H.B. No. 1367
    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.
   2-27        Sec. 4.  EXCEPTIONS.  (a)  A legal entity engaged in the
    3-1  business of insurance as specified in Section 2 of this article is
    3-2  not in violation of the prohibited acts defined in or determined
    3-3  pursuant to Sections 3(b) and 3(c) of this article if the refusal
    3-4  to insure; refusal to continue to insure; the limiting of the
    3-5  amount, extent, or kind of coverage; or the charging of an
    3-6  individual a different rate for the same coverage is based upon
    3-7  sound underwriting or actuarial principles reasonably related to
    3-8  actual or anticipated loss experience.
    3-9        (b)  A legal entity engaged in the business of insurance as
   3-10  specified in Section 2 of this article is not in violation of the
   3-11  prohibited acts defined in or determined pursuant to Section 3 of
   3-12  this article if the entity provides insurance coverage only to
   3-13  persons who are required to obtain or maintain membership or
   3-14  qualification for membership in a club, group, or organization, so
   3-15  long as membership or membership qualifications are uniform
   3-16  requirements of the insurer as a condition of providing insurance,
   3-17  and are applied uniformly throughout this state, and the entity
   3-18  does not engage in any of the prohibited acts defined in or
   3-19  determined pursuant to Section 3 of this article for persons who
   3-20  are qualified members, except as otherwise provided in this
   3-21  section.
   3-22        (c)  A legal entity engaged in the business of insurance as
   3-23  specified in Section 2 of this article is not in violation of the
   3-24  prohibited acts defined in or determined pursuant to Section 3 of
   3-25  this article if the refusal to insure; refusal to continue to
   3-26  insure; the limiting of the amount, extent, or kind of coverage; or
   3-27  the charging of an individual a different rate for the same
    4-1  coverage is required or authorized by law or regulatory mandate.
    4-2        (d)  A legal entity in the business of insurance specified in
    4-3  Section 2 of this article is not in violation of the prohibited
    4-4  acts defined in or determined pursuant to Section 3 of this article
    4-5  because different premiums result for policyholders with like
    4-6  expense factors but different loss exposures under a mass marketing
    4-7  plan.  The commissioner shall by rule define selected groups
    4-8  eligible for issuance of policies under mass marketing plan.
    4-9        (e)  In this article, sound actuarial principles for purposes
   4-10  of title insurance means based on an examination of title or
   4-11  closing of the transaction.  This article shall not prevent
   4-12  requirements to provide title insurance coverage relating to
   4-13  possible community, homestead, or other martial rights in land.
   4-14        Sec. 5.  SANCTIONS.  Any legal entity engaged in the business
   4-15  of insurance in this state found to be in violation of or failing
   4-16  to comply with this article is subject to the sanctions authorized
   4-17  in Article 1.10 of this code, including administrative penalties
   4-18  authorized under Article 1.10E of this code.  The commissioner may
   4-19  also utilize the cease and desist procedures authorized by Article
   4-20  1.10A of this code.
   4-21        SECTION 2.  Subchapter B, Chapter 21, Insurance Code, is
   4-22  amended by adding Article 21.21-7 to read as follows:
   4-23        Art. 21.21-7.  PROHIBITION ON USE BY HEALTH INSURERS OF
   4-24  UNDERWRITING GUIDELINES BASED ON FLUENCY IN ENGLISH
   4-25        Sec. 1.  DEFINITIONS.  In this article:
   4-26              (1)  "Health insurer" means any insurance company,
   4-27  group hospital service corporation, or health maintenance
    5-1  organization that delivers or issues for delivery an individual,
    5-2  group, blanket, or franchise insurance policy or insurance
    5-3  agreement, a group hospital service contract, or an evidence of
    5-4  coverage that provides health insurance or health care benefits.
    5-5  Without limiting the foregoing, the definition includes insurance
    5-6  companies, associations, and organizations which come within the
    5-7  purview of the following designated chapters of the Insurance Code:
    5-8  Chapter 3, pertaining to life, health, and accident insurance
    5-9  companies; Chapter 8, pertaining to general casualty companies;
   5-10  Chapter 10, pertaining to fraternal benefit societies; Chapter 11,
   5-11  pertaining to mutual life insurance companies; Chapter 12,
   5-12  pertaining to local mutual aid associations; Chapters 13 and 14,
   5-13  pertaining to statewide mutual assessment companies, mutual
   5-14  assessment companies, and mutual assessment life, health, and
   5-15  accident associations; Chapter 15, pertaining to mutual insurance
   5-16  companies writing other than life insurance; Chapter 18, pertaining
   5-17  to underwriters making insurance on the Lloyd's plan; Chapter 19,
   5-18  pertaining to reciprocal exchanges; and Chapter 22, pertaining to
   5-19  stipulated premium insurance companies.
   5-20              (2)  "Underwriting guideline" means a rule, standard,
   5-21  marketing decision, or practice, whether written, oral, or
   5-22  electronic, that is used by a health insurer or an agent of a
   5-23  health insurer to examine, bind, accept, reject, renew, nonrenew,
   5-24  cancel, charge a different rate for the same coverage, or limit
   5-25  coverage(s) made available to classes of consumers of insurance.
   5-26        Sec. 2.  APPLICATION.  This article applies to any health
   5-27  insurance policy, agreement, contract, or evidence of coverage
    6-1  delivered or issued for delivery by a health insurer.
    6-2        Sec. 3.  PROHIBITION.  A health insurer may not use an
    6-3  underwriting guideline that is based on the ability of an insured
    6-4  or an applicant for insurance coverage or health care benefits to
    6-5  speak English fluently or to be literate in the English language.
    6-6  The applicant has the burden of proof to establish a violation of
    6-7  this article.
    6-8        SECTION 3.  Subchapter C, Chapter 5, Insurance Code, is
    6-9  amended by adding Article 5.35-3 to read as follows:
   6-10        Art. 5.35-3.  PROPERTY PROTECTION PROGRAM FOR UNDERSERVED
   6-11  AREAS
   6-12        Sec. 1.  (a)  By rule the commissioner may determine and
   6-13  designate areas as underserved areas for residential property
   6-14  insurance.  In determining which areas will be designated as
   6-15  underserved, the commissioner shall consider whether residential
   6-16  property insurance is not reasonably available to a substantial
   6-17  number of owners of insurable property in the underserved area and
   6-18  any other relevant factors as determined by the commissioner.  For
   6-19  purposes of this article, residential property insurance means
   6-20  insurance coverage against loss to real or tangible personal
   6-21  property at a fixed location provided in a homeowners policy,
   6-22  residential fire and allied lines policy, or farm and ranch owners
   6-23  policy.
   6-24        (b)  The property protection program for underserved areas
   6-25  operated under this article may not include windstorm and hail
   6-26  insurance coverage for a risk eligible for that coverage under
   6-27  Article 21.49 of this code.
    7-1        Sec. 2.  All insurers authorized to write property or
    7-2  casualty insurance in this state and writing residential property
    7-3  insurance in this state, including those insurers licensed under
    7-4  Chapters 18 and 19 of this code, are authorized to write insurance
    7-5  on the forms adopted under this article.
    7-6        Sec. 3.  The commissioner shall adopt policy forms for
    7-7  residential property insurance specifically for use in the
    7-8  designated underserved areas.  The policy forms adopted pursuant to
    7-9  this article shall include a basic policy covering fire and allied
   7-10  lines perils with endorsements providing additional coverages at
   7-11  the option of the insured.  The adopted policy forms may be used by
   7-12  all insurers writing insurance in underserved areas.
   7-13        Sec. 4.  The rates for residential property insurance subject
   7-14  to this article shall be determined in accordance with the
   7-15  provisions of this code applicable to each insurer.
   7-16        Sec. 5.  In the designated underserved areas, all insurers
   7-17  specified in Section 2 of this article shall make available to
   7-18  their agents and all agents shall offer all insureds the full range
   7-19  of coverages promulgated under this article subject to the
   7-20  applicable rates and underwriting guidelines of each such insurer.
   7-21        Sec. 6.  The premium on all policies written pursuant to this
   7-22  article will not be subject to tax under Article 4.10 of this code.
   7-23        Sec. 7.  The premium on all policies written pursuant to this
   7-24  article will not be considered net direct premiums under the
   7-25  provisions of Section 3(g), Article 21.49, of this code.
   7-26        SECTION 4.  Subchapter E, Chapter 21, Insurance Code, is
   7-27  amended by adding Article 21.79 to read as follows:
    8-1        Art. 21.79.  GROUP INSURANCE OF PRIVATE PASSENGER AUTO AND
    8-2  RESIDENTIAL PROPERTY INSURANCE IN UNDERSERVED AREAS
    8-3        Sec. 1.  (a)  By rule the commissioner may determine and
    8-4  designate areas as underserved areas for private passenger auto
    8-5  insurance or residential property insurance.  In determining which
    8-6  areas will be designated as underserved, the commissioner shall
    8-7  consider whether such insurance is not reasonably available to a
    8-8  substantial number of insurable risks and the availability of
    8-9  insurance and any other relevant factors as determined by the
   8-10  commissioner.  For purposes of this article, residential property
   8-11  insurance means insurance against loss to real or tangible personal
   8-12  property at a fixed location provided in a homeowners policy,
   8-13  residential fire and allied lines policy, or farm and ranch owners
   8-14  policy.
   8-15        (b)  Group insurance provided under this article may not
   8-16  include windstorm and hail insurance coverage for a risk eligible
   8-17  for that coverage under Article 21.49 of this code.
   8-18        Sec. 2.  All insurers authorized to write property or
   8-19  casualty insurance in this state and writing private passenger auto
   8-20  insurance or residential property insurance in this state,
   8-21  including insurers licensed under Chapters 18 and 19 of this code,
   8-22  are authorized to write such insurance on a group basis in
   8-23  underserved areas as designated by the commissioner.
   8-24        Sec. 3.  A group may be formed solely for the purpose of
   8-25  purchasing insurance subject to this article.
   8-26        Sec. 4.  All policy forms and certificates for use in
   8-27  underserved areas as designated by the commissioner shall be
    9-1  adopted by the commissioner.
    9-2        Sec. 5.  The rates for coverage shall be subject to the
    9-3  applicable statutory provisions relating to the respective
    9-4  insurers.
    9-5        Sec. 6.  The commissioner may adopt any other rules that are
    9-6  appropriate and necessary to implement this article.
    9-7        SECTION 5.  Article 21.49-12, Insurance Code, is amended to
    9-8  read as follows:
    9-9        Art. 21.49-12.  MARKET ASSISTANCE PROGRAMS
   9-10        Sec. 1.  CREATION OF PROGRAMS.  (a)  The commissioner shall
   9-11  <State Board of Insurance may> establish a voluntary mechanism to
   9-12  be called a market assistance program to assist insureds in Texas
   9-13  in obtaining residential property <liability> insurance coverage in
   9-14  underserved areas, which shall be determined and designated by the
   9-15  commissioner by rule using the standards specified in Section 1,
   9-16  Article 5.35-3, of this code <where it has been shown not to be
   9-17  readily available>.  For purposes of this article, residential
   9-18  property insurance means insurance against loss to real or tangible
   9-19  personal property at a fixed location provided in a homeowners
   9-20  policy, residential fire and allied lines policy, or farm and ranch
   9-21  owners policy.  The types of risks to be assisted under the <each>
   9-22  market assistance program will be established by the commissioner
   9-23  <board>.  A market assistance program division shall be established
   9-24  in and operated by the Texas Department of Insurance.
   9-25        (b)  The market assistance program established under this
   9-26  article may not provide assistance with respect to windstorm and
   9-27  hail insurance coverage for a risk eligible for that coverage under
   10-1  Article 21.49 of this code.
   10-2        Sec. 2.  PLAN OF OPERATION.  (a)  The executive committee
   10-3  shall develop and submit the plan of operation to the commissioner
   10-4  for adoption by rule and shall be available to advise and consult
   10-5  with the commissioner with regard to the administration of the
   10-6  program.  If the executive committee fails to submit a suitable
   10-7  plan of operation within 180 days following the effective date of
   10-8  this article, or if at any time thereafter the executive committee
   10-9  fails to submit suitable amendments to the plan of operation, the
  10-10  department shall develop and submit to the commissioner a plan of
  10-11  operation and thereafter any amendments thereto, and the
  10-12  commissioner shall, after notice and hearing, adopt by rule the
  10-13  plan of operation developed by the department or any amendments to
  10-14  the plan of operation <Each market assistance program shall be
  10-15  administered under a plan of operation promulgated by the board>.
  10-16  The <Each> plan of operation shall indicate types of coverage,
  10-17  policy forms and terms, application forms, eligibility, and overall
  10-18  operation of the program.  All insurers licensed to write property
  10-19  or casualty insurance and actually writing residential property
  10-20  insurance in this state, including Lloyds, reciprocals, or
  10-21  interinsurance exchanges, may <The board may require an insurer to>
  10-22  participate in the program unless insurer participation is made
  10-23  mandatory by the commissioner based on criteria provided in the
  10-24  plan of operation, but the commissioner <board> may not permit an
  10-25  insurer to condition its participation in a manner that is
  10-26  inequitable to the participants.
  10-27        (b)  The plan of operation shall include, but is not limited
   11-1  to, the following provisions:
   11-2              (1)  Applications will be accepted only from agents
   11-3  duly licensed by the Texas Department of Insurance.  Applications
   11-4  from all other sources will be returned for referral to duly
   11-5  licensed agents of the applicant's choice for preparation and
   11-6  resubmission to the program.
   11-7              (2)  Applications for assistance shall be addressed to
   11-8  the Market Assistance Program at the Texas Department of Insurance.
   11-9  Each application must be accompanied by a copy of a current
  11-10  nonrenewal or cancellation notice and a current declination letter
  11-11  from at least one other insurer writing the coverage sought.
  11-12  Applicants not having previous residential property insurance
  11-13  coverage must provide copies of current declination letters from at
  11-14  least two unaffiliated insurers writing the coverage sought.
  11-15              (3)  Each insurer has the right to individually
  11-16  evaluate the risk and apply the rates in accordance with the
  11-17  provisions of this code applicable to each insurer.
  11-18              (4)  Each insurer has the option of providing a premium
  11-19  quote on the same coverage basis for which it normally provides
  11-20  insurance in this state using its own underwriting guidelines and
  11-21  the rates determined in accordance with the provisions of this code
  11-22  applicable to each insurer.
  11-23              (5)  An insurer shall make its premium quote, indicate
  11-24  its refusal to quote, or make a request for additional time within
  11-25  30 days of receiving the application.
  11-26              (6)  If a premium quote is made, the applicant's agent
  11-27  shall be notified by the program so that the agent may complete the
   12-1  placement of the insurance, if the applicant accepts the coverage
   12-2  at the premium quoted.
   12-3              (7)  An applicant is not eligible to apply to the
   12-4  program again for the same coverage for the same risk if the
   12-5  insurer cancels or nonrenews coverage for nonpayment of premium or
   12-6  submission of a fraudulent claim.
   12-7              (8)  The plan of operation shall contain criteria under
   12-8  which the commissioner may make insurer participation in the
   12-9  program mandatory.
  12-10        (c)  The plan of operation may provide for subcommittees that
  12-11  are necessary to carry out the functions of a program.
  12-12        Sec. 3.  EXECUTIVE COMMITTEE.  (a)  The program shall be
  12-13  administered by an executive committee composed of 11 members
  12-14  appointed by the commissioner:
  12-15              (1)  five members who represent the interests of
  12-16  insurers;
  12-17              (2)  four public members; and
  12-18              (3)  two members who are licensed local recording
  12-19  agents.  <An executive committee shall administer each market
  12-20  assistance program.>
  12-21        (b)  To be eligible to serve on the executive committee as a
  12-22  representative of insurers, a person must be a full-time employee
  12-23  of an authorized insurer.  <The board shall appoint the members of
  12-24  an executive committee.>
  12-25        (c)  The commissioner or the commissioner's designated
  12-26  representative shall be an ex officio member of the executive
  12-27  committee and must be present in every meeting of the executive
   13-1  committee.  <At least one member of the board must be designated a
   13-2  member of the executive committee.>
   13-3        <(d)  The plan of operation may provide for subcommittees
   13-4  that are necessary to carry out the functions of a program.>
   13-5        <(e)  A representative of the board must be present in every
   13-6  meeting of an executive committee or subcommittee.>
   13-7        Sec. 4.  AGENTS.  (a)  Notwithstanding any other provision of
   13-8  law, a market assistance program may have two categories of agents:
   13-9              (1)  an originating agent; and
  13-10              (2)  an issuing agent.
  13-11        (b)  An originating agent may complete an application for
  13-12  insurance on behalf of an insured for submission to the program
  13-13  without being appointed to represent the ultimate insurer.
  13-14        (c)  An issuing agent must be appointed to represent the
  13-15  ultimate insurer and shall perform all of the customary duties of a
  13-16  local recording agent including but not limited to the following:
  13-17              (1)  signing, executing, and delivering policies of
  13-18  insurance;
  13-19              (2)  maintaining a record of the business;
  13-20              (3)  examining and inspecting the risk; and
  13-21              (4)  receiving and collecting premiums.
  13-22        (d)  An originating agent shall <may> share commissions, as
  13-23  required by the market assistance program plan of operation
  13-24  <negotiated on an individual basis>, with the issuing agent if the
  13-25  originating agent holds a license as either a local recording agent
  13-26  or as a salaried representative for those companies whose plan of
  13-27  operation does not contemplate the use of local recording agents.
   14-1        (e)  The originating and issuing agent may be the same
   14-2  person.  If the originating agent and the issuing agent are not the
   14-3  same person, the originating agent may not be held to be the agent
   14-4  of the insurer unless there is an appointment as specified by
   14-5  Article 21.14 of this code.
   14-6        (f)  The program may not share in commissions.
   14-7        <Sec. 5.  FEES.  The plan of operation may provide reasonable
   14-8  application fees to be used to cover expenses of the program.
   14-9  These fees must be maintained in a separate account under the
  14-10  control of a fiscal agent designated in the plan of operation.>
  14-11        Sec. 5 <6>.  CONFIDENTIALITY.  (a)  The Texas Department of
  14-12  Insurance <State Board of Insurance> shall maintain as confidential
  14-13  all application files and related documents received under this
  14-14  article.
  14-15        (b)  In maintaining confidentiality, the Texas Department of
  14-16  Insurance <State Board of Insurance> shall not permit the files and
  14-17  related documents to be made available to the public except that
  14-18  the Texas Department of Insurance <State Board of Insurance> shall
  14-19  allow access to those files and related documents to originating or
  14-20  issuing agents or to an applicant for his own file or to an insurer
  14-21  who agrees to insure the applicant.
  14-22        Sec. 6.  PERIODIC REVIEW.  (a)  Information concerning the
  14-23  number and type of applications received and placed, and such other
  14-24  information, as deemed appropriate by the executive committee or
  14-25  the commissioner, shall be collected.
  14-26        (b)  The executive committee shall review the demand for and
  14-27  performance of the program six months following the approval of the
   15-1  plan of operation, and at least annually thereafter, as necessary.
   15-2  After each such review the executive committee shall report to the
   15-3  commissioner as to the necessity for continued operation of the
   15-4  voluntary program, need for establishment of a mandatory program,
   15-5  or the need for establishment of a FAIR Plan pursuant to Article
   15-6  21.49A of this code, or other recommendations the executive
   15-7  committee deems appropriate.  The program shall be terminated only
   15-8  upon approval of the commissioner, but in no event earlier than 48
   15-9  months following the commencement date of the initial plan of
  15-10  operation.
  15-11        Sec. 7.  IMMUNITY FROM LIABILITY.  The program, executive
  15-12  committee members, and participating insurers and agents are not
  15-13  personally liable for any act performed in good faith within the
  15-14  scope of the person's authority as determined under this article or
  15-15  for damages occasioned by his or her official acts or omissions
  15-16  except for an act or omission that is corrupt or malicious.
  15-17        Sec. 8.  RULEMAKING AUTHORITY.  The commissioner is
  15-18  authorized to adopt rules in addition to the plan of operation that
  15-19  are appropriate to accomplish the purposes of this article.
  15-20        SECTION 6.  Subchapter E, Chapter 21, Insurance Code, is
  15-21  amended by adding Article 21.49A to read as follows:
  15-22        Art. 21.49A.  FAIR PLAN (FAIR ACCESS TO INSURANCE
  15-23  REQUIREMENTS) ACT
  15-24        Sec. 1.  AUTHORITY; PURPOSE.  (a)  If the commissioner
  15-25  determines, after a public hearing, that in all or any part of the
  15-26  state residential property insurance is not reasonably available in
  15-27  the voluntary market to a substantial number of insurable risks and
   16-1  that at least 50 percent of the applicants to the residential
   16-2  property market assistance program who are qualified under the plan
   16-3  of operation, after the commissioner has made insurer participation
   16-4  mandatory under the plan of operation, have not been placed with an
   16-5  insurer in the previous 12-month period, the commissioner may
   16-6  establish a FAIR (Fair Access to Insurance Requirements) Plan to
   16-7  deliver residential property insurance to citizens of this state in
   16-8  underserved areas, which shall be determined and designated by the
   16-9  commissioner by rule.  Each insurer, as defined herein, as a
  16-10  condition of its authority to transact residential property
  16-11  insurance in this state, shall participate in the FAIR Plan
  16-12  Association in accordance with this Act.
  16-13        (b)  The FAIR Plan may not provide windstorm and hail
  16-14  insurance coverage for a risk eligible for that coverage under
  16-15  Article 21.49 of this code.
  16-16        Sec. 2.  DEFINITIONS.  (1)  "FAIR Plan Association" or
  16-17  "association" means a nonprofit association established pursuant to
  16-18  this Act to develop and administer a program to provide residential
  16-19  property insurance in designated underserved areas in this state.
  16-20              (2)  "Insurer" means any licensed insurer writing
  16-21  property and casualty insurance in this state, including:
  16-22                    (A)  a Lloyd's plan company; and
  16-23                    (B)  a reciprocal or interinsurance exchange.
  16-24              (3)  "Residential property insurance" means the
  16-25  coverage against loss to real or tangible personal property at a
  16-26  fixed location provided in a homeowners policy, residential fire
  16-27  and allied lines policy, or farm and ranch owners policy.
   17-1              (4)  "Inspection bureau" means the organization or
   17-2  organizations designated by the FAIR Plan Association with the
   17-3  approval of the commissioner to make inspections to determine the
   17-4  condition of the properties for which residential property
   17-5  insurance is sought and to perform such other duties as may be
   17-6  authorized by the FAIR Plan Association or the commissioner.  The
   17-7  manner and scope of the inspection and evaluation report for
   17-8  residential property shall be prescribed by the association
   17-9  pursuant to the plan of operation.
  17-10              (5)  "Net direct premiums" means gross direct written
  17-11  premiums less return premiums upon canceled contracts (irrespective
  17-12  of reinsurance assumed or ceded) written on residential property
  17-13  pursuant to this Act.
  17-14              (6)  "Underserved area(s)" means area(s) designated as
  17-15  underserved by the commissioner by rule.  In determining which
  17-16  areas will be designated as underserved, the commissioner shall
  17-17  consider the factors specified in Section 1, Article 5.35-3, of
  17-18  this code.
  17-19        Sec. 3.  GOVERNING COMMITTEE; PLAN OF OPERATION.  (a)  The
  17-20  FAIR Plan shall be administered by the governing committee of the
  17-21  association pursuant to a plan of operation.  Subject to the
  17-22  approval of the commissioner, the governing committee shall develop
  17-23  the plan of operation and propose amendments thereto.  The plan of
  17-24  operation and any amendments thereto shall be adopted by the
  17-25  commissioner by rule.  The governing committee may on its own
  17-26  initiative or at the request of the commissioner amend the plan of
  17-27  operation.
   18-1        (b)  The governing committee shall be composed of 11 members
   18-2  appointed by the commissioner as follows:
   18-3              (1)  five members who represent the interests of
   18-4  insurers;
   18-5              (2)  four public members; and
   18-6              (3)  two members who are licensed local recording
   18-7  agents.
   18-8        (c)  The commissioner or the commissioner's designated
   18-9  representative from within the Texas Department of Insurance shall
  18-10  serve as an ex officio member.
  18-11        (d)  To be eligible to serve on the governing committee as a
  18-12  representative of insurers, a person must be a full-time employee
  18-13  of an authorized insurer.
  18-14        (e)  The plan of operation shall provide:
  18-15              (1)  for establishment of a FAIR Plan Association for
  18-16  the issuing of residential property insurance pursuant to this Act
  18-17  and the distribution of the losses and the expenses in the writing
  18-18  of such insurance in this state;
  18-19              (2)  that all insurers licensed to write property
  18-20  insurance and writing residential property insurance shall
  18-21  participate in the writings, expenses, profits, and losses of the
  18-22  association, in the proportion that the net direct premiums, of
  18-23  each participating insurer, written in this state during the
  18-24  preceding calendar year, bear to the aggregate net direct premium
  18-25  written in this state by all participating insurers; such
  18-26  information shall be determined in accordance with the residential
  18-27  property statistical plan adopted by the commissioner;
   19-1              (3)  that a participating insurer is entitled to
   19-2  receive credit for similar insurance voluntarily written in a
   19-3  designated underserved area and its participation in the writings
   19-4  in the association shall be reduced in accordance with the
   19-5  provisions of the plan of operation;
   19-6              (4)  for the immediate binding of eligible risks; for
   19-7  the use of premium installment payment plans, adequate marketing,
   19-8  and service facilities; and for the establishment of reasonable
   19-9  service standards;
  19-10              (5)  procedures for efficient, economical, fair, and
  19-11  nondiscriminatory administration of the FAIR Plan Association;
  19-12              (6)  procedures for determining the net level of
  19-13  participation required for each insurer in the FAIR Plan
  19-14  Association;
  19-15              (7)  for the use of deductibles and other underwriting
  19-16  devices and for assessment of all members in amounts sufficient to
  19-17  operate the association; and establish maximum limits of liability
  19-18  to be placed through the program; and commissions to be paid to the
  19-19  licensed agents submitting applications;
  19-20              (8)  that the association issue policies in its own
  19-21  name;
  19-22              (9)  reasonable underwriting standards for determining
  19-23  insurability of the risk;
  19-24              (10)  procedures for the assumption and ceding of
  19-25  reinsurance by the association; and
  19-26              (11)  any other procedures or operational matters
  19-27  deemed necessary by the governing committee or the commissioner.
   20-1        Sec. 4.  FAIR PLAN ASSOCIATION.  Pursuant to procedures and
   20-2  requirements set forth in the plan of operation, the FAIR Plan
   20-3  Association (association) shall develop and administer a program
   20-4  for participation by all insurers licensed to write property
   20-5  insurance in this state and writing residential property insurance
   20-6  in this state.  The association shall make residential property
   20-7  insurance available to applicants in underserved areas whose
   20-8  property is insurable in accordance with reasonable underwriting
   20-9  standards but who, after diligent efforts, are unable to procure
  20-10  such insurance through the voluntary market, as evidenced by two
  20-11  declinations from insurers licensed to write and actually writing
  20-12  residential property insurance in the state.
  20-13        Sec. 5.  POWERS OF THE ASSOCIATION; CENTRALIZED OPERATIONS
  20-14  AUTHORIZED.  (a)  The association is authorized, for FAIR Plan
  20-15  purposes only, to issue policies of insurance and endorsements
  20-16  thereto in its own name or a trade name duly adopted for that
  20-17  purpose, and to act on behalf of all participating insurers in
  20-18  connection with said policies and otherwise in any manner necessary
  20-19  to accomplish the purposes of this Act, including but not limited
  20-20  to issuance of policies, collection of premiums, issuance of
  20-21  cancellations, and payment of commissions, losses, judgments, and
  20-22  expenses.
  20-23        (b)  The participating insurers shall be liable to the
  20-24  association as provided in this Act and the plan of operation for
  20-25  the expenses and liabilities so incurred by the association, and
  20-26  the association shall make assessments against the participating
  20-27  insurers as required to meet such expenses and liabilities.  In
   21-1  connection with any policy issued by the association:
   21-2              (1)  service of any notice, proof of loss, legal
   21-3  process, or other communication with respect to the policy shall be
   21-4  made upon the association; and
   21-5              (2)  any action by the insured constituting a claim
   21-6  under the policy shall be brought only against the association, and
   21-7  the association shall be the proper party for all purposes in any
   21-8  action brought under or in connection with any such policy.  The
   21-9  foregoing requirements shall be set forth in any policy issued by
  21-10  the association and the form and content of any such policy shall
  21-11  be subject to the approval of the commissioner.
  21-12        (c)  The association is authorized to assume and cede
  21-13  reinsurance in conformity with the plan of operation.
  21-14        (d)  Each insurer must participate in the writings, expenses,
  21-15  profits, and losses of the association in the proportion that its
  21-16  net direct premiums written bear to the aggregate net direct
  21-17  premiums written by all insurers.
  21-18        Sec. 6.  PROPERTY INSPECTION; FAIR PLAN PROCEDURE.  (a)  Any
  21-19  person having an insurable interest in real or tangible personal
  21-20  property at a fixed location in an underserved area who, after
  21-21  diligent effort has been unable to obtain residential property
  21-22  insurance, as evidenced by two current declinations from insurers
  21-23  licensed to write property insurance and actually writing
  21-24  residential property insurance in the state, is entitled upon
  21-25  application to the association to an inspection and evaluation of
  21-26  the property by representatives of the inspection bureau.
  21-27        (b)  Applications may be made on behalf of the applicant by a
   22-1  licensed local recording agent and shall be submitted on forms
   22-2  prescribed by the association.
   22-3        (c)  Promptly after the request for inspection is received,
   22-4  an inspection must be made and an inspection report filed with the
   22-5  association and made available to the applicant upon request.
   22-6        (d)  If the inspection bureau finds that the residential
   22-7  property meets the reasonable underwriting standards established in
   22-8  the plan of operation, the applicant shall be so informed in
   22-9  writing and a policy or binder shall be issued by the association.
  22-10  If the residential property does not meet the criteria, the
  22-11  applicant shall be informed, in writing, of the reasons for the
  22-12  failure of the residential property to meet the criteria.
  22-13        (e)  If, at any time, the applicant makes improvements in the
  22-14  residential property or its condition which the applicant believes
  22-15  are sufficient to make the residential property meet the criteria,
  22-16  a representative of the inspection bureau shall reinspect the
  22-17  residential property upon request.  In any case, the applicant for
  22-18  residential property insurance shall be eligible for one
  22-19  reinspection any time within 60 days after the initial FAIR Plan
  22-20  inspection.  If upon reinspection the residential property meets
  22-21  the reasonable underwriting standards established in the plan of
  22-22  operation, the applicant shall be so informed in writing and a
  22-23  policy or binder shall be issued by the association.
  22-24        Sec. 7.  APPROVAL OF RATES.  The association shall file with
  22-25  the commissioner for approval the proposed rates and supplemental
  22-26  rate information to be used in connection with the issuance of
  22-27  policies or endorsements.  Rates shall be set in an amount
   23-1  sufficient to carry all claims to maturity and to meet the expenses
   23-2  incurred in the writing and servicing of the business.  Within 60
   23-3  days of the filing of the proposed rates, the commissioner shall
   23-4  enter an order either approving or disapproving, in whole or in
   23-5  part, the proposed rates.  The commissioner may, upon notice to the
   23-6  association, extend the period for entering an order under this
   23-7  section an additional 30 days.  No such policies or endorsements
   23-8  shall be issued until such time as the commissioner approves the
   23-9  rates to be applied to the policy or endorsement.  An order
  23-10  disapproving a rate shall state the grounds for the disapproval and
  23-11  the findings in support thereof.
  23-12        Sec. 8.  APPEALS; JUDICIAL REVIEW.  (a)  Any applicant or
  23-13  affected insurer has the right of appeal to the association.  A
  23-14  decision of the association may be appealed to the commissioner
  23-15  within 30 days after such decision.
  23-16        (b)  All orders or decisions of the commissioner made
  23-17  pursuant to this Act are subject to judicial review in accordance
  23-18  with Article 1.04 of this code.
  23-19        Sec. 9.  IMMUNITY FROM LIABILITY.  There is no liability on
  23-20  the part of, and no cause of action against insurers, the
  23-21  inspection bureau, the association, the governing committee, their
  23-22  agents or employees, or the commissioner or the commissioner's
  23-23  authorized representatives, with respect to any inspections
  23-24  required to be undertaken by this Act or for any acts or omissions
  23-25  in connection therewith, or for any statements made in any report
  23-26  and communication concerning the insurability of the property, or
  23-27  in the findings required by the provisions of this Act, or at the
   24-1  hearings conducted in connection with such inspections.
   24-2        Sec. 10.  INSOLVENCY.  In the event any participating insurer
   24-3  fails, by reason of insolvency, to pay any assessment, the
   24-4  association shall cause the reimbursement ratios to be immediately
   24-5  recalculated, excluding therefrom the amount of the insolvent
   24-6  insurer's assessment determined by the commissioner to be
   24-7  uncollectible, so that such uncollectible amount is, in effect,
   24-8  assumed and redistributed among the remaining participating
   24-9  insurers.
  24-10        Sec. 11.  ASSESSMENTS AND PREMIUM SURCHARGES.  Should a
  24-11  deficit occur in the association, the association shall assess
  24-12  participating insurers in accordance with this section and each
  24-13  insurer may charge a premium surcharge on every property insurance
  24-14  policy issued by it insuring property in this state, the effective
  24-15  date of which policy is within the three-year period commencing 90
  24-16  days after the date of assessment by the association.  The amount
  24-17  of the surcharge shall be calculated on the basis of a uniform
  24-18  percentage of the premium on such policies equal to one-third of
  24-19  the ratio of the amount of an insurer's assessment to the amount of
  24-20  its direct earned premiums as reported in its financial statement
  24-21  to the department for the calendar year immediately preceding the
  24-22  year in which the assessment is made, such that over the period of
  24-23  three years the aggregate of all such surcharges by an insurer
  24-24  shall be equal to the amount of the assessment of such insurer.
  24-25  The minimum surcharges on a policy may be $1; all surcharges may be
  24-26  rounded to the nearest dollar.
  24-27        Sec. 12.  SANCTIONS.  If the association, inspection bureau,
   25-1  or participating insurer is found to be in violation of or in
   25-2  failure to comply with this Act, each entity shall be subject to
   25-3  the sanctions authorized in Article 1.10 of this code, including
   25-4  administrative penalties authorized under Article 1.10E of this
   25-5  code.  The commissioner may also utilize any other disciplinary
   25-6  procedures authorized by this code, including the cease and desist
   25-7  procedures authorized by Article 1.10A of this code.
   25-8        Sec. 13.  ANNUAL REPORT.  The association shall compile a
   25-9  calendar year annual operating report and submit such annual report
  25-10  to the commissioner on or before March 31 of the following calendar
  25-11  year.  This annual report shall be a matter of public record.
  25-12        Sec. 14.  POWERS OF THE COMMISSIONER.  (a)  In addition to
  25-13  any powers conferred upon the commissioner by this or any other
  25-14  law, the commissioner is charged with the authority to supervise
  25-15  the association and the inspection bureau.  In addition, the
  25-16  commissioner has the power:
  25-17              (1)  to examine the operation of the association and
  25-18  the inspection bureau through free access to all the books,
  25-19  records, files, papers, and documents relating to their operation
  25-20  and may summon, qualify, and examine as witnesses all persons
  25-21  having knowledge of such operations, including the governing
  25-22  committee, officers, or employees thereof;
  25-23              (2)  to do all things necessary to enable the State of
  25-24  Texas and the association to fully participate in any federal
  25-25  program of reinsurance which may be enacted for purposes similar to
  25-26  the purposes of this Act;
  25-27              (3)  to require such reports from the association
   26-1  concerning risks insured by the association pursuant to this Act as
   26-2  may be deemed necessary; and
   26-3              (4)  to adopt policy forms, endorsements, rates, and
   26-4  rating and rule manuals for use by the association.
   26-5        SECTION 7.  Subchapter E, Chapter 21, Insurance Code, is
   26-6  amended by adding Article 21.49B to read as follows:
   26-7        Art. 21.49B.  PROPERTY AND CASUALTY INSURANCE INITIATIVES
   26-8  TASK FORCE.  The commissioner may establish a task force to study
   26-9  the utility and feasibility of instituting various property and
  26-10  casualty insurance initiatives in this state.  The initiatives to
  26-11  be studied may include, but are not limited to:
  26-12              (1)  possible coordination with the Texas Department of
  26-13  Commerce to make certain property and casualty insurance an
  26-14  enterprise zone program pursuant to Chapter 2303, Government Code;
  26-15              (2)  possible coordination with Neighborhood Housing
  26-16  Service (NHS) Programs to establish voluntary NHS-Insurance
  26-17  Industry Partnerships;
  26-18              (3)  possible insurance agent programs to increase
  26-19  minority agency access to standard insurance companies, including
  26-20  minority intern programs with insurance companies;
  26-21              (4)  possible tax incentives for insurance written in
  26-22  underserved areas; and
  26-23              (5)  a consumer education program designed to increase
  26-24  the ability of consumers to differentiate among different products
  26-25  and providers in the property and casualty market.
  26-26        SECTION 8.  Article 21.53B, Insurance Code, is amended by
  26-27  adding Subsection (c) to read as follows:
   27-1        (c)  The commissioner shall have all necessary authority to
   27-2  enforce this section.  An aggrieved party may ask the commissioner
   27-3  to conduct any investigation, review, hearing, or other proceeding
   27-4  to determine compliance with this section.  The commissioner shall
   27-5  take all reasonable steps, including the issuance of orders and the
   27-6  assessment of penalties, to ensure compliance with this section.
   27-7        SECTION 9.  Section 4(7)(c), Article 21.21, and Articles
   27-8  21.21-3 and 21.21-5, Insurance Code, are repealed.
   27-9        SECTION 10.  Subchapter C, Chapter 5, Insurance Code, is
  27-10  amended by adding Article 5.33B to read as follows:
  27-11        Art. 5.33B.  VOLUNTARY INSPECTION PROGRAM
  27-12        Sec. 1.  RIGHT TO VOLUNTARY INSPECTION OF PROPERTY CONDITION.
  27-13  Any person having an insurable interest in real or tangible
  27-14  personal property at a fixed location who desires to purchase
  27-15  residential property insurance may procure an independent
  27-16  inspection of the condition of the property by an inspector
  27-17  authorized to perform inspections under this article of the
  27-18  property proposed to be insured.
  27-19        Sec. 2.  DEFINITIONS.  In this article:
  27-20              (a)  "Residential property insurance" means insurance
  27-21  against loss to real or tangible personal property at a fixed
  27-22  location provided in a homeowners policy, residential fire and
  27-23  allied lines policy, or farm and ranch owners policy.
  27-24              (b)  "Inspection" means a physical inspection of the
  27-25  property for which residential property insurance is sought.
  27-26              (c)  "Inspection certificate" means a certificate
  27-27  issued by an inspector pursuant to this article indicating that the
   28-1  condition of the property meets or exceeds minimum standards.
   28-2              (d)  "Minimum standards" are those standards for
   28-3  property condition insurability under this article as the
   28-4  commissioner shall determine by rule.
   28-5              (e)  "Inspector" means a person authorized by the
   28-6  commissioner to perform inspections under this article.
   28-7        Sec. 3.  PLAN OF OPERATION.  (a)  The commissioner shall
   28-8  adopt a plan of operation for the Voluntary Inspection Program.
   28-9  The plan of operation shall include rules and standards for the
  28-10  inspection program, including but not limited to the following:
  28-11        (1)  the manner and scope of the inspections to be performed;
  28-12        (2)  the contents of the written evaluation report;
  28-13        (3)  the form of the inspection certificate to be issued;
  28-14        (4)  the term during which an inspection certificate shall
  28-15  remain valid;
  28-16        (5)  rules for the certification and licensing of persons who
  28-17  are authorized to perform inspections under this program, which
  28-18  group shall include, but not be limited to:
  28-19              (i)  persons licensed to perform real property
  28-20  inspections under the Real Estate Licensing Act;
  28-21              (ii)  designated employees or agents of a county or
  28-22  municipality which elects to establish a voluntary inspection
  28-23  program to inspect properties for residential properties within the
  28-24  territorial limits of the county or municipality; and
  28-25        (6)  the fee which may be charged to the person requesting
  28-26  the inspection.
  28-27        (b)  The commissioner may adopt rules to encourage the
   29-1  coordination of inspections under this article with inspections
   29-2  performed under article 5.33A.
   29-3        Sec. 4.  EFFECT OF CERTIFICATE.  (a)  The existence of an
   29-4  inspection certificate issued under this article creates a
   29-5  presumption that the property condition is adequate for residential
   29-6  property insurance to be issued.
   29-7        (b)  As a condition of issuing a policy if an inspection
   29-8  certificate is used in whole or in part to determine insurability,
   29-9  an insurer may require a written statement by the applicant for
  29-10  residential property insurance stating that there have been no
  29-11  material or substantial changes to the property condition since the
  29-12  date of the inspection certificate.
  29-13        (c)  An insurer who receives an inspection certificate may
  29-14  not use property condition as grounds for refusing to issue or
  29-15  renew residential property insurance unless the insurer reinspects
  29-16  the property and specifies the areas of deficiency in its
  29-17  declination letter.
  29-18        Sec. 5.  ENFORCEMENT.  The commissioner may by rule provide
  29-19  for the use of any of the disciplinary procedures authorized in
  29-20  this code to maintain the integrity of the program or ensure
  29-21  compliance with this article.
  29-22        Sec. 6.  RULEMAKING AUTHORITY.  The commissioner is
  29-23  authorized to adopt rules in addition to the plan of operation that
  29-24  are appropriate to accomplish the purposes of this article.
  29-25        SECTION 11.  Article 21.21-7, Insurance Code, as added by
  29-26  this Act, applies only to a health insurance policy, contract,
  29-27  agreement, or evidence of coverage that is delivered, issued for
   30-1  delivery, or renewed on or after January 1, 1996.  A policy,
   30-2  contract, agreement, or evidence of coverage that is delivered,
   30-3  issued for delivery, or renewed before January 1, 1996, is governed
   30-4  by the law as it existed immediately before the effective date of
   30-5  this Act, and that law is continued in effect for that purpose.
   30-6        SECTION 12.  Article 21.21-8, Insurance Code, as added by
   30-7  H.B. 668, Acts of the 74th Legislature, Regular Session, 1995, is
   30-8  amended by adding Sections 4 and 5 to read as follows:
   30-9              Sec. 4.  AFFIRMATIVE DEFENSE.  A legal entity engaged
  30-10  in the business of insurance as specified in Section 1 of this
  30-11  article is not in violation of the prohibited acts defined in or
  30-12  determined pursuant to Section 2 of this article if the refusal to
  30-13  insure; the refusal to continue to insure; the limiting of the
  30-14  amount, extent, or kind of coverage; or the charging of an
  30-15  individual a different rate for the same coverage is based upon
  30-16  sound actuarial principles.
  30-17        Sec. 5.  EXCEPTION.  A legal entity engaged in the business
  30-18  of insurance as specified in Section 1 of this article is not in
  30-19  violation of the prohibited acts defined in or determined pursuant
  30-20  to Section 2 of this article if the entity provides insurance
  30-21  coverage only to persons who are required to obtain or maintain
  30-22  membership or qualification for membership in a club, group, or
  30-23  organization so long as membership or membership qualifications are
  30-24  uniform requirements of the insurer as a condition of providing
  30-25  insurance, and are applied uniformly throughout this state, and the
  30-26  entity does not engage in any of the prohibited acts defined in or
  30-27  determined pursuant to Section 2 of this article for persons who
   31-1  are qualified members, except as otherwise provided in this
   31-2  section.
   31-3              SECTION 13.  The importance of this legislation and the
   31-4  crowded condition of the calendars in both houses create an
   31-5  emergency and an imperative public necessity that the
   31-6  constitutional rule requiring bills to be read on three several
   31-7  days in each house be suspended, and this rule is hereby suspended,
   31-8  and that this Act take effect and be in force from and after its
   31-9  passage, and it is so enacted.