1-1  By:  Rosson                                           S.B. No. 1284
    1-2        (In the Senate - Filed March 10, 1995; March 20, 1995, read
    1-3  first time and referred to Committee on Economic Development;
    1-4  April 12, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 9, Nays 1; April 12, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 1284                  By:  Rosson
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to regulation of the business of title insurance.
   1-11        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-12        SECTION 1.  Section B, Article 9.01, Insurance Code, is
   1-13  amended to read as follows:
   1-14        B.  The Legislature of the State of Texas finds that the
   1-15  business of title insurance, both the direct issuance of policies
   1-16  and the reinsurance of any assumed risks, of every type, shall in
   1-17  all respects be totally regulated by the State of Texas so as to
   1-18  provide for the protection of every consumer and purchaser of a
   1-19  title insurance policy and to provide for adequate and reasonable
   1-20  rates of return for title insurance companies and title insurance
   1-21  agents.  It is the express legislative intent that this Chapter 9
   1-22  accomplish such a result.
   1-23        SECTION 2.  Subsection (b), Article 9.02, Insurance Code, is
   1-24  amended to read as follows:
   1-25        (b)  The "business of title insurance" shall be deemed to be
   1-26  (1) the making as insurer, guarantor or surety, or proposing to
   1-27  make as insurer, guarantor or surety, of any contract or policy of
   1-28  title insurance or any equivalent thereof; (2) the transacting or
   1-29  proposing to transact, any phase of title insurance, including
   1-30  solicitation, title examination, except when conducted by an
   1-31  attorney, closing the transaction, except when conducted by an
   1-32  attorney, execution of a contract of title insurance, insuring and
   1-33  transacting matters subsequent to the execution of the contract and
   1-34  arising out of it, including reinsurance; <or> (3) the making of a
   1-35  guaranty or warranty of a title search, a title examination, or any
   1-36  component thereof by a person other than the one performing the
   1-37  search or examination; or (4) the doing, or proposing to do, any
   1-38  business in substance equivalent to any of the foregoing whether or
   1-39  not <in a manner> designed to evade the provisions of this Act.
   1-40        SECTION 3.  Subsection (c), Article 9.02, Insurance Code, is
   1-41  amended to read as follows:
   1-42        (c)  "Title Insurance Company" means any domestic company
   1-43  organized under the provisions of this Act for the purpose of
   1-44  conducting the business of title insurance <insuring titles to real
   1-45  property>, any title insurance company organized under the laws of
   1-46  another state or foreign government meeting the requirements of
   1-47  this Act and holding a certificate of authority to transact
   1-48  business in Texas and any domestic or foreign company having a
   1-49  certificate of authority to insure titles to real estate within
   1-50  this state and which meet the requirements of this Act.
   1-51        SECTION 4.  Subsection (i), Article 9.02, Insurance Code, is
   1-52  amended to read as follows:
   1-53        (i)  "Abstract plant" as used herein shall mean a
   1-54  geographical abstract plant such as is defined by the commissioner,
   1-55  <Board> and the commissioner <Board>, in defining an abstract
   1-56  plant, shall require a geographically arranged plant, currently
   1-57  kept to date, that is found by the commissioner <Board> to be
   1-58  adequate for use in insuring titles, so as to provide for the
   1-59  safety and protection of the policyholders.
   1-60        SECTION 5.  Subsection (m), Article 9.02, Insurance Code, is
   1-61  amended to read as follows:
   1-62        (m)  "Title Examination" means the search and examination of
   1-63  a title to determine the conditions of the title to be insured and
   1-64  to evaluate the risk to be undertaken in the issuance of a title
   1-65  insurance policy or other title insurance form.
   1-66        SECTION 6.  Article 9.07, Insurance Code, is amended to read
   1-67  as follows:
   1-68        Art. 9.07.  Policy Forms and Premiums.  (a)  Corporations
    2-1  organized under this Chapter, as well as foreign corporations and
    2-2  those created under Subdivision 57, Article 1302, of the Revised
    2-3  Civil Statutes of 1925 before the repeal of that statute, or under
    2-4  Chapter 8 of this Code, or any other law insofar as the business of
    2-5  either may be the business of title insurance, shall operate in
    2-6  Texas under the control and supervision and under such uniform
    2-7  rules and regulations as to forms of policies and underwriting
    2-8  contracts and premiums therefor, and such underwriting standards
    2-9  and practices as may be prescribed by the commissioner <Board>; and
   2-10  no Texas or foreign corporation, whether incorporated under this
   2-11  Chapter or any other law of the State of Texas, shall be permitted
   2-12  to conduct the business of title insurance, to issue any title
   2-13  policy of any character, or underwriting contract, to delete any
   2-14  policy exclusion or to reinsure any portion of the risk assumed by
   2-15  any title policy, on Texas real property other than under this
   2-16  Chapter and under such rules and regulations.  No policy of title
   2-17  insurance, title insurance coverage, reinsurance of any risk
   2-18  assumed under any policy of title insurance, or any guarantee of
   2-19  any character made when insuring Texas titles shall be issued or
   2-20  valid unless written by a corporation complying with the provisions
   2-21  of and authorized or qualified under this Chapter, except as is
   2-22  provided in Article 9.19D.  Before any premium rate provided for
   2-23  herein shall be fixed or charged, reasonable notice shall issue,
   2-24  and a hearing afforded to the title insurance companies and title
   2-25  insurance agents authorized or qualified under this Chapter and the
   2-26  public.  Under no circumstances may any title insurance company or
   2-27  title insurance agent use any form which is required under the
   2-28  provisions of this Chapter 9 to be promulgated or approved until
   2-29  the same shall have been so promulgated or approved by the
   2-30  commissioner <Board>.
   2-31        (b)  The commissioner <Board> shall have the duty to fix and
   2-32  promulgate the premium rates to be charged by title insurance
   2-33  companies and title insurance agents created or operating under
   2-34  this Chapter for policies of title insurance or other promulgated
   2-35  or approved forms, and the premiums therefor shall be paid in the
   2-36  due and ordinary course of business.  Premium rates for reinsurance
   2-37  as between title insurance companies qualified under this Chapter
   2-38  shall not be fixed or promulgated by the commissioner <Board>, and
   2-39  title insurance companies may set such premium rates for
   2-40  reinsurance as such title insurance companies shall agree upon.
   2-41  Under no circumstance shall any premium be charged for any policy
   2-42  of title insurance or other promulgated or approved forms different
   2-43  from those fixed and promulgated by the commissioner <Board>,
   2-44  except for premiums charged for reinsurance.  The premium rates
   2-45  fixed by the commissioner <Board> shall be reasonable to the public
   2-46  and nonconfiscatory as to the title insurance companies and title
   2-47  insurance agents.  For the purpose of collecting data on which to
   2-48  determine the proper rates to be fixed, the commissioner <Board>
   2-49  shall require all title insurance companies and all title insurance
   2-50  agents operating in Texas to submit such information in such form
   2-51  as the commissioner <it> may deem proper, all information as to
   2-52  loss experience, expense of operation, and other material matters
   2-53  <matter> for the commissioner's <Board's> consideration.  In fixing
   2-54  the rate of premiums, the commissioner shall consider all relevant
   2-55  income and expenses of title insurance companies and title
   2-56  insurance agents attributable to Texas title insurance business.
   2-57        (c)  The commissioner <Board> shall hold a biennial hearing
   2-58  not earlier than July 1 <October 1 or later than December 15> of
   2-59  each even-numbered calendar year, to consider adoption of premium
   2-60  rates and such other matters and subjects relative to the
   2-61  regulation of the business of title insurance as may be requested
   2-62  by any association, any title insurance company, any title
   2-63  insurance agent, any member of the public, or as the commissioner
   2-64  <Board> may determine necessary to consider.  Any person,
   2-65  association, or entity recommending adoption of premium rates or
   2-66  other matters and subjects shall be admitted as a party to the
   2-67  hearing.  Not less than 60 days prior to the <Proper notice of
   2-68  such> public hearing, notice of the hearing and the items to be
   2-69  considered shall be <made to the public and shall be> sent direct
   2-70  to all title insurance companies and title insurance agents
    3-1  qualified or authorized to do business under this Chapter and to
    3-2  the public in such a manner as to give fair publicity thereto.  The
    3-3  hearing shall consist of a rulemaking phase for consideration of
    3-4  rules, forms, and endorsements, and related matters not having rate
    3-5  implications and a ratemaking phase for consideration of fixing the
    3-6  premium rate and other matters with rate implications.  The
    3-7  commissioner shall certify which matters have rate implications to
    3-8  be considered in the ratemaking phase of the hearing.  The
    3-9  commissioner shall conduct both phases of the hearing; provided,
   3-10  however, that the ratemaking phase of the hearing shall be
   3-11  conducted by the State Office of Administrative Hearings in
   3-12  accordance with Article 1.33B of this code at the direction of the
   3-13  commissioner or at the written request of any person seeking
   3-14  admission as a party to the ratemaking phase of the hearing.  Such
   3-15  request must be made at the time a person seeks to be admitted as a
   3-16  party to the hearing but in no event more than 10 days after
   3-17  issuance of public notice of the hearing.  The ratemaking phase of
   3-18  the hearing shall be conducted as a contested case pursuant to
   3-19  Chapter 2001, Government Code (Administrative Procedure Act).
   3-20  Presentation by any party of relevant, admissible oral testimony
   3-21  shall not be limited.  All matters in all phases of the hearing
   3-22  shall be considered by the commissioner and decisions thereon
   3-23  rendered in open meeting.  Changes to the Basic Manual of Rules,
   3-24  Rates, and Forms for the Writing of Title Insurance in the State of
   3-25  Texas, including additions or amendments thereto, may be proposed
   3-26  and adopted by reference by publishing a notice of such proposal or
   3-27  adoption by reference in the Texas Register.  The notice must
   3-28  include a brief summary of the substance of the matter to be added
   3-29  or changed and a statement that the full text of the matter is
   3-30  available for review in the office of the chief clerk of the Texas
   3-31  Department of Insurance <for at least four (4) weeks in advance of
   3-32  such hearing>.
   3-33        (d)  Premium rates when once fixed shall not be changed until
   3-34  after a public hearing shall be had by the commissioner.  Not less
   3-35  than 60 days prior to the public hearing, notice of the hearing and
   3-36  the items to be considered shall be <Board, after proper notice>
   3-37  sent direct to all title insurance companies and title insurance
   3-38  agents qualified or authorized to do business under this Chapter,
   3-39  and <after> public notice shall be provided in such manner as to
   3-40  give fair publicity thereto <for at least four (4) weeks in
   3-41  advance>.  The commissioner <Board> must call such additional
   3-42  hearings to consider premium rate changes at the request of a title
   3-43  insurance company or the office of public insurance counsel.
   3-44        (e)  The commissioner <Board> may, on his or her <its> own
   3-45  motion, following notice as required for the biennial hearing hold
   3-46  at any time a public hearing to consider adoption of premium rates
   3-47  and such other matters and subjects relative to the regulation of
   3-48  the business of title insurance as the commissioner <Board> shall
   3-49  determine necessary or proper.
   3-50        (f)  Any title insurance company, any title insurance agent,
   3-51  or other person or association of persons interested, feeling
   3-52  injured by any action of the commissioner <Board or the
   3-53  Commissioner> with regard to premium rates or other action taken by
   3-54  the commissioner <Board or the Commissioner>, shall have the right
   3-55  to appeal in accordance with Article 1.04 of this code.
   3-56        SECTION 7.  Subsection (b), Article 9.07A, Insurance Code, is
   3-57  amended to read as follows:
   3-58        (b)  A title insurance company or title insurance agent shall
   3-59  use a form adopted by the commissioner <board> under this article
   3-60  in issuing owner policies to natural persons relating to
   3-61  residential real property in this state.
   3-62        SECTION 8.  Article 9.08, Insurance Code, is amended to read
   3-63  as follows:
   3-64        Art. 9.08.  Prohibiting Guarantee of Payment of Obligations
   3-65  of Others--and "Insuring Around."  Title insurance companies,
   3-66  domestic or foreign, operating under this chapter shall not have
   3-67  the right to guarantee the payment of mortgages which cover real
   3-68  estate, and if any such corporation shall do so it shall forthwith
   3-69  forfeit and surrender its permit to do business.
   3-70        "Insuring around" is defined as the willful issuance of a
    4-1  title binder or title insurance policy showing no outstanding
    4-2  enforceable recorded liens while the title insurance company
    4-3  <issuer> knows that in fact a lien or liens are of record against
    4-4  the real property, and shall be prohibited, except under
    4-5  circumstances as the commissioner <State Board of Insurance> under
    4-6  his or her <its> rule-making powers shall approve.  A title
    4-7  insurance company knows that an outstanding enforceable recorded
    4-8  matter exists if it determines that the matter is valid and
    4-9  enforceable based on the examination of the title pursuant to which
   4-10  the title binder or title insurance policy is issued.  In its
   4-11  discretion, the title insurance company may determine the
   4-12  insurability of title and those matters which it considers to be
   4-13  insurable under the title binder or title insurance policy;
   4-14  provided, however, that insuring around enforceable recorded liens
   4-15  shall be prohibited except as allowed by regulation.
   4-16        Any person who willfully violates the provisions of this
   4-17  Article 9.08, or who disobeys an order of the commissioner <Board>
   4-18  refusing to approve an application to insure around, shall, upon
   4-19  proof thereof to the satisfaction of the District Court of Travis
   4-20  County, Texas, forfeit and pay to the State of Texas a sum not to
   4-21  exceed $5,000, which may be recovered in a civil action by the
   4-22  commissioner.
   4-23        The commissioner <Board>, upon giving thirty (30) days'
   4-24  notice by registered mail, and upon hearing had for that purpose,
   4-25  may forfeit the Certificate of Authority to do business of any
   4-26  company violating the provisions of this Article 9.08.
   4-27        SECTION 9.  Article 9.09, Insurance Code, is amended to read
   4-28  as follows:
   4-29        Art. 9.09.  Prohibiting Transacting of Other Kinds of
   4-30  Insurance by Title Insurance Companies or the Transacting of Title
   4-31  Insurance by Other Types of Insurance Companies.  Corporations,
   4-32  domestic or foreign, operating under this Chapter shall not
   4-33  transact, underwrite or issue any kind of insurance other than
   4-34  title insurance on real property; nor shall the business of title
   4-35  insurance be transacted, underwritten, or issued by any company
   4-36  transacting any other kinds of insurance.
   4-37        SECTION 10.  Article 9.11, Insurance Code, is amended to read
   4-38  as follows:
   4-39        Art. 9.11.  Revocation of Right to do Business.  Any foreign
   4-40  or domestic corporations conducting the business of title insurance
   4-41  or issuing any form of title insurance policy or other promulgated
   4-42  or approved forms, or charging any premium rates on an owner,
   4-43  mortgagee, or other title insurance policy, or on other promulgated
   4-44  or approved forms, except for the premium rates charged for
   4-45  reinsurance, on Texas real property other than forms and premium
   4-46  rates prescribed by the commissioner <Board>, under the provisions
   4-47  of this Chapter shall forfeit its right to do business in this
   4-48  state.  The provisions of this Article 9.11 shall not, however, be
   4-49  applicable to premium rates charged in connection with reinsurance
   4-50  transactions between or among title insurance companies doing
   4-51  business under the provisions of this Chapter, provided any such
   4-52  reinsurance contract complies with the provisions of Article 9.19
   4-53  of this Chapter.
   4-54        SECTION 11.  Section B, Article 9.30, Insurance Code, is
   4-55  amended to read as follows:
   4-56        B.  This Article may not be construed as prohibiting:
   4-57              (1)  a foreign or domestic title insurance company
   4-58  doing business in this state under this Chapter, from appointing as
   4-59  its title insurance agent pursuant to this Chapter a person owning
   4-60  or leasing and operating an abstract plant of such county and
   4-61  making the arrangement for division of premiums with the agent as
   4-62  shall be set by the commissioner <Board>;
   4-63              (2)  payments for services actually performed by a
   4-64  title insurance company, a title insurance agent, or a direct
   4-65  operation, in connection with closing the transaction, furnishing
   4-66  of title evidence, or title examination, which payment may not
   4-67  exceed the percentages of the premium or amounts established by the
   4-68  commissioner <Board> for those payments; or
   4-69              (3)  payment of bona fide compensation to a bona fide
   4-70  employee principally employed by a title insurance company, direct
    5-1  operation, title insurance agent, or other reasonable payment for
    5-2  goods or facilities actually furnished and received; or
    5-3              (4)  payments for services actually performed by an
    5-4  attorney in connection with title examination or closing a
    5-5  transaction, which payment may not exceed a reasonable charge for
    5-6  such services.
    5-7              (5)  Nothing in this article shall affect the division
    5-8  of premium between a title insurance company and its subsidiary
    5-9  title insurance agent when the title insurance company directly
   5-10  issues its policy or contract of title insurance pursuant to
   5-11  Article 9.34. For purposes of this provision, a subsidiary is a
   5-12  company at least 50 percent of the voting stock of which is owned
   5-13  by the title insurance company or by a wholly owned subsidiary of
   5-14  the title insurance company.
   5-15              (6)  normal promotional and educational activities that
   5-16  are not conditioned on the referral of title insurance business.
   5-17        SECTION 12.  Article 9.55, Insurance Code, is amended to read
   5-18  as follows:
   5-19        Art. 9.55.  Requirement for Issuance of Owners and Mortgagee
   5-20  Title Policies in Connection With Residential Property.  After
   5-21  January 1, 1976, whenever any improved residential real property
   5-22  situated in the State of Texas shall be sold and a mortgagee policy
   5-23  of title insurance or other form or agreement or the equivalent
   5-24  thereof that constitutes the business of title insurance is issued
   5-25  in connection with <title policy issued to guarantee the validity
   5-26  of> a lien thereon, the title insurance company or title insurance
   5-27  agent so issuing such mortgagee <title> policy of title insurance
   5-28  form or agreement or the equivalent thereof shall also issue an
   5-29  owner <title> policy of title insurance to the owner of such
   5-30  property and the required premium as promulgated by the
   5-31  commissioner <board> shall be charged.
   5-32        The provisions of this article may, however, be rejected,
   5-33  provided that the person acquiring title shall, at or prior to
   5-34  closing and settlement, execute a written and acknowledged
   5-35  rejection wherein the purchaser rejects issuance of such owner
   5-36  title policy.  The form of such rejection shall be prescribed,
   5-37  after notice and hearing, by the commissioner <board>.
   5-38        <The provisions of this Article 9.55 of this Chapter 9 shall
   5-39  not apply to a settlement or closing if neither a title insurance
   5-40  company, a title insurance agent, an attorney for a title insurance
   5-41  company or title insurance agent, nor a representative of the title
   5-42  insurance company, title insurance agent or attorney for a title
   5-43  insurance company or title insurance agent has actually handled the
   5-44  closing or settlement of such real estate transaction.>
   5-45        SECTION 13.  Article 9.58, Insurance Code, is amended to read
   5-46  as follows:
   5-47        Art. 9.58.  Continuing Education.  A.  For protection of the
   5-48  public and to preserve and improve competence of licensees, the
   5-49  commissioner shall <board may in its sole discretion> require as a
   5-50  condition to continuation of license as a title insurance agent or
   5-51  escrow officer that during the 24 months next preceding expiration
   5-52  of the current license period the licensee has enrolled in and
   5-53  attended or taught <up to> 15 hours or such lesser amount
   5-54  established by the commissioner in <of> class instruction,
   5-55  lectures, seminars, or other forms of education approved by the
   5-56  commissioner <board> for the particular license.
   5-57        B.  The instruction shall be designed to refresh the
   5-58  licensee's understanding of basic principles and coverages
   5-59  involved, recent and prospective changes in those principles and
   5-60  coverages, applicable laws and rules and regulations of the
   5-61  commissioner <board>, proper conduct of the licensee's business,
   5-62  and duties and responsibilities of the licensee.
   5-63        C.  The commissioner <board> may permit licensees who because
   5-64  of remoteness of residence or business cannot with reasonable
   5-65  convenience attend these educational sessions to take and
   5-66  successfully complete an equivalent course of study and instruction
   5-67  by mail.
   5-68        D.  The commissioner shall <board may> promulgate rules and
   5-69  regulations to carry out the purposes and requirements of this
   5-70  article.
    6-1        E.  On written request of the licensee, the commissioner
    6-2  <board> may extend the time for the licensee to comply with the
    6-3  requirements of this article or may exempt the licensee from some
    6-4  or all of the requirements for a licensing period if the
    6-5  commissioner <board> finds that the licensee is unable to comply
    6-6  with the requirements because of illness, medical disability, or
    6-7  another extenuating circumstance beyond the control of the
    6-8  licensee.  The criteria for such exemptions and extensions shall be
    6-9  established by rule.
   6-10        SECTION 14.  Section 15, Article 9.59, Insurance Code, is
   6-11  amended to read as follows:
   6-12        Sec. 15.  Other laws to govern.  Article <Articles> 4.12
   6-13  applies<, 4.13, 4.14, 4.15, and 4.16, Insurance Code, apply> to
   6-14  title insurance companies which are subject to this article.
   6-15        SECTION 15.  This Act takes effect September 1, 1995.
   6-16        SECTION 16.  The importance of this legislation and the
   6-17  crowded condition of the calendars in both houses create an
   6-18  emergency and an imperative public necessity that the
   6-19  constitutional rule requiring bills to be read on three several
   6-20  days in each house be suspended, and this rule is hereby suspended.
   6-21                               * * * * *