By Sibley                                             S.B. No. 1775
         Substitute the following for S.B. No. 1775:
         By Haggerty                                       C.S.S.B. No. 1775
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the regulation of certain providers of service
 1-3     contracts; providing penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  SECTION 1.  Title 132, Revised Statutes, is
 1-6     amended by adding Article 9034 to read as follows:
 1-7           Art. 9034.  REGULATION OF CERTAIN SERVICE CONTRACT PROVIDERS
 1-8           Sec. 1.  SHORT TITLE.  This article may be cited as the
 1-9     "Service Contract Regulatory Act."
1-10           Sec. 2.  DEFINITIONS.  In this article:
1-11                 (1)  "Administrator" means the person responsible for
1-12     the administration of a service contract or service contract plan.
1-13     The term includes a person responsible for any filings required by
1-14     this article.
1-15                 (2)  "Commissioner" means the commissioner of licensing
1-16     and regulation.
1-17                 (3)  "Commission" means the Texas Commission of
1-18     Licensing and Regulation.
1-19                 (4)  "Consumer" means an individual who buys, other
1-20     than for purposes of resale, any tangible personal property that
1-21     is:
1-22                       (A)  distributed in commerce; and
1-23                       (B)  normally used for personal, family, or
1-24     household purposes and not for business or research purposes.
 2-1                 (5)  "Department" means the Texas Department of
 2-2     Licensing and Regulation.
 2-3                 (6)  "Maintenance agreement" means an agreement of
 2-4     limited duration that provides only for scheduled maintenance.
 2-5                 (7)  "Person" means an individual or a partnership,
 2-6     company, corporation, association, or other group, however
 2-7     organized.
 2-8                 (8)  "Premium" means the consideration paid to an
 2-9     insurer for a reimbursement insurance policy.
2-10                 (9)  "Provider" means a person who is contractually
2-11     obligated to the service contract holder under the terms of the
2-12     service contract.
2-13                 (10)  "Provider fee" means the consideration paid for a
2-14     service contract.
2-15                 (11)  "Reimbursement insurance policy" means a policy
2-16     of insurance issued to a provider to:
2-17                       (A)  provide reimbursement to the provider under
2-18     the terms of the insured service contracts issued or sold by the
2-19     provider; or
2-20                       (B)  pay on behalf of the provider, in the event
2-21     of the provider's nonperformance, all covered contractual
2-22     obligations incurred by the provider under the terms of the insured
2-23     service contracts issued or sold by the provider.
2-24                 (12)  "Service contract" means an agreement, entered
2-25     into for a separately stated consideration and for a specified
2-26     term, under which a provider agrees to repair, replace, or maintain
2-27     a product, or provide indemnification for the repair, replacement,
 3-1     or maintenance of a product, for operational or structural failure
 3-2     caused by a defect in materials or workmanship or by normal wear.
 3-3     A service contract may additionally provide for incidental payment
 3-4     or indemnity under limited circumstances, including towing, rental,
 3-5     and emergency road service, or for the repair or replacement of a
 3-6     product for damage resulting from power surges or accidental damage
 3-7     incurred in handling the product.
 3-8                 (13)  "Service contract holder" means a person who
 3-9     purchases or otherwise holds a service contract.
3-10                 (14)  "Warranty" means, in relation to a product or
3-11     service, an undertaking that guarantees indemnity for defective
3-12     parts, mechanical or electrical breakdown, labor costs, or other
3-13     remedial measures, such as repair or replacement of the product or
3-14     repetition of services, and that is:
3-15                       (A)  made solely by the manufacturer, importer,
3-16     or seller of the product or services;
3-17                       (B)  made without payment of additional
3-18     consideration;
3-19                       (C)  not negotiated or separated from the sale of
3-20     the product or service; and
3-21                       (D)  incidental to the sale of the product or
3-22     service.
3-23           Sec. 3.  POWERS AND DUTIES OF COMMISSIONER.  (a)  The
3-24     commissioner may adopt rules as necessary to implement this
3-25     article.
3-26           (b)  The commissioner may conduct investigations of
3-27     providers, administrators, or other persons as necessary to enforce
 4-1     this article and protect service contract holders in this state.
 4-2     On request of the commissioner, a provider shall make the
 4-3     provider's records maintained under Section 9 of this article
 4-4     regarding service contracts sold by the provider available to the
 4-5     commissioner as necessary to enable the commissioner to reasonably
 4-6     determine compliance with this article.
 4-7           Sec. 4.  SERVICE CONTRACT PROVIDERS ADVISORY BOARD.  (a)  The
 4-8     service contract providers advisory board is an advisory body to
 4-9     the department.  The advisory board shall advise:
4-10                 (1)  the commissioner in adopting rules and enforcing
4-11     and administering this article; and
4-12                 (2)  the commission in setting fees.
4-13           (b)  The advisory board is composed of six members appointed
4-14     by the commissioner as follows:
4-15                 (1)  two members must be officers, directors, or
4-16     employees of a provider of service contracts that have been
4-17     approved by the commissioner;
4-18                 (2)  two members must be officers, directors, or
4-19     employees of a retail outlet or other entity located in this state
4-20     that provides to consumers service contracts approved by the
4-21     commissioner for sale to consumers;
4-22                 (3)  one member must be an officer, director, or
4-23     employee of an entity approved by the Texas Department of Insurance
4-24     to sell reimbursement insurance policies; and
4-25                 (4)  one member must be a resident of this state who
4-26     has, as a consumer, a service contract in force in this state at
4-27     the time of the appointment that is issued by a provider registered
 5-1     under this article.
 5-2           (c)  A member of the advisory board serves a term of six
 5-3     years with terms expiring on February 1 of odd-numbered years.
 5-4           (d)  The commissioner shall designate one member of the
 5-5     advisory board to serve as presiding officer.  The commissioner or
 5-6     the commissioner's designee shall serve as an ex officio nonvoting
 5-7     member of the advisory board.  The commissioner shall fill any
 5-8     vacancy on the advisory board for the remainder of the unexpired
 5-9     term with an individual who represents the same interests with
5-10     which the predecessor was identified.
5-11           (e)  The advisory board shall meet at least every six months
5-12     and may meet at other times at the call of the presiding officer.
5-13     The advisory board shall meet at a location in this state
5-14     designated by the advisory board.
5-15           (f)  A decision of the advisory board is not effective unless
5-16     it receives the affirmative vote of at least four members.
5-17           (g)  The advisory board members serve without compensation.
5-18     A member is entitled to reimbursement for actual and necessary
5-19     expenses incurred in performing functions as a member of the
5-20     advisory board, subject to any applicable limitation on
5-21     reimbursement provided by the General Appropriations Act.
5-22           Sec. 5.  REGISTRATION REQUIREMENTS; EXEMPTIONS.  (a)  A
5-23     person may not operate as a provider of service contracts sold in
5-24     this state unless the person is registered with the department.
5-25     Except for this registration requirement, providers and service
5-26     contract sellers, administrators, and other persons marketing,
5-27     selling, or offering to sell service contracts are exempt from any
 6-1     licensing requirements of this state that relate to the activities
 6-2     regulated under this article.
 6-3           (b)  Each applicant for registration shall file a
 6-4     registration application with the commissioner in the form
 6-5     prescribed by the commissioner that includes evidence satisfactory
 6-6     to the commissioner of compliance with the financial security
 6-7     requirements adopted under Section 6 of this article.
 6-8           (c)  Each registered provider shall pay an annual
 6-9     registration fee not to exceed $2,000 as set by the commission to
6-10     cover the costs of administrating this article.  The commissioner
6-11     shall develop a tiered fee structure under which registration fees
6-12     are assessed on providers based on the number of service contracts
6-13     sold within this state in the prior 12-month period.  The
6-14     information submitted to the commissioner under this section
6-15     regarding the number of service contracts sold by a provider may
6-16     only be used by the commissioner and the department in determining
6-17     the tiered fee structure.  Information concerning the number of
6-18     service contracts sold by a provider that is submitted under this
6-19     section is a trade secret and subject to Section 552.110,
6-20     Government Code.
6-21           (d)  The marketing, sale, offering for sale, issuance,
6-22     making, proposing to make, and administration of service contracts
6-23     are exempt from:
6-24                 (1)  the Insurance Code and other laws of this state
6-25     regulating the business of insurance;
6-26                 (2)  Article 6573b, Revised Statutes; and
6-27                 (3)  Chapter 722, Transportation Code.
 7-1           (e)  The following contracts and agreements are specifically
 7-2     exempt from the application of this article and are only subject to
 7-3     other statutes and laws which specifically apply to them:
 7-4                 (1)  warranties;
 7-5                 (2)  maintenance agreements;
 7-6                 (3)  service contracts sold or offered for sale to
 7-7     persons other than consumers;
 7-8                 (4)  residential service contracts sold by entities
 7-9     licensed by the Texas Real Estate Commission under Article 6573b,
7-10     Revised Statutes;
7-11                 (5)  agreements issued by automobile service clubs
7-12     certified under Chapter 722, Transportation Code;
7-13                 (6)  service contracts sold by a motor vehicle dealer
7-14     on vehicles sold by that dealer if the dealer is the provider and
7-15     is licensed as a motor vehicle dealer pursuant to Subchapter D,
7-16     Texas Motor Vehicle Commission Code (Article 4413(36), Vernon's
7-17     Texas Civil Statutes), and covers its obligations under the service
7-18     contract with a reimbursement insurance policy as defined by
7-19     Section 2(11) of this article; and
7-20                 (7)  contracts or agreements offered by local exchange
7-21     telephone companies providing repair for inside telephone wiring
7-22     for which the term does not exceed one month and which the consumer
7-23     can terminate before commencing a new term without liability except
7-24     for payment of charges for the current term.
7-25           Sec. 6.  FINANCIAL SECURITY REQUIREMENTS.  (a)  To ensure the
7-26     faithful performance of a provider's obligations to its service
7-27     contract holders, each provider shall comply with one of the
 8-1     following financial security requirements:
 8-2                 (1)  insure its service contracts under a reimbursement
 8-3     insurance policy issued by an insurer authorized to transact
 8-4     insurance in this state or under a surplus lines insurance policy
 8-5     issued by an insurer eligible to place coverage in this state as
 8-6     regulated under Article 1.14-2, Insurance Code;
 8-7                 (2)(A)  maintain a funded reserve account for its
 8-8     obligations under its service contracts issued and outstanding in
 8-9     this state.  The reserves shall be not less than 40 percent of the
8-10     gross consideration received from consumers, less claims paid, on
8-11     the sale of the service contract for all in-force contracts.  The
8-12     reserve account shall be subject to examination and review by the
8-13     commissioner; and
8-14                       (B)  place in trust with the commissioner a
8-15     financial security deposit, having a value of not less than five
8-16     percent of the gross consideration received from consumers, less
8-17     claims paid, on the sale of the service contract for all service
8-18     contracts issued and outstanding in this state, but not less than
8-19     $25,000, and consisting of:
8-20                             (i)  a surety bond issued by an authorized
8-21     surety;
8-22                             (ii)  securities of the type eligible for
8-23     deposit by authorized insurers in this state;
8-24                             (iii)  a statutory deposit of cash or cash
8-25     equivalents;
8-26                             (iv)  a letter of credit issued by a
8-27     qualified financial institution; or
 9-1                             (v)  another form of security prescribed by
 9-2     rules issued by the commissioner; or
 9-3                 (3)(A)  maintain, or have its parent company maintain,
 9-4     a net worth or stockholders' equity of at least $100 million; and
 9-5                       (B)  upon request, provide the commissioner a
 9-6     copy of the provider's or the provider's parent company's most
 9-7     recent Form 10-K or Form 20-F filed with the Securities and
 9-8     Exchange Commission within the last calendar year or, if the
 9-9     company does not file with the Securities and Exchange Commission,
9-10     a copy of the provider's or the provider's parent company's audited
9-11     financial statements showing a net worth of the provider or its
9-12     parent company of at least $100 million.  If the provider's parent
9-13     company's Form 10-K, Form 20-F, or audited financial statements are
9-14     filed to meet the provider's financial stability requirement, the
9-15     parent company shall agree to guarantee the obligations of the
9-16     provider relating to service contracts sold by the provider in this
9-17     state.
9-18           (b)  No other financial security requirements shall be
9-19     required by the commissioner for service contract providers.
9-20           Sec. 7.  REIMBURSEMENT INSURANCE POLICY.  (a)  In order for a
9-21     provider to comply with Section 6 of this article through the use
9-22     of a reimbursement insurance policy, such policy must state that:
9-23                 (1)  the insurer that issued the reimbursement
9-24     insurance policy shall reimburse or pay on behalf of the provider
9-25     any covered amounts the provider is legally obligated to pay or
9-26     shall provide the service that the provider is legally obligated to
9-27     perform according to the provider's contractual obligations under
 10-1    the insured service contract issued or sold by the provider; and
 10-2                (2)  if the covered service is not provided to a
 10-3    service contract holder within 60 days of proof of loss, payment
 10-4    shall be made directly from the reimbursement insurer to the
 10-5    service contract holder or the reimbursement insurer shall provide
 10-6    the required service.
 10-7          (b)  An insurer that issues a reimbursement insurance policy
 10-8    under this article may not cancel the policy until the insurer
 10-9    delivers to the provider a written notice of cancellation that
10-10    complies with the requirements adopted for those notices under
10-11    Articles 21.49-2A and 21.49-2B, Insurance Code.  The provider shall
10-12    forward a copy of the cancellation notice to the commissioner not
10-13    later than the 15th business day after the date the notice is
10-14    delivered to the provider.  The cancellation of a reimbursement
10-15    insurance policy does not reduce the insurer's responsibility for
10-16    service contracts issued by the provider and insured under the
10-17    policy before the date of the cancellation.
10-18          (c)  For purposes of this section, the provider is considered
10-19    the agent of the insurer that issues the reimbursement insurance
10-20    policy for purposes of obligating the insurer to service contract
10-21    holders in accordance with the service contract and this article.
10-22          (d)  This article does not prevent or limit the right of an
10-23    insurer that issues a reimbursement insurance policy to seek
10-24    indemnification or subrogation against a provider if the insurer
10-25    pays or is obligated to pay a service contract holder any amount
10-26    that the provider is obligated to pay under the terms of the
10-27    service contract.
 11-1          Sec. 8.  GENERAL PROVIDER OPERATION REQUIREMENTS.  (a)  A
 11-2    provider may appoint an administrator or other designee to be
 11-3    responsible for any or all of the administration or sale of service
 11-4    contracts and for compliance with this article.
 11-5          (b)  A service contract may not be issued, sold, or offered
 11-6    for sale in this state unless the provider has provided to the
 11-7    service contract holder:
 11-8                (1)  a receipt for, or other written evidence of, the
 11-9    purchase of the service contract; and
11-10                (2)  a copy of the service contract within a reasonable
11-11    period after the date of purchase.
11-12          Sec. 9.  PROVIDER RECORDS.  (a)  Each provider shall maintain
11-13    accurate accounts, books, and other records regarding transactions
11-14    regulated under this article.  The provider's records must include:
11-15                (1)  a copy of each unique form of service contract
11-16    sold;
11-17                (2)  the name and address of each service contract
11-18    holder, if the name and address have been furnished by the contract
11-19    holder;
11-20                (3)  a list of the locations at which the provider's
11-21    service contracts are marketed, sold, or offered for sale; and
11-22                (4)  written claims files that contain at least the
11-23    dates and descriptions of claims related to the service contracts.
11-24          (b)  Except as provided by Subsection (d) of this section,
11-25    each provider shall retain all records required to be maintained
11-26    under Subsection (a) of this section at least until the first
11-27    anniversary of the expiration date under the contract of the
 12-1    specified period of coverage.
 12-2          (c)  The records required to be maintained under this section
 12-3    may be maintained in an electronic medium or through other
 12-4    recordkeeping technology.  If a record is maintained in a format
 12-5    other than hard copy, the provider must be able to reformat the
 12-6    record into legible hard copy at the request of the commissioner.
 12-7          (d)  A provider who discontinues business in this state shall
 12-8    maintain its records until the provider furnishes the commissioner
 12-9    with proof satisfactory to the commissioner that the provider has
12-10    discharged all obligations to service contract holders in this
12-11    state.
12-12          Sec. 10.  REQUIRED DISCLOSURES.  (a)  Each service contract
12-13    marketed, sold, offered for sale, issued, made, proposed to be
12-14    made, or administered in this state shall be written, printed, or
12-15    typed in clear, understandable language that is easy to read and
12-16    shall disclose the applicable requirements set forth in this
12-17    section.
12-18          (b)  A service contract insured under a reimbursement
12-19    insurance policy under Section 6(a) of this article must contain a
12-20    statement substantially similar to the following:  "Obligations of
12-21    the provider under this service contract are insured under a
12-22    service contract reimbursement insurance policy."  The service
12-23    contract shall state the name and address of the insurer and state
12-24    that in the event covered service is not provided by the service
12-25    contract provider within 60 days of proof of loss by the service
12-26    contract holder, the service contract holder may apply for
12-27    reimbursement directly to the service contract reimbursement
 13-1    insurance company.
 13-2          (c)  A service contract that is not insured under a
 13-3    reimbursement insurance policy must contain a statement
 13-4    substantially similar to the following: "Obligations of the
 13-5    provider under this service contract are backed by the full faith
 13-6    and credit of the provider."
 13-7          (d)  Each service contract shall state the name and address
 13-8    of the provider and shall identify any administrator, if different
 13-9    from the provider, the service contract seller, and the service
13-10    contract holder, to the extent that the name of the service
13-11    contract holder has been furnished by the service contract holder.
13-12    The identities of those persons are not required to be preprinted
13-13    on the service contract and may be added to the service contract at
13-14    the time of sale.
13-15          (e)  Each service contract must state the purchase price of
13-16    the contract and the terms under which the contract is sold.  The
13-17    purchase price is not required to be preprinted on the service
13-18    contract and may be negotiated at the time of sale with the service
13-19    contract holder.
13-20          (f)  Each service contract must state the terms,
13-21    restrictions, or conditions governing cancellation of the service
13-22    contract by either the provider or the service contract holder
13-23    before the expiration date of the service contract.  A provider
13-24    shall mail a written notice of cancellation to the service contract
13-25    holder at the last known address of the service contract holder
13-26    contained in the records of the provider before the fifth day
13-27    preceding the effective date of the cancellation.  Prior notice is
 14-1    not required if the reason for cancellation is nonpayment of the
 14-2    provider fee, a material misrepresentation by the service contract
 14-3    holder to the provider, or a substantial breach of duties by the
 14-4    service contract holder relating to the covered product or its use.
 14-5    The notice must state the effective date of the cancellation and
 14-6    the reason for the cancellation.
 14-7          (g)  Each service contract must:
 14-8                (1)  state the amount of any deductible, if applicable;
 14-9                (2)  specify the products and services to be provided
14-10    and any limitations, exceptions, or exclusions;
14-11                (3)  specify any restrictions governing the
14-12    transferability of the service contract;
14-13                (4)  state the duties of the service contract holder,
14-14    including any duty to protect against any further damage and any
14-15    requirement to follow owner's manual instructions; and
14-16                (5)  if applicable, state whether the service contract
14-17    provides for or excludes consequential damages or preexisting
14-18    conditions.
14-19          Sec. 11.  VOIDING OF CONTRACT.  (a)  Each service contract
14-20    shall require the provider to permit the service contract holder to
14-21    return the service contract not later than the 20th day after the
14-22    date the service contract was mailed to the service contract holder
14-23    or, if the service contract is delivered to the service contract
14-24    holder at the time of sale, not later than the  10th day after the
14-25    date of delivery.  A service contract holder may void the service
14-26    contract at a later time as permitted by the service contract.
14-27          (b)  If a contract holder returns a service contract under
 15-1    Subsection (a) of this section and a claim has not been made under
 15-2    the service contract before its return to the provider, the service
 15-3    contract is void and the provider shall refund to the service
 15-4    contract holder or credit to the account of the service contract
 15-5    holder the full purchase price of the service contract.  The right
 15-6    provided by this section to void the service contract is not
 15-7    transferable and applies only to the original service contract
 15-8    purchaser.  If a service contract is voided under this section and
 15-9    the provider does not pay the refund or credit the service contract
15-10    holder's account before the 46th day after the date of the return
15-11    of the service contract to the provider, the provider is liable to
15-12    the contract holder for a penalty in an amount not to exceed 10
15-13    percent of the amount outstanding per month.
15-14          Sec. 12.  LIMITATIONS ON PROVIDER NAME.  (a)  A provider may
15-15    not use:
15-16                (1)  in its name the words insurance, casualty, surety,
15-17    mutual, or any other words descriptive of the insurance, casualty,
15-18    or surety business;
15-19                (2)  a name deceptively similar to the name or
15-20    description of any insurance or surety corporation; or
15-21                (3)  a name deceptively similar to the name of any
15-22    other provider.
15-23          (b)  A provider may use the word "guaranty" or a similar
15-24    word.
15-25          (c)  This section does not apply to a provider that, before
15-26    September 1, 1999, used a word prohibited under this section in its
15-27    name, but that provider must include in each of its service
 16-1    contracts a statement in substantially the following form:  "This
 16-2    agreement is not an insurance contract."
 16-3          Sec. 13.  PROHIBITED ACTS.  (a)  A provider, or a provider's
 16-4    representative, may not, in the provider's service contracts or
 16-5    literature:
 16-6                (1)  make, permit, or cause to be made any false or
 16-7    misleading statement; or
 16-8                (2)  deliberately omit a material statement that would
 16-9    be considered misleading if omitted.
16-10          (b)  A person, including a bank, savings and loan
16-11    association, lending institution, manufacturer, or seller of any
16-12    product, may not require the purchase of a service contract as a
16-13    condition of a loan or the sale of any property.
16-14          Sec. 14.  ENFORCEMENT.  (a)  On a finding that a ground for
16-15    disciplinary action exists under one or more provisions of this
16-16    article, the commissioner may impose appropriate administrative
16-17    sanctions, including an administrative penalty as provided by
16-18    Article 9100, Revised Statutes.  An administrative penalty imposed
16-19    under this section may not exceed $500 per violation or $10,000 in
16-20    the aggregate for all violations of a similar nature.
16-21          (b)  A disciplinary action taken under this article is
16-22    subject to Section 17(d), Article 9100, Revised Statutes.
16-23          (c)  The commissioner may bring an action for injunctive
16-24    proceedings under Section 18, Article 9100, Revised Statutes, for a
16-25    threatened or existing violation of this article or the
16-26    commissioner's orders or rules adopted under this article and may
16-27    also bring an action for civil penalties as provided by that
 17-1    section.  A civil penalty assessed under this subsection may not
 17-2    exceed $2,500 per violation or $50,000 in the aggregate for all
 17-3    violations of a similar nature.
 17-4          (d)  For purposes of Subsections (a) and (c) of this section,
 17-5    a violation is of a similar nature if the violation consists of the
 17-6    same or a similar course of conduct, action, or practice,
 17-7    regardless of the number of times the act, conduct, or practice
 17-8    determined to be a violation of this article occurred.
 17-9          SECTION 2.  Section 348.208, Finance Code, is amended by
17-10    adding Subsection (c) to read as follows:
17-11          (c)  Notwithstanding any other law, service contracts sold by
17-12    a retail seller of a motor vehicle to a retail buyer are not
17-13    subject to 1.14-1, Insurance Code.
17-14          SECTION 3.  (a)  Article 9034, Revised Statutes, as added by
17-15    this Act, takes effect September 1, 1999, and applies only to a
17-16    service contract entered into on or after January 1, 2000.  A
17-17    service contract entered into before that date and renewed after
17-18    that date is not subject to that article.
17-19          (b)  A person regulated under Article 9034, Revised Statutes,
17-20    as added by this Act, is not required to comply with that article
17-21    until January 1, 2000, but may implement the requirements of that
17-22    article before January 1, 2000.  The failure of a provider or other
17-23    person to comply with that article or otherwise to administer a
17-24    service contract plan in the manner required by that article before
17-25    January 1, 2000, is not admissible in any court, arbitration, or
17-26    alternative dispute resolution proceeding and may not otherwise be
17-27    used to prove that the action of any person or the affected service
 18-1    contract was unlawful or otherwise improper.
 18-2          SECTION 4.  The importance of this legislation and the
 18-3    crowded condition of the calendars in both houses create an
 18-4    emergency and an imperative public necessity that the
 18-5    constitutional rule requiring bills to be read on three several
 18-6    days in each house be suspended, and this rule is hereby suspended.