74R10972 PB-D
          By De La Garza                                        H.B. No. 2072
          Substitute the following for H.B. No. 2072:
          By De La Garza                                    C.S.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 directly or
   1-13  indirectly solicits from the insured or the insured's
   1-14  representative the contractual right and obligation to lawfully
   1-15  provide services relating to the adjustment of a loss involving
   1-16  physical damage to real or personal property.  The term does not
   1-17  include a person employed only to furnish technical assistance or
   1-18  clerical support.
   1-19        Sec. 2.  LICENSE REQUIRED; EXEMPTION.  (a)  A person may not
   1-20  act as or hold out to be a public adjuster in this state unless the
   1-21  person holds a license issued by the commissioner under Section 6
   1-22  or 7 of this article.
   1-23        (b)  This article does not apply to:
   1-24              (1)  an attorney licensed by this state; or
    2-1              (2)  a licensed local recording agent or a solicitor
    2-2  for a local recording agent while acting for an insured concerning
    2-3  a loss under a policy issued by that agent.
    2-4        Sec. 3.  LICENSE APPLICATION.  (a)  An applicant for a public
    2-5  adjuster's license shall apply to the commissioner on a form
    2-6  prescribed by the commissioner.
    2-7        (b)  As part of the application, the applicant shall furnish
    2-8  information concerning the applicant's identity, personal history,
    2-9  business records, and other pertinent facts as required by the
   2-10  commissioner, and shall comply with the security requirements
   2-11  imposed under Section 4 of this article.  The commissioner may
   2-12  require an applicant to include a sample of the applicant's
   2-13  fingerprints and a passport-type photograph.
   2-14        (c)  The completed application must be notarized.
   2-15        (d)  An applicant shall pay a $250 application fee for each
   2-16  application submitted.  The fee must be submitted with the
   2-17  application and is nonrefundable.
   2-18        Sec. 4.  SECURITY REQUIREMENTS.  (a)  Each applicant for a
   2-19  public adjuster's license shall file a bond or other security with
   2-20  the commissioner as required by this section.  The bond must be:
   2-21              (1)  executed and issued by a surety insurer;
   2-22              (2)  in the amount of $25,000;
   2-23              (3)  payable to the commissioner for the use and
   2-24  benefit of any person who recovers a judgment against the
   2-25  individual license holder; and
   2-26              (4)  conditioned on the faithful performance of the
   2-27  license holder in connection with the license holder's business as
    3-1  a public adjuster.
    3-2        (b)  Instead of a bond under Subsection (a) of this section,
    3-3  an applicant may:
    3-4              (1)  file with the commissioner a professional
    3-5  liability policy or similar policy or contract of professional
    3-6  liability coverage acceptable to the commissioner that insures the
    3-7  individual applicant against errors and omissions in at least the
    3-8  amount of $50,000, with a deductible not to exceed $1,500; or
    3-9              (2)  deposit with the state treasurer cash or
   3-10  securities of the class authorized by Articles 2.08 and 2.10 of
   3-11  this code that have a fair market value of at least $50,000, to be
   3-12  held exclusively for the protection of a person who recovers a
   3-13  final judgment against the applicant.
   3-14        (c)  A professional liability policy provided by a public
   3-15  adjuster's employer constitutes satisfactory compliance with the
   3-16  requirements of this section if the employer's professional
   3-17  liability policy has a minimum liability limit of $250,000 for all
   3-18  employees.
   3-19        (d)  If a bond is used to satisfy the requirements of this
   3-20  section, the bond must specifically authorize recovery by the
   3-21  commissioner of the damages sustained if the license holder is
   3-22  determined to be guilty of fraud or unfair practices in connection
   3-23  with the license holder's business as a public adjuster.  The
   3-24  aggregate liability of the surety for all damages may not exceed
   3-25  the amount of the bond.
   3-26        (e)  A deposit with the state treasurer made under Subsection
   3-27  (b)(2) of this section may be withdrawn by the applicant only on
    4-1  filing with the commissioner evidence satisfactory to the
    4-2  commissioner that the applicant has withdrawn from the business of
    4-3  public adjusting and:
    4-4              (1)  does not have any outstanding unsecured
    4-5  liabilities; or
    4-6              (2)  has provided for the protection of a person who
    4-7  recovers a final error judgment against the applicant by furnishing
    4-8  an errors and omissions policy or a bond as otherwise provided by
    4-9  this section.
   4-10        (f)  Securities deposited under this section may be exchanged
   4-11  periodically for other qualified securities.
   4-12        (g)  A binding commitment to issue an insurance policy or
   4-13  bond or the tender of the securities is sufficient in connection
   4-14  with a license application.
   4-15        (h)  All or part of a deposit may be paid to a person on a
   4-16  showing that a final judgment has been recovered against the
   4-17  applicant and the final judgment remains unsatisfied.  The final
   4-18  judgment may be paid from the deposit only to the extent of
   4-19  deficiency in satisfaction of the final judgment.
   4-20        Sec. 5.  LICENSE EXAMINATION; ADVISORY COMMITTEE.  (a)  The
   4-21  commissioner shall adopt a written examination for a public
   4-22  adjuster's license that is  similar to the examination administered
   4-23  for an insurance adjuster's license under Section 10, Chapter 407,
   4-24  Acts of the 63rd Legislature, Regular Session, 1973 (Article
   4-25  21.07-4, Vernon's Texas Insurance Code).
   4-26        (b)  The commissioner shall appoint an industry advisory
   4-27  committee, composed of at least five members, to assist in
    5-1  developing the examination required by this section.  At least
    5-2  three members must be persons who are eligible for licensure as
    5-3  public adjusters.  At least one member must be a person from the
    5-4  insurance industry who is not a public adjuster.  A member of the
    5-5  advisory committee is not entitled to compensation for service on
    5-6  the committee.  A member is entitled to reimbursement for
    5-7  reasonable and necessary expenses incurred in performing services
    5-8  for the committee, subject to any applicable limitation in the
    5-9  General Appropriations Act.
   5-10        (c)  An examination is not required for the renewal of a
   5-11  license issued under this article.
   5-12        Sec. 6.  LICENSE ISSUANCE; QUALIFICATIONS.  The commissioner
   5-13  shall issue a public adjuster's license to an applicant on
   5-14  determining that the application meets the requirements of this
   5-15  article, that the license fee has been paid, and that the
   5-16  applicant:
   5-17              (1)  is at least 18 years of age;
   5-18              (2)  is a citizen of the United States;
   5-19              (3)  is a resident of this state;
   5-20              (4)  is trustworthy and of a moral character that
   5-21  reasonably ensures that the applicant will conduct the business of
   5-22  a public adjuster fairly and in good faith without detriment to the
   5-23  members of the public whose interests the public adjuster may
   5-24  represent;
   5-25              (5)  has never been convicted of a felony or if
   5-26  convicted of a felony, has received a full pardon from that
   5-27  conviction and is otherwise relieved from any disabilities
    6-1  connected with that conviction;
    6-2              (6)  has sufficient experience or training relating to
    6-3  the assessment of:
    6-4                    (A)  real and personal property values; and
    6-5                    (B)  physical loss or damage to real or personal
    6-6  property that may be the subject of insurance and claims under
    6-7  insurance;
    6-8              (7)  has a general understanding of the earnings
    6-9  capabilities of insurance;
   6-10              (8)  is sufficiently informed as to the terms and
   6-11  effects of the types of insurance contracts that provide coverage
   6-12  on real and personal property;
   6-13              (9)  possesses knowledge and experience adequate to
   6-14  enable the applicant to engage in the business of a public adjuster
   6-15  fairly and without injury to the public or any member of the public
   6-16  with whom the public adjuster may have business as a public
   6-17  adjuster;
   6-18              (10)  has successfully passed the license examination
   6-19  adopted under Section 5 of this article or is exempt from the
   6-20  examination requirement under this article; and
   6-21              (11)  has complied with the security requirements
   6-22  imposed under Section 4 of this article.
   6-23        Sec. 7.  NONRESIDENT LICENSE.  (a)  The commissioner may
   6-24  issue a nonresident license to an applicant for a public adjuster
   6-25  license who is not a permanent resident of this state if the
   6-26  applicant:
   6-27              (1)  holds a license as a public adjuster issued by
    7-1  another state;
    7-2              (2)  files a bond in accordance with Section 4 of this
    7-3  article in the amount required by Subsection (b) of this section;
    7-4  and
    7-5              (3)  pays the application fee required by Subsection
    7-6  (c) of this section.
    7-7        (b)  An applicant for a nonresident license must file a bond
    7-8  with the department in the amount of $50,000.
    7-9        (c)  An applicant for a nonresident license shall pay an
   7-10  application fee of $350.
   7-11        (d)  Each person who holds a nonresident license shall comply
   7-12  with all laws, including rules, of this state applicable to public
   7-13  adjusters, including the law governing the collection of state
   7-14  sales tax as appropriate for services performed under this article.
   7-15        Sec. 8.  REGISTRATION PROGRAM FOR PUBLIC ADJUSTER TRAINEES.
   7-16  (a)  A public adjuster trainee must register with the department
   7-17  for a temporary certificate under this section.  An applicant for a
   7-18  temporary certificate as a trainee shall apply to the commissioner
   7-19  on a form prescribed by the commissioner.  The form must be
   7-20  accompanied by a nonrefundable $125 registration fee.
   7-21        (b)  A temporary certificate may be issued under this section
   7-22  only for educational and training purposes.  The holder of a
   7-23  temporary certificate may practice only under the direction and
   7-24  sponsorship of a licensed public adjuster.
   7-25        (c)  The sponsor of a public adjuster trainee shall attest,
   7-26  on a form prescribed by the commissioner, that the trainee is under
   7-27  the supervision and control of the sponsor, and that the sponsor
    8-1  has met the security requirements of Section 4 of this article.
    8-2        (d)  A temporary certificate expires on the 180th day after
    8-3  the date of issuance, and may be renewed once on application to the
    8-4  commissioner.  A person is not entitled to hold more than two
    8-5  consecutive temporary certificates.
    8-6        (e)  Each person who holds a temporary certificate under this
    8-7  section must comply with the security requirements imposed under
    8-8  Section 4 of this article.
    8-9        Sec. 9.  PLACE OF BUSINESS; AGENT FOR SERVICE OF PROCESS.
   8-10  (a)  Each licensed public adjuster who is a resident of this state
   8-11  shall maintain in this state a place of business accessible to the
   8-12  general public.  The address of the place of business must appear
   8-13  on the face of the license.  Each license holder shall promptly
   8-14  notify the commissioner of any change in the address.
   8-15        (b)  Each nonresident public adjuster shall maintain an agent
   8-16  in this state for service of process.  The name and address of the
   8-17  agent must appear on the face of the license.  The license holder
   8-18  shall promptly notify the department of any change in the agent for
   8-19  service of process.
   8-20        Sec. 10.  CONDUCT TO COMPLY WITH CONTRACT.  A licensed public
   8-21  adjuster shall prepare each claim for an insured represented by the
   8-22  adjuster in accordance with the terms and conditions of the
   8-23  contract of insurance under which recovery is sought.
   8-24        Sec. 11.  CODE OF ETHICS.  The commissioner by rule may adopt
   8-25  a code of ethics for public adjusters to:
   8-26              (1)  foster the education of public adjusters
   8-27  concerning the ethical, legal, and business principles that should
    9-1  govern their conduct; and
    9-2              (2)  adopt recommendations regarding the solicitation
    9-3  of the adjustment of losses by public adjusters.
    9-4        Sec. 12.  PUBLIC ADJUSTER AUTHORITY; EXEMPTION FROM INSURANCE
    9-5  LAWS.  (a)  This article does not limit or diminish the authority
    9-6  of a public adjuster licensed under this article to investigate or
    9-7  adjust a loss to less than the authority for that purpose that may
    9-8  be exercised by an adjuster licensed under Chapter 407, Acts of the
    9-9  63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's
   9-10  Texas Insurance Code).
   9-11        (b)  A public adjuster licensed under this article is exempt
   9-12  from:
   9-13              (1)  Articles 21.01, 21.02, 21.02-1, 21.04, 21.06,
   9-14  21.07, and 21.14 of this code;
   9-15              (2)  Chapter 213, Acts of the 54th Legislature, Regular
   9-16  Session, 1955 (Article 21.07-1, Vernon's Texas Insurance Code);
   9-17              (3)  Chapter 757, Acts of the 60th Legislature, Regular
   9-18  Session, 1967 (Article 21.07-3, Vernon's Texas Insurance Code); and
   9-19              (4)  Chapter 407, Acts of the 63rd Legislature, Regular
   9-20  Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code).
   9-21        Sec. 13.  LICENSE RENEWAL; CONTINUING EDUCATION REQUIREMENT.
   9-22  (a)  A license issued under this article expires on the first
   9-23  anniversary of the date of issuance.  A license holder may renew
   9-24  the license by filing a renewal application with the commissioner
   9-25  in the form prescribed by the commissioner that demonstrates
   9-26  continued compliance with the license requirements imposed under
   9-27  this article or adopted by rule by the commissioner.  The renewal
   10-1  application must be accompanied by a $75 renewal fee and evidence
   10-2  of compliance with the continuing education requirements imposed
   10-3  under Subsection (b) of this section.
   10-4        (b)  Each license holder must annually complete at least 15
   10-5  hours of continuing education courses.  The commissioner by rule
   10-6  shall prescribe the requirements for continuing education courses
   10-7  under this article.
   10-8        (c)  A license holder must submit the renewal information and
   10-9  renewal fee to the commissioner not later than the 30th day after
  10-10  the anniversary date of the license.  If the license holder fails
  10-11  to submit the renewal application and fee within the required
  10-12  period, the license lapses.
  10-13        Sec. 14.  CONTINGENT FEES.  (a)  Except as provided by
  10-14  Subsection (b) of this section, a public adjuster may receive a
  10-15  contingent fee for adjusting a claim under this article.  A
  10-16  contingent fee collected under this section may not exceed 15
  10-17  percent of the amount of the insurance settlement on the claim.
  10-18        (b)  A public adjuster may not receive a contingent fee on a
  10-19  claim for which an insurance company, not later than 72 hours after
  10-20  the date on which the loss is reported to the insurance company,
  10-21  either pays or commits in writing to pay to the insured the policy
  10-22  limit of the insurance policy in accordance with Article 6.13 of
  10-23  this code.  The public adjuster is entitled to reasonable
  10-24  compensation from the insured for services provided by the adjuster
  10-25  on behalf of the insured, based on the time spent on a claim that
  10-26  is subject to this subsection and expenses incurred by the
  10-27  adjuster, until the claim is paid or the insured receives a written
   11-1  commitment to pay from the insurance company.
   11-2        Sec. 15.  PROHIBITED CONDUCT.  (a)  A public adjuster may not
   11-3  render legal advice to any person in the adjuster's capacity as a
   11-4  public adjuster.
   11-5        (b)  A public adjuster may not represent an insured on a
   11-6  claim or charge a fee to an insured while representing the
   11-7  insurance carrier against which the claim is made.
   11-8        (c)  A public adjuster may not, between the hours of 10 p.m.
   11-9  and 6 a.m., solicit or attempt to solicit on a loss or claim in
  11-10  person, by telephone, or in any other manner.
  11-11        (d)  A public adjuster may not solicit or attempt to solicit,
  11-12  directly or indirectly, on any loss involving bodily injury covered
  11-13  by a life, health, or accident insurance policy.
  11-14        (e)  A public adjuster may not acquire an interest in
  11-15  salvaged property that is the subject of a claim adjusted by the
  11-16  public adjuster without the knowledge and consent of the insured.
  11-17        (f)  A public adjuster may not participate directly or
  11-18  indirectly in the reconstruction, repair, or restoration of the
  11-19  damaged property or engage in any other activities that may
  11-20  reasonably be construed as presenting a conflict of interest.
  11-21        Sec. 16.  DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.  (a)
  11-22  The commissioner may deny, suspend, or revoke a public adjuster's
  11-23  license for:
  11-24              (1)  a violation of this article;
  11-25              (2)  a cause that constitutes grounds for denial of an
  11-26  original license;
  11-27              (3)  willful misrepresentation or fraud in obtaining
   12-1  the license;
   12-2              (4)  failure to pass a required license examination;
   12-3              (5)  misappropriation or conversion by the license
   12-4  applicant or license holder of money required to be held in a
   12-5  fiduciary capacity;
   12-6              (6)  material misrepresentation, with intent to
   12-7  deceive, of the terms of an insurance contract;
   12-8              (7)  engaging in a fraudulent transaction;
   12-9              (8)  demonstrated incompetence or untrustworthiness in
  12-10  the conduct of the license holder's affairs under the license, as
  12-11  determined by the commissioner;
  12-12              (9)  conviction of a felony by a final judgment in a
  12-13  court of competent jurisdiction; or
  12-14              (10)  material misrepresentation, with intent to
  12-15  deceive, of the person's status as a public adjuster.
  12-16        (b)  A license applicant or license holder who is denied a
  12-17  license or whose license is revoked or suspended under this section
  12-18  is entitled to notice and a hearing as provided by Section 5,
  12-19  Article 21.01-2, of this code.
  12-20        (c)  A final order entered as a result of a hearing under
  12-21  this section may be appealed to a court of competent jurisdiction
  12-22  as provided by Subchapter G, Chapter 2001, Government Code.
  12-23        (d)  An order suspending a public adjuster's license must
  12-24  specify the period of the suspension not to exceed 12 months.
  12-25        (e)  The holder of a license that is revoked or suspended for
  12-26  cause shall surrender the license to the commissioner on demand.
  12-27        (f)  The commissioner may issue a license or reinstate a
   13-1  suspended or revoked license on a finding that the cause for
   13-2  suspension, revocation, or refusal no longer exists.
   13-3        (g)  A person whose license is suspended under this article
   13-4  may apply for a new license only after the expiration of the period
   13-5  of suspension.  A person whose license is revoked or whose
   13-6  application for a license is denied may not apply for a new license
   13-7  until the expiration of 12 months after the date of the revocation
   13-8  or denial.
   13-9        Sec. 17.  NOTICE TO LAST ADDRESS.  Notice by registered mail,
  13-10  return receipt requested, to the last known address of a license
  13-11  applicant, license holder, or other person to whom notice is
  13-12  required to be sent under this article, as reflected by the records
  13-13  of the department, constitutes sufficient notice.
  13-14        Sec. 18.  CRIMINAL PENALTY; SANCTIONS.  (a)  A person commits
  13-15  an offense if the person violates this article.  An offense under
  13-16  this subsection is a misdemeanor punishable by:
  13-17              (1)  a fine not to exceed $1,000;
  13-18              (2)  confinement in county jail for a term not to
  13-19  exceed six months; or
  13-20              (3)  both the fine and confinement.
  13-21        (b)  In addition to the criminal penalty imposed under
  13-22  Subsection (a) of this section, a person in violation of this
  13-23  article is subject to the sanctions provided by Section 7, Article
  13-24  21.21, of this code as if the person had violated an order under
  13-25  that section.
  13-26        SECTION 2.  (a)  The commissioner of insurance shall appoint
  13-27  the members of the advisory committee created under Section 5(b),
   14-1  Article 21.07-5, Insurance Code, as added by this Act, not later
   14-2  than October 31, 1995.
   14-3        (b)  The commissioner of insurance shall adopt the
   14-4  examination required by Section 5, Article 21.07-5, Insurance Code,
   14-5  as added by this Act, not later than March 1, 1996.  Pending the
   14-6  adoption of the examination, the commissioner may issue a temporary
   14-7  license to practice as a public adjuster to a person who satisfies
   14-8  all the requirements for issuance of the license except the
   14-9  examination requirement.  A temporary license issued under this
  14-10  subsection expires June 1, 1996, and may not be renewed.
  14-11        SECTION 3.  (a)  Except as provided by Subsection (b) of this
  14-12  section, this Act takes effect September 1, 1995.
  14-13        (b)  Sections 2(a) and 18, Article 21.07-5, Insurance Code,
  14-14  as added by this Act, take effect January 1, 1996.
  14-15        SECTION 4.  The importance of this legislation and the
  14-16  crowded condition of the calendars in both houses create an
  14-17  emergency and an imperative public necessity that the
  14-18  constitutional rule requiring bills to be read on three several
  14-19  days in each house be suspended, and this rule is hereby suspended.