By:  Montford                                         S.B. No. 1251
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to an exemption of certain charitable gift annuities from
    1-2  regulation under the Insurance Code.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 2(b), Article 1.14-1, Insurance Code, is
    1-5  amended to read as follows:
    1-6        (b)  The provisions of this section do not apply to:
    1-7              (1)  the <1.  The> lawful transaction of surplus lines
    1-8  insurance pursuant to Article 1.14-2;<.>
    1-9              (2)  the <2.  The> lawful transaction of reinsurance by
   1-10  insurers;<.>
   1-11              (3)  transactions <3.  Transactions> in this state
   1-12  involving a policy lawfully solicited, written, and delivered
   1-13  outside of this state covering only subjects of insurance not
   1-14  resident, located, or expressly to be performed in this state at
   1-15  the time of issuance, and which transactions are subsequent to the
   1-16  issuance of such policy;<.>
   1-17              (4)  transactions <4.  Transactions> involving
   1-18  contracts of insurance independently procured through negotiations
   1-19  occurring entirely outside of this state which are reported and on
   1-20  which premium tax is paid in accordance with this Article;<.>
   1-21              (5)  transactions <5.  Transactions> in this state
   1-22  involving group life, health or accident insurance (other than
   1-23  credit insurance) and group annuities where the master policy of
    2-1  such groups was lawfully issued and delivered in a state in which
    2-2  the company was authorized to do an insurance business and such
    2-3  transactions are authorized by other statutes of this state;<.>
    2-4              (6)  lawful <6.  Lawful> transactions by servicing
    2-5  companies of the Texas worker's compensation employers' rejected
    2-6  risk fund pursuant to Section 4.08, Article 5.76-2;<.>
    2-7              (7)  management <7.  Management> and accounting
    2-8  activities in this state on behalf of a non-admitted captive
    2-9  insurance company that insures solely directors' and officers'
   2-10  liability insurance for the directors and officers of its parent
   2-11  and affiliated companies and/or the risks of its parent and
   2-12  affiliated companies; provided, that this<.  This> provision does
   2-13  not exempt any insured or insurer from the payment of any
   2-14  applicable tax on premiums or any other applicable provision in
   2-15  this code; or
   2-16              (8)  the issuance of qualified charitable gift
   2-17  annuities under Article 1.14-1A of this code.
   2-18        SECTION 2.  Chapter 1, Insurance Code, is amended by adding
   2-19  Article 1.14-1A to read as follows:
   2-20        Art. 1.14-1A.  CHARITABLE GIFT ANNUITIES
   2-21        Sec. 1.  DEFINITIONS.  In this article:
   2-22              (1)  "Charitable gift annuity" means a transfer of cash
   2-23  or other property by a donor to a charitable organization in return
   2-24  for an annuity payable over one or two lives, under which the
   2-25  actuarial value of the annuity is less than the value of the cash
    3-1  or other property transferred and the difference in value
    3-2  constitutes a charitable deduction for federal tax purposes.
    3-3              (2)  "Charitable organization" means an entity
    3-4  described by:
    3-5                    (A)  Section 501(c)(3), Internal Revenue Code of
    3-6  1986 (26 U.S.C. Section 501(c)(3)); or
    3-7                    (B)  Section 170(c), Internal Revenue Code of
    3-8  1986 (26 U.S.C. Section 170(c)).
    3-9              (3)  "Qualified charitable gift annuity" means a
   3-10  charitable gift annuity described by Section 501(m)(5), Internal
   3-11  Revenue Code of 1986 (26 U.S.C. Section 501(m)(5)), and Section
   3-12  514(c)(5), Internal Revenue Code of 1986 (26 U.S.C. Section
   3-13  514(c)(5)), that is issued by a charitable organization that on the
   3-14  date of the annuity agreement:
   3-15                    (A)  has a minimum of $100,000 in unrestricted
   3-16  cash, cash equivalents, or publicly traded securities, exclusive of
   3-17  the assets funding the annuity agreement; and
   3-18                    (B)  has been in continuous operation for at
   3-19  least three years or is a successor or affiliate of a charitable
   3-20  organization that has been in continuous operation for at least
   3-21  three years.
   3-22        Sec. 2.  NOT INSURANCE.  (a)  The issuance of a qualified
   3-23  charitable gift annuity does not constitute engaging in the
   3-24  business of insurance in this state.
   3-25        (b)  A charitable gift annuity issued before September 1,
    4-1  1995, is a qualified charitable gift annuity for purposes of this
    4-2  article and Article 1.14-1 of this code, and the issuance of that
    4-3  charitable gift annuity does not constitute engaging in the
    4-4  business of insurance in this state.
    4-5        Sec. 3.  NOTICE TO DONOR.  (a)  When entering into an
    4-6  agreement for a qualified charitable gift annuity, the charitable
    4-7  organization shall disclose to the donor in writing in the annuity
    4-8  agreement that a qualified charitable gift annuity is not insurance
    4-9  under the laws of this state and is not subject to regulation by
   4-10  the department or protected by a guaranty association affiliated
   4-11  with the department.
   4-12        (b)  The notice provisions required by this section must be
   4-13  in a separate paragraph in a print size no smaller than that
   4-14  employed in the annuity agreement generally.
   4-15        Sec. 4.  NOTICE TO DEPARTMENT.  (a)  A charitable
   4-16  organization that issues  qualified charitable gift annuities shall
   4-17  notify the department's annuities division in writing by the later
   4-18  of 90 days after the effective date of this Act or the date on
   4-19  which it enters into the organization's first qualified charitable
   4-20  gift annuity agreement.  The notice must:
   4-21              (1)  be signed by an officer or director of the
   4-22  organization;
   4-23              (2)  identify the organization; and
   4-24              (3)  certify that:
   4-25                    (A)  the organization is a charitable
    5-1  organization; and
    5-2                    (B)  the annuities issued by the organization are
    5-3  qualified charitable gift annuities.
    5-4        (b)  The organization shall not be required to submit
    5-5  additional information except to determine appropriate penalties
    5-6  that may be applicable under Section 5 of this article.
    5-7        Sec. 5.  EFFECT OF FAILURE TO PROVIDE REQUIRED NOTICE.  The
    5-8  failure of a charitable organization to comply with the notice
    5-9  requirements imposed under Section 3 or 4 of this article does not
   5-10  prevent a charitable gift annuity that otherwise meets the
   5-11  requirements of this article from constituting a qualified
   5-12  charitable gift annuity.  However, the commissioner may enforce
   5-13  performance of the requirements of Sections 3 and 4 of this article
   5-14  by sending a letter certified mail, return receipt requested,
   5-15  demanding that the charitable organization comply with the
   5-16  requirements of Sections 3 and 4 of this article.  The department
   5-17  may fine the charitable organization in an amount not to exceed
   5-18  $1,000 per qualified charitable gift annuity agreement issued until
   5-19  such time as the charitable organization complies with Sections 3
   5-20  and 4 of this article.
   5-21        Sec. 6.  NOT UNFAIR OR DECEPTIVE TRADE PRACTICE.  The
   5-22  issuance of a qualified charitable gift annuity does not constitute
   5-23  a violation of Section 15.05, 17.46, or 17.50(a)(3), Business &
   5-24  Commerce Code.
   5-25        SECTION 3.  A charitable organization that is engaged in
    6-1  issuing qualified charitable gift annuities in this state on the
    6-2  effective date of this Act shall notify the Texas Department of
    6-3  Insurance as required under Article 1.14-1A, Insurance Code, as
    6-4  added by this Act, not later than 90 days after the effective date
    6-5  of this Act.
    6-6        SECTION 4.  Sections 1(1), 2, and 6, Article 1.14-1A,
    6-7  Insurance Code, as added by this Act, and Section 2(b), Article
    6-8  1.14-1, Insurance Code, as amended by this Act, are a clarification
    6-9  of the law as it existed before the effective date of this Act.
   6-10        SECTION 5.  This Act takes effect September 1, 1995.
   6-11        SECTION 6.  The importance of this legislation and the
   6-12  crowded condition of the calendars in both houses create an
   6-13  emergency and an imperative public necessity that the
   6-14  constitutional rule requiring bills to be read on three several
   6-15  days in each house be suspended, and this rule is hereby suspended.