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A BILL TO BE ENTITLED
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AN ACT
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relating to the confidentiality of information obtained by or |
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disclosed to the Texas Department of Insurance. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 32, Insurance Code, is amended by adding |
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Subchapter F to read as follows: |
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SUBCHAPTER F. CONFIDENTIALITY OF INFORMATION |
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Sec. 32.201. CONFIDENTIALITY OF CERTAIN INFORMATION. (a) |
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This section applies to information, including documents and copies |
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of documents, whether in written or electronic format, that is: |
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(1) included in a final or preliminary examination |
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report or investigation under Chapter 401, 751, or 823; |
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(2) obtained by or disclosed to the commissioner or |
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department in the course of an examination under Chapter 401 or 751; |
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(3) disclosed to the commissioner or another person in |
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the course of an examination or investigation under Subchapter H, |
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Chapter 823; |
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(4) reported under Subchapter B, Chapter 823; |
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(5) disclosed under Section 823.010; |
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(6) obtained through an enterprise risk report under |
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Section 823.0595; |
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(7) obtained in response to a request for information |
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from the department made under Section 38.001; or |
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(8) obtained by or disclosed to the department and |
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that is confidential and exempt from disclosure under Chapter 552, |
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Government Code. |
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(b) The information described by Subsection (a), including |
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information in the possession of the National Association of |
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Insurance Commissioners under this section, is confidential and |
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privileged for all purposes, including for purposes of: |
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(1) Chapter 552, Government Code; |
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(2) a response to a subpoena; or |
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(3) discovery or admissibility in evidence in a civil |
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action. |
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(c) Except as provided by Subsections (d) and (e), |
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confidential information may not be disclosed without the prior |
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written consent of the insurer, agent, or other individual or |
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entity to which it pertains. |
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(d) The commissioner may publish all or any part of a |
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preliminary or final examination report in the manner that the |
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commissioner considers appropriate if the commissioner, after |
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giving the insurer and its affected affiliates notice and an |
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opportunity to be heard, determines that the interests of |
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policyholders or the public will be served by the publication of the |
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preliminary or final examination report. |
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(e) Except as provided by Subsection (f), if the recipient |
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of documents or other information agrees in writing to maintain the |
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confidential and privileged status of the documents or other |
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information and verifies in writing the legal authority to maintain |
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the confidential and privileged status of the documents or |
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information, the commissioner or designated person in the |
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department may disclose the information to any of the following |
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individuals or entities functioning in an official capacity: |
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(1) a commissioner of insurance or an insurance |
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department of another state if: |
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(A) the other state has confidentiality laws |
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applicable to the requested information substantially similar to |
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the laws of this state; |
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(B) the commissioner or other similar officer of |
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the other state has a legal duty to obtain the information; and |
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(C) the information pertains to an insurer, |
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affiliated group of insurers, agent, or other individual or entity |
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that operates in the other state; |
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(2) an authorized law enforcement official of this |
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state, another state, or the United States; |
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(3) a prosecuting attorney of a municipality, county, |
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or judicial district of this state, another state, or the United |
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States; |
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(4) the attorney general; |
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(5) a grand jury; |
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(6) a member of a supervisory college described by |
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Section 823.0145 if: |
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(A) the member is an insurance regulatory |
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official of another country that has confidentiality laws |
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applicable to the requested information substantially similar to |
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the laws of this state; |
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(B) the member has a legal duty to obtain the |
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information; |
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(C) the information pertains to an insurer, |
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affiliated group of insurers, agent, or other individual or entity |
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that operates in the country of the member; |
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(D) the member is from a country that has |
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established relationships, by treaty or otherwise, with the United |
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States, including written agreements to maintain and protect the |
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confidential or privileged nature of any information shared; |
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(E) a written agreement described by Paragraph |
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(D) is enforceable in the United States or provides for sufficient |
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procedures in the foreign country of the member that permit the |
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individual or entity to receive prompt notice if any information |
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disclosed under this subsection is subject to a request for |
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disclosure or subpoena for disclosure or production; and |
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(F) the member agrees to give consent to |
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intervention by the individual or entity in any judicial or |
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administrative proceeding in which the member may be required to |
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disclose confidential information shared with the member in |
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accordance with this section; and |
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(7) the National Association of Insurance |
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Commissioners and its affiliates and subsidiaries, subject to |
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Subsection (g). |
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(f) Notwithstanding Subsection (e), the commissioner may |
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share confidential and privileged information reported under |
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Section 823.0595 or confidential information obtained during the |
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course of an examination with the commissioner of insurance or |
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other similar officer of another state only if: |
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(1) the other state has a statute or rule |
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substantially similar to Subsection (e); and |
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(2) the commissioner or other similar officer of the |
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other state agrees in writing not to disclose the information. |
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(g) The commissioner shall enter into written agreements |
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with the National Association of Insurance Commissioners that |
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comply with the requirements of Subsection (e) regarding the |
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sharing and use of information provided under this section. An |
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agreement entered into under this subsection must: |
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(1) specify procedures and protocols regarding the |
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confidentiality and security of information shared with the |
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National Association of Insurance Commissioners and its affiliates |
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and subsidiaries under this chapter, including: |
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(A) procedures and protocols for sharing by the |
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National Association of Insurance Commissioners with other states, |
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federal regulators, or international insurance regulatory |
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authorities; and |
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(B) requirements that procedures and protocols |
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for sharing information with international insurance regulatory |
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authorities comply with Section 32.202; |
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(2) specify that ownership of information shared with |
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the National Association of Insurance Commissioners and its |
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affiliates and subsidiaries under this chapter remains with the |
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commissioner and that use of the information by the National |
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Association of Insurance Commissioners is subject to the direction |
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of the commissioner; |
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(3) require prompt notice to an insurer, affiliated |
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group of insurers, agent, or other individual or entity whose |
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confidential information is in the possession of the National |
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Association of Insurance Commissioners under this chapter that the |
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information is subject to a request or subpoena to the National |
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Association of Insurance Commissioners for disclosure or |
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production; and |
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(4) require the National Association of Insurance |
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Commissioners and its affiliates and subsidiaries to give consent |
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to intervention by an insurer, affiliated group of insurers, agent, |
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or other individual or entity in a judicial or administrative |
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action in which the National Association of Insurance Commissioners |
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and its affiliates and subsidiaries may be required to disclose |
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confidential information about the insurer, affiliated group of |
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insurers, agent, or other individual or entity shared with the |
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National Association of Insurance Commissioners and its affiliates |
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and subsidiaries under this chapter. |
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(h) Confidential information obtained by the department |
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from another state, an agency of the United States, the National |
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Association of Insurance Commissioners, or a foreign country or |
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international insurance regulatory official must be maintained in |
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the same confidential and privileged status it had under the laws of |
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the jurisdiction that shared the information with the department. |
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The department may enter into information sharing agreements with |
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other states and jurisdictions provided that the requirements of |
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this section and Section 32.202, if applicable, are met. |
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Information obtained from another state, an agency of the United |
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States, or other jurisdiction or the National Association of |
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Insurance Commissioners is confidential and not subject to |
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disclosure under Chapter 552, Government Code. |
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(i) This section may not be construed to prevent the |
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commissioner from using information described by Subsection (a) in |
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the furtherance of a legal or regulatory action relating to the |
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administration of this code. |
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(j) The commissioner remains solely responsible for the |
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administration, execution, and enforcement of this chapter, and the |
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commissioner's sharing of information does not constitute a |
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delegation of regulatory or rulemaking authority. |
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Sec. 32.202. DISCLOSING CONFIDENTIAL INFORMATION TO |
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FOREIGN COUNTRIES AND INTERNATIONAL INSURANCE REGULATORY |
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AUTHORITIES. (a) Except as provided by Subsection (b), the |
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department may not disclose confidential information as described |
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by Section 32.201 to any foreign country or international insurance |
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regulatory authority without the prior written consent of the |
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insurer, affiliated group of insurers, agent, or other individual |
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or entity to which the information pertains. |
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(b) The commissioner may share information with a foreign |
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country or international insurance regulatory authority without |
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the prior notice described by Subsection (c) or the prior consent of |
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the insurer, affiliated group of insurers, agent, or other |
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individual or entity to which it pertains described by Subsection |
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(a) only if: |
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(1) the foreign country or international insurance |
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regulatory authority is a member of a supervisory college described |
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by Section 823.0145 and complies with the requirements in Section |
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32.201(e)(6); or |
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(2) the commissioner is required by a treaty of the |
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United States or federal law to provide the information. |
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(c) The commissioner may share information with a foreign |
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country or international insurance regulatory authority if the |
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commissioner, after giving the individual or entity to which the |
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information pertains prior notice and an opportunity to be heard, |
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determines that the interests of policyholders or the public will |
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be served by disclosure of information. The commissioner shall |
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establish in a written agreement before disclosure that: |
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(1) the foreign country or international insurance |
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regulatory authority of the other country has confidentiality laws |
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applicable to the requested information substantially similar to |
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the laws of this state; |
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(2) the international insurance regulatory authority |
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or the commissioner or other similar officer of the other country |
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has a legal duty to obtain the information; |
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(3) the insurer, affiliated group of insurers, agent, |
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or other individual or entity to which the information pertains |
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operates in the foreign country or the country of the international |
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insurance regulatory authority requesting disclosure of the |
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information; |
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(4) the foreign country or international insurance |
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regulatory authority has established relationships, by treaty or |
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otherwise, with the United States, including written agreements to |
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maintain and protect the confidential or privileged nature of any |
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information shared; |
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(5) the written agreement is enforceable in the United |
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States or provides for sufficient procedures in the foreign country |
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that permit the individual or entity to which the information |
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pertains to receive prompt notice if any information disclosed |
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under this subsection is subject to a request for disclosure or |
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subpoena for disclosure or production; and |
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(6) the foreign country or international insurance |
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regulatory authority agrees to give consent to intervention by the |
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individual or entity to which the information pertains in a |
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judicial or administrative proceeding in which the foreign country |
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or international insurance regulatory authority may be required to |
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disclose confidential information shared with the country or |
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authority under this section. |
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(d) A copy of any agreement with a foreign country or |
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international insurance regulatory authority disclosing |
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confidential information must be provided to an affected insurer, |
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affiliated group of insurers, agent, or other affected individual |
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or entity before disclosure of any confidential or privileged |
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information. The department may include the individual or entity |
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as a party to the written agreement. |
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Sec. 32.203. CONFLICT WITH OTHER LAW. To the extent of any |
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conflict, this subchapter controls over another provision of this |
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code. |
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SECTION 2. Section 32.023, Insurance Code, is amended to |
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read as follows: |
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Sec. 32.023. REPORTS TO OTHER STATES. Subject to the |
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requirements of Section 32.201 [On request], the department shall |
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provide to the insurance commissioner or other similar officer of |
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another state information relating to a company of this state that |
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does business in the other state if: |
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(1) the other state has enacted the substantial |
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provisions of the insurance laws of this state; [and] |
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(2) the commissioner or other similar officer has a |
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legal duty to obtain the information; and |
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(3) a request has been made for such information. |
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SECTION 3. Section 751.207(b), Insurance Code, is amended |
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to read as follows: |
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(b) This chapter does not prevent the commissioner from |
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disclosing [at any time] the contents of a final market conduct |
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examination report to the department, the insurance department of |
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any other state, or an agency of the federal government, if the |
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requirements of Section 32.201 have been met [department or agency
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receiving the report agrees in writing to maintain the information
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as confidential and in a manner consistent with this chapter]. |
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SECTION 4. Sections 751.252(a) and (c), Insurance Code, are |
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amended to read as follows: |
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(a) The commissioner may share documents, materials, or |
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other information obtained by or disclosed to the commissioner |
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under this chapter with other state, federal, and international |
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regulatory agencies and law enforcement authorities only as |
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provided by Sections 32.201 and 32.202 [if the recipient agrees to
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and has the legal authority to maintain the confidentiality and
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privileged status of the document, material, or other information]. |
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(c) Consistent with this section and Sections 32.201 and |
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32.202, the commissioner may enter into agreements governing the |
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sharing and use of information. |
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SECTION 5. The following laws are repealed: |
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(1) Section 751.207(c), Insurance Code; and |
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(2) Section 823.011, Insurance Code. |
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SECTION 6. This Act takes effect September 1, 2013. |