By Dutton, De La Garza, Duncan                        H.B. No. 1367
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to certain acts of unfair discrimination in the business
    1-3  of insurance and certain methods, programs, and mechanisms for
    1-4  providing property and casualty insurance in underserved areas;
    1-5  providing administrative penalties.
    1-6        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-7        SECTION 1.  Subchapter B, Chapter 21, Insurance Code, is
    1-8  amended by adding Article 21.21-6 to read as follows:
    1-9        Art. 21.21-6.  UNFAIR DISCRIMINATION
   1-10        Sec. 1.  PROHIBITIONS.  No person shall engage in any
   1-11  practice of unfair discrimination which is defined in this article
   1-12  or is determined pursuant to this article to be a practice of
   1-13  unfair discrimination in the business of insurance.
   1-14        Sec. 2.  APPLICATION AND SCOPE.  This article shall apply to
   1-15  any legal entity engaged in the business of insurance in this
   1-16  state, including:
   1-17              (a)  a capital stock company;
   1-18              (b)  a mutual company;
   1-19              (c)  a title insurance company;
   1-20              (d)  a fraternal benefit society;
   1-21              (e)  a local mutual aid association;
   1-22              (f)  a statewide mutual assessment company;
   1-23              (g)  a county mutual insurance company;
   1-24              (h)  a Lloyd's plan company;
    2-1              (i)  a reciprocal or interinsurance exchange;
    2-2              (j)  a stipulated premium insurance company;
    2-3              (k)  a group hospital service company;
    2-4              (l)  a health maintenance organization;
    2-5              (m)  a farm mutual insurance company;
    2-6              (n)  a risk retention group;
    2-7              (o)  a surplus lines carrier; and
    2-8              (p)  agents, brokers, adjusters, and life insurance
    2-9  counselors.
   2-10        Sec. 3.  UNFAIR DISCRIMINATION DEFINED.  "Unfair
   2-11  discrimination" means:
   2-12              (a)  Refusing to insure; refusing to continue to
   2-13  insure; limiting the amount, extent, or kind of coverage available;
   2-14  or charging an individual a different rate for the same coverage
   2-15  because of race, color, religion, or national origin;
   2-16              (b)  Refusing to insure; refusing to continue to
   2-17  insure; limiting the amount, extent, or kind of coverage available;
   2-18  or charging an individual a different rate for the same coverage
   2-19  because of the age, gender, marital status, or geographic location
   2-20  of the individual; however, nothing in this paragraph shall
   2-21  prohibit an insurer from taking marital status into account for the
   2-22  purpose of defining persons eligible for dependent benefits;
   2-23              (c)  Refusing to insure; refusing to continue to
   2-24  insure; limiting the amount, extent, or kind of coverage; or
   2-25  charging an individual a different rate for the same coverage
   2-26  because of disability or partial disability; however, this
   2-27  paragraph shall not be interpreted to modify any other provision of
    3-1  law relating to the termination, modification, issuance, or renewal
    3-2  of any insurance policy or contract.
    3-3        Sec. 4.  EXCEPTIONS.  (a)  A legal entity engaged in the
    3-4  business of insurance as specified in Section 2 of this article is
    3-5  not in violation of the prohibited acts defined in or determined
    3-6  pursuant to Section 3(b) and 3(c) of this article if the refusal to
    3-7  insure; refusal to continue to insure; the limiting of the amount,
    3-8  extent, or kind of coverage; or the charging of an individual a
    3-9  different rate for the same coverage is based upon sound
   3-10  underwriting or actuarial principles reasonably related to actual
   3-11  or anticipated loss experience.
   3-12        (b)  A legal entity engaged in the business of insurance as
   3-13  specified in Section 2 of this article is not in violation of the
   3-14  prohibited acts defined in or determined pursuant to Section 3 of
   3-15  this article if the entity provides insurance coverage only to
   3-16  persons who are required to obtain or maintain membership or
   3-17  qualification for membership in a club, group, or organization, so
   3-18  long as membership or membership qualifications are uniform
   3-19  requirements of the insurer as a condition of providing insurance,
   3-20  and are applied uniformly throughout this state, and the entity
   3-21  does not engage in any of the prohibited acts defined in or
   3-22  determined pursuant to Section 3 of this article for persons who
   3-23  are qualified members, except as otherwise provided in this
   3-24  section.
   3-25        (c)  A legal entity engaged in the business of insurance as
   3-26  specified in Section 2 of this article is not in violation of the
   3-27  prohibited acts defined in or determined pursuant to Section 3 of
    4-1  this article if the refusal to insure; refusal to continue to
    4-2  insure; the limiting of the amount, extent, or kind of coverage; or
    4-3  the charging of an individual a different rate for the same
    4-4  coverage is required or authorized by law or regulatory mandate.
    4-5        Sec. 5.  SANCTIONS.  Any legal entity engaged in the business
    4-6  of insurance in this state found to be in violation of or failing
    4-7  to comply with this article is subject to the sanctions authorized
    4-8  in Article 1.10 of this code, including administrative penalties
    4-9  authorized under Article 1.10E of this code.  The commissioner may
   4-10  also utilize the cease and desist procedures authorized by Article
   4-11  1.10A of this code.
   4-12        SECTION 2.  Subchapter B, Chapter 21, Insurance Code, is
   4-13  amended by adding Article 21.21-7 to read as follows:
   4-14        Art. 21.21-7.  PROHIBITION ON USE BY HEALTH INSURERS OF
   4-15  UNDERWRITING GUIDELINES BASED ON FLUENCY IN ENGLISH
   4-16        Sec. 1.  DEFINITIONS.  In this article:
   4-17              (1)  "Health insurer" means any insurance company,
   4-18  group hospital service corporation, or health maintenance
   4-19  organization that delivers or issues for delivery an individual,
   4-20  group, blanket, or franchise insurance policy or insurance
   4-21  agreement, a group hospital service contract, or an evidence of
   4-22  coverage that provides health insurance or health care benefits.
   4-23  Without limiting the foregoing, the definition includes insurance
   4-24  companies, associations, and organizations which come within the
   4-25  purview of the following designated chapters of the insurance code:
   4-26  Chapter 3, pertaining to life, health, and accident insurance
   4-27  companies; Chapter 8, pertaining to general casualty companies;
    5-1  Chapter 10, pertaining to fraternal benefit societies; Chapter 11,
    5-2  pertaining to mutual life insurance companies; Chapter 12,
    5-3  pertaining to local mutual aid associations; Chapters 13 and 14,
    5-4  pertaining to statewide mutual assessment companies, mutual
    5-5  assessment companies, and mutual assessment life, health, and
    5-6  accident associations; Chapter 15, pertaining to mutual insurance
    5-7  companies writing other than life insurance; Chapter 18, pertaining
    5-8  to underwriters making insurance on the Lloyd's plan; Chapter 19,
    5-9  pertaining to reciprocal exchanges; and Chapter 22, pertaining to
   5-10  stipulated premium insurance companies.
   5-11              (2)  "Underwriting guideline" means a rule, standard,
   5-12  marketing decision, or practice, whether written, oral, or
   5-13  electronic, that is used by a health insurer or an agent of a
   5-14  health insurer to examine, bind, accept, reject, renew, nonrenew,
   5-15  cancel, charge a different rate for the same coverage, or limit
   5-16  coverage(s) made available to classes of consumers of insurance.
   5-17        Sec. 2.  APPLICATION.  This article applies to any health
   5-18  insurance policy, agreement, contract, or evidence of coverage
   5-19  delivered or issued for delivery by a health insurer.
   5-20        Sec. 3.  PROHIBITION.  A health insurer may not use an
   5-21  underwriting guideline that is based on the ability of an insured
   5-22  or an applicant for insurance coverage or health care benefits to
   5-23  speak English fluently or to be literate in the English language.
   5-24  The applicant has the burden of proof to establish a violation of
   5-25  this article.
   5-26        SECTION 3.  Section 1, Article 17.25, Insurance Code, is
   5-27  amended to read as follows:
    6-1        Sec. 1.  Regulation.  County mutual insurance companies
    6-2  operating under the provisions of this Chapter shall be authorized
    6-3  to write insurance against loss or damage from any hazard provided
    6-4  therein or that any other fire or windstorm insurance company
    6-5  operating in Texas may write on property described in Article 17.01
    6-6  of this Chapter.  County mutual insurance companies qualifying to
    6-7  write casualty lines for state wide operation may write all lines
    6-8  of automobile insurance, personal liability insurance, residential
    6-9  fire insurance, residential allied lines insurance, homeowners
   6-10  insurance, and farm and ranch owners insurance, provided that no
   6-11  such company shall assume a risk on any one hazard greater than
   6-12  five (5%) per cent of its assets, unless such excess shall be
   6-13  promptly reinsured.
   6-14        SECTION 4.  Subchapter C, Chapter 5, Insurance Code, is
   6-15  amended by adding Article 5.35-3 to read as follows:
   6-16        Art. 5.35-3.  PROPERTY PROTECTION PROGRAM FOR UNDERSERVED
   6-17  AREAS
   6-18        Sec. 1.  (a)  By rule the commissioner may determine and
   6-19  designate areas as underserved areas for residential property
   6-20  insurance.  In determining which areas will be designated as
   6-21  underserved, the commissioner shall consider whether residential
   6-22  property insurance is not reasonably available to a substantial
   6-23  number of owners of insurable property in the underserved area and
   6-24  any other relevant factors as determined by the commissioner.  For
   6-25  purposes of this article, residential property insurance means
   6-26  insurance coverage against direct loss to real or tangible personal
   6-27  property at a fixed location provided in a homeowners policy,
    7-1  residential fire and allied lines policy, or farm and ranch owners
    7-2  policy.
    7-3        (b)  The property protection program for underserved areas
    7-4  operated under this article may not include windstorm and hail
    7-5  insurance coverage for a risk eligible for that coverage under
    7-6  Article 21.49 of this code.
    7-7        Sec. 2.  All insurers authorized to write property or
    7-8  casualty insurance in this state and writing residential property
    7-9  insurance in this state, including those insurers licensed under
   7-10  Chapters 17, 18, and 19 of this code, are authorized to write
   7-11  insurance on the forms adopted under this article.
   7-12        Sec. 3.  The commissioner shall adopt policy forms for
   7-13  residential property insurance specifically for use in the
   7-14  designated underserved areas.  The policy forms adopted pursuant to
   7-15  this article shall include a basic policy covering fire and allied
   7-16  lines perils with endorsements providing additional coverages at
   7-17  the option of the insured.  The adopted policy forms may be used by
   7-18  all insurers writing insurance in underserved areas.
   7-19        Sec. 4.  The rates for residential property insurance subject
   7-20  to this article shall be determined in accordance with the
   7-21  provisions of this code applicable to each insurer.
   7-22        Sec. 5.  In the designated underserved areas, all insurers
   7-23  specified in Section 2 of this article shall make available to
   7-24  their agents and all agents shall offer all insureds the full range
   7-25  of coverages promulgated under this article subject to the
   7-26  applicable rates and underwriting guidelines of each such insurer.
   7-27        Sec. 6.  The premium on all policies written pursuant to this
    8-1  article will not be subject to tax under Article 4.10 of this code.
    8-2        Sec. 7.  The premium on all policies written pursuant to this
    8-3  article will not be considered net direct premiums under the
    8-4  provisions of Section 3(g), Article 21.49, of this code.
    8-5        SECTION 5.  Subchapter E, Chapter 21, Insurance Code, is
    8-6  amended by adding Article 21.79 to read as follows:
    8-7        Art. 21.79.  GROUP INSURANCE OF PRIVATE PASSENGER AUTO AND
    8-8  RESIDENTIAL PROPERTY INSURANCE IN UNDERSERVED AREAS
    8-9        Sec. 1.  (a)  By rule the commissioner may determine and
   8-10  designate areas as underserved areas for private passenger auto
   8-11  insurance or residential property insurance.  In determining which
   8-12  areas will be designated as underserved, the commissioner shall
   8-13  consider whether such insurance is not reasonably available to a
   8-14  substantial number of insurable risks and the availability of
   8-15  insurance and any other relevant factors as determined by the
   8-16  commissioner.  For purposes of this article, residential property
   8-17  insurance shall mean property insurance on one-family or two-family
   8-18  dwellings.
   8-19        (b)  Group insurance provided under this article may not
   8-20  include windstorm and hail insurance coverage for a risk eligible
   8-21  for that coverage under Article 21.49 of this code.
   8-22        Sec. 2.  All insurers authorized to write property or
   8-23  casualty insurance in this state and writing private passenger auto
   8-24  insurance or residential property insurance in this state,
   8-25  including insurers licensed under Chapters 17, 18, and 19 of this
   8-26  code, are authorized to write such insurance on a group basis in
   8-27  underserved areas as designated by the commissioner.
    9-1        Sec. 3.  A group may be formed solely for the purpose of
    9-2  purchasing insurance subject to this article.
    9-3        Sec. 4.  All policy forms and certificates for use in
    9-4  underserved areas as designated by the commissioner shall be
    9-5  adopted by the commissioner.
    9-6        Sec. 5.  The rates for coverage shall be subject to the
    9-7  applicable statutory provisions relating to the respective
    9-8  insurers.
    9-9        Sec. 6.  The commissioner may adopt any other rules that are
   9-10  appropriate and necessary to implement this article.
   9-11        SECTION 6.  Article 21.49-12, Insurance Code, is amended to
   9-12  read as follows:
   9-13        Art. 21.49-12.  Market Assistance Programs
   9-14        Sec. 1.  Creation of programs.  (a)  The commissioner <State
   9-15  Board of Insurance> may establish a voluntary mechanism to be
   9-16  called a market assistance program to assist insureds in Texas in
   9-17  obtaining residential property <liability> insurance coverage in
   9-18  underserved areas, which shall be determined and designated by the
   9-19  commissioner by rule using the standards specified in Section 1,
   9-20  Article 5.35-3, of this code <where it has been shown not to be
   9-21  readily available>.  For purposes of this article, residential
   9-22  property insurance means property insurance on one-family or
   9-23  two-family dwellings.  The types of risks to be assisted under the
   9-24  <each> market assistance program will be established by the
   9-25  commissioner <board>.  A market assistance program division shall
   9-26  be established in and operated by the Texas Department of
   9-27  Insurance.
   10-1        (b)  The market assistance program established under this
   10-2  article may not provide assistance with respect to windstorm and
   10-3  hail insurance coverage for a risk eligible for that coverage under
   10-4  Article 21.49 of this code.
   10-5        Sec. 2.  Plan of operation.  (a)  The executive committee
   10-6  shall develop and submit the plan of operation to the commissioner
   10-7  for adoption by rule and shall be available to advise and consult
   10-8  with the commissioner with regard to the administration of the
   10-9  program.  If the executive committee fails to submit a suitable
  10-10  plan of operation within 180 days following the effective date of
  10-11  this article, or if at any time thereafter the executive committee
  10-12  fails to submit suitable amendments to the plan of operation, the
  10-13  department shall develop and submit to the commissioner a plan of
  10-14  operation and thereafter any amendments thereto, and the
  10-15  commissioner shall, after notice and hearing, adopt by rule the
  10-16  plan of operation developed by the department or any amendments to
  10-17  the plan of operation  <Each market assistance program shall be
  10-18  administered under a plan of operation promulgated by the board>.
  10-19  The <Each> plan of operation shall indicate types of coverage,
  10-20  policy forms and terms, application forms, eligibility, and overall
  10-21  operation of the program.  All insurers licensed to write property
  10-22  or casualty insurance and actually writing residential property
  10-23  insurance in this state, including Lloyds, reciprocals, or
  10-24  interinsurance exchanges and county mutuals, may <The board may
  10-25  require an insurer to> participate in the program unless insurer
  10-26  participation is made mandatory by the commissioner based on
  10-27  criteria provided in the plan of operation, but the commissioner
   11-1  <board> may not permit an insurer to condition its participation in
   11-2  a manner that is inequitable to the participants.
   11-3        (b)  The plan of operation shall include, but is not limited
   11-4  to, the following provisions:
   11-5              (1)  Applications will be accepted only from agents
   11-6  duly licensed by the Texas Department of Insurance.  Applications
   11-7  from all other sources will be returned for referral to duly
   11-8  licensed agents of the applicant's choice for preparation and
   11-9  resubmission to the program.
  11-10              (2)  Applications for assistance shall be addressed to
  11-11  the Market Assistance Program at the Texas Department of Insurance.
  11-12  Each application must be accompanied by a copy of a current
  11-13  nonrenewal or cancellation notice and a current declination letter
  11-14  from at least one other insurer writing the coverage sought.
  11-15  Applicants not having previous residential property insurance
  11-16  coverage must provide copies of current declination letters from at
  11-17  least two unaffiliated insurers writing the coverage sought.
  11-18              (3)  Each insurer has the right to individually
  11-19  evaluate the risk and apply the rates in accordance with the
  11-20  provisions of this code applicable to each insurer.
  11-21              (4)  Each insurer has the option of providing a premium
  11-22  quote on the same coverage basis for which it normally provides
  11-23  insurance in this state using its own underwriting guidelines and
  11-24  the rates determined in accordance with the provisions of this code
  11-25  applicable to each insurer.
  11-26              (5)  An insurer shall make its premium quote, indicate
  11-27  its refusal to quote, or make a request for additional time within
   12-1  30 days of receiving the application.
   12-2              (6)  If a premium quote is made, the applicant's agent
   12-3  shall be notified by the program so that the agent may complete the
   12-4  placement of the insurance, if the applicant accepts the coverage
   12-5  at the premium quoted.
   12-6              (7)  An applicant is not eligible to apply to the
   12-7  program again for the same coverage for the same risk if the
   12-8  insurer cancels or nonrenews coverage for nonpayment of premium or
   12-9  submission of a fraudulent claim.
  12-10              (8)  The plan of operation shall contain criteria under
  12-11  which the commissioner may make insurer participation in the
  12-12  program mandatory.
  12-13        (c)  The plan of operation may provide for subcommittees that
  12-14  are necessary to carry out the functions of a program.
  12-15        Sec. 3.  Executive Committee.  (a)  The program shall be
  12-16  administered by an executive committee composed of nine members
  12-17  appointed by the commissioner:
  12-18              (1)  five members who represent the interests of
  12-19  insurers;
  12-20              (2)  two public members; and
  12-21              (3)  two members who are licensed local recording
  12-22  agents.  <An executive committee shall administer each market
  12-23  assistance program.>
  12-24        (b)  To be eligible to serve on the executive committee as a
  12-25  representative of insurers, a person must be a full-time employee
  12-26  of an authorized insurer.  <The board shall appoint the members of
  12-27  an executive committee.>
   13-1        (c)  The commissioner or the commissioner's designated
   13-2  representative shall be an ex officio member of the executive
   13-3  committee and must be present in every meeting of the executive
   13-4  committee.  <At least one member of the board must be designated a
   13-5  member of the executive committee.>
   13-6        <(d)  The plan of operation may provide for subcommittees
   13-7  that are necessary to carry out the functions of a program.>
   13-8        <(e)  A representative of the board must be present in every
   13-9  meeting of an executive committee or subcommittee.>
  13-10        Sec. 4.  Agents.  (a)  Notwithstanding any other provision of
  13-11  law, a market assistance program may have two categories of agents:
  13-12              (1)  an originating agent; and
  13-13              (2)  an issuing agent.
  13-14        (b)  An originating agent may complete an application for
  13-15  insurance on behalf of an insured for submission to the program
  13-16  without being appointed to represent the ultimate insurer.
  13-17        (c)  An issuing agent must be appointed to represent the
  13-18  ultimate insurer and shall perform all of the customary duties of a
  13-19  local recording agent including but not limited to the following:
  13-20              (1)  signing, executing, and delivering policies of
  13-21  insurance;
  13-22              (2)  maintaining a record of the business;
  13-23              (3)  examining and inspecting the risk; and
  13-24              (4)  receiving and collecting premiums.
  13-25        (d)  An originating agent shall <may> share commissions, as
  13-26  required by the market assistance program plan of operation
  13-27  <negotiated on an individual basis>, with the issuing agent if the
   14-1  originating agent holds a license as either a local recording agent
   14-2  or as a salaried representative for those companies whose plan of
   14-3  operation does not contemplate the use of local recording agents.
   14-4        (e)  The originating and issuing agent may be the same
   14-5  person.  If the originating agent and the issuing agent are not the
   14-6  same person, the originating agent may not be held to be the agent
   14-7  of the insurer unless there is an appointment as specified by
   14-8  Article 21.14 of this code.
   14-9        (f)  The program may not share in commissions.
  14-10        <Sec. 5.  FEES.  The plan of operation may provide reasonable
  14-11  application fees to be used to cover expenses of the program.
  14-12  These fees must be maintained in a separate account under the
  14-13  control of a fiscal agent designated in the plan of operation.>
  14-14        Sec. 5 <6>.  Confidentiality.  (a)  The Texas Department of
  14-15  Insurance <State Board of Insurance> shall maintain as confidential
  14-16  all application files and related documents received under this
  14-17  article.
  14-18        (b)  In maintaining confidentiality, the Texas Department of
  14-19  Insurance <State Board of Insurance> shall not permit the files and
  14-20  related documents to be made available to the public except that
  14-21  the Texas Department of Insurance <State Board of Insurance> shall
  14-22  allow access to those files and related documents to originating or
  14-23  issuing agents or to an applicant for his own file or to an insurer
  14-24  who agrees to insure the applicant.
  14-25        Sec. 6.  PERIODIC REVIEW.  (a)  Information concerning the
  14-26  number and type of applications received and placed, and such other
  14-27  information, as deemed appropriate by the executive committee or
   15-1  the commissioner, shall be collected.
   15-2        (b)  The executive committee shall review the demand for and
   15-3  performance of the program six months following the approval of the
   15-4  plan of operation, and at least annually thereafter, as necessary.
   15-5  After each such review the executive committee shall report to the
   15-6  commissioner as to the necessity for continued operation of the
   15-7  voluntary program, need for establishment of a mandatory program,
   15-8  or the need for establishment of a FAIR Plan pursuant to Article
   15-9  21.49A of this code, or other recommendations the executive
  15-10  committee deems appropriate.  The program shall be terminated only
  15-11  upon approval of the commissioner.
  15-12        Sec. 7.  IMMUNITY FROM LIABILITY.  The program, executive
  15-13  committee members, and participating insurers and agents are not
  15-14  personally liable for any act performed in good faith within the
  15-15  scope of the person's authority as determined under this article or
  15-16  for damages occasioned by his or her official acts or omissions
  15-17  except for an act or omission that is corrupt or malicious.
  15-18        Sec. 8.  RULEMAKING AUTHORITY.  The commissioner is
  15-19  authorized to adopt rules in addition to the plan of operation that
  15-20  are appropriate to accomplish the purposes of this article.
  15-21        SECTION 7.  Subchapter E, Chapter 21, Insurance Code, is
  15-22  amended by adding Article 21.49A, to read as follows:
  15-23        Art. 21.49A.  FAIR PLAN (FAIR ACCESS TO INSURANCE
  15-24  REQUIREMENTS) ACT
  15-25        Sec. 1.  AUTHORITY; PURPOSE.  (a)  If the commissioner
  15-26  determines, after a public hearing, that in all or any part of the
  15-27  state residential property insurance is not reasonably available in
   16-1  the voluntary market to a substantial number of insurable risks and
   16-2  that at least 50 percent of the applicants to the residential
   16-3  property market assistance program who are qualified under the plan
   16-4  of operation, after the commissioner has made insurer participation
   16-5  mandatory under the plan of operation, have not been placed with an
   16-6  insurer in the previous 12-month period, the commissioner may
   16-7  establish a FAIR (Fair Access to Insurance Requirements) Plan to
   16-8  deliver residential property insurance to citizens of this state in
   16-9  underserved areas, which shall be determined and designated by the
  16-10  commissioner by rule.  Each insurer, as defined herein, as a
  16-11  condition of its authority to transact residential property
  16-12  insurance in this state, shall participate in the FAIR Plan
  16-13  Association in accordance with this Act.
  16-14        (b)  The FAIR Plan may not provide windstorm and hail
  16-15  insurance coverage for a risk eligible for that coverage under
  16-16  Article 21.49 of this code.
  16-17        Sec. 2.  DEFINITIONS.  (1)  "FAIR Plan Association" or
  16-18  "association" means a nonprofit association established pursuant to
  16-19  this Act to develop and administer a program to provide residential
  16-20  property insurance in designated underserved areas in this state.
  16-21              (2)  "Insurer" means any licensed insurer writing
  16-22  property and casualty insurance in this state, including:
  16-23                    (A)  a county mutual insurance company;
  16-24                    (B)  a Lloyd's plan company; and
  16-25                    (C)  a reciprocal or interinsurance exchange.
  16-26              (3)  "Residential property insurance" means the
  16-27  coverage against direct loss to real or tangible personal property
   17-1  at a fixed location provided in a homeowners policy, residential
   17-2  fire and allied lines policy, or farm and ranch owners policy.
   17-3              (4)  "Inspection bureau" means the organization or
   17-4  organizations designated by the FAIR Plan Association with the
   17-5  approval of the commissioner to make inspections to determine the
   17-6  condition of the properties for which residential property
   17-7  insurance is sought and to perform such other duties as may be
   17-8  authorized by the FAIR Plan Association or the commissioner.  The
   17-9  manner and scope of the inspection and evaluation report for
  17-10  residential property shall be prescribed by the association
  17-11  pursuant to the plan of operation.
  17-12              (5)  "Net direct premiums" means gross direct written
  17-13  premiums less return premiums upon canceled contracts (irrespective
  17-14  of reinsurance assumed or ceded) written on residential property
  17-15  pursuant to this Act.
  17-16              (6)  "Underserved area(s)" means area(s) designated as
  17-17  underserved by the commissioner by rule.  In determining which
  17-18  areas will be designated as underserved, the commissioner shall
  17-19  consider the factors specified in Section 1, Article 5.35-3, of
  17-20  this code.
  17-21        Sec. 3.  GOVERNING COMMITTEE; PLAN OF OPERATION.  (a)  The
  17-22  FAIR Plan shall be administered by the governing committee of the
  17-23  association pursuant to a plan of operation.  Subject to the
  17-24  approval of the commissioner, the governing committee shall develop
  17-25  the plan of operation and propose amendments thereto.  The plan of
  17-26  operation and any amendments thereto shall be adopted by the
  17-27  commissioner by rule.  The governing committee may on its own
   18-1  initiative or at the request of the commissioner amend the plan of
   18-2  operation.
   18-3        (b)  The governing committee shall be composed of nine
   18-4  members appointed by the commissioner as follows:
   18-5              (1)  five members who represent the interests of
   18-6  insurers;
   18-7              (2)  two public members; and
   18-8              (3)  two members who are licensed local recording
   18-9  agents.
  18-10        (c)  The commissioner or the commissioner's designated
  18-11  representative from within the Texas Department of Insurance shall
  18-12  serve as an ex officio member.
  18-13        (d)  To be eligible to serve on the governing committee as a
  18-14  representative of insurers, a person must be a full-time employee
  18-15  of an authorized insurer.
  18-16        (e)  The plan of operation shall provide:
  18-17              (1)  for establishment of a FAIR Plan Association for
  18-18  the issuing of residential property insurance pursuant to this Act
  18-19  and the distribution of the losses and the expenses in the writing
  18-20  of such insurance in this state;
  18-21              (2)  that all insurers licensed to write property
  18-22  insurance and writing residential property insurance shall
  18-23  participate in the writings, expenses, profits, and losses of the
  18-24  association, in the proportion that the net direct premiums, of
  18-25  each participating insurer, written in this state during the
  18-26  preceding calendar year, bears to the aggregate net direct premium
  18-27  written in this state by all participating insurers; such
   19-1  information shall be determined in accordance with the residential
   19-2  property statistical plan adopted by the commissioner;
   19-3              (3)  that a participating insurer is entitled to
   19-4  receive credit for similar insurance voluntarily written in a
   19-5  designated underserved area and its participation in the writings
   19-6  in the association shall be reduced in accordance with the
   19-7  provisions of the plan of operation;
   19-8              (4)  for the immediate binding of eligible risks; for
   19-9  the use of premium installment payment plans, adequate marketing,
  19-10  and service facilities; and for the establishment of reasonable
  19-11  service standards;
  19-12              (5)  procedures for efficient, economical, fair, and
  19-13  nondiscriminatory administration of the FAIR Plan Association;
  19-14              (6)  procedures for determining the net level of
  19-15  participation required for each insurer in the FAIR Plan
  19-16  Association;
  19-17              (7)  for the use of deductibles and other underwriting
  19-18  devices and for assessment of all members in amounts sufficient to
  19-19  operate the association; and establish maximum limits of liability
  19-20  to be placed through the program; and commissions to be paid to the
  19-21  licensed agents submitting applications;
  19-22              (8)  that the association issue policies in its own
  19-23  name;
  19-24              (9)  reasonable underwriting standards for determining
  19-25  insurability of the risk;
  19-26              (10)  procedures for the assumption and ceding of
  19-27  reinsurance by the association; and
   20-1              (11)  any other procedures or operational matters
   20-2  deemed necessary by the governing committee or the commissioner.
   20-3        Sec. 4.  FAIR PLAN ASSOCIATION.  Pursuant to procedures and
   20-4  requirements set forth in the plan of operation, the FAIR Plan
   20-5  Association (association) shall develop and administer a program
   20-6  for participation by all insurers licensed to write property
   20-7  insurance in this state and writing residential property insurance
   20-8  in this state.  The association shall make residential property
   20-9  insurance available to applicants in underserved areas whose
  20-10  property is insurable in accordance with reasonable underwriting
  20-11  standards but who, after diligent efforts, are unable to procure
  20-12  such insurance through the voluntary market, as evidenced by two
  20-13  declinations from insurers licensed to write and actually writing
  20-14  residential property insurance in the state.
  20-15        Sec. 5.  POWERS OF THE ASSOCIATION; CENTRALIZED OPERATIONS
  20-16  AUTHORIZED.  (a)  The association is authorized, for FAIR Plan
  20-17  purposes only, to issue policies of insurance and endorsements
  20-18  thereto in its own name or a trade name duly adopted for that
  20-19  purpose, and to act on behalf of all participating insurers in
  20-20  connection with said policies and otherwise in any manner necessary
  20-21  to accomplish the purposes of this Act, including but not limited
  20-22  to issuance of policies, collection of premiums, issuance of
  20-23  cancellations, and payment of commissions, losses, judgments, and
  20-24  expenses.
  20-25        (b)  The participating insurers shall be liable to the
  20-26  association as provided in this Act and the plan of operation for
  20-27  the expenses and liabilities so incurred by the association, and
   21-1  the association shall make assessments against the participating
   21-2  insurers as required to meet such expenses and liabilities.  In
   21-3  connection with any policy issued by the association:
   21-4              (1)  service of any notice, proof of loss, legal
   21-5  process, or other communication with respect to the policy shall be
   21-6  made upon the association; and
   21-7              (2)  any action by the insured constituting a claim
   21-8  under the policy shall be brought only against the association, and
   21-9  the association shall be the proper party for all purposes in any
  21-10  action brought under or in connection with any such policy.  The
  21-11  foregoing requirements shall be set forth in any policy issued by
  21-12  the association and the form and content of any such policy shall
  21-13  be subject to the approval of the commissioner.
  21-14        (c)  The association is authorized to assume and cede
  21-15  reinsurance in conformity with the plan of operation.
  21-16        (d)  Each insurer must participate in the writings, expenses,
  21-17  profits, and losses of the association in the proportion that its
  21-18  net direct premiums written bear to the aggregate net direct
  21-19  premiums written by all insurers.
  21-20        Sec. 6.  PROPERTY INSPECTION; FAIR PLAN PROCEDURE.  (a)  Any
  21-21  person having an insurable interest in real or tangible personal
  21-22  property at a fixed location in an underserved area who, after
  21-23  diligent effort has been unable to obtain residential property
  21-24  insurance, as evidenced by two current declinations from insurers
  21-25  licensed to write property insurance and actually writing
  21-26  residential property insurance in the state, is entitled upon
  21-27  application to the association to an inspection and evaluation of
   22-1  the property by representatives of the inspection bureau.
   22-2        (b)  Applications may be made on behalf of the applicant by a
   22-3  licensed local recording agent and shall be submitted on forms
   22-4  prescribed by the association.
   22-5        (c)  Promptly after the request for inspection is received,
   22-6  an inspection must be made and an inspection report filed with the
   22-7  association and made available to the applicant upon request.
   22-8        (d)  If the inspection bureau finds that the residential
   22-9  property meets the reasonable underwriting standards established in
  22-10  the plan of operation, the applicant shall be so informed in
  22-11  writing and a policy or binder shall be issued by the association.
  22-12  If the residential property does not meet the criteria, the
  22-13  applicant shall be informed, in writing, of the reasons for the
  22-14  failure of the residential property to meet the criteria.
  22-15        (e)  If, at any time, the applicant makes improvements in the
  22-16  residential property or its condition which the applicant believes
  22-17  are sufficient to make the residential property meet the criteria,
  22-18  a representative of the inspection bureau shall reinspect the
  22-19  residential property upon request.  In any case, the applicant for
  22-20  residential property insurance shall be eligible for one
  22-21  reinspection any time beginning 60 days after the initial FAIR Plan
  22-22  inspection.  If upon reinspection the residential property meets
  22-23  the reasonable underwriting standards established in the plan of
  22-24  operation, the applicant shall be so informed in writing and a
  22-25  policy or binder shall be issued by the association.
  22-26        Sec. 7.  APPROVAL OF RATES.  The association shall file with
  22-27  the commissioner for approval the proposed rates and supplemental
   23-1  rate information to be used in connection with the issuance of
   23-2  policies or endorsements.  Rates shall be set in an amount
   23-3  sufficient to carry all claims to maturity and to meet the expenses
   23-4  incurred in the writing and servicing of the business.  Within 60
   23-5  days of the filing of the proposed rates, the commissioner shall
   23-6  enter an order either approving or disapproving, in whole or in
   23-7  part, the proposed rates.  The commissioner may, upon notice to the
   23-8  association, extend the period for entering an order under this
   23-9  section an additional 30 days.  No such policies or endorsements
  23-10  shall be issued until such time as the commissioner approves the
  23-11  rates to be applied to the policy or endorsement.  An order
  23-12  disapproving a rate shall state the grounds for the disapproval and
  23-13  the findings in support thereof.
  23-14        Sec. 8.  APPEALS; JUDICIAL REVIEW.  (a)  Any applicant or
  23-15  affected insurer has the right of appeal to the association.  A
  23-16  decision of the association may be appealed to the commissioner
  23-17  within 30 days after such decision.
  23-18        (b)  All orders or decisions of the commissioner made
  23-19  pursuant to this Act are subject to judicial review in accordance
  23-20  with Article 1.04 of this code.
  23-21        Sec. 9.  IMMUNITY FROM LIABILITY.  There is no liability on
  23-22  the part of, and no cause of action against insurers, the
  23-23  inspection bureau, the association, the governing committee, their
  23-24  agents or employees, or the commissioner or the commissioner's
  23-25  authorized representatives, with respect to any inspections
  23-26  required to be undertaken by this Act or for any acts or omissions
  23-27  in connection therewith, or for any statements made in any report
   24-1  and communication concerning the insurability of the property, or
   24-2  in the findings required by the provisions of this Act, or at the
   24-3  hearings conducted in connection with such inspections.
   24-4        Sec. 10.  INSOLVENCY.  In the event any participating insurer
   24-5  fails, by reason of insolvency, to pay any assessment, the
   24-6  association shall cause the reimbursement ratios to be immediately
   24-7  recalculated, excluding therefrom the amount of the insolvent
   24-8  insurer's assessment determined by the commissioner to be
   24-9  uncollectible, so that such uncollectible amount is, in effect,
  24-10  assumed and redistributed among the remaining participating
  24-11  insurers.
  24-12        Sec. 11.  ASSESSMENTS AND PREMIUM SURCHARGES.  Should a
  24-13  deficit occur in the association, the association shall assess
  24-14  participating insurers in accordance with this section and each
  24-15  insurer may charge a premium surcharge on every property insurance
  24-16  policy issued by it insuring property in this state, the effective
  24-17  date of which policy is within the three-year period commencing 90
  24-18  days after the date of assessment by the association.  The amount
  24-19  of the surcharge shall be calculated on the basis of a uniform
  24-20  percentage of the premium on such policies equal to one-third of
  24-21  the ratio of the amount of an insurer's assessment to the amount of
  24-22  its direct earned premiums as reported in its financial statement
  24-23  to the department for the calendar year immediately preceding the
  24-24  year in which the assessment is made, such that over the period of
  24-25  three years the aggregate of all such surcharges by an insurer
  24-26  shall be equal to the amount of the assessment of such insurer.
  24-27  The minimum surcharges on a policy may be $1; all surcharges may be
   25-1  rounded to the nearest dollar.
   25-2        Sec. 12.  SANCTIONS.  If the association, inspection bureau,
   25-3  or participating insurer is found to be in violation of or in
   25-4  failure to comply with this Act, each entity shall be subject to
   25-5  the sanctions authorized in Article 1.10 of this code, including
   25-6  administrative penalties authorized under Article 1.10E of this
   25-7  code.  The commissioner may also utilize any other disciplinary
   25-8  procedures authorized by this code, including the cease and desist
   25-9  procedures authorized by Article 1.10A of this code.
  25-10        Sec. 13.  ANNUAL REPORT.  The association shall compile a
  25-11  calendar year annual operating report and submit such annual report
  25-12  to the commissioner on or before March 31 of the following calendar
  25-13  year.  This annual report shall be a matter of public record.
  25-14        Sec. 14.  POWERS OF THE COMMISSIONER.  (a)  In addition to
  25-15  any powers conferred upon the commissioner by this or any other
  25-16  law, the commissioner is charged with the authority to supervise
  25-17  the association and the inspection bureau.  In addition, the
  25-18  commissioner has the power:
  25-19              (1)  to examine the operation of the association and
  25-20  the inspection bureau through free access to all the books,
  25-21  records, files, papers and documents relating to their operation
  25-22  and may summon, qualify, and examine as witnesses all persons
  25-23  having knowledge of such operations, including the governing
  25-24  committee, officers, or employees thereof;
  25-25              (2)  to do all things necessary to enable the State of
  25-26  Texas and the association to fully participate in any federal
  25-27  program of reinsurance which may be enacted for purposes similar to
   26-1  the purposes of this Act;
   26-2              (3)  to require such reports from the association
   26-3  concerning risks insured by the association pursuant to this Act as
   26-4  may be deemed necessary; and
   26-5              (4)  to adopt policy forms, endorsements, rates, and
   26-6  rating and rule manuals for use by the association.
   26-7        SECTION 8.  Subchapter E, Chapter 21, Insurance Code, is
   26-8  amended by adding Article 21.49B to read as follows:
   26-9        Art. 21.49B.  PROPERTY AND CASUALTY INSURANCE INITIATIVES
  26-10  TASK FORCE.  The commissioner may establish a task force to study
  26-11  the utility and feasibility of instituting various property and
  26-12  casualty insurance initiatives in this state.  The initiatives to
  26-13  be studied may include, but are not limited to:
  26-14              (1)  possible coordination with the Texas Department of
  26-15  Commerce to make certain property and casualty insurance an
  26-16  enterprise zone program pursuant to Chapter 2303, Government Code;
  26-17              (2)  possible coordination with Neighborhood Housing
  26-18  Service (NHS) Programs to establish voluntary NHS-Insurance
  26-19  Industry Partnerships;
  26-20              (3)  possible insurance agent programs to increase
  26-21  minority agency access to standard insurance companies, including
  26-22  minority intern programs with insurance companies; and
  26-23              (4)  possible tax incentives for insurance written in
  26-24  underserved areas.
  26-25        SECTION 9.  Article 21.53B, Insurance Code, is amended by
  26-26  adding Subsection (c) to read as follows:
  26-27        (c)  The commissioner shall have all necessary authority to
   27-1  enforce this section.  An aggrieved party may ask the commissioner
   27-2  to conduct any investigation, review, hearing, or other proceeding
   27-3  to determine compliance with this section.  The commissioner shall
   27-4  take all reasonable steps, including the issuance of orders and the
   27-5  assessment of penalties, to ensure compliance with this section.
   27-6        SECTION 10.  Articles 21.21-3 and 21.21-5, Insurance Code,
   27-7  are repealed.
   27-8        SECTION 11.  Article 21.21-7, Insurance Code, as added by
   27-9  this Act, applies only to a health insurance policy, contract,
  27-10  agreement, or evidence of coverage that is delivered, issued for
  27-11  delivery, or renewed on or after January 1, 1996.  A policy,
  27-12  contract, agreement, or evidence of coverage that is delivered,
  27-13  issued for delivery, or renewed before January 1, 1996, is governed
  27-14  by the law as it existed immediately before the effective date of
  27-15  this Act, and that law is continued in effect for that purpose.
  27-16        SECTION 12.  The importance of this legislation and the
  27-17  crowded condition of the calendars in both houses create an
  27-18  emergency and an imperative public necessity that the
  27-19  constitutional rule requiring bills to be read on three several
  27-20  days in each house be suspended, and this rule is hereby suspended,
  27-21  and that this Act take effect and be in force from and after its
  27-22  passage, and it is so enacted.