1-1  By:  Duncan, Counts (Senate Sponsor - Parker)          H.B. No. 958
    1-2        (In the Senate - Received from the House May 17, 1993;
    1-3  May 18, 1993, read first time and referred to Committee on Economic
    1-4  Development; May 22, 1993, reported adversely, with favorable
    1-5  Committee Substitute by the following vote:  Yeas 8, Nays 0;
    1-6  May 22, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Parker             x                               
   1-10        Lucio              x                               
   1-11        Ellis              x                               
   1-12        Haley              x                               
   1-13        Harris of Dallas                               x   
   1-14        Harris of Tarrant                              x   
   1-15        Leedom             x                               
   1-16        Madla              x                               
   1-17        Rosson             x                               
   1-18        Shapiro            x                               
   1-19        Wentworth                                      x   
   1-20  COMMITTEE SUBSTITUTE FOR H.B. No. 958                   By:  Parker
   1-21                         A BILL TO BE ENTITLED
   1-22                                AN ACT
   1-23  relating to the issuance of insurance through eligible surplus
   1-24  lines insurers.
   1-25        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-26        SECTION 1.  Section 1, Article 1.14-1, Insurance Code, is
   1-27  amended to read as follows:
   1-28        Sec. 1.  Purpose.  The purpose of this Article is to subject
   1-29  certain persons and insurers to the jurisdiction of the State Board
   1-30  of Insurance, of proceedings before the Board, and of the courts of
   1-31  this state in suits by or on behalf of the state and insureds or
   1-32  beneficiaries under insurance contracts.  The Legislature declares
   1-33  that it is a subject of concern that many residents of this state
   1-34  hold policies of insurance issued by persons and insurers neither
   1-35  <not> authorized to do insurance business in this state nor
   1-36  qualified as eligible surplus lines insurers as defined in Article
   1-37  1.14-2, thus presenting to such residents the often insuperable
   1-38  obstacle of asserting their legal rights under such policies in
   1-39  forums foreign to them under laws and rules of practice with which
   1-40  they are not familiar.  The Legislature declares that it is also
   1-41  concerned with the protection of residents of this state against
   1-42  acts by persons and insurers not authorized to do an insurance
   1-43  business in this state by the maintenance of fair and honest
   1-44  insurance markets, by protecting the premium tax revenues of this
   1-45  state, by protecting authorized persons and insurers, which are
   1-46  subject to strict regulation, from unfair competition by
   1-47  unauthorized persons and insurers and by protecting against the
   1-48  evasion of the insurance regulatory laws of this state.  In
   1-49  furtherance of such state interest, the Legislature herein provides
   1-50  methods for substituted service of process upon such persons or
   1-51  insurers in any proceeding, suit or action in any court and
   1-52  substitute service of any notice, order, pleading or process upon
   1-53  such persons or insurers in any proceeding before the State Board
   1-54  of Insurance to enforce or effect full compliance with the
   1-55  insurance and tax statutes of this state, and declares in so doing
   1-56  it exercises its power to protect residents of this state and to
   1-57  define what constitutes doing an insurance business in this state,
   1-58  and also exercises powers and privileges available to this state by
   1-59  virtue of P.L. 79-15 (1945), (Chapter 20, 1st Sess., S. 340), 59
   1-60  Stats. 33, as amended, which declares that the business of
   1-61  insurance and every person engaged therein shall be subject to the
   1-62  laws of the several states.
   1-63        SECTION 2.  Section 2(b), Article 1.14-1, Insurance Code, is
   1-64  amended to read as follows:
   1-65        (b)  The provisions of this section do not apply to:
   1-66              1.  The lawful transaction of surplus lines insurance
   1-67  pursuant to Article 1.14-2.
   1-68              2.  The lawful transaction of reinsurance by insurers.
    2-1              3.  Transactions in this state involving a policy
    2-2  lawfully solicited, written, and delivered outside of this state
    2-3  covering only subjects of insurance not resident, located, or
    2-4  expressly to be performed in this state at the time of issuance,
    2-5  and which transactions are subsequent to the issuance of such
    2-6  policy.
    2-7              4.  Transactions involving contracts of insurance
    2-8  independently procured through negotiations occurring entirely
    2-9  outside of this state which are reported and on which premium tax
   2-10  is paid in accordance with this Article.
   2-11              5.  Transactions in this state involving group life,
   2-12  health or accident insurance (other than credit insurance) and
   2-13  group annuities where the master policy of such groups was lawfully
   2-14  issued and delivered in a state in which the company was authorized
   2-15  to do an insurance business and such transactions are authorized by
   2-16  other statutes of this state.
   2-17              6.  Lawful transactions by servicing companies of the
   2-18  Texas workers' compensation employers' rejected risk fund pursuant
   2-19  to Section 4.08, Article 5.76-2.
   2-20        SECTION 3.  Section 8, Article 1.14-1, Insurance Code, is
   2-21  amended to read as follows:
   2-22        Sec. 8.  Validity of Insurance Contracts.  Except for
   2-23  <lawfully procured surplus lines> insurance procured by a licensed
   2-24  surplus lines agent from an eligible surplus lines insurer as
   2-25  defined in Article 1.14-2 and contracts of insurance independently
   2-26  procured, as defined in Section 2(b)4 of this Article, <through
   2-27  negotiations occurring entirely outside of this state> which are
   2-28  reported and on which premium tax is paid in accordance with this
   2-29  Article or Article 1.14-2, any contract of insurance effective in
   2-30  this state and entered into by an unauthorized insurer is
   2-31  unenforceable by such insurer.  In event of failure of any such
   2-32  unauthorized insurer to pay any claim or loss within the provisions
   2-33  of such insurance contract, any person who assisted or in any
   2-34  manner aided directly or indirectly in the procurement of such
   2-35  insurance contract shall be liable to the insured for the full
   2-36  amount thereof pursuant to the provisions of such insurance
   2-37  contract.
   2-38        SECTION 4.  Section 9, Article 1.14-1, Insurance Code, is
   2-39  amended by adding Subsection (c) to read as follows:
   2-40        (c)  This section does not apply to transactions in this
   2-41  state involving a policy lawfully solicited, negotiated, written,
   2-42  and delivered outside of this state covering only subjects of
   2-43  insurance not resident, located or expressly to be performed in
   2-44  this state at the time of issuance, and which transactions are
   2-45  subsequent to the issuance of such policy or surplus lines
   2-46  insurance procured through eligible surplus lines carriers as
   2-47  defined in Article 1.14-2.
   2-48        SECTION 5.  Section 10, Article 1.14-1, Insurance Code, is
   2-49  amended to read as follows:
   2-50        Sec. 10.  Reporting of Unauthorized Insurance.  (a)  Every
   2-51  person investigating or adjusting any loss or claim on a subject of
   2-52  insurance in this state shall immediately report to the State Board
   2-53  of Insurance every insurance policy or contract which has been
   2-54  entered into by any insurer unauthorized <not authorized> to
   2-55  transact such insurance in this state.
   2-56        (b)  This section does not apply to transactions in this
   2-57  state involving contracts of insurance independently procured, as
   2-58  defined in Section 2(b)4 of this Article or surplus lines insurance
   2-59  procured by a licensed surplus lines agent from an eligible surplus
   2-60  lines carrier as defined in Article 1.14-2  <a policy lawfully
   2-61  solicited, written, and delivered outside of this state covering
   2-62  only subjects of insurance not resident, located or expressly to be
   2-63  performed in this state at the time of issuance, and which
   2-64  transactions are subsequent to the issuance of such policy>.
   2-65        SECTION 6.  Section 11, Article 1.14-1, Insurance Code, is
   2-66  amended to read as follows:
   2-67        Sec. 11.  Unauthorized insurance premium tax.  (a)  Except as
   2-68  to premiums on <lawfully procured surplus lines> insurance procured
   2-69  by a licensed surplus lines agent from an eligible surplus lines
   2-70  insurer as defined in Article 1.14-2 and premiums on independently
    3-1  procured insurance on which a tax has been paid pursuant to this
    3-2  Article or Article 1.14-2, every unauthorized insurer shall pay to
    3-3  the State Board of Insurance before March 1 next succeeding the
    3-4  calendar year in which the insurance was so effectuated, continued
    3-5  or renewed a premium receipts tax of 4.85 percent of gross premiums
    3-6  charged for such insurance on subjects resident, located or to be
    3-7  performed in this state.  Such insurance on subjects resident,
    3-8  located or to be performed in this state procured through
    3-9  negotiations or an application, in whole or in part occurring or
   3-10  made within or from within or outside of this state, or for which
   3-11  premiums in whole or in part are remitted directly or indirectly
   3-12  from within or outside of this state, shall be deemed to be
   3-13  insurance procured, or continued or renewed in this state.  The
   3-14  term "premium" includes all premiums, membership fees, assessments,
   3-15  dues and any other consideration for insurance.  Such tax shall be
   3-16  in lieu of all other insurance taxes.  On default of any such
   3-17  unauthorized insurer in the payment of such tax the insured shall
   3-18  pay the tax.  If the tax prescribed by this subsection is not paid
   3-19  within the time stated, the tax shall be increased by a penalty of
   3-20  25 percent and by the amount of an additional penalty computed at
   3-21  the rate of one percent per month or any part thereof from the date
   3-22  such payment was due to the date paid.
   3-23        (b)  If a policy covers risks or exposures only partially in
   3-24  this state, the tax payable shall be computed on the portions of
   3-25  the premiums which are properly allocable to the risks or exposures
   3-26  located in this state.  In determining the amount of premiums
   3-27  taxable in this state, all premiums written, procured, or received
   3-28  in this state and all premiums on policies negotiated in this state
   3-29  shall be deemed written on property or risks located or resident in
   3-30  this state, except such premiums as are properly allocated or
   3-31  apportioned and reported as taxable premiums of any other state or
   3-32  states.  Premiums on risks or exposures which are properly
   3-33  allocated to federal waters, international waters or under the
   3-34  jurisdiction of a foreign government shall not be considered
   3-35  taxable by this state.
   3-36        SECTION 7.  Section 12, Article 1.14-1, Insurance Code, is
   3-37  amended to read as follows:
   3-38        Sec. 12.  Independently procured insurance Tax.  (a)  Every
   3-39  insured who procures insurance in accordance with Section 2(b)4 of
   3-40  this Article must file a report with the State Board of Insurance
   3-41  and pay an independently procured insurance tax of 4.85 percent.
   3-42        (b)  A report must be filed with the State Board of Insurance
   3-43  within 60 days after the date the insurance was independently
   3-44  procured.  The report must be made in writing on forms provided by
   3-45  the State Board of Insurance.  The report must contain the name and
   3-46  address of the insured or insureds, the name and address of the
   3-47  insurer, the subject of the insurance, a general description of the
   3-48  coverage, the amount of premium charged, and any additional
   3-49  information which the State Board of Insurance requests.
   3-50        (c)  The report shall be filed and any tax due shall be paid
   3-51  by the insured or by any other person designated by the insured.
   3-52  <Every insured who procures or causes to be procured or continues
   3-53  or renews insurance with any unauthorized insurer, or any insured
   3-54  or self-insurer who so procures or continues excess loss,
   3-55  catastrophe or other insurance, upon a subject of insurance
   3-56  resident, located or to be performed within this state, other than
   3-57  insurance procured through a surplus lines agent pursuant to the
   3-58  surplus lines law of this state shall within 60 days after the date
   3-59  such insurance was so procured, continued or renewed, file a report
   3-60  of the same with the State Board of Insurance in writing and upon
   3-61  forms designated by the State Board of Insurance and furnished to
   3-62  such an insured upon request.  The report shall show the name and
   3-63  address of the insured or insureds, name and address of the
   3-64  insurer, the subject of the insurance, a general description of the
   3-65  coverage, the amount of premium currently charged therefor, and
   3-66  such additional pertinent information as is reasonably requested by
   3-67  the State Board of Insurance.>
   3-68        <(b)  Any insurance in an unauthorized insurer of a subject
   3-69  of insurance resident, located or to be performed within this state
   3-70  procured through negotiations or an application, in whole or in
    4-1  part occurring or made within or from within or outside of this
    4-2  state, or for which premiums in whole or in part are remitted
    4-3  directly or indirectly from within or outside of this state, shall
    4-4  be deemed to be insurance procured, or continued or renewed in this
    4-5  state within the intent of Paragraph (a).>
    4-6        <(c)  There is hereby levied upon the obligation, chose in
    4-7  action, or right represented by the premium charged for such
    4-8  insurance, a premium receipts tax of 3.85 percent of gross premiums
    4-9  charged for such insurance.  The term "premium" shall include all
   4-10  premiums, membership fees, assessments, dues and any other
   4-11  consideration for insurance.  Such tax shall be in lieu of all
   4-12  other insurance taxes.  The insured shall, before March 1 next
   4-13  succeeding the calendar year in which the insurance was so
   4-14  procured, continued or renewed, pay the amount of the tax to the
   4-15  State Board of Insurance.  In event of cancellation and rewriting
   4-16  of any such insurance contract the additional premium for premium
   4-17  receipts tax purposes shall be the premium in excess of the
   4-18  unearned premium of the canceled insurance contract.>
   4-19        (d)  If a policy covers risks or exposures only partially in
   4-20  this state, the tax payable shall be computed on the portions of
   4-21  the premium which are properly allocable to the risks or exposures
   4-22  located in this state.  In determining the amount of premiums
   4-23  taxable in this state, all premiums written, procured or received
   4-24  in this state and all premiums on policies negotiated in this state
   4-25  shall be deemed written on property or risks located or resident in
   4-26  this state, except such premiums as are properly allocated or
   4-27  apportioned and reported as taxable premiums of any other state or
   4-28  states.  Premiums on risks or exposures which are properly
   4-29  allocated to federal waters, international waters or under the
   4-30  jurisdiction of a foreign government shall not be taxable.
   4-31        (e)  If the insured fails to withhold from the premium the
   4-32  amount of tax herein levied, the insured shall be liable for the
   4-33  amount thereof and shall pay the same to the State Board of
   4-34  Insurance within the time stated in Paragraph (c).  If the tax
   4-35  prescribed by this subsection is not paid within the time stated in
   4-36  Paragraph (c), the tax shall be increased by a penalty of 25
   4-37  percent and by the amount of an additional penalty computed at the
   4-38  rate of one percent per month or any part thereof from the date
   4-39  such payment was due to the date paid.
   4-40        (f)  The Attorney General, upon request of the State Board of
   4-41  Insurance, shall proceed in the courts of this or any other state
   4-42  or in any federal court or agency to recover such tax not paid
   4-43  within the time prescribed in this section.
   4-44        (g)  This section shall not be construed or deemed to
   4-45  abrogate or modify any provision of this Article.  This section
   4-46  does not apply as to individual life or individual disability
   4-47  insurance.
   4-48        SECTION 8.  Section 1, Article 1.14-2, Insurance Code, is
   4-49  amended to read as follows:
   4-50        Sec. 1.  Purpose.  Insurance transactions which are entered
   4-51  into by citizens of this state with eligible surplus lines
   4-52  <unauthorized> insurers through a surplus lines agent as a result
   4-53  of difficulty in obtaining coverage from licensed insurers are a
   4-54  matter of public interest.  The Legislature declares that such
   4-55  transaction of surplus lines insurance is a subject of concern and
   4-56  that it is necessary to provide for the regulation, taxation,
   4-57  supervision and control of such transactions and the practices and
   4-58  matters related thereto by requiring appropriate standards and
   4-59  reports concerning the placement of such insurance; by imposing
   4-60  requirements necessary to make such regulation and control
   4-61  reasonably complete and effective; by providing orderly access to
   4-62  eligible surplus lines insurers <that are not authorized to
   4-63  transact the business of insurance in this state>; by insuring the
   4-64  maintenance of fair and honest markets; by protecting the revenues
   4-65  of this state; and by protecting licensed <authorized> insurers,
   4-66  which under the laws of this state must meet strict standards as to
   4-67  the regulation of the business of insurance and the taxation
   4-68  thereof, from unfair competition by unauthorized insurers.  In
   4-69  order to properly regulate and tax such <unauthorized> insurance
   4-70  placed in accordance with this Article within the meaning and
    5-1  intent of P.L. 79-15 (1945), (Chap. 20, 1st Sess., S. 340), 59
    5-2  Stat. 33, the Legislature herein provides an orderly method for the
    5-3  <insuring> public of this state to effect insurance with eligible
    5-4  surplus lines <unauthorized> insurers through qualified, licensed
    5-5  and supervised surplus line agents in this state if coverage is not
    5-6  available from duly licensed, regulated insurers conducting
    5-7  business in this state and under reasonable and practical
    5-8  safeguards so that such insurance coverage may be obtained by
    5-9  residents of this state <to the extent that the coverage is not
   5-10  procurable from duly licensed, regulated insurers conducting
   5-11  business in this state>.
   5-12        SECTION 9.  Section 2(b), Article 1.14-2, Insurance Code, is
   5-13  amended to read as follows:
   5-14        (b)  "Surplus lines insurer" means an unlicensed
   5-15  <unauthorized> insurer deemed eligible pursuant to Section 8 of
   5-16  this Article in which an insurance coverage is placed or may be
   5-17  placed under this Article.
   5-18        SECTION 10.  Section 3(a), Article 1.14-2, Insurance Code, is
   5-19  amended to read as follows:
   5-20        (a)  If insurance coverages of subjects resident, located or
   5-21  to be performed in this state cannot be procured from licensed
   5-22  insurers after diligent effort, such coverages, hereinafter
   5-23  designated as surplus line insurance, may be procured from eligible
   5-24  surplus lines <unauthorized> insurers subject to the following
   5-25  conditions:
   5-26              1.  The insurance must be eligible for surplus lines
   5-27  under Section 5.
   5-28              2.  The insurer must be an eligible surplus lines
   5-29  insurer under Section 8.
   5-30              3.  The insurance must be placed through a licensed
   5-31  Texas surplus lines agent resident in this state.
   5-32              4.  The other applicable provisions of this section
   5-33  must be complied with.
   5-34        SECTION 11.  Section 4(a), Article 1.14-2, Insurance Code, is
   5-35  amended to read as follows:
   5-36        (a)  An agent licensed by the state may not issue or cause to
   5-37  be issued an insurance contract with an eligible surplus lines
   5-38  <unauthorized> insurer, unless the agent possesses a current
   5-39  surplus lines license issued by the State Board of Insurance.
   5-40        SECTION 12.  Sections 6(c) and (d), Article 1.14-2, Insurance
   5-41  Code, are amended to read as follows:
   5-42        (c)  Within 60 days after the effective date or issue date,
   5-43  whichever is later, <effectuation> of any new or renewal surplus
   5-44  lines insurance contract, the surplus lines agent shall file with
   5-45  the Surplus Lines Stamping Office of Texas evidence that a diligent
   5-46  effort as defined in Section 5 of this Article has been performed
   5-47  and a true and correct <State Board of Insurance an exact> copy of
   5-48  the contract <policy> issued.  If a contract <policy> has not been
   5-49  issued, the surplus lines agent shall so file a true and correct
   5-50  <an exact> copy of his certificate, cover note or other
   5-51  confirmation of insurance as delivered to the insured.  The surplus
   5-52  lines agent shall likewise promptly file with the Surplus Lines
   5-53  Stamping Office of Texas a true and correct <State Board of
   5-54  Insurance an exact> copy of any substitute certificate, cover note
   5-55  or other confirmation of insurance, and of every endorsement of an
   5-56  original policy, certificate, cover note or other confirmation of
   5-57  insurance, delivered to an insured, together with such surplus
   5-58  lines agent's memorandum informing the Surplus Lines Stamping
   5-59  Office of Texas <State Board of Insurance> as to the substance of
   5-60  any change represented by such substitute certificate, cover note
   5-61  or other confirmation, or of any such endorsement, as compared with
   5-62  the coverage as originally placed or issued.  Except, however, as
   5-63  respects this Subsection (c), equivalent information may be filed
   5-64  as required by the Board.
   5-65        (d)  No surplus lines agent shall deliver any such document,
   5-66  or purport to insure or represent that insurance will be or has
   5-67  been granted by any eligible surplus lines <unauthorized> insurer
   5-68  unless he has prior written authority from the insurer for the
   5-69  insurance, or has received information from the insurer in the
   5-70  regular course of business that such insurance has been granted, or
    6-1  an insurance policy providing the insurance actually has been
    6-2  issued by the insurer and delivered to the insured.
    6-3        SECTION 13.  Sections 6A(a) and (c), Article 1.14-2,
    6-4  Insurance Code, are amended to read as follows:
    6-5        (a)  There is hereby created a nonprofit association to be
    6-6  known as the Surplus Lines Stamping Office of Texas.  All surplus
    6-7  lines agents shall as a condition of their holding a license as a
    6-8  surplus lines agent in this state report to and file with the
    6-9  stamping office a copy of each surplus lines insurance contract as
   6-10  provided in the plan of operation adopted under Subsection (d) of
   6-11  this section.  The board may accept such filing in lieu of the
   6-12  filings required under Subsection (b) <Subsections (a) and (c)> of
   6-13  Section 6 of this article.
   6-14        (c)  The stamping office shall function through a board of
   6-15  directors appointed by the State Board of Insurance.  The board of
   6-16  directors of the stamping office shall consist of 9 members, who
   6-17  serve terms as established in the plan of operation.  Four of the
   6-18  members of the board of directors must represent the general public
   6-19  and shall have a minimum of three years of experience in the
   6-20  purchase of commercial insurance.  A public representative may not
   6-21  be:
   6-22              (1)  an officer, director, or employee of an insurance
   6-23  company, insurance agency, agent, broker, solicitor, adjuster, or
   6-24  any other business entity regulated by the State Board of
   6-25  Insurance;
   6-26              (2)  a person required to register with the secretary
   6-27  of state under Chapter 305, Government Code; or
   6-28              (3)  related to a person described by Subdivision (1)
   6-29  or (2) of this subsection within the second degree of affinity or
   6-30  consanguinity.
   6-31        SECTION 14.  Section 7, Article 1.14-2, Insurance Code, is
   6-32  amended to read as follows:
   6-33        Sec. 7.  Requirements for surplus lines contracts.
   6-34  (a)  Every new or renewal insurance contract, certificate, cover
   6-35  note or other confirmation of insurance procured and delivered as a
   6-36  surplus line coverage pursuant to this Article shall bear the name
   6-37  and address of the insurance agent who procured it and shall have
   6-38  stamped or affixed upon it in 11-point type the following:  "This
   6-39  insurance contract is with an insurer not licensed to transact
   6-40  insurance in this state and is issued and delivered as a surplus
   6-41  line coverage pursuant to the Texas insurance statutes.  The State
   6-42  Board of Insurance does not audit the finances or review the
   6-43  solvency of the surplus lines insurer providing this coverage, and
   6-44  this insurer is not a member of the property and casualty insurance
   6-45  guaranty association created under Article 21.28-C, Insurance Code.
   6-46  Article 1.14-2, Insurance Code, requires payment of ______ (insert
   6-47  appropriate tax rate) percent tax on gross premium."
   6-48        (b)  Such document shall show the description and location of
   6-49  the subject of the insurance, coverage, conditions and term of the
   6-50  insurance, the premium and rate charged and premium taxes to be
   6-51  collected from the insured, and the name and address of the insured
   6-52  and insurer.  If the direct risk is assumed by more than one
   6-53  insurer, the document shall state the name and address and
   6-54  proportion of the entire direct risk assumed by each insurer.
   6-55        (c)  The insurer must be an eligible surplus lines insurer as
   6-56  of the inception date and annual anniversary date of every
   6-57  insurance contract, cover note, or other confirmation of insurance.
   6-58        (d)  An extension of a contract beyond its original
   6-59  expiration date shall be subject to Section 7(a) and Section 8 of
   6-60  this Article.
   6-61        SECTION 15.  Section 8, Article 1.14-2, Insurance Code, is
   6-62  amended to read as follows:
   6-63        Sec. 8.  Eligibility of surplus lines insurers.  (a)  A
   6-64  surplus lines agent shall not knowingly place surplus lines
   6-65  insurance with financially unsound insurers.  The surplus lines
   6-66  agent shall make a reasonable effort to ascertain the financial
   6-67  condition of the eligible surplus lines <unauthorized> insurer
   6-68  before placing insurance therewith.
   6-69        (b)  No surplus lines agent shall place any coverage with an
   6-70  <unauthorized> insurer unless the insurer has met the eligibility
    7-1  requirements of this section and the stamping office provides
    7-2  evidence that the insurer has met the requirements to the State
    7-3  Board of Insurance.  An <unauthorized> insurer shall not be an
    7-4  eligible surplus lines insurer unless the insurer has a minimum
    7-5  capital and surplus that are not less than the following amounts
    7-6  for the following dates:
    7-7              (1)  $4.5 million capital and surplus as of December
    7-8  31, 1991; or
    7-9              (2)  $6 million capital and surplus as of December 31,
   7-10  1992.
   7-11        (c)  An <unauthorized> insurer may be exempt from the minimum
   7-12  capital and surplus requirements provided by Subsection (b) of this
   7-13  section if the Commissioner of Insurance finds, after public
   7-14  hearing, that the exemption is warranted based on factors such as
   7-15  quality of management, capital and surplus of any parent company,
   7-16  company underwriting profit and investment income trends,
   7-17  reinsurance contracts, company record and reputation within the
   7-18  industry, and other information the commissioner requires to make a
   7-19  determination.
   7-20        (d)  In addition to meeting the minimum capital and surplus
   7-21  requirements provided by this section, an alien insurer must
   7-22  provide evidence that it maintains in the United States an
   7-23  irrevocable trust fund in a Federal Reserve System member bank in
   7-24  an amount not less than $1.5 million for the protection of all its
   7-25  policyholders in the United States and that the trust fund consists
   7-26  of cash, securities, letters of credit, or investments of
   7-27  substantially the same character and quality as those that are
   7-28  eligible investments for the capital and statutory reserves of
   7-29  authorized insurers licensed to write like kinds and classes of
   7-30  insurance in this state.
   7-31        (e)  Instead of the minimum capital and surplus requirements
   7-32  provided by this section, an unincorporated group of alien
   7-33  individual insurers may maintain a trust fund in an amount not less
   7-34  than $50 million as security to the full amount of the trust fund
   7-35  for all policyholders and creditors in the United States of each
   7-36  member of the group.  Except as specifically otherwise provided by
   7-37  this subsection, the trust fund must comply with the terms and
   7-38  conditions provided by Subsection (d) of this section for the trust
   7-39  fund required by that subsection.
   7-40        (f)  Every insurer<, as defined by Article 1.14-1,> proposing
   7-41  to transact surplus lines insurance within this state shall hold a
   7-42  current license or authority from its domiciliary state or country
   7-43  to conduct the business of insurance.  The license or authority
   7-44  from the domiciliary state or country must be for the kind or class
   7-45  of insurance to be written in this state as surplus lines
   7-46  insurance, and satisfactory evidence that the insurer holds the
   7-47  required license or authorization must be provided to the
   7-48  Commissioner of Insurance.
   7-49        (g)  The <unauthorized> insurer must be of good repute and
   7-50  provide reasonably prompt service to its policyholders in the
   7-51  payment of just losses and claims.
   7-52        (h)  No <unauthorized> insurer shall be eligible if the
   7-53  management is incompetent or untrustworthy, or so lacking in
   7-54  insurance company managerial experience as to make its proposed
   7-55  operation hazardous to the insurance-buying public; or if the State
   7-56  Board of Insurance has good reason to believe that it is affiliated
   7-57  directly or indirectly through ownership, control, reinsurance
   7-58  transactions or other insurance or business relations, with any
   7-59  person whose business operations are or have been detrimental to
   7-60  policyholders, stockholders, investors, creditors or to the public.
   7-61        (i)  No <unauthorized> insurer shall be eligible if the
   7-62  insurer or its agents have failed to submit to any fine or penalty
   7-63  levied pursuant to statute.   No <unauthorized> insurer shall be
   7-64  eligible if the insurer is obligated to pay and has failed to pay
   7-65  premium taxes in the state <required under Section 11 of Article
   7-66  1.14-1>.  The State Board of Insurance may order revocation of
   7-67  insurance contracts issued by insurers that do not conform with the
   7-68  eligibility requirements of this section.
   7-69        (j)  No new or renewal surplus lines insurance shall be
   7-70  placed with any eligible surplus lines insurer which requires as a
    8-1  condition precedent to writing such new or renewal insurance that
    8-2  the prospective insured or the insured place other insurance not
    8-3  procurable <eligible> as surplus lines insurance with such eligible
    8-4  surplus lines insurer.
    8-5        (k)  This section shall not be deemed to cast upon the State
    8-6  Board of Insurance any duty or responsibility to determine the
    8-7  actual financial condition or claims practice of any unlicensed
    8-8  insurer or any unauthorized insurer as defined in Article 1.14-1 of
    8-9  this code.
   8-10        (l)  An <unauthorized> insurer is not an eligible surplus
   8-11  lines insurer unless it is authorized to write the same coverage in
   8-12  the jurisdiction in which the <unauthorized> insurer is licensed or
   8-13  certificated to do business.
   8-14        SECTION 16.  Section 9, Article 1.14-2, Insurance Code, is
   8-15  amended to read as follows:
   8-16        Sec. 9.  Validity of Contracts.  (a)  Insurance contracts
   8-17  procured from an eligible surplus lines insurer <as surplus line
   8-18  coverage from unauthorized insurers in accordance with this
   8-19  Article> shall be fully valid and enforceable as to all parties,
   8-20  and shall be given recognition in all matters and respects to the
   8-21  same effect and extent as like contracts issued by licensed
   8-22  <authorized> insurers unless there was a material and intentional
   8-23  violation of this Article.
   8-24        (b)  In the event of a material and intentional violation of
   8-25  this Article, the <A contract of insurance placed in effect by an
   8-26  unauthorized insurer in violation of this Article is unenforceable
   8-27  by the insurer.  The> insured shall not be precluded from enforcing
   8-28  his rights in accordance with the terms and provisions of such
   8-29  contract.
   8-30        SECTION 17.  Section 12(a), Article 1.14-2, Insurance Code,
   8-31  is amended to read as follows:
   8-32        (a)  The premiums charged for surplus lines insurance are
   8-33  subject to a premium receipts tax of 4.85 percent of gross premiums
   8-34  charged for such insurance.  The term premium includes all
   8-35  premiums, membership fees, assessments, dues or any other
   8-36  consideration for insurance.  Such tax shall be in lieu of all
   8-37  other insurance taxes.  The surplus lines agent shall collect from
   8-38  the insured the amount of the tax at the time of delivery of the
   8-39  cover note, certificate of insurance, policy or other initial
   8-40  confirmation of insurance, in addition to the full amount of the
   8-41  gross premium charged by the insurer for the insurance.  No agent
   8-42  shall absorb such tax nor shall any agent, as an inducement for
   8-43  insurance or for any other reason, rebate all or any part of such
   8-44  tax or his commission.  The surplus lines agent shall report, under
   8-45  oath, to the State Board of Insurance within 30 days from the 1st
   8-46  day of January and July of each year the amount of gross premiums
   8-47  paid for such insurance placed through him in nonlicensed insurers,
   8-48  and shall pay to the Board the tax provided for by this Article.
   8-49  If a surplus lines policy covers risks or exposures only partially
   8-50  in this state, the tax payable shall be computed on the portions of
   8-51  the premium which are properly allocable to the risks or exposures
   8-52  located in this state.  In determining the amount of premiums
   8-53  taxable in this state, all premiums written, procured, or received
   8-54  in this state and all premiums on policies negotiated in this state
   8-55  shall be deemed written on property or risks located or resident in
   8-56  this state, except such premiums as are properly allocated or
   8-57  apportioned and reported as <taxable> premiums which may be subject
   8-58  to taxation by <of> any other state or states or by a foreign
   8-59  jurisdiction.  Premiums on risks or exposures which are properly
   8-60  allocated to federal waters, international waters or under the
   8-61  jurisdiction of a foreign government shall not be taxable by this
   8-62  state.  In event of cancellation and rewriting of any surplus lines
   8-63  insurance contract the additional premium for premium receipts tax
   8-64  purposes shall be the premium in excess of the unearned premium of
   8-65  the canceled insurance contract.
   8-66        SECTION 18.  Section 16, Article 1.14-2, Insurance Code, is
   8-67  amended to read as follows:
   8-68        Sec. 16.  Annual Report of Surplus Lines Agent.  Each surplus
   8-69  lines agent shall, before March 1 in each year, make a report to
   8-70  the Texas Department <State Board> of Insurance for the preceding
    9-1  calendar year, on the form prescribed by it, of such facts as it
    9-2  requires and including a showing that the amount of insurance
    9-3  procured from such eligible surplus lines <unauthorized> insurer or
    9-4  insurers is only the amount in excess of the amount procurable from
    9-5  licensed insurers.
    9-6        SECTION 19.  Section 17, Article 1.14-2, Insurance Code, is
    9-7  amended to read as follows:
    9-8        Sec. 17.  Penalty.  Any violation of this Article shall
    9-9  subject the surplus lines agent or eligible surplus lines insurer
   9-10  to all of the provisions and sanctions contained in Section 7,
   9-11  Article 1.10, of this Code.
   9-12        SECTION 20.  Section 17A(a), Article 1.14-2, Insurance Code,
   9-13  is amended to read as follows:
   9-14        (a)  If a surplus lines agent or eligible surplus lines
   9-15  insurer violates Section 8 or 9 of this article or a rule,
   9-16  regulation, or order adopted under that provision, the State Board
   9-17  of Insurance may assess a penalty against that agent or insurer as
   9-18  provided by Section 7, Article 1.10, of this code.
   9-19        SECTION 21.  Section 7(c), Article 1.36, Insurance Code, is
   9-20  amended to read as follows:
   9-21        (c)  In addition to service under Section 3 of this article
   9-22  and Subsection (a) of this section, service of process, notice, or
   9-23  demand on an unauthorized person or insurer is valid if served on
   9-24  any person in this state who on behalf of that unauthorized person
   9-25  or insurer is doing any act of an insurance business as provided by
   9-26  Section 2 of Article 1.14-1 of this code.  This section does not
   9-27  apply to surplus lines insurers which were deemed eligible surplus
   9-28  lines insurers pursuant to Article 1.14-2 of this code at the date
   9-29  the applicable coverage was issued.
   9-30        SECTION 22.  Section 8(b), Article 1.36, Insurance Code, is
   9-31  amended to read as follows:
   9-32        (b)  Any act of doing an insurance business as provided by
   9-33  Section 2 of Article 1.14-1 of this code by any unauthorized person
   9-34  or insurer is equivalent to and constitutes an irrevocable
   9-35  appointment of the secretary of state by that person or insurer,
   9-36  binding on him, his executor, administrator, or personal
   9-37  representative or, if a corporation, successor in interest to be
   9-38  the lawful attorney for service of that person or insurer.  The
   9-39  secretary of state may be served legal notice, order, pleading, or
   9-40  other process in any proceeding described by Subsection (a) of this
   9-41  section that arises out of doing an insurance business in this
   9-42  state by that person or insurer.  This section does not apply to
   9-43  surplus lines insurers which were deemed eligible surplus lines
   9-44  insurers pursuant to Article 1.14-2 of this code at the date
   9-45  applicable coverage was issued.
   9-46        SECTION 23.  Section 11, Article 1.36, Insurance Code, is
   9-47  amended by adding Subsection (d) to read as follows:
   9-48        (d)  This section does not apply to surplus lines insurers
   9-49  which were deemed eligible surplus lines insurers pursuant to
   9-50  Article 1.14-2 of this code at the date applicable coverage was
   9-51  issued.
   9-52        SECTION 24.  Section 12, Article 1.36, Insurance Code, is
   9-53  amended to read as follows:
   9-54        Sec. 12.  SERVICE OF PROCESS ON ELIGIBLE SURPLUS LINES
   9-55  INSURERS.  (a)  <A surplus lines insurer may be sued on any cause
   9-56  of action arising in this state under any surplus lines insurance
   9-57  contract issued by it or under any certificate, cover note, or
   9-58  other confirmation of that insurance issued by the surplus lines
   9-59  agent, under the same procedure provided for unauthorized insurers
   9-60  in Sections 3, 7, and 8 of this article.>  Any act of doing an
   9-61  insurance business by an eligible surplus lines insurance company
   9-62  constitutes an irrevocable appointment of the Secretary of State by
   9-63  that insurer binding on it and its successors in interest to be the
   9-64  lawful attorney for service of that insurer.  The Secretary of
   9-65  State may be served with any process, notice, or demand arising out
   9-66  of doing an insurance business in this state by that insurer,
   9-67  except in an action, suit, or proceeding by the State Board of
   9-68  Insurance or by the state.
   9-69        (b)  Any act of doing an insurance business by an eligible
   9-70  surplus lines insurance company signifies the insurer's agreement
   10-1  that legal process served under this section has the same legal
   10-2  force and validity as personal service of process in this state on
   10-3  that insurer or its successor in interest.
   10-4        (c) <(b)>  Any policy issued by the surplus lines insurer or
   10-5  any certificate of insurance issued by the surplus lines agent must
   10-6  contain a provision stating the substance of this section and
   10-7  designating the Person to whom the commissioner is to mail process.
   10-8  This address must be supplied by the plaintiff in the citation that
   10-9  is served.
  10-10        (d) <(c)>  Each surplus lines insurer assuming a surplus
  10-11  lines risk under this article is considered to have made itself
  10-12  subject to the terms of this section.
  10-13        (e) <(d)>  This section is cumulative of any other methods
  10-14  that may be provided by law for service of process on a surplus
  10-15  lines insurer, including Section 3 of this article.
  10-16        SECTION 25.  This Act takes effect on September 1, 1993.
  10-17        SECTION 26.  The importance of this legislation and the
  10-18  crowded condition of the calendars in both houses create an
  10-19  emergency and an imperative public necessity that the
  10-20  constitutional rule requiring bills to be read on three several
  10-21  days in each house be suspended, and this rule is hereby suspended.
  10-22                               * * * * *
  10-23                                                         Austin,
  10-24  Texas
  10-25                                                         May 22, 1993
  10-26  Hon. Bob Bullock
  10-27  President of the Senate
  10-28  Sir:
  10-29  We, your Committee on Economic Development to which was referred
  10-30  H.B. No. 958, have had the same under consideration, and I am
  10-31  instructed to report it back to the Senate with the recommendation
  10-32  that it do not pass, but that the Committee Substitute adopted in
  10-33  lieu thereof do pass and be printed.
  10-34                                                         Parker,
  10-35  Chairman
  10-36                               * * * * *
  10-37                               WITNESSES
  10-38                                                  FOR   AGAINST  ON
  10-39  ___________________________________________________________________
  10-40  Name:  Ted Hosterman                             x
  10-41  Representing:  Texas Surplus Lines Assn
  10-42  City:  Austin
  10-43  -------------------------------------------------------------------
  10-44  Name:  Burnie Burner                             x
  10-45  Representing:
  10-46  City:  Austin
  10-47  -------------------------------------------------------------------
  10-48  Name:  Bob Huxel                                 x
  10-49  Representing:  Ind. Insurance Agents of TX
  10-50  City:  Austin
  10-51  -------------------------------------------------------------------
  10-52  Name:  William C. Marcoux                        x
  10-53  Representing:  Lloyds of London
  10-54  City:  Washington, D.C.
  10-55  -------------------------------------------------------------------