By De La Garza                                        H.B. No. 2072
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the licensing and regulation of public adjusters;
    1-3  providing criminal penalties.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Subchapter A, Chapter 21, Insurance Code, is
    1-6  amended by adding Article 21.07-5 to read as follows:
    1-7        Art. 21.07-5.  PUBLIC ADJUSTERS
    1-8        Sec. 1.  DEFINITION.  In this article, "public adjuster"
    1-9  means a person who represents or adjusts the first party interest
   1-10  of a named insured in insurance policies that cover physical damage
   1-11  to real and personal property by giving advice regarding, or
   1-12  preparing or negotiating, such a claim, and who solicits from the
   1-13  insured or the insured's representative the contractual right and
   1-14  obligation to lawfully provide services relating to the adjustment
   1-15  of a loss involving physical damage to real or person property.
   1-16  The term does not include a person employed only to furnish
   1-17  technical assistance or clerical support.
   1-18        Sec. 2.  LICENSE REQUIRED; EXEMPTION.  (a)  A person may not
   1-19  act as or hold out to be a public adjuster in this state unless the
   1-20  person holds a license issued by the commissioner under Section 6
   1-21  or 7 of this article.
   1-22        (b)  This article does not apply to:
   1-23              (1)  an attorney licensed by this state; or
   1-24              (2)  a licensed local recording agent or a solicitor
    2-1  for a local recording agent while acting for an insured concerning
    2-2  a loss under a policy issued by that agent.
    2-3        Sec. 3.  LICENSE APPLICATION.  (a)  An applicant for a public
    2-4  adjuster's license shall apply to the commissioner on a form
    2-5  prescribed by the commissioner.
    2-6        (b)  As part of the application, the applicant shall furnish
    2-7  information concerning the applicant's identity, personal history,
    2-8  business records, and other pertinent facts as required by the
    2-9  commissioner, and shall comply with the security requirements
   2-10  imposed under Section 4 of this article.  The commissioner may
   2-11  require an applicant to include a sample of the applicant's
   2-12  fingerprints and a passport-type photograph.
   2-13        (c)  The completed application must be notarized.
   2-14        (d)  An applicant shall pay a $250 application fee for each
   2-15  application submitted.  The fee must be submitted with the
   2-16  application and is nonrefundable.
   2-17        Sec. 4.  SECURITY REQUIREMENTS.  (a)  Each applicant for a
   2-18  public adjuster's license shall file a bond or other security with
   2-19  the commissioner as required by this section.  The bond must be:
   2-20              (1)  executed and issued by a surety insurer;
   2-21              (2)  in the amount of $500,000;
   2-22              (3)  payable to the commissioner for the use and
   2-23  benefit of any person who recovers a judgment against the
   2-24  individual license holder; and
   2-25              (4)  conditioned on the faithful performance of the
   2-26  license holder in connection with the license holder's business as
   2-27  a public adjuster.
    3-1        (b)  Instead of a bond under Subsection (a) of this section,
    3-2  an applicant may:
    3-3              (1)  file with the commissioner a professional
    3-4  liability policy or similar policy or contract of professional
    3-5  liability coverage acceptable to the commissioner that insures the
    3-6  individual applicant against errors and omissions in at least the
    3-7  amount of $500,000, with a deductible not to exceed $1,500; or
    3-8              (2)  deposit with the state treasurer cash or
    3-9  securities of the class authorized by Articles 2.08 and 2.10 of
   3-10  this code that have a fair market value of at least $500,000, to be
   3-11  held exclusively for the protection of a person who recovers a
   3-12  final judgment against the applicant.
   3-13        (c)  A professional liability policy provided by a public
   3-14  adjuster's employer constitutes satisfactory compliance with the
   3-15  requirements of this section if the employer's professional
   3-16  liability policy has a minimum liability limit of $1 million for
   3-17  all employees.
   3-18        (d)  If a bond is used to satisfy the requirements of this
   3-19  section, the bond must specifically authorize recovery by the
   3-20  commissioner of the damages sustained as a result of the license
   3-21  holder's action in connection with the license holder's business as
   3-22  a public adjuster.  The aggregate liability of the surety for all
   3-23  damages may not exceed the amount of the bond.
   3-24        (e)  A deposit with the state treasurer made under Subsection
   3-25  (b)(2) of this section may be withdrawn by the applicant only on
   3-26  filing with the commissioner evidence satisfactory to the
   3-27  commissioner that the applicant has withdrawn from the business of
    4-1  public adjusting and:
    4-2              (1)  does not have any outstanding unsecured
    4-3  liabilities; or
    4-4              (2)  has provided for the protection of a person who
    4-5  recovers a final error judgment against the applicant by furnishing
    4-6  an errors and omissions policy or a bond as otherwise provided by
    4-7  this section.
    4-8        (f)  Securities deposited under this section may be exchanged
    4-9  periodically for other qualified securities.
   4-10        (g)  A binding commitment to issue an insurance policy or
   4-11  bond or the tender of the securities is sufficient in connection
   4-12  with a license application.
   4-13        (h)  All or part of a deposit may be paid to a person on a
   4-14  showing that damages sustained as a result of the license holder's
   4-15  action in connection with the license holder's business as a public
   4-16  adjuster remain unpaid.  Those damages may be paid from the deposit
   4-17  only to the extent of the deficiency in payment of the damages
   4-18  sustained.
   4-19        Sec. 5.  LICENSE EXAMINATION; ADVISORY COMMITTEE.  (a)  The
   4-20  commissioner shall prescribe a written examination for a public
   4-21  adjuster's license that is comparable to the examination
   4-22  administered for an insurance adjuster's license under Section 10,
   4-23  Chapter 407, Acts of the 63rd Legislature, Regular Session, 1973
   4-24  (Article 21.07-4, Vernon's Texas Insurance Code).
   4-25        (b)  The commissioner may appoint an industry advisory
   4-26  committee.  If the commissioner elects to appoint the advisory
   4-27  committee, the advisory committee shall be composed of nine members
    5-1  as follows:
    5-2              (1)  three members who represent the general public;
    5-3              (2)  the chairman of the unauthorized practice of law
    5-4  committee of the State Bar of Texas;
    5-5              (3)  two members with knowledge and experience in the
    5-6  profession of insurance adjusting;
    5-7              (4)  one member who represents the domestic insurance
    5-8  companies authorized to do business in this state;
    5-9              (5)  one member who represents the foreign insurance
   5-10  companies authorized to do business in this state; and
   5-11              (6)  one member who is a public adjuster.
   5-12        A member of the advisory committee is not entitled to
   5-13  compensation for service on the committee.  A member is entitled to
   5-14  reimbursement for reasonable and necessary expenses incurred in
   5-15  performing services for the committee, subject to any applicable
   5-16  limitation in the General Appropriations Act.
   5-17        (c)  An examination is not required for the renewal of a
   5-18  license issued under this article.
   5-19        (d)  This article does not prevent the department from using
   5-20  a testing contractor to administer the examination required by this
   5-21  section.
   5-22        Sec. 6.  LICENSE ISSUANCE; QUALIFICATIONS.  The commissioner
   5-23  shall issue a public adjuster's license to an applicant on
   5-24  determining that the application meets the requirements of this
   5-25  article, that the license fee has been paid, and that the
   5-26  applicant:
   5-27              (1)  is at least 18 years of age;
    6-1              (2)  is a citizen of the United States;
    6-2              (3)  is a resident of this state;
    6-3              (4)  is trustworthy and of a moral character that
    6-4  reasonably ensures that the applicant will conduct the business of
    6-5  a public adjuster fairly and in good faith without detriment to the
    6-6  members of the public whose interests the public adjuster may
    6-7  represent;
    6-8              (5)  has never been convicted of a felony or if
    6-9  convicted of a felony, has received a full pardon from that
   6-10  conviction and is otherwise relieved from any disabilities
   6-11  connected with that conviction;
   6-12              (6)  has sufficient experience or training relating to
   6-13  the assessment of:
   6-14                    (A)  real and personal property values; and
   6-15                    (B)  physical loss or damage to real or personal
   6-16  property that may be the subject of insurance and claims under
   6-17  insurance;
   6-18              (7)  is sufficiently informed as to the terms and
   6-19  effects of the types of insurance contracts that provide coverage
   6-20  on real and personal property;
   6-21              (8)  possesses knowledge and experience adequate to
   6-22  enable the applicant to engage in the business of a public adjuster
   6-23  fairly and without injury to the public or any member of the public
   6-24  with whom the public adjuster may have business as a public
   6-25  adjuster;
   6-26              (9)  has successfully passed the license examination
   6-27  adopted under Section 5 of this article or is exempt from the
    7-1  examination requirement under this article; and
    7-2              (10)  has complied with the security requirements
    7-3  imposed under Section 4 of this article.
    7-4        Sec. 7.  NONRESIDENT LICENSE.  (a)  The commissioner may
    7-5  issue a nonresident license to an applicant for a public adjuster
    7-6  license who is not a permanent resident of this state if the
    7-7  applicant:
    7-8              (1)  holds a license as a public adjuster issued by
    7-9  another state or, if the nonresident applicant's state of residence
   7-10  does not license public adjusters, the applicant successfully
   7-11  passes the license examination adopted under Section 5 of this
   7-12  article;
   7-13              (2)  files a bond in accordance with Section 4 of this
   7-14  article in the amount required by Subsection (b) of this section;
   7-15  and
   7-16              (3)  pays the application fee required by Subsection
   7-17  (c) of this section.
   7-18        (b)  An applicant for a nonresident license must file a bond
   7-19  with the department in the amount of $50,000.
   7-20        (c)  An applicant for a nonresident license shall pay an
   7-21  application fee of $250.
   7-22        (d)  Each person who holds a nonresident license shall comply
   7-23  with all laws, including rules, of this state applicable to public
   7-24  adjusters, including the law governing the collection of state
   7-25  sales tax as appropriate for services performed under this article.
   7-26        (e)  The commissioner may issue a nonresident license to an
   7-27  applicant under this section only if the applicant's state of
    8-1  residence has a similar reciprocity program for residents of this
    8-2  state who are licensed under this article.
    8-3        Sec. 8.  LICENSE BY RECIPROCITY.  The commissioner by rule
    8-4  may adopt a reciprocal license program for public adjusters and may
    8-5  enter into reciprocal agreements with the appropriate officials of
    8-6  other states.
    8-7        Sec. 9.  REGISTRATION PROGRAM FOR PUBLIC ADJUSTER TRAINEES.
    8-8  (a)  A public adjuster trainee must register with the department
    8-9  for a trainee certificate under this section.  An applicant for a
   8-10  trainee certificate as a trainee shall apply to the commissioner on
   8-11  a form prescribed by the commissioner.  The form must be
   8-12  accompanied by a nonrefundable $125 registration fee.
   8-13        (b)  A trainee certificate may be issued under this section
   8-14  only for educational and training purposes.  The holder of a
   8-15  trainee certificate may practice only under the direction and
   8-16  sponsorship of a licensed public adjuster.
   8-17        (c)  The sponsor of a public adjuster trainee shall attest,
   8-18  on a form prescribed by the commissioner, that the trainee is under
   8-19  the supervision and control of the sponsor, and that the sponsor
   8-20  has met the security requirements of Section 4 of this article.
   8-21        (d)  A trainee certificate expires on the 180th day after the
   8-22  date of issuance, and may be renewed once on application to the
   8-23  commissioner.  A person is not entitled to hold more than two
   8-24  consecutive trainee certificates.
   8-25        (e)  Each person who holds a trainee certificate under this
   8-26  section must comply with the security requirements imposed under
   8-27  Section 4 of this article.
    9-1        (f)  An applicant for a trainee certificate must satisfy the
    9-2  requirements for a public adjuster imposed under Section 6 of this
    9-3  article, other than the requirements imposed under Subdivisions (9)
    9-4  and (10) of that section.
    9-5        Sec. 10.  PLACE OF BUSINESS; AGENT FOR SERVICE OF PROCESS.
    9-6  (a)  Each licensed public adjuster shall maintain in this state a
    9-7  place of business accessible to the general public.  The department
    9-8  shall maintain in its records the address of the place of business.
    9-9  Each license holder shall promptly notify the commissioner of any
   9-10  change in the address.
   9-11        (b)  Each nonresident public adjuster shall maintain an agent
   9-12  in this state for service of process.  The department shall
   9-13  maintain in its records the name and address of the agent.
   9-14        Sec. 11.  CONDUCT TO COMPLY WITH CONTRACT.  A licensed public
   9-15  adjuster shall prepare each claim for an insured represented by the
   9-16  adjuster in accordance with the terms and conditions of the
   9-17  contract of insurance under which recovery is sought.
   9-18        Sec. 12.  CODE OF ETHICS.  The commissioner by rule may adopt
   9-19  a code of ethics for public adjusters to:
   9-20              (1)  foster the education of public adjusters
   9-21  concerning the ethical, legal, and business principles that should
   9-22  govern their conduct; and
   9-23              (2)  adopt recommendations regarding the solicitation
   9-24  of the adjustment of losses by public adjusters.
   9-25        Sec. 13.  PUBLIC ADJUSTER AUTHORITY; EXEMPTION FROM INSURANCE
   9-26  LAWS.  (a)  This article does not limit or diminish the authority
   9-27  of a public adjuster licensed under this article to investigate or
   10-1  adjust a loss to less than the authority for that purpose that may
   10-2  be exercised by an adjuster licensed under Chapter 407, Acts of the
   10-3  63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's
   10-4  Texas Insurance Code).
   10-5        (b)  The conduct of business by a licensed public adjuster as
   10-6  authorized by this article does not constitute a violation of:
   10-7              (1)  Articles 21.01, 21.02, 21.02-1, 21.04, 21.06,
   10-8  21.07, and 21.14 of this code;
   10-9              (2)  Chapter 213, Acts of the 54th Legislature, Regular
  10-10  Session, 1955 (Article 21.07-1, Vernon's Texas Insurance Code);
  10-11              (3)  Chapter 757, Acts of the 60th Legislature, Regular
  10-12  Session, 1967 (Article 21.07-3, Vernon's Texas Insurance Code); and
  10-13              (4)  Chapter 407, Acts of the 63rd Legislature, Regular
  10-14  Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code).
  10-15        (c)  A public adjuster may not settle a claim without the
  10-16  prior written consent of the insured.
  10-17        Sec. 14.  LICENSE RENEWAL; CONTINUING EDUCATION REQUIREMENT.
  10-18  (a)  A license issued under this article expires on the second
  10-19  anniversary of the date of issuance.  A license holder may renew
  10-20  the license by filing a renewal application accompanied by the
  10-21  renewal fee with the commissioner in the form prescribed by the
  10-22  commissioner that demonstrates continued compliance with the
  10-23  license requirements imposed under this article or adopted by rule
  10-24  by the commissioner.  The renewal application must be accompanied
  10-25  by a $75 renewal fee and evidence of compliance with the continuing
  10-26  education requirements imposed under Subsection (b) of this
  10-27  section.
   11-1        (b)  Each license holder must complete, for each two-year
   11-2  license period,  at least 30 hours of continuing education courses.
   11-3  The commissioner by rule shall prescribe the requirements for
   11-4  continuing education courses under this article.
   11-5        (c)  A license holder must submit the renewal information and
   11-6  renewal fee to the commissioner not later than the 90th day after
   11-7  the expiration date of the license.  If the license holder fails to
   11-8  submit the renewal application and fee within the required period,
   11-9  the license lapses.
  11-10        Sec. 15.  CONTINGENT FEES.  (a)  Except as provided by
  11-11  Subsection (b) of this section, a public adjuster may receive a
  11-12  contingent fee for adjusting a claim under this article.  A
  11-13  contingent fee collected under this section may not exceed 10
  11-14  percent of the amount of the insurance settlement on the claim.
  11-15        (b)  A public adjuster may not receive a contingent fee on a
  11-16  claim for which an insurance company, not later than 15 days after
  11-17  the date on which the loss is reported to the insurance company,
  11-18  or, in the event of a declared catastrophe or disaster, not later
  11-19  than 15 days after the first inspection conducted by the adjuster
  11-20  for the insurance company, makes an offer to the insured in writing
  11-21  to settle the claim.  The public adjuster is not entitled to
  11-22  compensation for any portion of the amount initially offered to the
  11-23  insured by the insurance company.  The public adjuster may only
  11-24  receive a contingent fee or compensation based on the increase
  11-25  computed by subtracting the amount initially offered by the
  11-26  insurance company to the insured from the amount finally paid by
  11-27  the insurance company to the insured on the claim.
   12-1        (c)  An insured who uses the services of a public adjuster
   12-2  shall sign a disclosure form prescribed by the department that
   12-3  acknowledges that:
   12-4              (1)  the fee paid to the public adjuster will be paid
   12-5  from the proceeds received by the insured on the claim;
   12-6              (2)  the public adjuster represents the insured rather
   12-7  than the insurance company; and
   12-8              (3)  the insured, rather than the insurance company, is
   12-9  responsible for payment of the fee owed to the public adjuster.
  12-10        Sec. 16.  PROHIBITED CONDUCT.  (a)  A public adjuster may not
  12-11  render legal advice to any person in the adjuster's capacity as a
  12-12  public adjuster.
  12-13        (b)  A public adjuster may not represent an insured on a
  12-14  claim or charge a fee to an insured while representing the
  12-15  insurance carrier against which the claim is made.
  12-16        (c)  A public adjuster may not, between the hours of 10 p.m.
  12-17  and 6 a.m., solicit or attempt to solicit on a loss or claim in
  12-18  person, by telephone, or in any other manner.
  12-19        (d)  A public adjuster may not solicit or attempt to solicit,
  12-20  directly or indirectly, on any loss involving bodily injury covered
  12-21  by a life, health, or accident insurance policy.
  12-22        (e)  A public adjuster may not acquire an interest in
  12-23  salvaged property that is the subject of a claim adjusted by the
  12-24  public adjuster without the knowledge and consent of the insured.
  12-25        (f)  A public adjuster may not participate directly or
  12-26  indirectly in the reconstruction, repair, or restoration of the
  12-27  damaged property or engage in any other activities that may
   13-1  reasonably be construed as presenting a conflict of interest.
   13-2        (g)  A public adjuster may not, directly or indirectly,
   13-3  receive or pay any valuable consideration, special favor, or
   13-4  advantage from or to any person with an interest in the claim,
   13-5  including an attorney, contractor, or supplier.
   13-6        (h)  A public adjuster may not contact an insured until the
   13-7  expiration of the 15th day after the date on which the insured
   13-8  reports the claim to the insurance company.
   13-9        Sec. 17.  DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.  (a)
  13-10  The commissioner may deny, suspend, or revoke a public adjuster's
  13-11  license for:
  13-12              (1)  a violation of this article;
  13-13              (2)  a cause that constitutes grounds for denial of an
  13-14  original license;
  13-15              (3)  willful misrepresentation or fraud in obtaining
  13-16  the license;
  13-17              (4)  failure to pass a required license examination;
  13-18              (5)  misappropriation or conversion by the license
  13-19  applicant or license holder of money required to be held in a
  13-20  fiduciary capacity;
  13-21              (6)  material misrepresentation, with intent to
  13-22  deceive, of the terms of an insurance contract;
  13-23              (7)  engaging in a fraudulent transaction;
  13-24              (8)  demonstrated incompetence or untrustworthiness in
  13-25  the conduct of the license holder's affairs under the license, as
  13-26  determined by the commissioner;
  13-27              (9)  conviction of a felony by a final judgment in a
   14-1  court of competent jurisdiction; or
   14-2              (10)  material misrepresentation, with intent to
   14-3  deceive, of the person's status as a public adjuster.
   14-4        (b)  A license applicant or license holder who is denied a
   14-5  license or whose license is revoked or suspended under this section
   14-6  is entitled to notice and a hearing as provided by Section 5,
   14-7  Article 21.01-2, of this code.
   14-8        (c)  A final order entered as a result of a hearing under
   14-9  this section may be appealed to a court of competent jurisdiction
  14-10  as provided by Subchapter G, Chapter 2001, Government Code.
  14-11        (d)  An order suspending a public adjuster's license must
  14-12  specify the period of the suspension not to exceed 12 months.
  14-13        (e)  The holder of a license that is revoked or suspended for
  14-14  cause shall surrender the license to the commissioner on demand.
  14-15        (f)  The commissioner may issue a license or reinstate a
  14-16  suspended or revoked license on a finding that the cause for
  14-17  suspension, revocation, or refusal no longer exists.
  14-18        (g)  A person whose license is suspended under this article
  14-19  may apply for a new license only after the expiration of the period
  14-20  of suspension.  A person whose license is revoked or whose
  14-21  application for a license is denied may not apply for a new license
  14-22  until the expiration of 12 months after the date of the revocation
  14-23  or denial.
  14-24        Sec. 18.  NOTICE TO LAST ADDRESS.  Notice by registered mail,
  14-25  return receipt requested, to the last known address of a license
  14-26  applicant, license holder, or other person to whom notice of intent
  14-27  to initiate disciplinary action is required to be sent under this
   15-1  article, as reflected by the records of the department, constitutes
   15-2  sufficient notice.
   15-3        Sec. 19.  CRIMINAL PENALTY; SANCTIONS.  (a)  A person commits
   15-4  an offense if the person violates this article.  An offense under
   15-5  this subsection is a misdemeanor punishable by:
   15-6              (1)  a fine not to exceed $1,000;
   15-7              (2)  confinement in county jail for a term not to
   15-8  exceed six months; or
   15-9              (3)  both the fine and confinement.
  15-10        (b)  In addition to the criminal penalty imposed under
  15-11  Subsection (a) of this section, a person in violation of this
  15-12  article is subject to the sanctions provided by Section 7, Article
  15-13  21.21, of this code as if the person had violated an order under
  15-14  that section.
  15-15        SECTION 2.  The commissioner of insurance shall adopt the
  15-16  examination required by Section 5, Article 21.07-5, Insurance Code,
  15-17  as added by this Act, not later than March 1, 1996.  Pending the
  15-18  adoption of the examination, the commissioner may issue a temporary
  15-19  license to practice as a public adjuster to a person who satisfies
  15-20  all the requirements for issuance of the license except the
  15-21  examination requirement.  A temporary license issued under this
  15-22  subsection expires June 1, 1996, and may not be renewed.
  15-23        SECTION 3.  (a)  Except as provided by Subsection (b) of this
  15-24  section, this Act takes effect September 1, 1995.
  15-25        (b)  Sections 2(a) and 19, Article 21.07-5, Insurance Code,
  15-26  as added by this Act, take effect January 1, 1996.
  15-27        SECTION 4.  The importance of this legislation and the
   16-1  crowded condition of the calendars in both houses create an
   16-2  emergency and an imperative public necessity that the
   16-3  constitutional rule requiring bills to be read on three several
   16-4  days in each house be suspended, and this rule is hereby suspended.