Bill Text: TX SB1431 | 2011-2012 | 82nd Legislature | Enrolled

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Bill Title: Relating to the functions of insurance holding company systems.

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2011-06-17 - Effective on 9/1/11 [SB1431 Detail]

Download: Texas-2011-SB1431-Enrolled.html

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S.B. No. 1431

AN ACT
relating to the functions of insurance holding company systems.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 823.002, Insurance Code, is amended by
adding Subdivisions (3-a), (3-b), and (4-a) and amending
Subdivision (6) to read as follows:
(3-a) "Divesting person" means a person who has
control of a domestic insurer and who intends to divest control of
the domestic insurer.
(3-b) "Divestiture" means an abandonment of control of
a domestic insurer by a divesting person that does not result in the
transfer of control to another person.
(4-a) "Enterprise risk" means any activity,
circumstance, event, or series of events involving one or more
affiliates of an insurer that, if not remedied promptly, is likely
to have a material adverse effect on the financial condition or
liquidity of the insurer or its insurance holding company system as
a whole, including anything:
(A) that would cause the insurer's risk-based
capital to fall into company action level; or
(B) that would cause the insurer to be in
hazardous financial condition.
(6) "Insurer" means any insurance company organized
under the laws of this state, a commercially domiciled insurer, or
an insurer authorized to engage in the business of insurance in this
state. The term includes a capital stock company, mutual company,
farm mutual insurance company, title insurance company, fraternal
benefit society, local mutual aid association, statewide mutual
assessment company, county mutual insurance company, Lloyd's plan,
reciprocal or interinsurance exchange, stipulated premium
insurance company, and group hospital service corporation. The
term does not include an agency, authority, or instrumentality of
the United States, its possessions and territories, the
Commonwealth of Puerto Rico, the District of Columbia, or a state[,
or an agency, authority, instrumentality,] or political
subdivision of a state.
SECTION 2. Section 823.010, Insurance Code, is amended by
amending Subsections (c) and (d) and adding Subsections (e) through
(h) to read as follows:
(c) Except as provided by Subsection (d), [After] the
disclaimer shall be deemed to have been allowed unless, not later
than 60 days after the receipt of a complete disclaimer, [is filed:
[(1) the insurer is not required to register or report
under Subchapter B because of a duty that arises out of the
insurer's relationship with the person unless] the commissioner
notifies the filing party that [disallows] the disclaimer is
disallowed[, in which event the duty to register or report begins on
the date of the disallowance; and
[(2) the person is not required to comply with
Sections 823.154, 823.155, 823.159, and 823.160 unless the
commissioner disallows the disclaimer].
(d) Notwithstanding Subsection (c), if the commissioner at
any time determines that the information disclosed in the
disclaimer is incomplete or inaccurate or is no longer accurate,
the [The] commissioner may disallow the disclaimer [only after:
[(1) providing to each party in interest notice of and
the opportunity to be heard on the disallowance; and
[(2) making specific findings of fact to support the
disallowance].
(e) If the commissioner disallows a disclaimer, the party
who filed the disclaimer may request an administrative hearing.
The commissioner shall grant the request for the hearing.
(f) Except as provided by Subsection (h), if the
commissioner allows a disclaimer:
(1) the insurer is not required to register or report
under Subchapter B due to a duty arising from the insurer's
relationship with the party who filed the disclaimer; and
(2) the party who filed the disclaimer is not required
to comply with Section 823.154, 823.155, 823.159, or 823.160.
(g) If the commissioner allows a disclaimer, the
commissioner at the same time may also waive another provision of
this chapter with relation to the party who filed the disclaimer.
The commissioner may require reasonable controls and safeguards
that are consistent with the purposes of this chapter in granting a
waiver under this subsection.
(h) If the commissioner disallows a disclaimer under
Subsection (d):
(1) effective on the date of the disallowance, the
insurer shall register and report as required by Subchapter B; and
(2) the party who filed the disclaimer shall comply
with Sections 823.154, 823.155, 823.159, and 823.160.
SECTION 3. Section 823.011, Insurance Code, is amended by
amending Subsections (a), (b), and (d) and adding Subsections (e)
through (i) to read as follows:
(a) This section applies only to information, including
documents and copies of documents, that is:
(1) reported under Subchapter B; [or]
(2) disclosed to the commissioner under Section
823.010; or
(3) obtained by or disclosed to the commissioner or
another person in the course of an examination or investigation
under Subchapter H.
(b) The information shall be confidential and privileged
for all purposes [treated confidentially and is not subject to
subpoena]. Except as provided by Subsections (c) and (d), the
information may not be disclosed without the prior written consent
of the insurer to which it pertains.
(d) Except as provided by Subsection (e), if the recipient
of documents or other information agrees in writing to maintain the
confidential and privileged status of the documents or other
information, and verifies in writing the legal authority to
maintain the confidential and privileged status of the documents or
information, the [The] commissioner or another person may disclose
the information to any of the following entities functioning in an
official capacity:
(1) a commissioner of insurance or an insurance
department of another state;
(2) an authorized law enforcement official;
(3) a district attorney of this state;
(4) the attorney general; [or]
(5) a grand jury;
(6) members of a supervisory college described by
Section 823.0145; or
(7) the National Association of Insurance
Commissioners and its affiliates and subsidiaries.
(e) Notwithstanding Subsection (d), the commissioner may
share confidential and privileged information reported under
Section 823.0595 only with the commissioner of insurance of a state
that has a statute or rule substantially similar to Subsection (d)
who agrees in writing not to disclose the information.
(f) Information described by Subsection (a), including
information in the possession of the National Association of
Insurance Commissioners under this section, is confidential and
privileged for all purposes, including for purposes of:
(1) Chapter 552, Government Code;
(2) a response to a subpoena; or
(3) discovery or admissibility in evidence in a civil
action.
(g) The commissioner shall enter into written agreements
with the National Association of Insurance Commissioners that
comply with the requirements of Subsection (d) regarding the
sharing and use of information provided under this chapter. An
agreement entered into under this subsection must:
(1) specify procedures and protocols regarding the
confidentiality and security of information shared with the
National Association of Insurance Commissioners and its affiliates
and subsidiaries under this chapter, including procedures and
protocols for sharing by the National Association of Insurance
Commissioners with other state, federal, or international
regulators;
(2) specify that ownership of information shared with
the National Association of Insurance Commissioners and its
affiliates and subsidiaries under this chapter remains with the
commissioner, and that use of the information by the National
Association of Insurance Commissioners is subject to the direction
of the commissioner;
(3) require prompt notice to an insurer whose
confidential information is in the possession of the National
Association of Insurance Commissioners under this chapter that the
information is subject to a request or subpoena to the National
Association of Insurance Commissioners for disclosure or
production; and
(4) require the National Association of Insurance
Commissioners and its affiliates and subsidiaries to give consent
to intervention by an insurer in any judicial or administrative
action in which the National Association of Insurance Commissioners
and its affiliates and subsidiaries may be required to disclose
confidential information about the insurer shared with the National
Association of Insurance Commissioners and its affiliates and
subsidiaries under this chapter.
(h) This section may not be construed to prevent the
commissioner from using information described by Subsection (a) in
the furtherance of a legal or regulatory action relating to the
administration of this code.
(i) The commissioner remains solely responsible for the
administration, execution, and enforcement of this chapter, and the
commissioner's sharing of information does not constitute a
delegation of regulatory or rulemaking authority.
SECTION 4. Subchapter A, Chapter 823, Insurance Code, is
amended by adding Section 823.0145 to read as follows:
Sec. 823.0145. SUPERVISORY COLLEGES. (a) With respect to
any insurer registered under Subchapter B, and in accordance with
Subsection (c), the commissioner may participate in a supervisory
college for a domestic insurer that is part of an insurance holding
company system with international operations in order to determine
the insurer's compliance with this chapter. The commissioner may:
(1) initiate the establishment of a supervisory
college;
(2) clarify the membership and participation of other
entities in the supervisory college;
(3) clarify the functions of the supervisory college
and the role of other entities in the supervisory college;
(4) establish a group-wide supervisor;
(5) coordinate the ongoing activities of the
supervisory college, including meetings, regulatory activities,
and processes for information sharing; and
(6) establish a crisis management plan.
(b) In order to assess the business strategy, financial
position, legal and regulatory position, risk exposure, risk
management and governance processes, and as part of the examination
of individual insurers under Subchapter H, the commissioner may
participate in a supervisory college with other entities that
regulate the insurer or its affiliates, including other state,
federal, and international regulatory entities. The commissioner
may enter into agreements under Section 823.011 to cooperate with
other regulatory entities. Nothing in this section shall be
construed as delegating to the supervisory college the
commissioner's authority to regulate the insurer or its affiliates.
(c) A registered insurer subject to this section shall pay
the reasonable expenses, including reasonable travel expenses, of
the commissioner's participation in a supervisory college under
Subsection (b). For purposes of this section, a supervisory
college may be convened as either a temporary or permanent forum for
communication and cooperation between the entities that regulate
the insurer or its affiliates, and the commissioner may establish a
regular assessment to the insurer for the payment of expenses
related to the regulation of the insurer.
SECTION 5. Section 823.052, Insurance Code, is amended by
amending Subsections (b) and (c) and adding Subsections (c-1) and
(c-2) to read as follows:
(b) The registration statement must be in a format
prescribed by the National Association of Insurance Commissioners
or adopted by rule of the commissioner and contain current
information about:
(1) the identity and relationship of each affiliate in
the insurance holding company system of which the insurer is a part;
(2) the capital structure, general financial
condition, and ownership and management of the insurer, the
insurer's holding company, the insurer's subsidiaries, and, if the
commissioner considers the information necessary, any of the
insurer's other affiliates; and
(3) any pledge of stock of the insurer or a subsidiary
or controlling affiliate of the insurer for a loan made to a member
of the insurer's insurance holding company system.
(c) The registration statement must also contain
information about:
(1) each outstanding loan the insurer makes to an
affiliate of the insurer or an affiliate makes to the insurer;
(2) each purchase, sale, or exchange of securities or
other investment between the insurer and an affiliate of the
insurer;
(3) each purchase, sale, or exchange of assets between
the insurer and an affiliate of the insurer;
(4) each management and service contract or
cost-sharing arrangement between the insurer and an affiliate of
the insurer;
(5) each reinsurance agreement between the insurer and
an affiliate of the insurer that covers one or more lines of
insurance of the ceding company;
(6) each agreement between the insurer and an
affiliate of the insurer to consolidate federal income tax returns;
(7) each transaction between the insurer and an
affiliated financial institution;
(8) each transaction between the insurer and an
affiliate of the insurer that is not in the ordinary course of
business;
(9) each guarantee or undertaking, other than an
insurance contract entered into in the ordinary course of the
insurer's business, for the benefit of an affiliate of the insurer
that results in a contingent exposure of the insurer's assets to
liability;
(10) each dividend or distribution to the insurer's
shareholders; [and]
(11) each transaction between the insurer and an
affiliate of the insurer not specified by this subsection that is
subject to Section 823.102, 823.103, or 823.104;
(12) the corporate governance and internal control
responsibilities of the insurer's board of directors, including a
statement that:
(A) the insurer's senior management or officers
have approved and implemented, and continue to maintain and
monitor, corporate governance and internal control procedures; and
(B) the insurer's board of directors oversees
corporate governance and internal controls; and
(13) any other information that the commissioner
requires by rule.
(c-1) On request of the commissioner, an insurer shall
include with the statement a copy of all financial statements for
the insurance holding company system and all affiliates of the
holding company system, including annual audited financial
statements filed with the United States Securities and Exchange
Commission pursuant to the Securities Act of 1933 (15 U.S.C.
Section 77a et seq.) or the Securities Exchange Act of 1934 (15
U.S.C. Section 78a et seq.). An insurer may not be required to
submit financial statements for an affiliate that is privately
owned by not more than five security holders, each of whom is an
individual, unless the commissioner determines that the operations
of the affiliate may materially affect the operations, management,
or financial condition of an insurer in a holding company system.
An affiliate may seek judicial review of a request for financial
statements under this subsection.
(c-2) An insurer required by the commissioner to submit
financial statements under this section, Section 823.201, or
Section 823.351 may satisfy the requirement by submitting to the
commissioner:
(1) the financial statements that the insurer's parent
corporation most recently filed with the United States Securities
and Exchange Commission; and
(2) if the insurer is required to submit financial
statements for an affiliate, the financial statements that the
affiliate most recently filed with an agency that regulates the
affiliate.
SECTION 6. Subchapter B, Chapter 823, Insurance Code, is
amended by adding Section 823.0595 to read as follows:
Sec. 823.0595. ENTERPRISE RISK REPORT. (a) Except as
provided by Subsections (d) and (f), the ultimate controlling
person, as defined by Section 823.055, of each insurer required to
file an annual registration shall file with the registration an
annual enterprise risk report. The report must, to the best of the
ultimate controlling person's knowledge, identify the material
risks within the insurance holding company system that may pose
enterprise risk to the insurer. The report must be filed with the
lead state commissioner of the insurance holding company system, as
determined by the commissioner. In determining the lead state
commissioner, the commissioner shall consider the procedures
adopted by the National Association of Insurance Commissioners.
(b) The ultimate controlling person of an insurer shall file
the first enterprise risk report required by this section with the
first annual registration statement due after:
(1) July 1, 2013, if the total direct or assumed annual
premiums of the insurer were $5 billion or more during the preceding
12-month period;
(2) January 1, 2014, if the total direct or assumed
annual premiums of the insurer were more than $1 billion but less
than $5 billion during the preceding 12-month period;
(3) January 1, 2015, if the total direct or assumed
annual premiums of the insurer were more than $500 million but less
than $1 billion during the preceding 12-month period; or
(4) January 1, 2016, if the total direct or assumed
annual premiums of the insurer were $300 million or more but less
than $500 million during the preceding 12-month period.
(c) Subsection (b) and this subsection expire January 2,
2015.
(d) Except as provided by Subsection (e), the ultimate
controlling person of an insurer with total direct or assumed
annual premiums of less than $300 million is not required to submit
an enterprise risk report under Subsection (a).
(e) Regardless of total direct or assumed annual premium,
the ultimate controlling person of an insurer that is not in
compliance with applicable risk-based capital standards or that is
otherwise in hazardous condition, as determined by the
commissioner, shall file an enterprise risk report required by
Subsection (a) as directed by the commissioner.
(f) An insurer or health maintenance organization that in
the preceding calendar year had direct written and assumed premiums
of more than $300 million but less than $500 million may request an
exemption from the reporting requirements of Subsection (a) by
filing with the commissioner a written statement describing the
undue financial or organizational hardship the insurer or health
maintenance organization would suffer as a result of complying with
Subsection (a). The commissioner may grant the exemption if the
commissioner finds that compliance with Subsection (a) would impose
an undue financial or organizational hardship on the insurer or
health maintenance organization.
(g) The ultimate controlling person of an insurance holding
company system is not required to submit an enterprise risk report
under Subsection (a) if:
(1) the ultimate controlling person:
(A) has owned a controlling interest in the
voting securities of an insurer described by Subdivision (2) since
September 1, 1991, or before;
(B) is a charitable foundation, trust, or both;
and
(C) has not filed or received a disclaimer under
Section 823.010; and
(2) the insurer in which the ultimate controlling
person owns a controlling interest:
(A) was organized under the laws of this state
before January 1, 1910;
(B) is registered under this subchapter;
(C) has issued equity shares of stock registered
under Section 12, Securities Exchange Act of 1934 (15 U.S.C.
Section 781);
(D) on September 1, 2011, owns or controls an
insurance company subsidiary that is part of the same insurance
holding company system as the insurer; and
(E) files with the commissioner all registration
statements and information relating to material changes of the
insurance holding company system required under this subchapter,
including the financial statements of the ultimate controlling
person described by Subdivision (1).
(h) An exemption under Subsection (g) applies only for the
period during which the ultimate controlling person described by
Subsection (g)(1) satisfies the requirements of Subsection (g) and
expires on the date of a change in control of the insurer described
by Subsection (g)(2) involving at least 50 percent of the voting
securities of the insurer. An insurance holding company system may
reapply for an exemption under Subsection (g) after the change in
control if the system continues to meet the requirements of
Subsection (g).
(i) An ultimate controlling person described by Subsection
(g)(1) and an insurer described by Subsection (g)(2) shall respond
to reasonable inquiries from the department related to the
administration of Chapter 404.
SECTION 7. Section 823.060, Insurance Code, is amended to
read as follows:
Sec. 823.060. VIOLATION OF SUBCHAPTER. The failure to file
a registration statement or an amendment to a registration
statement, or an enterprise risk report, within the time specified
for filing the statement, [or] amendment, or report, as required by
this subchapter, is a violation of this subchapter.
SECTION 8. The heading to Section 823.101, Insurance Code,
is amended to read as follows:
Sec. 823.101. STANDARDS FOR TRANSACTION WITHIN AN INSURANCE
HOLDING COMPANY SYSTEM [WITH AFFILIATE].
SECTION 9. Section 823.101, Insurance Code, is amended by
amending Subsection (a) and adding Subsection (b-1) to read as
follows:
(a) This section applies only to a material transaction
within an insurance holding company system to which an [between a
registered insurer and an affiliate of the] insurer subject to a
registration under Section 823.052 is a party.
(b-1) An agreement, including an agreement for
cost-sharing, services, or management, must include all provisions
required by rule of the commissioner.
SECTION 10. Section 823.102, Insurance Code, is amended by
amending Subsection (a) and adding Subsections (d) and (e) to read
as follows:
(a) This section applies only to a sale, purchase, exchange,
loan or other extension of credit, or investment between a domestic
insurer and any person in the insurer's insurance holding company
system, including an amendment or modification of an affiliate
agreement previously filed under this section, that involves more
than the lesser of 5 percent of the insurer's admitted assets or 25
percent of the insurer's surplus, as of December 31 of the year
preceding the year in which the transaction occurs.
(d) The notice described by Subsection (c) must include:
(1) the reasons for entering into or changing the
transaction; and
(2) the financial impact of the transaction on the
domestic insurer.
(e) Not later than the 30th day after the termination of a
previously filed agreement, the domestic insurer shall give notice
of the termination to the commissioner.
SECTION 11. Section 823.103, Insurance Code, is amended by
amending Subsection (a) and adding Subsections (e) and (f) to read
as follows:
(a) This section applies only to:
(1) a sale, purchase, exchange, loan or other
extension of credit, or investment between a domestic insurer and
any person in the insurer's insurance holding company system,
including an amendment or modification of an affiliate agreement
previously filed under this section:
(A) that involves more than the lesser of
one-half of one percent of the insurer's admitted assets or five
percent of the insurer's surplus, as of December 31 of the year
preceding the year in which the transaction occurs; and
(B) the approval of which is not required under
Section 823.102;
(2) a reinsurance agreement, including a reinsurance
treaty or pooling agreement, or an amendment or modification of an
agreement previously filed under this section, between a domestic
insurer and any person in the insurer's holding company system [or a
modification of such an agreement];
(3) a rendering of services between a domestic insurer
and any person in the insurer's holding company system on a regular
or systematic basis, including a tax-allocation agreement, or an
amendment or modification of an agreement previously filed under
this section; or
(4) any material transaction between a domestic
insurer and any person in the insurer's holding company system that
is specified by rule and that the commissioner determines may
adversely affect the interests of the insurer's policyholders or of
the public, including an amendment or modification of an agreement
previously filed under this section.
(e) The notice described by Subsection (c) must include:
(1) the reasons for entering into or changing the
transaction; and
(2) the financial impact of the transaction on the
domestic insurer.
(f) Not later than the 30th day after the termination of a
previously filed agreement, the domestic insurer shall give notice
of the termination to the commissioner.
SECTION 12. Section 823.154, Insurance Code, is amended to
read as follows:
Sec. 823.154. REQUIREMENTS FOR ACQUISITION OR EXERCISE OF
CONTROL OR DIVESTITURE OF DOMESTIC INSURER. (a) Before a person
who directly or indirectly controls, or after the acquisition would
directly or indirectly control, a domestic insurer may in any
manner acquire a voting security of a domestic insurer or before a
person may otherwise acquire control of a domestic insurer or
exercise any control over a domestic insurer, or before a person may
initiate a divestiture of control of a domestic insurer:
(1) the acquiring person shall file with the
commissioner a statement that satisfies the requirements of
Subchapter E; [and]
(2) the acquisition or divestiture of control must be
approved by the commissioner in accordance with this subchapter;
and
(3) if the person is initiating a divestiture of
control, the divesting person shall file with the commissioner a
notice of divestiture on a form adopted by the National Association
of Insurance Commissioners or adopted by the commissioner by rule.
(b) The acquiring person or divesting person shall send a
copy of the statement filed under this section to the domestic
insurer.
(c) A statement or notice filed under this section must be
filed not later than the 60th day before the proposed effective date
of the acquisition or change of control or divestiture and is
subject to public inspection at the office of the commissioner.
(d) Notwithstanding Subsection (a), a divesting person is
not required to provide the commissioner with notice of divestiture
required by Subsection (a)(3) if an acquiring person submits the
statement required by Subsection (a)(1) and that acquisition is
approved by the commissioner.
SECTION 13. Section 823.157, Insurance Code, is amended to
read as follows:
Sec. 823.157. APPROVAL OF ACQUISITION, CHANGE, OR
DIVESTITURE OF CONTROL. (a) The commissioner shall approve or
deny an acquisition, [or] change, or divestiture of control for
which a statement or notice is filed under Section 823.154 not later
than the 60th day after the date the statement required by that
section is filed. The 60-day period may be waived by the person
filing the statement or notice required by Section 823.154 and the
domestic insurer. On the request of either the person filing the
statement or notice required by Section 823.154, or the domestic
insurer, the commissioner shall hold a hearing on a denial.
(b) In considering whether to approve or deny, the
commissioner shall consider whether:
(1) immediately on the acquisition, [or] change, or
divestiture of control the domestic insurer would not be able to
satisfy the requirements for the issuance of a new certificate of
authority to write the line or lines of insurance for which the
insurer holds a certificate of authority;
(2) the effect of the acquisition, [or] change, or
divestiture of control would be substantially to lessen competition
in a line or subclassification lines of insurance in this state or
tend to create a monopoly in a line or subclassification lines of
insurance in this state;
(3) the financial condition of the acquiring person
may jeopardize the financial stability of the domestic insurer or
prejudice the interest of the domestic insurer's policyholders;
(4) the acquiring person has a plan or proposal to
liquidate the domestic insurer or cause the insurer to declare
dividends or make distributions, sell any of its assets,
consolidate or merge with any person, make a material change in its
business or corporate structure or management, or enter into a
material agreement, arrangement, or transaction of any kind with
any person, and that the plan or proposal is unfair, prejudicial,
hazardous, or unreasonable to the insurer's policyholders and not
in the public interest;
(5) due to a lack of competence, trustworthiness,
experience, and integrity of the persons who would control the
operation of the domestic insurer, the acquisition or change of
control would not be in the interest of the insurer's policyholders
and the public;
(5-a) the divestiture of control may jeopardize the
financial stability of the domestic insurer or prejudice the
interest of the domestic insurer's policyholders and other
claimants; or
(6) the acquisition, [or] change, or divestiture of
control would violate the law of this or another state or the United
States.
(c) If a proposed acquisition, change, or divestiture of
control will require the approval of more than one commissioner,
the commissioner may participate in a public hearing referred to in
this chapter held on a consolidated basis on request of the person
filing the statement required by Section 823.154. The person
filing the statement under Section 823.154 shall file the statement
with the National Association of Insurance Commissioners within
five days of making the request for a public hearing. A hearing
conducted on a consolidated basis shall be public and shall be held
within the United States before the commissioners of the states in
which the insurers are domiciled. The commissioners shall hear and
receive evidence at the hearing. The commissioner may attend the
hearing in person or by telecommunication.
(d) This section does not require the commissioner to hold a
hearing before approving or denying an acquisition, change, or
divestiture of control.
SECTION 14. Section 823.201, Insurance Code, is amended by
adding Subsections (d) and (e) to read as follows:
(d) The acquiring person shall agree to provide the annual
enterprise risk report required by Section 823.0595 for as long as
the acquiring person maintains control of the insurer.
(e) The acquiring person and all subsidiaries within the
acquiring person's control in the insurance holding company system
shall provide information to the commissioner on request of the
commissioner as the commissioner deems necessary to evaluate
enterprise risk to the insurer.
SECTION 15. Section 823.205, Insurance Code, is amended by
adding Subsection (c) to read as follows:
(c) An insurer required to file information under Section
823.154 may satisfy the requirement of Section 823.052(c-1) by
providing the commissioner with the most recently filed parent
corporation reports that have been filed with the United States
Securities and Exchange Commission, if required by the
commissioner.
SECTION 16. Section 823.351, Insurance Code, is amended by
amending Subsections (a) and (b) and adding Subsections (a-1) and
(b-1) to read as follows:
(a) Subject to Section 823.352, the commissioner may order
an insurer registered under Subchapter B to produce records, books,
or other information papers in the possession of the insurer or an
affiliate of the insurer that are necessary to ascertain the
financial condition or legality of conduct of the insurer,
including the enterprise risk to the insurer by the ultimate
controlling party, or by any entity or combination of entities
within the insurance holding company system, or by the insurance
holding company system on a consolidated basis.
(a-1) To determine compliance with this chapter, the
commissioner may order any insurer registered under Subchapter B to
produce information not in the possession of the insurer if the
insurer can obtain access to the information pursuant to
contractual relationships, statutory obligations, or other
methods. In the event that the insurer is unable to obtain the
information requested by the commissioner, the insurer shall
provide the commissioner with a detailed explanation of the reason
why the insurer is unable to obtain the information, and the
identity of the holder of information. If it appears to the
commissioner that the insurer's explanation is without merit, the
commissioner may after notice and hearing:
(1) require the insurer to pay a penalty of not less
than $100 for each day the insurer delays producing the
information; or
(2) suspend or revoke the insurer's license.
(b) If an insurer fails to comply with an order under this
section [Subsection (a)], the commissioner by order may require the
examination of each holding company of the insurer and each
controlled person or affiliate in the insurer's insurance holding
company system if the commissioner has cause to believe that:
(1) the operations of that person may materially
affect the operations, management, or financial condition of any
controlled insurer in that system; and
(2) the commissioner is unable to obtain relevant
information from the controlled insurer.
(b-1) The commissioner may issue subpoenas, administer
oaths, and examine under oath any person for purposes of
determining compliance with this section. On the failure or
refusal of a person to obey a subpoena, the commissioner may
petition a court of competent jurisdiction, and on proper showing,
the court may enter an order compelling the witness to appear and
testify or produce documentary evidence. Failure to obey the court
order is punishable as contempt of court. A person shall attend as
a witness at the place specified in the subpoena, when subpoenaed,
at any location in this state. The person is entitled to the same
fees and mileage, if claimed, as a witness in district court. Fees,
mileage, and actual expenses necessarily incurred in securing the
attendance of a witness shall be itemized and charged against, and
be paid by, the insurer being examined.
SECTION 17. Section 823.452, Insurance Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) If the commissioner determines that a person has
committed a violation of Subchapter D that prevents the full
understanding of the enterprise risk to the insurer by affiliates
or by the insurance holding company system, the violation may serve
as an independent basis for disapproving dividends or distributions
and for issuing an order under Chapter 404 or Chapter 441.
SECTION 18. (a) Subject to Subsection (b) of this section,
the Texas Department of Insurance may not implement Section
823.0595, Insurance Code, as added by this Act, until the 180th day
after the date the commissioner of insurance determines that the
National Association of Insurance Commissioners has completed an
enterprise risk form and has proposed a master confidentiality
agreement and places notice of that determination in the Texas
Register.
(b) An insurer is not required to file an enterprise risk
report under Section 823.0595, Insurance Code, as added by this
Act, until January 1, 2014.
SECTION 19. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1431 passed the Senate on
April 28, 2011, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendment on May 23, 2011, by the
following vote: Yeas 30, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1431 passed the House, with
amendment, on May 13, 2011, by the following vote: Yeas 124,
Nays 3, four present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor