By:  Barrientos                                       S.B. No. 1167
       73R4309 CAG-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of public insurance adjusters; providing
    1-3  a penalty.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subchapter A, Chapter 21, Insurance Code, is
    1-6  amended by adding Article 21.07-5 to read as follows:
    1-7        Art. 21.07-5.  PUBLIC INSURANCE ADJUSTERS
    1-8        Sec. 1.  DEFINITIONS.  In this article:
    1-9              (1)  "Person" means a corporation, partnership,
   1-10  individual, or association.
   1-11              (2)  "Adjustment or settlement of a claim" means
   1-12  preparing and presenting factual documentation necessary to
   1-13  substantiate values of damages and negotiating with an insurer in
   1-14  behalf of the insured in order to accurately establish the amount
   1-15  of damage, the cause of the damage, or the extent of a loss covered
   1-16  by an insurance policy, including:
   1-17                    (A)  negotiating with an insurer to determine:
   1-18                          (i)  the proximate cause of the loss and
   1-19  its relationship to the policy;
   1-20                          (ii)  the method of repair and the per unit
   1-21  cost of repair to or replacement of a structure or real or personal
   1-22  property; and
   1-23                          (iii)  the assessment of earnings loss;
   1-24                    (B)  advising an insured in areas relevant to the
    2-1  policy of insurance, its coverage, limitations, and conditions, the
    2-2  appraisal process, and Article 21.55 of this code; and
    2-3                    (C)  advising an insured to seek the services of
    2-4  an attorney whenever the public adjuster believes that the need for
    2-5  legal assistance is warranted.
    2-6              (3)  "Public adjuster" means a person who, for
    2-7  compensation, represents an insured as an adjuster of first-party
    2-8  property insurance claims and acts on the behalf of or aids an
    2-9  insured in adjusting or effecting the settlement of a claim or
   2-10  claims for loss or damage under a policy of insurance.  The term
   2-11  does not include:
   2-12                    (A)  an attorney who adjusts insurance losses;
   2-13                    (B)  an individual who only performs clerical or
   2-14  technical duties;
   2-15                    (C)  a contractor who submits a scope and cost of
   2-16  repairs to an insured without providing any other services
   2-17  involving the adjustment or settlement of a claim;
   2-18                    (D)  a person employed for the purpose of
   2-19  furnishing technical assistance to a public adjuster, including a
   2-20  photographer, engineer, architect, accountant, or attorney;
   2-21                    (E)  a salaried employee of an insurer regularly
   2-22  engaged in the adjustment, investigation, or supervision of
   2-23  insurance claims on behalf of the insurer;
   2-24                    (F)  a licensed agent or general agent of an
   2-25  insurer who processes an undisputed or uncontested claim for an
   2-26  insurer under policies issued by the agent or general agent;
   2-27                    (G)  an independent insurance adjuster who is an
    3-1  authorized agent of an authorized insurer and who processes
    3-2  undisputed or uncontested or disputed claims for the insurer; and
    3-3                    (H)  a person handling claims arising under life,
    3-4  accident, and health insurance policies.
    3-5        Sec. 2.  LICENSE REQUIRED.  (a)  A person may not act as or
    3-6  hold himself out to be a public adjuster or an associate adjuster
    3-7  unless the person holds a license issued under this article.
    3-8        (b)  A license issued under this article is effective for two
    3-9  years from the date of issuance.
   3-10        Sec. 3.  QUALIFICATIONS; BOND REQUIREMENTS.  (a)  The
   3-11  commissioner shall issue a public adjuster license to an applicant
   3-12  on determining that an application is complete, that the license
   3-13  fee has been paid, and that the applicant meets the requirements
   3-14  for a license under this article.
   3-15        (b)  An applicant for a license must have:
   3-16              (1)  a reasonable understanding of the provisions,
   3-17  terms, and conditions of insurance policies;
   3-18              (2)  an understanding of the insurance laws of this
   3-19  state; and
   3-20              (3)  a good business reputation.
   3-21        (c)  An applicant must be of good moral character to act as a
   3-22  public adjuster.
   3-23        (d)  An applicant must have demonstrable experience,
   3-24  training, or instruction relating to the assessment of real and
   3-25  personal property values and physical loss or damage to real and
   3-26  personal property that may be the subject of insurance claims,
   3-27  including earnings loss.
    4-1        (e)  An applicant must pass the examination required by
    4-2  Section 14 of this article.
    4-3        (f)  An individual applicant must be at least 20 years of
    4-4  age, be a citizen of the United States and of this state, and have
    4-5  been a resident of this state for at least 12 months immediately
    4-6  preceding the date of filing of the application for a license as a
    4-7  public adjuster.
    4-8        (g)  The applicant for a license may not be licensed as an
    4-9  independent or company staff adjuster under Chapter 407, Acts of
   4-10  the 63rd Legislature, Regular Session, 1973 (Article 21.07-4,
   4-11  Vernon's Texas Insurance Code), and its subsequent amendments.
   4-12        (h)  An individual applicant for a license must have held an
   4-13  associate adjuster license issued under Section 8 of this article
   4-14  for at least two years immediately preceding the date of the filing
   4-15  of the application for a license as a public adjuster.
   4-16        (i)  A corporation or partnership may qualify for a license
   4-17  under this article if the corporation or partnership is organized
   4-18  or existing under the laws of this state and each officer,
   4-19  director, and person owning 90 percent or more of the outstanding
   4-20  voting securities of the corporation and each general partner of
   4-21  the partnership is a licensed public adjuster under this article.
   4-22        Sec. 4.  BOND REQUIREMENTS FOR PUBLIC ADJUSTERS.  (a)  An
   4-23  individual applicant must either:
   4-24              (1)  file a surety bond with the commissioner in the
   4-25  amount of $10,000, payable to the state for the benefit of any
   4-26  person recovering a judgment against the applicant and conditioned
   4-27  on the faithful performance of the individual applicant's duties as
    5-1  a public adjuster;
    5-2              (2)  file an adjuster's professional liability policy
    5-3  or contract of professional liability coverage acceptable to the
    5-4  commissioner, insuring the individual applicant against errors and
    5-5  omissions in the amount of $10,000 or more; or
    5-6              (3)  deposit with the state treasurer $10,000 to be
    5-7  held for the protection of a person recovering a final judgment
    5-8  against the individual applicant.
    5-9        (b)  A corporate or partnership applicant shall file a surety
   5-10  bond in the amount of $100,000 with the application for a license.
   5-11  The bond must be conditioned that the bond is for the benefit of a
   5-12  person having a claim against it by an insured on whose behalf the
   5-13  corporation or partnership has acted as public adjuster.
   5-14        (c)  A bond issued under Subsection (a) or (b) of this
   5-15  section shall authorize recovery by the commissioner of damages
   5-16  sustained if the licensee is guilty of fraud or unfair practices in
   5-17  connection with the licensee's business as a public adjuster.  The
   5-18  aggregate liability of the surety for damages may not exceed the
   5-19  amount of the bond.
   5-20        (d)  A deposit with the state treasurer made under Subsection
   5-21  (a) of this section may be withdrawn by the applicant only on
   5-22  filing with the commissioner evidence satisfactory to the
   5-23  commissioner that the applicant has withdrawn from the business of
   5-24  public adjusting and has no unsecured liabilities outstanding or
   5-25  that the individual applicant has provided for the protection of
   5-26  any person recovering a final judgment against the applicant by
   5-27  furnishing an errors and omissions policy or a bond as provided by
    6-1  this section.  The deposit may be withdrawn by any person or on
    6-2  showing that the final judgment has been secured against the
    6-3  applicant and that final judgment remains unsatisfied.  A
    6-4  withdrawal predicated on an unsatisfied final judgment may be made
    6-5  only to the extent of the deficiency in the satisfaction of the
    6-6  final judgment.
    6-7        Sec. 5.  CRIMINAL HISTORY BACKGROUND CHECK.  The commissioner
    6-8  may request a law enforcement agency to assist in a criminal
    6-9  history background check on an applicant as provided by Article
   6-10  1.10C of this code.
   6-11        Sec. 6.  NONRESIDENT LICENSE.  (a)  An individual who resides
   6-12  outside this state and who holds a public adjuster license issued
   6-13  by another state is eligible to apply for a nonresident license
   6-14  under this section.
   6-15        (b)  Any application for a nonresident license must be
   6-16  accompanied by a certificate issued by the appropriate licensing
   6-17  agency in the other state that states each line of insurance for
   6-18  which the applicant is qualified in the other state, provides proof
   6-19  that the applicant is in good standing, and provides that the
   6-20  applicant's license has never been suspended or revoked.
   6-21        (c)  The application must be accompanied by a list of
   6-22  properties where the applicant is to adjust claims and the names
   6-23  and addresses of the insureds for whom the applicant will be
   6-24  working.
   6-25        (d)  A nonresident public adjuster is subject to any
   6-26  restrictions under which a public adjuster licensed in this state
   6-27  is subject to in the jurisdiction in which the nonresident
    7-1  applicant resides.
    7-2        (e)  A nonresident license is valid for 90 days after the
    7-3  date of issuance and may be renewed on application for an
    7-4  additional 90 days until a claim is settled.
    7-5        (f)  An application fee of $250 must accompany each
    7-6  application or renewal for a nonresident public adjuster license.
    7-7  The application fee is nonrefundable.
    7-8        (g)  A nonresident public adjuster must be sponsored and
    7-9  supervised by a public adjuster licensed in this state and the
   7-10  application must be accompanied by the affidavit of the public
   7-11  adjuster acting as the sponsor and supervisor.
   7-12        (h)  An application for a nonresident public adjuster license
   7-13  must be submitted within 24 hours after the applicant arrives in
   7-14  the state for the purpose of adjusting insurance claims.
   7-15        (i)  A nonresident public adjuster may not solicit business
   7-16  in this state.
   7-17        (j)  A public adjuster who acts as the sponsor and supervisor
   7-18  of the nonresident public adjuster must notify the commissioner in
   7-19  writing of the sponsorship within 24 hours after the nonresident
   7-20  has entered the state to act as a public adjuster.  The notice must
   7-21  include a copy of the nonresident's application for a license under
   7-22  this section.
   7-23        (k)  The public adjuster who sponsors or supervises a
   7-24  nonresident public adjuster may not sponsor more than two
   7-25  nonresident public adjusters during the term of a nonresident's
   7-26  license.
   7-27        (l)  Each nonresident public adjuster shall file with the
    8-1  commissioner a bond equal to the bond a resident public adjuster
    8-2  must file.
    8-3        Sec. 7.  QUALIFICATION FOR LICENSING BY RECIPROCITY.  (a)  To
    8-4  qualify for a reciprocal license as a public adjuster, an applicant
    8-5  for licensing must:
    8-6              (1)  submit to the commissioner a reciprocity fee as
    8-7  determined by the commissioner and a completed application given
    8-8  under oath, in the form prescribed by the commissioner;
    8-9              (2)  have possessed at the time of initial licensing as
   8-10  a public adjuster other qualifications necessary to have been
   8-11  eligible for licensing at that time in this state;
   8-12              (3)  have presented to the commissioner proof of
   8-13  initial licensing by examination and proof that the license and
   8-14  other license or licenses granted to the applicant by any other
   8-15  state have not been suspended, revoked, canceled, surrendered, or
   8-16  otherwise restricted for any reason;
   8-17              (4)  submit to the board a notice of sponsorship of the
   8-18  applicant by a licensee of the state under whom the applicant will
   8-19  practice; and
   8-20              (5)  satisfy any other requirement set by statute.
   8-21        (b)  An applicant is not eligible for licensing by
   8-22  reciprocity unless the state in which the applicant was initially
   8-23  licensed as a public adjuster also grants reciprocal licensing to
   8-24  public adjusters duly licensed by examination in this state, under
   8-25  like circumstances and conditions.
   8-26        Sec. 8.  ASSOCIATE ADJUSTER LICENSE.  (a)  An applicant for
   8-27  an associate adjuster license must:
    9-1              (1)  be at least 18 years of age; and
    9-2              (2)  be a resident of this state.
    9-3        (b)  On payment of the application fee, the commissioner
    9-4  shall issue an associate adjuster license to an applicant qualified
    9-5  under this section.  The commissioner may not issue a license as an
    9-6  associate adjuster to a person licensed as an agent, broker,
    9-7  solicitor, or surplus lines broker.
    9-8        (c)  A license of an associate adjuster may be renewed
    9-9  annually on payment of the license renewal fee.
   9-10        (d)  A holder of an associate adjuster license may only
   9-11  perform an activity under this article if the holder is working
   9-12  under the supervision of a public adjuster.
   9-13        Sec. 9.  LICENSE RENEWAL.  (a)  A license may be renewed for
   9-14  one or two years, as determined by the commissioner, by payment of
   9-15  a license renewal fee as determined by the commissioner and by
   9-16  filing a completed application given under oath before the
   9-17  expiration date of the license.  The application must state that
   9-18  the requirements for renewal have been completed by the licensee
   9-19  during the preceding license period.
   9-20        (b)  On timely receipt of the completed application, the
   9-21  renewal fee, and proof of completion of any other requirements, the
   9-22  commissioner shall issue a license renewal bearing the public
   9-23  adjuster's license number, the period for which it is renewed, and
   9-24  other information the commissioner determines necessary.
   9-25        (c)  If a person's license has been expired for 90 days or
   9-26  less, the person may renew the license by paying to the
   9-27  commissioner the required renewal fee and a fee that is one-half of
   10-1  the application fee for a license.
   10-2        (d)  If a person's license has been expired for 90 days or
   10-3  more, the person may not renew the license.
   10-4        (e)  At least 30 days before the expiration of a person's
   10-5  license, the commissioner shall send written notice of the
   10-6  impending license expiration to the person at the licensee's last
   10-7  known address according to the records of the commissioner.
   10-8        Sec. 10.  PLACE OF BUSINESS; DISPLAY OF LICENSE.  (a)  A
   10-9  public adjuster shall maintain a place of business accessible to
  10-10  the public from which the licensee principally conducts
  10-11  transactions under the license.  The address of that place of
  10-12  business must be listed on the application for a license or renewal
  10-13  of the license and the licensee shall promptly notify the
  10-14  commissioner in writing of any change of address.
  10-15        (b)  A public adjuster or an associate adjuster shall display
  10-16  the license in a conspicuous place in the place of business in a
  10-17  location customarily open to the public and shall show the license
  10-18  on request to a person with whom the licensee is doing business.
  10-19        (c)  A copy of the license shall be carried by a public
  10-20  adjuster or an associate adjuster and presented on request.
  10-21        (d)  A public adjuster shall keep a record of:
  10-22              (1)  all investigations and adjustments undertaken;
  10-23              (2)  any fee, commission, or other compensation
  10-24  received or to be received by an adjuster for an investigation or
  10-25  adjustment; and
  10-26              (3)  accounts for all work in progress or funds held by
  10-27  the adjuster.
   11-1        (e)  A public adjuster shall make the records described in
   11-2  Subsection (d) of this section available for examination by the
   11-3  commissioner at all times, shall retain the records for at least
   11-4  three years, and shall maintain the records at the adjuster's place
   11-5  of business.
   11-6        Sec. 11.  ADJUSTER'S RIGHTS IN DEALING WITH INSURED AND
   11-7  INSURER.   (a)  A public adjuster may, on the consent of the
   11-8  adjuster's insured client, receive a limited power of attorney to
   11-9  act on behalf of the insured to:
  11-10              (1)  give prompt notice to the insurance company or its
  11-11  agent;
  11-12              (2)  furnish a complete inventory of damaged real and
  11-13  personal property and loss of earnings, showing the quantity,
  11-14  description, and amount of loss, and to attach all bills, receipts,
  11-15  and related documents that justify the claims in the estimate or
  11-16  inventory;
  11-17              (3)  provide the insurer with access to the damaged
  11-18  property or to exhibit the damaged property;
  11-19              (4)  provide the insurer with copies of requested
  11-20  records and documents;
  11-21              (5)  determine the repair or replacement cost of the
  11-22  damaged property;
  11-23              (6)  determine the scope and the value of the loss as
  11-24  it pertains to structure, contents, and loss of earnings;
  11-25              (7)  negotiate on behalf of the insured;
  11-26              (8)  discuss policy coverage; or
  11-27              (9)  inform the insured when it is necessary to seek
   12-1  legal counsel.
   12-2        (b)  An insurer notified of the adjuster's power of attorney
   12-3  shall deal with the public adjuster in the same manner as it would
   12-4  with the insured.
   12-5        (c)  An insured shall be reimbursed for all expenses incurred
   12-6  in obtaining a settlement following a loss.
   12-7        (d)  An insurer notified of a public adjuster's contract
   12-8  shall acknowledge the contract between the public adjuster and the
   12-9  insured.
  12-10        Sec. 12.  ADVISORY COMMITTEE.  (a)  The board shall appoint
  12-11  an industry advisory committee to aid the commissioner in
  12-12  administering this article.  The industry advisory committee is
  12-13  composed of five persons, including two persons licensed to
  12-14  practice law in this state, one person who is an independent
  12-15  adjuster for an insurance company, and two licensed public
  12-16  adjusters.
  12-17        (b)  A member of the advisory committee serves a two-year
  12-18  term.  A member of the advisory committee is not entitled to
  12-19  compensation but is entitled to reimbursement for reasonable and
  12-20  necessary expenses incurred in performing duties as a member,
  12-21  subject to any applicable limitation in the General Appropriations
  12-22  Act.
  12-23        (c)  The advisory committee may propose reasonable rules
  12-24  necessary for the proper administration of this article as it
  12-25  relates to the licensing of public adjusters, including a code of
  12-26  ethics to foster the education of all public adjusters concerning
  12-27  the ethical, legal, and business principles that should govern
   13-1  their conduct, and rules relating to the interaction between a
   13-2  public adjuster and an insurance company adjuster.
   13-3        Sec. 13.  PENALTY.  (a)  A person commits an offense if the
   13-4  person knowingly or intentionally violates this article.
   13-5        (b)  An offense under this section is a Class B misdemeanor.
   13-6        Sec. 14.  EXAMINATION.  (a)  An examination for a public
   13-7  adjuster license shall be approved by the commissioner and must be
   13-8  similar to the examination administered for applicants for an
   13-9  adjuster license provided by Section 10, Chapter 407, Acts of the
  13-10  63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's
  13-11  Texas Insurance Code), and its subsequent amendments.
  13-12        (b)  The examination shall be reviewed by the industry
  13-13  advisory committee.
  13-14        (c)  The examination shall be offered on a monthly basis.
  13-15        Sec. 15.  DENIAL, SUSPENSION, OR REVOCATION OF A LICENSE.
  13-16  (a)  The commissioner may deny, suspend, or revoke a public
  13-17  adjuster license on the following grounds:
  13-18              (1)  the licensee has obtained or attempted to obtain a
  13-19  license through willful misrepresentation or fraud;
  13-20              (2)  the licensee has failed to pass a required
  13-21  examination;
  13-22              (3)  the licensee has been convicted of a felony; or
  13-23              (4)  the licensee has, with the intent to deceive,
  13-24  materially misrepresented the licensee's affiliation or status as a
  13-25  public adjuster or associate adjuster.
  13-26        (b)  Proceedings for the denial, suspension, or revocation of
  13-27  a license and appeals from those proceedings shall be conducted in
   14-1  the manner provided for analogous proceedings under Section 18,
   14-2  Chapter 407, Acts of the 63rd Legislature, Regular Session, 1973
   14-3  (Article 21.07-4, Vernon's Texas Insurance Code), and its
   14-4  subsequent amendments.
   14-5        (c)  An order suspending a public adjuster or associate
   14-6  adjuster license shall specify the period of the suspension, which
   14-7  may not be longer than 12 months from the date of the suspension.
   14-8  The holder of a license that has been revoked or suspended shall
   14-9  surrender the license to the commissioner on demand.  Issuance or
  14-10  reinstatement of a license may be ordered in the discretion of the
  14-11  commissioner on a finding that the cause for suspension,
  14-12  revocation, or refusal no longer exists.
  14-13        (d)  A public adjuster or associate adjuster whose license
  14-14  has been revoked may not reapply for a license to act as a public
  14-15  adjuster or associate adjuster until 12 months from the date of the
  14-16  final order revoking the license.
  14-17        Sec. 16.  UNAUTHORIZED PRACTICE OF LAW.  A holder of a
  14-18  license, acting in strict conformity with this article, is not
  14-19  engaged in the unauthorized practice of law.
  14-20        Sec. 17.  CONTINUING EDUCATION REQUIREMENTS.  A public
  14-21  adjuster shall complete 30 hours of continuing education approved
  14-22  by the commissioner during each two-year licensing period.  The
  14-23  commissioner may approve the continuing education classes available
  14-24  to an insurance company adjuster, insurance company agent, or
  14-25  independent adjuster.
  14-26        SECTION 2.  (a)  A person appointed before September 1, 1995,
  14-27  to the Industry Advisory Committee as a public adjuster member is
   15-1  not required to be licensed as a public adjuster under Article
   15-2  21.07-5, Insurance Code, as added by this Act, but must be eligible
   15-3  for a license.
   15-4        (b)  For two years beginning on the effective date of this
   15-5  Act, the commissioner shall waive the examination requirement and
   15-6  associate adjuster requirement imposed under Section 3, Article
   15-7  21.07-5, Insurance Code, as added by this Act, and grant a license
   15-8  under this Act to any person who applies for the exemption and
   15-9  provides evidence that the person:
  15-10              (1)  is a licensed or registered insurance adjuster;
  15-11              (2)  has worked as an adjuster for one year or more
  15-12  preceding the date of the application for exemption; and
  15-13              (3)  meets all other licensing requirements provided by
  15-14  statute or rules of the State Board of Insurance.
  15-15        SECTION 3.  This Act takes effect September 1, 1993.
  15-16        SECTION 4.  The importance of this legislation and the
  15-17  crowded condition of the calendars in both houses create an
  15-18  emergency and an imperative public necessity that the
  15-19  constitutional rule requiring bills to be read on three several
  15-20  days in each house be suspended, and this rule is hereby suspended.