By:  Duncan                                            H.B. No. 958
       73R3988 PB-F
                                 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 not
   1-14  authorized to do insurance business in this state (but not
   1-15  including eligible surplus lines insurers regulated under Article
   1-16  1.14-2 of this code), thus presenting to such residents the often
   1-17  insuperable obstacle of asserting their legal rights under such
   1-18  policies in forums foreign to them under laws and rules of practice
   1-19  with which they are not familiar.  The Legislature declares that it
   1-20  is also concerned with the protection of residents of this state
   1-21  against acts by persons and insurers not authorized to do an
   1-22  insurance business in this state by the maintenance of fair and
   1-23  honest insurance markets, by protecting the premium tax revenues of
   1-24  this state, by protecting authorized persons and insurers, which
    2-1  are 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), (15 U.S.C. Sec. 1011 et seq.), and its
   2-15  subsequent amendments <(Chapter 20, 1st Sess., S. 340), 59 Stats.
   2-16  33, as amended>, which declares that the business of insurance and
   2-17  every person engaged therein shall be subject to the laws of the
   2-18  several states.
   2-19        SECTION 2.  Section 2(b), Article 1.14-1, Insurance Code, is
   2-20  amended to read as follows:
   2-21        (b)  The provisions of this section do not apply to:
   2-22              1.  The lawful transaction of surplus lines insurance
   2-23  under Article 1.14-2 of this code and its subsequent amendments.
   2-24              2.  The lawful transaction of reinsurance by insurers.
   2-25              3.  Transactions in this state involving a policy
   2-26  lawfully solicited, written, and delivered outside of this state
   2-27  covering only subjects of insurance not resident, located, or
    3-1  expressly to be performed in this state at the time of issuance,
    3-2  and which transactions are subsequent to the issuance of such
    3-3  policy.
    3-4              4.  Transactions involving contracts of insurance
    3-5  independently procured through negotiations occurring entirely
    3-6  outside of this state which are reported and on which premium tax
    3-7  is paid in 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 of this code, and its subsequent
   3-17  amendments.
   3-18        SECTION 3.  Sections 8, 10, and 11, Article 1.14-1, Insurance
   3-19  Code, are amended to read as follows:
   3-20        Sec. 8.  Validity of Insurance Contracts.  Except for
   3-21  <lawfully procured> surplus lines insurance procured through
   3-22  eligible surplus lines insurers under Article 1.14-2 of this code
   3-23  and its subsequent amendments and contracts of insurance
   3-24  independently procured through negotiations occurring entirely
   3-25  outside of this state which are reported and on which premium tax
   3-26  is paid in accordance with this Article or Article 1.14-2 of this
   3-27  code and its subsequent amendments, any contract of insurance
    4-1  effective in this state and entered into by an unauthorized insurer
    4-2  is unenforceable by such insurer.  In event of failure of any such
    4-3  unauthorized insurer to pay any claim or loss within the provisions
    4-4  of such insurance contract, any person who assisted or in any
    4-5  manner aided directly or indirectly in the procurement of such
    4-6  insurance contract shall be liable to the insured for the full
    4-7  amount thereof pursuant to the provisions of such insurance
    4-8  contract.
    4-9        Sec. 10.  Reporting of Unauthorized Insurance.  (a)  Every
   4-10  person investigating or adjusting any loss or claim on a subject of
   4-11  insurance in this state shall immediately report to the State Board
   4-12  of Insurance every insurance policy or contract which has been
   4-13  entered into by any unauthorized insurer <not authorized to
   4-14  transact such insurance in this state>.
   4-15        (b)  This section does not apply to:
   4-16              (1)  transactions in this state involving a policy
   4-17  lawfully solicited, written, and delivered outside of this state
   4-18  covering only subjects of insurance not resident, located or
   4-19  expressly to be performed in this state at the time of issuance<,>
   4-20  and which <transactions> are subsequent to the issuance of such
   4-21  policy; or
   4-22              (2)  surplus lines insurance procured through an
   4-23  eligible surplus lines insurer under Article 1.14-2 of this code
   4-24  and its subsequent amendments.
   4-25        Sec. 11.  Unauthorized insurance premium tax.  (a)  Except as
   4-26  to premiums on <lawfully procured> surplus lines insurance procured
   4-27  through eligible surplus lines insurers under Article 1.14-2 of
    5-1  this code and its subsequent amendments and premiums on
    5-2  independently procured insurance on which a tax has been paid
    5-3  pursuant to this Article or Article 1.14-2 of this code and its
    5-4  subsequent amendments, every unauthorized insurer shall pay to the
    5-5  State Board of Insurance before March 1 next succeeding the
    5-6  calendar year in which the insurance was so effectuated, continued
    5-7  or renewed a premium receipts tax of 4.85 percent of gross premiums
    5-8  charged for such insurance on subjects resident, located or to be
    5-9  performed in this state.  Such insurance on subjects resident,
   5-10  located or to be performed in this state procured through
   5-11  negotiations or an application, in whole or in part occurring or
   5-12  made within or from within or outside of this state, or for which
   5-13  premiums in whole or in part are remitted directly or indirectly
   5-14  from within or outside of this state, shall be deemed to be
   5-15  insurance procured, or continued or renewed in this state.  The
   5-16  term "premium" includes all premiums, membership fees, assessments,
   5-17  dues and any other consideration for insurance.  Such tax shall be
   5-18  in lieu of all other insurance taxes.  On default of any such
   5-19  unauthorized insurer in the payment of such tax the insured shall
   5-20  pay the tax.  If the tax prescribed by this subsection is not paid
   5-21  within the time stated, the tax shall be increased by a penalty of
   5-22  25 percent and by the amount of an additional penalty computed at
   5-23  the rate of one percent per month or any part thereof from the date
   5-24  such payment was due to the date paid.
   5-25        (b)  If a policy covers risks or exposures only partially in
   5-26  this state, the tax payable shall be computed on the portions of
   5-27  the premiums which are properly allocable to the risks or exposures
    6-1  located in this state.  In determining the amount of premiums
    6-2  taxable in this state, all premiums written, procured, or received
    6-3  in this state and all premiums on policies negotiated in this state
    6-4  shall be deemed written on property or risks located or resident in
    6-5  this state, except such premiums as are properly allocated or
    6-6  apportioned and reported as taxable premiums of any other state or
    6-7  states.  Premiums on risks or exposures that properly are allocated
    6-8  to federal or international waters, or that are under the
    6-9  jurisdiction of a foreign government, are not taxable by this
   6-10  state.
   6-11        SECTION 4.  Section 12, Article 1.14-1, Insurance Code, is
   6-12  amended by amending Subsections (a)-(d) and by adding Subsection
   6-13  (h) to read as follows:
   6-14        (a)  Every insured who procures or causes to be procured or
   6-15  continues or renews insurance with any unauthorized insurer or
   6-16  eligible surplus lines insurer subject to Article 1.14-2 of this
   6-17  code and its subsequent amendments, or any insured or self-insurer
   6-18  who so procures or continues excess loss, catastrophe or other
   6-19  insurance, upon a subject of insurance resident, located or to be
   6-20  performed within this state, other than insurance procured through
   6-21  a surplus lines agent under Article 1.14-2 of this code and its
   6-22  subsequent amendments <pursuant to the surplus lines law of this
   6-23  state> shall within 60 days after the date such insurance was so
   6-24  procured, continued or renewed, file a report of the same with the
   6-25  State Board of Insurance in writing and upon forms designated by
   6-26  the State Board of Insurance and furnished to such an insured upon
   6-27  request.  The report shall show the name and address of the insured
    7-1  or insureds, name and address of the insurer, the subject of the
    7-2  insurance, a general description of the coverage, the amount of
    7-3  premium currently charged therefor, and such additional pertinent
    7-4  information as is reasonably requested by the State Board of
    7-5  Insurance.
    7-6        (b)  Any insurance in an unauthorized insurer or eligible
    7-7  surplus lines insurer subject to Article 1.14-2 of this code and
    7-8  its subsequent amendments of a subject of insurance resident,
    7-9  located or to be performed within this state procured through
   7-10  negotiations or an application, in whole or in part occurring or
   7-11  made within or from within or outside of this state, or for which
   7-12  premiums in whole or in part are remitted directly or indirectly
   7-13  from within or outside of this state, shall be deemed to be
   7-14  insurance procured, or continued or renewed in this state within
   7-15  the intent of Paragraph (a).
   7-16        (c)  There is hereby levied upon the obligation, chose in
   7-17  action, or right represented by the premium charged for such
   7-18  insurance, a premium receipts tax of 4.85 <3.85> percent of gross
   7-19  premiums charged for such insurance.   The term "premium" shall
   7-20  include all premiums, membership fees, assessments, dues and any
   7-21  other consideration for insurance.  Such tax shall be in lieu of
   7-22  all other insurance taxes.  The insured shall, before March 1 next
   7-23  succeeding the calendar year in which the insurance was so
   7-24  procured, continued or renewed, pay the amount of the tax to the
   7-25  State Board of Insurance.  In event of cancellation and rewriting
   7-26  of any such insurance contract the additional premium for premium
   7-27  receipts tax purposes shall be the premium in excess of the
    8-1  unearned premium of the canceled insurance contract.
    8-2        (d)  If a policy covers risks or exposures only partially in
    8-3  this state, the tax payable shall be computed on the portions of
    8-4  the premium which are properly allocable to the risks or exposures
    8-5  located in this state.  In determining the amount of premiums
    8-6  taxable in this state, all premiums written, procured or received
    8-7  in this state and all premiums on policies negotiated in this state
    8-8  shall be deemed written on property or risks located or resident in
    8-9  this state, except such premiums as are properly allocated or
   8-10  apportioned and reported as taxable premiums of any other state or
   8-11  states.  Premiums on risks or exposures that properly are allocated
   8-12  to federal or international waters, or that are under the
   8-13  jurisdiction of a foreign government, are not taxable by this
   8-14  state.
   8-15        (h)  An insured who resides outside this state, but who is
   8-16  otherwise subject to this section, may forward premium taxes owed
   8-17  under this section to the State Board of Insurance through a
   8-18  non-resident agent acting on the insured's behalf and licensed
   8-19  under Article 21.11 of this code and its subsequent amendments.
   8-20        SECTION 5.  Section 1, Article 1.14-2, Insurance Code, is
   8-21  amended to read as follows:
   8-22        Sec. 1.  Purpose.  Insurance transactions which are entered
   8-23  into by citizens of this state with eligible surplus lines
   8-24  <unauthorized> insurers through a surplus lines agent as a result
   8-25  of difficulty in obtaining coverage from licensed insurers are a
   8-26  matter of public interest.  The Legislature declares that such
   8-27  transaction of surplus lines insurance is a subject of concern and
    9-1  that it is necessary to provide for the regulation, taxation,
    9-2  supervision and control of such transactions and the practices and
    9-3  matters related thereto by requiring appropriate standards and
    9-4  reports concerning the placement of such insurance; by imposing
    9-5  requirements necessary to make such regulation and control
    9-6  reasonably complete and effective; by providing orderly access to
    9-7  eligible surplus lines insurers <that are not authorized to
    9-8  transact the business of insurance in this state>; by insuring the
    9-9  maintenance of fair and honest markets; by protecting the revenues
   9-10  of this state; and by protecting licensed <authorized> insurers,
   9-11  which under the laws of this state must meet strict standards as to
   9-12  the regulation of the business of insurance and the taxation
   9-13  thereof, from unfair competition by unauthorized insurers.  In
   9-14  order to properly regulate and tax <such unauthorized> insurance
   9-15  placed in accordance with this Article within the meaning and
   9-16  intent of P.L. 79-15 (1945), (15 U.S.C. Sec. 1011 et seq.), and its
   9-17  subsequent amendments <(Chap. 20, 1st Sess., S. 340), 59 Stat. 33>,
   9-18  the Legislature herein provides an orderly method for <the>
   9-19  insuring the general public of this state through eligible surplus
   9-20  lines <to effect insurance with unauthorized> insurers operating
   9-21  through qualified, licensed, and supervised surplus line agents in
   9-22  this state if coverage is not available through licensed and
   9-23  regulated insurers conducting the business of insurance in this
   9-24  state, and under reasonable and practical safeguards so that such
   9-25  insurance coverage may be obtained by residents of this state <to
   9-26  the extent that the coverage is not procurable from duly licensed,
   9-27  regulated insurers conducting business in this state>.
   10-1        SECTION 6.  Section 2, Article 1.14-2, Insurance Code, is
   10-2  amended by amending Subsection (b) and by adding Subsection (c) to
   10-3  read as follows:
   10-4        (b)  "Surplus lines insurer" means an <unauthorized> insurer
   10-5  determined to be eligible under Section 8 of this Article in which
   10-6  an insurance coverage is placed or may be placed under this
   10-7  Article.  An eligible surplus lines insurer is not an unauthorized
   10-8  insurer.
   10-9        (c)  The term "licensed insurer" does not include a residual
  10-10  market mechanism established as a market of last resort in this
  10-11  state.
  10-12        SECTION 7.  Section 3, Article  1.14-2, Insurance Code, is
  10-13  amended to read as follows:
  10-14        Sec. 3.  Surplus Lines Insurance Authorized.  (a)  If
  10-15  insurance coverages of subjects resident, located or to be
  10-16  performed in this state cannot be procured from licensed insurers
  10-17  after diligent effort, such coverages, hereinafter designated as
  10-18  surplus line insurance, may be procured from eligible surplus lines
  10-19  <unauthorized> insurers subject to the following conditions:
  10-20              1.  The insurance must be eligible for surplus lines
  10-21  under Section 5 of this article.
  10-22              2.  The insurer must be <an> eligible <surplus lines
  10-23  insurer> under Section 8 of this article.
  10-24              3.  The insurance must be placed through a licensed
  10-25  Texas surplus lines agent resident in this state.
  10-26              4.  The other applicable provisions of this section
  10-27  must be complied with.
   11-1        (b)  Except as provided by Subsection (c) of this section,
   11-2  any <Any> insurance of subjects resident, located or to be
   11-3  performed in this state, procured through negotiations or an
   11-4  application, in whole or in part occurring or made within or from
   11-5  within this state, or for which premiums in whole or in part are
   11-6  remitted directly or indirectly from within this state, shall be
   11-7  deemed to be insurance procured, or continued or renewed in this
   11-8  state within the intent of Subsection <Paragraph> (a) of this
   11-9  section.
  11-10        (c)  This article does not apply to subjects of insurance
  11-11  located wholly within the jurisdiction of another state or foreign
  11-12  country or located wholly within federal or international waters.
  11-13        SECTION 8.  Section 4(a), Article 1.14-2, Insurance Code, is
  11-14  amended to read as follows:
  11-15        (a)  An agent licensed by the state may not issue or cause to
  11-16  be issued an insurance contract with an eligible surplus lines
  11-17  <unauthorized> insurer, unless the agent possesses a current
  11-18  surplus lines license issued by the State Board of Insurance.
  11-19        SECTION 9.  Sections 5 and 6, Article 1.14-2, Insurance Code,
  11-20  are amended to read as follows:
  11-21        Sec. 5.  Eligibility for Surplus Lines Insurance.  (a)  No
  11-22  insurance coverage shall be eligible for surplus lines unless the
  11-23  insurer is an eligible surplus lines insurer on the inception date
  11-24  of the coverage and a diligent effort has been performed as
  11-25  described by Subsection (c) of this section. <full amount of
  11-26  insurance required is not procurable, after a diligent effort has
  11-27  been made to do so, from among the insurers licensed to transact
   12-1  and actually writing that kind and class of insurance in this
   12-2  state, and the amount of insurance eligible for surplus lines shall
   12-3  be only the amount in excess of the amount so procurable from
   12-4  licensed insurers.>
   12-5        (b)  Responsibility for compliance with Subsection (a) of
   12-6  this section lies with the insured, the surplus lines agent, and
   12-7  the agent who directly solicits the coverage from the insured.
   12-8  <Policy or contract forms shall not be eligible unless the use is
   12-9  reasonably necessary for the principal purposes of the coverage or
  12-10  unless the use would not be contrary to the purposes of this
  12-11  Article with respect to the reasonable protection of authorized
  12-12  insurers from unwarranted competition by unauthorized insurers.>
  12-13        (c)  For the purposes of this section, "diligent effort"
  12-14  means an effort to procure insurance from licensed insurers that is
  12-15  evidenced by a document prepared by an agent, as defined by
  12-16  Subchapter A, Chapter 21, of this code, and its subsequent
  12-17  amendments, who directly solicits insurance coverage from an
  12-18  insured.  The documentation must provide evidence that the coverage
  12-19  required was not available from three licensed insurers available
  12-20  to that agent who are authorized to write and actually engaged in
  12-21  writing the kind or class of insurance business in this state and
  12-22  that meet the insured's requirements, both as to type of coverage
  12-23  and quality of security and service.  If there are fewer than three
  12-24  appropriate licensed insurers, the diligent effort requirement may
  12-25  be met by searching a smaller market.  "Type of coverage" refers to
  12-26  hazards covered and limits of coverage.  "Quality of security and
  12-27  service" refers to a rating assigned by a recognized financial
   13-1  service.
   13-2        Sec. 6.  Procedure for Effecting Surplus Lines Contracts.
   13-3  (a)  <Before any new or renewal insurance shall be procured in an
   13-4  unlicensed insurer the agent shall make an affidavit, which shall
   13-5  be promptly filed with the State Board of Insurance, that he is
   13-6  after diligent effort unable to procure from any licensed insurer
   13-7  or insurers the full amount of insurance required to protect the
   13-8  interest of the insured.  If the annual premiums paid by the
   13-9  insured for such surplus lines coverage exceed $25,000, the insured
  13-10  may execute the affidavit in lieu of the surplus lines agent.>
  13-11        <(b)>  Upon placing a new or renewal surplus line coverage,
  13-12  the surplus lines agent shall promptly issue and deliver to the
  13-13  insured or his agent, as the case may be, evidence of the insurance
  13-14  consisting either of the policy as issued by the insurer or, if
  13-15  such policy is not then available, a certificate, cover note or
  13-16  other confirmation of insurance.
  13-17        (b) <(c)>  Within 60 days after the effectuation of any new
  13-18  or renewal surplus lines insurance contract, the surplus lines
  13-19  agent shall file with the Surplus Lines Stamping Office of Texas
  13-20  evidence that a diligent effort under Section 5 of this Article has
  13-21  been performed, accompanied by a true and correct <State Board of
  13-22  Insurance an exact> copy of the policy issued.  If a policy has not
  13-23  been issued, the surplus lines agent shall so file a true and
  13-24  correct <an exact> copy of the <his> certificate, cover note, or
  13-25  other confirmation of insurance as delivered to the insured.  The
  13-26  surplus lines agent shall likewise promptly file with the Surplus
  13-27  Lines Stamping Office of Texas a true and correct <State Board of
   14-1  Insurance an exact> copy of any substitute certificate, cover note,
   14-2  or other confirmation of insurance, and of every endorsement of an
   14-3  original policy, certificate, cover note, or other confirmation of
   14-4  insurance, delivered to an insured, together with such surplus
   14-5  lines agent's memorandum informing that office <the State Board of
   14-6  Insurance> as to the substance of any change represented by such
   14-7  substitute certificate, cover note, or other confirmation, or of
   14-8  any such endorsement, as compared with the coverage as originally
   14-9  placed or issued.  Except, however, as respects this Subsection
  14-10  <(c)>, equivalent information may be filed as required by the
  14-11  Board.
  14-12        (c) <(d)>  No surplus lines agent shall deliver any such
  14-13  document, or purport to insure or represent that insurance will be
  14-14  or has been granted by any eligible surplus lines <unauthorized>
  14-15  insurer unless he has prior written authority from the insurer for
  14-16  the insurance, or has received information from the insurer in the
  14-17  regular course of business that such insurance has been granted, or
  14-18  an insurance policy providing the insurance actually has been
  14-19  issued by the insurer and delivered to the insured.
  14-20        (d) <(e)>  If after the delivery of any such document there
  14-21  is any change as to the identity of the insurers, or the proportion
  14-22  of the direct risk assumed by the insurer as stated in the original
  14-23  certificate, cover note, or confirmation, or in any other material
  14-24  respect as to the insurance coverage evidenced by such a document,
  14-25  the surplus lines agent shall promptly deliver to the insured a
  14-26  substitute certificate, cover note, confirmation or endorsement for
  14-27  the original such document, accurately showing the current status
   15-1  of the coverage and the insurers responsible thereunder.  No such
   15-2  change shall result in a coverage or insurance contract which would
   15-3  be in violation of this Article if originally issued on such basis.
   15-4        (e) <(f)>  If a policy issued by the insurer is not available
   15-5  upon placement of the insurance and the surplus lines agent has
   15-6  delivered a certificate, cover note, or confirmation, as
   15-7  hereinabove provided, upon request therefor by the insured the
   15-8  surplus lines agent shall as soon as reasonably possible procure
   15-9  from the insurer its policy evidencing the insurance and deliver
  15-10  the policy to the insured in replacement of the certificate, cover
  15-11  note, or confirmation theretofore issued.
  15-12        SECTION 10.  Section 6A(c), Article 1.14-2, Insurance Code,
  15-13  is amended to read as follows:
  15-14        (c)  The stamping office shall function through a board of
  15-15  directors appointed by the State Board of Insurance.  The board of
  15-16  directors of the stamping office shall consist of 9 members, who
  15-17  serve terms as established in the plan of operation. Four of the
  15-18  members of the board of directors must represent the general public
  15-19  and must have at least two years of experience in the purchase of
  15-20  commercial insurance to be eligible for appointment.  A public
  15-21  representative may not be:
  15-22              (1)  an officer, director, or employee of an insurance
  15-23  company, insurance agency, agent, broker, solicitor, adjuster, or
  15-24  any other business entity regulated by the State Board of
  15-25  Insurance;
  15-26              (2)  a person required to register with the secretary
  15-27  of state under Chapter 305, Government Code; or
   16-1              (3)  related to a person described by Subdivision (1)
   16-2  or (2) of this subsection within the second degree of affinity or
   16-3  consanguinity.
   16-4        SECTION 11.  Section 7, Article 1.14-2, Insurance Code, is
   16-5  amended by adding Subsections (c) and (d) to read as follows:
   16-6        (c)  The insurer must be an eligible surplus lines insurer as
   16-7  of the inception date of the insurance contract, cover note, or
   16-8  other confirmation of insurance.
   16-9        (d)  An extension of a contract beyond the original
  16-10  expiration date of that contract is subject to Subsection (a) of
  16-11  this section and to Section 8 of this Article.
  16-12        SECTION 12.  Sections 8 and 9, Article 1.14-2, Insurance
  16-13  Code, are amended to read as follows:
  16-14        Sec. 8.  Eligibility of surplus lines insurers.  (a)  A
  16-15  surplus lines agent shall not knowingly place surplus lines
  16-16  insurance with financially unsound insurers.  The surplus lines
  16-17  agent shall make a reasonable effort to ascertain the financial
  16-18  condition of the eligible surplus lines <unauthorized> insurer
  16-19  before placing insurance therewith.
  16-20        (b)  No surplus lines agent shall place any coverage with an
  16-21  <unauthorized> insurer unless the insurer has met the eligibility
  16-22  requirements of this section and the stamping office provides
  16-23  evidence that the insurer has met the requirements to the State
  16-24  Board of Insurance.  An <unauthorized> insurer may not be
  16-25  classified as an <shall not be> eligible surplus lines insurer
  16-26  under this article unless the insurer has a minimum capital and
  16-27  surplus that are not less than the following amounts for the
   17-1  following dates:
   17-2              (1)  $4.5 million capital and surplus as of December
   17-3  31, 1991; or
   17-4              (2)  $6 million capital and surplus as of December 31,
   17-5  1992.
   17-6        (c)  An eligible surplus lines <unauthorized> insurer may be
   17-7  exempt from the minimum capital and surplus requirements provided
   17-8  by Subsection (b) of this section if the Commissioner of Insurance
   17-9  finds, after public hearing, that the exemption is warranted based
  17-10  on factors such as quality of management, capital and surplus of
  17-11  any parent company, company underwriting profit and investment
  17-12  income trends, reinsurance contracts, company record and reputation
  17-13  within the industry, and other information the commissioner
  17-14  requires to make a determination.
  17-15        (d)  In addition to meeting the minimum capital and surplus
  17-16  requirements provided by this section, an alien insurer must
  17-17  provide evidence that it maintains in the United States an
  17-18  irrevocable trust fund in a Federal Reserve System member bank in
  17-19  an amount not less than $1.5 million for the protection of all its
  17-20  policyholders in the United States and that the trust fund consists
  17-21  of cash, securities, letters of credit, or investments of
  17-22  substantially the same character and quality as those that are
  17-23  eligible investments for the capital and statutory reserves of
  17-24  authorized insurers licensed to write like kinds and classes of
  17-25  insurance in this state.
  17-26        (e)  Instead of the minimum capital and surplus requirements
  17-27  provided by this section, an unincorporated group of alien
   18-1  individual insurers may maintain a trust fund in an amount not less
   18-2  than $50 million as security to the full amount of the trust fund
   18-3  for all policyholders and creditors in the United States of each
   18-4  member of the group.  Except as specifically otherwise provided by
   18-5  this subsection, the trust fund must comply with the terms and
   18-6  conditions provided by Subsection (d) of this section for the trust
   18-7  fund required by that subsection.
   18-8        (f)  Every insurer<, as defined by Article 1.14-1,> proposing
   18-9  to transact surplus lines insurance within this state shall hold a
  18-10  current license or authority from its domiciliary state or country
  18-11  to conduct the business of insurance.  The license or authority
  18-12  from the domiciliary state or country must be for the kind or class
  18-13  of insurance to be written in this state as surplus lines
  18-14  insurance, and satisfactory evidence that the insurer holds the
  18-15  required license or authorization must be provided to the
  18-16  Commissioner of Insurance.
  18-17        (g)  The <unauthorized> insurer must be of good repute and
  18-18  provide reasonably prompt service to its policyholders in the
  18-19  payment of just losses and claims.
  18-20        (h)  No <unauthorized> insurer shall be eligible if the
  18-21  management is incompetent or untrustworthy, or so lacking in
  18-22  insurance company managerial experience as to make its proposed
  18-23  operation hazardous to the insurance-buying public; or if the State
  18-24  Board of Insurance has good reason to believe that it is affiliated
  18-25  directly or indirectly through ownership, control, reinsurance
  18-26  transactions or other insurance or business relations, with any
  18-27  person whose business operations are or have been detrimental to
   19-1  policyholders, stockholders, investors, creditors or to the public.
   19-2        (i)  No <unauthorized> insurer shall be eligible if the
   19-3  insurer or its agents have failed to submit to any fine or penalty
   19-4  levied pursuant to statute.   No <unauthorized> insurer shall be
   19-5  eligible if the insurer is obligated to pay and has failed to pay
   19-6  premium taxes required by this state <under Section 11 of Article
   19-7  1.14-1>.  The State Board of Insurance may order revocation of
   19-8  insurance contracts issued by insurers that do not conform with the
   19-9  eligibility requirements of this section.
  19-10        (j)  No new or renewal surplus lines insurance shall be
  19-11  placed with any eligible surplus lines insurer which requires as a
  19-12  condition precedent to writing such new or renewal insurance that
  19-13  the prospective insured or the insured place other insurance not
  19-14  procurable <eligible> as surplus lines insurance with that eligible
  19-15  <such> surplus lines insurer.
  19-16        (k)  <This section shall not be deemed to cast upon the State
  19-17  Board of Insurance any duty or responsibility to determine the
  19-18  actual financial condition or claims practice of any unauthorized
  19-19  insurer.>
  19-20        <(l)>  An <unauthorized> insurer is not an eligible surplus
  19-21  lines insurer unless it is authorized to write the same coverage in
  19-22  the jurisdiction in which the <unauthorized> insurer is licensed or
  19-23  certificated to do business.
  19-24        Sec. 9.  VALIDITY OF CONTRACTS; EFFECT OF FRAUD; PENALTIES.
  19-25  (a)  Insurance contracts procured as surplus lines <line> coverage
  19-26  from eligible surplus lines <unauthorized> insurers <in accordance
  19-27  with this Article> shall be fully valid and enforceable as to all
   20-1  parties unless fraudulently procured, and shall be given
   20-2  recognition in all matters and respects to the same effect and
   20-3  extent as like contracts issued by licensed <authorized> insurers.
   20-4        (b)  A contract of insurance fraudulently procured from an
   20-5  eligible surplus lines <placed in effect by an unauthorized>
   20-6  insurer <in violation of this Article> is unenforceable <by the
   20-7  insurer>.
   20-8        (c)  The State Board of Insurance, by rule, may establish
   20-9  administrative penalties for violations other than fraud <insured
  20-10  shall not be precluded from enforcing his rights in accordance with
  20-11  the terms and provisions of such contract>.
  20-12        SECTION 13.  Sections 12(a) and (b), Article 1.14-2,
  20-13  Insurance Code, are amended to read as follows:
  20-14        (a)  The premiums charged for surplus lines insurance are
  20-15  subject to a premium receipts tax of 4.85 percent of gross premiums
  20-16  charged for such insurance.  The term premium includes all
  20-17  premiums, membership fees, assessments, dues or any other
  20-18  consideration for insurance.  Such tax shall be in lieu of all
  20-19  other insurance taxes.  The surplus lines agent shall collect from
  20-20  the insured the amount of the tax at the time of delivery of the
  20-21  cover note, certificate of insurance, policy or other initial
  20-22  confirmation of insurance, in addition to the full amount of the
  20-23  gross premium charged by the insurer for the insurance.  No agent
  20-24  shall absorb such tax nor shall any agent, as an inducement for
  20-25  insurance or for any other reason, rebate all or any part of such
  20-26  tax or his commission.  The surplus lines agent shall report, under
  20-27  oath, to the State Board of Insurance within 30 days from the 1st
   21-1  day of January and July of each year the amount of gross premiums
   21-2  paid for such insurance placed through him in nonlicensed insurers,
   21-3  and shall pay to the Board the tax provided for by this Article.
   21-4  If a surplus lines policy covers risks or exposures only partially
   21-5  in this state, the tax payable shall be computed on the portions of
   21-6  the premium which are properly allocable to the risks or exposures
   21-7  located in this state. In determining the amount of premiums
   21-8  taxable in this state, all premiums written, procured, or received
   21-9  in this state and all premiums on policies negotiated in this state
  21-10  shall be deemed written on property or risks located or resident in
  21-11  this state, except such premiums as are properly allocated or
  21-12  apportioned and reported as <taxable> premiums subject to taxation
  21-13  by <of> any other state or foreign jurisdiction <states>.  Premiums
  21-14  on risks or exposures that properly are allocated to federal or
  21-15  international waters, or that are under the jurisdiction of a
  21-16  foreign government, are not taxable by this state.  In event of
  21-17  cancellation and rewriting of any surplus lines insurance contract
  21-18  the additional premium for premium receipts tax purposes shall be
  21-19  the premium in excess of the unearned premium of the canceled
  21-20  insurance contract.
  21-21        (b)  All surplus lines premium receipt taxes collected by a
  21-22  surplus lines agent are trust funds in his hands and the property
  21-23  of this state.  Such funds shall be maintained by the surplus lines
  21-24  agent in a separate account and shall not be mingled with any other
  21-25  funds, either business or private.  Any surplus lines agent who
  21-26  fails or refuses to pay over to the state the surplus lines premium
  21-27  receipts tax at the time required in this section, or who
   22-1  fraudulently withholds or appropriates or otherwise uses such money
   22-2  or any portions thereof belonging to the state is guilty of theft
   22-3  and shall be punished as provided by law for the crime of theft,
   22-4  irrespective of whether any such surplus lines agent has or claims
   22-5  to have any interest in such money so received by him.  A surplus
   22-6  lines agent may file premium taxes on behalf of a nonresident agent
   22-7  licensed under Article 21.11 of this code and its subsequent
   22-8  amendments for an out-of-state insured with insurance exposures in
   22-9  this state.  The nonresident agent must comply with the diligent
  22-10  effort requirements imposed under Section 5 of this Article.
  22-11        SECTION 14.  Section 16, Article 1.14-2, Insurance Code, is
  22-12  repealed.
  22-13        SECTION 15.  (a)  Except as provided by Subsection (b) of
  22-14  this section, this Act takes effect September 1, 1993.
  22-15        (b)  A member of the board of directors of the Surplus Lines
  22-16  Stamping Office of Texas appointed under Section 6A(c), Article
  22-17  1.14-2, Insurance Code, as that section existed before amendment by
  22-18  this Act, may continue to serve until the expiration of the term to
  22-19  which that member was appointed.
  22-20        (c)  Articles 1.14-1 and 1.14-2, Insurance Code, as amended
  22-21  by this Act, apply only to an insurance policy that is delivered,
  22-22  issued for delivery, or renewed before January 1, 1994.  A policy
  22-23  that is delivered, issued for delivery, or renewed before January
  22-24  1, 1994, is governed by the law as it existed immediately before
  22-25  the effective date of this Act, and that law is continued in effect
  22-26  for that purpose.
  22-27        SECTION 16.  The importance of this legislation and the
   23-1  crowded condition of the calendars in both houses create an
   23-2  emergency and an imperative public necessity that the
   23-3  constitutional rule requiring bills to be read on three several
   23-4  days in each house be suspended, and this rule is hereby suspended.