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.