By:  Rosson                                           S.B. No. 1284
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to regulation of the business of title insurance.
    1-2        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-3        SECTION 1.  Section B, Article 9.01, Insurance Code, is
    1-4  amended to read as follows:
    1-5        B.  The Legislature of the State of Texas finds that the
    1-6  business of title insurance, both the direct issuance of policies
    1-7  and the reinsurance of any assumed risks, of every type, shall in
    1-8  all respects be totally regulated by the State of Texas so as to
    1-9  provide for the protection of every consumer and purchaser of a
   1-10  title insurance policy and to provide for adequate and reasonable
   1-11  rates of return for title insurance companies and title insurance
   1-12  agents.  It is the express legislative intent that this Chapter 9
   1-13  accomplish such a result.
   1-14        SECTION 2.  Subsection (b), Article 9.02, Insurance Code, is
   1-15  amended to read as follows:
   1-16        (b)  The "business of title insurance" shall be deemed to be
   1-17  (1) the making as insurer, guarantor or surety, or proposing to
   1-18  make as insurer, guarantor or surety, of any contract or policy of
   1-19  title insurance or any equivalent thereof; (2) the transacting or
   1-20  proposing to transact, any phase of title insurance, including
   1-21  solicitation, title examination, except when conducted by an
   1-22  attorney, closing the transaction, except when conducted by an
   1-23  attorney, execution of a contract of title insurance, insuring and
    2-1  transacting matters subsequent to the execution of the contract and
    2-2  arising out of it, including reinsurance; <or> (3) the making of a
    2-3  guaranty or warranty of a title search, a title examination, or any
    2-4  component thereof by a person other than the one performing the
    2-5  search or examination; or (4) the doing, or proposing to do, any
    2-6  business in substance equivalent to any of the foregoing whether or
    2-7  not <in a manner> designed to evade the provisions of this Act.
    2-8        SECTION 3.  Subsection (c), Article 9.02, Insurance Code, is
    2-9  amended to read as follows:
   2-10        (c)  "Title Insurance Company" means any domestic company
   2-11  organized under the provisions of this Act for the purpose of
   2-12  conducting the business of title insurance <insuring titles to real
   2-13  property>, any title insurance company organized under the laws of
   2-14  another state or foreign government meeting the requirements of
   2-15  this Act and holding a certificate of authority to transact
   2-16  business in Texas and any domestic or foreign company having a
   2-17  certificate of authority to insure titles to real estate within
   2-18  this state and which meet the requirements of this Act.
   2-19        SECTION 4.  Subsection (i), Article 9.02, Insurance Code, is
   2-20  amended to read as follows:
   2-21        (i)  "Abstract plant" as used herein shall mean a
   2-22  geographical abstract plant such as is defined by the commissioner,
   2-23  <Board> and the commissioner <Board>, in defining an abstract
   2-24  plant, shall require a geographically arranged plant, currently
   2-25  kept to date, that is found by the commissioner <Board> to be
    3-1  adequate for use in insuring titles, so as to provide for the
    3-2  safety and protection of the policyholders.
    3-3        SECTION 5.  Subsection (m), Article 9.02, Insurance Code, is
    3-4  amended to read as follows:
    3-5        (m)  "Title Examination" means the search and examination of
    3-6  a title to determine the conditions of the title to be insured and
    3-7  to evaluate the risk to be undertaken in the issuance of a title
    3-8  insurance policy or other title insurance form.
    3-9        SECTION 6.  Article 9.07, Insurance Code, is amended to read
   3-10  as follows:
   3-11        Art. 9.07.  Policy Forms and Premiums.  (a)  Corporations
   3-12  organized under this Chapter, as well as foreign corporations and
   3-13  those created under Subdivision 57, Article 1302, of the Revised
   3-14  Civil Statutes of 1925 before the repeal of that statute, or under
   3-15  Chapter 8 of this Code, or any other law insofar as the business of
   3-16  either may be the business of title insurance, shall operate in
   3-17  Texas under the control and supervision and under such uniform
   3-18  rules and regulations as to forms of policies and underwriting
   3-19  contracts and premiums therefor, and such underwriting standards
   3-20  and practices as may be prescribed by the commissioner <Board>; and
   3-21  no Texas or foreign corporation, whether incorporated under this
   3-22  Chapter or any other law of the State of Texas, shall be permitted
   3-23  to conduct the business of title insurance, to issue any title
   3-24  policy of any character, or underwriting contract, to delete any
   3-25  policy exclusion or to reinsure any portion of the risk assumed by
    4-1  any title policy, on Texas real property other than under this
    4-2  Chapter and under such rules and regulations.  No policy of title
    4-3  insurance, title insurance coverage, reinsurance of any risk
    4-4  assumed under any policy of title insurance, or any guarantee of
    4-5  any character made when insuring Texas titles shall be issued or
    4-6  valid unless written by a corporation complying with the provisions
    4-7  of and authorized or qualified under this Chapter, except as is
    4-8  provided in Article 9.19D.  Before any premium rate provided for
    4-9  herein shall be fixed or charged, reasonable notice shall issue,
   4-10  and a hearing afforded to the title insurance companies and title
   4-11  insurance agents authorized or qualified under this Chapter and the
   4-12  public.  Under no circumstances may any title insurance company or
   4-13  title insurance agent use any form which is required under the
   4-14  provisions of this Chapter 9 to be promulgated or approved until
   4-15  the same shall have been so promulgated or approved by the
   4-16  commissioner <Board>.
   4-17        (b)  The commissioner <Board> shall have the duty to fix and
   4-18  promulgate the premium rates to be charged by title insurance
   4-19  companies and title insurance agents created or operating under
   4-20  this Chapter for policies of title insurance or other promulgated
   4-21  or approved forms, and the premiums therefor shall be paid in the
   4-22  due and ordinary course of business.  Premium rates for reinsurance
   4-23  as between title insurance companies qualified under this Chapter
   4-24  shall not be fixed or promulgated by the commissioner <Board>, and
   4-25  title insurance companies may set such premium rates for
    5-1  reinsurance as such title insurance companies shall agree upon.
    5-2  Under no circumstance shall any premium be charged for any policy
    5-3  of title insurance or other promulgated or approved forms different
    5-4  from those fixed and promulgated by the commissioner <Board>,
    5-5  except for premiums charged for reinsurance.  The premium rates
    5-6  fixed by the commissioner <Board> shall be reasonable to the public
    5-7  and nonconfiscatory as to the title insurance companies and title
    5-8  insurance agents.  For the purpose of collecting data on which to
    5-9  determine the proper rates to be fixed, the commissioner <Board>
   5-10  shall require all title insurance companies and all title insurance
   5-11  agents operating in Texas to submit such information in such form
   5-12  as the commissioner <it> may deem proper, all information as to
   5-13  loss experience, expense of operation, and other material matters
   5-14  <matter> for the commissioner's <Board's> consideration.  In fixing
   5-15  the rate of premiums, the commissioner shall consider all relevant
   5-16  income and expenses of title insurance companies and title
   5-17  insurance agents attributable to Texas title insurance business.
   5-18        (c)  The commissioner <Board> shall hold a biennial hearing
   5-19  not earlier than July 1 <October 1 or later than December 15> of
   5-20  each even-numbered calendar year, to consider adoption of premium
   5-21  rates and such other matters and subjects relative to the
   5-22  regulation of the business of title insurance as may be requested
   5-23  by any association, any title insurance company, any title
   5-24  insurance agent, any member of the public, or as the commissioner
   5-25  <Board> may determine necessary to consider.  Any person,
    6-1  association, or entity recommending adoption of premium rates or
    6-2  other matters and subjects shall be admitted as a party to the
    6-3  hearing.  Not less than 60 days prior to the <Proper notice of
    6-4  such> public hearing, notice of the hearing and the items to be
    6-5  considered shall be <made to the public and shall be> sent direct
    6-6  to all title insurance companies and title insurance agents
    6-7  qualified or authorized to do business under this Chapter and to
    6-8  the public in such a manner as to give fair publicity thereto.  The
    6-9  hearing shall consist of a rulemaking phase for consideration of
   6-10  rules, forms, and endorsements, and related matters not having rate
   6-11  implications and a ratemaking phase for consideration of fixing the
   6-12  premium rate and other matters with rate implications.  The
   6-13  commissioner shall certify which matters have rate implications to
   6-14  be considered in the ratemaking phase of the hearing.  The
   6-15  commissioner shall conduct both phases of the hearing; provided,
   6-16  however, that the ratemaking phase of the hearing shall be
   6-17  conducted by the State Office of Administrative Hearings in
   6-18  accordance with Article 1.33B of this code at the direction of the
   6-19  commissioner or at the written request of any person seeking
   6-20  admission as a party to the ratemaking phase of the hearing.  Such
   6-21  request must be made at the time a person seeks to be admitted as a
   6-22  party to the hearing but in no event more than 10 days after
   6-23  issuance of public notice of the hearing.  The ratemaking phase of
   6-24  the hearing shall be conducted as a contested case pursuant to
   6-25  Chapter 2001, Government Code (Administrative Procedure Act).
    7-1  Presentation by any party of relevant, admissible oral testimony
    7-2  shall not be limited.  All matters in all phases of the hearing
    7-3  shall be considered by the commissioner and decisions thereon
    7-4  rendered in open meeting.  Changes to the Basic Manual of Rules,
    7-5  Rates, and Forms for the Writing of Title Insurance in the State of
    7-6  Texas, including additions or amendments thereto, may be proposed
    7-7  and adopted by reference by publishing a notice of such proposal or
    7-8  adoption by reference in the Texas Register.  The notice must
    7-9  include a brief summary of the substance of the matter to be added
   7-10  or changed and a statement that the full text of the matter is
   7-11  available for review in the office of the chief clerk of the Texas
   7-12  Department of Insurance <for at least four (4) weeks in advance of
   7-13  such hearing>.
   7-14        (d)  Premium rates when once fixed shall not be changed until
   7-15  after a public hearing shall be had by the commissioner.  Not less
   7-16  than 60 days prior to the public hearing, notice of the hearing and
   7-17  the items to be considered shall be <Board, after proper notice>
   7-18  sent direct to all title insurance companies and title insurance
   7-19  agents qualified or authorized to do business under this Chapter,
   7-20  and <after> public notice shall be provided in such manner as to
   7-21  give fair publicity thereto <for at least four (4) weeks in
   7-22  advance>.  The commissioner <Board> must call such additional
   7-23  hearings to consider premium rate changes at the request of a title
   7-24  insurance company or the office of public insurance counsel.
   7-25        (e)  The commissioner <Board> may, on his or her <its> own
    8-1  motion, following notice as required for the biennial hearing hold
    8-2  at any time a public hearing to consider adoption of premium rates
    8-3  and such other matters and subjects relative to the regulation of
    8-4  the business of title insurance as the commissioner <Board> shall
    8-5  determine necessary or proper.
    8-6        (f)  Any title insurance company, any title insurance agent,
    8-7  or other person or association of persons interested, feeling
    8-8  injured by any action of the commissioner <Board or the
    8-9  Commissioner> with regard to premium rates or other action taken by
   8-10  the commissioner <Board or the Commissioner>, shall have the right
   8-11  to appeal in accordance with Article 1.04 of this code.
   8-12        SECTION 7.  Subsection (b), Article 9.07A, Insurance Code, is
   8-13  amended to read as follows:
   8-14        (b)  A title insurance company or title insurance agent shall
   8-15  use a form adopted by the commissioner <board> under this article
   8-16  in issuing owner policies to natural persons relating to
   8-17  residential real property in this state.
   8-18        SECTION 8.  Article 9.08, Insurance Code, is amended to read
   8-19  as follows:
   8-20        Art. 9.08.  Prohibiting Guarantee of Payment of Obligations
   8-21  of Others--and "Insuring Around."  Title insurance companies,
   8-22  domestic or foreign, operating under this chapter shall not have
   8-23  the right to guarantee the payment of mortgages which cover real
   8-24  estate, and if any such corporation shall do so it shall forthwith
   8-25  forfeit and surrender its permit to do business.
    9-1        "Insuring around" is defined as the willful issuance of a
    9-2  title binder or title insurance policy showing no outstanding
    9-3  enforceable recorded liens while the title insurance company
    9-4  <issuer> knows that in fact a lien or liens are of record against
    9-5  the real property, and shall be prohibited, except under
    9-6  circumstances as the commissioner <State Board of Insurance> under
    9-7  his or her <its> rule-making powers shall approve.  A title
    9-8  insurance company knows that an outstanding enforceable recorded
    9-9  matter exists if it determines that the matter is valid and
   9-10  enforceable based on the examination of the title pursuant to which
   9-11  the title binder or title insurance policy is issued.  In its
   9-12  discretion, the title insurance company may determine the
   9-13  insurability of title and those matters which it considers to be
   9-14  insurable under the title binder or title insurance policy;
   9-15  provided, however, that insuring around enforceable recorded liens
   9-16  shall be prohibited except as allowed by regulation.
   9-17        Any person who willfully violates the provisions of this
   9-18  Article 9.08, or who disobeys an order of the commissioner <Board>
   9-19  refusing to approve an application to insure around, shall, upon
   9-20  proof thereof to the satisfaction of the District Court of Travis
   9-21  County, Texas, forfeit and pay to the State of Texas a sum not to
   9-22  exceed $5,000, which may be recovered in a civil action by the
   9-23  commissioner.
   9-24        The commissioner <Board>, upon giving thirty (30) days'
   9-25  notice by registered mail, and upon hearing had for that purpose,
   10-1  may forfeit the Certificate of Authority to do business of any
   10-2  company violating the provisions of this Article 9.08.
   10-3        SECTION 9.  Article 9.09, Insurance Code, is amended to read
   10-4  as follows:
   10-5        Art. 9.09.  Prohibiting Transacting of Other Kinds of
   10-6  Insurance by Title Insurance Companies or the Transacting of Title
   10-7  Insurance by Other Types of Insurance Companies.  Corporations,
   10-8  domestic or foreign, operating under this Chapter shall not
   10-9  transact, underwrite or issue any kind of insurance other than
  10-10  title insurance on real property; nor shall the business of title
  10-11  insurance be transacted, underwritten, or issued by any company
  10-12  transacting any other kinds of insurance.
  10-13        SECTION 10.  Article 9.11, Insurance Code, is amended to read
  10-14  as follows:
  10-15        Art. 9.11.  Revocation of Right to do Business.  Any foreign
  10-16  or domestic corporations conducting the business of title insurance
  10-17  or issuing any form of title insurance policy or other promulgated
  10-18  or approved forms, or charging any premium rates on an owner,
  10-19  mortgagee, or other title insurance policy, or on other promulgated
  10-20  or approved forms, except for the premium rates charged for
  10-21  reinsurance, on Texas real property other than forms and premium
  10-22  rates prescribed by the commissioner <Board>, under the provisions
  10-23  of this Chapter shall forfeit its right to do business in this
  10-24  state.  The provisions of this Article 9.11 shall not, however, be
  10-25  applicable to premium rates charged in connection with reinsurance
   11-1  transactions between or among title insurance companies doing
   11-2  business under the provisions of this Chapter, provided any such
   11-3  reinsurance contract complies with the provisions of Article 9.19
   11-4  of this Chapter.
   11-5        SECTION 11.  Section B, Article 9.30, Insurance Code, is
   11-6  amended to read as follows:
   11-7        B.  This Article may not be construed as prohibiting:
   11-8              (1)  a foreign or domestic title insurance company
   11-9  doing business in this state under this Chapter, from appointing as
  11-10  its title insurance agent pursuant to this Chapter a person owning
  11-11  or leasing and operating an abstract plant of such county and
  11-12  making the arrangement for division of premiums with the agent as
  11-13  shall be set by the commissioner <Board>;
  11-14              (2)  payments for services actually performed by a
  11-15  title insurance company, a title insurance agent, or a direct
  11-16  operation, in connection with closing the transaction, furnishing
  11-17  of title evidence, or title examination, which payment may not
  11-18  exceed the percentages of the premium or amounts established by the
  11-19  commissioner <Board> for those payments; or
  11-20              (3)  payment of bona fide compensation to a bona fide
  11-21  employee principally employed by a title insurance company, direct
  11-22  operation, title insurance agent, or other reasonable payment for
  11-23  goods or facilities actually furnished and received; or
  11-24              (4)  payments for services actually performed by an
  11-25  attorney in connection with title examination or closing a
   12-1  transaction, which payment may not exceed a reasonable charge for
   12-2  such services.
   12-3              (5)  Nothing in this article shall affect the division
   12-4  of premium between a title insurance company and its subsidiary
   12-5  title insurance agent when the title insurance company directly
   12-6  issues its policy or contract of title insurance pursuant to
   12-7  Article 9.34.  For purposes of this provision, a subsidiary is a
   12-8  company at least 50 percent of the voting stock of which is owned
   12-9  by the title insurance company or by a wholly owned subsidiary of
  12-10  the title insurance company.
  12-11              (6)  legal promotional and educational activities that
  12-12  are not conditioned on the referral of title insurance business.
  12-13        SECTION 12.  Article 9.55, Insurance Code, is amended to read
  12-14  as follows:
  12-15        Art. 9.55.  Requirement for Issuance of Owners and Mortgagee
  12-16  Title Policies in Connection With Residential Property.  After
  12-17  January 1, 1976, whenever any improved residential real property
  12-18  situated in the State of Texas shall be sold and a mortgagee policy
  12-19  of title insurance or other form of agreement or the equivalent
  12-20  thereof that constitutes the business of title insurance is issued
  12-21  in connection with <title policy issued to guarantee the validity
  12-22  of> a lien thereon, the title insurance company or title insurance
  12-23  agent so issuing such mortgagee <title> policy of title insurance
  12-24  form or agreement or the equivalent thereof shall also issue an
  12-25  owner <title> policy of title insurance to the owner of such
   13-1  property and the required premium as promulgated by the
   13-2  commissioner <board> shall be charged.
   13-3        The provisions of this article may, however, be rejected,
   13-4  provided that the person acquiring title shall, at or prior to
   13-5  closing and settlement, execute a written and acknowledged
   13-6  rejection wherein the purchaser rejects issuance of such owner
   13-7  title policy.  The form of such rejection shall be prescribed,
   13-8  after notice and hearing, by the commissioner <board>.
   13-9        <The provisions of this Article 9.55 of this Chapter 9 shall
  13-10  not apply to a settlement or closing if neither a title insurance
  13-11  company, a title insurance agent, an attorney for a title insurance
  13-12  company or title insurance agent, nor a representative of the title
  13-13  insurance company, title insurance agent or attorney for a title
  13-14  insurance company or title insurance agent has actually handled the
  13-15  closing or settlement of such real estate transaction.>
  13-16        SECTION 13.  Article 9.58, Insurance Code, is amended to read
  13-17  as follows:
  13-18        Art. 9.58.  Continuing Education.  A.  For protection of the
  13-19  public and to preserve and improve competence of licensees, the
  13-20  commissioner shall <board may in its sole discretion> require as a
  13-21  condition to continuation of license as a title insurance agent or
  13-22  escrow officer that during the 24 months next preceding expiration
  13-23  of the current license period the licensee has enrolled in and
  13-24  attended or taught <up to> 15 hours or such lesser amount
  13-25  established by the commissioner in <of> class instruction,
   14-1  lectures, seminars, or other forms of education approved by the
   14-2  commissioner <board> for the particular license.
   14-3        B.  The instruction shall be designed to refresh the
   14-4  licensee's understanding of basic principles and coverages
   14-5  involved, recent and prospective changes in those principles and
   14-6  coverages, applicable laws and rules and regulations of the
   14-7  commissioner <board>, proper conduct of the licensee's business,
   14-8  and duties and responsibilities of the licensee.
   14-9        C.  The commissioner <board> may permit licensees who because
  14-10  of remoteness of residence or business cannot with reasonable
  14-11  convenience attend these educational sessions to take and
  14-12  successfully complete an equivalent course of study and instruction
  14-13  by mail.
  14-14        D.  The commissioner shall <board may> promulgate rules and
  14-15  regulations to carry out the purposes and requirements of this
  14-16  article.
  14-17        E.  On written request of the licensee, the commissioner
  14-18  <board> may extend the time for the licensee to comply with the
  14-19  requirements of this article or may exempt the licensee from some
  14-20  or all of the requirements for a licensing period if the
  14-21  commissioner <board> finds that the licensee is unable to comply
  14-22  with the requirements because of illness, medical disability, or
  14-23  another extenuating circumstance beyond the control of the
  14-24  licensee.  The criteria for such exemptions and extensions shall be
  14-25  established by rule.
   15-1        SECTION 14.  Section 15, Article 9.59, Insurance Code, is
   15-2  amended to read as follows:
   15-3        Sec. 15.  Other laws to govern.  Article <Articles> 4.12
   15-4  applies<, 4.13, 4.14, 4.15, and 4.16, Insurance Code, apply> to
   15-5  title insurance companies which are subject to this article.
   15-6        SECTION 15.  This Act takes effect September 1, 1995.
   15-7        SECTION 16.  The importance of this legislation and the
   15-8  crowded condition of the calendars in both houses create an
   15-9  emergency and an imperative public necessity that the
  15-10  constitutional rule requiring bills to be read on three several
  15-11  days in each house be suspended, and this rule is hereby suspended.