1-1  By:  Junell, Naishtat (Senate Sponsor - Montford)     H.B. No. 3104
    1-2        (In the Senate - Received from the House April 25, 1995;
    1-3  April 26, 1995, read first time and referred to Committee on
    1-4  Economic Development; May 12, 1995, reported favorably by the
    1-5  following vote:  Yeas 10, Nays 0; May 12, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to an exemption of certain charitable gift annuities from
    1-9  regulation under the Insurance Code.
   1-10        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-11        SECTION 1.  Section 2(b), Article 1.14-1, Insurance Code, is
   1-12  amended to read as follows:
   1-13        (b)  The provisions of this section do not apply to:
   1-14              (1)  the <1.  The> lawful transaction of surplus lines
   1-15  insurance pursuant to Article 1.14-2;<.>
   1-16              (2)  the <2.  The> lawful transaction of reinsurance by
   1-17  insurers;<.>
   1-18              (3)  transactions <3.  Transactions> in this state
   1-19  involving a policy lawfully solicited, written, and delivered
   1-20  outside of this state covering only subjects of insurance not
   1-21  resident, located, or expressly to be performed in this state at
   1-22  the time of issuance, and which transactions are subsequent to the
   1-23  issuance of such policy;<.>
   1-24              (4)  transactions <4.  Transactions> involving
   1-25  contracts of insurance independently procured through negotiations
   1-26  occurring entirely outside of this state which are reported and on
   1-27  which premium tax is paid in accordance with this Article;<.>
   1-28              (5)  transactions <5.  Transactions> in this state
   1-29  involving group life, health or accident insurance (other than
   1-30  credit insurance) and group annuities where the master policy of
   1-31  such groups was lawfully issued and delivered in a state in which
   1-32  the company was authorized to do an insurance business and such
   1-33  transactions are authorized by other statutes of this state;<.>
   1-34              (6)  lawful <6.  Lawful> transactions by servicing
   1-35  companies of the Texas workers' compensation employers' rejected
   1-36  risk fund pursuant to Section 4.08, Article 5.76-2;<.>
   1-37              (7)  management <7.  Management> and accounting
   1-38  activities in this state on behalf of a non-admitted captive
   1-39  insurance company that insures solely directors' and officers'
   1-40  liability insurance for the directors and officers of its parent
   1-41  and affiliated companies and/or the risks of its parent and
   1-42  affiliated companies; provided, that this<.  This> provision does
   1-43  not exempt any insured or insurer from the payment of any
   1-44  applicable tax on premiums or any other applicable provision in
   1-45  this code; or
   1-46              (8)  the issuance of qualified charitable gift
   1-47  annuities under Article 1.14-1A of this code.
   1-48        SECTION 2.  Chapter 1, Insurance Code, is amended by adding
   1-49  Article 1.14-1A to read as follows:
   1-50        Art. 1.14-1A.  CHARITABLE GIFT ANNUITIES
   1-51        Sec. 1.  DEFINITIONS.  In this article:
   1-52              (1)  "Charitable gift annuity" means a transfer of cash
   1-53  or other property by a donor to a charitable organization in return
   1-54  for an annuity payable over one or two lives, under which the
   1-55  actuarial value of the annuity is less than the value of the cash
   1-56  or other property transferred and the difference in value
   1-57  constitutes a charitable deduction for federal tax purposes.
   1-58              (2)  "Charitable organization" means an entity
   1-59  described by:
   1-60                    (A)  Section 501(c)(3), Internal Revenue Code of
   1-61  1986 (26 U.S.C.  Section 501(c)(3)); or
   1-62                    (B)  Section 170(c), Internal Revenue Code of
   1-63  1986 (26 U.S.C. Section 170(c)).
   1-64              (3)  "Qualified charitable gift annuity" means a
   1-65  charitable gift annuity described by Section 501(m)(5), Internal
   1-66  Revenue Code of 1986 (26 U.S.C.  Section 501(m)(5)), and Section
   1-67  514(c)(5), Internal Revenue Code of 1986 (26 U.S.C. Section
   1-68  514(c)(5)), that is issued by a charitable organization that on the
    2-1  date of the annuity agreement:
    2-2                    (A)  has a minimum of $100,000 in unrestricted
    2-3  cash, cash equivalents, or publicly traded securities, exclusive of
    2-4  the assets funding the annuity agreement; and
    2-5                    (B)  has been in continuous operation for at
    2-6  least three years or is a successor or affiliate of a charitable
    2-7  organization that has been in continuous operation for at least
    2-8  three years.
    2-9        Sec. 2.  NOT INSURANCE.  (a)  The issuance of a qualified
   2-10  charitable gift annuity does not constitute engaging in the
   2-11  business of insurance in this state.
   2-12        (b)  A charitable gift annuity issued before September 1,
   2-13  1995, is a qualified charitable gift annuity for purposes of this
   2-14  article and Article 1.14-1 of this code, and the issuance of that
   2-15  charitable gift annuity does not constitute engaging in the
   2-16  business of insurance in this state.
   2-17        Sec. 3.  NOTICE TO DONOR.  (a)  When entering into an
   2-18  agreement for a qualified charitable gift annuity, the charitable
   2-19  organization shall disclose to the donor in writing in the annuity
   2-20  agreement that a qualified charitable gift annuity is not insurance
   2-21  under the laws of this state and is not subject to regulation by
   2-22  the department or protected by a guaranty association affiliated
   2-23  with the department.
   2-24        (b)  The notice provisions required by this section must be
   2-25  in a separate paragraph in a print size no smaller than that
   2-26  employed in the annuity agreement generally.
   2-27        Sec. 4.  NOTICE TO DEPARTMENT.  (a)  A charitable
   2-28  organization that issues qualified charitable gift annuities shall
   2-29  notify the department's annuities division in writing by the later
   2-30  of 90 days after the effective date of this Act or the date on
   2-31  which it enters into the organization's first qualified charitable
   2-32  gift annuity agreement.  The notice must:
   2-33              (1)  be signed by an officer or director of the
   2-34  organization;
   2-35              (2)  identify the organization; and
   2-36              (3)  certify that:
   2-37                    (A)  the organization is a charitable
   2-38  organization; and
   2-39                    (B)  the annuities issued by the organization are
   2-40  qualified charitable gift annuities.
   2-41        (b)  The organization shall not be required to submit
   2-42  additional information except to determine appropriate penalties
   2-43  that may be applicable under Section 5 of this article.
   2-44        Sec. 5.  EFFECT OF FAILURE TO PROVIDE REQUIRED NOTICE.  The
   2-45  failure of a charitable organization to comply with the notice
   2-46  requirements imposed under Section 3 or 4 of this article does not
   2-47  prevent a charitable gift annuity that otherwise meets the
   2-48  requirements of this article from constituting a qualified
   2-49  charitable gift annuity.  However, the commissioner may enforce
   2-50  performance of the requirements of Sections 3 and 4 of this article
   2-51  by sending a letter by certified mail, return receipt requested,
   2-52  demanding that the charitable organization comply with the
   2-53  requirements of Sections 3 and 4 of this article.  The department
   2-54  may fine the charitable organization in an amount not to exceed
   2-55  $1,000 per qualified charitable gift annuity agreement issued until
   2-56  such time as the charitable organization complies with Sections 3
   2-57  and 4 of this article.
   2-58        Sec. 6.  NOT UNFAIR OR DECEPTIVE TRADE PRACTICE.  The
   2-59  issuance of a qualified charitable gift annuity does not constitute
   2-60  a violation of Section 15.05, 17.46, or 17.50(a)(3), Business &
   2-61  Commerce Code.
   2-62        SECTION 3.  A charitable organization that is engaged in
   2-63  issuing qualified charitable gift annuities in this state on the
   2-64  effective date of this Act shall notify the Texas Department of
   2-65  Insurance as required under Article 1.14-1A, Insurance Code, as
   2-66  added by this Act, not later than 90 days after the effective date
   2-67  of this Act.
   2-68        SECTION 4.  Sections 1(1), 2, and 6, Article 1.14-1A,
   2-69  Insurance Code, as added by this Act, and Section 2(b), Article
   2-70  1.14-1, Insurance Code, as amended by this Act, are a clarification
    3-1  of the law as it existed before the effective date of this Act.
    3-2        SECTION 5.  The importance of this legislation and the
    3-3  crowded condition of the calendars in both houses create an
    3-4  emergency and an imperative public necessity that the
    3-5  constitutional rule requiring bills to be read on three several
    3-6  days in each house be suspended, and this rule is hereby suspended,
    3-7  and that this Act take effect and be in force from and after its
    3-8  passage, and it is so enacted.
    3-9                               * * * * *