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2003S0015-3 11/18/02
By: Fraser, Jackson S.B. No. 128
A BILL TO BE ENTITLED
AN ACT
relating to the licensing of public insurance adjusters; providing
administrative and criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subsection (b), Section 1, Chapter 407, Acts of
the 63rd Legislature, Regular Session, 1973 (Article 21.07-4,
Vernon's Texas Insurance Code), is amended to read as follows:
(b) "Adjuster" shall not include:
(1) an attorney at law who adjusts insurance losses
from time to time and incidental to the practice of law, and who
does not advertise or represent that he is an adjuster;
(2) a salaried employee of an insurer who is not
regularly engaged in the adjustment, investigation, or supervision
of insurance claims;
(3) persons employed only for the purpose of
furnishing technical assistance to a licensed adjuster, including,
but not limited to, photographers, estimators, private detectives,
engineers, handwriting experts, and attorneys at law;
(4) a licensed agent or general agent of an authorized
insurer who processes undisputed and/or uncontested losses for such
insurer under policies issued by said agent or general agent;
(5) a person who performs clerical duties with no
negotiations with the parties on disputed and/or contested claims;
(6) any person who handles claims arising under life,
accident and health insurance policies;
(7) a person who is employed principally as a
right-of-way agent or right-of-way and claims agent and whose
primary responsibility is the acquisition of easements, leases,
permits, or other real property rights and whose claims handling
arises out of operations under those easements, leases, permits, or
other contracts or contractual obligations; [or]
(8) an individual who is employed to investigate
suspected fraudulent insurance claims but who does not adjust
losses or determine claims payments; or
(9) a public insurance adjuster who is licensed under
Article 21.07-5, Insurance Code.
SECTION 2. Subchapter A, Chapter 21, Insurance Code, is
amended by adding Article 21.07-5 to read as follows:
Art. 21.07-5. PUBLIC INSURANCE ADJUSTERS
Sec. 1. DEFINITIONS. In this article:
(1) "Licensee" means an individual licensed under this
article as a public insurance adjuster.
(2) "Person" includes an individual, firm, company,
association, organization, partnership, limited liability company,
or corporation.
(3)(A) "Public insurance adjuster" means:
(i) an individual who, for compensation:
(a) acts on behalf of, or aids in any
manner, an insured in negotiating for or effecting the settlement
of a claim or claims for loss or damage under any policy of
insurance covering real or personal property; or
(b) on behalf of any other public
insurance adjuster, investigates, settles, or adjusts or advises or
assists an insured with a claim or claims for loss or damage under
any policy of insurance covering real or personal property; or
(ii) an individual who advertises, solicits
business, or holds himself or herself out to the public as an
adjuster of claims for loss or damage under any policy of insurance
covering real or personal property.
(B) "Public insurance adjuster" does not
include:
(i) an officer or employee of the federal or
state government or of a political subdivision of the state
government while the officer or employee is engaged in the
performance of official duties;
(ii) a charitable organization duly
incorporated under the laws of this state that is organized and
maintained for the public good and not for private profit;
(iii) an attorney engaged in the
performance of the attorney's professional duties;
(iv) insurers admitted to do business in
the state, and agents licensed by this state, engaged in the
performance of their duties in connection with insurance
transactions;
(v) the legal owner of personal property
that has been sold under a conditional sales agreement or a
mortgagee under the terms of a chattel mortgage;
(vi) any salaried office employee who
performs exclusively clerical or administrative duties attendant
to the disposition of the business regulated by this article;
(vii) photographers, estimators, appraisers,
engineers, and arbitrators who are employed by a public insurance
adjuster exclusively for the purpose of furnishing technical
assistance to the licensed public insurance adjuster; or
(viii) a private investigator licensed
under Chapter 1702, Occupations Code, while acting within the scope
of that license.
Sec. 2. NOT LAW LICENSE. Nothing in this article shall be
construed as entitling any person who is not an active member of the
State Bar of Texas to practice law in the state.
Sec. 3. LICENSE REQUIRED; EXEMPTION. (a) A person may not
act as a public insurance adjuster in this state, except as provided
by Section 17 of this article, or hold himself or herself out to be a
public insurance adjuster in this state, unless the person holds a
license issued by the commissioner under Section 5 or Section 16 of
this article.
(b) A license is not required for:
(1) an attorney licensed by this state; or
(2) a licensed local recording agent or a solicitor
for a local recording agent while acting for an insured concerning a
loss under a policy issued by that agent.
(c) Any contract for services regulated by this article that
is entered into by an insured with a person who is in violation of
Subsection (a) of this section may be voided at the option of the
insured, and if a contract is so voided, the insured shall not be
liable for the payment of any past services rendered, or future
services to be rendered, by that person under that contract or
otherwise.
(d) If the commissioner believes that a person is engaging
in acts or practices in violation of Subsection (a) of this section,
the commissioner may, without notice or hearing, issue and cause to
be served on the person an order requiring the person to immediately
cease and desist from engaging further in those acts or practices.
Sec. 4. APPLICATION FOR LICENSE. (a) An application for a
license under this article must be on a form prescribed by the
commissioner.
(b) The completed application must be notarized and be
accompanied by a license application fee, as provided by Section 12
of this article, for each application submitted. The application
fee is nonrefundable.
Sec. 5. QUALIFICATIONS FOR LICENSE; ISSUANCE. The
commissioner shall issue a public insurance adjuster license to an
applicant on determining that the application meets the
requirements of this article, that the application license fee has
been paid, and that the applicant is an individual who:
(1) is at least 18 years of age;
(2) is a citizen of the United States;
(3) is a resident of the state;
(4) is trustworthy and of a moral character that
reasonably ensures that the applicant will conduct the business of
a public insurance adjuster fairly and in good faith without
detriment to the public;
(5) has never been convicted of a felony or, if
convicted of a felony, has received a full pardon from that
conviction and is otherwise relieved from any disabilities
connected with that conviction;
(6) has sufficient experience or training relating to
the assessment of:
(A) real and personal property values; and
(B) physical loss of or damage to real or
personal property that may be the subject of insurance and claims
under insurance;
(7) has a general understanding of the earnings
capabilities of insurance;
(8) is sufficiently informed as to the terms and
effects of the types of insurance contracts that provide coverage
on real and personal property;
(9) possesses knowledge and experience adequate to
enable the applicant to engage in the business of a public insurance
adjuster fairly and without injury to the public or any member of
the public with whom the applicant may have business as a public
insurance adjuster;
(10) has successfully passed the license examination
prescribed under Section 9 of this article or is exempt from the
examination requirement under this article;
(11) has complied with the security requirements
imposed under Section 6 of this article; and
(12) has complied with any other requirements under
applicable state law, including providing a complete set of
fingerprints on request as provided by Article 1.10C of this code.
Sec. 6. SECURITY REQUIREMENTS. (a) Each applicant for a
public insurance adjuster license must file a surety bond or other
security with the commissioner in accordance with this section.
(b) A surety bond filed to meet the purposes of this section
must:
(1) be executed and issued by a surety insurer;
(2) be in the amount of $50,000;
(3) be payable to the commissioner for the use and
benefit of any person who recovers a judgment against the
individual licensee;
(4) specifically authorize recovery by the
commissioner of the damages sustained if the licensee is determined
by the commissioner to be guilty of fraud or unfair practices in
connection with the licensee's business as a public insurance
adjuster; and
(5) be conditioned on the faithful performance of the
licensee in connection with the licensee's business as a public
insurance adjuster.
(c) Instead of filing a bond under Subsection (b) of this
section, an applicant may:
(1) file with the commissioner a professional
liability policy or similar policy or contract of professional
liability coverage acceptable to the commissioner that insures the
individual licensee against errors and omissions in connection with
the licensee's business as a public insurance adjuster in at least
the amount of $50,000, with a deductible not to exceed $1,500; or
(2) deposit with the comptroller cash in the amount of
$50,000 or securities of the class authorized by Articles 2.08 and
2.10 of this code that have a fair market value of at least $50,000,
to be held exclusively for the protection of a person or persons who
are entitled to recover a final judgment against the licensee in
connection with the licensee's business as a public insurance
adjuster.
(d) A professional liability policy provided by a public
insurance adjuster's employer constitutes satisfactory compliance
with the requirements of this section if the employer's
professional liability policy has a minimum liability limit of
$250,000 for all employees.
(e) If a bond is used to satisfy the requirements of this
section, the aggregate liability of the surety for all damages may
not exceed the amount of the bond.
(f) A deposit with the comptroller made under Subsection
(c)(2) of this section may be withdrawn by the licensee only on
filing with the commissioner a written statement that the licensee
has withdrawn from the business of public insurance adjusting and:
(1) does not have any outstanding unsecured
liabilities; or
(2) has provided for the protection of a person or
persons who are entitled to recover a final error judgment against
the licensee in connection with the licensee's business as a public
insurance adjuster by furnishing an errors and omissions policy or
a bond as otherwise provided by this section.
(g) Securities deposited under this section may be
exchanged periodically for other qualified securities.
(h) A binding commitment to issue an insurance policy or
bond or the tender of the securities in connection with a license
application is sufficient evidence of the applicant's ability to
comply with this section on issuance of a license.
(i) All or part of a deposit may be paid to a person on a
showing that a final judgment has been rendered against the
licensee in connection with the licensee's business as a public
insurance adjuster and the final judgment remains unsatisfied. The
final judgment may be paid from the deposit only to the extent of
deficiency in satisfaction of the final judgment.
(j) A licensee must comply with the security requirements of
this section for the license to remain effective. Failure to comply
with the security requirements will result in immediate forfeiture
or suspension of the license.
Sec. 7. SURETY BOND REQUIREMENT. (a) If a licensee uses a
surety bond to comply with Section 6 of this article, the licensee
shall at all times maintain the surety bond on file with the
commissioner and in full force and effect.
(b) The license of a public insurance adjuster who fails to
maintain a surety bond in compliance with this section shall be
immediately suspended and shall not be reinstated until an
application for reinstatement, in the form prescribed by the
commissioner, is filed with a proper bond.
(c) Notwithstanding the applicant's compliance with this
section, the commissioner may deny the application:
(1) for any reason that would justify a refusal to
issue, or a suspension or revocation of, a license; or
(2) for the performance by the applicant of any
practice for which a license under this article is required while
the applicant is under suspension for failure to keep the surety
bond in force.
(d) Bonds executed and filed with the commissioner in
compliance with this article shall remain in force and effect until
the surety has terminated future liability. The surety company
shall notify the commissioner not less than 30 days before the date
of termination.
Sec. 8. LICENSE AUTHORIZATION. A license issued under
Section 5 or Section 16 of this article shall include, but not be
limited to, adjusting claims for fire and allied coverages,
burglary, flood, and all other property claims, both real and
personal, and loss of income.
Sec. 9. EXAMINATION FOR LICENSE; ADVISORY COMMITTEE.
(a) Each applicant for a license as a public insurance adjuster
must, before the issuance of the license, personally take and pass
an examination to the satisfaction of the commissioner.
(b) The examination required by this section must be
prescribed by the commissioner and must be of sufficient scope to
reasonably test the applicant's:
(1) knowledge of basic insurance theory, essential
elements of contracts, and claims ethics;
(2) technical competence in the handling of the types
of claims for which the applicant is being tested; and
(3) knowledge of:
(A) Article 21.21 of this code;
(B) the Unauthorized Insurers False Advertising
Process Act (Article 21.21-1, Vernon's Texas Insurance Code);
(C) Article 21.21-2 of this code;
(D) the Deceptive Trade Practices-Consumer
Protection Act (Subchapter E, Chapter 17, Business & Commerce
Code);
(E) analogous laws as specified by the
commissioner; and
(F) the duties and responsibilities of public
insurance adjusters under the law.
(c) The commissioner shall appoint a public insurance
adjusters examination advisory committee composed of at least five
members to assist in developing the examination required by this
section. At least three members must be eligible for licensure as
public insurance adjusters. At least one member must be a person
from the insurance industry who is not a public insurance adjuster.
A member of the advisory committee is not entitled to compensation
for service on the committee. A member is entitled to reimbursement
for reasonable and necessary expenses incurred in performing
services for the committee, subject to any limitation in the
General Appropriations Act.
(d) The commissioner shall, within a reasonable period not
to exceed 30 days after the date of the examination, transmit the
results of the examination and the action taken on the application
to the applicant.
(e) An examination is not required for the renewal of a
license issued under Section 5 or Section 16 of this article.
Sec. 10. EXAMINATION; FORM; TIME. (a) The answers of the
applicant to an examination required under this article shall be
made by the applicant in writing. A written examination may be
supplemented by oral examination.
(b) The examination shall be given at such times and places
within the state as the commissioner deems necessary to reasonably
serve the convenience of both the commissioner and applicants.
(c) The commissioner may require a waiting period of
reasonable duration before an applicant who fails the examination,
but who is otherwise qualified, may be reexamined.
(d) The scheduling and administration of examinations
required under Section 9 of this article shall be effected by
persons approved by the commissioner.
Sec. 11. FORM OF LICENSE. The commissioner shall prescribe
the form of the licenses issued under Section 5 or Section 16 of
this article, which must contain:
(1) the name of the public insurance adjuster and the
address of the public insurance adjuster's place of business;
(2) the date of issuance and the date of expiration of
the license; and
(3) the name of the firm, if any, with whom the public
insurance adjuster is employed at the time the license is issued.
Sec. 12. FEE FOR LICENSE, RENEWAL, AND EXAMINATION.
(a) The commissioner shall collect in advance the following
nonrefundable fees:
(1) for a public insurance adjuster license, an
application fee in an amount to be determined by rule by the
commissioner;
(2) for a nonresident public insurance adjuster
license, an application fee in an amount to be determined by rule by
the commissioner;
(3) for each public insurance adjuster examination, a
fee in an amount to be determined by rule by the commissioner; and
(4) for a public insurance adjuster trainee
certificate under Section 17 of this article, a registration fee in
an amount to be determined by rule by the commissioner.
(b) The amount of the fee for the renewal of a license or a
certificate issued under this article shall be determined by rule
by the commissioner.
Sec. 13. USE OF FEES COLLECTED. (a) When collected, the
fees authorized by this article shall be deposited in the State
Treasury to the credit of the Texas Department of Insurance
operating fund.
(b) The department may use any portion of the fees collected
to enforce this article, to employ persons as it considers
necessary to investigate and make reports regarding alleged
violations of this code and misconduct on the part of public
insurance adjusters, and to pay the salaries and expenses of
persons and office employees and other expenses necessary to
enforce this article. A person employed by the department under
this section may administer the oath and examine under oath any
person considered necessary in gathering information and evidence
and may have that information and evidence reduced to writing if
considered necessary, and all related expenses shall be paid from
the fees.
(c) The commissioner shall set the fees in amounts
reasonable and necessary to implement this article.
Sec. 14. PLACE OF BUSINESS; AGENT FOR SERVICE OF PROCESS.
(a) Each licensee who is a resident of the state shall maintain a
place of business in the state that is accessible to the general
public and maintain in the place of business the records required by
this article. The address of the place of business must appear on
the face of the license. The licensee shall promptly notify the
commissioner of any change in the address of the licensee's place of
business.
(b) Each nonresident licensee shall maintain an agent in the
state for service of process. The name and address of the
nonresident licensee's out-of-state business address and the name
and address of the agent must appear on the face of the license. The
licensee shall promptly notify the department of any change in the
address of the licensee's place of business or in the agent for
service of process.
(c) A license issued under this article must at all times be
posted in a conspicuous place in the principal place of business of
the licensee.
Sec. 15. LICENSE NOT ASSIGNABLE. A license issued under
this article is not assignable.
Sec. 16. NONRESIDENT LICENSE. (a) The commissioner may
issue a nonresident license to an applicant for a public insurance
adjuster license who is not a permanent resident of the state on
determining that the application meets the requirements of this
article, that the nonresident application license fee has been
paid, and that the applicant is an individual who:
(1) is at least 18 years of age;
(2) has passed, to the satisfaction of the
commissioner, an examination approved by the commissioner and of
sufficient scope as prescribed in Section 9 of this article,
provided however, that the requirement for such an examination does
not apply to:
(A) an applicant who is licensed as a resident
public insurance adjuster in the applicant's state of residence, if
the state requires the passing of a written examination in order to
obtain the license and a reciprocal agreement with the appropriate
official of that state has been entered into by the department; or
(B) an applicant who is licensed as a nonresident
public insurance adjuster in a state other than the applicant's
state of residence, if the state of licensure requires the passing
of a written examination in order to obtain the license and a
reciprocal agreement with the appropriate official of the state of
licensure has been entered into by the department;
(3) is self-employed as a public insurance adjuster or
associated with or employed by a public insurance adjusting firm or
other public insurance adjuster;
(4) is trustworthy and of a moral character that
reasonably ensures that the applicant will conduct the business of
a public insurance adjuster fairly and in good faith without
detriment to the public;
(5) has never been convicted of a felony or, if
convicted of a felony, has received a full pardon from that
conviction and is otherwise relieved from any disabilities
connected with that conviction;
(6) has sufficient experience or training relating to
the assessment of:
(A) real and personal property values; and
(B) physical loss of or damage to real or
personal property that may be the subject of insurance and claims
under insurance;
(7) has a general understanding of the earnings
capabilities of insurance;
(8) is sufficiently informed as to the terms and
effects of the types of insurance contracts that provide coverage
on real and personal property;
(9) possesses knowledge and experience adequate to
enable the applicant to engage in the business of a public insurance
adjuster fairly and without injury to the public or any member of
the public with whom the applicant may have business as a public
insurance adjuster;
(10) if currently licensed as a resident public
insurance adjuster in the applicant's state of residence, provides
with the application a certificate or letter of authorization from
the licensing authority of the applicant's state of residence,
stating that the applicant holds a current or comparable license to
act as a public insurance adjuster; the certificate or letter must
be signed by the appropriate licensing official of the applicant's
state of residence and must disclose whether the applicant has ever
had any license or eligibility to hold any license declined,
denied, suspended, or revoked or whether the applicant has ever
been placed on probation or whether an administrative fine or
penalty has been levied against the applicant and, if so, the reason
for the action;
(11) if the applicant's state of residence does not
require licensure as a resident public insurance adjuster and the
applicant has been licensed as an adjuster, agent, broker, or other
insurance representative in the applicant's state of residence or
any other state within the past three years, provides with the
application a certificate or letter of authorization from the
licensing authority stating that the applicant holds or has held a
license to act as an adjuster, agent, broker, or other insurance
representative; the certificate or letter must be signed by the
appropriate licensing official and must disclose whether the
applicant has ever had any license or eligibility to hold any
license declined, denied, suspended, or revoked or whether the
applicant has ever been placed on probation or whether an
administrative fine or penalty has been levied against the
applicant and, if so, the reason for the action;
(12) files a bond in accordance with Section 6 of this
article in the amount required by Subsection (b) of this section;
(13) pays the application fee required by Section 12
of this article; and
(14) complies with any other requirements under
applicable state law, including providing a complete set of
fingerprints on request as provided by Article 1.10C of this code.
(b) An applicant for a nonresident license must file a
surety bond with the department in the amount of $50,000.
(c) A nonresident licensee shall comply with all of the
requirements of this article in performing any of the activities of
a public insurance adjuster in this state, including the
requirements on record maintenance in Section 25 of this article.
The failure of a nonresident licensee to properly maintain records
in accordance with this article and make them available to the
department on request constitutes grounds for the immediate
suspension of the nonresident license issued under this article.
(d) Each individual who holds a nonresident license shall
comply with all other laws and rules of this state applicable to
public insurance adjusters, including the law governing the
collection of state sales tax as appropriate for services performed
under this article.
(e) After licensure as a nonresident public insurance
adjuster, as a condition of doing business in this state, the
licensee must annually, not later than January 1 and on a form
prescribed by the commissioner, submit an affidavit certifying that
the licensee is familiar with and understands the laws specified in
Section 9 of this article, the applicable rules adopted under those
laws, and the terms and conditions of the types of insurance
contracts that provide coverage on real and personal property.
Compliance with the filing requirement provided by this subsection
is necessary to the issuance, continuation, reinstatement, or
renewal of a nonresident public insurance adjuster license.
Sec. 17. REGISTRATION PROGRAM FOR TRAINEES. (a) A public
insurance adjuster trainee must register with the department for a
temporary certificate under this section. An applicant for a
temporary certificate as a trainee must apply to the commissioner
on a form prescribed by the commissioner. The form must be
accompanied by a nonrefundable registration fee as prescribed by
Section 12(a)(4) of this article.
(b) A temporary certificate may be issued under this section
only for educational and training purposes. The holder of a
temporary certificate may practice only under the direction and
sponsorship of a licensee.
(c) The sponsor of a public insurance adjuster trainee shall
attest, on a form prescribed by the commissioner, that the trainee
is under the supervision and control of the sponsor and that the
sponsor has met the security requirements of Section 6 of this
article.
(d) A temporary certificate expires on the 180th day after
the date of issuance and may be renewed once on application to the
commissioner. An individual is not entitled to hold more than two
consecutive temporary certificates.
(e) Each individual who holds a temporary certificate under
this section must comply with the security requirements imposed
under Section 6 of this article. The security requirement may be
fulfilled by a surety bond purchased by the sponsoring licensee if
the bond also covers the acts described by Section 6(b) of this
article with regard to the temporary certificate holder. The
security requirement may also be fulfilled if the sponsoring
licensee complies with the requirements in Section 6(c)(1) of this
article and the temporary certificate holder is an employee of the
sponsoring licensee covered under a professional liability policy
or similar policy or contract of professional liability coverage
purchased by the sponsoring licensee in compliance with Section
6(c)(1) of this article.
Sec. 18. CONDUCT TO COMPLY WITH CONTRACT. A licensee shall
prepare each claim for an insured represented by the licensee in
accordance with the terms and conditions of the contract of
insurance under which recovery is sought.
Sec. 19. CODE OF ETHICS. The commissioner by rule shall
adopt:
(1) a code of ethics for public insurance adjusters
that fosters the education of public insurance adjusters concerning
the ethical, legal, and business principles that should govern
their conduct;
(2) recommendations regarding the solicitation of the
adjustment of losses by public insurance adjusters; and
(3) any other principles of conduct or procedures that
the commissioner deems necessary and reasonable.
Sec. 20. PUBLIC INSURANCE ADJUSTER AUTHORITY; EXEMPTION
FROM INSURANCE LAWS. (a) This article does not limit or diminish
the authority of a licensee to investigate or adjust a loss to less
than the authority for that purpose that may be exercised by an
adjuster licensed under Chapter 407, Acts of the 63rd Legislature,
Regular Session, 1973 (Article 21.07-4, Vernon's Texas Insurance
Code).
(b) A licensee is exempt from:
(1) Articles 21.01, 21.02, 21.04, 21.07, and 21.14 of
this code;
(2) Article 21.07-1, Insurance Code, as added by
Chapter 703, Acts of the 77th Legislature, Regular Session, 2001;
(3) the Managing General Agents' Licensing Act
(Article 21.07-3, Vernon's Texas Insurance Code); and
(4) Chapter 407, Acts of the 63rd Legislature, Regular
Session, 1973 (Article 21.07-4, Vernon's Texas Insurance Code).
Sec. 21. LICENSE RENEWAL. (a) A license issued under this
article expires on the second anniversary of the date of issuance
unless suspended or revoked by the commissioner. A licensee may
renew a license that has not expired or has not been suspended or
revoked by filing with the department a properly completed renewal
application, in the form prescribed by the commissioner, that
demonstrates continued compliance with the license requirements
imposed under this article or adopted by rule by the commissioner.
The completed renewal application must be accompanied by:
(1) a renewal fee in the amount determined by the
commissioner under Section 12(b) of this article; and
(2) evidence of compliance with the continuing
education requirements imposed under Section 22 of this article.
(b) A licensee must submit the completed renewal
application, evidence of compliance with the continuing education
requirements, and the renewal fee to the commissioner not later
than the 30th day before the second anniversary date of the license.
The original license continues in force until:
(1) the department issues the renewal license; or
(2) the commissioner issues an order revoking the
license.
(c) A person whose license has been expired for 90 days or
less may renew the license by filing a completed renewal
application in the form prescribed by the commissioner and evidence
of compliance with the continuing education requirements and by
paying to the department the required renewal fee and an additional
fee that is equal to one-half of the renewal fee for the license.
(d) A person whose license has been expired for more than 90
days but less than one year may not renew the license but is
entitled to a new license without taking the applicable
examination, if the person submits to the department a new
application, evidence of compliance with the continuing education
requirements, the license fee, and an additional fee equal to
one-half of the license fee.
(e) A person whose license has been expired for one year or
more may not renew the license. The person may obtain a new license
by submitting to reexamination, if examination is required for
original issuance of the license, and by complying with the
requirements and procedures for obtaining an original license.
(f) The department may renew without reexamination an
expired license of a person who was licensed in this state, moved to
another state, and is currently licensed and has been in continual
practice in the other state up to and including the date of the
application. The person must pay to the department a fee that is
equal to the license fee.
(g) Not later than the 30th day after moving from one state
to another state, a nonresident or resident public insurance
adjuster licensed in this state shall file with the department:
(1) the licensee's new address; and
(2) proof of authorization to engage in the business
of public insurance adjuster in the new state of residence.
(h) The department may not charge a fee or require a license
application under Subsection (g) of this section.
(i) At least 30 days before the expiration of a license, the
department shall send written notice of the impending license
expiration to the licensee at the licensee's last known mailing
address according to the records of the department.
Sec. 22. CONTINUING EDUCATION REQUIREMENT. Each licensee
must annually complete at least 15 hours of continuing education
courses. The commissioner by rule shall prescribe the requirements
for continuing education courses under this section.
Sec. 23. CONTINGENT FEES. (a) Except as provided by
Subsection (b) of this section, a licensee may receive a contingent
fee for adjusting a claim under this article. A contingent fee
collected under this section may not exceed 10 percent of the amount
of the insurance settlement on the claim.
(b) A licensee may not receive a contingent fee on a claim
for which an insurance company, not later than 72 hours after the
date on which the loss is reported to the insurance company, either
pays or commits in writing to pay to the insured the policy limit of
the insurance policy in accordance with Section 862.053 of this
code. The licensee is entitled to reasonable compensation from the
insured for services provided by the licensee on behalf of the
insured, based on the time spent on a claim that is subject to this
subsection and expenses incurred by the licensee, until the claim
is paid or the insured receives a written commitment to pay from the
insurance company.
Sec. 24. PROHIBITED CONDUCT. (a) A licensee may not,
directly or indirectly, act within this state as a public insurance
adjuster without having first entered into a contract, in writing,
on a form approved by the commissioner, executed in duplicate by the
licensee and the insured or the insured's duly authorized
representative. One copy of the contract shall be kept on file by
the licensee and must be available at all times for inspection,
without notice, by the commissioner or the commissioner's duly
authorized representative.
(b) A licensee may not solicit or attempt to solicit a
client for employment during the progress of a loss-producing
natural disaster occurrence.
(c) A licensee may not solicit or attempt to solicit
business on a loss or a claim in person, by telephone, or in any
other manner at any time except between the hours of 9 a.m. and 9
p.m. on a weekday or a Saturday, and between noon and 9 p.m. on a
Sunday. This subsection does not prohibit a licensee from
accepting phone calls or personal visits during the prohibited
hours from an insured upon the insured's initiation.
(d) A licensee may not use any form of contract that is not
approved by the commissioner. The contract must contain a
provision allowing the client to rescind the contract by written
notice to the licensee within 72 hours of signature and must include
in 12-point boldface type, prominently displayed, the statement:
"WE REPRESENT THE INSURED ONLY."
(e) A licensee may not knowingly make any false report to
the licensee's employer or client and may not divulge to any other
person, except as the law may require, any information obtained
except at the direction of the employer or the client for whom the
information is obtained.
(f) A licensee may not use a badge in connection with the
official activities of the licensee's business.
(g) A licensee may not permit an employee or agent, in the
employee's or agent's own name, to advertise, solicit or engage
clients, furnish reports or present bills to clients, or in any
manner conduct business for which a license is required under this
article.
(h) A licensee may not render legal advice to any person in
the licensee's capacity as a public insurance adjuster.
(i) A licensee may not represent an insured on a claim or
charge a fee to an insured while representing the insurance carrier
against which the claim is made.
(j) A licensee may not solicit or attempt to solicit
business, directly or indirectly, on a bodily injury loss covered
by a life, health, or accident insurance policy.
(k) A licensee may not, without the knowledge and consent of
the insured in writing, acquire an interest in salvaged property
that is the subject of a claim adjusted by the licensee.
(l) A licensee may not participate directly or indirectly in
the reconstruction, repair, or restoration of damaged property that
is the subject of a claim adjusted by the licensee or engage in any
other activities that may reasonably be construed as presenting a
conflict of interest, including soliciting or accepting any
remuneration from, or having a financial interest in, any salvage
firm, repair firm, or other firm that obtains business in
connection with any claim the licensee has a contract or agreement
to adjust.
(m) A licensee may not:
(1) use any misrepresentation to solicit a contract or
agreement to adjust a claim;
(2) advance money to any potential client or insured
in order to obtain business;
(3) offer to pay a fee, commission, or other valuable
consideration, exceeding $100, to a person for referring a loss to
the licensee unless the licensee employs the person for that
purpose and the person is licensed to act as a public insurance
adjuster under this article;
(4) use any letterhead, advertisement, or other
printed matter, or use any other means, to represent that the
licensee is an instrumentality of the federal government, of a
state, or of a political subdivision of a state; or
(5) use a name different from that under which the
licensee is currently licensed in an advertisement, solicitation,
or contract for business.
Sec. 25. RECORD MAINTENANCE. (a) A licensee shall keep a
complete record of each of the licensee's transactions as a public
insurance adjuster. The records shall include all of the
following:
(1) the name of the insured;
(2) the date, location, and amount of the loss;
(3) a copy of the contract between the licensee and the
insured;
(4) the name of the insurer and the amount, expiration
date, and number of each policy under which the loss is covered;
(5) an itemized statement of the recoveries by the
insured from the sources known to the licensee;
(6) the total compensation received for the
adjustment; and
(7) an itemized statement of disbursements made by the
licensee from recoveries received on behalf of the insured.
(b) Records required to be kept under this section shall be
maintained for at least five years after the termination of a
transaction with the insured and must be open to examination by the
commissioner.
Sec. 26. FIDUCIARY CAPACITY. (a) All funds received as
claim proceeds by a licensee acting as a public insurance adjuster
are received and held by the licensee in a fiduciary capacity. A
licensee who diverts or appropriates any fiduciary funds for the
licensee's personal use is guilty of theft and is punishable for
theft as provided by law.
(b) An applicant for a license to act as a public insurance
adjuster must, as part of the application, endorse an authorization
for disclosure to the commissioner of all financial records of any
funds the public insurance adjuster holds as a fiduciary. The
authorization shall continue in force and effect for as long as the
licensee continues to be licensed under this article.
Sec. 27. NOTICE TO LAST ADDRESS. Notice by registered mail,
return receipt requested, sent to the last known address of an
applicant for a license, licensee, or other person to whom notice is
required to be sent under this article, as reflected by the records
of the department, constitutes sufficient notice under this
article.
Sec. 28. ADVERTISEMENTS. Every advertisement by a licensee
soliciting or advertising business must display the licensee's
name, address, and license number as they appear in the records of
the commissioner. The commissioner may adopt rules defining the
term "advertisement" as used in this section.
Sec. 29. RULES. The commissioner may adopt reasonable and
necessary rules to implement this article, including rules
regarding the:
(1) qualifications of licensees, in addition to those
prescribed in this article, that are necessary to promote and
protect the public interest;
(2) regulation of the conduct of licensees; and
(3) prescription of fees required by Section 12 of
this article.
Sec. 30. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE.
(a) The commissioner may deny an application for a license under
this article or suspend or revoke a license issued under this
article on the basis of:
(1) a violation of this article or of any rule adopted
by the commissioner under this article;
(2) a cause that constitutes grounds for denial of an
original license;
(3) wilful misrepresentation or fraud in obtaining a
license;
(4) failure to pass a required license examination;
(5) the misappropriation or conversion of money
required to be held in a fiduciary capacity;
(6) material misrepresentation, with intent to
deceive, of the terms of an insurance contract;
(7) engaging in a fraudulent transaction;
(8) demonstrated incompetence or untrustworthiness in
the conduct of the licensee's affairs under the license, as
determined by the commissioner;
(9) conviction of a felony by a final judgment in a
court of competent jurisdiction; or
(10) material misrepresentation, with intent to
deceive, of the person's status as a public insurance adjuster.
(b) If the department proposes to refuse to issue an
original license under this article or to suspend, revoke, or
refuse to renew a license under this article, the person affected is
entitled to notice and hearing as provided by Section 3A(b),
Article 21.01-2 of this code.
(c) A final order entered as a result of a hearing under this
section may be appealed to a court of competent jurisdiction as
provided by Subchapter D, Chapter 36 of this code.
(d) An order suspending a license issued under this article
must specify the period of the suspension not to exceed 12 months.
(e) The holder of a license that is revoked or suspended for
cause shall surrender the license to the commissioner on demand.
(f) The commissioner may issue a license or reinstate a
suspended or revoked license on a finding that the cause for
suspension, revocation, or refusal no longer exists.
(g) A person whose license is suspended under this article
may apply for a new license only after the expiration of the period
of suspension. A person whose license is revoked or whose
application for a license is denied may not apply for a new license
until the fifth anniversary of:
(1) the effective date of the denial or revocation; or
(2) if the applicant or licensee seeks judicial review
of the department's action, the date of the final court order or
decree affirming that action.
(h) The commissioner may deny a timely application filed
under Subsection (g) of this section if the applicant does not show
good cause why the denial of the previous license application or the
revocation of the license should not be considered a bar to the
issuance of the new license. This subsection does not apply to an
applicant whose license application was denied for failure to:
(1) pass the required written examination; or
(2) submit a properly completed license application.
(i) The commissioner, in lieu of suspending or revoking a
license for a violation of this article or a rule adopted under this
article, may impose on a licensee an administrative penalty in an
amount not to exceed $1,000 per violation if the commissioner
determines that such action better serves the purposes of this
article.
(j) The department may institute a disciplinary proceeding
against a licensee for conduct that the licensee committed before
the effective date of a voluntary surrender or automatic forfeiture
of the license. In the proceeding, the fact that the licensee has
surrendered or forfeited the license does not affect the licensee's
culpability for the conduct.
Sec. 31. AUTOMATIC FINES. Section 5A, Article 21.01-2 of
this code, applies to violations of this article.
Sec. 32. CRIMINAL PENALTY; SANCTIONS. (a) A person
commits an offense if the person violates this article. Except as
provided by Section 26(a) of this article, an offense under this
subsection is a misdemeanor punishable by:
(1) a fine in an amount not to exceed $1,000;
(2) confinement in county jail for a term not to exceed
six months; or
(3) both the fine and confinement.
(b) In addition to the criminal penalties imposed under
Subsection (a) of this section, a person in violation of this
article is subject to the sanctions provided by Section 7, Article
21.21 of this code, as if the person had violated an order under
that section.
SECTION 3. (a) The commissioner of insurance shall appoint
the members of the public insurance adjusters examination advisory
committee created under Subsection (c), Section 9, Article 21.07-5,
Insurance Code, as added by this Act, not later than the 60th day
after the effective date of this Act.
(b) The commissioner of insurance shall adopt the
examination required by Section 9, Article 21.07-5, Insurance Code,
as added by this Act, not later than January 1, 2004. Pending the
adoption of the examination, the commissioner may issue a temporary
license to practice as a public insurance adjuster to an individual
who satisfies all the requirements for issuance of the license
except the examination requirement. A temporary license issued
under this subsection expires June 1, 2004, and may not be renewed
except as determined by the commissioner.
(c) The commissioner of insurance shall adopt the code of
ethics prescribed under Section 19, Article 21.07-5, Insurance
Code, as added by this Act, not later than September 1, 2004.
(d) Subject to the provisions of Subsections (a), (b), and
(c) of this section, the commissioner of insurance shall adopt
rules as necessary to implement Article 21.07-5, Insurance Code, as
added by this Act, not later than January 1, 2004.
SECTION 4. 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.