of Texas evidence that
  12-25  a diligent effort as defined in Section 5 of this Article has been
  12-26  performed and a true and correct <State Board of Insurance an
  12-27  exact> copy of the contract <policy> issued.  If a contract
   13-1  <policy> has not been issued, the surplus lines agent shall so file
   13-2  a true and correct <an exact> copy of his certificate, cover note
   13-3  or other confirmation of insurance as delivered to the insured.
   13-4  The surplus lines agent shall likewise promptly file with the
   13-5  Surplus Lines Stamping Office of Texas a true and correct <State
   13-6  Board of Insurance an exact> copy of any substitute certificate,
   13-7  cover note or other confirmation of insurance, and of every
   13-8  endorsement of an original policy, certificate, cover note or other
   13-9  confirmation of insurance, delivered to an insured, together with
  13-10  such surplus lines agent's memorandum informing the Surplus Lines
  13-11  Stamping Office of Texas <State Board of Insurance> as to the
  13-12  substance of any change represented by such substitute certificate,
  13-13  cover note or other confirmation, or of any such endorsement, as
  13-14  compared with the coverage as originally placed or issued.  Except,
  13-15  however, as respects this Subsection (b) <(c)>, equivalent
  13-16  information may be filed as required by the Board.
  13-17        (c) <(d)>  No surplus lines agent shall deliver any such
  13-18  document, or purport to insure or represent that insurance will be
  13-19  or has been granted by any eligible surplus lines <unauthorized>
  13-20  insurer unless he has prior written authority from the insurer for
  13-21  the insurance, or has received information from the insurer in the
  13-22  regular course of business that such insurance has been granted, or
  13-23  an insurance policy providing the insurance actually has been
  13-24  issued by the insurer and delivered to the insured.
  13-25        (d) <(e)>  If after the delivery of any such document there
  13-26  is any change as to the identity of the insurers, or the proportion
  13-27  of the direct risk assumed by the insurer as stated in the original
   14-1  certificate, cover note or confirmation, or in any other material
   14-2  respect as to the insurance coverage evidenced by such a document,
   14-3  the surplus lines agent shall promptly deliver to the insured a
   14-4  substitute certificate, cover note, confirmation or endorsement for
   14-5  the original such document, accurately showing the current status
   14-6  of the coverage and the insurers responsible thereunder.  No such
   14-7  change shall result in a coverage or insurance contract which would
   14-8  be in violation of this Article if originally issued on such basis.
   14-9        (e) <(f)>  If a policy issued by the insurer is not available
  14-10  upon placement of the insurance and the surplus lines agent has
  14-11  delivered a certificate, cover note or confirmation, as hereinabove
  14-12  provided, upon request therefor by the insured the surplus lines
  14-13  agent shall as soon as reasonably possible procure from the insurer
  14-14  its policy evidencing the insurance and deliver the policy to the
  14-15  insured in replacement of the certificate, cover note or
  14-16  confirmation theretofore issued.
  14-17        SECTION 13.  Sections 6A(a) and (c), Article 1.14-2,
  14-18  Insurance Code, are amended to read as follows:
  14-19        (a)  There is hereby created a nonprofit association to be
  14-20  known as the Surplus Lines Stamping Office of Texas.  All surplus
  14-21  lines agents shall as a condition of their holding a license as a
  14-22  surplus lines agent in this state report to and file with the
  14-23  stamping office a copy of each surplus lines insurance contract as
  14-24  provided in the plan of operation adopted under Subsection (d) of
  14-25  this section.  The board may accept such filing in lieu of the
  14-26  filings required under Subsection (b) <Subsections (a) and (c)> of
  14-27  Section 6 of this article.
   15-1        (c)  The stamping office shall function through a board of
   15-2  directors appointed by the State Board of Insurance.  The board of
   15-3  directors of the stamping office shall consist of 9 members, who
   15-4  serve terms as established in the plan of operation.  Four of the
   15-5  members of the board of directors must represent the general public
   15-6  and shall have a minimum of three years of experience in the
   15-7  purchase of commercial insurance.  A public representative may not
   15-8  be:
   15-9              (1)  an officer, director, or employee of an insurance
  15-10  company, insurance agency, agent, broker, solicitor, adjuster, or
  15-11  any other business entity regulated by the State Board of
  15-12  Insurance;
  15-13              (2)  a person required to register with the secretary
  15-14  of state under Chapter 305, Government Code; or
  15-15              (3)  related to a person described by Subdivision (1)
  15-16  or (2) of this subsection within the second degree of affinity or
  15-17  consanguinity.
  15-18        SECTION 14.  Section 7, Article 1.14-2, Insurance Code, is
  15-19  amended to read as follows:
  15-20        Sec. 7.  Requirements for surplus lines contracts.
  15-21  (a)  Every new or renewal insurance contract, certificate, cover
  15-22  note or other confirmation of insurance procured and delivered as a
  15-23  surplus line coverage pursuant to this Article shall bear the name
  15-24  and address of the insurance agent who procured it and shall have
  15-25  stamped or affixed upon it in 11-point type the following:  "This
  15-26  insurance contract is with an insurer not licensed to transact
  15-27  insurance in this state and is issued and delivered as a surplus
   16-1  line coverage pursuant to the Texas insurance statutes.  The State
   16-2  Board of Insurance does not audit the finances or review the
   16-3  solvency of the surplus lines insurer providing this coverage, and
   16-4  this insurer is not a member of the property and casualty insurance
   16-5  guaranty association created under Article 21.28-C, Insurance Code.
   16-6  Article 1.14-2, Insurance Code, requires payment of ______ (insert
   16-7  appropriate tax rate) percent tax on gross premium."
   16-8        (b)  Such document shall show the description and location of
   16-9  the subject of the insurance, coverage, conditions and term of the
  16-10  insurance, the premium and rate charged and premium taxes to be
  16-11  collected from the insured, and the name and address of the insured
  16-12  and insurer.  If the direct risk is assumed by more than one
  16-13  insurer, the document shall state the name and address and
  16-14  proportion of the entire direct risk assumed by each insurer.
  16-15        (c)  The insurer must be an eligible surplus lines insurer as
  16-16  of the inception date and annual anniversary date of every
  16-17  insurance contract, cover note, or other confirmation of insurance.
  16-18        (d)  An extension of a contract beyond its original
  16-19  expiration date shall be subject to Section 7(a) and Section 8 of
  16-20  this Article.
  16-21        SECTION 15.  Section 8, Article 1.14-2, Insurance Code, is
  16-22  amended to read as follows:
  16-23        Sec. 8.  Eligibility of surplus lines insurers.  (a)  A
  16-24  surplus lines agent shall not knowingly place surplus lines
  16-25  insurance with financially unsound insurers.  The surplus lines
  16-26  agent shall make a reasonable effort to ascertain the financial
  16-27  condition of the eligible surplus lines <unauthorized> insurer
   17-1  before placing insurance therewith.
   17-2        (b)  No surplus lines agent shall place any coverage with an
   17-3  <unauthorized> insurer unless the insurer has met the eligibility
   17-4  requirements of this section and the stamping office provides
   17-5  evidence that the insurer has met the requirements to the State
   17-6  Board of Insurance.  An <unauthorized> insurer shall not be an
   17-7  eligible surplus lines insurer unless the insurer has a minimum
   17-8  capital and surplus that are not less than the following amounts
   17-9  for the following dates:
  17-10              (1)  $4.5 million capital and surplus as of December
  17-11  31, 1991; or
  17-12              (2)  $6 million capital and surplus as of December 31,
  17-13  1992.
  17-14        (c)  An <unauthorized> insurer may be exempt from the minimum
  17-15  capital and surplus requirements provided by Subsection (b) of this
  17-16  section if the Commissioner of Insurance finds, after public
  17-17  hearing, that the exemption is warranted based on factors such as
  17-18  quality of management, capital and surplus of any parent company,
  17-19  company underwriting profit and investment income trends,
  17-20  reinsurance contracts, company record and reputation within the
  17-21  industry, and other information the commissioner requires to make a
  17-22  determination.
  17-23        (d)  In addition to meeting the minimum capital and surplus
  17-24  requirements provided by this section, an alien insurer must
  17-25  provide evidence that it maintains in the United States an
  17-26  irrevocable trust fund in a Federal Reserve System member bank in
  17-27  an amount not less than $1.5 million for the protection of all its
   18-1  policyholders in the United States and that the trust fund consists
   18-2  of cash, securities, letters of credit, or investments of
   18-3  substantially the same character and quality as those that are
   18-4  eligible investments for the capital and statutory reserves of
   18-5  authorized insurers licensed to write like kinds and classes of
   18-6  insurance in this state.
   18-7        (e)  Instead of the minimum capital and surplus requirements
   18-8  provided by this section, an unincorporated group of alien
   18-9  individual insurers may maintain a trust fund in an amount not less
  18-10  than $50 million as security to the full amount of the trust fund
  18-11  for all policyholders and creditors in the United States of each
  18-12  member of the group.  Except as specifically otherwise provided by
  18-13  this subsection, the trust fund must comply with the terms and
  18-14  conditions provided by Subsection (d) of this section for the trust
  18-15  fund required by that subsection.
  18-16        (f)  Every insurer<, as defined by Article 1.14-1,> proposing
  18-17  to transact surplus lines insurance within this state shall hold a
  18-18  current license or authority from its domiciliary state or country
  18-19  to conduct the business of insurance.  The license or authority
  18-20  from the domiciliary state or country must be for the kind or class
  18-21  of insurance to be written in this state as surplus lines
  18-22  insurance, and satisfactory evidence that the insurer holds the
  18-23  required license or authorization must be provided to the
  18-24  Commissioner of Insurance.
  18-25        (g)  The <unauthorized> insurer must be of good repute and
  18-26  provide reasonably prompt service to its policyholders in the
  18-27  payment of just losses and claims.
   19-1        (h)  No <unauthorized> insurer shall be eligible if the
   19-2  management is incompetent or untrustworthy, or so lacking in
   19-3  insurance company managerial experience as to make its proposed
   19-4  operation hazardous to the insurance-buying public; or if the State
   19-5  Board of Insurance has good reason to believe that it is affiliated
   19-6  directly or indirectly through ownership, control, reinsurance
   19-7  transactions or other insurance or business relations, with any
   19-8  person whose business operations are or have been detrimental to
   19-9  policyholders, stockholders, investors, creditors or to the public.
  19-10        (i)  No <unauthorized> insurer shall be eligible if the
  19-11  insurer or its agents have failed to submit to any fine or penalty
  19-12  levied pursuant to statute.   No <unauthorized> insurer shall be
  19-13  eligible if the insurer is obligated to pay and has failed to pay
  19-14  premium taxes in the state <required under Section 11 of Article
  19-15  1.14-1>.  The State Board of Insurance may order revocation of
  19-16  insurance contracts issued by insurers that do not conform with the
  19-17  eligibility requirements of this section.
  19-18        (j)  No new or renewal surplus lines insurance shall be
  19-19  placed with any eligible surplus lines insurer which requires as a
  19-20  condition precedent to writing such new or renewal insurance that
  19-21  the prospective insured or the insured place other insurance not
  19-22  procurable <eligible> as surplus lines insurance with such eligible
  19-23  surplus lines insurer.
  19-24        (k)  This section shall not be deemed to cast upon the State
  19-25  Board of Insurance any duty or responsibility to determine the
  19-26  actual financial condition or claims practice of any unlicensed
  19-27  insurer or any unauthorized insurer as defined in Article 1.14-1 of
   20-1  this code.
   20-2        (l)  An <unauthorized> insurer is not an eligible surplus
   20-3  lines insurer unless it is authorized to write the same coverage in
   20-4  the jurisdiction in which the <unauthorized> insurer is licensed or
   20-5  certificated to do business.
   20-6        SECTION 16.  Section 9, Article 1.14-2, Insurance Code, is
   20-7  amended to read as follows:
   20-8        Sec. 9.  Validity of Contracts.  (a)  Insurance contracts
   20-9  procured from an eligible surplus lines insurer <as surplus line
  20-10  coverage from unauthorized insurers in accordance with this
  20-11  Article> shall be fully valid and enforceable as to all parties,
  20-12  and shall be given recognition in all matters and respects to the
  20-13  same effect and extent as like contracts issued by licensed
  20-14  <authorized> insurers unless there was a material and intentional
  20-15  violation of this Article.
  20-16        (b)  In the event of a material and intentional violation of
  20-17  this Article, the <A contract of insurance placed in effect by an
  20-18  unauthorized insurer in violation of this Article is unenforceable
  20-19  by the insurer.  The> insured shall not be precluded from enforcing
  20-20  his rights in accordance with the terms and provisions of such
  20-21  contract.
  20-22        SECTION 17.  Section 12(a), Article 1.14-2, Insurance Code,
  20-23  is amended to read as follows:
  20-24        (a)  The premiums charged for surplus lines insurance are
  20-25  subject to a premium receipts tax of 4.85 percent of gross premiums
  20-26  charged for such insurance.  The term premium includes all
  20-27  premiums, membership fees, assessments, dues or any other
   21-1  consideration for insurance.  Such tax shall be in lieu of all
   21-2  other insurance taxes.  The surplus lines agent shall collect from
   21-3  the insured the amount of the tax at the time of delivery of the
   21-4  cover note, certificate of insurance, policy or other initial
   21-5  confirmation of insurance, in addition to the full amount of the
   21-6  gross premium charged by the insurer for the insurance.  No agent
   21-7  shall absorb such tax nor shall any agent, as an inducement for
   21-8  insurance or for any other reason, rebate all or any part of such
   21-9  tax or his commission.  The surplus lines agent shall report, under
  21-10  oath, to the State Board of Insurance within 30 days from the 1st
  21-11  day of January and July of each year the amount of gross premiums
  21-12  paid for such insurance placed through him in nonlicensed insurers,
  21-13  and shall pay to the Board the tax provided for by this Article.
  21-14  If a surplus lines policy covers risks or exposures only partially
  21-15  in this state, the tax payable shall be computed on the portions of
  21-16  the premium which are properly allocable to the risks or exposures
  21-17  located in this state.  In determining the amount of premiums
  21-18  taxable in this state, all premiums written, procured, or received
  21-19  in this state and all premiums on policies negotiated in this state
  21-20  shall be deemed written on property or risks located or resident in
  21-21  this state, except such premiums as are properly allocated or
  21-22  apportioned and reported as <taxable> premiums which may be subject
  21-23  to taxation by <of> any other state or states or by a foreign
  21-24  jurisdiction.  Premiums on risks or exposures which are properly
  21-25  allocated to federal waters, international waters or under the
  21-26  jurisdiction of a foreign government shall not be taxable by this
  21-27  state.  In event of cancellation and rewriting of any surplus lines
   22-1  insurance contract the additional premium for premium receipts tax
   22-2  purposes shall be the premium in excess of the unearned premium of
   22-3  the canceled insurance contract.
   22-4        SECTION 18.  Section 16, Article 1.14-2, Insurance Code, is
   22-5  amended to read as follows:
   22-6        Sec. 16.  Annual Report of Surplus Lines Agent.  Each surplus
   22-7  lines agent shall, before March 1 in each year, make a report to
   22-8  the Texas Department <State Board> of Insurance for the preceding
   22-9  calendar year, on the form prescribed by it, of such facts as it
  22-10  requires and including a showing that the amount of insurance
  22-11  procured from such eligible surplus lines <unauthorized> insurer or
  22-12  insurers is only the amount in excess of the amount procurable from
  22-13  licensed insurers.
  22-14        SECTION 19.  Section 17, Article 1.14-2, Insurance Code, is
  22-15  amended to read as follows:
  22-16        Sec. 17.  Penalty.  Any violation of this Article shall
  22-17  subject the surplus lines agent or eligible surplus lines insurer
  22-18  to all of the provisions and sanctions contained in Section 7,
  22-19  Article 1.10, of this Code.
  22-20        SECTION 20.  Section 17A(a), Article 1.14-2, Insurance Code,
  22-21  is amended to read as follows:
  22-22        (a)  If a surplus lines agent or eligible surplus lines
  22-23  insurer violates Section 8 or 9 of this article or a rule,
  22-24  regulation, or order adopted under that provision, the State Board
  22-25  of Insurance may assess a penalty against that agent or insurer as
  22-26  provided by Section 7, Article 1.10, of this code.
  22-27        SECTION 21.  Section 7(c), Article 1.36, Insurance Code, is
   23-1  amended to read as follows:
   23-2        (c)  In addition to service under Section 3 of this article
   23-3  and Subsection (a) of this section, service of process, notice, or
   23-4  demand on an unauthorized person or insurer is valid if served on
   23-5  any person in this state who on behalf of that unauthorized person
   23-6  or insurer is doing any act of an insurance business as provided by
   23-7  Section 2 of Article 1.14-1 of this code.  This section does not
   23-8  apply to surplus lines insurers which were deemed eligible surplus
   23-9  lines insurers pursuant to Article 1.14-2 of this code at the date
  23-10  the applicable coverage was issued.
  23-11        SECTION 22.  Section 8(b), Article 1.36, Insurance Code, is
  23-12  amended to read as follows:
  23-13        (b)  Any act of doing an insurance business as provided by
  23-14  Section 2 of Article 1.14-1 of this code by any unauthorized person
  23-15  or insurer is equivalent to and constitutes an irrevocable
  23-16  appointment of the secretary of state by that person or insurer,
  23-17  binding on him, his executor, administrator, or personal
  23-18  representative or, if a corporation, successor in interest to be
  23-19  the lawful attorney for service of that person or insurer.  The
  23-20  secretary of state may be served legal notice, order, pleading, or
  23-21  other process in any proceeding described by Subsection (a) of this
  23-22  section that arises out of doing an insurance business in this
  23-23  state by that person or insurer.  This section does not apply to
  23-24  surplus lines insurers which were deemed eligible surplus lines
  23-25  insurers pursuant to Article 1.14-2 of this code at the date
  23-26  applicable coverage was issued.
  23-27        SECTION 23.  Section 11, Article 1.36, Insurance Code, is
   24-1  amended by adding Subsection (d) to read as follows:
   24-2        (d)  This section does not apply to surplus lines insurers
   24-3  which were deemed eligible surplus lines insurers pursuant to
   24-4  Article 1.14-2 of this code at the date applicable coverage was
   24-5  issued.
   24-6        SECTION 24.  Section 12, Article 1.36, Insurance Code, is
   24-7  amended to read as follows:
   24-8        Sec. 12.  SERVICE OF PROCESS ON ELIGIBLE SURPLUS LINES
   24-9  INSURERS.  (a)  <A surplus lines insurer may be sued on any cause
  24-10  of action arising in this state under any surplus lines insurance
  24-11  contract issued by it or under any certificate, cover note, or
  24-12  other confirmation of that insurance issued by the surplus lines
  24-13  agent, under the same procedure provided for unauthorized insurers
  24-14  in Sections 3, 7, and 8 of this article.>  Any act of doing an
  24-15  insurance business by an eligible surplus lines insurance company
  24-16  constitutes an irrevocable appointment of the Secretary of State by
  24-17  that insurer binding on it and its successors in interest to be the
  24-18  lawful attorney for service of that insurer.  The Secretary of
  24-19  State may be served with any process, notice, or demand arising out
  24-20  of doing an insurance business in this state by that insurer,
  24-21  except in an action, suit, or proceeding by the State Board of
  24-22  Insurance or by the state.
  24-23        (b)  Any act of doing an insurance business by an eligible
  24-24  surplus lines insurance company signifies the insurer's agreement
  24-25  that legal process served under this section has the same legal
  24-26  force and validity as personal service of process in this state on
  24-27  that insurer or its successor in interest.
   25-1        (c) <(b)>  Any policy issued by the surplus lines insurer or
   25-2  any certificate of insurance issued by the surplus lines agent must
   25-3  contain a provision stating the substance of this section and
   25-4  designating the Person to whom the commissioner is to mail process.
   25-5  This address must be supplied by the plaintiff in the citation that
   25-6  is served.
   25-7        (d) <(c)>  Each surplus lines insurer assuming a surplus
   25-8  lines risk under this article is considered to have made itself
   25-9  subject to the terms of this section.
  25-10        (e) <(d)>  This section is cumulative of any other methods
  25-11  that may be provided by law for service of process on a surplus
  25-12  lines insurer, including Section 3 of this article.
  25-13        SECTION 25.  This Act takes effect on September 1, 1993.
  25-14        SECTION 26.  The importance of this legislation and the
  25-15  crowded condition of the calendars in both houses create an
  25-16  emergency and an imperative public necessity that the
  25-17  constitutional rule requiring bills to be read on three several
  25-18  days in each house be suspended, and this rule is hereby suspended.