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A BILL TO BE ENTITLED
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AN ACT
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relating to the Texas Windstorm Insurance Association. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter L, Chapter 2210, Insurance Code, is |
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amended to read as follows: |
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SUBCHAPTER L. APPEALS AND OTHER ACTIONS |
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Sec. 2210.551. APPEAL BY THE ASSOCIATION. [APPEALS] |
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(a) This section applies to:
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(1)
a person insured under this chapter or an
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authorized representative of the person; or
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(2) an affected insurer.
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[(b)
A person or entity described by Subsection (a)
who is
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aggrieved by an act, ruling, or decision of the association may
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appeal to the commissioner not later than the 30th day after the
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date of that act, ruling, or decision.] |
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[c] If the association is aggrieved by the action of the |
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commissioner with respect to a ruling, order, or determination of |
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the commissioner, the association may, not later than the 30th day |
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after the date of the action, make a written request to the |
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commissioner for a hearing on the action. |
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(b [d]) On 10 days' written notice of the time and place of |
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the hearing, the commissioner shall conduct a hearing on the |
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association's request or the appeal from an act, ruling, or |
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decision of the association, not later than the 30th day after the |
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date of receipt of the request or appeal. |
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[(e)
A hearing on an act, ruling, or decision of the
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association relating to the payment of, the amount of, or the denial
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of a particular claim shall be held, at the request of the claimant,
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in the county in which the insured property is located or in Travis
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County.] |
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(c [f]) Not later than the 30th day after the date of the |
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hearing, the commissioner shall affirm, reverse, or modify the |
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commissioner's previous action or the act, ruling, or decision |
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appealed to the commissioner. Pending the hearing and decision, |
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the commissioner may suspend or postpone the effective date of the |
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previous action or of the act, ruling, or decision appealed to the |
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commissioner. |
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(d [g]) The association [, or the person or entity aggrieved
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by the order or decision of the commissioner,] may appeal to a |
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district court in the county in which the covered property is |
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located or a district court in Travis County. |
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(e [h]) An action brought under this section is subject to |
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the procedures established under Subchapter D, Chapter 36. |
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Sec. 2210.552. DEFINITIONS. "Damages" means all claims |
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under common law, statutory and equitable causes of action, for |
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actual damages including economic and non-economic damages, and all |
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forms of additional damages including without limitation |
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additional damages, knowing damages, punitive damages, trebling of |
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damages of any kind, penalties, prejudgment interest, post judgment |
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interest, attorneys fees, litigation costs, costs of court, and all |
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other damages of any kind or character. |
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[CLAIM DISPUTES; VENUE.
(a)
Except as provided by Sections
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2210.007 and 2210.106, a person insured under this chapter who is
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aggrieved by an act, ruling, or decision of the association
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relating to the payment of, the amount of, or the denial of a claim
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may:
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[(1)
bring an action against the association,
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including an action under Chapter 541; or
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[(2)
appeal the act, ruling, or decision under Section
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2210.551.
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[(b)
A person may not proceed under both Section 2210.551
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and this section for the same act, ruling, or decision.
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[(c)
Except as provided by Subsection (d), venue in an
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action brought under this section, including an action under
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Chapter 541, against the association is in the county in which the
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insured property is located or in a district court in Travis County.
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[(d)
Venue in an action, including an action under Chapter
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541, brought under this section in which the claimant joins the
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department as a party to the action is only in a district court in
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Travis County.] |
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Sec. 2210.553. APPEALS TO BOARD OF DIRECTORS. A person |
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aggrieved by a decision of the association relating to eligibility |
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for or amount of benefits payable to the person, or for damages |
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claimed by a person related to the eligibility for or amount of |
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benefits payable to a person may appeal the decision to the |
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Executive Director. An appeal to the Executive Director shall be |
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filed no more than 30 days after the date of the decision is made for |
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which review is sought. This subchapter provides the sole remedy |
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for the aggrieved person. |
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Sec. 2210.554. HEARING BY STATE OFFICE OF ADMINISTRATIVE |
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HEARINGS. The executive director or a person designated by the |
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executive director shall refer an appeal under this section to the |
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State Office of Administrative Hearings to conduct a hearing as |
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provided by Chapter 2001, Government Code. |
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Sec. 2210.555. CONTESTED CASE. An appeal under this |
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section is a contested case as defined by Chapter 2001, Government |
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Code. An aggrieved person appealing a decision under this section |
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has the burden of proof on all issues, including any affirmative |
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defense. |
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Sec. 2210.556. FINAL DECISION. A decision by the State |
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Office of Administrative Hearings is final within the meaning of |
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Sec. 2210.557 |
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Sec. 2210.557. NEGOTIATED SETTLEMENT. (a) Notwithstanding |
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this Section, the association and a person aggrieved by a decision |
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of the association may at any time informally negotiate a |
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settlement of a claim. |
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(b) A negotiated settlement must be approved by the board of |
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directors if the settlement amount is in excess of $25,000, or |
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includes consideration for attorney fees. |
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(c) A settlement negotiated under this section may not |
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exceed the applicable maximum liability limit established under the |
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policy. |
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Sec. 2210.558. JUDICIAL REVIEW. (a) A person aggrieved by |
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a final decision of the State Office of Administrative Hearings in a |
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contested case under this section is entitled to judicial review in |
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accordance with Chapter 2001, Government Code. |
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(b) The venue for appeal from a final decision of the State |
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Office of Administrative Hearings under this section is in district |
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court in Travis County. |
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(c) The review on appeal is governed by the substantial |
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evidence rule as described by Section 2001.174, Government Code. |
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Sec. 2210.559. PLAN OF OPERATION. The board of directors |
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may submit proposed changes to the plan of operation to implement |
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this subchapter. |
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Sec. 2210.560. NOTICE; INSPECTION. (a) As a prerequisite |
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to filing a an appeal under Sec. 2210.552 of this subchapter, a |
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person covered by an association policy shall give written notice |
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to the association at least 60 days before filing the appeal |
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advising the association in reasonable detail of the person's |
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specific complaint and the amount of damage and expenses, including |
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attorneys' fees, if any, reasonably incurred to date by the person |
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in asserting the claim against the association. During the 60-day |
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period a written request to inspect, in a reasonable manner and at a |
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reasonable time and place, the property that is the subject of the |
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person's action or claim may be presented to the person. |
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(b) If the giving of 60 days' written notice is rendered |
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impracticable by reason of the necessity of filing a claim in order |
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to prevent the expiration of the statute of limitations or if the |
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person's claim is asserted by way of counterclaim, the notice |
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provided for in Subsection (a) of this section is not required, but |
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the tender provided for by this subchapter may be made within 60 |
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days after filing the appeal or counterclaim. |
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(c) If the association does not receive written notice, as |
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required by Subsection (a), then the association may file a plea in |
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abatement not later than the 30th day after the date the person |
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files an original answer in the venue in which the appeal is |
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pending. This subsection does not apply if Subsection (b) applies. |
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(d) The State Office of Administrative Hearings shall abate |
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the appeal if the administrative law judge, after a hearing, finds |
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that the association is entitled to an abatement because notice was |
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not provided as required by this section. An appeal is |
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automatically abated without the order of the administrative law |
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judge beginning on the 11th day after the date a plea in abatement |
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is filed under Subsection (c) if the plea in abatement: |
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(1) is verified and alleges that the association did |
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not receive the written notice as required by Subsection (a); and |
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(2) is not controverted by an affidavit filed by the |
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person before the 11th day after the date on which the plea in |
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abatement is filed. |
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(e) An abatement under Subsection (d) continues until the |
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60th day after the date that written notice is served in compliance |
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with Subsection (a). |
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Sec. 2210.561 (a) A person must file an appeal based in |
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whole or in part on an association policy not later than two years |
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after the day the cause of action accrues. The cause of action |
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accrues on the date of the loss. |
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(b) Civil Practices and Remedies Code Sec. 33.004 (e) does |
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not apply to a claim, civil action or appeal against or involving |
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the association, an officer agent or employee of the association, |
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or anyone acting on behalf of the association. |
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(c) A person is barred from filing an appeal or an original |
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civil action against the association, an officer, agent or employee |
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of the association, or anyone acting on behalf of association more |
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than four years of the date of the loss. This subsection is |
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intended as a statute of repose so that all claims of any type or |
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description must be brought within four years or they are time |
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barred. |
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(d) An appeal must be filed with the association within one |
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year of the date the right to file the appeal accrued. |
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Sec. 2210.562. STATE OF DISASTER. (a) When the Governor |
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issues a Declaration of State of Disaster pursuant to Gov. Code Sec. |
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418.014 then the Commissioner of Insurance shall toll the |
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application of Chapters 541 and 542 to the association. (b) The |
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Commissioner's authority under this section is limited (1) to the |
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geographical area identified in the Declaration and (2) for the |
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duration of the Declaration. |
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SECTION 2. EFFECTIVE DATE. (a) This Act takes effect |
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immediately if it receives a vote of two-thirds of all the members |
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elected to each house, as provided by Section 39, Article III, Texas |
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Constitution. If this Act does not receive the vote necessary for |
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immediate effect, this Act takes effect September 1, 2011. |
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(b) The change in law made by this Act applies only to an |
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appeal from a decision of the Texas Windstorm Insurance Association |
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made on or after January 1, 2012. An appeal from a decision of that |
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association made before January 1, 2012, applies to the law as it |
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existed immediately before the effective date of this Act, and that |
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law is continued in effect for that purpose. |
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(c) This Act, applies to all claims filed with the Texas |
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Windstorm Insurance Association on or after the effective date of |
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the Act. |