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