C.S.H.B. 392 78(R)    BILL ANALYSIS


C.S.H.B. 392
By: Seaman
Insurance
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Under current state law, there are no licensing requirements for public
adjusters who adjust losses on behalf of an insured claimant.  According
to the Texas Department of Insurance, the absence of licensing
requirements for public adjusters has raised concern among consumers,
insurers, and other interested parties and has resulted in improperly
adjusted water damage claims.  Additionally, fraudulent claims activities
associated with unlicensed public adjusters may ultimately contribute to
increases in the cost of insurance coverage for all insureds.  C.S.H.B.
392 sets forth requirements for licensing public adjusters.  


RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly
granted to the Commissioner of Insurance in SECTION 2 (Art. 21.07-5,
Insurance Code) and SECTION 3 of this bill. 


ANALYSIS

C.S.H.B. 392 amends the Insurance Code to prohibit an individual from
representing oneself as a public insurance adjuster without holding a
licensed issued by the Commissioner of Insurance (Commissioner).  The bill
provides for an exception and exemptions to this requirement.  The bill
excludes licensed public insurance adjusters from the definition of
adjusters under provisions relating to licensing insurance adjusters.  A
license includes the authority to adjust claims for allied coverages,
burglary, flood, all real and personal property claims, and claims for
loss of income.  The bill sets forth provisions for voiding contracts that
involve unlicensed public adjusters and for the payment of services
rendered under such a contract.  The bill allows for the gathering of
information and evidence by the Texas Department of Insurance (department)
and provides for the payment of related expenses.  The bill provides that
a license application must be on the prescribed form, be notarized, and
include a nonrefundable fee.  The bill describes the information that a
license must include and requires the Commissioner to prescribe the form.
The bill sets forth the qualifications required of an applicant for
issuance of a license.  

The bill provides that each applicant must pass a written examination of
reasonable scope prescribed by the Commissioner to be issued a license.
The bill requires the Commissioner to adopt the examination not later than
January 1, 2004.  The bill establishes an advisory committee to assist in
the development of the examination and requires the Commissioner to
appoint the members not later than the 60th day after the effective date
of the Act.  The bill requires the Commissioner to transmit within 30 days
of the examination the results and the action taken on the application.
The bill sets forth procedures for examinations and reexaminations, and
provides an exception to the examination requirement for license renewal.
The bill provides that each license holder must complete at least 15 hours
of continuing education courses that meet the requirements prescribed by
the Commissioner. 

Each applicant for a license must file a surety bond, as prescribed,
another security, or an approved alternative.  The bill sets forth the
conditions for the withdrawal of deposits made under the security
requirements and authorizes the exchange of deposited securities.  The
bill provides for the payment of all or part of the deposit to a person
upon the rendering of a final judgment that is unsatisfied. Failure to
comply with these security requirements constitutes grounds for immediate
forfeiture or  suspension of a license.  The bill sets forth the
conditions for suspending and reinstating a license in the case of
noncompliance with surety bond requirements, and for denying an
application for reinstatement.  The bill specifies the procedures for
terminating a bond. 

The bill authorizes the Commissioner to issue a nonresident license to an
eligible applicant who is not a permanent resident of the state and who
meets application requirements.  The bill sets forth provisions relating
to examination requirements for a nonresident applicant and to the
authorization of a nonresidents licensing status in the individuals state
of residence or the nonresidents status as a licensed adjuster, agent,
broker, or other insurance representative.  Nonresident license holders
are subject to the requirements of the Act and all other state rules and
laws.  The bill sets forth the conditions that a nonresident must meet
after licensure to continue to do business in the state.  A nonresident
applicant must file a surety bond.  The bill provides for a temporary
certificate for educational and training purposes for a public insurance
adjuster trainee who operates only under a license holder and meets
application and registration provisions.  The bill sets forth the
expiration date of a temporary certificate and prohibits an individual
from holding more than two consecutive certificates.  The bill makes
certain requirements of trainee sponsors.  Each holder of a temporary
certificate must comply with the security requirements set forth. 

The bill provides for the expiration of licenses and sets forth procedures
and timeframes for renewing licenses expired or not expired or licenses
held by nonresidents.  The bill specifies the conditions under which
reexamination is required in order to obtain a new license.  The bill
requires the department to send written notice of license expiration to a
license holder.  The bill specifies the conditions under which the
Commissioner is authorized to deny, suspend, or revoke a license, to
impose an administrative penalty, or to institute a disciplinary
proceeding.  The bill entitles the person affected by such a decision to
certain notice and hearing, and appeals processes.  The bill sets forth
procedures and times frames relating to suspended licenses and provides
for the reinstatement of licenses under certain conditions.  The bill
provides for the collection of fees, set by the Commissioner by rule, for
applications, examinations, certificates, and renewals.  The bill requires
the crediting of fees to the department operating account for use for
specified purposes. 

The bill authorizes a license holder to receive a contingent fee for
adjusting a claim.  The bill prohibits the collection of a contingent fee
in certain cases and provides for the compensation of an public adjuster
for certain services.  The bill provides that all funds received as claims
proceeds are received and held by the license holder in a fiduciary
capacity.  A license holder who diverts or appropriates fiduciary funds
for personal use is guilty of and punishable for theft.  The bill sets
forth provisions relating to the disclosure of all financial records of
any funds held as fiduciary. 

The bill requires each resident license holder to maintain a publicly
accessible place of business where records are maintained and requires
each nonresident to maintain an agent in the state.  The bill provides for
the posting of a license on which certain addresses must appear.  The bill
requires notifications of address changes.  The bill requires a license
holder to keep a complete record of transactions with specified
information for at least 5 years that are open to examination by the
Commissioner.  The bill sets forth provisions relating to notices made to
the last address of a license holder. 

The bill prohibits certain conduct on the part of a license holder or an
agent or employee of a license holder.  The bill requires the Commissioner
to adopt, by rule, a code of ethics not later than September 1, 2004 for
public adjusters and other guidelines for professional conduct and
practices. The bill sets forth provisions regarding soliciting or
advertising business and authorizes the Commissioner to adopt rules to
define advertisement.  

The Act does not limit or diminish the authority of a license holder to
investigate or adjust a loss to less than the authority exercised by
licensed adjusters.  The bill exempts a license holder from certain
insurance laws.  The bill requires a license holder to prepare each claim
for an insured represented by the license holder in accordance with the
terms and conditions of the contract of insurance under which recovery is
sought.  A license issued under the Act is not assignable.   The bill does
not entitle any person who is not an active member of the State Bar of
Texas to practice law.    

The bill authorizes the Commissioner to issue cease and desist orders on
unlicensed public adjusters.  The bill authorizes the Commissioner to
impose an automatic fine for a violation of this Act.  An offense under
the Act other than a violation relating to the fiduciary capacity of a
license holder is a misdemeanor punishable by a fine, confinement, or
both.  The bill provides that in addition to the criminal penalties
prescribed by the Act, a person who violates the Act is subject to
administrative penalties. The bill authorizes the Commissioner to adopt
rules necessary to implement the Act and requires that the rules be
adopted not later than January 1, 2004. 




COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.H.B. 392 modifies the original by adding to the qualifications
required for issuance of a license and by requiring the Commissioner,
rather than the department, to issue a license and to prescribe the
license application.  The substitute modifies the definition of public
adjuster.  The substitute removes exceptions for trainees to license
requirements and creates a trainee registration program. The substitute
removes provisions relating to limited and emergency licenses.  The
substitute removes waivers for license requirements for nonresidents and
authorizes the Commissioner to issue nonresident licenses.  The bill adds
provisions relating to the place of business of a nonresident and to
posting licenses.  The substitute adds the conditions under which a
license may be denied, suspended, or revoked. The substitute adds
provisions regarding void contracts and the payment of services rendered
under void contracts.  The substitute authorizes the department to gather
information and evidence and provides for fees to cover related expenses.
  
The substitute removes certain exemptions from examination requirements.
The substitute modifies the composition  and duties of the advisory
committee.  The substitute adds to the information that an examination
must include to be of sufficient scope.  The substitute removes
requirements relating to providing exam instructions to applicants.  The
substitute provides that the Commissioner must approve the persons who
schedule and administer examinations.  The bill adds requirements for
transmitting exam results.  The substitute requires the Commissioner
rather than the department to collect and set the amount of fees, removes
the $50 limit on fees, and specifies uses for the fees.  The substitute
removes provisions relating to fidelity bonds and adds security and surety
bond requirements.    

The substitute adds provisions relating to contingent fees, prohibited
conduct, records maintenance, fiduciary capacity, advertisements, to the
last addresses of license holders, the assignability of a license, conduct
to comply with a contract, the authority of public adjusters, exemptions
for public adjusters from certain insurance laws, license authorization
and the unauthorized practice of law. 

The substitute requires the Commissioner to prescribe the requirements for
continuing education, instead of specifying the information that the
program must include, and specifies the number of continuing education
hours required annually.  The substitute removes provisions relating to
exemptions or waivers for continuing education.  The substitute provides
for a code of ethics.  The substitute adds provisions relating to
automatic fines and criminal penalties.   

 
EFFECTIVE DATE
 
On passage or, if the Act does not receive the necessary vote, the Act
takes effect September 1, 2003.