CHAPTER 36. DEPARTMENT RULES AND PROCEDURES - Texas Statutes

INSURANCE CODE

TITLE 2. TEXAS DEPARTMENT OF INSURANCE

SUBTITLE A. ADMINISTRATION OF THE TEXAS DEPARTMENT OF INSURANCE

CHAPTER 36. DEPARTMENT RULES AND PROCEDURES

SUBCHAPTER A. RULES

Sec. 36.001. GENERAL RULEMAKING AUTHORITY. (a) The

commissioner may adopt any rules necessary and appropriate to

implement the powers and duties of the department under this code

and other laws of this state.

(b) Rules adopted under this section must have general and

uniform application.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999. Amended by Acts 2003, 78th Leg., ch. 206, Sec. 15.01, eff.

June 11, 2003.

Sec. 36.002. ADDITIONAL RULEMAKING AUTHORITY. The commissioner

may adopt reasonable rules that are:

(1) necessary to effect the purposes of a provision of:

(A) Subchapter B, Chapter 5;

(B) Subchapter C, Chapter 1806;

(C) Subchapter A, Chapter 2301;

(D) Chapter 251, as that chapter relates to casualty insurance

and fidelity, guaranty, and surety bond insurance;

(E) Chapter 253;

(F) Chapter 2008, 2251, or 2252; or

(G) Subtitle B, Title 10; or

(2) appropriate to accomplish the purposes of a provision of:

(A) Section 37.051(a), 403.002, 492.051(b) or (c), 501.159,

941.003(b)(1) or (c), or 942.003(b)(1) or (c);

(B) Subchapter H, Chapter 544;

(C) Chapter 251, as that chapter relates to:

(i) automobile insurance;

(ii) casualty insurance and fidelity, guaranty, and surety bond

insurance;

(iii) fire insurance and allied lines;

(iv) workers' compensation insurance; or

(v) aircraft insurance;

(D) Chapter 5, 252, 253, 254, 255, 256, 426, 493, 494, 1804,

1805, 1806, 2171, 6001, 6002, or 6003;

(E) Subtitle B, C, D, E, F, H, or I, Title 10;

(F) Section 417.008, Government Code; or

(G) Chapter 2154, Occupations Code.

Added by Acts 2005, 79th Leg., Ch.

727, Sec. 11, eff. April 1, 2007.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

730, Sec. 2B.002, eff. April 1, 2009.

Acts 2007, 80th Leg., R.S., Ch.

730, Sec. 3B.0591(d), eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

921, Sec. 9.0591(d), eff. September 1, 2007.

Sec. 36.003. RULES RESTRICTING ADVERTISING OR COMPETITIVE

BIDDING. The commissioner may not adopt rules restricting

advertising or competitive bidding by a person regulated by the

department except to prohibit false, misleading, or deceptive

practices by the person.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.004. COMPLIANCE WITH NATIONAL ASSOCIATION OF INSURANCE

COMMISSIONERS REQUIREMENTS. Except as provided by Section

36.005, the department may not require an insurer to comply with

a rule, regulation, directive, or standard adopted by the

National Association of Insurance Commissioners, including a

rule, regulation, directive, or standard relating to policy

reserves, unless application of the rule, regulation, directive,

or standard is expressly authorized by statute and approved by

the commissioner.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999. Amended by Acts 2003, 78th Leg., ch. 206, Sec. 15.02, eff.

June 11, 2003.

Sec. 36.005. INTERIM RULES TO COMPLY WITH FEDERAL REQUIREMENTS.

(a) The commissioner may adopt rules to implement state

responsibility in compliance with a federal law or regulation or

action of a federal court relating to a person or activity under

the jurisdiction of the department if:

(1) federal law or regulation, or an action of a federal court,

requires:

(A) a state to adopt the rules; or

(B) action by a state to ensure protection of the citizens of

the state;

(2) the rules will avoid federal preemption of state insurance

regulation; or

(3) the rules will prevent the loss of federal funds to this

state.

(b) The commissioner may adopt a rule under this section only if

the federal action requiring the adoption of a rule occurs or

takes effect between sessions of the legislature or at such time

during a session of the legislature that sufficient time does not

remain to permit the preparation of a recommendation for

legislative action or permit the legislature to act. A rule

adopted under this section shall remain in effect only until 30

days following the end of the next session of the legislature

unless a law is enacted that authorizes the subject matter of the

rule. If a law is enacted that authorizes the subject matter of

the rule, the rule will continue in effect.

Added by Acts 2003, 78th Leg., ch. 206, Sec. 15.03, eff. June 11,

2003.

SUBCHAPTER B. DEPARTMENT PROCEDURES

Sec. 36.101. APPLICABILITY OF CERTAIN LAWS. Except as

specifically provided by law, the department is subject to

Chapters 2001 and 2002, Government Code.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.102. SUMMARY PROCEDURES FOR ROUTINE MATTERS. (a) The

commissioner by rule may:

(1) create a summary procedure for routine matters; and

(2) designate department activities that otherwise would be

subject to Chapter 2001, Government Code, as routine matters to

be handled under the summary procedure.

(b) An activity may be designated as a routine matter only if

the activity is:

(1) voluminous;

(2) repetitive;

(3) believed to be noncontroversial; and

(4) of limited interest to anyone other than persons immediately

involved in or affected by the proposed department action.

(c) The rules may establish procedures different from those

contained in Chapter 2001, Government Code. The procedures must

require, for each party directly involved, notice of a proposed

negative action not later than the fifth day before the date the

action is proposed to be taken.

(d) The rules may provide for the delegation of authority to

take action on a routine matter to a salaried employee of the

department designated by the commissioner.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.103. REVIEW OF ACTION ON ROUTINE MATTER. (a) A person

directly or indirectly affected by an action of the commissioner

or the department on a routine matter taken under the summary

procedure adopted under Section 36.102 is entitled to a review of

the action under Chapter 2001, Government Code.

(b) The person must apply to the commissioner not later than the

60th day after the date of the action to be entitled to the

review.

(c) The timely filing of the application for review immediately

stays the action pending a hearing on the merits.

(d) The commissioner may adopt rules relating to an application

for review under this section and consideration of the

application.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.104. INFORMAL DISPOSITION OF CERTAIN CONTESTED CASES.

(a) The commissioner may, on written agreement or stipulation of

each party and any intervenor, informally dispose of a contested

case in accordance with Section 2001.056, Government Code,

notwithstanding any provision of this code that requires a

hearing before the commissioner.

(b) This section does not apply to a contested case under Title

5, Labor Code.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 6.055, eff. September 1, 2005.

Sec. 36.105. NEWSPAPER PUBLICATION. Except as otherwise

provided by law, a notice or other matter that this code requires

to be published must be published for three successive weeks in

two newspapers that:

(1) are printed in this state; and

(2) have a general circulation in this state.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.106. WAIVER OF CERTAIN NOTICE REQUIREMENTS. The

commissioner may, on written agreement or stipulation of each

party and any intervenor, waive or modify the notice publication

requirement of Section 822.059, 822.157, 841.060, or 884.058.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

730, Sec. 2B.003, eff. April 1, 2009.

Sec. 36.107. ACCEPTANCE OF ACTUARIAL OPINION. An opinion of an

actuary requested by the commissioner under this code, another

insurance law of this state, or a rule of the commissioner is

presumed to be accurate and valid, and the department shall

accept the opinion unless controverted. The department may

employ, at the department's expense, another actuary to provide

an alternative opinion.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.108. FILING DATE OF REPORT, FINANCIAL STATEMENT, OR

PAYMENT DELIVERED BY POSTAL SERVICE. Except as otherwise

specifically provided, for a report, financial statement, or

payment that is required to be filed or made in the offices of

the commissioner and that is delivered by the United States

Postal Service to the offices of the commissioner after the date

on which the report, financial statement, or payment is required

to be filed or made, the date of filing or payment is the date

of:

(1) the postal service postmark stamped on the cover in which

the report, financial statement, or payment is mailed; or

(2) any other evidence of mailing authorized by the postal

service reflected on the cover in which the report, financial

statement, or payment is mailed.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 10, eff. April 1,

2005.

Sec. 36.109. RENEWAL EXTENSION FOR CERTAIN PERSONS PERFORMING

MILITARY SERVICE. (a) The department may extend the renewal

period for a license, permit, certificate of authority,

certificate of registration, or other authorization issued by the

department to engage in an activity regulated under this code or

other insurance laws of this state for a person who is unable in

a timely manner to comply with renewal requirements, including

any applicable continuing education requirements, because the

person was on active duty in a combat theater of operations in

the United States armed forces.

(b) A person must submit a written application for an extension

under this section to the department.

(c) The department shall exempt a person who receives an

extension under this section from any increased fee or other

penalty otherwise imposed for failure to renew in a timely

manner.

(d) The commissioner may adopt rules as necessary to implement

this section.

Added by Acts 2003, 78th Leg., ch. 1274, Sec. 11, eff. April 1,

2005.

SUBCHAPTER C. GENERAL SUBPOENA POWERS; WITNESSES AND PRODUCTION

OF RECORDS

Sec. 36.151. DEFINITION. In this subchapter, "records" includes

books, accounts, documents, papers, correspondence, and other

material.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.152. SUBPOENA AUTHORITY. (a) With respect to a matter

that the commissioner has authority to consider or investigate,

the commissioner may issue a subpoena applicable throughout the

state that requires:

(1) the attendance and testimony of a witness; and

(2) the production of records.

(b) In connection with a subpoena, the commissioner may require

attendance and production of records before the commissioner or

the commissioner's designee:

(1) at the department's offices in Austin; or

(2) at another place designated by the commissioner.

(c) In connection with a subpoena, the commissioner or the

commissioner's designee may administer an oath, examine a

witness, or receive evidence.

(d) The commissioner must personally sign and issue the

subpoena.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999. Amended by Acts 2003, 78th Leg., ch. 1276, Sec. 10A.001,

eff. Sept. 1, 2003.

Sec. 36.153. SERVICE OF SUBPOENA. (a) A subpoena issued by the

commissioner may be served, at the discretion of the

commissioner, by the commissioner, an authorized agent of the

commissioner, a sheriff, or a constable.

(b) The sheriff's or constable's fee for serving the subpoena is

the same as the fee paid to the sheriff or constable for similar

services.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.154. ENFORCEMENT OF SUBPOENA. (a) On application of

the commissioner in the case of disobedience of a subpoena or the

contumacy of a person, a district court may issue an order

requiring a person subpoenaed to obey the subpoena, to give

evidence, or to produce records if the person has refused to do

so.

(b) A court may punish as contempt the failure to obey a court

order under Subsection (a).

(c) If the court orders compliance with the subpoena or finds

the person in contempt for failure to obey the order, the

commissioner, or the attorney general when representing the

department, may recover reasonable costs and fees, including

attorney's fees and investigative costs incurred in the

proceedings.

(d) An application under Subsection (a) must be made in a

district court in Travis County or in the county in which the

subpoena is served.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.155. COMPENSATION FOR ATTENDANCE. A person required by

subpoena to attend a proceeding before the commissioner or the

commissioner's designee is entitled to:

(1) reimbursement for mileage in the same amount for each mile

as the mileage travel allowance for a state employee for

traveling to or from the place where the person's attendance is

required, if the place is more than 25 miles from the person's

place of residence; and

(2) a fee for each day or part of a day the person is required

to be present as a witness that is equal to the greater of:

(A) $10; or

(B) a state employee's per diem travel allowance.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.156. OUT-OF-STATE MATERIALS. (a) A person with

materials located outside this state that are requested by the

commissioner may make the materials available for examination at

the place where the materials are located.

(b) The commissioner may designate a representative, including

an official of the state in which the materials are located, to

examine the materials.

(c) The commissioner may respond to a similar request from an

official of another state or of the United States.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.157. USE AS EVIDENCE IN CERTAIN CASES. (a) This

section applies to testimony or records resulting in a case

involving an allegation of engaging in the business of insurance

without a license.

(b) On certification by the commissioner under official seal,

testimony taken or records produced under this subchapter and

held by the department are admissible in evidence in a case

without:

(1) prior proof of correctness; and

(2) proof, other than the certificate of the commissioner, that

the testimony or records were received from the person testifying

or producing the records.

(c) The certified records, or certified copies of the records,

are prima facie evidence of the facts disclosed by the records.

(d) This section does not limit any other provision of this

subchapter or any law that makes provision for the admission or

evidentiary value of certain evidence.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.158. ACCESS TO INFORMATION. (a) A record or other

evidence acquired under a subpoena under this subchapter is not a

public record for the period the commissioner considers

reasonably necessary to:

(1) complete the investigation;

(2) protect the person being investigated from unwarranted

injury; or

(3) serve the public interest.

(b) The record or other evidence is not subject to a subpoena,

other than a grand jury subpoena, until:

(1) the record or other evidence is released for public

inspection by the commissioner; or

(2) after notice and a hearing, a district court determines that

obeying the subpoena would not jeopardize the public interest and

any investigation by the commissioner.

(c) Except for good cause, a district court order under

Subsection (b) may not apply to:

(1) a record or communication received from another law

enforcement or regulatory agency; or

(2) the internal notes, memoranda, reports, or communications

made in connection with a matter that the commissioner has the

authority to consider or investigate.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.159. PRIVILEGED AND CONFIDENTIAL RECORDS AND

INFORMATION; PROTECTIVE ORDERS. (a) A record subpoenaed and

produced under this subchapter that is otherwise privileged or

confidential by law remains privileged or confidential until

admitted into evidence in an administrative hearing or a court.

(b) The commissioner may issue a protective order relating to

the confidentiality or privilege of a record described by

Subsection (a) to restrict the use or distribution of the record:

(1) by a person; or

(2) in a proceeding other than a proceeding before the

commissioner.

(c) Specific information relating to a particular policy or

claim is privileged and confidential while in the possession of

an insurance company, organization, association, or other entity

holding a certificate of authority from the department and may

not be disclosed by the entity to another person, except as

specifically provided by law.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.160. COOPERATION WITH LAW ENFORCEMENT. On request, the

commissioner may furnish records or other evidence obtained by

subpoena to:

(1) a law enforcement agency of this state, another state, or

the United States; or

(2) a prosecuting attorney of a municipality, county, or

judicial district of this state, another state, or the United

States.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.161. CERTAIN SUBPOENAS ISSUED TO FINANCIAL INSTITUTIONS.

A subpoena issued to a bank or other financial institution as

part of a criminal investigation is not subject to Section

30.007, Civil Practice and Remedies Code.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.162. EFFECT ON CONTESTED CASE. Sections 36.152, 36.156,

36.158, 36.160, and 36.161 do not affect the conduct of a

contested case under Chapter 2001, Government Code.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

SUBCHAPTER D. JUDICIAL REVIEW

Sec. 36.201. ACTION SUBJECT TO JUDICIAL REVIEW. An action of

the commissioner subject to judicial review under this subchapter

includes a decision, order, rate, rule, form, or administrative

or other ruling of the commissioner.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.2015. ACTIONS UNDER TITLE 5, LABOR CODE.

Notwithstanding Section 36.201, a decision, order, form, or

administrative or other rule of the commissioner of workers'

compensation under Title 5, Labor Code, or a rule adopted by the

commissioner of insurance under Title 5, Labor Code, is subject

to judicial review as provided by Title 5, Labor Code.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 6.056, eff. September 1, 2005.

Sec. 36.202. PETITION FOR JUDICIAL REVIEW. (a) After failing

to get relief from the commissioner, any insurance company or

other party at interest who is dissatisfied with an action of the

commissioner may file a petition for judicial review against the

commissioner as defendant.

(b) The petition must state the particular objection to the

action and may be filed only in a district court in Travis

County.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.203. JUDICIAL REVIEW. Judicial review of the action is

under the substantial evidence rule and shall be conducted under

Chapter 2001, Government Code.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.204. ACTION NOT VACATED. (a) The filing of a petition

for judicial review of an action under this subchapter does not

vacate the action.

(b) After notice and hearing, the court may vacate the action if

the court finds it would serve the interest of justice to do so.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

Sec. 36.205. APPEAL. (a) A party to the action under Section

36.202 may appeal to an appellate court that has jurisdiction,

and the appeal is at once returnable to that court.

(b) An appeal under this section has precedence in the appellate

court over any cause of a different character pending in the

court.

(c) The commissioner is not required to give an appeal bond in

an appeal arising under this subchapter.

Added by Acts 1999, 76th Leg., ch. 101, Sec. 1, eff. Sept. 1,

1999.

SUBCHAPTER E. INVESTIGATION FILES

Sec. 36.251. DEFINITION. In this subchapter, "investigation

file" means any information collected, assembled, or maintained

by or on behalf of the department with respect to an

investigation conducted under this code or other law. The term

does not include information or material acquired by the

department that is:

(1) relevant to an investigation by the insurance fraud unit;

and

(2) subject to Section 701.151.

Added by Acts 2009, 81st Leg., R.S., Ch.

1039, Sec. 1, eff. June 19, 2009.

Sec. 36.252. INVESTIGATION FILES CONFIDENTIAL. (a) Information

or material acquired by the department that is relevant to an

investigation is not a public record for the period that the

department determines is relevant to further or complete an

investigation.

(b) Investigation files are not open records for purposes of

Chapter 552, Government Code, except as specified herein.

Added by Acts 2009, 81st Leg., R.S., Ch.

1039, Sec. 1, eff. June 19, 2009.

Sec. 36.253. DISCLOSURE OF CERTAIN INFORMATION NOT REQUIRED.

The department is not required to disclose under this subchapter:

(1) information that is:

(A) an attorney-client communication; or

(B) an attorney work product; or

(2) other information protected by a recognized privilege, a

statute, an administrative rule, the Texas Rules of Civil

Procedure, or the Texas Rules of Evidence.

Added by Acts 2009, 81st Leg., R.S., Ch.

1039, Sec. 1, eff. June 19, 2009.