By De La Garza H.B. No. 2072 74R5957 PB-F 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 an attorney licensed by 1-24 this state. 2-1 (c) The practice of functions under this article by a 2-2 licensed public adjuster does not constitute the unauthorized 2-3 practice of law. 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 executed and issued by a surety insurer and must be in the amount 2-22 of $25,000, payable to the commissioner for the use and benefit of 2-23 any person who recovers a judgment against the individual license 2-24 holder, and conditioned on the faithful performance of the license 2-25 holder in connection with the license holder's business as a public 2-26 adjuster. 2-27 (b) Instead of a bond under Subsection (a) of this section, 3-1 an applicant may: 3-2 (1) file with the commissioner a professional 3-3 liability policy or similar policy or contract of professional 3-4 liability coverage acceptable to the commissioner that insures the 3-5 individual applicant against errors and omissions in at least the 3-6 amount of $50,000, with a deductible not to exceed $1,500; or 3-7 (2) deposit with the state treasurer cash or 3-8 securities of the class authorized by Articles 2.08 and 2.10 of 3-9 this code that have a fair market value of at least $50,000, to be 3-10 held exclusively for the protection of a person who recovers a 3-11 final judgment against the applicant. 3-12 (c) A professional liability policy provided by a public 3-13 adjuster's employer constitutes satisfactory compliance with the 3-14 requirements of this section if the employer's professional 3-15 liability policy has a minimum liability limit of $250,000 for all 3-16 employees. 3-17 (d) If a bond is used to satisfy the requirements of this 3-18 section, the bond must specifically authorize recovery by the 3-19 commissioner of the damages sustained if the license holder is 3-20 determined to be guilty of fraud or unfair practices in connection 3-21 with the license holder's business as a public adjuster. The 3-22 aggregate liability of the surety for all damages may not exceed 3-23 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 a final judgment has been recovered against the 4-15 applicant and the final judgment remains unsatisfied. The final 4-16 judgment may be paid from the deposit only to the extent of 4-17 deficiency in satisfaction of the final judgment. 4-18 Sec. 5. LICENSE EXAMINATION; ADVISORY COMMITTEE. (a) The 4-19 commissioner shall adopt a written examination for a public 4-20 adjuster's license that is similar to the examination administered 4-21 for an insurance adjuster's license under Section 10, Chapter 407, 4-22 Acts of the 63rd Legislature, Regular Session, 1973 (Article 4-23 21.07-4, Vernon's Texas Insurance Code). 4-24 (b) The commissioner shall appoint an industry advisory 4-25 committee, composed of at least five members, to assist in 4-26 developing the examination required by this section. At least 4-27 three members must be persons who are eligible for licensure as 5-1 public adjusters. At least one member must be a person from the 5-2 insurance industry who is not a public adjuster. A member of the 5-3 advisory committee is not entitled to compensation for service on 5-4 the committee. A member is entitled to reimbursement for 5-5 reasonable and necessary expenses incurred in performing services 5-6 for the committee, subject to any applicable limitation in the 5-7 General Appropriations Act. 5-8 (c) An examination is not required for the renewal of a 5-9 license issued under this article. 5-10 Sec. 6. LICENSE ISSUANCE; QUALIFICATIONS. The commissioner 5-11 shall issue a public adjuster's license to an applicant on 5-12 determining that the application meets the requirements of this 5-13 article, that the license fee has been paid, and that the 5-14 applicant: 5-15 (1) is at least 18 years of age; 5-16 (2) is a citizen of the United States and a resident 5-17 of this state; 5-18 (3) is trustworthy and of a moral character that 5-19 reasonably ensures that the applicant will conduct the business of 5-20 a public adjuster fairly and in good faith without detriment to the 5-21 members of the public whose interests the public adjuster may 5-22 represent; 5-23 (4) has never been convicted of a felony or if 5-24 convicted of a felony, has received a full pardon from that 5-25 conviction and is otherwise relieved from any disabilities 5-26 connected with that conviction; 5-27 (5) has sufficient experience or training relating to 6-1 the assessment of: 6-2 (A) real and personal property values; and 6-3 (B) physical loss or damage to real or personal 6-4 property that may be the subject of insurance and claims under 6-5 insurance; 6-6 (6) has a general understanding of the earnings 6-7 capabilities of insurance; 6-8 (7) is sufficiently informed as to the terms and 6-9 effects of the types of insurance contracts that provide coverage 6-10 on real and personal property; 6-11 (8) possesses knowledge and experience adequate to 6-12 enable the applicant to engage in the business of a public adjuster 6-13 fairly and without injury to the public or any member of the public 6-14 with whom the public adjuster may have business as a public 6-15 adjuster; 6-16 (9) has successfully passed the license examination 6-17 adopted under Section 5 of this article or is exempt from the 6-18 examination requirement under this article; and 6-19 (10) has complied with the security requirements 6-20 imposed under Section 4 of this article. 6-21 Sec. 7. LICENSE BY RECIPROCITY. (a) The commissioner may 6-22 issue a reciprocal license to an applicant for a public adjuster 6-23 license who is not a permanent resident of this state if the 6-24 applicant: 6-25 (1) holds a license as a public adjuster issued by 6-26 another state that: 6-27 (A) the commissioner determines to have license 7-1 requirements substantially similar to those of this state; and 7-2 (B) grants analogous reciprocity to residents of 7-3 this state; 7-4 (2) files a bond in accordance with Section 4 of this 7-5 article in the amount required by Subsection (b) of this section; 7-6 and 7-7 (3) pays the application fee required by Subsection 7-8 (c) of this section. 7-9 (b) An applicant for a reciprocal license must file a bond 7-10 with the department in the amount of $100,000. If more than one 7-11 applicant from the same firm applies, the bond amount is increased 7-12 by $25,000 per applicant, to a maximum of $200,000 per firm. 7-13 (c) An applicant for a reciprocal license shall pay an 7-14 application fee of $1,500. If more than one applicant from the 7-15 same firm applies, the application fee is increased by $500 for 7-16 each additional applicant, to a maximum of $3,500 per firm. 7-17 (d) Each person who holds a reciprocal license shall comply 7-18 with all laws, including rules, of this state applicable to public 7-19 adjusters, including the law governing the collection of state 7-20 sales tax as appropriate for services performed under this article. 7-21 (e) The commissioner may enter into reciprocal agreements 7-22 with the appropriate officials of any other state to implement this 7-23 section. 7-24 Sec. 8. REGISTRATION PROGRAM FOR PUBLIC ADJUSTER TRAINEES. 7-25 (a) A public adjuster trainee must register with the department 7-26 for a temporary certificate under this section. An applicant for a 7-27 temporary certificate as a trainee shall apply to the commissioner 8-1 on a form prescribed by the commissioner. The form must be 8-2 accompanied by a nonrefundable $125 registration fee. 8-3 (b) A temporary certificate may be issued under this section 8-4 only for educational and training purposes. The holder of a 8-5 temporary certificate may practice only under the direction and 8-6 sponsorship of a licensed public adjuster. 8-7 (c) The sponsor of a public adjuster trainee shall attest, 8-8 on a form prescribed by the commissioner, that the trainee is under 8-9 the supervision and control of the sponsor, and that the sponsor 8-10 has met the security requirements of Section 4 of this article. 8-11 (d) A temporary certificate expires on the 180th day after 8-12 the date of issuance, and may be renewed once on application to the 8-13 commissioner. A person is not entitled to hold more than two 8-14 consecutive temporary certificates. 8-15 (e) Each person who holds a temporary certificate under this 8-16 section must comply with the security requirements imposed under 8-17 Section 4 of this article. 8-18 Sec. 9. PLACE OF BUSINESS. Each licensed public adjuster 8-19 shall maintain in this state a place of business accessible to the 8-20 general public. The address of the place of business must appear 8-21 on the face of the license. Each license holder shall promptly 8-22 notify the commissioner of any change in the address. 8-23 Sec. 10. CONDUCT TO COMPLY WITH CONTRACT. A licensed public 8-24 adjuster shall prepare each claim for an insured represented by the 8-25 adjuster in accordance with the terms and conditions of the 8-26 contract of insurance under which recovery is sought. 8-27 Sec. 11. CODE OF ETHICS. The commissioner by rule may adopt 9-1 a code of ethics for public adjusters to: 9-2 (1) foster the education of public adjusters 9-3 concerning the ethical, legal, and business principles that should 9-4 govern their conduct; and 9-5 (2) adopt recommendations regarding the solicitation 9-6 of the adjustment of losses by public adjusters. 9-7 Sec. 12. PUBLIC ADJUSTER AUTHORITY; EXEMPTION FROM INSURANCE 9-8 LAWS. (a) This article does not limit or diminish the authority 9-9 of a public adjuster licensed under this article to investigate or 9-10 adjust a loss to less than the authority for that purpose that may 9-11 be exercised by an adjuster licensed under Chapter 407, Acts of the 9-12 63rd Legislature, Regular Session, 1973 (Article 21.07-4, Vernon's 9-13 Texas Insurance Code). 9-14 (b) A public adjuster licensed under this article is exempt 9-15 from: 9-16 (1) Articles 21.01, 21.02, 21.02-1, 21.04, 21.06, 9-17 21.07, and 21.14 of this code; 9-18 (2) Chapter 213, Acts of the 54th Legislature, Regular 9-19 Session, 1955 (Article 21.07-1, Vernon's Texas Insurance Code); 9-20 (3) Chapter 757, Acts of the 60th Legislature, Regular 9-21 Session, 1967 (Article 21.07-3, Vernon's Texas Insurance Code); and 9-22 (4) Chapter 407, Acts of the 63rd Legislature, Regular 9-23 Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code). 9-24 Sec. 13. LICENSE RENEWAL; CONTINUING EDUCATION REQUIREMENT. 9-25 (a) A license issued under this article expires on the first 9-26 anniversary of the date of issuance. A license holder may renew 9-27 the license by filing a renewal application with the commissioner 10-1 in the form prescribed by the commissioner that demonstrates 10-2 continued compliance with the license requirements imposed under 10-3 this article or adopted by rule by the commissioner. The renewal 10-4 application must be accompanied by a $75 renewal fee and evidence 10-5 of compliance with the continuing education requirements imposed 10-6 under Subsection (b) of this section. 10-7 (b) Each license holder must annually complete at least 15 10-8 hours of continuing education courses. The commissioner by rule 10-9 shall prescribe the requirements for continuing education courses 10-10 under this article. 10-11 (c) A license holder must submit the renewal information and 10-12 renewal fee to the commissioner not later than the 30th day after 10-13 the anniversary date of the license. If the license holder fails 10-14 to submit the renewal application and fee within the required 10-15 period, the license lapses. 10-16 Sec. 14. PROHIBITED CONDUCT. (a) A public adjuster may not 10-17 render legal advice to any person in the adjuster's capacity as a 10-18 public adjuster. 10-19 (b) A public adjuster may not represent an insured on a 10-20 claim or charge a fee to an insured while representing the 10-21 insurance carrier against which the claim is made. 10-22 (c) A public adjuster may not, between the hours of 10 p.m. 10-23 and 6:00 a.m., solicit or attempt to solicit on a loss or claim in 10-24 person, by telephone, or in any other manner. 10-25 (d) A public adjuster may not solicit or attempt to solicit, 10-26 directly or indirectly, on any loss involving bodily injury covered 10-27 by a life, health, or accident insurance policy. 11-1 (e) A public adjuster may not acquire an interest in 11-2 salvaged property that is the subject of a claim adjusted by the 11-3 public adjuster without the knowledge and consent of the insured. 11-4 (f) A public adjuster may not participate directly or 11-5 indirectly in the reconstruction, repair, or restoration of the 11-6 damaged property or engage in any other activities that may 11-7 reasonably be construed as presenting a conflict of interest. 11-8 Sec. 15. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE. (a) 11-9 The commissioner may deny, suspend, or revoke a public adjuster's 11-10 license for: 11-11 (1) a violation of this article; 11-12 (2) a cause that constitutes grounds for denial of an 11-13 original license; 11-14 (3) willful misrepresentation or fraud in obtaining 11-15 the license; 11-16 (4) failure to pass the license examination; 11-17 (5) misappropriation or conversion by the license 11-18 applicant or license holder of money required to be held in a 11-19 fiduciary capacity; 11-20 (6) material misrepresentation, with intent to 11-21 deceive, of the terms of an insurance contract; 11-22 (7) engaging in a fraudulent transaction; 11-23 (8) demonstrated incompetence or untrustworthiness in 11-24 the conduct of the license holder's affairs under the license, as 11-25 determined by the commissioner; 11-26 (9) conviction of a felony by a final judgment in a 11-27 court of competent jurisdiction; or 12-1 (10) material misrepresentation, with intent to 12-2 deceive, of the person's status as a public adjuster. 12-3 (b) A license applicant or license holder who is denied a 12-4 license or whose license is revoked or suspended under this section 12-5 is entitled to notice and a hearing as provided by Section 5, 12-6 Article 21.01-2, of this code. 12-7 (c) A final order entered as a result of a hearing under 12-8 this section may be appealed to a court of competent jurisdiction 12-9 as provided by Subchapter G, Chapter 2001, Government Code. 12-10 (d) An order suspending a public adjuster's license must 12-11 specify the period of the suspension not to exceed 12 months. 12-12 (e) The holder of a license that is revoked or suspended for 12-13 cause shall surrender the license to the commissioner on demand. 12-14 (f) The commissioner may issue a license or reinstate a 12-15 suspended or revoked license on a finding that the cause for 12-16 suspension, revocation, or refusal no longer exists. 12-17 (g) A person whose license is suspended under this article 12-18 may apply for a new license only after the expiration of the period 12-19 of suspension. A person whose license is revoked or whose 12-20 application for a license is denied may not apply for a new license 12-21 until the expiration of 12 months after the date of the revocation 12-22 or denial. 12-23 Sec. 16. NOTICE TO LAST ADDRESS. Notice by registered mail, 12-24 return receipt requested, to the last known address of a license 12-25 applicant, license holder, or other person to whom notice is 12-26 required to be sent under this article, as reflected by the records 12-27 of the department, constitutes sufficient notice. 13-1 Sec. 17. CRIMINAL PENALTY; SANCTIONS. (a) A person commits 13-2 an offense if the person violates this article. An offense under 13-3 this subsection is a misdemeanor punishable by: 13-4 (1) a fine not to exceed $1,000; 13-5 (2) confinement in county jail for a term not to 13-6 exceed six months; or 13-7 (3) both the fine and confinement. 13-8 (b) In addition to the criminal penalty imposed under 13-9 Subsection (a) of this section, a person in violation of this 13-10 article is subject to the sanctions provided by Section 7, Article 13-11 21.21, of this code as if the person had violated an order under 13-12 that section. 13-13 SECTION 2. (a) The commissioner of insurance shall appoint 13-14 the members of the advisory committee created under Section 5(b), 13-15 Article 21.07-5, Insurance Code, as added by this Act, not later 13-16 than October 31, 1995. 13-17 (b) The commissioner of insurance shall adopt the 13-18 examination required by Section 5, Article 21.07-5, Insurance Code, 13-19 as added by this Act, not later than March 1, 1996. Pending the 13-20 adoption of the examination, the commissioner may issue a temporary 13-21 license to practice as a public adjuster to a person who satisfies 13-22 all the requirements for issuance of the license except the 13-23 examination requirement. A temporary license issued under this 13-24 subsection expires June 1, 1996, and may not be renewed. 13-25 SECTION 3. (a) Except as provided by Subsection (b) of this 13-26 section, this Act takes effect September 1, 1995. 13-27 (b) Sections 2(a) and 17, Article 21.07-5, Insurance Code, 14-1 as added by this Act, take effect January 1, 1996. 14-2 SECTION 4. The importance of this legislation and the 14-3 crowded condition of the calendars in both houses create an 14-4 emergency and an imperative public necessity that the 14-5 constitutional rule requiring bills to be read on three several 14-6 days in each house be suspended, and this rule is hereby suspended.