By:  Sibley                                           S.B. No. 1004
         2001S0610/1                            
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to regulating the unauthorized practice of the business of
 1-3     insurance; providing a criminal penalty.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Subsections (a) and (b), Section 101.001,
 1-6     Insurance Code, are amended to read as follows:
 1-7           (a)  It is a state concern that many persons [residents of
 1-8     this state] hold insurance policies issued by persons or insurers
 1-9     who are not authorized to do insurance business in this state and
1-10     who are not qualified as eligible surplus lines insurers under
1-11     Article 1.14-2.  These persons [residents] face often
1-12     insurmountable obstacles in asserting legal rights under the
1-13     policies [in foreign forums under unfamiliar laws and rules of
1-14     practice].
1-15           (b)  It is the policy of this state to protect persons
1-16     [residents] against acts by a person or insurer who is not
1-17     authorized to do insurance business in this state by:
1-18                 (1)  maintaining fair and honest insurance markets;
1-19                 (2)  protecting the premium tax revenues of this state;
1-20                 (3)  protecting authorized persons and insurers, who
1-21     are subject to strict regulation, from unfair competition by
1-22     unauthorized persons and insurers; and
1-23                 (4)  protecting against evasion of the insurance
1-24     regulatory laws of this state.
1-25           SECTION 2.  Subsection (b), Section 101.051, Insurance Code,
 2-1     is amended to 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
 3-1     coverage or rates;
 3-2                       (C)  forwarding an insurance application;
 3-3                       (D)  delivering an insurance policy or contract;
 3-4                       (E)  inspecting a risk;
 3-5                       (F)  setting a rate;
 3-6                       (G)  investigating or adjusting a claim or loss;
 3-7                       (H)  transacting a matter after the effectuation
 3-8     of the contract that arises out of the contract; or
 3-9                       (I)  representing or assisting an insurer or
3-10     other person in any other manner in the transaction of insurance
3-11     with respect to a subject of insurance [that is resident, located,
3-12     or] [to be performed in this state];
3-13                 (7)  contracting to provide [in this state]
3-14     indemnification or expense reimbursement for a medical expense by
3-15     direct payment, reimbursement, or otherwise to a person [domiciled
3-16     in this state or for a risk located in this state], whether as an
3-17     insurer, agent, administrator, trust, or funding mechanism or by
3-18     another method;
3-19                 (8)  doing any kind of insurance business specifically
3-20     recognized as constituting insurance business within the meaning of
3-21     statutes relating to insurance;
3-22                 (9)  doing or proposing to do any insurance business
3-23     that is in substance equivalent to conduct described by
3-24     Subdivisions (1)-(8) in a manner designed to evade statutes
3-25     relating to insurance; or
3-26                 (10)  any other transaction of business in this state
 4-1     by an insurer, notwithstanding the residency of the insured or the
 4-2     location of the risk.
 4-3           SECTION 3.  Subsection (a), Section 101.103, Insurance Code,
 4-4     is amended to read as follows:
 4-5           (a)  If the commissioner has reason to believe a person,
 4-6     including an insurer, has violated or is threatening to violate
 4-7     this chapter or a rule adopted under this chapter, or that a
 4-8     person, including an insurer, violating this chapter has engaged in
 4-9     or is threatening to engage in an unfair act, the commissioner may:
4-10                 (1)  issue a cease and desist order under Subchapter D;
4-11                 (2)  seek injunctive relief under Section 101.105;
4-12                 (3)  request the attorney general to recover a civil
4-13     penalty under Section 101.105;  [or]
4-14                 (4)  request the district attorney for Travis County to
4-15     proceed with criminal prosecution; or                             
4-16                 (5)  take any combination of those actions.
4-17           SECTION 4.  Section 101.106, Insurance Code, is amended to
4-18     read as follows:
4-19           Sec. 101.106.  CRIMINAL PENALTY.  (a)  A person[, including
4-20     an insurer, who violates Section 101.102] commits an offense if the
4-21     person engages in the business of insurance:          
4-22                 (1)  without holding a valid certificate of authority
4-23     or license or a specific authorization or exemption issued by the
4-24     department; or
4-25                 (2)  after the person's certificate of authority,
4-26     license, or authorization has been revoked or suspended by the
 5-1     commissioner.
 5-2           (b)  An offense under this section is a felony of the third
 5-3     degree.
 5-4           [(c)  It is a defense to prosecution under this section that
 5-5     Section 101.051 or 101.052, as applicable, by its terms does not]
 5-6     [apply to the person charged.]
 5-7           SECTION 5.  Subsection (a), Section 101.203, Insurance Code,
 5-8     is amended to read as follows:
 5-9           (a)  If the commissioner has reason to believe that insurance
5-10     has been effectuated by or for a person [in this state] with an
5-11     unauthorized insurer, the commissioner shall in writing order the
5-12     person to:
5-13                 (1)  produce for examination all insurance contracts
5-14     and other documents evidencing insurance with both authorized and
5-15     unauthorized insurers; and
5-16                 (2)  disclose to the commissioner:
5-17                       (A)  the amount of insurance;
5-18                       (B)  the name and address of each insurer;
5-19                       (C)  the gross amount of premiums paid or to be
5-20     paid; and
5-21                       (D)  the name and address of each person
5-22     assisting in the solicitation, negotiation, or effectuation of the
5-23     insurance.
5-24           SECTION 6.  Section 101.253, Insurance Code, is amended to
5-25     read as follows:
5-26           Sec. 101.253.  FILING REQUIREMENTS FOR CORPORATIONS. The
 6-1     amount of tax due [and payable] under Section 101.252 with respect
 6-2     to a corporation that files a franchise tax return shall be
 6-3     reported directly to the comptroller and is due:
 6-4                 (1)  at the time the franchise tax report is due; or
 6-5                 (2)  on another date specified by the comptroller.
 6-6           SECTION 7.  Subsection (a), Section 101.301, Insurance Code,
 6-7     is amended to read as follows:
 6-8           (a)  A person investigating or adjusting a loss or claim on a
 6-9     subject of insurance [in this state] shall immediately report to
6-10     the department an insurance policy or contract that has been
6-11     entered into by an insurer that is not authorized to transact the
6-12     insurance in this state.
6-13           SECTION 8.  (a)  This Act takes effect September 1, 2001.
6-14           (b)  The change in law made by this Act applies only to an
6-15     offense committed on or after the effective date of this Act.  For
6-16     purposes of this section, an offense is committed before the
6-17     effective date of this Act if any element of the offense occurs
6-18     before that date.
6-19           (c)  An offense committed before the effective date of this
6-20     Act is covered by the law in effect when the offense was committed,
6-21     and the former law is continued in effect for that purpose.
6-22           (d)  The change in law made by this Act applies only to an
6-23     insurance policy, contract, or evidence of coverage delivered,
6-24     issued for delivery, or renewed on or after January 1, 2002.  A
6-25     policy, contract, or evidence of coverage delivered, issued for
6-26     delivery, or renewed before January 1, 2002, is governed by the law
 7-1     as it existed immediately before the effective date of this Act,
 7-2     and that law is continued in effect for that purpose.