By Brimer, et al.                                      H.B. No. 976

         Substitute the following for H.B. No. 976:

         By Solomons                                        C.S.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.  TRANSFER TO THE TEXAS PROPERTY AND CASUALTY

 1-7     INSURANCE GUARANTY ASSOCIATION.  On September 1, 1997, the Texas

 1-8     Property and Casualty Insurance Guaranty Association shall take

 1-9     control of the operations and all of the assets, liabilities and

1-10     obligations of the Texas Workers' Compensation Insurance Facility.

1-11           SECTION 2.  TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTY

1-12     ASSOCIATION POWERS AND DUTIES.  (a)  Article 21.28-C, Insurance

1-13     Code is amended by adding the following before Section 1:

1-14           Part 1.  Texas Property and Casualty Insurance Guaranty

1-15     Association.

1-16           (b)  Article 21.28-C, Insurance Code is amended by

1-17     renumbering Section 1 through Section 25 as Section 1.01 through

1-18     Section 1.25.

1-19             (Sections 1.26 through 1.99 reserved for expansion

1-20           SECTION 3.  TEXAS WORKERS' COMPENSATION INSURANCE FACILITY

1-21     ACCOUNT.  Article 21.28-C, Insurance Code is amended by adding the

1-22     following after Part 1:

1-23           Part 2.  Texas Workers' Compensation Insurance Facility

1-24     Account

 2-1           Section 2.01.  PURPOSES.  The purposes of Part 2 of this Act

 2-2     are to provide the authority for the transfer of control of the

 2-3     Texas Workers' Compensation Insurance Facility's assets,

 2-4     liabilities, and obligations to the Texas Property and Casualty

 2-5     Insurance Guaranty Association.  Further, it is the purpose of Part

 2-6     2 of this Act to ensure that the Texas Property and Casualty

 2-7     Insurance Guaranty Association has full authority to enforce the

 2-8     rights of the Facility without limitation, except as expressly

 2-9     provided herein.  Part 2 of this Act shall be liberally construed

2-10     to effect these purposes.

2-11           Section 2.02.  DEFINITIONS.  (a)  In Part 2 of this Act:

2-12                 (1)  "Comptroller" means the Texas Comptroller of

2-13     Public Accounts.

2-14                 (2)  "Facility" means the Texas Workers' Compensation

2-15     Insurance Facility.

2-16                 (3)  "Fund" means the Texas Workers' Compensation

2-17     Insurance Fund.

2-18                 (4)  "Insurer" means an insurance company licensed to

2-19     do business in the State of Texas.

2-20                 (5)  "Texas Workers' Compensation Insurance Facility

2-21     Account" means the account maintained by the association for the

2-22     assets of the facility.

2-23           (b)  Any other terms shall have the same meaning as defined

2-24     in Part 1, Article 21.28-C, Insurance Code.

2-25           Section 2.03.  POWERS AND DUTIES OF THE ASSOCIATION RELATIVE

2-26     TO THE TEXAS WORKERS' COMPENSATION INSURANCE FACILITY ACCOUNT.

2-27     (a)  The association shall have the authority to take control of

 3-1     the facility's assets, liabilities and obligations and to

 3-2     administer all remaining aspects of the facility's operation.

 3-3           (b)  The association shall maintain the Texas Workers'

 3-4     Compensation Insurance Facility Account separate from the

 3-5     association's accounts described in Section 1.06 of Article

 3-6     21.28-C, Insurance Code.

 3-7           (c)  All claims, expenses and other liabilities related to

 3-8     the assets, liabilities and obligations of the facility shall be

 3-9     paid from and all collections and receipts shall be deposited into

3-10     the Texas Workers' Compensation Insurance Facility Account.

3-11           (d)  Not later than June 1 of each year, the association

3-12     shall report its operating results for the Texas Workers'

3-13     Compensation Insurance Facility Account to the commissioner on a

3-14     calendar year premium and an accident year loss basis.

3-15           (e)  For claims with an accident date before January 1, 1992,

3-16     the association shall calculate at least annually its results for

3-17     incurred losses in the Texas Workers' Compensation Insurance

3-18     Facility Account, including incurred but not reported losses, by

3-19     accident year.  If there is a deficit or surplus from operation of

3-20     the Texas Workers' Compensation Insurance Facility Account for such

3-21     claims, the amount of the deficit or surplus shall be assessed or

3-22     rebated to the member insurers licensed in this state who were

3-23     members of the facility during the calendar year.  Each member

3-24     insurer shall pay a proportion of the total assessment or receive a

3-25     proportion of the total rebate based on its proportion of the total

3-26     voluntary workers' compensation insurance writings during the

3-27     calendar year.  The association may provide for the redistribution

 4-1     of all or part of an assessment that would otherwise be levied on a

 4-2     member insurer if the member insurer is unable to pay the full

 4-3     assessment because the member insurer is in liquidation at the time

 4-4     of the assessment.  The fund is not liable for any deficits

 4-5     incurred on policies with an effective date before January 1, 1992.

 4-6           (f)  For claims with an accident date on or after January 1,

 4-7     1992, the association shall calculate at least annually its results

 4-8     for incurred losses in the Texas Workers' Compensation Insurance

 4-9     Facility Account, including incurred but not reported losses, by

4-10     accident year.  If there is a deficit or surplus from operation of

4-11     the Texas Workers' Compensation Insurance Facility Account for such

4-12     claims, the amount of the deficit or surplus shall be assessed or

4-13     rebated to the member insurers licensed in this state who were

4-14     members of the facility during the calendar year and to the fund.

4-15     Each member insurer and the fund shall pay a proportion of the

4-16     total assessment or receive a proportion of the total rebate based

4-17     on its proportion of the total voluntary workers' compensation

4-18     insurance writings during the calendar year.  The association may

4-19     provide for the redistribution of all or part of an assessment that

4-20     would otherwise be levied on a member insurer if the member insurer

4-21     is unable to pay the full assessment because the member insurer is

4-22     in liquidation at the time of the assessment.

4-23           (g)  The association may authorize the deferment of the

4-24     payment of an assessment made under Subsection (e) and (f) of this

4-25     section.  Deferments may only be allowed if the cash flow of the

4-26     Texas Workers' Compensation Insurance Facility Account is adequate

4-27     to meet all needs.

 5-1           (h)  If a member insurer or the fund elects to defer any

 5-2     portion of an assessment as provided herein, the entire unpaid,

 5-3     assessed portion thereof and accrued interest, if any, must be

 5-4     shown as a liability on all of its financial and annual statements.

 5-5           (i)  No member insurer shall be allowed a credit against any

 5-6     tax levied by this state as a result of an assessment paid pursuant

 5-7     to this section.

 5-8           (j)  Funds in the Texas Workers' Compensation Insurance

 5-9     Facility Account are outside the state treasury.

5-10           (k)  The association shall invest Texas Workers' Compensation

5-11     Insurance Facility Account funds only in investments authorized by

5-12     law for the investment of state funds as provided in Chapter 404,

5-13     Government Code.  The association shall develop an investment

5-14     policy for the Texas Workers' Compensation Insurance Facility

5-15     Account and submit the policy to the comptroller for review and

5-16     approval.

5-17           Section 2.04.  PLAN OF OPERATION.  (a)  The association shall

5-18     submit to the commissioner for approval a plan of operation to

5-19     ensure the fair, reasonable, and equitable administration of the

5-20     Texas Workers' Compensation Insurance Facility Account within 30

5-21     days after the effective date of this Act.

5-22           (b)  The commissioner shall approve or disapprove the

5-23     association's plan of operation of the Texas Workers' Compensation

5-24     Insurance Facility Account within 60 days after its receipt from

5-25     the association.

5-26           (c)  If the commissioner does not approve the plan of

5-27     operation, the association shall submit to the commissioner a plan

 6-1     of operation and any amendments necessary or suitable to ensure the

 6-2     fair, reasonable, and equitable administration of the Texas

 6-3     Workers' Compensation Insurance Facility Account.  The plan of

 6-4     operation and any amendments take effect on approval in writing by

 6-5     the commissioner.

 6-6           (d)  If the association fails to submit suitable amendments

 6-7     to the plan, the commissioner, after notice and hearing, shall

 6-8     adopt reasonable rules as necessary or advisable to implement Part

 6-9     2, Article 21.28-C, Insurance Code.  Those rules shall continue in

6-10     force until modified by the commissioner or superseded by a plan

6-11     submitted by the association and approved by the commissioner.

6-12           Section 2.05.  IMMUNITY, INDEMNIFICATION, LITIGATION AND

6-13     RELATED MATTERS.  (a)  In addition to all immunities and

6-14     protections provided elsewhere in Article 21.28-C, Insurance Code,

6-15     the association shall succeed to all rights, defenses, immunities

6-16     and liabilities of the facility in all litigation and all other

6-17     proceedings and causes of action pending by or against the facility

6-18     on September 1, 1997, or filed thereafter.

6-19           (b)  The immunity provisions of Article 5.76-2, Section

6-20     2.05(h) and Section 2.12, Insurance Code shall continue to apply to

6-21     all acts or omissions before, on or after September 1, 1997, by the

6-22     persons or entities covered therein.

6-23           (c)  In the event that any party institutes or continues any

6-24     action against the facility, or its Governing Committee, Executive

6-25     Director, member insurers (solely in their capacity as member

6-26     insurers), staff, agents, servants, attorneys, consultants or

6-27     employees, whether or not serving as such as of September 1, 1997,

 7-1     in connection with, or arising from (1) the facility's operations

 7-2     or (2) the transactions contemplated by this Act, the association

 7-3     shall defend, indemnify and hold harmless such persons or entity

 7-4     from liability for any action or omission taken in connection with,

 7-5     or arising from the performance of their powers and duties on

 7-6     behalf of the facility.

 7-7           (d)  The litigation, proceedings and causes of action

 7-8     described in this section shall continue to be governed by and

 7-9     conducted under this section and Article 5.76-2, Texas Insurance

7-10     Code and the applicable Bylaws, Rules and Regulations of the

7-11     facility, which are continued in effect for the purposes of this

7-12     section.

7-13             (Sections 2.06 through 2.99 reserved for expansion

7-14           SECTION 4.  PRIVATIZATION OF THE TEXAS WORKERS' COMPENSATION

7-15     INSURANCE FACILITY ACCOUNT.  Article 21.28-C, Insurance Code is

7-16     amended by adding the following after Part 2:

7-17           Part 3.  Privatization of the Texas Workers' Compensation

7-18     Insurance Facility Account

7-19           Section 3.01.  The association may enter into negotiations

7-20     for the privatization of all the assets, liabilities, and

7-21     obligations maintained in the Texas Workers' Compensation Insurance

7-22     Facility Account to a single insurer.

7-23           Section 3.02.  If the association determines that

7-24     privatization under Section 3.01 is in the best interest of the

7-25     State of Texas, it shall get the written approval of the

7-26     commissioner before consummating the transaction.

7-27           Section 3.03.  Any net proceeds from the privatization of the

 8-1     Texas Workers' Compensation Insurance Facility Account shall be

 8-2     rebated in accordance with Section 2.03 of Article 21.28-C,

 8-3     Insurance Code.

 8-4           Section 3.04.  In the event that after privatization, the

 8-5     insurer becomes an impaired insurer, any remaining facility claims

 8-6     shall be covered claims within the meaning of Article 21.28-C,

 8-7     Insurance Code.

 8-8           SECTION 5.  NO ASSIGNMENT.  The association shall have full

 8-9     authority to enforce the contract rights or statutory rights of the

8-10     facility under any servicing company agreements and nothing in this

8-11     Act shall be construed to be an assignment of the facility's rights

8-12     or obligations pursuant to such agreements.

8-13           SECTION 6.  SEVERABILITY CLAUSE.  If any provision of this

8-14     Act or the application thereof to any person or entity or

8-15     circumstance is held invalid by any court of competent

8-16     jurisdiction, such invalidity shall not affect other provisions or

8-17     applications of the Act which can be given effect without the

8-18     invalid provision or application, and to this end the provisions of

8-19     this Act are declared to be severable.

8-20           SECTION 7.  CONTROLLING LAW.  If a conflict exists between

8-21     this Act and any other statutory provision relating to the facility

8-22     or the association, this Act shall control.

8-23           SECTION 8.  REPEALER.  The following laws are repealed:

8-24           (a)  Article 5.76-2, Insurance Code.

8-25           (b)  Acts 1991, 72nd Leg., 2nd C.S., ch. 12, Section

8-26     18.24(b), as amended by Acts 1993, 73rd Leg., ch. 885, Section 8.

8-27           (c)  Acts 1991, 72nd Leg., 2nd C.S., ch. 12, Section

 9-1     18.24(b).

 9-2           SECTION 9.  SAVINGS CLAUSE.  The repeal of Article 5.76-2,

 9-3     Insurance Code made by this Act does not affect rights and

 9-4     liabilities accruing before the effective date of this Act.

 9-5     Article 5.76-2, Insurance Code is continued in effect to govern

 9-6     such rights and liabilities.

 9-7           SECTION 10.  This Act takes effect September 1, 1997.

 9-8           SECTION 11.  The importance of this legislation and the

 9-9     crowded condition of the calendars in both houses create an

9-10     emergency and an imperative public necessity that the

9-11     constitutional rule requiring bills to be read on three several

9-12     days in each house be suspended, and this rule is hereby suspended,

9-13     and that this Act take effect and be in force from and after its

9-14     passage, and it is so enacted.