By Smithee                                            H.B. No. 2830
         77R7082 AJA-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to unauthorized insurance.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1. Sections 101.001(a) and (b), Insurance Code, are
 1-5     amended to read as follows:
 1-6           (a)  It is a state concern that many persons [residents of
 1-7     this state] hold insurance policies issued by persons or insurers
 1-8     who are not authorized to do insurance business in this state and
 1-9     who are not qualified as eligible surplus lines insurers under
1-10     Article 1.14-2.  These persons [residents] face often
1-11     insurmountable obstacles in asserting legal rights under the
1-12     policies [in foreign forums under unfamiliar laws and rules of
1-13     practice].
1-14           (b)  It is the policy of this state to protect persons
1-15     [residents] against acts by a person or insurer who is not
1-16     authorized to do insurance business in this state by:
1-17                 (1)  maintaining fair and honest insurance markets;
1-18                 (2)  protecting the premium tax revenues of this state;
1-19                 (3)  protecting authorized persons and insurers, who
1-20     are subject to strict regulation, from unfair competition by
1-21     unauthorized persons and insurers; and
1-22                 (4)  protecting against evasion of the insurance
1-23     regulatory laws of this state.
1-24           SECTION 2. Section 101.051(b), Insurance Code, is amended to
 2-1     read as follows:
 2-2           (b)  The following acts [in this state] constitute the
 2-3     business of insurance in this state:
 2-4                 (1)  making or proposing to make, as an insurer, an
 2-5     insurance contract;
 2-6                 (2)  making or proposing to make, as guarantor or
 2-7     surety, a guaranty or suretyship contract as a vocation and not
 2-8     merely incidental to another legitimate business or activity of the
 2-9     guarantor or surety;
2-10                 (3)  taking or receiving an insurance application;
2-11                 (4)  receiving or collecting any consideration for
2-12     insurance, including:
2-13                       (A)  a premium;
2-14                       (B)  a commission;
2-15                       (C)  a membership fee;
2-16                       (D)  an assessment; or
2-17                       (E)  dues;
2-18                 (5)  issuing or delivering an insurance contract [to:]
2-19                       [(A)  a resident of this state; or]
2-20                       [(B)  a person authorized to do business in this
2-21     state];
2-22                 (6)  directly or indirectly acting as an agent for or
2-23     otherwise representing or assisting an insurer or other person in:
2-24                       (A)  soliciting, negotiating, procuring, or
2-25     effectuating insurance or a renewal of insurance;
2-26                       (B)  disseminating information relating to
2-27     coverage or rates;
 3-1                       (C)  forwarding an insurance application;
 3-2                       (D)  delivering an insurance policy or contract;
 3-3                       (E)  inspecting a risk;
 3-4                       (F)  setting a rate;
 3-5                       (G)  investigating or adjusting a claim or loss;
 3-6                       (H)  transacting a matter after the effectuation
 3-7     of the contract that arises out of the contract; or
 3-8                       (I)  representing or assisting an insurer or
 3-9     other person in any other manner in the transaction of insurance
3-10     [with respect to a subject of insurance that is resident, located,
3-11     or to be performed in this state];
3-12                 (7)  contracting to provide in this state
3-13     indemnification or expense reimbursement for a medical expense by
3-14     direct payment, reimbursement, or otherwise [to a person domiciled
3-15     in this state or for a risk located in this state], whether as an
3-16     insurer, agent, administrator, trust, or funding mechanism or by
3-17     another method;
3-18                 (8)  doing any kind of insurance business specifically
3-19     recognized as constituting insurance business within the meaning of
3-20     statutes relating to insurance;
3-21                 (9)  doing or proposing to do any insurance business
3-22     that is in substance equivalent to conduct described by
3-23     Subdivisions (1)-(8) in a manner designed to evade statutes
3-24     relating to insurance; or
3-25                 (10)  any other transaction of business in this state
3-26     by an insurer, regardless of the residency of the insured or the
3-27     location of the risk.
 4-1           SECTION 3. Section 101.103(a), Insurance Code, is amended to
 4-2     read as follows:
 4-3           (a)  If the commissioner has reason to believe a person,
 4-4     including an insurer, has violated or is threatening to violate
 4-5     this chapter or a rule adopted under this chapter, or that a
 4-6     person, including an insurer, violating this chapter has engaged in
 4-7     or is threatening to engage in an unfair act, the commissioner may:
 4-8                 (1)  issue a cease and desist order under Subchapter D;
 4-9                 (2)  seek injunctive relief under Section 101.105;
4-10                 (3)  request the attorney general to recover a civil
4-11     penalty under Section 101.105; [or]
4-12                 (4)  request the Travis County district attorney to
4-13     proceed with criminal prosecution; or
4-14                 (5)  take any combination of those actions.
4-15           SECTION 4. Section 101.106, Insurance Code, is amended to
4-16     read as follows:
4-17           Sec. 101.106.  CRIMINAL PENALTY. (a)  A person[, including an
4-18     insurer, who violates Section 101.102] commits an offense if the
4-19     person engages in the business of insurance:
4-20                 (1)  without a valid certificate of authority, license,
4-21     or specific authorization or exemption; or
4-22                 (2)  after the person's certificate of authority,
4-23     license, or authorization has been suspended or revoked.
4-24           (b)  An offense under this section is a felony of the third
4-25     degree.
4-26           [(c) It is a defense to prosecution under this section that
4-27     Section 101.051 or 101.052, as applicable, by its terms does not
 5-1     apply to the person charged.]
 5-2           SECTION 5. Section 101.203(a), Insurance Code, is amended to
 5-3     read as follows:
 5-4           (a)  If the commissioner has reason to believe that insurance
 5-5     has been effectuated [by or for a person in this state] with an
 5-6     unauthorized insurer, the commissioner shall in writing order the
 5-7     person to:
 5-8                 (1)  produce for examination all insurance contracts
 5-9     and other documents evidencing insurance with both authorized and
5-10     unauthorized insurers; and
5-11                 (2)  disclose to the commissioner:
5-12                       (A)  the amount of insurance;
5-13                       (B)  the name and address of each insurer;
5-14                       (C)  the gross amount of premiums paid or to be
5-15     paid; and
5-16                       (D)  the name and address of each person
5-17     assisting in the solicitation, negotiation, or effectuation of the
5-18     insurance.
5-19           SECTION 6. Section 101.253, Insurance Code, is amended to
5-20     read as follows:
5-21           Sec. 101.253.  FILING REQUIREMENTS FOR CORPORATIONS. The
5-22     amount of tax due [and payable] under Section 101.252 with respect
5-23     to a corporation that files a franchise tax return shall be
5-24     reported directly to the comptroller and is due:
5-25                 (1)  at the time the franchise tax report is due; or
5-26                 (2)  on another date specified by the comptroller.
5-27           SECTION 7. Section 101.301(a), Insurance Code, is amended to
 6-1     read as follows:
 6-2           (a)  A person in this state investigating or adjusting a loss
 6-3     or claim on a subject of insurance [in this state] shall
 6-4     immediately report to the department an insurance policy or
 6-5     contract that has been entered into by an insurer that is not
 6-6     authorized to transact the insurance in this state.
 6-7           SECTION 8. (a)  The change in law made by Section 101.106,
 6-8     Insurance Code, as amended by this Act, applies only to an offense
 6-9     committed on or after the effective date of this Act.  For purposes
6-10     of this section, an offense is committed before the effective date
6-11     of this Act if any element of the offense occurs before that date.
6-12           (b)  An offense committed before the effective date of this
6-13     Act is covered by the law in effect when the offense was committed,
6-14     and the former law is continued in effect for that purpose.
6-15           SECTION 9. This Act takes effect September 1, 2001.