79R3186 PB-F

By:  Eiland                                                       H.B. No. 2563


A BILL TO BE ENTITLED
AN ACT
relating to the operations 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 5(l), Article 21.49, Insurance Code, is amended to read as follows: (l) If an occurrence or series of occurrences within the defined catastrophe area results in insured losses that result in assessments, payments from the catastrophe reserve trust fund established under Section 8(i) of this article, claims under a reinsurance contract under Section 8(h)(17) of this article, or issuance of revenue bonds under Section 20 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 payments using assessment funds, reinsurance proceeds, or bond proceeds [tax credits under Section 19(4) of this article]. SECTION 2. Section 8(i)(1), Article 21.49, Insurance Code, is amended to read as follows: (1) The commissioner shall adopt rules under which the association members relinquish their net equity on an annual basis as provided by those rules by making payments to a fund known as the catastrophe reserve trust fund to fund the obligations of that fund under Section 19[(a)] of this Act and to fund the mitigation and preparedness plan established under this subsection to reduce the potential for payments by members of the association [giving rise to tax credits in the event of loss or losses]. Until disbursements are made as provided by this Act and rules adopted by the commissioner, all money, including investment income, deposited in the catastrophe reserve trust fund are state funds to be held by the comptroller outside the state treasury on behalf of, and with legal title in, the department. The fund may be terminated only by law. On termination of the fund, all assets of the fund revert to the state to be used to provide funding for the annual loss mitigation and preparedness plan developed and implemented by the commissioner under Subdivision (5) of this subsection. 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, as defined by the plan of operation, 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) An amount not to exceed [follows: [(1)] $100 million for each occurrence 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. Except as otherwise provided by this subsection, for each occurrence, any losses in excess of $100 million shall be paid from the catastrophe reserve trust fund established under Section 8(i) of this Act. Unless the commissioner determines a greater percentage should be applied, not more than 50 percent of the amount in the catastrophe reserve trust fund as of the date of the occurrence, reduced by anticipated payments from prior occurrences, may be used for the purposes described by this subsection. (c) Any [; (2) any] losses in excess of the amounts determined under Subsection (b) of this section [$100 million] shall be paid in accordance with a plan developed by the association and approved by the commissioner from one or more of the following sources until those sources are exhausted: (1) additional assessments to the members of the association that: (A) do not exceed $300 million per calendar year; and (B) are based on the proportion that the member's gross written premiums for property insurance, as reported in the member's annual statement filed with the department for the calendar year preceding the year in which the assessment is made bears to the total reported gross written premiums for property insurance in this state; (2) any reinsurance proceeds recoverable by the association; or (3) any revenue bond proceeds received by the association in accordance with Section 20 of this article. (d) Any losses of the association that are not paid by the assessments and catastrophe reserve trust fund as provided by Subsection (b) of this section or that are not paid under the plan approved by the commissioner in accordance with Subsection (c) of this section shall be assessed to all property and casualty insurers authorized to write property and casualty insurance in this state, including the FAIR Plan Association. The amount of the assessment under this subsection shall be based on the proportionate amount of the insurer's or FAIR Plan Association's share of the property and casualty insurance market in this state. The proportion assessed against the insurer or FAIR Plan Association shall be based on the amount of the insurer's or FAIR Plan Association's gross written premiums for all property and casualty lines, as reported in the insurer's or FAIR Plan Association's annual statement filed with the department for the calendar year preceding the year in which the assessment is made [from the catastrophe reserve trust fund established under Section 8(i) of this Act and any reinsurance program established by the association; [(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 Subdivisions (1), (2), and (3) of this 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(c) of this Act]. (e) [(b)] An insurer, including the FAIR Plan Association, that has been assessed and has paid the assessment under Subsection (c) or (d) of this section may charge a premium surcharge for reimbursement of the assessment. The premium surcharge applies to each property and casualty insurance policy that is issued by the insurer or the FAIR Plan Association in this state, 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 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 assessment, such that over the five-year period the aggregate of all surcharges by the insurer or the FAIR Plan Association equals but does not exceed the amount of the assessment. The amount of any assessment paid and recoverable under this subsection may be carried by the insurer or the FAIR Plan Association [may credit any amount paid in accordance with Subsection (a)(4) of this section in a calendar year against its premium tax under 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 under Section 862.001 [pursuant to Article 6.12] of this code. (f) An assessment made under Subsection (b) of this section is not reimbursable under Subsection (e) of this section. The assessments under Subsection (c) and (d) of this section are reimbursable in accordance with Subsection (e) of this section. (g) When losses are paid by procedures described under Subsection (c) or (d) of this section, the association shall submit to the department for approval by the commissioner a plan for collection of a premium surcharge from policyholders of the association. The association shall establish the premium surcharge in an amount that is twice the amount of the average per policy surcharge percentage established under Subsection (e) of this section on any policy issued or renewed by the association. The period for collection of the premium surcharge under this subsection may not exceed five years. Each surcharge collected under this subsection shall be deposited in the catastrophe reserve trust fund. (h) In addition to the funding described by Subsections (a)-(g) of this section, the association may also borrow from, or enter into other financing arrangements with, any market sources at prevailing interest rates. (i) For purposes of Subsections (d) and (e) of this section, "property and casualty insurance" does not include workers' compensation insurance, accident and health insurance, or medical malpractice insurance. (j) 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. (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) "Insurer" means each property and casualty insurer authorized to engage in the business of property and casualty insurance in this state. The term includes a county mutual insurance company, a Lloyd's plan, and a reciprocal or interinsurance exchange. (4) "Property and casualty insurance" does not include workers' compensation insurance, accident and health insurance, or medical malpractice insurance. (5) "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, to: (1) fund the association, including funding necessary to: (A) establish and maintain reserves to pay claims; (B) pay incurred claims and operating expenses; and (C) purchase reinsurance; (2) pay costs related to the issuance of the public securities; and (3) pay other costs related to the public securities as may be determined by the board. (d) 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. (e) 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. (f) 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. (g) 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 Subsection (c) of this section. (h) 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. (i) Public securities are payable only from the service fee established under Subsection (j) 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. (j) A service fee may be assessed against insurers, the association, and the FAIR Plan Association. The commissioner shall set the service fee annually in an amount sufficient to pay all debt service on the public securities. Each insurer, the association, and the FAIR Plan Association shall pay the service fee as required by the commissioner by rule. The amount of the insurer's service fee shall be based on the amount of the insurer's gross written premiums for all property and casualty insurance lines, as reported in the annual statement filed with the department for the calendar year preceding the year in which the assessment is made. The association shall collect the service fee and report collection of the service fee to the department. The department may audit payment and collection of the service fee. (k) As a condition of engaging in the business of insurance in this state, an insurer agrees that if the insurer leaves the property and casualty insurance market in this state the insurer remains obligated to pay, until the public securities are retired, the insurer's share of the service fee assessed under Subsection (j) of this section in an amount proportionate to that insurer's share of the property and casualty 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 property and casualty insurance for the insurer's last reporting period. (l) The association shall deposit all service fees collected from insurers, the FAIR Plan Association, and the association 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 service fee 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. (m) Revenue collected from the service fee in any year that exceeds the amount of the bond obligations and bond administrative expenses payable in that year and interest earned on the service fee 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 of the service fee that would otherwise have to be levied for the year under this section; or (2) redeem or purchase outstanding bonds. (n) The insurers in this state, including the FAIR Plan Association, that have paid a service fee under this section may charge a premium surcharge on each property and casualty insurance policy issued by that insurer, the effective date of which is within the one-year period beginning on the 90th day after the date the service fee is paid. The amount of the premium surcharge shall be computed on the basis of a uniform percentage of the premium on those policies, such that the aggregate of all those surcharges by the insurer is equal to and does not exceed the amount of the service fee paid by the insurer. The association shall submit to the department for approval by the commissioner a plan for collection of a premium surcharge from policyholders of the association. (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. Section 941.003(b), Insurance Code, is amended to read as follows: (b) A Lloyd's plan is subject to: (1) Section 5, Article 1.10; (2) Article 1.15A; (3) Subchapters A, [Q,] T, and U, Chapter 5; (4) Chapters 251, 252, and 541; (5) Articles 5.35, 5.38, 5.39, 5.40, 21.49, [and 5.49; [(5) Articles 21.21] and 21.49-8; (6) Sections 822.203, 822.205, 822.210, and 822.212; and (7) Article 5.13-2, as provided by that article. SECTION 6. Section 942.003(b), Insurance Code, is amended to read as follows: (b) An exchange is subject to: (1) Section 5, Article 1.10; (2) Articles 1.15, 1.15A, and 1.16; (3) Subchapters A, [Q,] T, and U, Chapter 5; (4) Articles 5.35, 5.37, 5.38, 5.39, and 5.40; (5) Articles 21.49 [21.21] and 21.49-8; (6) Chapter 541; (7) Sections 822.203, 822.205, 822.210, 822.212, 861.254(a)-(f), 861.255, 862.001(b), and 862.003; and (8) [(7)] Article 5.13-2, as provided by that article. SECTION 7. This Act takes effect September 1, 2005.