Law:Title 5. Protection Of Consumer Interests. Subtitle C. Deceptive, Unfair, And Prohibited Practices (Texas)

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Subtitle C. Deceptive, Unfair, And Prohibited Practices

Contents

Chapter 541. Unfair Methods Of Competition And Unfair Or Deceptive Acts Or Practices

Subchapter A. General Provisions

Section  541.001.  Purpose.

The purpose of this chapter is to regulate trade practices in the business of insurance by:

(1)  defining or providing for the determination of trade practices in this state that are unfair methods of competition or unfair or deceptive acts or practices; and

(2)  prohibiting those trade practices.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.002.  Definitions.

In this chapter:

(1)  "Knowingly" means actual awareness of the falsity, unfairness, or deceptiveness of the act or practice on which a claim for damages under Subchapter D is based. Actual awareness may be inferred if objective manifestations indicate that a person acted with actual awareness.

(2)  "Person" means an individual, corporation, association, partnership, reciprocal or interinsurance exchange, Lloyd's plan, fraternal benefit society, or other legal entity engaged in the business of insurance, including an agent, broker, adjuster, or life and health insurance counselor.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.003.  Unfair Methods Of Competition And Unfair Or Deceptive Acts Or Practices Prohibited.

A person may not engage in this state in a trade practice that is defined in this chapter as or determined under this chapter to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.004.  Venue For Actions Involving Department Or Commissioner.

An action under this chapter in which the department or commissioner is a party must be brought in a district court in Travis County.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.005.  Applicability To Risk Retention Or Purchasing Group.

(a) A risk retention group or purchasing group described by Subchapter B, Chapter 2201, or Section 2201.251 that is not chartered in this state may not engage in a trade practice in this state that is defined as unlawful under this chapter.

(b)  A risk retention group or purchasing group is subject to this chapter and rules adopted under this chapter.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 730, Sec. 2D.005, eff. April 1, 2009.



Section  541.006.  Prohibited Content Of Certain Insurance Policies.

Notwithstanding any other provision of this code, it is unlawful for an insurer engaged in the business of life, accident, or health insurance to issue or deliver in this state a policy containing the words "Approved by the Texas Department of Insurance" or words of a similar meaning.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.007.  Immunity From Prosecution.

(a) This section applies to a person who requests to be excused from attending and testifying at a hearing or from producing books, papers, records, correspondence, or other documents at the hearing on the ground that the testimony or evidence may:

(1)  tend to incriminate the person; or

(2)  subject the person to a penalty or forfeiture.

(b)  A person who, notwithstanding a request described by Subsection (a), is directed to provide the testimony or produce the documents shall comply with that direction. Except as provided by Subsection (c), the person may not be prosecuted or subjected to a penalty or forfeiture for or on account of a transaction, matter, or thing about which the person testifies or produces documents, and the testimony or documents produced may not be received against the person in a criminal action, investigation, or proceeding.

(c)  A person who complies with a direction to testify or produce documents is not exempt from prosecution or punishment for perjury committed while testifying and the testimony or evidence given or produced is admissible against the person in a criminal action, investigation, or proceeding concerning the perjury, and the person is not exempt from the denial, revocation, or suspension of any license, permission, or authority conferred or to be conferred under this code.

(d)  A person may waive the immunity or privilege granted by this section by executing, acknowledging, and filing with the department a statement expressly waiving the immunity or privilege for a specified transaction, matter, or thing. On filing the statement:

(1)  the testimony or documents produced by the person in relation to the transaction, matter, or thing may be received by or produced before a judge or justice or a court, grand jury, or other tribunal; and

(2)  the person is not entitled to immunity or privilege for the testimony or documents received or produced under Subdivision (1).

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.008.  Liberal Construction. Thi

s chapter shall be liberally construed and applied to promote the underlying purposes as provided by Section 541.001.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter B. Unfair Methods Of Competition And Unfair Or Deceptive Acts Or Practices Defined

Section  541.051.  Misrepresentation Regarding Policy Or Insurer.

It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to:

(1)  make, issue, or circulate or cause to be made, issued, or circulated an estimate, illustration, circular, or statement misrepresenting with respect to a policy issued or to be issued:

(A)  the terms of the policy;

(B)  the benefits or advantages promised by the policy; or

(C)  the dividends or share of surplus to be received on the policy;

(2)  make a false or misleading statement regarding the dividends or share of surplus previously paid on a similar policy;

(3)  make a misleading representation or misrepresentation regarding:

(A)  the financial condition of an insurer; or

(B)  the legal reserve system on which a life insurer operates;

(4)  use a name or title of a policy or class of policies that misrepresents the true nature of the policy or class of policies; or

(5)  make a misrepresentation to a policyholder insured by any insurer for the purpose of inducing or that tends to induce the policyholder to allow an existing policy to lapse or to forfeit or surrender the policy.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.052.  False Information And Advertising.

(a) It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to make, publish, disseminate, circulate, or place before the public or directly or indirectly cause to be made, published, disseminated, circulated, or placed before the public an advertisement, announcement, or statement containing an untrue, deceptive, or misleading assertion, representation, or statement regarding the business of insurance or a person in the conduct of the person's insurance business.

(b)  This section applies to an advertisement, announcement, or statement made, published, disseminated, circulated, or placed before the public:

(1)  in a newspaper, magazine, or other publication;

(2)  in a notice, circular, pamphlet, letter, or poster;

(3)  over a radio or television station;

(4)  through the Internet; or

(5)  in any other manner.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 2, eff. September 1, 2007.



Section  541.053.  Defamation Of Insurer.

(a) It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to directly or indirectly make, publish, disseminate, or circulate or to aid, abet, or encourage the making, publication, dissemination, or circulation of a statement that:

(1)  is false, maliciously critical of, or derogatory to the financial condition of an insurer; and

(2)  is calculated to injure a person engaged in the business of insurance.

(b)  This section applies to any oral or written statement, including a statement in any pamphlet, circular, article, or literature.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.054.  Boycott, Coercion, Or Intimidation.

It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to commit through concerted action or to enter into an agreement to commit an act of boycott, coercion, or intimidation that results in or tends to result in the unreasonable restraint of or a monopoly in the business of insurance.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.055.  False Financial Statement.

(a) It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to, with intent to deceive:

(1)  file with a supervisory or other public official a false statement of financial condition of an insurer; or

(2)  make, publish, disseminate, circulate, deliver to any person, or place before the public or directly or indirectly cause to be made, published, disseminated, circulated, delivered to any person, or placed before the public a false statement of financial condition of an insurer.

(b)  It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to make a false entry in an insurer's book, report, or statement or wilfully omit to make a true entry of a material fact relating to the insurer's business in the insurer's book, report, or statement with intent to deceive:

(1)  an agent or examiner lawfully appointed to examine the insurer's condition or affairs; or

(2)  a public official to whom the insurer is required by law to report or who has authority by law to examine the insurer's condition or affairs.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.056.  Prohibited Rebates And Inducements.

(a) Subject to Section 541.058 and except as otherwise expressly provided by law, it is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to knowingly permit the making of, offer to make, or make a life insurance contract, life annuity contract, or accident and health insurance contract or an agreement regarding the contract, other than as plainly expressed in the issued contract, or directly or indirectly pay, give, or allow or offer to pay, give, or allow as inducement to enter into a life insurance contract, life annuity contract, or accident and health insurance contract a rebate of premiums payable on the contract, a special favor or advantage in the dividends or other benefits of the contract, or a valuable consideration or inducement not specified in the contract, or give, sell, or purchase or offer to give, sell, or purchase in connection with a life insurance, life annuity, or accident and health insurance contract or as inducement to enter into the contract stocks, bonds, or other securities of an insurer or other corporation, association, or partnership, dividends or profits accrued from the stocks, bonds, or securities, or anything of value not specified in the contract.

(b)  It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to issue or deliver or to permit an agent, officer, or employee to issue or deliver as an inducement to insurance:

(1)  company stock or other capital stock;

(2)  a benefit certificate or share in a corporation;

(3)  securities; or

(4)  a special or advisory board contract or any other contract promising returns or profits.

(c)  Subsection (b) does not prohibit issuing or delivering a participating insurance policy otherwise authorized by law.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.057.  Unfair Discrimination In Life Insurance And Annuity Contracts.

Subject to Section 541.058, it is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to make or permit with respect to a life insurance or life annuity contract an unfair discrimination between individuals of the same class and equal life expectancy regarding:

(1)  the rates charged;

(2)  the dividends or other benefits payable; or

(3)  any of the other terms and conditions of the contract.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section 541.058.  Certain Practices Not Considered Discrimination Or Inducement.

(a) In this section:

(1)  "Health-related services" means services that are available in connection with an accident and health insurance policy or certificate or an evidence of coverage and that are directed to an individual's health improvement or maintenance.

(2)  "Health-related information" means that information that is directed to an individual's health improvement or maintenance or to costs associated with particular options available in connection with an accident and health insurance policy or certificate or an evidence of coverage.

(b)  It is not a rebate or discrimination prohibited by Section 541.056(a) or 541.057:

(1)  for a life insurance or life annuity contract, to pay a bonus to a policyholder or otherwise abate the policyholder's premiums in whole or in part out of surplus accumulated from nonparticipating insurance policies if the bonus or abatement:

(A)  is fair and equitable to policyholders; and

(B)  is in the best interests of the insurer and its policyholders;

(2)  for a life insurance policy issued on the industrial debit plan, to make to a policyholder who has continuously for a specified period made premium payments directly to the insurer's office an allowance in an amount that fairly represents the saving in collection expenses;

(3)  for a group insurance policy, to readjust the rate of premium based on the loss or expense experience under the policy at the end of a policy year if the adjustment is retroactive for only that policy year;

(4)  for a life annuity contract, to waive surrender charges under the contract when the contract holder exchanges that contract for another annuity contract issued by the same insurer if the waiver and the exchange are fully, fairly, and accurately explained to the contract holder in a manner that is not deceptive or misleading;

(5)  in connection with an accident and health insurance policy, to provide to policy or certificate holders, in addition to benefits under the terms of the insurance contract, health-related services or health-related information, or to disclose the availability of those additional services and information to prospective policy or certificate holders; or

(6)  in connection with a health maintenance organization evidence of coverage, to provide to enrollees, in addition to benefits under the evidence of coverage, health-related services or health-related information, or to disclose the availability of those additional services and information to prospective enrollees or contract holders.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 112, Sec. 1, eff. May 17, 2007.



Section  541.059.  Deceptive Name, Word, Symbol, Device, Or Slogan.

(a) Except as provided by Subsection (b), it is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to use, display, publish, circulate, distribute, or cause to be used, displayed, published, circulated, or distributed in a letter, pamphlet, circular, contract, policy, evidence of coverage, article, poster, or other document, literature, or public media:

(1)  a name as the corporate or business name of a person or entity engaged in the business of insurance or in an insurance-related business in this state that is the same as or deceptively similar to the name adopted and used by an insurance entity, health maintenance organization, third-party administrator, or group hospital service corporation authorized to engage in business under the laws of this state; or

(2)  a word, symbol, device, or slogan, either alone or in combination and regardless of whether registered, and including the titles, designations, character names, and distinctive features of broadcast or other advertising, that is the same as or deceptively similar to a word, symbol, device, or slogan adopted and used by an insurance entity, health maintenance organization, third-party administrator, or group hospital service corporation to distinguish the entity or the entity's products or services from another entity.

(b)  If more than one person or entity uses names, words, symbols, devices, or slogans, either alone or in combination, that are the same or deceptively similar and are likely to cause confusion or mistake, the person or entity that demonstrates the first continuous actual use of the name, word, symbol, device, slogan, or combination has not engaged in an unfair method of competition or deceptive act or practice under this section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.060.  Unfair Settlement Practices.

(a) It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to engage in the following unfair settlement practices with respect to a claim by an insured or beneficiary:

(1)  misrepresenting to a claimant a material fact or policy provision relating to coverage at issue;

(2)  failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of:

(A)  a claim with respect to which the insurer's liability has become reasonably clear; or

(B)  a claim under one portion of a policy with respect to which the insurer's liability has become reasonably clear to influence the claimant to settle another claim under another portion of the coverage unless payment under one portion of the coverage constitutes evidence of liability under another portion;

(3)  failing to promptly provide to a policyholder a reasonable explanation of the basis in the policy, in relation to the facts or applicable law, for the insurer's denial of a claim or offer of a compromise settlement of a claim;

(4)  failing within a reasonable time to:

(A)  affirm or deny coverage of a claim to a policyholder; or

(B)  submit a reservation of rights to a policyholder;

(5)  refusing, failing, or unreasonably delaying a settlement offer under applicable first-party coverage on the basis that other coverage may be available or that third parties are responsible for the damages suffered, except as may be specifically provided in the policy;

(6)  undertaking to enforce a full and final release of a claim from a policyholder when only a partial payment has been made, unless the payment is a compromise settlement of a doubtful or disputed claim;

(7)  refusing to pay a claim without conducting a reasonable investigation with respect to the claim;

(8)  with respect to a Texas personal automobile insurance policy, delaying or refusing settlement of a claim solely because there is other insurance of a different kind available to satisfy all or part of the loss forming the basis of that claim; or

(9)  requiring a claimant as a condition of settling a claim to produce the claimant's federal income tax returns for examination or investigation by the person unless:

(A)  a court orders the claimant to produce those tax returns;

(B)  the claim involves a fire loss; or

(C)  the claim involves lost profits or income.

(b)  Subsection (a) does not provide a cause of action to a third party asserting one or more claims against an insured covered under a liability insurance policy.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.061.  Misrepresentation Of Insurance Policy.

It is an unfair method of competition or an unfair or deceptive act or practice in the business of insurance to misrepresent an insurance policy by:

(1)  making an untrue statement of material fact;

(2)  failing to state a material fact necessary to make other statements made not misleading, considering the circumstances under which the statements were made;

(3)  making a statement in a manner that would mislead a reasonably prudent person to a false conclusion of a material fact;

(4)  making a material misstatement of law; or

(5)  failing to disclose a matter required by law to be disclosed, including failing to make a disclosure in accordance with another provision of this code.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter B-1. Advertising Requirements

Section 541.082.  Advertising And Internet Websites.

(a) In this section, "insurer" includes:

(1)  a life insurance company;

(2)  a health insurance company;

(3)  an accident insurance company;

(4)  a general casualty company;

(5)  a mutual life insurance company or other mutual insurance company;

(6)  a mutual or natural premium life insurance company;

(7)  a Lloyd's plan;

(8)  a county mutual insurance company;

(9)  a farm mutual insurance company;

(10)  a reciprocal or interinsurance exchange;

(11)  a fraternal benefit society;

(12)  a local mutual aid association;

(13)  a health maintenance organization;

(14)  a group hospital service corporation; or

(15)  a multiple employer welfare arrangement that holds a certificate of coverage under Chapter 846.

(b)  A web page of an insurer's Internet website must include all appropriate disclosures and information required by applicable rules adopted by the commissioner relating to advertising only if the web page:

(1)  describes specific policies or coverage available in this state; or

(2)  includes an opportunity for an individual to apply for coverage or obtain a quote from an insurer for an insurance policy or certificate or an evidence of coverage.

(c)  As may be permitted by commissioner rule, an insurer may comply with Subsection (b) by including a link to a web page that includes the information necessary to comply with the applicable rules relating to advertising.  The link must be prominently placed on the insurer's web page.

(d)  Web pages of an Internet website that do not refer to a specific insurance policy, certificate of coverage, or evidence of coverage or that do not provide an opportunity for an individual to apply for coverage or request a quote from an insurer are considered to be institutional advertisements subject to rules adopted by the commissioner relating to advertising.

(e)  Web pages or navigation aids within an insurer's Internet website that provide a link to a web page described by  Subsection (b) but that do not otherwise contain content described in Subsection (b) are considered to be institutional advertisements subject to rules adopted by the commissioner relating to advertising.

Added by Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 1, eff. September 1, 2007.



Section 541.083.  Advertisements To Certain Associations. An

insurer may advertise to the general public policies or coverage available only to members of an association described by Section 1251.052.

Added by Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 1, eff. September 1, 2007.



Section 541.084.  Advertisements Relating To Medicare Program.

A person may not use an advertisement for an insurance product relating to Medicare coverage unless the advertisement includes in a prominent place the following language or similar language: "Not connected with or endorsed by the United States government or the federal Medicare program."

Added by Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 1, eff. September 1, 2007.



Section 541.085.  Advertisements Relating To Preferred Provider Benefit Plans.

It is sufficient for an insurer to use the term "PPO plan" in advertisements when referring to a preferred provider benefit plan offered under Chapter 1301.

Added by Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 1, eff. September 1, 2007.



Section 541.086.  Advertising Regarding Guaranteed Renewable Coverage.

(a) An advertisement for a guaranteed renewable accident and health insurance policy must include, in a prominent place, a statement indicating that rates for the policy may change if the advertisement suggests or implies that rates for the product will not change.

(b)  If an advertisement is required to include the statement described by Subsection (a), the statement must generally identify the manner in which rates may change, such as by age, by health status, by class, or through application of other general criteria.

Added by Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 1, eff. September 1, 2007.



Section 541.087.  Advertisements Exempt From Filing Requirements.a

n advertisement subject to requirements regarding filing of the advertisement with the department for department review under this code or commissioner rule and that is the same as or substantially similar to an advertisement previously reviewed and accepted by the department is not required to be filed for department review.

Added by Acts 2007, 80th Leg., R.S., Ch. 475, Sec. 1, eff. September 1, 2007.



Subchapter C. Determination Of Unfair Methods Of Competition And Unfair Or Deceptive Acts Or Practices; Sanctions And Penalties

Section  541.101.  Examination And Investigation. The

department may examine and investigate the affairs of a person engaged in the business of insurance in this state to determine whether the person has or is engaged in an unfair method of competition or unfair or deceptive act or practice prohibited by Section 541.003.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.102.  Statement Of Charges; Notice Of Hearing.

(a) When the department has reason to believe that a person engaged in the business of insurance in this state has engaged or is engaging in this state in an unfair method of competition or unfair or deceptive act or practice defined by Subchapter B and that a proceeding by the department regarding the charges is in the interest of the public, the department shall issue and serve on the person:

(1)  a statement of the charges; and

(2)  a notice of the hearing on the charges, including the time and place for the hearing.

(b)  The department may not hold the hearing before the sixth day after the date the notice is served.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.103.  Hearing.

A person against whom charges are made under Section 541.102 is entitled at the hearing on the charges to have an opportunity to be heard and show cause why the department should not issue an order requiring the person to cease and desist from the unfair method of competition or unfair or deceptive act or practice described in the charges.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.104.  Hearing Procedures.

(a) Nothing in this chapter requires the observance of formal rules of pleading or evidence at a hearing under this subchapter.

(b)  At a hearing under this subchapter, the department, on a showing of good cause, shall permit any person to intervene, appear, and be heard by counsel or in person.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.105.  Record Of Hearing.

(a) At a hearing under this subchapter, the department may, and at the request of a party to the hearing shall, make a stenographic record of the proceedings and the evidence presented at the hearing.

(b)  If the department does not make a stenographic record and a person seeks judicial review of the decision made at the hearing, the department shall prepare a statement of the evidence and proceeding for use on review.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.106.  Compliance With Subpoena.

(a) If a person refuses to comply with a subpoena issued in connection with a hearing under this subchapter or refuses to testify with respect to a matter about which the person may be lawfully interrogated, on application of the department, a district court in Travis County or in the county in which the person resides may order the person to comply with the subpoena or testify.

(b)  A court may punish as contempt a person's failure to obey an order under this section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.107.  Determination Of Violation.

After a hearing under this subchapter, the department shall determine whether:

(1)  the method of competition or the act or practice considered in the hearing is defined as:

(A)  an unfair method of competition or deceptive act or practice under Subchapter B or a rule adopted under this chapter; or

(B)  a false, misleading, or deceptive act or practice under Section 17.46, Business & Commerce Code; and

(2)  the person against whom the charges were made engaged in the method of competition or act or practice in violation of:

(A)  this chapter or a rule adopted under this chapter; or

(B)  Subchapter E, Chapter 17, Business & Commerce Code, as specified in Section 17.46, Business & Commerce Code.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.108.  Cease And Desist Order.

On determining that a person committed a violation described by Section 541.107, the department shall:

(1)  make written findings; and

(2)  issue and serve on the person an order requiring the person to cease and desist from engaging in the method of competition or act or practice determined to be a violation.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.109.  Modification Or Setting Aside Of Order.

On the notice and in the manner the department determines proper, the department may modify or set aside in whole or in part a cease and desist order issued under Section 541.108 at any time before a petition appealing the order is filed in accordance with Subchapter D, Chapter 36.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.110.  Administrative Penalty.

(a) A person who violates a cease and desist order issued under Section 541.108 is subject to an administrative penalty under Chapter 84.

(b)  In determining whether a person has violated a cease and desist order, the department shall consider the maintenance of procedures reasonably adapted to ensure compliance with the order.

(c)  An administrative penalty imposed under this section may not exceed:

(1)  $1,000 for each violation; or

(2)  $5,000 for all violations.

(d)  An order of the department imposing an administrative penalty under this section applies only to a violation of the cease and desist order committed before the date the order imposing the penalty is issued.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.111.  Civil Penalty For Violation Of Cease And Desist Order.

(a) A person who is found by a court to have violated a cease and desist order issued under Section 541.108 is liable to the state for a penalty. The state may recover the penalty in a civil action.

(b)  The penalty may not exceed $50 unless the court finds the violation to be wilful, in which case the penalty may not exceed $500.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter D. Private Action For Damages

Section  541.151.  Private Action For Damages Authorized.

A person who sustains actual damages may bring an action against another person for those damages caused by the other person engaging in an act or practice:

(1)  defined by Subchapter B to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance; or

(2)  specifically enumerated in Section 17.46(b), Business & Commerce Code, as an unlawful deceptive trade practice if the person bringing the action shows that the person relied on the act or practice to the person's detriment.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.152.  Damages, Attorney's Fees, And Other Relief.

(a) A plaintiff who prevails in an action under this subchapter may obtain:

(1)  the amount of actual damages, plus court costs and reasonable and necessary attorney's fees;

(2)  an order enjoining the act or failure to act complained of; or

(3)  any other relief the court determines is proper.

(b)  On a finding by the trier of fact that the defendant knowingly committed the act complained of, the trier of fact may award an amount not to exceed three times the amount of actual damages.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.153.  Frivolous Action.

A court shall award to the defendant court costs and reasonable and necessary attorney's fees if the court finds that an action under this subchapter is groundless and brought in bad faith or brought for the purpose of harassment.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.154.  Prior Notice Of Action.

(a) A person seeking damages in an action against another person under this subchapter must provide written notice to the other person not later than the 61st day before the date the action is filed.

(b)  The notice must advise the other person of:

(1)  the specific complaint; and

(2)  the amount of actual damages and expenses, including attorney's fees reasonably incurred in asserting the claim against the other person.

(c)  The notice is not required if giving notice is impracticable because the action:

(1)  must be filed to prevent the statute of limitations from expiring; or

(2)  is asserted as a counterclaim.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.155.  Abatement.

(a) A person against whom an action under this subchapter is pending who does not receive the notice as required by Section 541.154 may file a plea in abatement not later than the 30th day after the date the person files an original answer in the court in which the action is pending.

(b)  The court shall abate the action if, after a hearing, the court finds that the person is entitled to an abatement because the claimant did not provide the notice as required by Section 541.154.

(c)  An action is automatically abated without a court order beginning on the 11th day after the date a plea in abatement is filed if the plea:

(1)  is verified and alleges that the person against whom the action is pending did not receive the notice as required by Section 541.154; and

(2)  is not controverted by an affidavit filed by the claimant before the 11th day after the date the plea in abatement is filed.

(d)  An abatement under this section continues until the 60th day after the date notice is provided in compliance with Section 541.154.

(e)  This section does not apply if Section 541.154(c) applies.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.156.  Settlement Offer.

(a) A person who receives notice provided under Section 541.154 may make a settlement offer during a period beginning on the date notice under Section 541.154 is received and ending on the 60th day after that date.

(b)  In addition to the period described by Subsection (a), the person may make a settlement offer during a period:

(1)  if mediation is not conducted under Section 541.161, beginning on the date an original answer is filed in the action and ending on the 90th day after that date; or

(2)  if mediation is conducted under Section 541.161, beginning on the day after the date the mediation ends and ending on the 20th day after that date.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.157.  Contents Of Settlement Offer.

A settlement offer made by a person against whom a claim under this subchapter is pending must include an offer to pay the following amounts, separately stated:

(1)  an amount of money or other consideration, reduced to its cash value, as settlement of the claim for damages; and

(2)  an amount of money to compensate the claimant for the claimant's reasonable and necessary attorney's fees incurred as of the date of the offer.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.158.  Rejection Of Settlement Offer.

(a) A settlement offer is rejected unless both parts of the offer required under Section 541.157 are accepted by the claimant not later than the 30th day after the date the offer is made.

(b)  A settlement offer made by a person against whom a claim under this subchapter is pending that complies with this subchapter and is rejected by the claimant may be filed with the court accompanied by an affidavit certifying the offer's rejection.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.159.  Limit On Recovery After Settlement Offer.

(a) If the court finds that the amount stated in the settlement offer for damages under Section 541.157(1) is the same as, substantially the same as, or more than the amount of damages found by the trier of fact, the claimant may not recover as damages any amount in excess of the lesser of:

(1)  the amount of damages stated in the offer; or

(2)  the amount of damages found by the trier of fact.

(b)  If the court makes the finding described by Subsection (a), the court shall determine reasonable and necessary attorney's fees to compensate the claimant for attorney's fees incurred before the date and time the rejected settlement offer was made. If the court finds that the amount stated in the offer for attorney's fees under Section 541.157(2) is the same as, substantially the same as, or more than the amount of reasonable and necessary attorney's fees incurred by the claimant as of the date of the offer, the claimant may not recover any amount of attorney's fees in excess of the amount of fees stated in the offer.

(c)  This section does not apply if the court finds that the offering party:

(1)  could not perform the offer at the time the offer was made; or

(2)  substantially misrepresented the cash value of the offer.

(d)  The court shall award:

(1)  damages as required by Section 541.152 if Subsection (a) does not apply; and

(2)  attorney's fees as required by Section 541.152 if Subsection (b) does not apply.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.160.  Effect Of Settlement Offer.

A settlement offer is not an admission of engaging in an act or practice defined by Subchapter B to be an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.161.  Mediation.

(a) A party may, not later than the 90th day after the date a pleading seeking relief under this subchapter is served, file a motion to compel mediation of the dispute in the manner provided by this section.

(b)  The court shall, not later than the 30th day after the date a motion under this section is filed, sign an order setting the time and place of the mediation.

(c)  The court shall appoint a mediator if the parties do not agree on a mediator.

(d)  The mediation must be held not later than the 30th day after the date the order is signed, unless:

(1)  the parties agree otherwise; or

(2)  the court determines that additional time not to exceed 30 days is warranted.

(e)  Each party who has appeared in the action, except as agreed to by all parties who have appeared, shall:

(1)  participate in the mediation; and

(2)  except as provided by Subsection (f), share the mediation fee.

(f)  A party may not compel mediation under this section if the amount of actual damages claimed is less than $15,000 unless the party seeking to compel mediation agrees to pay the costs of the mediation.

(g)  Except as provided by this section, the following apply to the appointment of a mediator and the mediation process provided by this section:

(1)  Section 154.023, Civil Practice and Remedies Code; and

(2)  Subchapters C and D, Chapter 154, Civil Practice and Remedies Code.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.162.  Limitations Period.

(a) A person must bring an action under this chapter before the second anniversary of the following:

(1)  the date the unfair method of competition or unfair or deceptive act or practice occurred; or

(2)  the date the person discovered or, by the exercise of reasonable diligence, should have discovered that the unfair method of competition or unfair or deceptive act or practice occurred.

(b)  The limitations period provided by Subsection (a) may be extended for 180 days if the person bringing the action proves that the person's failure to bring the action within that period was caused by the defendant's engaging in conduct solely calculated to induce the person to refrain from or postpone bringing the action.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter E. Enforcement By Attorney General

Section  541.201.  Injunctive Relief.

(a) The attorney general may bring an action under this section if the attorney general has reason to believe that:

(1)  a person engaged in the business of insurance in this state is engaging in, has engaged in, or is about to engage in an act or practice defined as unlawful under:

(A)  this chapter or a rule adopted under this chapter; or

(B)  Section 17.46, Business & Commerce Code; and

(2)  the action is in the public interest.

(b)  The attorney general may bring the action in the name of the state to restrain by temporary or permanent injunction the person's use of the method, act, or practice.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.202.  Venue For Injunctive Action.

An action for an injunction under this subchapter may be commenced in a district court in:

(1)  the county in which the person against whom the action is brought:

(A)  resides;

(B)  has the person's principal place of business; or

(C)  is engaging in business;

(2)  the county in which the transaction or a substantial portion of the transaction occurred; or

(3)  Travis County.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.203.  Issuance Of Injunction.

(a) The court may issue an appropriate temporary or permanent injunction.

(b)  The court shall issue the injunction without bond.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.204.  Civil Penalty.

In addition to requesting a temporary or permanent injunction under Section 541.201, the attorney general may request a civil penalty of not more than $10,000 for each violation on a finding by the court that the defendant has engaged in or is engaging in an act or practice defined as unlawful under:

(1)  this chapter or a rule adopted under this chapter; or

(2)  Section 17.46, Business & Commerce Code.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.205.  Compensation Or Restoration.

The court may make an additional order or judgment as necessary to compensate an identifiable person for actual damages or for restoration of money or property that may have been acquired by means of an enjoined act or practice.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.206.  Civil Penalty For Violation Of Injunction.

(a) A person who violates an injunction issued under this subchapter is liable for and shall pay to the state a civil penalty of not more than $10,000 for each violation.

(b)  The attorney general may, in the name of the state, petition the court for recovery of the civil penalty against the person who violates the injunction.

(c)  The court shall consider the maintenance of procedures reasonably adapted to ensure compliance with the injunction in determining whether a person has violated an injunction.

(d)  The court issuing the injunction retains jurisdiction and the cause is continued for the purpose of assessing a civil penalty under this section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.207.  Remedies Not Exclusive.

The remedies provided by this subchapter are:

(1)  not exclusive; and

(2)  in addition to any other remedy or procedure provided by another law or at common law.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter F. Class Actions By Attorney General Or Private Individual

Section  541.251.  Class Action Authorized.

(a) If a member of the insurance buying public has been damaged by an unlawful method, act, or practice defined in Subchapter B as an unlawful deceptive trade practice, the department may request the attorney general to bring a class action or the individual damaged may bring an action on the individual's own behalf and on behalf of others similarly situated to recover damages and obtain relief as provided by this subchapter.

(b)  A class action may not be maintained under this subchapter if the department and attorney general have initiated an action under Subchapter G or an action under that subchapter has resulted in a final determination regarding the same act or practice and the same defendant in the action under this subchapter.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.252.  Recovery.

A plaintiff who prevails in a class action under this subchapter may recover:

(1)  court costs and attorney's fees reasonable in relation to the amount of work expended in addition to actual damages;

(2)  an order enjoining the act or failure to act; and

(3)  any other relief the court determines is proper.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.253.  Frivolous Action.

The court may award to the defendant court costs and reasonable attorney's fees in relation to the work expended on a finding by the court that a class action under this subchapter was brought by an individual plaintiff in bad faith or for the purpose of harassment.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.254.  Statute Of Limitations Tolled. The

filing of a class action under this subchapter tolls the statute of limitations for bringing an action by an individual under Section 541.162.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.255.  Prior Notice.

(a) Not later than the 31st day before the date a class action for damages is commenced under this subchapter, the prospective plaintiff must:

(1)  notify the intended defendant of the complaint; and

(2)  demand that the defendant provide relief to the prospective plaintiff and others similarly situated.

(b)  The notice must be in writing and be sent by certified or registered mail, return receipt requested, to:

(1)  the place where the transaction occurred;

(2)  the intended defendant's principal place of business in this state; or

(3)  if notice to the place described by Subdivision (1) or (2) does not effect notice, the office of the secretary of state.

(c)  A copy of the notice must also be sent to the commissioner.

(d)  A class action for injunctive relief may be commenced under this subchapter without complying with Subsection (a).

(e)  A plaintiff in a class action for injunctive relief under this subchapter may, on or after the 31st day after the date the action is commenced and after complying with Subsection (a), amend the complaint without leave of court to include a request for damages.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.256.  Prerequisites To Class Action.

The court shall permit one or more members of a class to sue or be sued as representative parties on behalf of the class only if:

(1)  the class is so numerous that joinder of all members is impracticable;

(2)  there are questions of law or fact common to the class;

(3)  the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4)  the representative parties will fairly and adequately protect the interests of the class.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.257.  Class Actions Maintainable.

(a) An action may be maintained as a class action under this subchapter if the prerequisites of Section 541.256 are satisfied and, in addition:

(1)  the prosecution of separate actions by or against individual members of the class would create a risk of:

(A)  inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class; or

(B)  adjudication with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;

(2)  the party opposing the class has acted or refused to act on grounds generally applicable to the class, making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3)  the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

(b)  Matters pertinent to a finding under Subsection (a)(3) include:

(1)  the interest of members of the class in individually controlling the prosecution or defense of separate actions;

(2)  the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(3)  the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(4)  the difficulties likely to be encountered in the management of a class action.

(c)  In construing this section, the courts of this state shall be guided by the decisions of the federal courts interpreting Rule 23, Federal Rules of Civil Procedure, as amended.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.258.  Class Actions: Issues And Subclasses Authorized.

When appropriate, an action may be brought or maintained as a class action under this subchapter with respect to particular issues or a class may be divided into subclasses and each subclass treated as a class, and the provisions of this subchapter shall be construed and applied accordingly.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.259.  Determination Regarding Whether Class Action May Be Maintained.

(a) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be maintained as a class action under this subchapter.

(b)  An order under this section may be altered or amended before a decision on the merits.

(c)  An order determining whether the action may be maintained as a class action under this subchapter is an interlocutory order that is appealable. The procedures applicable to accelerated appeals in the Texas Rules of Appellate Procedure apply to the appeal.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.260.  Effect Of Denial Of Class Action.

A court order denying that an action under this subchapter may be brought as a class action does not affect whether an individual may bring the same or a similar action under Subchapter D.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.261.  Notice Of Class Action.

(a) If an action is permitted as a class action under this subchapter, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.

(b)  The notice must contain a statement that:

(1)  the court will exclude from the class a notified member if the member requests exclusion by a specified date;

(2)  the judgment, whether favorable or not, includes all members who do not request exclusion; and

(3)  a member who does not request exclusion may enter an appearance through counsel.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.262.  Procedures In Class Action.

In a class action under this subchapter, the court may make appropriate orders:

(1)  determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(2)  requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in a manner the court directs to some or all of the members or the attorney general of:

(A)  any step in the action;

(B)  the proposed extent of the judgment; or

(C)  the opportunity for members to:

(i)  signify whether the members consider the representation to be fair and adequate;

(ii)  intervene and present claims or defenses; or

(iii)  otherwise come into the action;

(3)  imposing conditions on the representative parties or intervenors;

(4)  requiring that the pleadings be amended to eliminate allegations relating to representation of absent persons, and that the action proceed accordingly; or

(5)  dealing with similar procedural matters.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.263.  Effect Of Settlement Offer.

(a) Damages may not be awarded to a class under this subchapter if, not later than the 30th day after the date the intended defendant receives notice under Section 541.255, the intended defendant provides to the plaintiff by certified or registered mail, return receipt requested, a written settlement offer.

(b)  The settlement offer must include:

(1)  a statement that all persons similarly situated have been adequately identified or a reasonable effort to identify those persons has been made;

(2)  a description of the class identified and the method used to identify that class;

(3)  a statement that all persons identified have been notified that, on request, the intended defendant will provide relief to those persons and all others similarly situated;

(4)  a complete explanation of the relief being afforded;

(5)  a copy of the notice or communication the intended defendant is providing to the members of the class;

(6)  a statement that the relief being afforded the consumer has been or, if the offer is accepted by the consumer, will be given within a stated reasonable time; and

(7)  a statement that the practice complained of has ceased.

(c)  Except as provided by Subsection (d), an attempt to comply with this section by a person receiving a demand is:

(1)  an offer to compromise;

(2)  not admissible as evidence; and

(3)  not an admission of engaging in an unlawful act or practice.

(d)  A defendant may introduce evidence of compliance or an attempt to comply with this section for the purpose of:

(1)  establishing good faith; or

(2)  showing compliance with this section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.264.  Defenses.

Damages may not be awarded in a class action under this subchapter if the defendant:

(1)  proves that the action complained of resulted from a bona fide error, notwithstanding the use of reasonable procedures adopted to avoid an error; and

(2)  made restitution of any consideration received from any member of the class.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.265.  Limitations Period For Damages.

In a class action under this subchapter, damages may not include any damages incurred more than two years before the date the action is commenced.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.266.  Disposition.

(a) A class action under this subchapter may not be dismissed, settled, or compromised without the approval of the court.

(b)  Notice of the proposed dismissal, settlement, or compromise shall be given to all members of the class in the manner the court directs.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.267.  Contents Of Judgment; Notice.

(a) The judgment in a class action under this subchapter must describe those to whom the notice under Section 541.261 was directed and who have not requested exclusion and those the court finds to be members of the class.

(b)  The court shall direct to the members of the class the best notice of the judgment practicable under the circumstances, including individual notice to each member who can be identified through reasonable effort.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter G. Department Action For Refund Of Premiums

Section  541.301.  Refund Of Premiums.

(a) After notice and hearing as provided in Subchapter C, the department may require a person to make an accounting under Subsection (b):

(1)  in connection with a method of competition or act or practice that is the basis of a cease and desist order issued under Section 541.108; or

(2)  on application of an aggrieved person, in connection with a determination by the department that the aggrieved person and other persons similarly situated were induced to purchase an insurance policy as a result of the person engaging in a method of competition or act or practice in violation of:

(A)  this chapter or a rule adopted under this chapter; or

(B)  Section 17.46, Business & Commerce Code.

(b)  A person required to make an accounting under this section must account for all premiums collected for policies issued by the person during the preceding two years in connection with the acts in violation of this chapter described by Subsection (a)(1) or (2).

(c)  The department may require the person described by Subsection (a) to:

(1)  give notice to all persons from whom the premiums were collected; and

(2)  refund the total of all premiums collected from each person who elects to accept a premium refund in exchange for cancellation of the insurance policy issued.

(d)  A person who refunds premiums under this section shall deduct from the amount of premiums refunded the amount of benefits actually paid by the person while the insurance policy was in force.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.302.  Time To Make Refunds.

The department shall specify a reasonable time within which a person required to make premium refunds under Section 541.301 must make the refunds.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.303.  Sanction. (a)

The department may report to the attorney general a person's failure to comply with the department's requirement to refund premiums within the time specified under Section 541.302. The department may request that the attorney general file an action to enforce the department's requirement to refund premiums.

(b)  Venue for the action is in a district court in Travis County.

(c)  The court shall enter an appropriate order to enforce the department's requirement to refund premiums if the court finds that:

(1)  the requirement was lawfully entered; and

(2)  the person failed to comply with the requirement.

(d)  The court may enforce its order through contempt proceedings.

(e)  The sanction provided by this section is in addition to any other sanctions provided in this code or other applicable laws.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.304.  Evidentiary Use Of Compliance Or Attempt To Comply.

(a) Compliance or an attempt to comply with the department's requirement to refund premiums is:

(1)  an offer to compromise;

(2)  not admissible as evidence; and

(3)  not an admission of engaging in an unlawful act or practice.

(b)  A defendant may introduce evidence of compliance or an attempt to comply with the department's requirement for the purpose of:

(1)  establishing good faith; or

(2)  showing compliance with the department's requirement.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter H. Assurance Of Voluntary Compliance

Section  541.351.  Acceptance Of Assurance.

(a) In administering this chapter, the department may accept assurance of voluntary compliance from a person who is engaging in, has engaged in, or is about to engage in an act or practice in violation of:

(1)  this chapter or a rule adopted under this chapter; or

(2)  Section 17.46, Business & Commerce Code.

(b)  The assurance must be in writing and be filed with the department.

(c)  The department may condition acceptance of an assurance of voluntary compliance on the stipulation that the person offering the assurance restore to a person in interest money that may have been acquired by the act or practice described in Subsection (a).

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.352.  Effect Of Assurance.

(a) An assurance of voluntary compliance is not an admission of a prior violation of:

(1)  this chapter or a rule adopted under this chapter; or

(2)  Section 17.46, Business & Commerce Code.

(b)  Unless an assurance of voluntary compliance is rescinded by agreement, a subsequent failure to comply with the assurance is prima facie evidence of a violation of:

(1)  this chapter or a rule adopted under this chapter; or

(2)  Section 17.46, Business & Commerce Code.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.353.  Reopening.

A matter closed by the filing of an assurance of voluntary compliance may be reopened at any time.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.354.  Right To Bring Action Not Affected.

An assurance of voluntary compliance does not affect the right of an individual to bring an action under this chapter, except that the right of an individual in relation to money received according to a stipulation under Section 541.351(c) is governed by the terms of the assurance.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter I. Rulemaking

Section  541.401.  Rulemaking Authority.

(a) The commissioner may adopt and enforce reasonable rules the commissioner determines necessary to accomplish the purposes of this chapter.

(b)  Notwithstanding a previous definition or interpretation of a term used in this chapter contained in or derived from the common law or other statutory law of this state, the commissioner may adopt an express provision necessary to accomplish the purposes of this chapter, including a provision the commissioner considers necessary to:

(1)  achieve necessary uniformity with the laws of other states or the United States; or

(2)  conform to the adopted procedures of the National Association of Insurance Commissioners.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.402.  Petition.

(a) A petition may be submitted to the commissioner to adopt, amend, or repeal a rule. The petition must be:

(1)  signed by 100 interested persons; and

(2)  supported by evidence that:

(A)  a particular act or practice has been or could be false, misleading, or deceptive to the insurance buying public; or

(B)  an act or practice defined by department rule to be false, misleading, or deceptive is not false, misleading, or deceptive.

(b)  Not later than the 30th day after the date the department receives the petition, the department shall:

(1)  deny the petition as provided by Section 541.403; or

(2)  initiate hearing proceedings under Section 541.404.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.403.  Denial Of Petition.

(a) The department must state in writing the reason for denying a petition to adopt, amend, or repeal a rule.

(b)  The department is expressly authorized to deny the petition if the action sought would:

(1)  destroy uniformity with the laws of other states or the United States; or

(2)  not conform to the adopted procedures of the National Association of Insurance Commissioners.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.404.  Hearing On Petition.

(a) A hearing held by the department in response to a petition to adopt, amend, or repeal a rule must be open to the public.

(b)  At the hearing, any person may present to the department in writing or orally testimony, data, or other information regarding the act or practice under consideration.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.405.  Judicial Review Of Department Action.

(a) A person aggrieved by the denial of a petition under Section 541.402 or the adoption, amendment, or repeal of or failure to adopt a rule under this subchapter may file a petition in a district court in Travis County for:

(1)  a declaratory judgment on the validity or applicability of an adopted, amended, or repealed rule; or

(2)  review of the denial of a petition under Section 541.402.

(b)  The commissioner must be made a party to the action.

(c)  An action of the commissioner under this subchapter in adopting, amending, repealing, or failing to adopt a rule or denying a petition may be invalidated only if the court finds that the action:

(1)  violates a constitutional or state statutory provision;

(2)  exceeds the commissioner's statutory authority;

(3)  is arbitrary or capricious or characterized by abuse of discretion or unwarranted exercise of discretion;

(4)  is so vague that it does not establish sufficiently definite standards to which conduct can be conformed;

(5)  is made following unlawful procedure; or

(6)  is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record as submitted.

(d)  The court may issue an injunction in an action under this section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Subchapter J. Construction Of Chapter With Other Laws

Section  541.451.  Liability Under Other Law.

An order of the department under this chapter or an order by a court to enforce that order does not relieve or absolve a person affected by either order from liability under another law of this state.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.452.  Powers In Addition To Other Powers Authorized By Law.

The powers vested in the department and the commissioner by this chapter are in addition to any other powers to enforce a penalty, fine, or forfeiture authorized by law with respect to a method of competition or act or practice defined as unfair or deceptive.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.453.  Double Recovery Prohibited.

A person may not recover damages and penalties for the same act or practice under both this chapter and another law.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.



Section  541.454.  Penalties And Related Payments By Insurer.

(a) Civil penalties, premium refunds, judgments, compensatory judgments, individual recoveries, orders, class action awards, costs, damages, or attorney's fees assessed or awarded under this chapter:

(1)  may be paid only from the capital or surplus funds of the offending insurer; and

(2)  may not take precedence over, be in priority to, or in any other manner apply to:

(A)  Chapter 462 or 463 or any other insurance guaranty act; or

(B)  Chapter 422.

(b)  The statutes described by Subsection (a)(2) and the priorities of funds created by those statutes are exempt from the provisions of this chapter.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 2, eff. April 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 730, Sec. 2D.006, eff. April 1, 2009.


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