By:  Brimer                                           H.B. No. 1954
       73R2082 PB-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the deregulation of certain lines of insurance.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 5, Insurance Code, is amended by adding
    1-5  Subchapter O to read as follows:
    1-6       SUBCHAPTER O.  DEREGULATION OF CERTAIN LINES OF INSURANCE
    1-7        Art. 5.151.  JOINT UNDERWRITING AND AGREEMENTS; ADVISORY
    1-8  ORGANIZATIONS
    1-9        Sec. 1.  DEFINITIONS.  In this article:
   1-10              (1)  "Advisory organization" means an entity with two
   1-11  or more member insurers that, as its primary function:
   1-12                    (A)  engages in an activity described in this
   1-13  article on behalf of its members and subscribers; and
   1-14                    (B)  furnishes to its members, to its
   1-15  subscribers, or to others information that the organization
   1-16  compiles and prepares.
   1-17              (2)  "Joint underwriting" means joint risk-sharing by
   1-18  two or more insurers operating through an association, syndicate,
   1-19  or other pooling agreement.
   1-20              (3)  "Member" means an insurer that participates in or
   1-21  is entitled to participate in the management of an advisory
   1-22  organization.
   1-23              (4)  "Statistical information" means information taken
   1-24  from the records of an individual insurer concerning the past
    2-1  experience of that insurer.
    2-2              (5)  "Subscriber" means an insurer furnished with
    2-3  services provided by an advisory organization of which it is not a
    2-4  member.
    2-5        Sec. 2.  SCOPE OF ARTICLE.  This article applies to all lines
    2-6  of property and casualty insurance covered by Subchapters A through
    2-7  L of this chapter, except:
    2-8              (1)  ocean marine insurance;
    2-9              (2)  inland marine insurance;
   2-10              (3)  fidelity, surety, and guaranty bond insurance;
   2-11              (4)  errors and omissions insurance;
   2-12              (5)  directors' and officers' liability insurance;
   2-13              (6)  general liability insurance;
   2-14              (7)  commercial property insurance;
   2-15              (8)  workers' compensation insurance;
   2-16              (9)  professional liability insurance for physicians
   2-17  and health care providers as defined in Article 5.15-1 of this
   2-18  code; and
   2-19              (10)  attorney's professional liability insurance.
   2-20        Sec. 3.  PROHIBITED ACTIVITIES.  (a)  An insurer or advisory
   2-21  organization may not attempt to monopolize, or combine or conspire
   2-22  with any other person to monopolize, the business of insurance.
   2-23        (b)  An insurer may not agree with another insurer or with an
   2-24  advisory organization to use any rate, rating plan, rating
   2-25  schedule, rating rule, policy or bond form, rate classification,
   2-26  rate territory, underwriting rule, survey, inspection, or similar
   2-27  material.  The fact that two or more insurers, whether or not
    3-1  members or subscribers of an advisory organization, use, either
    3-2  consistently or intermittently, the same rates, rating plans,
    3-3  rating schedules, rating rules, policy or bond forms, rate
    3-4  classifications, rate territories, underwriting rules, surveys,
    3-5  inspections, or similar materials is not sufficient in itself to
    3-6  support a finding that an agreement in violation of this subsection
    3-7  exists, and may be used only for the purpose of supplementing or
    3-8  explaining direct evidence of the existence of such an agreement.
    3-9        (c)  An insurer or advisory organization may not enter into
   3-10  an agreement with another insurer or other person that:
   3-11              (1)  has the purpose or effect of restraining trade
   3-12  unreasonably; or
   3-13              (2)  may lessen competition substantially.
   3-14        Sec. 4.  PERMITTED ACTIVITIES.  (a)  An insurer may engage in
   3-15  the following activities in cooperation with one or more additional
   3-16  insurers or other persons:
   3-17              (1)  conduct research and collect statistical
   3-18  information to discover, identify, and classify information
   3-19  relating to the causes or prevention of losses;
   3-20              (2)  participate in joint underwriting under Section 7
   3-21  of this article;
   3-22              (3)  participate in joint underwriting agreements
   3-23  established on an ad hoc basis in order to provide coverage for
   3-24  individual risks; and
   3-25              (4)  exchange information that is filed with the
   3-26  commissioner and open to public inspection.
   3-27        (b)  Notwithstanding any provision of this article, two or
    4-1  more insurers having a common ownership or operating in this state
    4-2  under common management or control may act in concert between or
    4-3  among themselves as if they constituted a single insurer.  Two or
    4-4  more insurers executing co-surety bonds may act in concert between
    4-5  or among themselves as if they constituted a single insurer.
    4-6        (c)  An ad hoc agreement under Subsection (a) of this section
    4-7  is not subject to Section 14 or 15 of this article.
    4-8        Sec. 5.  BOARD AUTHORITY.  (a)  The board shall adopt rules
    4-9  as necessary to implement this article.
   4-10        (b)  The board, through the attorney general, may maintain an
   4-11  action to enjoin a violation of this article or to enforce
   4-12  compliance with a final order issued under Section 13 of this
   4-13  article.
   4-14        (c)  The board may notify the attorney general of any act or
   4-15  activity of any person, insurer, or advisory organization that
   4-16  constitutes a violation of Chapter 15, Business & Commerce Code,
   4-17  and shall cooperate with the attorney general in any investigation
   4-18  or further action the attorney general recommends.
   4-19        Sec. 6.  COMPETITIVE MARKET CONTROLLING.  (a)  Each rate,
   4-20  rating plan, rating schedule, rating rule, rate classification, and
   4-21  rate territory of an individual insurer for or relating to
   4-22  insurance within the scope of this article shall be subject
   4-23  exclusively to the forces of the competitive market and may not be
   4-24  fixed, established, approved, disapproved, or directly regulated by
   4-25  the board.
   4-26        (b)  This section controls in the event of a conflict with
   4-27  any other state law unless specifically preempted.
    5-1        Sec. 7.  JOINT UNDERWRITING.  (a)  Each group, association,
    5-2  or other organization of insurers that engages in joint
    5-3  underwriting through the group, association, or organization or by
    5-4  standing agreement among its members shall file with the board:
    5-5              (1)  a copy of its constitution, articles of
    5-6  incorporation, or agreement of association;
    5-7              (2)  a copy of its bylaws, rules, or regulations
    5-8  governing its activities;
    5-9              (3)  a list of its members; and
   5-10              (4)  the name and address of a resident of this state
   5-11  on whom notices or orders of the commissioner or process may be
   5-12  served.
   5-13        (b)  Each group, association, or other organization of
   5-14  insurers that engages in joint underwriting shall notify the board
   5-15  promptly of any change in the information filed under Subsection
   5-16  (a) of this section.
   5-17        (c)  Each document filed with the board under Subsection (a)
   5-18  of this section must be certified by the custodian of the original
   5-19  document.
   5-20        Sec. 8.  AGREEMENT TO APPORTION RISKS.  (a)  An insurer may
   5-21  enter into an agreement with other insurers with respect to the
   5-22  equitable apportionment among the insurers of insurance that may be
   5-23  afforded to applicants who are in good faith entitled to insurance
   5-24  but who are unable to procure the insurance through ordinary
   5-25  methods.
   5-26        (b)  Notwithstanding any conflicting provisions of this
   5-27  article, agreements under this section may include the rates,
    6-1  rating plans, rules, and rating schedules applicable to the
    6-2  insurance.  An agreement under this section is subject to the
    6-3  approval of the board.
    6-4        (c)  An insurer and the officers and employees of an insurer
    6-5  may participate in plans and agreements to apportion risks as
    6-6  authorized by this section and may participate in the activities
    6-7  necessary to promulgate, implement, and execute those agreements.
    6-8        Sec. 9.  MAINTENANCE OF RECORDS; EXAMINATION OF ADVISORY
    6-9  ORGANIZATIONS.  (a)  Each insurer and each group of insurers that
   6-10  engage in joint underwriting shall maintain reasonable records of
   6-11  the type and kind reasonably adapted to its method of operation
   6-12  containing its experience or the experience of its members,
   6-13  including the statistics or other information collected or used by
   6-14  it in its activities to enable the board to determine whether the
   6-15  activities of an advisory organization, insurer, or association
   6-16  comply with the provisions of this article.
   6-17        (b)  The maintenance of the records in the office of an
   6-18  advisory organization of which an insurer is a member or subscriber
   6-19  constitutes compliance with this section.
   6-20        (c)  The records shall be maintained in an office in this
   6-21  state and shall be made available to the board for examination or
   6-22  inspection at any time on reasonable notice.
   6-23        Sec. 10.  LICENSING OF ADVISORY ORGANIZATIONS.  (a)  An
   6-24  advisory organization may not conduct activities in this state
   6-25  unless the advisory organization holds a license issued by the
   6-26  board under this section.
   6-27        (b)  The board by rule shall prescribe the application
    7-1  process for an advisory organization.  Each applicant for a license
    7-2  must submit the application form prescribed by the board.  The
    7-3  application must be accompanied by the application fee and the
    7-4  documents required under Subsection (e) of this section.
    7-5        (c)  The board shall examine each license application and the
    7-6  supporting documents and may further investigate the applicant and
    7-7  its officers as necessary for a license determination.  The board
    7-8  shall issue a license not later than the 45th day after the date of
    7-9  receipt of the application and supporting documents if the board
   7-10  determines that the applicant meets the requirements for a license
   7-11  under this section.
   7-12        (d)  The board may deny, suspend, revoke, or reinstate a
   7-13  license issued under this section.  The board shall adopt rules
   7-14  establishing the grounds for denial, suspension, revocation, or
   7-15  reinstatement of a license.  Procedures relating to the denial,
   7-16  suspension, or revocation of a license are governed by the
   7-17  Administrative Procedure and Texas Register Act (Article 6252-13a,
   7-18  Vernon's Texas Civil Statutes) and its subsequent amendments.
   7-19        (e)  Each advisory organization shall file with the board:
   7-20              (1)  certified copies of:
   7-21                    (A)  its constitution, articles of incorporation,
   7-22  or other organizing document; and
   7-23                    (B)  its bylaws, rules, or other regulations
   7-24  governing its activities;
   7-25              (2)  a list of its members and subscribers; and
   7-26              (3)  the name and address of a resident of this state
   7-27  on whom notices or orders of the board or process may be served.
    8-1        (f)  Each advisory organization shall notify the board
    8-2  promptly of any change in the information filed under Subsection
    8-3  (c) of this section.
    8-4        (g)  Subject to the approval of the board, each advisory
    8-5  organization shall make reasonable rules governing eligibility for
    8-6  membership in the organization and the activities of members.  The
    8-7  rules must provide that:
    8-8              (1)  any person engaging in the business of insurance
    8-9  in this state in a line that is governed by this article may become
   8-10  a member or subscriber of the organization at a reasonable cost and
   8-11  without discrimination;
   8-12              (2)  the organization may not adopt a policy that would
   8-13  require a member or subscriber to adhere to the organization's
   8-14  insurance statistics, insurance policies, bond forms, or
   8-15  underwriting rules;
   8-16              (3)  the organization may not practice or sanction any
   8-17  plan or act of boycott or intimidation that would result in the
   8-18  unreasonable restraint of trade or a monopoly in the business of
   8-19  insurance; and
   8-20              (4)  authorized insurers that are not members or
   8-21  subscribers may purchase the services of the organization at the
   8-22  same cost assessed a member or subscriber.
   8-23        Sec. 11.  FILING; PUBLIC INFORMATION.  (a)  Each insurer
   8-24  shall file with the board all rates, rating plans, rate schedules,
   8-25  rating rules, rate classifications, and rate territories used by
   8-26  the insurer and each change, amendment, or other modification of
   8-27  the rate, plan, schedule, rule, classification, or territory
    9-1  proposed for use in this state not later than the 15th day after
    9-2  its effective date.  An insurer may satisfy the requirements of
    9-3  this section by reference to a filing made by an advisory
    9-4  organization.
    9-5        (b)  Each filing made under this section is public
    9-6  information and is open to public inspection at all reasonable
    9-7  times.
    9-8        Sec. 12.  NOTICE OF NONCOMPLIANCE; PUBLIC HEARINGS.  (a)  If,
    9-9  after examination or on the basis of other information, the board
   9-10  has good cause to believe that an insurer or other person has not
   9-11  complied with the applicable provisions of this article and that
   9-12  the failure to comply is not willful, the board shall give notice
   9-13  in writing to the insurer, advisory organization, or other person
   9-14  stating specifically in what manner the person is not in compliance
   9-15  and specifying a reasonable time for corrective action.  The period
   9-16  allowed for corrective action may not be less than 10 days after
   9-17  the date of the notice.  At the discretion of the board, a notice
   9-18  under this section may be confidential between the board and the
   9-19  notified persons.
   9-20        (b)  The board shall conduct a public hearing if:
   9-21              (1)  after examination or on the basis of other
   9-22  information, the board has good cause to believe that an insurer,
   9-23  advisory organization, or other person is in willful violation of
   9-24  this article;
   9-25              (2)  within the period prescribed by a notice issued
   9-26  under Subsection (a) of this section the insurer, advisory
   9-27  organization, or person does not take the corrective action
   10-1  required or does not establish to the board's satisfaction that the
   10-2  specified noncompliance does not exist; or
   10-3              (3)  the board has reason to believe that an insurer,
   10-4  advisory organization, or other person has failed to comply with a
   10-5  final order issued under Section 13 of this article.
   10-6        (c)  The board shall mail written notice specifying the
   10-7  matters to be considered at the hearing to the insurer, advisory
   10-8  organization, or other person not later than the 10th day before
   10-9  the date on which the hearing is scheduled.  If notice has not been
  10-10  given under Subsection (a) of this section, the notice of hearing
  10-11  must specify in what manner the person is not in compliance.
  10-12        Sec. 13.  FINDINGS OF VIOLATION; SUSPENSION OR REVOCATION OF
  10-13  CERTIFICATE; CEASE AND DESIST ORDERS.  (a)  If, after a hearing
  10-14  under Section 12 of this article, the board finds that an insurer,
  10-15  advisory organization, or other person is in violation of this
  10-16  article, the board shall issue a final order, specifying the
  10-17  violation and requiring the insurer, advisory organization, or
  10-18  other person to cease and desist from engaging in the act or
  10-19  activities constituting the violation.
  10-20        (b)  If, after a hearing under Section 12 of this article,
  10-21  the board finds that an insurer, advisory organization, or other
  10-22  person has failed to comply with a final order of the board issued
  10-23  under Subsection (a) of this section, the board may assess a
  10-24  penalty as provided by Section 14 of this article.
  10-25        (c)  If, after a hearing under Section 12 of this article,
  10-26  the board finds that an insurer or advisory organization has
  10-27  willfully violated this article, the board may suspend or revoke,
   11-1  in whole or in part, the certificate of authority of the insurer or
   11-2  revoke the license of the advisory organization.
   11-3        Sec. 14.  ADMINISTRATIVE PENALTIES; SUSPENSION OR REVOCATION
   11-4  OF CERTIFICATE.  (a)  If a finding is made based on a hearing
   11-5  conducted under Section 12 of this article that any insurer,
   11-6  advisory organization, or other person has failed to comply with a
   11-7  final order of the board issued under Section 12(a) of this
   11-8  article, the board may sanction that person, insurer, or
   11-9  organization in the manner provided by Section 7, Article 1.10, of
  11-10  this code.
  11-11        (b)  The commission may assess the administrative penalty in
  11-12  an amount not to exceed $1,000 for an unintentional violation and
  11-13  $5,000 for a willful violation.  The aggregate amount assessed may
  11-14  not exceed:
  11-15              (1)  $10,000 for an unintentional violation; or
  11-16              (2)  $50,000 for a willful violation.
  11-17        (c)  In determining the amount of the penalty assessed, the
  11-18  board shall consider the seriousness of the violation.
  11-19        (d)  In addition to assessing a penalty under this section,
  11-20  the board may suspend or revoke the certificate of authority or
  11-21  license of a person determined to be in violation and may order the
  11-22  person to cease all insurance activities within this state.
  11-23        (e)  A penalty assessed under this section is in addition to
  11-24  any other penalties provided by law.
  11-25        Sec. 15.  CIVIL REMEDIES.  A person who is injured by a
  11-26  violation of this article may bring an action to enjoin the
  11-27  violation and recover compensatory damages plus exemplary damages
   12-1  not to exceed the amount of the compensatory damages.
   12-2        Sec. 16.  APPLICATION OF ADMINISTRATIVE PROCEDURES ACT.  Any
   12-3  hearing, order, ruling, finding, decision, or other act of the
   12-4  board under this article is subject to the Administrative Procedure
   12-5  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   12-6  Statutes) and its subsequent amendments, to the extent that the
   12-7  provisions of that Act are consistent with the procedural
   12-8  requirements of this article.
   12-9        SECTION 2.  Articles 5.01, 5.01B, 5.01-2, 5.02, 5.03, 5.04,
  12-10  5.04-1, 5.09, 5.11, 5.22, 5.25, 5.25A, 5.26, 5.28, 5.29, 5.30,
  12-11  5.31, 5.32, 5.33, 5.33A, 5.34, 5.39, 5.40, 5.41, 5.73, and 5.74,
  12-12  Insurance Code, are repealed effective January 1, 1996.
  12-13        SECTION 3.  The State Board of Insurance shall analyze the
  12-14  effect of Article 5.151, Insurance Code, as added by this Act, and
  12-15  shall report its findings to the 74th Legislature not later than
  12-16  February 1, 1995.
  12-17        SECTION 4.  (a)  Except as provided by Subsection (b) of this
  12-18  section, this Act takes effect September 1, 1993, and applies only
  12-19  to an insurance policy that is delivered, issued for delivery, or
  12-20  renewed on or after January 1, 1996.  A policy that is delivered,
  12-21  issued for delivery, or renewed before January 1, 1996, is governed
  12-22  by the law as it existed immediately before the effective date of
  12-23  this Act, and that law is continued in effect for that purpose.
  12-24        (b)  Article 5.151, Insurance Code, as added by this Act,
  12-25  takes effect January 1, 1996.
  12-26        SECTION 5.  The importance of this legislation and the
  12-27  crowded condition of the calendars in both houses create an
   13-1  emergency and an imperative public necessity that the
   13-2  constitutional rule requiring bills to be read on three several
   13-3  days in each house be suspended, and this rule is hereby suspended.