By Brimer                                              H.B. No. 976

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the abolition of the Texas Workers' Compensation

 1-3     Insurance Facility and the transfer of the assets and liabilities

 1-4     of that facility.

 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-6           SECTION 1.  The Texas Property and Casualty Insurance

 1-7     Guaranty Act (Article 21.28-C, Insurance Code) is amended by adding

 1-8     Section 26 to read as follows:

 1-9           Sec. 26.  TRANSFER OF FACILITY TO ASSOCIATION.  (a)  The

1-10     purpose of this section is to:

1-11                 (1)  provide a means for the transfer of control of the

1-12     assets, liabilities, and obligations of the Texas workers'

1-13     compensation insurance facility to the Texas Property and Casualty

1-14     Insurance Guaranty Association; and

1-15                 (2)  ensure that the association has full authority to

1-16     enforce the rights of the facility without limitation, except as

1-17     expressly provided by this section.

1-18           (b)  In addition to the definitions under Section 5 of this

1-19     Act, in this section:

1-20                 (1)  "Comptroller" means the Texas comptroller of

1-21     public accounts.

1-22                 (2)  "Facility" means the Texas workers' compensation

1-23     insurance facility.

1-24                 (3)  "Fund" means the Texas Workers' Compensation

 2-1     Insurance Fund.

 2-2                 (4)  "Insurer" means an insurance company licensed to

 2-3     do business in this state.

 2-4                 (5)  "Texas workers' compensation insurance facility

 2-5     account" means the account maintained by the association for the

 2-6     assets of the facility.

 2-7           (c)  The association shall take control of the facility's

 2-8     assets, liabilities, and obligations and may administer all of the

 2-9     remaining aspects of the facility's operation.  The association has

2-10     full authority to enforce the contract or statutory rights of the

2-11     facility under any servicing company agreements. This section may

2-12     not be construed to be an assignment of the facility's rights or

2-13     obligations under those agreements.

2-14           (d)  The association shall maintain the Texas workers'

2-15     compensation insurance facility account separately from the

2-16     association's accounts described by Section 6 of this Act.  Each

2-17     claim, expense, or other liability related to the assets,

2-18     liabilities, and obligations of the facility shall be paid from,

2-19     and all collections and receipts shall be deposited into, the Texas

2-20     workers' compensation insurance facility account. Funds in the

2-21     Texas workers' compensation insurance facility account shall be

2-22     maintained outside the state treasury.

2-23           (e)  Not later than June 1 of each year, the association

2-24     shall report its operating results for the Texas workers'

2-25     compensation insurance facility account to the commissioner on a

2-26     calendar year premium and an accident year loss basis.

2-27           (f)  For a claim in which the compensable injury occurred

 3-1     before January 1, 1992, the association shall compute at least

 3-2     annually its results for incurred losses in the Texas workers'

 3-3     compensation insurance facility account, including incurred but not

 3-4     reported losses, by accident year.  If there is a deficit or

 3-5     surplus from the operation of the Texas workers' compensation

 3-6     insurance facility account for those claims, the amount of the

 3-7     deficit or surplus shall be assessed or rebated to the member

 3-8     insurers licensed in this state who were members of the facility

 3-9     during the calendar year.  Each member insurer shall pay a

3-10     proportionate share of the total assessment or receive a

3-11     proportionate share of the total rebate based on that insurer's

3-12     portion of the total voluntary workers' compensation insurance

3-13     writings during the calendar year. The fund is not liable for any

3-14     deficit incurred on a policy with an effective date before January

3-15     1, 1992.

3-16           (g)  For claims with an accident date on or after January 1,

3-17     1992, the association shall compute at least annually its results

3-18     for incurred losses in the Texas workers' compensation insurance

3-19     facility account, including incurred but not reported losses, by

3-20     accident year.  If there is a deficit or surplus from operation of

3-21     the Texas workers' compensation insurance facility account for

3-22     those claims, the amount of the deficit or surplus shall be

3-23     assessed or rebated to the member insurers licensed in this state

3-24     who were members of the facility during the calendar year and to

3-25     the fund.  Each member insurer and the fund shall pay a

3-26     proportionate share of the total assessment or receive a

3-27     proportionate share of the total rebate based on its portion of the

 4-1     total voluntary workers' compensation insurance writings during the

 4-2     calendar year.

 4-3           (h)  The association may provide for the redistribution of

 4-4     all or part of an assessment that would otherwise be levied on a

 4-5     member insurer under Subsection (f) or (g) of this section if the

 4-6     member insurer is unable to pay the full assessment because the

 4-7     member insurer is in liquidation at the time of the assessment.

 4-8           (i)  The association may authorize the deferment of the

 4-9     payment of an assessment made under Subsection (f) or (g) of this

4-10     section.  A deferment may be allowed only if the cash flow of the

4-11     Texas workers' compensation insurance facility account is adequate

4-12     to meet all needs.

4-13           (j)  If a member insurer or the fund elects to defer any

4-14     portion of an assessment as provided by this section, the entire

4-15     unpaid portion of the assessment and any accrued interest must be

4-16     shown as a liability on each financial and annual statement of that

4-17     insurer.

4-18           (k)  A member insurer may not be allowed a credit against any

4-19     tax levied by this state as a result of an assessment paid under

4-20     this section.

4-21           (l)  The association may invest Texas workers' compensation

4-22     insurance facility account funds only in investments authorized for

4-23     the investment of state funds as provided by Chapter 404,

4-24     Government Code.  The association shall develop an investment

4-25     policy for the Texas workers' compensation insurance facility

4-26     account and shall submit that policy to the comptroller for review

4-27     and approval.

 5-1           (m)  The association shall submit to the commissioner for

 5-2     approval a plan of operation to ensure the fair, reasonable, and

 5-3     equitable administration of the Texas workers' compensation

 5-4     insurance facility account not later than October 1, 1997.  The

 5-5     commissioner shall approve or disapprove the association's plan of

 5-6     operation of the Texas workers' compensation insurance facility

 5-7     account not later than the 60th day after the date on which the

 5-8     association submits the plan to the commissioner.

 5-9           (n)  If the commissioner does not approve the plan of

5-10     operation, the association shall submit to the commissioner an

5-11     amended plan of operation with any amendments necessary or suitable

5-12     to ensure the fair, reasonable, and equitable administration of the

5-13     Texas workers' compensation insurance facility account.  The plan

5-14     of operation and any amendments take effect on approval in writing

5-15     by the commissioner.  If the association fails to submit suitable

5-16     amendments to the plan, the commissioner, after notice and hearing,

5-17     shall adopt reasonable rules as necessary or advisable to implement

5-18     this section.  Those rules shall continue in force until modified

5-19     by the commissioner or superseded by a plan submitted by the

5-20     association and approved by the commissioner.

5-21           (o)  In addition to all immunities and protections otherwise

5-22     provided by this article, the association succeeds to all rights,

5-23     defenses, immunities, and liabilities of the facility in each cause

5-24     of action or other proceeding pending by or against the facility on

5-25     September 1, 1997, or filed after that date.  The immunity

5-26     provisions of Sections 2.05(h) and 2.12, Article 5.76-2 of this

5-27     code, as those provisions existed before their repeal, continue to

 6-1     apply to each act or omission that occurs before, on, or after

 6-2     September 1, 1997, and that is performed by the persons or entities

 6-3     covered by those provisions.

 6-4           (p)  If any party institutes or continues an action against

 6-5     the facility, the governing committee of the facility, the

 6-6     executive director of the facility, a member insurer solely in that

 6-7     insurer's capacity as a member insurer, or an agent, servant,

 6-8     attorney, consultant, or employee of the facility, whether or not

 6-9     serving in that capacity on September 1, 1997, in connection with

6-10     or arising from either the facility's operations or  the

6-11     transactions contemplated by this section, the association shall

6-12     defend, indemnify, and hold harmless that person or entity from

6-13     liability for any act or omission of that person or entity in

6-14     connection with, or arising from the performance of, the person's

6-15     or entity's powers and duties on behalf of the facility.  A cause

6-16     of action or other proceeding described by this subsection shall

6-17     continue to be governed by and conducted under this section and

6-18     Article 5.76-2 of this code, as that article existed before its

6-19     repeal, and the applicable bylaws, rules, and regulations of the

6-20     facility, and those provisions are continued in effect for the

6-21     purposes of this section.

6-22           (q)  The association may enter into negotiations for the

6-23     privatization to a single insurer of all the assets, liabilities,

6-24     and obligations maintained in the Texas workers' compensation

6-25     insurance facility account.  If the association determines that

6-26     privatization under this subsection is in the best interest of this

6-27     state, the association shall obtain the written approval of the

 7-1     commissioner before entering into a privatization agreement to

 7-2     consummate the applicable transaction.

 7-3           (r)  Any net proceeds from the privatization of the Texas

 7-4     workers' compensation insurance facility account shall be rebated

 7-5     in accordance with Subsection (g) of this section.

 7-6           (s)  If an insurer that assumes the assets, liabilities, and

 7-7     obligations maintained in the Texas workers' compensation insurance

 7-8     facility account under a privatization agreement approved under

 7-9     Subsection (q) of this section becomes an impaired insurer after

7-10     that privatization agreement takes effect, any remaining facility

7-11     claims shall be covered claims under this article.

7-12           (t)  If a conflict exists between this section and any other

7-13     statute relating to the facility or the association, this section

7-14     controls.

7-15           SECTION 2.  Except as otherwise provided by this Act, the

7-16     following laws are repealed on the effective date of this Act:

7-17                 (1)  Article 5.76-2, Insurance Code; and

7-18                 (2)  Section 18.24(b), Chapter 12, Acts of the 72nd

7-19     Legislature, 2nd Called Session, 1991, as amended by Section 8,

7-20     Chapter 885, Acts of the 73rd Legislature, Regular Session, 1993.

7-21           SECTION 3.  If any provision of this Act or the application

7-22     of this Act to any person or entity or circumstance is held invalid

7-23     by a court of competent jurisdiction, that invalidity does not

7-24     affect other provisions or applications of this Act that can be

7-25     given effect without the invalid provision or application, and to

7-26     this end the provisions of this Act are declared to be severable.

7-27           SECTION 4.  The repeal of Article 5.76-2, Insurance Code,

 8-1     under Section 2 of this Act does not affect rights and liabilities

 8-2     accruing under that article before the effective date of this Act,

 8-3     and that article is continued in effect for that purpose and for

 8-4     the purposes expressly provided by Section 26, Texas Property and

 8-5     Casualty Insurance Guaranty Act (Article 21.28-C, Insurance Code),

 8-6     as added by this Act.

 8-7           SECTION 5.  The importance of this legislation and the

 8-8     crowded condition of the calendars in both houses create an

 8-9     emergency and an imperative public necessity that the

8-10     constitutional rule requiring bills to be read on three several

8-11     days in each house be suspended, and this rule is hereby suspended,

8-12     and that this Act take effect and be in force from and after its

8-13     passage, and it is so enacted.