By:  Smithee, Escobar (Senate Sponsor - Jackson)                  H.B. No. 1890
	(In the Senate - Received from the House May 16, 2005; 
May 17, 2005, read first time and referred to Committee on Business 
and Commerce; May 20, 2005, reported adversely, with favorable 
Committee Substitute by the following vote:  Yeas 7, Nays 0; 
May 20, 2005, sent to printer.)


COMMITTEE SUBSTITUTE FOR H.B. No. 1890                                   By:  Estes

A BILL TO BE ENTITLED
AN ACT
relating to the operation and funding of the Texas Windstorm Insurance Association, including funding of coverage for certain catastrophic events through the establishment of a revenue bond program. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 4(d), Article 21.49, Insurance Code, is amended to read as follows: (d) On dissolution of the association, all assets of the association, including the unexpended and unobligated balance of the catastrophe reserve trust fund as of the date of the dissolution, revert to this state. SECTION 2. Section 5, Article 21.49, Insurance Code, is amended by amending Subsections (g), (h), (i), (j), and (l) and adding Subsections (n) and (o) to read as follows: (g) The board of directors of the Association is responsible and accountable to the commissioner [Board]. The board of directors is composed of nine members appointed by the commissioner as follows: (1) five representatives of different insurers who are members of the Association [who shall be elected by members as provided in the plan of operation]; (2) two representatives of the general public, one of whom is a resident of a first tier coastal county and one of whom is a resident of a county other than a first tier coastal county [nominated by the office of public insurance counsel, who, as of the date of the appointment, reside in a catastrophe area and who are policyholders, as of the date of the appointment, of the Association]; and (3) two insurance [local recording] agents licensed under this Code, one with a [demonstrated experience in the Association, and whose] principal office [offices], as of the date of the appointment, [are] located in a first tier coastal county and one with a principal office located in a county other than a first tier coastal county [catastrophe area]. (h) Members of the board of directors of the Association serve three-year staggered terms, with the terms of three members expiring on the third Tuesday of March of each year. A member of the board of directors serves at the pleasure of the commissioner and may be removed by the commissioner before the expiration of the member's term. [A person may hold a seat on the board of directors for not more than three consecutive full terms, not to exceed nine years.] (i) The persons appointed as provided by Subsection (g) [Subsections (g)(2) and (g)(3)] of this section must have demonstrated business, insurance, or financial experience to be eligible for appointment [be from different counties]. (j) The board of directors of the Association shall select one member of the board of directors to serve as presiding officer of the board of directors. The presiding officer serves at the pleasure of the board of directors and is entitled to vote on all matters before the board of directors. The board of directors [of the Association] shall elect other officers of the board of directors [an executive committee consisting of a chairman, vice-chairman, and secretary-treasurer] from its membership. [At least one of those officers must be a member appointed under Subsection (g)(2) or Subsection (g)(3) of this section.] (l) If an occurrence or series of occurrences within the defined catastrophe area results in insured losses that result in payment of losses under Section 19 of this article [tax credits under Section 19(4) of this article in a single calendar year], the Association shall immediately notify the commissioner [Board] of that fact. The commissioner [Board] on receiving notice shall immediately notify the Governor and appropriate committees of each house of the Legislature of the amount of insured losses eligible for payment under Section 19 [tax credits under Section 19(4)] of this article. (n) As an exception to Chapter 551, Government Code, and other law, members of the board of directors may meet by telephone conference call, videoconference, or other similar telecommunication method. The board of directors may use telephone conferences or other similar telecommunication methods for purposes of establishing a quorum, for purposes of voting, and for any other meeting purpose in accordance with this subsection and Subsection (o). This subsection applies without regard to the subject matters discussed or considered by the members of the board of directors at the meeting. (o) A meeting held by use of telephone conference call, videoconference, or other similar telecommunication method: (1) is subject to the notice requirements applicable to other meetings; (2) must specify in the notice of the meeting the location of the meeting; (3) must be audible to the public at the location specified in the notice of the meeting as the location of the meeting; and (4) must provide two-way audio communication between all members of the board of directors attending the meeting during the entire meeting, and if the two-way audio communication link with members attending the meeting is disrupted at any time so that a quorum of the board of directors is no longer participating in the meeting, the meeting may not continue until the two-way audio communication link is reestablished. SECTION 3. Section 19, Article 21.49, Insurance Code, is amended to read as follows: Sec. 19. PAYMENT OF LOSSES; PREMIUM TAX CREDIT. (a) If, in any calendar year, an occurrence or series of occurrences within the defined catastrophe area results in insured losses and operating expenses of the association in excess of premium and other revenue of the association, any excess losses shall be paid as provided by this section. (b) After application of available revenue to losses, [follows: [(1)] $100 million, per catastrophic event, shall be assessed to the members of the association with the proportion of the loss allocable to each insurer determined in the same manner as its participation in the association has been determined for the year under Section 5(b) [5(c)] of this Act. A member of the association may not directly or indirectly recover the amount of any assessment made under this subsection from additional premium charges on any insurance policy written on property that is not located within the first tier coastal counties.[;] (c) Any [(2) any] losses in excess of the amounts authorized under Subsection (b) of this section [$100 million] shall be paid from the catastrophe reserve trust fund established under Section 8(i) of this Act, not to exceed an amount equal to 50 percent of the balance of that fund as of the date of the occurrence, reduced by anticipated payments from prior occurrences. (d) Any losses that exceed the amounts available under Subsections (b) and (c) of this section, not to exceed an additional $300 million per calendar year, shall be funded through additional assessments to the members of the association, with the proportion of the total loss allocable to each insurer determined in the same manner as the insurer's participation in the association has been determined for the year under Section 5(b) of this Act. An insurer that has been assessed and has paid the assessments under this subsection may charge the insurer's policyholders a premium surcharge for reimbursement of the assessment. The premium surcharge, which must be a separate charge in addition to premiums collected, applies to every insurance policy insuring real property located in the catastrophe area, including policies issued by the association, the effective date of which is within the five-year period beginning on the 90th day after the date of the assessment. The amount of the surcharge collected by the members of the association from policyholders under this subsection shall be computed on the basis of a uniform percentage of the premium on those policies, not to exceed 20 percent per year of the amount of the insurer's assessment, such that over the period of five years the aggregate of all the surcharges by the insurer shall be equal to, and not exceed, the amount of the assessment of the insurer. The amount of any assessment paid and recoverable under this section may be carried by the insurer as an admitted asset of the insurer for all purposes, including exhibition in annual statements under Section 862.001 of this code. The association shall collect a premium surcharge, which must be a separate charge in addition to premiums collected, from the association's policyholders in an amount approved by the commissioner. (e) If the amount available under Subsections (b)-(d) of this section is insufficient to pay the excess losses, the excess losses shall be paid in accordance with a plan developed by the association, and approved by the commissioner after at least 10 days' notice and a hearing if a hearing is requested by any person within the 10-day notice period, from any or a combination of the following sources: (1) any reinsurance proceeds recoverable by the association; and (2) any revenue bond proceeds, in an amount not to exceed $2 billion per year, received by the association in accordance with Section 20 of this Act. (f) Any [; [(3) for losses in excess of those paid under Subdivisions (1) and (2) of this subsection, an additional $200 million shall be assessed to the members of the association with the proportion of the loss allocable to each insurer determined in the same manner as its participation in the association has been determined for the year under Section 5(c) of this Act; [(4) any] losses in excess of those paid under Subsections (b)-(e) [Subdivisions (1), (2), and (3)] of this section [subsection] shall be assessed against members of the association, with the proportion of the total loss allocable to each insurer determined in the same manner as its participation in the association has been determined for the year under Section 5(b) [5(c)] of this Act. (g) [(b)] An insurer may credit any amount paid in accordance with Subsection (f) [(a)(4)] of this section in a calendar year against its premium tax under Section 221.002 [Article 4.10] of this code. The tax credit herein authorized shall be allowed at a rate not to exceed 20 percent per year for five or more successive years following the year of payment of the claims. The balance of payments paid by the insurer and not claimed as such tax credit may be reflected in the books and records of the insurer as an admitted asset of the insurer for all purposes, including exhibition in annual statements pursuant to Section 862.001 [Article 6.12] of this code. (h) The commissioner may adopt rules as necessary to implement this section. SECTION 4. Article 21.49, Insurance Code, is amended by adding Section 20 to read as follows: Sec. 20. REVENUE BOND PROGRAM FOR OPERATIONS AND PAYMENT OF CLAIMS. (a) In this section: (1) "Board" means the board of directors of the Texas Public Finance Authority. (2) "Bond" means any debt instrument or public security issued by the Texas Public Finance Authority. (3) "Public security resolution" means the resolution or order authorizing public securities to be issued under this section. (b) The legislature finds that the issuance of public securities to provide a method to raise funds to provide windstorm, hail, and fire insurance through the Texas Windstorm Insurance Association in certain designated portions of the state is for the benefit of the public and in furtherance of a public purpose. (c) At the request of the association and with the approval of the commissioner, the Texas Public Finance Authority shall issue, on behalf of the association, public securities in a total amount not to exceed $2 billion in accordance with Subsection (d) of this section. (d) After an occurrence or series of occurrences within the defined catastrophe area has occurred, the board shall issue public securities in an amount not to exceed the amount specified under Section 19(d) of this Act as necessary to fund the payment of excess losses under that subsection. (e) To the extent consistent with this section, Chapter 1232, Government Code, applies to public securities issued under this section. In the event of a conflict, this section controls. The following laws also apply to public securities issued under this section to the extent consistent with this section: (1) Chapters 1201, 1202, 1204, 1205, 1231, and 1371, Government Code; and (2) Subchapter A, Chapter 1206, Government Code. (f) Public securities issued under this section: (1) may be issued at public or private sale; and (2) must: (A) be issued in the name of the association; and (B) mature not more than 10 years after the date issued. (g) In a public security resolution, the board may: (1) make additional covenants with respect to the public securities and the designated income and receipts of the association pledged to the payment of the public securities; and (2) provide for the flow of funds and the establishment, maintenance, and investment of funds and accounts with respect to the public securities. (h) Funds generated through the issuance of public securities shall be held outside the state treasury in the custody of the comptroller. The association may request disbursement of the funds for the purposes set forth in this section. (i) A public security resolution may establish special accounts, including an interest and sinking fund account, reserve account, and other accounts. The association shall administer the accounts in accordance with this section. (j) Public securities are payable only from the premium surcharges established under Subsection (k) of this section or from other amounts that the association is authorized to levy, charge, and collect. Public securities are obligations solely of the association and do not create a pledging, giving, or lending of the faith, credit, or taxing authority of this state. Each public security must include a statement that this state is not obligated to pay any amount on the public security and that the faith, credit, and taxing authority of this state are not pledged, given, or lent to those payments. Each public security issued under this section must state on its face that the public security is payable solely from the revenues pledged for that purpose and that the public security does not and may not constitute a legal or moral obligation of the state. (k) The public securities and all debt service on the public securities issued in accordance with Subsection (d) of this section shall be paid by premium surcharges in amounts approved by the commissioner and applied to each property and casualty insurance policy written by an insurer in this state or by the FAIR Plan Association. The premium surcharges applicable under this subsection to insurance policies written on property located in the catastrophe area, including policies issued through the association must be equal to two times the premium surcharges applicable to insurance policies written on property located in counties that are not in the catastrophe area. A premium surcharge under this subsection may not be applied to a workers' compensation insurance policy, an accident and health insurance policy, or a medical malpractice insurance policy. (l) As a condition of engaging in the business of insurance in this state, an insurer that engages in the business of property insurance in this state agrees that if the insurer leaves the insurance market in this state the insurer remains obligated to pay, until the public securities are retired, the insurer's share of the premium surcharges assessed under Subsection (k) of this section in an amount proportionate to that insurer's share of the insurance market in this state, as of the last complete reporting period before the date on which the insurer ceases to engage in that insurance business in this state. The proportion assessed against the insurer shall be based on the insurer's gross written premiums for insurance for the insurer's last reporting period. (m) The association shall deposit all premium surcharges collected under Subsection (k) of this section in a fund to be held outside the state treasury in the custody of the comptroller. Money deposited in the fund may be invested as permitted by general law. Money in the fund required to be used to pay bond obligations and bond administrative expenses shall be transferred to the Texas Public Finance Authority or used by the comptroller in the manner and at the time specified in the resolution adopted in connection with the bond issue to ensure timely payment of obligations and expenses, or as otherwise provided by the bond documents. For bonds issued by the Texas Public Finance Authority for the association, the association shall provide for the payment of the bond obligations and the bond administrative expenses by irrevocably pledging revenues received from the premium surcharges and amounts on deposit in the fund, together with any bond reserve fund, as provided in the proceedings authorizing the bonds and related credit agreements. (n) Revenue collected from the premium surcharges assessed under Subsection (k) of this section in any year that exceeds the amount of the bond obligations and bond administrative expenses payable in that year and interest earned on the premium surcharges may, in the discretion of the association and with the approval of the commissioner, be used to: (1) pay bond obligations payable in the subsequent year, offsetting the amount that would otherwise have to be levied for the year under this section; or (2) redeem or purchase outstanding bonds. (o) The public securities issued under this section, any interest from those public securities, and all assets pledged to secure the payment of the public securities are free from taxation by this state or a political subdivision of this state. (p) The public securities issued under this section constitute authorized investments under Articles 2.10 and 3.33 and Subpart A, Part I, Article 3.39, of this code. (q) The state pledges to and agrees with the owners of any public securities issued in accordance with this section that the state will not limit or alter the rights vested in the association to fulfill the terms of any agreements made with the owners of the public securities or in any way impair the rights and remedies of those owners until the public securities, bond premium, if any, or interest, and all costs and expenses in connection with any action or proceeding by or on behalf of those owners, are fully met and discharged. The association may include this pledge and agreement of the state in any agreement with the owners of the public securities. (r) A party at interest may use mandamus and all other legal and equitable remedies to require the association and any other party to carry out agreements and to perform functions and duties established under this section, the Texas Constitution, or a public security resolution. SECTION 5. (a) The board of directors of the Texas Windstorm Insurance Association established under Section 5, Article 21.49, Insurance Code, as that section existed prior to amendment by this Act, is abolished effective January 1, 2006. (b) Not later than December 31, 2005, the commissioner of insurance shall appoint the members of the board of directors of the Texas Windstorm Insurance Association under Section 5, Article 21.49, Insurance Code, as amended by this Act. (c) The term of a person who is serving as a member of the board of directors of the Texas Windstorm Insurance Association immediately before the abolition of that board under Subsection (a) of this section expires on January 1, 2006. Such a person is eligible for appointment by the commissioner of insurance to the new board of directors of the Texas Windstorm Insurance Association under Section 5, Article 21.49, Insurance Code, as amended by this Act. SECTION 6. This Act takes effect January 1, 2006.
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