By Smithee                                            H.B. No. 3040
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the enactment of the Structured Settlement Protection
 1-3     Act as an amendment to the Texas Insurance Code; providing an
 1-4     effective date; and declaring an emergency.
 1-5           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-6           SECTION 1.  Chapter 3, Texas Insurance Code, is amended by
 1-7     adding thereto SUBCHAPTER K, Structured Settlement Protection Act,
 1-8     Article 3.97, to read as follows:
 1-9           Art. 3.97.  STRUCTURED SETTLEMENT PROTECTION ACT.
1-10           Sec. 1.  Conditions to Transfers of Structured Settlement
1-11     Payment Rights.  No direct or indirect transfer of structured
1-12     settlement payment rights shall be effective and no structured
1-13     settlement obligor or annuity issuer shall be required to make any
1-14     payment directly or indirectly to any transferee of structured
1-15     settlement payment rights unless the transfer has been authorized
1-16     in advance in a final order of a court of competent jurisdiction or
1-17     a responsible administrative authority, based on express findings
1-18     by such court or responsible administrative authority that:
1-19     (a)  the transfer complies with the requirements of this Act and
1-20     will not contravene other applicable law;
1-21           (b)  not less than ten (10) days prior to the date on which
 2-1     the payee first incurred any obligation with respect to the
 2-2     transfer, the transferee has provided to the payee a disclosure
 2-3     statement in bold type, no smaller than 14 points, setting forth:
 2-4                 (i)  the amounts and due dates of the structured
 2-5     settlement payments to be transferred;
 2-6                 (ii)  the aggregate amount of such payments;
 2-7                 (iii)  the discounted present value of such payments,
 2-8     together with the discount rate used in determining such discounted
 2-9     present value;
2-10                 (iv)  the gross amount payable to the payee in exchange
2-11     for such payments;
2-12                 (v)  an itemized listing of all commissions, fees,
2-13     costs, expenses and charges payable by the payee or deductible from
2-14     the gross amount otherwise payable to the payee;
2-15                 (vi)  the net amount payable to the payee after
2-16     deduction of all commissions, fees, costs, expenses and charges
2-17     described in subparagraph (v) of this paragraph;
2-18                 (vii)  the quotient (expressed as a percentage)
2-19     obtained by dividing the net payment amount by the discounted
2-20     present value of the payments; and
2-21                 (viii)  the amount of any penalty and the aggregate
2-22     amount of any liquidated damages (inclusive of penalties) payable
2-23     by the payee in the event of any breach of the transfer agreement
2-24     by the payee;
2-25           (c)  the extraordinary, unanticipated and imminent means of
 3-1     the payee or his or her dependents render the transfer appropriate;
 3-2           (d)  the payee has received independent professional advice
 3-3     regarding the legal, tax and financial implications of the
 3-4     transfer;
 3-5           (e)  if the transfer would contravene the terms of the
 3-6     structured settlement:
 3-7                 (i)  the transfer has been expressly approved in
 3-8     writing by:
 3-9                       (A)  each interested party; provided, however,
3-10     that if, at the time the payee and the transferee entered into the
3-11     transfer agreement, a favorable tax determination was in effect,
3-12     then the approval of the annuity issuer and the structured
3-13     settlement obligor shall not be required if all other interested
3-14     parties approve the transfer and waive any and all rights to
3-15     require that the transferred payments be made to the payee in
3-16     accordance with the terms of the structured settlement; and
3-17                       (B)  any court or government authority, other
3-18     than the court or responsible administrative authority from which
3-19     authorization of the transfer is sought under this Act, which
3-20     previously approved the structured settlement; and
3-21                 (ii)  signed originals of all approvals required under
3-22     subparagraph (i) of this paragraph have been filed with the court
3-23     or responsible administrative authority from which authorization of
3-24     the transfer is sought under this Act, and originals or copies have
3-25     been furnished to all interested parties; and
 4-1           (f)  the transferee has given written notice of the
 4-2     transferee's name, address and taxpayer identification number to
 4-3     the annuity issuer and the structured settlement obligor and has
 4-4     filed a copy of such notice with the court or responsible
 4-5     administrative authority.
 4-6           Sec. 2.  Definitions.  For purposes of this Act:
 4-7           (a)  "annuity issuer" means an insurer that has issued an
 4-8     insurance contract used to fund periodic payments under a
 4-9     structured settlement;
4-10           (b)  "applicable law" means:
4-11                 (i)  the federal laws of the United States;
4-12                 (ii)  the laws of this State, including principles of
4-13     equity applied in the courts of this State; and
4-14                 (iii)  the laws of any other jurisdiction:
4-15                       (A)  which is the domicile of the payee or any
4-16     other interested party; or
4-17                       (B)  under whose laws a structured settlement
4-18     agreement was approved by a court or responsible administrative
4-19     authority;
4-20           (c)  "dependents" include a payee's spouse and minor children
4-21     and all other family members and other persons for whom the payee
4-22     is legally obligated to provide support, including alimony;
4-23           (d)  "discounted present value" means the fair present value
4-24     of future payments, as determined by discounting such payments to
4-25     the present using the most recently published applicable federal
 5-1     rate for determining the present value of an annuity, as issued by
 5-2     the United States Internal Revenue Service;
 5-3           (e)  "favorable tax determination" means, with respect to a
 5-4     proposed transfer of structured settlement payment rights, any of
 5-5     the following authorities that definitely establishes that the
 5-6     federal income tax treatment of the structured settlement for the
 5-7     parties to the structured settlement agreement and any qualified
 5-8     assignment agreement, other than the payee, will not be affected by
 5-9     such transfer:
5-10                 (i)  a provision of the United States Internal Revenue
5-11     Code, United States Code Title 26, as amended from time to time, or
5-12     a United States Treasury regulation adopted pursuant thereto;
5-13                 (ii)  a revenue ruling or revenue procedure issued by
5-14     the United States Internal Revenue Service; or
5-15                 (iii)  a private letter ruling by the United States
5-16     Internal Revenue Service with respect to such transfer; or
5-17                 (iv)  a decision of the United States Supreme Court or
5-18     a decision of a lower federal court in which the United States
5-19     Internal Revenue Service has acquiesced;
5-20           (f)  independent professional advice" means advice of an
5-21     attorney, certified public accountant, actuary or other licensed
5-22     professional adviser:
5-23                 (i)  who is engaged by a payee to render advice
5-24     concerning the legal, tax and financial implications of a transfer
5-25     of structured settlement payment rights;
 6-1                 (ii)  who is not in any manner affiliated with or
 6-2     compensated by the transferee of such transfer; and
 6-3                 (iii)  whose compensation for rendering such advice is
 6-4     not affected by whether a transfer occurs or does not occur;
 6-5           (g)  "interested parties" means, with respect to any
 6-6     structured settlement, the payee, any beneficiary designated under
 6-7     the annuity contract to receive payments following the payee's
 6-8     death, the annuity issuer, the structured settlement obligor, and
 6-9     any other party that has continuing rights or obligations under
6-10     such structured settlement;
6-11           (h)  "payee" means an individual who is receiving tax free
6-12     payments under a structured settlement and proposes to make a
6-13     transfer of payment rights thereunder;
6-14           (i)  "periodic payments" include scheduled future lump sum
6-15     payments;
6-16           (j)  "qualified assignment agreement" means an agreement
6-17     providing for a qualified assignment within the meaning of section
6-18     130 of the United States Internal Revenue Code, United States Code
6-19     Title 26, as amended from time to time;
6-20           (k)  "responsible administrative authority" means, with
6-21     respect to a structured settlement, any government authority vested
6-22     by law with exclusive jurisdiction over the settled claim resolved
6-23     by such structured settlement;
6-24           (l)  "settled claim" means the original tort claim or
6-25     workers' compensation claim resolved by a structured settlement;
 7-1           (m)  "structured settlement" means an arrangement for
 7-2     periodic payment of damages for personal injuries established by
 7-3     settlement or judgment in resolution of a tort claim or for
 7-4     periodic payments in settlement of a workers' compensation claim;
 7-5           (n)  "structured settlement agreement" means the agreement,
 7-6     judgment, stipulation, or release embodying the terms of a
 7-7     structured settlement;
 7-8           (o)  "structured settlement obligor" means, with respect to
 7-9     any structured settlement, the party that has the continuing
7-10     obligation to make periodic payments to the payee under a
7-11     structured settlement agreement or a qualified assignment
7-12     agreement;
7-13           (p)  "structured settlement payment rights" means rights to
7-14     receive periodic payments under a structured settlement, whether
7-15     from the structured settlement obligor or the annuity issuer,
7-16     where:
7-17                 (i)  the payee or the structured settlement obligor or
7-18     the annuity issuer or any other party to the structured settlement
7-19     agreement or any other interested party is domiciled in this State;
7-20     or
7-21                 (ii)  the structured settlement agreement was approved
7-22     by a court or responsible administrative authority in this State;
7-23           (q)  "terms of the structured settlement" include, with
7-24     respect to any structured settlement, the terms of the structured
7-25     settlement agreement, the annuity contract, any qualified
 8-1     assignment agreement and any order or approval of any court or
 8-2     responsible administrative authority or other government authority
 8-3     authorizing or approving such structured settlement;
 8-4           (r)  "transfer" means any sale, assignment, pledge,
 8-5     hypothecation, or other form of alienation or encumbrance made by a
 8-6     payee for consideration;
 8-7           (s)  "transferee" means a party acquiring or proposing to
 8-8     acquire structured settlement payment rights through a transfer of
 8-9     such rights; and
8-10           (t)  "transfer agreement" means the agreement providing for
8-11     transfer of structured settlement payment rights from a payee to a
8-12     transferee.
8-13           Sec. 3.  Approval of Transfers.  (a)  An application under
8-14     this Act for authorization of a transfer of structured settlement
8-15     payment rights shall be made by the transferee and may be brought
8-16     in the appropriate state court of original jurisdiction in the
8-17     county in which the payee or the structured settlement obligor or
8-18     the annuity issuer or any other party to the structured settlement
8-19     agreement or any other interested party resides or in any court or
8-20     before any responsible administrative authority which approved the
8-21     structured settlement agreement.
8-22           (b)  Not less than twenty (20) days prior to the scheduled
8-23     hearing on any application for authorization of a transfer of
8-24     structured settlement payment rights under Section 1 of this Act,
8-25     the transferee shall file with the court or responsible
 9-1     administrative authority and serve on any other government
 9-2     authority which previously approved the structured settlement, on
 9-3     all interested parties, a notice of the proposed transfer and the
 9-4     application for its authorization, including in such notice:
 9-5                 (i)  a copy of the transferee's application;
 9-6                 (ii)  a copy of the transfer agreement;
 9-7                 (iii)  a copy of the disclosure statement required
 9-8     under Section 1(b) of this Act;
 9-9                 (iv)  notification that any interested party is
9-10     entitled to support, oppose or otherwise respond to the
9-11     transferee's application, either in person or by counsel, by
9-12     submitting written comments to the court or responsible
9-13     administrative authority or by participating in the hearing; and
9-14                 (v)  notification of the time and place of the hearing
9-15     and notification of the manner in which and the time by which
9-16     written responses to the application must be filed (which shall be
9-17     not less than fifteen (15) days after service of the transferee's
9-18     notice) in order to be considered by the court or responsible
9-19     administrative authority.
9-20           (c)  The interested parties (as identified in Sec. 3(b)
9-21     above) shall have standing to raise, appear and be heard on any
9-22     matter relating to an application for authorization of a transfer
9-23     of structured settlement payment rights under this Act.
9-24           Sec. 4.  No Waiver; No Penalties.  (a)  The provisions of
9-25     this Act may not be waived.
 10-1          (b)  No payee who proposes to make a transfer of structured
 10-2    settlement payment rights shall incur any penalty, forfeit any
 10-3    application fee or other payment, or otherwise incur any liability
 10-4    to the proposed transferee based on any failure of such transfer to
 10-5    satisfy the conditions of Section 1 of this Act.
 10-6          Sec. 5.  Construction.  Nothing contained in this Act shall
 10-7    be construed to authorize any transfer of structured settlement
 10-8    payment rights in contravention of applicable law or to give effect
 10-9    to any transfer of structured settlement payment rights that is
10-10    invalid under applicable law.
10-11          Sec. 6.  Effective Date.  This Act shall apply to any
10-12    transfer of structured settlement payment rights under a transfer
10-13    agreement entered into on or after the date of enactment of this
10-14    Act; provided, however, that nothing contained herein shall imply
10-15    that any transfer under a transfer agreement reached prior to such
10-16    date is effective.
10-17          SECTION 2.  This Act takes effect September 1, 1999.
10-18          SECTION 3.  The importance of this legislation and the
10-19    crowded condition of the calendars in both houses create an
10-20    emergency and an imperative public necessity that the
10-21    constitutional rule requiring bills to be read on three several
10-22    days in each house be suspended, and this rule is hereby suspended.