2003S0021-3 11/19/02
By:  Smithee                                                      H.B. No. 748
A BILL TO BE ENTITLED
AN ACT
relating to automobile and residential property insurance rate 
regulation.  
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Chapter 5, Insurance Code, is amended by adding 
Subchapter P to read as follows:
SUBCHAPTER P.  PERSONAL AUTOMOBILE AND RESIDENTIAL PROPERTY
INSURANCE RATES AND FORMS
	Art. 5.141.  RATES FOR PERSONAL AUTOMOBILE AND RESIDENTIAL 
PROPERTY INSURANCE COVERAGE
	Sec. 1.  SCOPE; PURPOSE.  (a)  This article governs the 
regulation of rates for personal automobile insurance and 
residential property insurance.
	(b)  The purposes of this article are to:                               
		(1)  promote the public welfare by regulating personal 
automobile and residential property insurance rates to prohibit 
excessive, inadequate, or unfairly discriminatory rates;
		(2)  promote the availability of personal automobile 
and residential property insurance;
		(3)  promote price competition among insurers to 
provide rates and premiums that are responsive to competitive 
market conditions; and
		(4)  prohibit price-fixing agreements and other 
anticompetitive behavior by insurers.
	(c)  Notwithstanding Subsection (a) of this section, this 
article does not apply to premium rates for motor vehicle insurance 
computed using a mile-based rating plan under Article 5.01-4 of 
this code.
	Sec. 2.  DEFINITIONS.  In this article:                                 
		(1)  "Classification" means a generic application to 
similar risks within the same line.
		(2)  "Disallowed expenses" means:                                      
			(A)  administrative expenses, not including 
acquisition expenses, not including acquisition, loss control, and 
safety engineering expenses, that exceed 110 percent of the 
industry median for those expenses;
			(B)  lobbying expenses;                                               
			(C)  advertising expenses, except the following:                      
				(i)  advertising that is directly related to 
the services or products provided by the insurer;
				(ii)  advertising designed and directed at 
loss prevention; or     
				(iii)  advertising for the promotion of 
organizations exempt from federal taxation under Section 
501(c)(3), Internal Revenue Code of 1986, and its subsequent 
amendments;
			(D)  amounts paid by an insurer as damages in a 
suit against the insurer for bad faith or as fines or penalties for 
violation of law;
			(E)  contributions to organizations engaged in 
legislative advocacy;
			(F)  fees and penalties imposed on the insurer for 
civil or criminal violations of law;
			(G)  contributions to social, religious, 
political, or fraternal organizations;
			(H)  fees and assessments paid to advisory 
organizations; and       
			(I)  any unreasonably incurred expenses, as 
determined by the commissioner after notice and hearing.
		(3)  "Filer" means an insurer that files rates, 
supplementary rating information, supporting information, rating 
manuals, or any other information required to be filed under this 
article.
		(4)  "Insurer" means an insurance company, reciprocal 
or interinsurance exchange, mutual, capital stock company, 
fraternal benefit society, local mutual aid association, county 
mutual insurance company, association, Lloyd's plan company, or 
other entity writing personal automobile insurance or residential 
property insurance in the state.  The term includes an affiliate, as 
described by Section 823.003(a) of this code.  The term does not 
include the Texas Windstorm Insurance Association created and 
operated under Article 21.49 of this code.
		(5)  "Line" means a type of insurance subject to this 
article.       
		(6)  "Personal automobile insurance" means an 
automobile insurance policy providing insurance coverages for the 
ownership, maintenance, or use of private passenger, utility, and 
miscellaneous type motor vehicles and trailers including mobile 
homes and recreational trailers, and not primarily used for the 
delivery of goods, materials, or services, unless such use is in 
farm or ranch operations, and provided that such vehicles are owned 
or leased by an individual or individuals.
		(7)  "Rate" or "rating plan" means the charge for a 
particular line for each unit of exposure.
		(8)  "Residential property insurance" means insurance 
against loss to real or tangible personal property at a fixed 
location provided in a homeowners policy, a tenant policy, a 
condominium owners policy, or a residential fire and allied lines 
policy.
		(9)  "Supplementary rating information" means any 
manual, rating schedule, plan of rules, rating rules, 
classification systems, territory codes and descriptions, rating 
plans, and other similar information used by the insurer to 
determine the applicable premium for an insured.  The term includes 
factors and relativities, such as increased limits factors, 
classification relativities, deductible relativities, premium 
discount, and other similar factors and rating plans such as 
experience, schedule, and retrospective rating.
		(10)  "Supporting information" means:                                  
			(A)  the experience and judgment of the filer and 
the experience or information of other insurers relied on by the 
filer;
			(B)  the interpretation of any other information 
relied on by the filer;
			(C)  descriptions of methods used in making the 
rates; and          
			(D)  any other information required by the 
department to be filed.  
	Sec. 3.  RATE STANDARDS.  (a)  Rates under this article 
shall be set in accordance with the provisions of this section.
	(b)  In setting rates, an insurer shall consider:                       
		(1)  past and prospective loss experience inside the 
state, and outside the state if the state data are not credible;
		(2)  the peculiar hazards and experiences of individual 
risks, past and prospective, inside and outside the state;
		(3)  the insurer's own historical premium, exposure, 
loss, and expense experience to the extent that it is actuarially 
credible;
		(4)  catastrophe hazards within the state;                             
		(5)  operating expenses excluding disallowed expenses;                 
		(6)  investment income;                                                
		(7)  a reasonable margin for profit; and                               
		(8)  any other relevant factors inside and outside the 
state.        
	(c)  The insurer may group risks by classifications for the 
establishment of rates and minimum premiums and may modify 
classification rates to produce rates for individual risks in 
accordance with rating plans that establish standards for measuring 
variations in those risks on the basis of any factor listed in 
Subsection (b) of this section.
	(d)  Rates may not be excessive, inadequate, unreasonable, 
or unfairly discriminatory for the risks to which they apply.
	(e)  In setting rates applicable solely to policyholders in 
the state, an insurer shall use its own historical premium and loss 
data, as well as its own data for expenses and for profit and 
contingency factors.  The commissioner may require an audit of the 
insurer's historical premium and loss data.  The insurer may 
separately supplement its own historical premium and loss data with 
historical premium and loss data as necessary. The commissioner may 
by rule establish requirements for reporting historical premium and 
loss data under this subsection.
	Sec. 4.  RATE FILINGS.  (a)  An insurer must file with the 
commissioner all rates, supplementary rating information, 
reasonable and pertinent supporting information for risks written 
in the state, and all applicable rating manuals.  The insurer shall 
include in the filing any statistics or other information to 
support the rates to be used by the insurer as required by the 
commissioner by rule, including information necessary to evidence 
that the calculation of the rate does not include disallowed 
expenses.  The insurer shall include in the filing policy fees, 
service fees, and other fees that are charged under Article 21.35A 
or Article 21.35B of this code.
	(b)  Unless disapproved by the commissioner as provided by 
Section 9 of this article, the new rate takes effect on the date 
specified by the insurer in the filing, but not earlier than the 
60th day after the date of filing of the rate with the commissioner, 
except as provided by Subsection (c) of this section.  For the 
purposes of this section, the date the rate is received by the 
commissioner is the date of filing of the rate with the 
commissioner.  From the date of filing of the rate with the 
commissioner to the effective date of the new rate, the insurer's 
previously filed rate that is in effect as provided in this article 
shall remain in effect.
	(c)  The commissioner may approve a filing on written or 
electronic notification to the filer at any time before the 60th day 
after the date of filing of the rate with the commissioner or before 
the effective date specified by the insurer in the filing.  The new 
rate may take effect on the receipt of the notice of the 
commissioner's approval.
	Sec. 5.  SUPERVISION REQUIREMENT.  If the commissioner 
determines after a hearing that an insurer's rates require 
supervision because of the insurer's financial condition or the 
insurer's rating practices, the commissioner may require the 
insurer to file with the commissioner all rates, supplementary rate 
information, and any supporting information prescribed by the 
commissioner.
	Sec. 6.  PUBLIC INFORMATION.  Each filing and any supporting 
information filed under this article is open to public inspection 
as of the date of the filing.
	Sec. 7.  RIGHTS OF INSUREDS AND PUBLIC INSURANCE COUNSEL.  
(a)  With respect to any filing in effect, an aggrieved insured or 
the public insurance counsel may make a written application to the 
commissioner for a hearing on the filing.  The application must 
specify the grounds on which the applicant bases the grievance.  If 
the commissioner finds that the application is made in good faith, 
that the applicant would be so aggrieved if the grounds in the 
application are established, and that those grounds otherwise 
justify holding the hearing, the commissioner shall hold a hearing 
not later than the 30th day after the date of receipt of the 
application.  The commissioner shall give at least 10 days' written 
notice of the hearing to the applicant and to the insurer that made 
the filing in question.
	(b)  If, after the hearing, the commissioner finds that the 
filing does not meet the requirements of this article, the 
commissioner shall issue an order specifying how the filing fails 
to meet the requirements of this article and stating the date on 
which, within a reasonable period after the date of the order, the 
filing is no longer in effect.  The commissioner shall send copies 
of the order to the applicant and to each affected insurer.
	Sec. 8.  QUARTERLY LEGISLATIVE REPORT.  Each insurer subject 
to this article shall file with the commissioner on a quarterly 
basis information relating to changes in losses, premiums, and 
market share.  The first filing under this article must include the 
information beginning with January  1, 2003.  The commissioner 
shall report on a quarterly basis to the governor, lieutenant 
governor, and speaker of the house of representatives on the 
information provided by the insurers' reports, information 
obtained from market conduct examinations and analyses, and 
consumer complaints received by the department.
	Sec. 9.  DISAPPROVAL.  (a)  The commissioner shall 
disapprove a rate if the commissioner determines that the rate 
filing made under this article does not meet the requirements of 
this article.  The commissioner may give due consideration to the 
extent and nature of market competition in the personal automobile 
insurance and residential property insurance markets and to the 
availability or lack of availability of personal automobile 
insurance and residential property insurance in determining 
whether to disapprove any rates filed under this article.
	(b)  If the commissioner disapproves a filing before the 60th 
day after the date of the filing of the rate with the commissioner, 
the commissioner shall issue an order specifying in what respects 
the filing fails to meet the requirements of this article.  The 
filer is entitled to a hearing on written request made to the 
commissioner not later than the 30th day after the effective date of 
the disapproval order.
	(c)  If the commissioner disapproves a rate that is in 
effect, the commissioner may issue a disapproval order only after a 
hearing held after at least 20 days' written notice to the insurer 
that made the filing.  The disapproval order must be issued not 
later than the 15th day after the close of the hearing and must 
specify how the rate fails to meet the requirements of this article.  
The disapproval order must state the date on which the further use 
of that rate is prohibited.  If, after notice and opportunity for 
hearing, the commissioner determines that a rate that is in effect 
should be disapproved, the commissioner, in the event of any 
overcharges to policyholders, shall require the insurer to refund 
to policyholders the difference in the amount of premiums paid 
under the disapproved rates and the amount of premiums payable 
under rates that meet the requirements of this article, except that 
refunds to policyholders the commissioner determines are de minimis 
may not be required.
	(d)  If an insurer has no legally effective rate because of 
an order disapproving rates, the commissioner shall specify an 
interim rate at the time the order is issued.  The interim rate may 
be modified by the commissioner on the commissioner's own motion or 
on motion by the insurer.  The interim rate or any modification of 
that rate shall take effect immediately on the commissioner's 
decision setting the interim rate.  When the rates are finally 
determined, the commissioner shall order any overcharge in the 
interim rates to be refunded to policyholders, except that refunds 
to policyholders the commissioner determines are de minimis may not 
be required.
	Sec. 10.  RATE HEARINGS.  Subject to Chapter 40 of this code, 
Chapter 2001, Government Code, applies to all hearings on rates 
conducted under this article.  To the extent of any conflict between 
this article and Chapter 2001, Government Code, the provisions of 
this article prevail.
	Sec. 11.  APPEAL.  Any insurer or other party at interest as 
described by Section 7 of this article aggrieved by an order of the 
commissioner issued under this article may, not later than the 30th 
day after the date on which the commissioner issued the order, 
appeal the order in accordance with Subchapter D, Chapter 36 of this 
code.
	SECTION 2.  Subsection (f), Article 5.01, Insurance Code, is 
amended to read as follows:
	(f)  Notwithstanding Subsections (a) through (d) of this 
article, on and after June 1, 2003 [March 1, 1992], rates for motor 
vehicle insurance in this state are determined [as provided by the 
flexible rating program adopted] under Article 5.141 [Subchapter M] 
of this code [chapter].
	SECTION 3.  Article 5.13, Insurance Code, is amended to read 
as follows:     
	Art. 5.13.  SCOPE OF SUBCHAPTER [SUB-CHAPTER].  (a)  This 
subchapter [Sub-chapter] applies to every insurance company, 
corporation, interinsurance exchange, mutual, reciprocal, 
association, Lloyds, or other organization or insurer writing any 
of the characters of insurance business herein set forth, 
hereinafter called "Insurer"; provided that nothing in this entire 
subchapter [Sub-chapter] shall [ever] be construed to apply to any 
county or farm mutual insurance company or association, as 
regulated under Chapters 911 [16] and 912 [17] of this code, except 
that Section 8, Article 5.13-2 of this code, shall apply to a county 
mutual insurance company with respect to commercial automobile 
insurance [Code].
	(b)  This subchapter [Sub-chapter] applies to the writing of 
casualty insurance and the writing of fidelity, surety, and 
guaranty bonds, on risks or operations in this State except as 
herein stated.
	(c)  This subchapter [Sub-chapter] does not apply to the 
writing of motor vehicle, life, health, accident, professional 
liability, reinsurance, aircraft, fraternal benefit, fire, 
lightning, tornado, windstorm, hail, smoke or smudge, cyclone, 
earthquake, volcanic eruption, rain, frost and freeze, weather or 
climatic conditions, excess or deficiency of moisture, flood, the 
rising of the waters of the ocean or its tributaries, bombardment, 
invasion, insurrection, riot, civil war or commotion, military or 
usurped power, any order of a civil authority made to prevent the 
spread of a conflagration, epidemic or catastrophe, vandalism or 
malicious mischief, strike or lockout, water or other fluid or 
substance, resulting from the breakage or leakage of sprinklers, 
pumps, or other apparatus erected for extinguishing fires, water 
pipes or other conduits or containers, or resulting from casual 
water entering through leaks or opening in buildings or by seepage 
through building walls, including insurance against accidental 
injury of such sprinklers, pumps, fire apparatus, conduits or 
container, workmen's compensation, inland marine, ocean marine, 
marine, or title insurance; nor does this subchapter [Sub-chapter] 
apply to the writing of explosion insurance, except insurance 
against loss from injury to person or property which results 
accidentally from steam boilers, heaters or pressure vessels, 
electrical devices, engines and all machinery and appliances used 
in connection therewith or operation thereby.
	(d)  This subchapter [Sub-chapter] shall not be construed as 
limiting in any manner the types or classes of insurance which may 
be written by the several types of insurers under appropriate 
statutes or their charters or permits.
	(e)  The regulatory power herein conferred is vested in the 
commissioner [Board of Insurance Commissioners of the State of 
Texas. Within the Board, the Casualty Insurance Commissioner shall 
have primary supervision of regulation herein provided, subject 
however to the final authority of the entire Board].
	SECTION 4.  The heading to Article 5.13-2, Insurance Code, 
is amended to read as follows:
	Art. 5.13-2.  RATES FOR GENERAL LIABILITY, COMMERCIAL 
AUTOMOBILE, AND COMMERCIAL PROPERTY INSURANCE COVERAGE
	SECTION 5.  Sections 1 and 2, Article 5.13-2, Insurance 
Code, are amended to read as follows:
	Sec. 1.  PURPOSE.  This article governs the regulation of 
general liability, commercial automobile, commercial property, 
which shall include farm and ranch owners and farm and ranch 
policies, all commercial casualty, and medical professional 
liability insurance rates and forms.  It does not govern 
[automobile,] fidelity, surety, or guaranty bonds. The purposes of 
this article are to:
		(1)  promote the public welfare by regulating insurance 
rates to prohibit excessive, inadequate, or unfairly 
discriminatory rates;
		(2)  promote availability of insurance;                                       
		(3)  promote price competition among insurers to 
provide rates and premiums that are responsive to competitive 
market conditions;
		(4)  prohibit price-fixing agreements and other 
anticompetitive behavior by insurers;
		(5)  regulate the insurance forms used for lines of 
insurance subject to this article to ensure that they are not 
unjust, unfair, inequitable, misleading, or deceptive; and
		(6)  provide regulatory procedures for the maintenance 
of appropriate information reporting systems.
	Sec. 2.  SCOPE.  This article applies to all lines of general 
liability, commercial automobile, commercial property, all 
commercial casualty, and medical professional liability insurance 
written under policies or contracts of insurance issued by a 
licensed insurer, other than a fidelity, surety, or guaranty bond 
or an automobile insurance policy.
	SECTION 6.  Subdivision (2), Section 3, Article 5.13-2, 
Insurance Code, is amended to read as follows:
		(2)  "Insurer" means an insurer to which Article 5.13 
of this code applies, but does not include the Texas Windstorm 
Insurance Association.  However, the provisions of Sections 4, 5, 
6, and 7 of this article shall not apply to Lloyd's or reciprocals 
with respect to commercial property insurance.  The provisions of 
Section 8 of this article shall apply to county mutual insurance 
companies with respect to commercial automobile insurance.
	SECTION 7.  Section 912.002, Insurance Code, is amended to 
read as follows:  
	Sec. 912.002.  LIMITED EXEMPTION FROM INSURANCE LAWS; 
APPLICABILITY OF CERTAIN LAWS.  (a)  A county mutual insurance 
company is exempt from the operation of all insurance laws of this 
state[, including the flexible rating program under Article 5.101,] 
except laws that are made applicable by their specific terms or 
except as specifically provided by this chapter.
	(b)  A county mutual insurance company is subject to:                          
		(1)  Sections 38.001 and 822.204; [and]                      
		(2)  Articles 1.15, 1.15A, 1.16, 2.10, 4.10, 5.12, 
5.37, 5.38, 5.39, 5.40, 5.49, 21.21, and 21.49; and
		(3)  with respect to commercial automobile insurance, 
Section 8 of Article 5.13-2.
	SECTION 8.  The following provisions of the Insurance Code 
are repealed:     
		(1)  Section (a-1), Article 5.96;                                             
		(2)  Article 5.101; and                                                       
		(3)  Section 40.061.                                                          
	SECTION 9.  This Act takes effect June 1, 2003, if it 
receives a vote of two-thirds of all the members elected to each 
house, as provided by Section 39, Article III, Texas Constitution.  
If this Act does not receive the vote necessary for effect on that 
date, this Act takes effect September 1, 2003.