By: Carona S.B. No. 734
(In the Senate - Filed February 21, 2013; February 25, 2013,
read first time and referred to Committee on Business and Commerce;
April 8, 2013, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 8, Nays 0; April 8, 2013,
sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 734 By: Carona
A BILL TO BE ENTITLED
AN ACT
relating to the licensing of captive insurance companies;
authorizing fees and authorizing and imposing taxes.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 3, Insurance Code, is amended
by adding Chapter 223A to read as follows:
CHAPTER 223A. CAPTIVE INSURANCE PREMIUM TAX
Sec. 223A.001. DEFINITION. In this chapter, "captive
insurance company" means a captive insurance company or segregated
account holding a certificate of authority under Chapter 964.
Sec. 223A.002. APPLICABILITY OF CHAPTER. This chapter
applies to a captive insurance company or segregated account
holding a certificate of authority under Chapter 964.
Sec. 223A.003. TAX IMPOSED; RATE. (a) An annual tax is
imposed on each captive insurance company that receives gross
premiums subject to taxation under this chapter. The rate of the
tax is one-half percent of the company's taxable premium receipts
for a calendar year.
(b) Except as provided by Subsection (c), in determining a
captive insurance company's taxable premium receipts, the captive
insurance company shall include the total gross amounts of
premiums, membership fees, assessments, dues, revenues, and other
considerations for insurance written by the captive insurance
company in a calendar year from any kind of insurance written by the
company on each kind of property or risk located in this state.
(c) The following premium receipts are not included in
determining a captive insurance company's taxable premium
receipts:
(1) premium receipts received from another authorized
insurer for reinsurance;
(2) returned premiums and dividends paid to
policyholders; and
(3) premiums excluded by another law of this state.
(d) In determining a captive insurance company's taxable
premium receipts, a company is not entitled to a deduction for
premiums paid for reinsurance.
(e) The annual minimum aggregate tax to be paid by a captive
insurance company under this chapter is $7,500 and the annual
maximum aggregate tax to be paid by a company under this chapter is
$200,000. Gross premiums subject to taxation under this chapter
are not subject to taxes, surcharges, or other regulatory
assessments or fees under this code other than insurance
maintenance taxes as provided by Section 964.068.
Sec. 223A.004. TAX DUE DATES. (a) The total tax imposed by
this chapter is due and payable not later than March 1 after the end
of the calendar year for which the tax is due.
(b) A captive insurance company that had a net tax liability
for the previous calendar year of more than $1,000 shall make
semiannual prepayments of tax on March 1 and August 1. The tax paid
on each date must be equal to 50 percent of the total amount of tax
the company paid under this chapter for the previous calendar year.
If the company did not pay a tax under this chapter during the
previous calendar year, the tax paid on each date must be equal to
the tax that would be owed on the aggregate of the gross premiums
for the two previous calendar quarters.
(c) The comptroller may refund any overpayment of taxes that
results from the semiannual prepayment system prescribed by this
section.
Sec. 223A.005. TAX REPORT. (a) A captive insurance
company liable for the tax imposed by this chapter must file
annually with the comptroller a tax report on a form prescribed by
the comptroller.
(b) The tax report is due on the date the tax is due under
Section 223A.004(a).
Sec. 223A.006. CHANGE IN DUE DATES. (a) The comptroller
by rule may change the dates for reporting and paying taxes under
this chapter to improve operating efficiencies within the agency.
(b) A change by the comptroller in a reporting or payment
date must retain the system of semiannual prepayments prescribed by
Section 223A.004.
Sec. 223A.007. CREDIT FOR FEES PAID. (a) A captive
insurance company is entitled to a credit on the amount of tax due
under this chapter for all examination and evaluation fees paid to
this state during the calendar year for which the tax is due. The
limitations provided by Sections 803.007(1) and (2)(B) for a
domestic insurance company apply to a captive insurance company.
(b) The credit provided by this section is in addition to
any other credit authorized by statute.
Sec. 223A.008. FAILURE TO PAY TAXES. A captive insurance
company that fails to pay all taxes imposed by this chapter is
subject to Section 203.002 of this code and Subtitles A and B, Title
2, Tax Code.
SECTION 2. Subtitle H, Title 6, Insurance Code, is amended
by adding Chapter 964 to read as follows:
CHAPTER 964. CAPTIVE INSURANCE COMPANIES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 964.001. DEFINITIONS. (a) In this chapter:
(1) "Affiliated company" or "affiliate" has the
meaning assigned by Section 823.003 and includes a parent entity
that controls a captive insurance company.
(2) "Captive insurance company" means a company that
holds a certificate of authority under this chapter to insure the
operational risks of the company's affiliates or risks of a
controlled unaffiliated business.
(3) "Captive management company" means an entity
providing administrative services to a captive insurance company.
(4) "Control" means the power to direct, or cause the
direction of, the management and policies of an entity, other than
the power that results from an official position with or corporate
office held in the entity. The power may be possessed directly or
indirectly by any means, including through the ownership of voting
securities or by contract, other than a commercial contract for
goods or nonmanagement services.
(5) "Controlled unaffiliated business" means a
person:
(A) that is not an affiliate;
(B) that has an existing contractual
relationship with an affiliate under which the affiliate bears a
potential financial loss; and
(C) the risks of which are managed by a captive
insurance company under Section 964.066.
(6) "Managing captive insurance company" means a
captive insurance company that meets the requirements of Subchapter
B and organizes and operates a segregated account.
(7) "Operational risk" means any potential financial
loss of an affiliate, except for a loss arising from an insurance
policy issued by a captive or insurance affiliate.
(8) "Participant" means a person and affiliate of that
person who is insured by a managing captive insurance company
through a participant contract.
(9) "Participant contract" means a contract by which a
managing captive insurance company insures the risks of a
participant and limits the losses of the participant to the
participant's pro rata share of the assets of the segregated
account identified by the contract.
(10) "Redomestication" means the transfer to or from
this state of the insurance domicile of an authorized captive
insurer.
(11) "Segregated account" means a separate account
that is separately formed, holds a separate certificate of
authority, and is established and maintained by a managing captive
insurance company and in which:
(A) the assets are maintained for a participant
under a participant contract to fund the liabilities of the
managing captive insurance company assumed by the participant under
the participant contract; and
(B) the minimum capital and surplus required by
applicable law may be provided by a person.
(b) Notwithstanding Section 30.003, in this chapter,
"person" has the meaning assigned by Section 311.005, Government
Code.
Sec. 964.002. APPLICABILITY OF OTHER LAWS. (a) Except as
otherwise provided by this chapter, this code does not apply to a
captive insurance company except:
(1) Title 2;
(2) Chapter 223A and Subtitles A and C, Title 3;
(3) Chapter 401;
(4) Chapter 441;
(5) Chapter 443; and
(6) Chapter 803.
(b) A captive insurance company operating under this
chapter is subject to the Business Organizations Code, including
the requirement to be authorized by the secretary of state, to the
extent those laws do not conflict with this chapter.
(c) Chapter 823 applies to a captive insurance company only
if the company is affiliated with another insurer that is subject to
Chapter 823.
SUBCHAPTER B. CAPTIVE INSURANCE COMPANIES
Sec. 964.051. AUTHORITY TO WRITE DIRECT BUSINESS.
(a) Except as provided by this section, a captive insurance
company may write any type of insurance, but may only insure the
operational risks of the company's affiliates and risks of a
controlled unaffiliated business.
(b) A captive insurance company may not issue:
(1) life insurance;
(2) annuities;
(3) accident and health insurance for the company's
parent and affiliates, except to insure employee benefits that are
subject to the Employee Retirement Income Security Act of 1974 (29
U.S.C. Section 1001 et seq.);
(4) title insurance;
(5) mortgage guaranty insurance;
(6) financial guaranty insurance;
(7) residential property insurance;
(8) personal automobile insurance; or
(9) workers' compensation insurance.
(c) A captive insurance company may not issue a type of
insurance, including automobile liability insurance, that is
required, under the laws of this state or a political subdivision of
this state, as a prerequisite for obtaining a license or permit if
the law requires that the liability insurance be issued by an
insurer authorized to engage in the business of insurance in this
state.
(d) A captive insurance company is authorized to issue a
contractual reimbursement policy to:
(1) an affiliated certified self-insurer authorized
under Chapter 407, Labor Code, or a similar affiliated entity
expressly authorized by analogous laws of another state; or
(2) an affiliate that is insured by a workers'
compensation insurance policy with a negotiated deductible
endorsement.
Sec. 964.052. AUTHORITY TO PROVIDE REINSURANCE. (a) A
captive insurance company may provide reinsurance to an insurer
covering the operational risks of the captive insurance company's
affiliates or risks of a controlled unaffiliated business that the
captive insurance company may insure directly under Section 964.051
and:
(1) employee benefit plans offered by affiliates;
(2) liability insurance an affiliate must maintain as
a prerequisite for obtaining a license or permit if the law requires
maintenance of the liability insurance; and
(3) workers' compensation insurance and employer
liability policies issued to affiliates if the insurer that
directly issues workers' compensation insurance and employer's
liability policies or its licensed, if required by law,
administrator or adjuster:
(A) services all claims incurred during the
policy period; and
(B) complies with all requirements for an insurer
under this code, including Chapter 462, and under Title 5, Labor
Code.
(b) A captive insurance company shall provide notice to the
commissioner of a reinsurance agreement that the company becomes a
party to not later than the 30th day after the date of the execution
of the agreement.
(c) A captive insurance company shall provide notice of a
termination of a previously filed reinsurance agreement to the
commissioner not later than the 30th day after the date of
termination.
(d) A captive insurance company may take credit for reserves
on risks or portions of risks ceded to reinsurers under Subchapter
C, Chapter 492, and Subchapter C, Chapter 493.
Sec. 964.053. FORMATION. (a) A captive insurance company
must be formed for the purpose of engaging in the business of
insurance under this chapter.
(b) A captive insurance company may be formed and operated
in any form of business organization authorized under the Business
Organizations Code except a risk retention group or general
partnership. A captive insurance company may only be formed as a
nonprofit corporation if it is controlled by a nonprofit
corporation.
(c) The certificate of formation of a captive insurance
company must include:
(1) the name of the company, which may not be the same
as, deceptively similar to, or likely to be confused with or
mistaken for any other existing business name registered in this
state;
(2) the location of the company's principal business
office;
(3) the type of insurance business in which the
company proposes to engage;
(4) the number of directors or members of the
governing body of the company;
(5) the number of authorized shares and the par value
of the company's capital stock for a captive insurance company
formed as a corporation;
(6) the amount of the company's initial capital and
surplus; and
(7) any other information required by the commissioner
as necessary to explain the company's objectives, management, and
control.
(d) The board of directors or governing body of a captive
insurance company formed in this state must have at least three
members, and at least one of the members must be a resident of this
state.
(e) The certificate of formation or bylaws of a captive
insurance company must authorize a quorum of the board of directors
or governing body to consist of not fewer than one-third of the
fixed number of directors or members of the governing body.
Sec. 964.054. RESERVES AND ACCOUNTING BASIS. (a) A
captive insurance company shall maintain reserves in an amount
stated in the aggregate to provide for the payment of all losses or
claims for which the captive insurance company may be liable and
that are:
(1) incurred on or before the date of the annual report
under Section 964.060, whether reported or unreported; and
(2) unpaid as of the date of the annual report under
Section 964.060.
(b) In addition to the reserves required by Subsection (a),
a captive insurance company shall maintain reserves in an amount
estimated to provide for the expenses of adjustment or settlement
of the losses or claims described by Subsection (a).
(c) The captive insurance company shall use generally
accepted accounting principles as an accounting basis except that a
captive insurance company that is required to hold a certificate of
authority under another jurisdiction's insurance laws shall use
statutory accounting principles.
Sec. 964.055. CERTIFICATE OF AUTHORITY REQUIRED. (a) An
entity may not engage in business as a captive insurance company
domiciled in this state unless it holds a certificate of authority
to act as a captive insurance company issued by the department. A
captive insurance company, when permitted by its certificate of
formation, may apply for a certificate of authority under this
chapter.
(b) An entity does not qualify for a certificate of
authority under this chapter unless:
(1) its affiliates have significant operations in this
state, as determined by the commissioner;
(2) its board of directors or governing body holds at
least one meeting each year in this state;
(3) it maintains its principal office and books and
records in this state, unless the commissioner grants an
application to relocate the entity's books and records under
Chapter 803; and
(4) it complies with Section 804.101 or 804.102.
Sec. 964.056. CAPITAL AND SURPLUS REQUIREMENTS. (a) The
department may not issue a certificate of authority to a captive
insurance company unless the company possesses and maintains
unencumbered capital and surplus in an amount determined by the
commissioner after considering:
(1) the amount of premium written by the captive
insurance company;
(2) the characteristics of the assets held by the
captive insurance company;
(3) the terms of reinsurance arrangements entered into
by the captive insurance company;
(4) the type of business covered in policies issued by
the captive insurance company;
(5) the underwriting practices and procedures of the
captive insurance company; and
(6) any other criteria that has an impact on the
operations of the captive insurance company determined to be
significant by the commissioner.
(b) The amount of capital and surplus determined by the
commissioner under Subsection (a) may not be less than $250,000.
(c) The capital and surplus required by Subsection (a) must
be in the form of:
(1) United States currency;
(2) an irrevocable letter of credit, in a form
approved by the commissioner and not secured by a guarantee from an
affiliate, naming the commissioner as beneficiary for the security
of the captive insurance company's policyholders and issued by a
bank approved by the commissioner;
(3) bonds of this state; or
(4) bonds or other evidences of indebtedness of the
United States, the principal and interest of which are guaranteed
by the United States.
Sec. 964.057. APPLICATION FOR CERTIFICATE OF AUTHORITY.
(a) To obtain a certificate of authority for a captive insurance
company, the incorporators or organizers must pay to the
commissioner an application fee and file with the commissioner an
application for the certificate of authority, which must include:
(1) a financial statement certified by two principal
officers;
(2) a plan of operation and projections, which must
include an actuarial report prepared by a qualified independent
actuary;
(3) the captive insurance company's certificate of
formation;
(4) an affidavit by the incorporators, organizers, or
officers of the captive insurance company stating that:
(A) the capital and surplus are the bona fide
property of the company; and
(B) the certificate of formation is true and
correct; and
(5) if the application provides for the issuance of
shares of stock or other type of equity instrument without par
value, a certificate authenticated by the incorporators or officers
stating:
(A) the number of shares or other type of equity
instrument without par value that are subscribed; and
(B) the actual consideration received by the
captive insurance company for those shares or other type of equity
instrument.
(b) If the commissioner is not satisfied with the affidavit
filed under Subsection (a)(4), the commissioner may require that
the incorporators, organizers, or officers provide at their expense
additional evidence as described by Subsection (a) before the
commissioner takes action on the application.
(c) The application fee required under this section is
$1,500 or a greater amount set by the commissioner by rule as
necessary to recover the cost of administering this section.
(d) Notwithstanding Subsection (c), for a complete
application filed on or before December 30, 2018, the application
fee may not exceed $1,500. This subsection expires January 1, 2019.
(e) Fees collected under this section shall be deposited to
the credit of the Texas Department of Insurance operating account.
Sec. 964.058. EXAMINATION BY COMMISSIONER. (a) After the
application and application fee for a certificate of authority
under Section 964.057 are filed with the department and the
applicant has complied with all legal requirements, the
commissioner shall conduct an examination of the applicant to
determine whether:
(1) the minimum capital and surplus requirements of
Section 964.056 are satisfied;
(2) the capital and surplus are the bona fide property
of the applicant; and
(3) the applicant has fully complied with applicable
insurance laws.
(b) The commissioner may appoint a competent and
disinterested person to conduct the examination required by this
section. The examiner shall file an affidavit of the examiner's
findings with the commissioner. The commissioner shall record the
affidavit.
Sec. 964.059. ACTION ON APPLICATION. (a) The commissioner
shall determine whether:
(1) the capital structure of the applicant meets the
requirements of this chapter;
(2) the officers or directors of the applicant have
sufficient insurance experience, ability, standing, and good
record to make success of the captive insurance company probable;
(3) the applicant is acting in good faith; and
(4) the applicant otherwise satisfies the
requirements of this chapter.
(b) In evaluating the application, the commissioner shall
consider:
(1) the amount and liquidity of the applicant's assets
relative to the risks to be assumed;
(2) the adequacy of the expertise, experience, and
character of each individual who will manage the applicant;
(3) the overall soundness of the applicant's plan of
operations and the projections contained in that plan;
(4) whether the applicant's affiliates have
significant operations located in this state; and
(5) any other factors the commissioner considers
relevant to determine whether the applicant will be able to meet its
policy obligations.
(c) If the commissioner determines that the applicant has
not met the standards set out by Subsection (a), the commissioner
shall deny the application in writing, giving the reason for the
denial. On the applicant's request, the commissioner shall hold a
hearing on a denial. Not later than the 30th day after the date the
commissioner receives the applicant's request for a hearing, the
commissioner shall set a hearing date.
(d) If the commissioner does not deny the application under
Subsection (c), the commissioner shall approve the application and:
(1) issue to the applicant a certificate of authority
to engage in business as provided for in the applicant's
certificate of formation;
(2) certify and file the approved document with the
department; and
(3) issue a certified copy of the certificate of
authority to the applicant's incorporators or officers.
(e) A certificate of authority issued to a captive insurance
company under this section may not be sold.
Sec. 964.060. ANNUAL REPORT. (a) A captive insurance
company holding a certificate of authority under this chapter is
not required to file a report, except as provided by this section,
Chapter 223A, and Subtitle C, Title 3.
(b) A captive insurance company that holds a certificate of
authority to engage in captive insurance business in this state
shall file with the commissioner:
(1) on or before March 1 of each year, a statement of
the company's financial condition, verified by two of its executive
officers and filed in a format prescribed by the commissioner; and
(2) on or before June 1 of each year, a report of its
financial condition at last year-end with an independent certified
public accountant's opinion of the company's financial condition.
(c) A captive insurance company may make a written
application to the commissioner for filing its annual report
required under this section on a fiscal year-end. If an alternative
filing date is granted, the company shall file:
(1) the annual report not later than the 60th day after
the date of the company's fiscal year-end;
(2) the report of its financial condition at last
year-end with an independent certified public accountant's opinion
of the company's financial condition not later than the 150th day
after the date the annual report is due; and
(3) its balance sheet, income statement, and statement
of cash flows, verified by two of its executive officers, before
March 1 of each year to provide sufficient detail to support a
premium tax return.
Sec. 964.061. INVESTMENTS. (a) A captive insurance
company without segregated accounts is not subject to a restriction
on allowable investments, except as provided by this section.
(b) A captive insurance company without segregated accounts
may make loans to its affiliates with the prior approval of the
commissioner. Each loan must be evidenced by a note approved by the
commissioner. A captive insurance company may not make a loan of
the minimum capital and surplus funds required by this chapter.
(c) The commissioner may prohibit or limit an investment
that threatens the solvency or liquidity of a captive insurance
company.
Sec. 964.062. AMENDMENTS TO CERTIFICATE OF FORMATION. A
captive insurance company may not amend its certificate of
formation unless the amendment has been filed with and approved by
the commissioner.
Sec. 964.063. NOTICE OF DIVIDENDS. A captive insurance
company shall notify the commissioner in writing when issuing
policyholder dividends.
Sec. 964.064. PROHIBITION ON JOINING OR CONTRIBUTING TO
CERTAIN ENTITIES AND FUNDS. A captive insurance company may not
join or contribute financially to any plan, pool, association, or
guaranty or insolvency fund in this state, and a captive insurance
company, its insured, or any affiliate is not entitled to receive
any benefit from a plan, pool, association, or guaranty or
insolvency fund for claims arising out of the operations of the
company.
Sec. 964.065. SUSPENSION OR REVOCATION OF CERTIFICATE OF
AUTHORITY. The commissioner, after notice and an opportunity for
hearing, may revoke or suspend the certificate of authority of a
captive insurance company for:
(1) insolvency or impairment of required capital or
surplus to policyholders;
(2) failure to submit an annual report, as required by
Section 964.060;
(3) failure to comply with the provisions of its own
charter or bylaws;
(4) failure to submit to examination, as required by
Chapter 401;
(5) failure to pay the cost of examination, as
required by Chapter 401;
(6) failure to pay any tax or fee required by this
code;
(7) removal of its principal office or books and
records from this state without prior approval of the commissioner;
(8) use of practices that render its operation
detrimental to the public or its condition unsound; or
(9) failure to otherwise comply with the laws of this
state.
Sec. 964.066. STANDARDS FOR RISK MANAGEMENT OF CONTROLLED
UNAFFILIATED BUSINESS. The commissioner may adopt rules
establishing standards to ensure that an affiliated company is able
to exercise control of the risk management function of any
controlled unaffiliated business to be insured by the captive
insurance company. Until rules under this section are adopted, the
commissioner may approve the coverage of these risks by a captive
insurance company.
Sec. 964.067. CAPTIVE MANAGERS. Before providing captive
management services to a licensed captive insurance company, a
captive management company shall register with the commissioner by
providing the information required on a form adopted by the
commissioner.
Sec. 964.068. MAINTENANCE TAX. A captive insurance company
is subject to maintenance tax under Subtitle C, Title 3, on direct
premiums for risks located in this state as applicable to the
individual lines of business written by the captive insurance
company.
Sec. 964.069. RULEMAKING AUTHORITY. The commissioner may
adopt reasonable rules as necessary to implement the purposes and
provisions of this chapter.
Sec. 964.070. CONFIDENTIALITY. (a) Any information filed
by an applicant or captive insurance company under this chapter is
confidential and privileged for all purposes, including for
purposes of Chapter 552, Government Code, a response to a subpoena,
or evidence in a civil action. Except as provided by Subsections
(b) and (c), the information may not be disclosed without the prior
written consent of the applicant or captive insurance company to
which the information pertains.
(b) If the recipient of the information described by
Subsection (a) has the legal authority to maintain the confidential
or privileged status of the information and verifies that authority
in writing, 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;
(5) a grand jury;
(6) the National Association of Insurance
Commissioners if the captive insurance company is affiliated with
an insurance company that is part of an insurance holding company
system as described in Chapter 823;
(7) another state or federal regulator if the state or
federal regulator is operating in its official capacity and the
applicant or captive insurance company to which the information
relates operates in the entity's jurisdiction;
(8) an international insurance regulator or analogous
financial agency operating in an official capacity, if the captive
insurance company is affiliated with an insurance company that is
part of an insurance holding company system as described in Chapter
823 and the holding company system operates in the entity's
jurisdiction; or
(9) members of a supervisory college described by
Section 823.0145, if the captive insurance company is affiliated
with an insurance company that is part of an insurance holding
company system as described in Chapter 823.
(c) The commissioner may use information described by
Subsection (a) in the furtherance of a legal or regulatory action
relating to the administration of this code.
Sec. 964.071. REDOMESTICATION. (a) An authorized foreign
or alien captive insurance company licensed under laws of any
jurisdiction may become a domestic captive insurance company in
this state on a determination by the commissioner that the
authorized foreign or alien captive insurance company has complied
with all of the requirements of this chapter for the issuance of a
certificate of authority to, and the Business Organizations Code
for converting to an entity of this state for, a domestic captive
insurance company of the same type.
(b) A domestic captive insurance company, on the approval of
the commissioner, may transfer its domicile. On the transfer, the
captive insurance company ceases to be a domestic captive insurance
company. The commissioner shall approve any proposed transfer
unless the commissioner determines the transfer is not in the best
interest of the policyholders.
(c) The commissioner may postpone or waive the imposition of
any fees or taxes under this code for a period not to exceed two
years for any foreign or alien captive insurance company
redomesticating to this state.
SUBCHAPTER C. MANAGING CAPTIVE INSURANCE COMPANIES
Sec. 964.101. SEGREGATED ACCOUNT. (a) A managing captive
insurance company may form a segregated account to insure risks of a
participant.
(b) The assets and liabilities of a managing captive
insurance company and each segregated account shall be held
separately. The assets and liabilities of each segregated account
shall be held separately from the assets and liabilities of all
other segregated accounts and the managing captive insurance
company.
(c) A managing captive insurance company is a single legal
entity and must establish each segregated account as a separate
legal entity. Each segregated account shall be separately
identified or designated as being a part of the managing captive
insurance company.
Sec. 964.102. ORGANIZATION AND STRUCTURE OF SEGREGATED
ACCOUNT. (a) A managing captive insurance company may issue
segregated account shares of stock or other type of equity
instrument in one or more classes or series for one or more
segregated accounts, or for the managing captive insurance company
as a whole. The proceeds of each issue shall be included in the
assets of the segregated account for which the segregated account
shares of stock or other type of equity instrument was issued. The
proceeds of the issue of shares of stock or other type of equity
instrument, other than segregated account shares of stock or other
type of equity instrument, is included in the managing captive
insurance company's general assets.
(b) A managing captive insurance company may pay a dividend
on segregated account shares of stock or other type of equity
instrument of any class or series regardless of whether a dividend
is declared on another class or series of segregated account shares
of stock or other type of equity instrument, or any other shares of
stock or other type of equity instrument.
(c) Segregated account dividends or distributions must be
paid on the segregated account shares of stock or other type of
equity instrument from the segregated account assets. The
dividends or distributions shall only be paid to the holders of the
segregated account shares of stock or other type of equity
instrument and in accordance with the rights of the shares of stock
or other type of equity instrument.
Sec. 964.103. ASSETS OF MANAGING CAPTIVE INSURANCE COMPANY.
(a) The assets of a managing captive insurance company are general
assets or assets of an individual segregated account. The
segregated account assets are the assets of the managing captive
insurance company held within or on behalf of the segregated
account of the managing captive insurance company. The general
assets of a managing captive insurance company are the assets of the
managing captive insurance company that are not segregated account
assets.
(b) The assets of a segregated account are assets
representing the capital, reserves held to support the liabilities
of the segregated account, or all other assets attributable to or
held within the segregated account. For purposes of this
subsection, "reserves" includes retained earnings, capital, and
paid-in capital.
Sec. 964.104. REQUIRED PROCEDURES. (a) The directors or
members of the governing body of a managing captive insurance
company shall establish and maintain, or cause to be established
and maintained, procedures:
(1) to segregate, and keep segregated, segregated
account assets from general assets;
(2) to segregate, and keep segregated, segregated
account assets of each segregated account captive insurance company
from segregated account assets of another segregated account; and
(3) if applicable, to apportion or transfer assets and
liabilities between segregated accounts, or between segregated
account assets and general assets, of the managing captive
insurance company.
(b) A managing captive insurance company must obtain prior
approval from the commissioner before the company apportions or
transfers assets and liabilities between segregated accounts of the
managing captive insurance company.
(c) A managing captive insurance company may not transfer
assets and liabilities between segregated accounts and general
assets of the managing captive insurance company.
Sec. 964.105. USE OF SEGREGATED ACCOUNT ASSETS.
(a) Segregated account assets:
(1) must only be available and used to meet
liabilities of the creditors with respect to that segregated
account, and those creditors shall be entitled to have recourse
only to the segregated account assets attributable to that
segregated account; and
(2) may not be available or used to meet liabilities
of, and shall be absolutely protected from, the creditors of the
managing captive insurance company and any other segregated account
who are not creditors with respect to a particular segregated
account, and those creditors are not entitled to have recourse to
the protected segregated account assets.
(b) If a liability of a managing captive insurance company
to a creditor arises with respect to a particular segregated
account, the liability extends only to that segregated account.
The creditor shall, with respect to that liability, be entitled to
have recourse only to the segregated account assets attributable to
the segregated account.
(c) If a liability, other than a liability described by
Subsection (b), of a managing captive insurance company to a
creditor arises, the liability extends only to the managing captive
insurance company's general assets. The creditor shall, with
respect to that liability, be entitled to have recourse only to the
managing captive insurance company's general assets.
(d) Liabilities of a managing captive insurance company not
attributable to any of the company's segregated accounts are
discharged from the managing captive insurance company's general
assets. Income, receipts, and other property or rights of or
acquired by a managing captive insurance company not otherwise
attributable to any segregated account are allocated to the
managing captive insurance company's general assets to the extent
that the managing captive insurance company's general assets exceed
any minimum capital amounts required by this chapter.
Sec. 964.106. SEPARATE RECORDS. The managing captive
insurance company shall account for each segregated account
separately on the books and records of the managing captive
insurance company to reflect the financial condition and results of
operations of the segregated account, including net income or loss,
dividends or other distributions to participants, and other factors
provided by the participant contract or required by the
commissioner.
Sec. 964.107. TRANSACTIONS REQUIRING COMMISSIONER
APPROVAL. (a) The managing captive insurance company may not make
a sale, exchange, or other transfer of assets between or among any
of its segregated accounts without the written consent of the
participants and the commissioner.
(b) A dividend or distribution shall not be made from the
company's segregated assets to any person without the
commissioner's prior written approval.
(c) The commissioner may not approve a transaction
described by Subsection (a) or (b) if the transaction would result
in the insolvency or impairment of the segregated account.
(d) A participant contract is not effective without the
commissioner's prior written approval. The withdrawal of a
participant from an existing segregated account is a change in the
strategic business plan of that segregated account requiring the
commissioner's prior written approval.
Sec. 964.108. NOTIFICATION REQUIRED. Each managing captive
insurance company shall notify the commissioner not later than the
10th business day after the date a segregated account becomes
insolvent, impaired, or otherwise unable to meet its claims or
expense obligations.
Sec. 964.109. QUALIFICATIONS OF PARTICIPANT. (a) Any
person may be a participant in a segregated account organized or
holding a certificate of authority under this chapter.
(b) A participant in a segregated account is not required to
be a holder of a segregated account shares of stock or other type of
equity instrument issued within the segregated account or by the
managing captive insurance company or any affiliate of the managing
captive insurance company.
Sec. 964.110. APPLICABILITY OF CHAPTER TO SEGREGATED
ACCOUNTS. Subchapters A and B apply to each segregated account,
except:
(1) Sections 964.056(a) and (b);
(2) Sections 964.059(a)(2) and (b)(2);
(3) Section 964.061;
(4) Section 964.063; and
(5) Section 964.071.
Sec. 964.111. CAPITAL AND SURPLUS REQUIREMENTS OF
SEGREGATED ACCOUNT. (a) The minimum amount of capital and surplus
in each segregated account is $100,000.
(b) The commissioner may require each segregated account to
maintain additional capital and surplus based on the type, volume,
and nature of the insurance business that is transacted by the
segregated account and may determine the amount of capital and
surplus, if any, that may be in the form of an irrevocable letter of
credit.
(c) The minimum capital and surplus required under
Subsection (a) must be in the form required by Section 964.056(c).
Sec. 964.112. ADDITIONAL ANNUAL REPORT REQUIREMENT. In
addition to the requirements of Section 964.060, a managing captive
insurance company must include in its annual report a financial
statement detailing the financial experience of each segregated
account.
Sec. 964.113. SEGREGATED ACCOUNT INVESTMENTS. (a) Each
segregated account shall file with the commissioner a proposed
investment strategy, and any changes to the strategy, which the
commissioner shall approve if the strategy does not threaten the
solvency, liquidity, or overall operating soundness of the
segregated account.
(b) A managing captive insurance company may file with the
commissioner a proposed investment strategy, and any changes to the
strategy, that will be applicable to each segregated account of the
managing captive insurance company.
Sec. 964.114. SUPPLEMENTAL APPLICATION MATERIALS. In
addition to the information required to obtain a certificate of
authority under Subchapter B, each managing captive insurance
company shall file with the commissioner the following:
(1) materials demonstrating how the company will
account for the loss and expense experience of each segregated
account and how expenses will be allocated; and
(2) all contracts or sample contracts between the
managing captive insurance company and a participant.
SECTION 3. Subsection (b), Section 203.001, Insurance Code,
is amended to read as follows:
(b) Except as otherwise provided by this code or the Labor
Code, an insurer or health maintenance organization subject to a
tax imposed by Chapter 4, 221, 222, 223A, 224, or 257 may not be
required to pay any additional tax imposed by this state or a county
or municipality in proportion to the insurer's or health
maintenance organization's gross premium receipts.
SECTION 4. Subsection (b), Section 203.002, Insurance Code,
is amended to read as follows:
(b) If the commissioner determines by examining a company or
segregated account or by other means that the company's or account's
gross premium receipts in a year exceed the amount reported by the
company or account for that year, the commissioner shall report
that determination to the comptroller. The comptroller shall
institute a collection action as the comptroller considers
appropriate to collect taxes due on unreported gross premium
receipts.
SECTION 5. Subdivision (11), Section 228.001, Insurance
Code, is amended to read as follows:
(11) "State premium tax liability" means:
(A) any liability incurred by any person under
Chapter 221, 222, 223, 223A, or 224; or
(B) if the tax liability imposed under Chapter
221, 222, 223, or 224 is eliminated or reduced, any tax liability
imposed on an insurer or other person that had premium tax liability
under Subchapter A, Chapter 4, or Article 9.59 as those laws existed
on January 1, 2003.
SECTION 6. Subsection (a), Section 171.052, Tax Code, is
amended to read as follows:
(a) Except as provided by Subsection (c), an insurance
organization, title insurance company, or title insurance agent
authorized to engage in insurance business in this state now
required to pay an annual tax under Chapters 221, 222, 223, 223A,
and 224 [Chapter 4 or 9], Insurance Code, measured by its gross
premium receipts is exempted from the franchise tax. A nonadmitted
insurance organization that is required to pay a gross premium
receipts tax during a tax year is exempted from the franchise tax
for that same tax year.
SECTION 7. As soon as practicable after the effective date
of this Act, but not later than January 1, 2014, the commissioner of
insurance shall adopt rules and procedures necessary to implement
Chapter 964, Insurance Code, as added by this Act.
SECTION 8. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2013.
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